Public Safety Committee on Dec. 13th, 2010

[Maria Mourani, Bloc, Ahuntsic, QC]

Yes.

The Director of CSIS appeared before the committee to discuss other issues. He seemed to be saying that their analysis, their investigations related to potential risks—either terrorist risks, agents of influence, whatever it might be—relied on intelligence, on information. Yet we know—it's an open secret—that CSIS has used information obtained through torture from countries that engage in torture. As a criminologist, I consider information obtained under torture to be false, because people are prepared to say anything to have it stop. I think Maher Arar is a good example of that. Omar Khadr accused him, but we know now that he had been tortured.

The information and intelligence collected by CSIS ends up with the RCMP, because the RCMP is the organization that investigates CSIS reports. Based on your experience—and this question is addressed to all of you—is the RCMP in a situation where it's managing information that is not only false, in my opinion, but also the result of racial profiling?

[Prof. Craig Forcese]

Are you asking whether that evidence could end up in one of these proceedings?

[Maria Mourani, Bloc, Ahuntsic, QC]

Yes, in particular.

[Prof. Craig Forcese]

That would be a violation of the Criminal Code. No evidence produced by torture can be used in any proceedings under a statute of Parliament. That's a provision right in the Criminal Code.

If law enforcement--let's say the RCMP--were to use evidence extracted perhaps by a foreign regime through torture to justify a preventive detention, a peace bond, or an investigative hearing, that would actually be prohibited by the Criminal Code. Incidentally, it would also be unconstitutional.

[Maria Mourani, Bloc, Ahuntsic, QC]

Thank you.

Mr. Kafieh?

[Denis Barrette]

Ms. Mourani, could I answer that question?

[Maria Mourani, Bloc, Ahuntsic, QC]

Yes, of course; go ahead.

[Denis Barrette]

In a context where anti-terrorism provisions are being used, I doubt that counsel for such a person would be capable of showing that the information suggesting the supposedly imminent nature of a terrorist attack was secured through torture. A lawyer would not be able to produce that evidence. The Arar inquiry lasted months and made that demonstration to the public at large. We have fought hard and many lawyers have fought against the national security argument.

In the case of these two provisions, there will also be the cover of national security. That should not be forgotten. Mr. Forcese talks about public investigations. It is true that part of the investigation for recognizance with conditions will be public, but one part may remain secret. Because as soon as we're dealing with investigations or information from an outside source—as you pointed out, as occurred in the case of the Arar inquiry or information about Omar Khadr—we will come up against the national security argument.

I would challenge any lawyer, and I say good luck to anybody who tries to show that the information was obtained through torture. There is a high probability that such information was in fact obtained through torture. In my opinion, the problem is not so much the imminence factor as it is the probability or reasonability of the imminence factor. It is the lowering of the burden of proof which is important.

[The Chair, Conservative, Kevin Sorenson]

Thank you very much, Mr. Barrette.

We'll now move to Madam Davies.

[Libby Davies, NDP, Vancouver East, BC]

Thank you very much, Chairperson.

Thank you to the witnesses for coming today.

I think the key question before us at this committee is whether or not these provisions are actually needed. It is very interesting that since the motion was defeated in the House in February 2007, this has been a null and void issue because the provisions haven't even existed.

I remember very well when the Anti-terrorism Act first came through in 2001. I certainly concur that it was very much an environment and a climate of fear. It was rushed through the House. I don't know how many members of the committee here today were members of the House then, but I remember it very well.

I'm interested in looking at the impact of these two provisions on society generally if this legislation moves ahead. I think it's almost a moot point. We haven't had these provisions, and they haven't been used, so presumably one could come to the conclusion that these tools aren't necessary to combat terrorism and that the existing Criminal Code is satisfactory. A number of you have made that point.

If this legislation does go ahead, what will the impact be on broader society? A couple of you raised issues around racial profiling. I think Mr. Barrette said that legislation like this can be looked at as a tool of intimidation. The representative from the Canadian Islamic Congress talked about the disproportional impact on members of the Canadian Muslim community. I think that's a very key part of our assessment on this bill. Even if it's never used, what will be the impact on a democratic society of having such legislation?

I'd be very interested in your further comments about how you see that impact, particularly if the provisions are used--even threatened to be used--in a targeted way to intimidate people. Possibly people might be engaged in protest or dissent, but that doesn't come close to any reasonable definition of terrorism. Nevertheless, they could be subject to intimidation because these provisions exist.

I think that's a very important part of this discussion. I'd really appreciate it if you could address that aspect.

[The Chair, Conservative, Kevin Sorenson]

Go ahead, Mr. Kafieh.

[James Kafieh]

I think you have to understand that it's going to put a profound chill in any community that's going to feel that it's going to be targeted under the legislation. It's important to note that these provisions begin with our Muslim Canadian community, but they don't stop with the Muslim Canadian community. It's not just Muslim Canadians who are being messed up by the no-fly list, for example. It's not just Muslim Canadians who are being shaken down at airport terminals. These things are going to ultimately affect everyone. It starts with the Islamic community, but it won't end with the Islamic community.

For the very narrow utility that Professor Forcese brought out in talking of lowering the bar in terms of being able to address more vague security threats, because we are talking about lowering the bar.... We've done this before. This isn't that new. Japanese Canadians experienced what it was to have the bar lowered. You ask people then. The Government of Canada of the time had no doubt in their minds that this was a very reasonable, pre-emptive act to safeguard Canadian security. Ukrainian Canadians had the same experience in the World War before that.

This isn't new. In one form or another, we're heading down a path. I think it's only a matter of time before this kind of provision is similarly abused. In the meantime, it is going to interfere with people who will find out that it's better not to have an opinion on anything. You'll be safer. You'll steer clear of everything if you have no opinion. Having an opinion can only get you in trouble.

How is fostering that culture in Canadian society consistent with the values you want to promote in a free and democratic society?

[Libby Davies, NDP, Vancouver East, BC]

Could Mr. Gardee also answer?

[The Chair, Conservative, Kevin Sorenson]

Go ahead, Mr. Gardee.

[Ihsaan Gardee]

Certainly. Thank you.

I would concur with my colleague James Kafieh's comments in terms of the chilling effect it could potentially have on members of the Canadian Muslim community. Extraordinary powers are always open to abuse. We don't have to look back far in history to find examples. Just recently, federal security agencies unlawfully recorded 171 conversations between an accused and his lawyers, even after agreeing to halt the practice after a Federal Court order.

CAIR-CAN is concerned that the proposed powers of preventive detention, for example, may be similarly abused. If the Federal Court's orders against rights violations can be ignored, what else can happen? Where do we draw the line?

[Libby Davies, NDP, Vancouver East, BC]

I'll ask a follow-up question.

I'm interested to know if any of our witnesses today have information about whether other jurisdictions that brought in legislation similar to Canada's have sunsetted the provisions and have either let them go or repealed them. Is there any information about what's happening elsewhere on this type of legislation?

Certainly after 9/11 there was a huge stampede to bring in legislation like this. I wonder if the picture has changed anywhere else in terms of what happened to these laws. Does anybody have any information?

[The Chair, Conservative, Kevin Sorenson]

Would anyone like to comment on that?

[Paul Copeland]

The only information I have, and I'm not sure it's totally accurate, is that Australia brought in some provisions—I think they're in Professor Forcese's paper—that provided some detention. I think theirs are still in effect. I don't know about their use at all.

[The Chair, Conservative, Kevin Sorenson]

Does no one else have any information on that?

[Prof. Craig Forcese]

The question was whether they had sunsetted. There are lots of provisions like this. I'm not aware of any that have sunsetted. Australia has 14 days in preventive detention. They have two days federally, but they can graft it on to a state's, so it's 14 days. In the U.K. it is 28 days. In terms of other jurisdictions that have something roughly approximate, South Africa is two days, New Zealand is two days, and Germany is two days. It is three in Denmark and Norway, four in Italy, five in Spain, six in France, and so on.

Detention without trial--preventive detention--varies across jurisdictions. Other than the U.S.'s special experience, the U.K. is the most extreme at 28 days.

[The Chair, Conservative, Kevin Sorenson]

Thank you.

Be very quick. We're out of time.

[James Kafieh]

Israel maintained British emergency laws after they became the sovereign government. They routinely detain people for six months at a time and extend one six-month period after another for years, with no charge and certainly with no trial and no conviction. It's under the same premise.

I think the idea that anyone is going to repeal this kind of legislation once it's in place is just not realistic.

[The Chair, Conservative, Kevin Sorenson]

Thank you.

Madam Davies drew attention to the fact that this was done quickly after 9/11. I happened to serve on that committee back in 2000-2001, and one of the big concerns we heard back then was that this was going to be used constantly. It's good that we hear today that it's never been used. The fear back then was that it would be abused. Too many people would be using it. It is good for the public to be aware that it hasn't been. It hasn't been used, but it still is a tool that may be there if needed.

We'll go to Mr. Rathgeber, please.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

Thank you, Mr. Chair, and my thanks to all the witnesses for your presentations and attendance.

As you can understand, this committee, and certainly the government, has an unenviable task as it attempts to balance civil liberties and security of its nation.

Professor Forcese, I have a couple of follow-up questions based on your dialogue with Ms. Mendes. You were referring to Bill C-19, the former anti-terrorism legislation that expired in 2006. I think it was her suggestion that it did more to punish terrorists than it did to prevent terrorism. I don't know if you were able to set her straight on that suggestion or if you agreed with Ms. Mendes when she made that suggestion.

[Prof. Craig Forcese]

I'm sorry if I misunderstood Ms. Mendes' question. Bill C-36 was the bill that implemented these provisions. Bill S-3 tried to re-establish it. Bill C-19 tried to restore it last time.

I'm not sure I have a view on whether it's based on a model of punishment or preemption. It's difficult for me to say, given that for the five years it was in place, it was never used, but I think I commented in the course of my presentation that in relation to the peace bond provision—