Public Safety Committee on Dec. 6th, 2007

[Gord Brown, Conservative, Leeds—Grenville, ON]

Okay.

Mr. Charkaoui.

[Adil Charkaoui]

It is a well-known fact that the countries of the Middle East and the Maghreb are not democracies. Everybody knows that. I don't have to prove that in these countries, the rule of law does not apply. But, what is worse, after 9/11, the world changed. We know that there is a process called exceptional rendition, which means being sent somewhere to be tortured.

The security certificate process under Bill C-3 is unconstitutional because it represents deportation to legal torture. When I say “legal”, I use that term advisedly. What I can expect in Morocco is to be tortured. Immigration Canada even told me that. They repeated that on October 19. They told me that I would be tortured and that my life would be in danger, but that I would be deported anyway, because they could not protect me under the Geneva Convention.

I don't want to be protected under the Geneva Convention; I want to be protected against CSIS. I want to have an opportunity to clear my name. I have asked for a public commission of inquiry. I've asked for a trial. I have done nothing but repeat the same things over and over since 2003. I've been saying the same thing for four years now. So, the consequences are serious for me and for my family.

I was given diplomatic guarantees in 2004, as was Maher Arar. I was told I could go to Morocco and I would be protected. In 2005, a Radio-Canada reporter, Mr. Jean-François Lépine, went to Morocco and did an investigation for the program Zone Libre. He discovered that the diplomatic guarantees were false and that an unsigned arrest warrant had been issued by Morocco. That reporter gave me a copy of it which was then filed with the court.

[Gord Brown, Conservative, Leeds—Grenville, ON]

Thank you.

I have quite a few other questions.

The fact is that this bill has passed second reading and was referred to this committee. One would assume from that it's the will of the House of Commons that this not die in February, otherwise the House would not have passed it through second reading, so it was referred to this committee.

In Mr. Harkat's committee report under “spin”, it says that the Supreme Court decision essentially upholding the security certificate process is misleading. The fact is that the Supreme Court did uphold the constitutionality of the process, so we are here to see if there is any way it can be improved. I know that Mr. Dosanjh already asked that question, but I think that's really what we need to stick to as much as possible.

I realize you believe that the whole process should be scrapped, but at this point it's likely that we can either improve it—that's what the purpose of this committee is—or here's another opportunity. I realize that you would like to see it more under criminal standards, but I think the court is trying to find a balance between the security of Canadians and human rights.

Fire away. Each of you has an opportunity, and I think we may have a few minutes left, so go ahead.

[Christian Legeais]

At this point in time, I don't believe there is a balance between those rights. National security reasons take considerable precedence over Charter considerations, human rights considerations and respect for rights in Canada. Under the guise of national security, anything goes. And it is that impunity and the fact that national security is given precedence over the rights of Canadians that makes the whole process illegal.

The role of CSIS has already been mentioned. CSIS is not responsible only for security certificates; it is also responsible for deportation, for the removal from Canada of 9,000 to 10,000 foreigners, immigrants and refugees, on an annual basis.

We're told that CSIS was created to protect national security and that without its agreement, no one gets into Canada—which makes it a political police force. CSIS was created following the McDonald Commission, which brought to light the RCMP's role in rights violations in Canada.

In my opinion, CSIS must have its responsibilities with respect to immigration removed. That is one thing that has to be done. It is not up to CSIS to decide who can live in Canada and who cannot. There are other means available.

Now, let's talk about constitutionality. The Charter of Rights and Freedoms represents limited rights, in the sense that all rights are not set out in it. Many people see it as archaic and inspired from the British model. The fact is that many rights are not protected by the Charter of Rights and Freedoms, hence the difficulty of turning legislation, such as the one dealing with security certificates, into a statute that is constitutional. Parliament was not the one to say that security certificates do not jibe with certain sections of the Charter of Rights and Freedoms; the judges did.

The role of this Committee and of Members of Parliament is to produce legislation that respects all human rights. Our impression—and I think that many members of the community have the same impression—it is that a knife has been planted deeply in our flesh. With this Bill, we are being told that the knife is being pulled out a little and that is presented as progress. But that is not the way it works. That is not what life is all about for people who are subject to a security certificate; that is not the way it is for the Arab Muslim community; that is not the way it is for refugees; and that is not the way it is either for the people of Canada. Most of the provisions relating to security certificates are found in the Anti-Terrorism Act.

[The Chair, Conservative, Garry Breitkreuz]

Okay, we have to wrap it up.

Mr. Cullen, please.

[Roy Cullen, Liberal, Etobicoke North, ON]

Thank you, Mr. Chair.

Thank you to the witnesses, especially to Mr. Harkat and Mr. Charkaoui.

The government has used security certificates sparingly over many years, but the reality is that the times it does use them it affects individuals like you in a very fundamental way, and I appreciate your coming here today.

I know you're opposed to Bill C-3 and security certificates, but one of the items being proposed regarding the special advocates is that if this bill passes in some form, a special advocate will have a chance to challenge the information that is presented by CSIS and RCMP and other sources. I know there's a debate around how complete and effective that could be, etc., but at least that would happen.

I know you're fighting this because you want to clear your names.

Mr. Harkat, in the brief you distributed, it says that “recent information about the human rights situation in Algeria make it clearer...that even his deportation to that country would be to send him to torture”.

I think, Mr. Charkaoui, you're saying the same would be true if you went back to Morocco. I know, Mr. Charkaoui, you're saying that CIC said this based on whatever intelligence or lack they had.

But what would be the motivation for the authorities in Algeria or Morocco to torture you if you went back to your respective countries? Torture normally is to punish someone or to extract more information. What's your sense of why they would cause you harm if you went back to your countries of origin?

[The Chair, Conservative, Garry Breitkreuz]

Who'd like to go first?

Mr. Harkat.

[Mohamed Harkat]

Recently an Algerian in London just went back, because we all want to go back, and he was sentenced to eight years in jail. He just went back to say he was not.... Algeria is not like.... There is no idea about how the system works in Algeria. I was born there, and I know how the system works. When you are in a police station, there's no lawyer; here you have to choose a lawyer. The government will choose for you anyone they want, and they get any information they want. You can't say no. Even if you are innocent--and remember, when you go to the police station, they beat you on the face until you admit to something. That's the only thing that will save your life. They just want from you what they want. You can't go against them. If they stop you on the street, you're doing something wrong; you're going to get punished for no reason, even for a traffic light.

[Roy Cullen, Liberal, Etobicoke North, ON]

I understand. I've never visited either Algeria or Morocco, but I believe what you say in terms of the environment there.

I'm just curious. In your particular case and that of Mr. Charkaoui, if you went back to your respective countries, you're saying that they would jail you and torture you just because you've come back. Is that it?

[Mohamed Harkat]

We have come back from where--from here?

[Roy Cullen, Liberal, Etobicoke North, ON]

Well, if you took the option under the securities certificate of going back--

[Mohamed Harkat]

All the questions they're going to ask you are about coming from Canada. If Canada made these allegations about you, and you didn't clear your name there.... They think the process with security certificates is fair, but to me it's not fair. I don't have the evidence to defend myself.

If you go to Algeria and explain to them that you lost against the certificate, that you went to the court and you can't clear your name, what do you expect? I don't have a fair trial even in this country.

I said before that it's the worst justice system there. You're never going to clear your name, and they're going to come after you all the time. You just see the United States going all over the world to arrest suspects, and you're going to Algeria with these kinds of names. You're always the enemy of the state in Algeria. It doesn't matter how it is.

[Roy Cullen, Liberal, Etobicoke North, ON]

Mr. Charkaoui.

[Adil Charkaoui]

I have two points to make.

My first point is this. The secret services in these countries are not filled with a bunch of crazy people who jump on the first person they see and torture him just for the fun of it. At the same time, we are dealing here with what I call a “terrorist fabrication”. In 1999—in other words, long before 2003—I was free; I didn't wear a bracelet and I could go wherever I wanted in Montreal. If you had tried to Google me then, you wouldn't have found anything. If you do it today, however, you will see what's there. I've gone from being a perfect unknown to a big fish. Everyone is talking about Charkaoui. In my country of origin, people follow the press and the media. Relying on allegations, they come up with the picture of the emblematic terrorist. When people meet me, they are hesitant and wonder whether the allegations are true. It is that doubt that bothers me most.

My second point is this: one of the things I most enjoyed reading over the last year was the O'Connor report on the Maher Arar affair. What I don't understand is why the Canadian government, after spending that kind of money on a commission of inquiry, is not acting on Justice O'Connor's recommendations. That's incredible; I don't understand. Maher Arar was tortured in Syria by his jailers, and they themselves told him they knew he was innocent, but that they had been asked to verify whether that was true or not. He was forced to confess to certain things. In fact, he testified against Mr. Harkat, which is quite incredible. He was forced to confess things that were untrue. He was forced to sign reports. In those countries, intelligence is a lucrative business. People sell information and CSIS buys it. There is quite a market for it.

Personally, I am not afraid to go to Morocco. I was told I would be tortured. But I have done nothing wrong. I am very close to Canadian Conservatives, who have always supported me. But if I were tortured, I might say that I had been funded by the Conservative Party, for example. I could say anything under torture.

[The Chair, Conservative, Garry Breitkreuz]

Your time is up. Do you want to have a quick, short response?

[Roy Cullen, Liberal, Etobicoke North, ON]

Just for the record, the purpose of this session is not to try Mr. Harkat or Mr. Charkaoui again, but I have in front of me the decision of the Federal Court judge with respect to Mr. Harkat.

You talked about your travels, and I'm not going to get into the decisions of the Federal Court judge, but he or she is quite specific and he or she alleges that you lied about many of the things you said when you immigrated to Canada--I'm not going to go into all of that here--about certain aliases, about certain associations with some very senior people in al-Qaeda.

So just for the record, I know you challenge that information. I know you want the opportunity to challenge it in a process that you think is more fair. We generally agree with that; it's just a question of the how.

Security certificates. Outlawing them completely? I'm not sure that's the will of the Parliament of Canada, but we'll find out soon enough.

The Federal Court judge made some pretty serious and very specific statements about the evidence you submitted when you applied to come to Canada.

[The Chair, Conservative, Garry Breitkreuz]

Our time is up. We'll have to go over to Monsieur Ménard.

Monsieur Ménard, did you have another follow-up?

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

Mr. Charkaoui, there is one last question that troubles me. In a way, as a former criminal lawyer, I am reluctant to ask it, because I have always believed in the right to silence. However, given the exceptional circumstances we're dealing with, I would like to ask you why you did not testify previously, in front of Justice Noël.

[Adil Charkaoui]

For 21 months, that was a decision made jointly with my lawyers, the Coalition and my family. I felt that the whole process was a travesty of justice. By testifying, the Attorney General could simply stand up and say that I wasn't credible. And if I lost all credibility, I was finished at that trial. So, it was a question of credibility. It was my word against CSIS's word.

So, I decided not to testify. Thanks to my university professors, my friends and my family, I proved that I was not a terrorist. I had to wait until the Honourable Justice Noël extended a hand to me and said that if I was telling the truth in my testimony, he would release me. I took a polygraph test four times. My lawyers hired someone with a lot of experience, an ex-Commander of the Sûreté du Québec who teaches RCMP officers how to use the polygraph test. He came to prison. He gave me the test, and I passed it. Then I went to testify in front of Justice Noël and I told him, with supporting evidence, that I was not a terrorist or a member of al-Qaeda, and that if the government had anything on me, it had to prove it in the context of a fair trial.

I may give you the impression today that I am disappointed and frustrated, but please understand. I spent four years fighting, all the way to the Supreme Court, to have this legislation declared unconstitutional. I see now that Bill C-3 is a real disappointment. It's the same law with just a few cosmetic changes that don't guarantee me either protection or justice.

I want to thank you for hearing me out. I know that in other countries, I would not have had that opportunity. I am not ungrateful.

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

Mr. Charkaoui, you were not confident that Justice Noël could properly weigh the credibility of your testimony. Do you believe that initially, he had a favourable bias towards CSIS?

[Adil Charkaoui]

No, not at all.

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

So, why didn't you talk to him?

[Adil Charkaoui]

You know, armed guards escorted me to court in handcuffs, with a chain around my stomach and cuffs on my ankles. The weapons were allowed in court. Can you imagine that? The first time, there were sharpshooters on the roof. If I had been Justice Noël, I would obviously have been scared. When you see someone in that kind of situation, you automatically assume the person is very dangerous.

When Justice Noël held the ex parte in camera proceeding, members of CSIS told him heaven knows what, without my having had an opportunity to challenge their allegations. He listened to them but I could not contradict them. I didn't know what they were saying. They could testify as agents, saying that I was dangerous and associated with dangerous people, without my having an opportunity to refute their allegations.

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

I would also like to make a comment to Mr. Legeais.

We will be proposing all of your recommendations in the form of amendments, with the exception of the last one, which was a little confusing.

Do you understand that the type of decision that has to be made with respect to terrorism these days is necessarily based on evidence that must remain secret because it comes from undercover double agents who would be in danger of being killed, if their identity were to be known, because unfortunately they are working with allies who don't believe in all the same principles that we do? Some of them apply the same principles as we do, or pretty much, and give us the intelligence on the condition that we keep it confidential.

Where terrorism is involved, we cannot afford to have investigative methods disclosed, as happens with organized crime, where counsel systematically plead not guilty on behalf of their clients in order to have access to the evidence. That way, they are able to gain a good understanding of police infiltration methods, which is a risk that we simply cannot afford to take when dealing with terrorism. So, we need to have independent people who can look at the evidence and form an opinion on whether a person is dangerous.

Do you believe that judges in Canada have the necessary independence to be able to analyze this secret evidence?

[Christian Legeais]

You talk about the independence of the courts. Judges are independent, according to the law. But I believe that the question you are really raising has to do with how to protect Canada from terrorism. In my opinion, that discussion cannot occur in the context of immigration legislation. Instead, it should occur within a more general framework, to allow for a rational discussion of ways of protecting Canada against terrorism.

The second problem relates to secret evidence: we have no way of knowing how it was obtained. In the case of Mohamed Harkat and Mr. Charkaoui, some of it came from Abu Zubaydah and was obtained under torture.