Public Safety Committee on Nov. 29th, 2007

[The Chair, Conservative, Garry Breitkreuz]

Please wrap it up.

[Warren Allmand]

Oh, okay.

I refer you to those sections sent to the commission against torture.

I'll wrap it up, Mr. Chair, by saying that what makes this bill even more unacceptable is the fact that none of the recommendations made by Judge O’Connor in his Arar inquiry report, more than a year ago, have been implemented. He recommended an oversight and review agency for all of the agencies collecting security intelligence information. That has not been done. If it had been done, we might have more faith in the type of information that was being put forward for security certificates.

I guess my final word is that Bill C-3 does not meet the requirements of the judgment of the Supreme Court, the nine to nothing judgment last February. I was going to deal with the question of how we deal with Canadian citizens. We have to go before the courts under the criminal justice system, and they may be as bad or worse than landed immigrants or non-citizens, but we have to prove the case against them in a court of law, according to all the rules of due process, Mr. Chairman, and that's not the case here.

[The Chair, Conservative, Garry Breitkreuz]

Thank you.

You, sir, have not submitted a brief.

[Warren Allmand]

No, we haven't.

[The Chair, Conservative, Garry Breitkreuz]

Mr. Dosanjh.

[Ujjal Dosanjh, Liberal, Vancouver South, BC]

I have only one question, and I'd like the three presenters to answer, if you so choose.

I'm not sure whether you're all familiar with the report that's been submitted by the two previous presenters, Mr. Waldman and Mr. Forcese. Would you say, if I were to ask you generally, that if we were able to implement all of their recommendations, that most of the concerns of the two presenters, Mr. Mia and Mr. Allmand, would be obviated or would be met?

I know Ms. Basnicki said that Bill C-3 is fine, but if it could be improved by general consensus, would you agree that it should be?

[Maureen Basnicki]

Anything that can be done to bring the appropriate balance to the dilemma we have in Canada will certainly be appreciated. I do believe that in my knowledge of the bill—and excuse me, I don't have the legal expertise that many of you have—and how it's been explained to me, we have succeeded in finding the balance as it stands now.

Any improvements would be welcome, but that's ultimately what we're striving for.

[Ziyaad Mia]

I've seen Lorne and Craig's piece, and I would concur with all of what they have said, but I have a number of additional.... I would add the Suresh exception and a number of other things. I don't want to go through the whole list here.

As has been cautioned in our submission, because of the short timeframe, we haven't given you everything. What this really needs is a proper timeframe to sit down and work with this. There wasn't really much consultation with lawyers or members in the community that are affected by this legislation. We saw it; I drafted this up on the weekend, and I came.

I would take Craig and Lorne's changes, and I would add the Suresh exception and a number of others, but certainly I would endorse those.

[Warren Allmand]

I've seen those proposals, but I haven't had time to really examine them in depth. I also saw the proposed amendments of the Liberal Party and the Bloc Quebecois.

It seems to me that these amendments would improve the bill, but I don't think they would improve the bill to the extent that it would meet the standards set out in a judgment by the Supreme Court. I think it would make for a better bill, but I still don't think it would meet the standards of the judgment.

[Ujjal Dosanjh, Liberal, Vancouver South, BC]

Thank you.

[Sue Barnes, Liberal, London West, ON]

Thank you very much. Thank you, all of you, for coming. We always appreciate the testimony. We know we're running on very short deadlines, because the government hasn't asked for an extension.

I want, first of all, to welcome Warren Allmand, who is a former Solicitor General of Canada, and also former chair of this committee for many years. I'm always happy to see you here.

Just for the record, Ms. Basnicki, I don't know if you would feel comfortable doing this, but I would like everybody on the record saying whether or not they feel the current bill is constitutional, would meet a constitutional challenge, in the form it is at this stage. This is just for the record, Ms. Basnicki, if you choose to.

[Maureen Basnicki]

Is the question whether it meets the constitutional requirements?

[Sue Barnes, Liberal, London West, ON]

Yes.

[Maureen Basnicki]

I don't have the knowledge of the constitutional requirements.

[Sue Barnes, Liberal, London West, ON]

That's understandable.

And the other...?

[Warren Allmand]

No, I don't think it does, and I cited certain passages in Chief Justice McLachlin's judgment. In my view, those passages have not been met in this bill. I still think there's going to be infringement of sections 7, 9, and 10.

[Sue Barnes, Liberal, London West, ON]

And Mr. Mia.

[Ziyaad Mia]

The bill as it currently stands—and if I knew what the Supreme Court were going to do, I'd also know the lottery numbers for next week and I wouldn't be doing this....

As I mentioned, she said the substitute has to be meaningful, substantial, allow informed participation, and meet the two fundamental elements of what fundamental justice is, which are knowledge and answer. This does not gives you that, and I've laid out in my submission how it does not meet that substantial test.

[Sue Barnes, Liberal, London West, ON]

Could I ask, Mr. Allmand, what you would think of just having everything regarding the details of special advocates only in the regulations rather than in the bill itself?

[Warren Allmand]

I haven't looked at that.

It's my view that if a Canadian citizen—and you could be a Canadian citizen and never live here; you could be born of Canadian parents and spend your life abroad.... If it's a Canadian citizen who's suspected of terrorism, you have to use the criminal justice system, the penal system, to accuse them and to convict them of some wrong. As far as I'm concerned, the same process should apply to landed immigrants and non-citizens who are here on a residential status.

As I say, many of them have been here longer. I know landed immigrants who've lived in Canada for 30 years. I know Canadian citizens who, because they were born here on a holiday or because they were born of Canadian parents, have hardly been in Canada at all. They would benefit from one system, and then you have another system for the people who are not Canadian citizens, which suspends all the due process system.

My argument is that we should have one system for everybody, and that's the penal system.

[The Chair, Conservative, Garry Breitkreuz]

Ms. Basnicki, do you have a brief comment before we go to Mr. Ménard?

[Maureen Basnicki]

Maybe a clarification.

We're not talking about a criminal trial, where a person could be thrown in jail as punishment here. Canada is not obligated to allow non-Canadians to stay in Canada. When we're talking about security certificates, are we not talking about their right to stay in Canada? This is not a criminal trial that we're referring to.

[The Chair, Conservative, Garry Breitkreuz]

Okay.

Monsieur Ménard.

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

Thank you, Mr. Chairman.

First of all, I would like to express my sincere sympathy to Ms. Basnicki for all her suffering.

You are very eloquent and sincere as you acknowledge your limited legal knowledge. If it is a consolation, I can tell you that I have practised law since 1966, that I was Minister of Justice and that I had a very hard time understanding those various bills. I had to read them several times to understand all their implications. I believe you will need to have some trust in us.

I would like to say to all the witnesses that having read this government bill, I believe it could be successfully challenged before the Supreme Court of Canada. For the time being, my goal is really to try and improve it in order for it to pass the Supreme Court test, should there be a challenge. The Supreme Court recognizes that we need a special process, that we need to use unusual standards of evidence, but also tells us that our process should be as close as possible to that of criminal trials.

I am going to ask some pointed questions; here comes the first. I understand that you are all opposed to the use of evidence obtained through torture. However, I noticed that the witnesses before us, in their written briefs, talk specifically about statements obtained through torture.

What is your opinion about material evidence? Let me give you a practical example. Let us say that in a country like Syria, a major leader of a terrorist organization is arrested and, after him being subjected to torture, a secret hiding place containing information on the network he is heading is found in his home. In this hiding place were found code names, ways of communicating with people and identifying them. Clearly, the tape or the information would speak by themselves.

Do you believe that under such circumstances, this material evidence should be considered by the judge hearing the case?

[Warren Allmand]

Article 14 of the Convention Against Torture says it can't. We've ratified the convention, and there's no exception to the convention.

Once you open the door to the use of torture in the minds of police agents or security intelligence agents.... The case you gave there was one where it was helpful to have found the evidence. One would hope that you could find that evidence in other ways by good investigative techniques. But to open the door to use torture is totally against the convention.

If we don't believe in the convention, let Canada withdraw from it, but not be two-faced about it, saying we support the convention and then trying to find a way around it.