Public Safety Committee on Nov. 29th, 2007

[The Chair, Conservative, Garry Breitkreuz]

Yes.

Okay, thank you very much, gentlemen. We appreciate your coming before the committee.

We'll suspend for a moment, just to let the other witnesses come before the committee.

[The Chair, Conservative, Garry Breitkreuz]

Ms. Basnicki, are you ready to begin?

[Maureen Basnicki, Founder Director, Canadian Coalition Against Terror]

I am.

[The Chair, Conservative, Garry Breitkreuz]

I don't know what happened to our other witnesses, but we might as well start because we're on a tight timeline here.

[Maureen Basnicki]

I would like the courtesy of--

[The Chair, Conservative, Garry Breitkreuz]

Of everybody sitting down. That's why I'm trying to get the meeting back to order.

[Maureen Basnicki]

Thank you.

[The Chair, Conservative, Garry Breitkreuz]

Thank you.

[Maureen Basnicki]

I was formerly an Air Canada flight attendant and I made sure that everybody listened to my emergency demonstration--

[The Chair, Conservative, Garry Breitkreuz]

There are a few people still talking. If you have an important conversation, please take it outside the room. I would like to begin.

Please introduce yourselves as your turn comes. Not everybody is here at this point.

Ms. Basnicki, the usual procedure here is 10 minutes. Then after all the witnesses have given their presentations, we'll go around and get questions and comments.

[Maureen Basnicki]

Thank you.

[The Chair, Conservative, Garry Breitkreuz]

Whenever you're ready, you may begin.

[Maureen Basnicki]

Good morning.

My name is Maureen Basnicki. My husband, Ken Basnicki, a proud Canadian, was murdered by al-Qaeda terrorists in New York on September 11, 2001, while attending a meeting on the 106th floor of the north tower of the World Trade Centre. Ken was one of 24 Canadians murdered that day.

I am here as the founder of C-CAT, the Canadian Coalition Against Terror. C-CAT is a non-partisan advocacy body comprised of Canadian terror victims from every walk of life and faith group, as well as counter-terrorism professionals, lawyers, and other individuals committed to enhancing Canada's counter-terrorism policy.

My comments before this committee will be focused primarily on the issue of terrorism as it relates to security certificates, not on the broader categories of inadmissibility set out in the Immigration and Refugee Protection Act.

I would argue that the most crucial role of security certificates pertains to terrorism, and in particular to the prevention of terrorist acts.

When Canada removes non-Canadian citizens with past records of criminality, or even war crimes, we are making an important statement about our Canadian values and acting to maintain the integrity of Canada as a society. But when Canada removes non-Canadian citizens where there are sufficient grounds to believe they are planning to murder Canadians, to bring down our subways, our school and our water systems, that is more than a statement about Canadian values; that is about saving human lives.

In most of my previous appearances before parliamentary committees and the Air India commission of inquiry, I have testified on behalf of the victims we represent about issues related to counter-terrorism and the rights of terror victims. Today, I am here to speak on behalf of those Canadians who are not yet victims and their rights, to speak about a fundamental right of every Canadian and every human being: the right not to be a victim of a terrorist attack. This is expressed in more general terms in section 7 of the charter of rights, which guarantees the right to life, liberty, and security of the person. There is a corresponding obligation of the Canadian government to ensure that such rights are protected.

I fully concur with British Minister Ian Pearson, who stated in the aftermath of the 2005 London bombings, that there is no human right more sacred than the right to be alive, and without this human right all others are impossible.

It would therefore be an error to perceive the security certificate debate only as a conflict between civil rights and security imperatives. That language obscures the fact that, in truth, this is a debate about determining the appropriate equilibrium between the rights of non-Canadian citizens subject to a security certificate and the rights of all Canadians who are potential targets of a terrorist act by such an individual.

It is C-CAT's view that Bill C-3, drafted according to the directives of the Supreme Court of Canada and two parliamentary committees, has struck the appropriate balance between protecting the rights of the individual named in the certificate and protecting the rights of the ordinary Canadian to be spared victimhood of the type that I and hundreds of other Canadians have suffered.

Security certificates are giving greater latitude to authorities, ensuring that individuals who are not citizens of Canada and are suspected of having committed or are planning to commit the most egregious offences, such as terrorist acts, cannot remain in Canada, disappear into the woodwork, and harm Canadians.

The ability of the government to detain and remove dangerous non-Canadians from Canada, while protecting sensitive information, implements a critical national objective. This is especially true, in my view, if the security certificates are able to prevent a terrorist act.

According to the 2003 public report of CSIS, safeguarding against the possibility of a terrorist attack occurring in or originating from Canada is the highest national security priority. The strength of Bill C-3 is that it provides a tool to protect Canadian citizens while protecting the rights of an individual subject to a certificate. In fact, it could be argued that when comparing the rights of the individual named in the certificate with the rights of the potential victims, should that named individual actually commit a terrorist act, one could easily conclude that this person's rights have taken precedence over those of the potential victims.

Here are a few examples.

First, any individual detained under the legislation can be released from detention at any time should that individual agree to return to his or her country of origin or to a third country. The choice is that of the detainee.

In contrast, the potential victims of these individuals are given no choices. They cannot choose to leave the location of a terrorist incident. My husband and 3,000 others that day in New York had no such choice. Neither did the 331 people murdered in the Air India bombing.

Second, the Supreme Court of Canada has explicitly noted that detention under a security certificate is not cruel and unusual punishment if accompanied by a process that provides for regular detention reviews. Bill C-3 has created such a process, and a very fair one at that.

It seems to me that a person choosing to remain in detention until the resolution of the process, while benefiting from three meals a day, a stocked kitchen, an exercise room, a television, visits from his or her family and religious leaders, as well as regular reviews of his or her detention and the opportunity to appeal decisions at taxpayers' expense is not suffering cruel and unusual punishment.

But cruelty of the most exceptional sort is precisely what could befall Canadians if a terrorist should slip through our system; cruelty of the type that forced couples trapped in the World Trade Center to jump 100 floors, holding hands, to their deaths; cruelty of the type that killed every man, woman, and child on board Air Canada Flight 182, either from the immediate explosion of the suitcase bomb planted in the cargo or from drowning in the Atlantic Ocean after falling thousands of feet out of the plane.

I cannot help but add that in contrast to the detainees, who have access to an on-call psychiatrist, Canadian terror victims and their families have had to pay out of pocket for much needed psychological counselling. This issue has been raised by Air India family members, who testified at the Air India Inquiry that they were in need of counselling after the attack but did not have the necessary resources to obtain it themselves.

Lastly, any individual subject to a security certificate is entitled to a special advocate, who will have access to classified evidentiary materials and can challenge the minister's claim to the confidentiality of these materials as well as their relevance, reliability, sufficiency, and weight. But for the potential victims of such a named individual, our legal system provides no special advocates or other assistance to address the legal needs of victims after a terrorist attack.

All in all, given the dire and irreversible consequences in store for Canadian citizens if an error is made in favour of an individual named in a certificate who then commits a terrorist act, Bill C-3 has given considerable leeway to these individuals.

If for some the concern regarding the potential abuse of security certificates still supercedes the concern for saving real lives from the very real threat of terrorism, they should consider the following. By assisting authorities in preventing a major terrorist attack, these rather modest provisions will have protected our legal system from the inevitability of coming under even greater pressure, in the aftermath of an attack, to enact measures even more stringent and controversial in order to more adequately protect Canadians from other attacks. This possible backlash, resulting in even tougher laws that would go much farther than Bill C-3, is surely a scenario that all sides of this debate wish to avoid.

Members of the committee, given the unprecedented security challenges presented by terrorism as well as some of the obvious limitations of our criminal justice system in prosecuting the perpetrators and sponsors of terrorist attacks, security certificates are sorely needed. We must face the fact that terrorism is not another form of ordinary criminality. Terrorism is different in its scope, intent, method, and consequence. Combatting terrorism has pushed to new extremes what the Supreme Court has described as the “tension that lies at the heart of modern democratic governance” between “imperatives both of security and of accountable constitutional governance”.

We believe that Bill C-3 has found a reasonable and effective accommodation that addresses this tension, fulfilling the base requirements of both imperatives. Terrorism requires special technologies, policies, and legal structures to protect Canadians. Bill C-3 is a very good step in this direction, and on behalf of C-CAT and the terror victims we represent, we wish to voice our support for this bill.

[The Chair, Conservative, Garry Breitkreuz]

Next we have a representative from the Canadian Muslim Lawyers Association.

You may introduce yourself, sir, and go ahead. Thank you.

[Ziyaad Mia, Former Board Member, Chair of the Advocacy and Research Committee, Canadian Muslim Lawyers Association]

Thank you, Mr. Chair.

Good morning, everyone. Thank you for taking the time to hear our testimony.

I think I'm going up against Karlheinz Schreiber, so I'm probably not going to get much attention today. That's like going against Mike Tyson, I guess, with my hands cuffed. So I'll do my best. I guess a lot of people want to go there. I think I'll go there after as well.

My name is Ziyaad Mia. I'm the chair of the research and advocacy arm of the Canadian Muslim Lawyers Association. I'm a past board member of that association as well. We have been involved in national security policy and legislation issues for a number of years now. We've testified on the Anti-terrorism Act, the Public Safety Act, security certificates, and we've tried to work in a cooperative way to try to develop security legislation and policy that is consistent with Canadian values.

Today, we're happy to speak about Bill C-3. Just at the outset, and I think you've heard it several times, but I've received several personal messages and phone calls from many other groups who are directly interested in this issue, more directly, even, than my organization, representing some of the men detained and their families, and can speak directly to those issues. I'll try my best, but I can't replicate what they'll be able to tell you.

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

Mr. Chairman, before we start, I have a point of order. Do you have a French translation of the document that has been circulated?

[The Chair, Conservative, Garry Breitkreuz]

We didn't hand out any documents, sir. You must have illegally obtained it.

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

That is fine.

[The Chair, Conservative, Garry Breitkreuz]

I'm not sure how you received that. Maybe it was outside the room, which is all right. I was saying that tongue in cheek, yes.

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

That is fine.

[Ziyaad Mia]

Monsieur Ménard, I'll just take a second to answer that.

I've provided my submission to many of the members of the committee. I met with some yesterday and delivered some copies. Mr. Chair, I was remiss in forgetting you, but I'll give you one outside so we won't break any rules. I've provided it to the clerk, and he'll have that translation ready shortly. Because of the tight timeframes, I wasn't able to get it to you in time for translation.

[The Chair, Conservative, Garry Breitkreuz]

Okay. Go ahead.

[Ziyaad Mia]

We have prepared a written submission on this legislation, but I just wanted to reiterate that many of these groups have called me personally. I want to put on the record that many people in this country believe that this is a rushed process when it doesn't need to be a rushed process; that they can give you some useful input; and that people in direct contact with the detainees--and I would argue the detainees themselves--should come and speak to you.

I'd like to speak for a few minutes at the end of my opening about the human element. I've met with some of these people. I've been in their homes. I suppose that when we don't have human contact, it's easy to turn someone into a cardboard cutout of what threat they pose, but when you see the human effects, it isn't as easy as we think.

The Canadian Muslim Lawyers Association--and I take a further step beyond that and say the Muslim community in this country, Canadian Muslims--absolutely agree with Ms. Basnicki. We reject violence unequivocally, against all civilians, by state and non-state actors anywhere on this earth. My organization is committed fundamentally to the rule of law and accountable government. As a lawyer, it's a little corny, but I am still wed to those principles, and, really, I don't think there is a balance. I don't think we need to make this a zero-sum game of saying that we need to trade civil liberties or our fundamental values to make this country safer. In effect, you've just heard Mr. Forcese and Mr. Waldman--and I'll speak to these issues as well--say that when we strengthen the values of this country, then we keep Canadians safer. When we have secrecy, we have darkness.

We don't know if these men are innocent or not, and I can tell you that some of the men on these certificates have told me explicitly, “When you speak to these people, they're important people. Tell them I don't want to be let go. That's not what I'm asking for. I'm asking for a fair trial, and if I've done something wrong, then so be it.”

I can also tell you that one of the men loves this country; despite having been in detention for many years and being away from his family, he loves this country and what it stands for on paper. I just wanted to make that clear on the record.

In my submission you'll notice I've thrown in a little bit of literature, a little flair, from Franz Kafka's famous book The Trial. The opening sentence--I'll just read it out--is: “Someone must have been telling some lies about Joseph K., for without having done anything wrong, he found himself arrested one morning.”

I find that quite interesting when I'm working on the security certificate process and talking to these families. They're caught in this web of absurdity. You're told you're a bad person. You've done X, Y, and Z, but there's no way for you to punch yourself out of that paper bag. It's frustrating as a human being. To me, as a lawyer, it's frustrating, because it breaks every principle of law that I've been taught as a lawyer. We know what Paul Bernardo and Karla Homolka have done. We've seen the evidence. They had an open trial. Karla Homolka effectively served less time than all of these men cumulatively have served in detention.

All we're asking for is a fair shot, and really, that's what our evidence speaks to.

I'll quickly go through what's in my submission, but I'll ask you to look at that if you can. My detailed recommendations are on page 10 of the submission. There is some discussion of what the Supreme Court lays out as what I think are the road map and guideposts for Parliament in redrafting this legislation, and I'll speak to that a bit.

Our principal position is--and I believe Mr. Allmand is going to echo this--that it is fundamentally wrong to treat citizens and non-citizens in a distinct way when we're dealing with national security. The immigration issue is now a subsidiary issue. I know that for various reasons the Supreme Court has rendered this decision and we're going down this road; I'm ready to offer recommendations, but on the record, our principal position is this: the House of Lords in 2005 clearly followed the law to its end logic, which said that when there are equal threats from a citizen and a non-citizen, you can't treat non-citizens with harsher means, because then that triggers minimal impairment issues similar to those we have in the charter.

The Charkaoui decision looked at the security certificates, and I think Chief Justice McLachlin laid out a number of guideposts, I would say, and directions for Parliament to follow. I'll just hit a few of those, because I don't want to take too much time here.

Essentially any substitute mechanism to a full and open process must be meaningful, substantial, and provide informed participation by the subject party. Chief Justice McLachlin then said what we all know; fundamental justice in section 7 is what every lawyer knows, back to the common law of 400 or 500 years ago--that its full answer and defence is to know the case against you and have the ability to answer that case. Back to the kings of England when they had the rights of monarchs, these principles were laid down.

So it's beyond the charter. It goes back much further. Those are your guideposts in drafting this legislation.

Do I think it meets that? No, I don't think it meets what full answer and defence is. I don't think it meets knowledge and answering, and I can talk about that in a bit more detail in our discussion.

The recommendations we put forward.... I'll just walk through them quickly and I'll ask you--in questioning, we can elaborate a bit more--that there be some substantial representation. The other witnesses have talked about it. You can't stop the communication between advocate and the subject party once they've seen the evidence.

I think there are ways around that. SIRC has proven it. Mr. Cavalluzo has proven it in the Arar commission. I think we saw that in the morning's testimony, so I won't give those examples of how you can craft a way so that it's a robust, organic process. Any lawyer knows that. That was why your client.... I mean, it's not a lawyer-client relationship in this case, but that relationship between you and the person you represent has to be ongoing and healthy.

That's the best way to search for truth, because at the end of the day, I think all of us agree that the adversarial process is the search for truth. When we find the truth, if these men are guilty of something, yes, we are safer. If they are not, let's not waste resources chasing red herrings and persecuting families, essentially, that are innocent. So the search for truth should be our touchstone.

Resources and independence--I think others have talked about that, that the roster should be made independently of government, that persons should be able to choose, and a number of other things, and it should be fully resourced and staffed so they can actually be effective. I'll leave that for you to read, and we can talk about that.

I was pleased to read the transcript of Mr. Day's testimony in which he says we do not approve of torture-derived evidence and we don't approve of torture. That is exactly Canada's commitment under the Convention against Torture, international refugee law, and pre-emptory norms of international law, which are basically the moral norms that nobody can transgress in international law. If we agree to all of that, then why don't we simply write it down? I think it would add more certainty and comfort if we wrote that down. I think Mr. Day has agreed that we don't take evidence from torture, so let's write that down.

I would also add that in the Suresh exception, the Supreme Court opened the door just a crack to say that we don't deport people to torture, except in certain circumstances. That is a breach of the Convention against Torture, our treaties under international law and refugees, as well as pre-emptory norms again.

The Supreme Court, I think, made a mistake there, and it's embarrassing when someone wants to fix that mistake. Parliament can lead on this. I think you have it in your hands now to legislate away that thing, take the moral high ground and say we don't deport people to torture. Plunk that in here and then that gets away from this problem, because now we're having problems where government lawyers are arguing to deport people to torture.

I'll leave the others for later. I'd simply like to close by saying that what we need is a fair and efficient process, and at the end of the day, I would invite you to personally go--and I can arrange this--to meet with these people in their homes. They're not as scary as they're made out to be. At the end of the day, they're human beings like you and me.

I got a call the day before I came from one of the gentlemen. He said “Please tell them”--that's you--“it's not about me. My kids are now prisoners.” He can't go to the backyard. He couldn't go to Eid prayers. Even though he follows all the processing rules, it was just refused.

So at the end of the day, this is all about families and fairness.

I look forward to your questions.

[The Chair, Conservative, Garry Breitkreuz]

Thank you.

Last, we'll go to the International Civil Liberties Monitoring Group. You may go ahead, sir, when you're ready.

[Warren Allmand, Member of Steering Committee, International Civil Liberties Monitoring Group]

Thank you, Mr. Chairman. I apologize for being late. I was stuck for an hour on the 417, coming into Ottawa, because of an accident in front of me.

My name is Warren Allmand. I'm here with Roch Tassé, representing the International Civil Liberties Monitoring Group, which is a coalition of over 30 NGOs, unions, faith groups, and other civil society organizations that came together in the aftermath of September 11, 2001, to monitor the impact of anti-terrorism measures on human rights and to advocate against violations of national and international human rights standards.

As you know, on February 23, 2007, the Supreme Court ruled unanimously that security certificates used to detain suspected terrorists under the Immigration and Refugee Protection Act were unconstitutional. The certificates allowed government officials to use secret court hearings, untested allegations, indefinite prison terms, and summary deportations when dealing with non-citizens accused of having terrorist ties.

Chief Justice McLachlin, speaking for the entire court, said that the procedures for determining whether a security certificate was acceptable infringed section 7 of the charter. She went on to say at the beginning of her judgment:

The right to a fair hearing comprises the right to a hearing before an independent and impartial magistrate who must decide on the facts and the law, the right to know the case put against one, and the right to answer that case. While the IRPA procedures properly reflect the exigencies of the security context, security concerns cannot be used, at the s. 7 stage of the analysis, to excuse procedures that do not conform to fundamental justice. Here, the IRPA scheme includes a hearing and meets the requirement of independence and impartiality, but the secrecy required by the scheme denies the person named in a certificate the opportunity to know the case put against him or her, and hence to challenge the government’s case.

A little further on, in paragraph 54 of her judgment—and I think it's important to refer to these sections—she says:

Under the IRPA's certificate scheme, the named person may be deprived of access to some or all of the information put against him or her, which would deny the person the ability to know the case to meet. Without this information, the named person may not be in a position to contradict errors, identify omissions, challenge the credibility of informants or refute false allegations.

In paragraph 64, she says:

the principle that a person whose liberty is in jeopardy must know the case to meet. Here that principle has not merely been limited; it has been effectively gutted.

Those are her terms: “has been effectively gutted.” She continues:

How can one meet a case one does not know?

She goes on to say that this infringement of section 7 and sections 9 and 10 is not saved by section 1 of the charter. As you know, you can have an infringement under certain sections of the charter, but they can be saved if they meet the standards in section 1. She says they don't meet the standards in section 1; therefore, they're not saved.

Finally, she says that the declaration is suspended for one year from the date of the judgment, in order to give the government time to come up with something that will meet the requirements of the Constitution.

The only major difference between this Bill C-3 and the previous law is the introduction of the special advocate. The key provisions that prevent the right to know the case against you remain the same. Consequently, after careful examination, it's clear that this provision—the special advocate provision—does not overcome the Supreme Court's arguments and decision of illegality. It does not save or sanitize the security certificate process. There is still no due process, and charter sections 7, 9, and 10 are still not respected.

Mr. Chairman, the suggestion that the Supreme Court recommended this solution, the special advocate solution as set out in this bill, is not correct. Chief Justice McLachlin did refer to several possible models—she referred to the SIRC model, to articles 37 to 39 of the Canada Evidence Act, to the process used in the Air India trial, to the process used in the Arar inquiry, and to the U.K. special advocate system—but she did not give her approval to any one of them.

In paragraph 87 of her judgment she said:

Mechanisms developed in Canada and abroad illustrate that the government can do more to protect the individual while keeping critical information confidential than it has done in the IRPA. Precisely what more should be done is a matter for Parliament to decide. But it is clear that more must be done to meet the requirements of a free and democratic society.

Then in paragraph 61, further to that same point, she states:

In the context of national security, non-disclosure, which may be extensive, coupled with the grave intrusions on liberty imposed on a detainee, makes it difficult, if not impossible, to find substitute procedures that will satisfy section 7. Fundamental justice requires substantial compliance with the venerated principle that a person whose liberty is in jeopardy must be given an opportunity to know the case to meet, and an opportunity to meet the case.

Then at the end of that paragraph, she says:

If section 7 is to be satisfied, either the person must be given the necessary information, or a substantial substitute for that information must be found. Neither is the case here.

Of course, she is talking about the situation that was in place before the case went to the Supreme Court.

Mr. Chairman and members of the committee, under the present bill a judge can still authorize a security certificate on the basis of vague and undefined allegations rather than on precise charges; on secret and dubious information. And the bill does not prohibit, as my colleague just said, the use of information produced under torture.

Bill C-3 is a serious departure from the legal values of this country because it betrays the lawyer-client privilege contained in the charter; the individual has no choice in the special advocate assigned to him or her; it gives augmented powers to law enforcement and intelligence agents, who have made grievous errors in the past; and it can result in indefinite detention on the basis of a low standard of proof. The standard of proof, as you know, is that the certificate is reasonable; it is not based on hard evidence.

The people who are producing the information to support security certificates are the same people who said that Maher Arar and his wife were Islamic extremists linked to the al-Qaeda terrorist movement; that Mr. Arar was in Washington on September 11, 2001, when he was in San Diego; that he travelled from Quebec when he had a coffee in Ottawa with Mr. Almalki, when in fact he lived in Ottawa; that he refused to be interviewed by the police, when in fact he had agreed to be interviewed with his lawyer; and that he then left suddenly, after this request for an interview, for Tunisia, when in fact he left five months later.

I want to ask you, members of the committee, is this the type of information that should be the basis of long-term detention? Under Bill C-3, the special advocate would have access to the secret evidence but could not discuss it with the person involved. Not only would the person not have the opportunity to deny the information or justifiably explain it, but he would not have the opportunity to provide other evidence to support his side of the story. The informants might even leave out certain positive information that could help the individuals, simply to strengthen their case against the individual.

The International Covenant on Civil and Political Rights, which Canada ratified in 1976, states the following, in article 14, paragraph 3(a). It says that a person has “to be informed promptly and in detail in a language which he [or she] understands the nature and cause of the charge against him”.

Pardon me?