Evidence of meeting #8 for Public Safety and National Security in the 39th Parliament, 2nd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was evidence.
A recording is available from Parliament.
4:45 p.m.
Conservative
4:45 p.m.
Conservative
4:45 p.m.
Conservative
Dave MacKenzie Conservative Oxford, ON
Ms. Hall, you had indicated that the torture issue is a concern. I'm wondering if you know of the history of the security certificates in Canada and of the, I believe, something like 20 or 21 individuals who have been returned to their country of origin.
Do you know of any records of torture having been applied when people were returned?
December 5th, 2007 / 4:45 p.m.
Senior Counsel, Terrorism and Counter-Terrorism Program, Human Rights Watch
Our experience with security certificates, as I said, began in 2005, with the security certificate five. Those returns would be made to Morocco, Syria, and Egypt. We've done quite a bit of research on each one of those individual cases. Every case where there's an issue of the non-refoulement obligation arising is assessed on a case-by-case basis. So it wouldn't matter whether all 21 of those people had been returned and none of them were tortured. What matters is, will this particular person in this particular situation, with conditions on the ground in general and specific to this person in particular, be at risk of torture? It's well established under international law that that assessment occurs on a case-by-case basis.
With respect to the five security certificate detainees that we have carefully followed, we are of the strong opinion that none of those five would be able to be returned to their home countries and be safe from torture or ill treatment--even with diplomatic assurances from those countries against torture.
4:50 p.m.
Legal Counsel, Canadian Arab Federation
I do. I would like to just return to one of the earlier points.
If your point is that anti-Arab racism in Canada didn't begin on 9/11, I would agree with that. I think it's an important point. It has a long history; it goes back decades. But you have to understand that since 9/11 there's been a change.
For example, security certificates did exist prior to 9/11. However, because of 9/11 and because of the need for agencies to show Canadians what they were doing to protect them, there's a lot greater profile for security certificates now, and it certainly is a far more sensitive point for the Arab Canadian community and the Muslim community today than it was prior to 9/11.
I would absolutely agree with you that the anti-Arab racism didn't begin with 9/11. Certainly the ground was already prepared. The legislation and the focus is something that all of us who have lived through that period would know about.
4:50 p.m.
Liberal
Roy Cullen Liberal Etobicoke North, ON
Thank you, Mr. Chair, and thank you to the witnesses for being here today.
One of the initiatives that our government launched in our last mandate through the Canada Border Services Agency was the fairness initiative, and a consultation process was started. I don't know if you're aware of it, but it was to deal with people who came across the border and felt they were being treated unfairly. They had an objective third party that would look at it. Part of the rationale was to deal with people who felt they were singled out because of their race or religion or creed.
I don't know if this government is planning to implement that, but I would suggest that's something you should press them to do. Even though at the border they operate on a risk-management model, there are some circumstances, some occasions, when the officials will be unfair, and this is an opportunity to challenge that. I'd suggest you take that up with the government, because it's on the website, but it's being archived slowly as we speak.
I'd like to go to Amnesty International. I have a couple of questions, Mr. Neve.
First, there's only so much that can go into legislation. I don't think you were arguing, or maybe you were, that the job description of a special advocate, the qualifications--whether they should be a lawyer, how much law they had practised--would actually be in the legislation. I know everything's important and we'd like to see it in the legislation, but I think in practical terms a lot of that information will be in regulation. Maybe you could just comment on that.
I have a second question for you, sir.
People who are being detained under a security certificate select their own lawyer. I think there are some practical issues with that in the sense that there is some training and sensitivity work that needs to go on. Secondly, it wouldn't be enough just to say, “We promise not to tell anybody.” They'd have to be sworn, and they'd have to be sworn for life, I would submit.
The idea of having a cadre of special advocates.... In fact, in our subcommittee report we recommended special advocates not only for security certificates but also for the listing of terrorist organizations and the delisting of charitable organizations, because they also have a certain star chamber, if I can use that expression. The government is still pondering those recommendations.
So there are two questions. How much can you actually put in a bill? Secondly, it takes time for people to be security cleared. You can't pick up the phone and say, “We'd like this lawyer.” It takes time to security clear people. And they have to be sworn in a very rigorous way for life, because there are people's lives at stake out in the field, and our confidentialities with our friends and allies.
I wonder if you'd comment on that.
4:50 p.m.
Secretary General, Amnesty International Canada
Sure. Thank you.
With respect to your first question, I agree that there's a matter of balance there. We are concerned that there's nothing in the legislation with respect to signalling, even in a high-level sense, the importance of some of the criteria or the kinds of background or expertise special advocates should possess. I absolutely would agree that going to the level of talking about university degrees and years of practice, etc., is not necessary and would be too cumbersome, but we think it is certainly not adequate in the way it's expressed right now.
With respect to security clearance for lawyers, we're not suggesting that it wouldn't be without its challenges, but we think it is doable. I'd refer to earlier comments that reminded us we're not talking about dozens and dozens of cases, and certainly not hundreds of cases a year. It's a small number of cases. The band of lawyers already very active around these issues, and quite expertly so, is fairly small, so the challenges around who would need to receive security clearance in getting that done are not insurmountable.
I think you're quite right that this need for swearing an oath and for giving specific undertakings with respect to precise pieces of evidence would be absolutely crucial to that model, but it exists. Lawyers are called upon to give undertakings to each other and to the court all the time, every day, on a whole variety of matters.
I was going to say something about the integrity of lawyers. Being a lawyer myself, I know that's not always the case, but as a matter of fundamental principle, we recognize that we can and should rely upon those undertakings and swearings of oaths and promises that lawyers give around judicial matters of that sort.
4:55 p.m.
Liberal
Roy Cullen Liberal Etobicoke North, ON
I'm an accountant, so we'll compete against each other on the perception credit.
I wondered if any of the panellists would like to comment. Sometimes there's a perception in the media that the person who is being detained--or, it's being argued, who should be detained--on a security certificate has no information about what they're being charged with. I think there's clearly an issue about the amount of information; that's why we're talking about these special advocates and other options. But a Federal Court judge can basically relate information as long as it's not injurious, potentially, to our national security interests and as long as it's not going to lead to injury or death of individuals. That could be anybody. It could be someone out in the field who has infiltrated some organization or something similar.
Just so there's a reality check here, you understand that there's more information than being told you're being charged and that we're sorry we can't tell you anything about it.
4:55 p.m.
Legal Counsel, Canadian Arab Federation
Our security services--RCMP and CSIS--are famous for overclaiming in terms of national security confidentiality issues; the idea that the person is going to get sufficient information isn't supported by the facts.
I sense some people think that since you must be a terrorist, you know why you're there. Millions of Canadians watching may think that they wouldn't do this to a good Canadian, so you must be a terrorist, so you know why you're there and you don't need them to tell you why.
The fact is, though, that people need to be presumed innocent until they're proven guilty. This is the foundation of our legal system. If that is the case, then they shouldn't have to guess; they should be told what the issues are. They should be able to deal with them.
4:55 p.m.
Liberal
Roy Cullen Liberal Etobicoke North, ON
They're told what the issues are; they're just not told the sources.
4:55 p.m.
Liberal
Roy Cullen Liberal Etobicoke North, ON
I agree there's a question about the amount of information. Maybe we can do a better job of making sure all the information comes forward.
A quick point is that we had Ernst Zundel on a security certificate, and this Russian chap, and if you go back.... I think we need to be careful about saying it's racial or has connotations against Arabs or the Muslim world. If you look at how many security certificates have been enacted, I'm sure you'd profile it to see the number of people from Arab countries and the number from non-Arab countries. Have you done that work?
4:55 p.m.
Executive Director, Canadian Arab Federation
No, we haven't, but what we said earlier--and I think it was the comment from the gentleman over there--was that this is now a tool against terrorism. It is not an immigration tool anymore; this is used as a way to fight terrorism, like Bill C-36 and other provisions out there.
The problems with this type of legislation and bill are proven. They have records. I mean, I don't have to remind you of Maher Arar and the clear incompetence of our security officials and security agencies. I don't have to remind you of the Iacobucci commission now looking at three other Arabs and Muslims. There's a clear pattern there, and that's our concern. We are concerned. We are not telling you that you guys are writing pieces of legislation targeting our communities, but that's the--
4:55 p.m.
Conservative
The Chair Conservative Garry Breitkreuz
I'll have to cut it off there.
Mr. Ménard, did you have any more questions?
5 p.m.
Bloc
Mario Laframboise Bloc Argenteuil—Papineau—Mirabel, QC
Thank you very much.
Thank you for being here.
Mr. Neve, I listened to your presentation and I took notes. Amnesty International definitely has a lot of experience in these matters. You mentioned that the principle of security certificates is also recognized in Europe, but that it is highly criticized, particularly in the United Kingdom.
I would like you to tell me how that has changed and what the Europeans now think about security certificates.
5 p.m.
Secretary General, Amnesty International Canada
With respect to the criticism in the United Kingdom, which is really what I was referring to, it wasn't so much the notion of a security certificate as the idea of a special advocate and their role in that process. That's where our particular concern lies. We do not feel that the special advocate model proposed, and a special advocate model even with some enhancements, will be sufficient to ensure that an individual's fair trial rights and the ability to mount an effective defence are truly safeguarded. That's why we've proposed the idea that instead of focusing energy on strengthening and improving the ability of an individual's own lawyer, providing them with that level of defence.
I think Ms. Hall probably has more knowledge about the European scene than I do.
5 p.m.
Senior Counsel, Terrorism and Counter-Terrorism Program, Human Rights Watch
This also is in response--I'm sorry, I don't know your name--to your prior question about full disclosure.
There was a recent case in the special immigration appeals commission that should be of great interest to all of you, because not only was the person subject to the proceeding before the SIAC not permitted any access--except a very brief summary--to the evidence against him on the national security case, he also did not have access to any of the evidence against him on the risk assessment case. But then the judgment was issued enclosed--the judgment was issued enclosed. There was a very short public judgment and then there was a closed judgment.
There are facts on the ground in Europe that show us that the issues related to secrecy are very concerning on the slippery slope basis, and it was really striking to see a closed judgment from an official court in the U.K. that no one had access to, not even his lawyers. The special advocate had access to it, but his lawyers didn't have access to it and he did not have access to it. I personally find that deeply troubling, and would caution this committee that this is the kind of slippery slope that has developed with respect to these procedures in the United Kingdom.
5 p.m.
Bloc
Mario Laframboise Bloc Argenteuil—Papineau—Mirabel, QC
Has the Canadian Arab Federation studied the situation elsewhere, in other European countries? Have you contacted other associations?
5 p.m.
Executive Director, Canadian Arab Federation
The only example is that, in England, and we've seen the limits of that friend of the Crown, as Mr. Neve and Ms. Hall explained. The Muslim and Arab communities are quite similar, except that, in some countries—France, the Scandinavian countries and so on—there are no laws or special projects that have been set up to fight terrorism. As I said earlier, I don't know whether it's become an important tool for fighting terrorism today, but security certificates have never been developed in that sense or without that objective.
In our view, that's part of the Immigration and Refugee Protection Act and is used in order eventually to expel people considered undesirable, who may be dangerous, but it has never been used as a process that resembles what's being done in Guantanamo Bay, where there isn't any transparency and the public isn't informed.
5 p.m.
Bloc
Mario Laframboise Bloc Argenteuil—Papineau—Mirabel, QC
However, in your presentation, you nevertheless make some recommendations. You say it would be interesting to include these rights in criminal law. So you're not necessarily opposed to the principle of security certificates, but you would like there to be a better framework for it.
