Good afternoon. My name is Denis Barrette. I am here today representing the Quebec Chapter of the Ligue des droits et libertés, but also as spokesperson for the International Civil Liberties Monitoring Group. I have distributed a paper with some quotations in it. I will be discussing them in my presentation.
The International Civil Liberties Monitoring Group, or ICLMG, is a Canada-wide coalition of civil society organizations established in the wake of terrorist attacks in the United States on September 11, 2001. The coalition is made up of 40 NGOs, unions, professional associations, religious groups, environmental protection groups, human rights and civil liberties associations, as well as groups representing the immigrant and refugee communities in Canada
To begin with, I would like to say that we have already appeared a number of times before the House of Commons and Senate committees. Our position has not changed with respect to the anti-terrorism law, particularly in relation to the two provisions under discussion today.
The coalition believes that the provisions dealing with investigative hearings and preventive arrests, which are intended to impose recognizances with conditions, are both dangerous and misleading. Debate in Parliament on these issues must draw on a rational and enlightened review of the anti-terrorism law. As we know, that legislation was rushed through Parliament after 9/11 in a climate of fear and under very considerable pressure from the United States.
Nine years later, in 2010, the terrorist threat still exists, but it is not the only threat facing humanity. However, the two provisions under discussion here rely on the very broad definition of terrorist activity and participation in terrorist activities. They enable law-enforcement authorities to carry out preventive arrests and to compel individuals to testify for challenging authority and engaging in dissent, when such activities have nothing to do with what is normally considered to be terrorism.
Furthermore, the current provisions encourage racial profiling and profiling on religious, political and ideological grounds. In its report on Canada in November of 2005, the U.N. Human Rights Committee noted its serious concerns with respect to the excessively broad definition of terrorist activity in the Anti-terrorism Act. The committee stated the following in paragraph 12:The State party should adopt a more precise definition of terrorist offences, so as to ensure that individuals will not be targeted on political, religious or ideological grounds, in connection with measures of prevention, investigation and detention.
In 2007-08, when reviewing Bill S-3, the Senate recommended that the legislation be amended to restrict the scope of that definition. I would refer you in that regard to recommendations 2 and 3 made by the Senate. Yet C-17, An Act to amend the Criminal Code (investigative hearing and recognizance with conditions) makes no change whatsoever to the definition, something which will certainly have an impact on the application of these two provisions.
At this point in time, what is the real objective need for these two provisions? From the time of their introduction in 2001 until their repeal in 2007, the only time they were used was in relation to the Air India case which, as you all know turned out, sadly, to be a total fiasco.
Since 2007, police investigations have succeeded in dismantling terrorist conspiracies using neither one of the provisions we are talking about today. Furthermore, since 2001—in other words, in the last 10 years—none of the investigations that resulted in charges or convictions required the use of these extraordinary powers, whether we're talking about the Khawaja affair, the Toronto 18 or, more recently, the four individuals in the Toronto region.
The first provision makes it possible to bring individuals before a judge in order to provide information, when the judge is of the view that there are reasonable grounds to believe that the individual has information about a terrorism offence that has or will be committed. A refusal to cooperate may result in arrest and imprisonment for up to one year. Furthermore, the provision dealing with investigating hearings gives the state a new power of search. Not enough is being said about this. The fact is that this provision can compel an individual to produce an object before a judge or tribunal, which will then pass it on to the police.
What is even more significant and pernicious is the concept of inquisitorial justice introduced by this provision. Under the criminal law in Canada, inquisitorial justice is a new concept. It's a new paradigm between the state, the police, the judiciary and citizens. As we all know, in Canada, as is the case in all common law countries, the criminal law is founded on the adversarial system. That is not the case in France, where there is an inquisitorial process. Our concern is that this new concept could be introduced at a later date into other Criminal Code provisions and applied to other crimes or minor offences. That means that in the medium or long terms, the presumption of innocence could be threatened.
We also believe that the investigative hearing provision may bring the principle of judicial independence, and therefore, the justice system itself, into disrepute. With judicial investigation, the entire concept of adversarial debate disappears. I invite you to carefully read the dissenting opinion of Supreme Court Justices Fish and LeBel in a case by the name of Application under s. 83.28 of the Criminal Code. The two Supreme Court justices concluded as follows in paragraph 191:
The implementation of s. 83.28, which is the source of this perception that there is no separation of powers, could therefore lead to a loss of public confidence in Canada's justice system. The tension and fears resulting from the rise in terrorist activity do not justify such an alliance. It is important that the criminal law be enforced firmly and that the necessary investigative and punitive measures be taken, but this must be done in accordance with the fundamental values of our political system. The preservation of our courts' institutional independence belongs to those fundamental values.
I also note that throughout these two provisions, the notion of suspicion as warranting retaliation against citizens is reinforced. With respect to the provision relating to the concern that a person might commit a terrorist act, section 810.2 of the Criminal Code is already in force. It already allows authorities to impose fairly broad conditions on an individual who poses a serious danger to the public. Furthermore, section 810.01 deals specifically with the risk of terrorist activities and allows a judge to impose conditions to prevent a terrorist act from being carried out. These provisions are already in the Criminal Code, and yet the second provision under discussion—clause 83.3—allows for an additional 72-hour period of detention, as well as the right to collect and record the information of innocent people under the Identification of Criminals Act, which specifically includes section 83.3 as grounds for bertillonnage.
You may also recall the need to establish some means of monitoring the activities of both the RCMP and CSIS with respect to national security, something that was raised by the Maher Arar commission. I would just point again to the lack of such a mechanism and the dangerous nature of these two provisions.
Finally, we believe it is extremely important to highlight the fact that these two provisions, even though they are not being used in our judicial system, will always pose a risk because of their ability to become a formidable and worrisome tool of intimidation. Such a tool will be highly injurious to the individuals concerned. Even though they may not be compelled to appear before a court of law, the impact of these provisions will not be trivial. If they're used, they will result in people being labelled, even though they have never been charged with any crime.
As occurred with McCartyism, the fear of seeing one's reputation tarnished through such a process, being detained for 72 hours and then brought before a judge to answer questions masterminded by police, amounts to a formidable process of denunciation. And, when you're talking about informations secured through coercion, without the free and voluntary process which is part and parcel of the criminal law, you are automatically talking about unreliable, biased and misleading informations. Every lawyer knows how unreliable reluctant witnesses can be. And we also know, particularly since the Maher Arar commission of inquiry, that even a simple investigation can be enough to destroy a reputation, a career and even the future of an innocent person never charged with any crime.
We know as well that these provisions could, as we see it, be abused. I am thinking here of the Air India case. We believe that Canadians will be better served and better protected under the usual provisions of the Criminal Code, rather than others that are completely unnecessary. Reliance on arbitrary powers and a lower standard of evidence can never replace good, effective police work. On the contrary, these powers open the door to a denial of justice and a greater probability that the reputation of innocent individuals, as occurred with Mr. Arar, Mr. Abou-Elmaati, Mr. Almalki and Mr. Nureddin, will be tarnished.