Thank you for the invitation to appear before you today to share our views on Bill C-17, an act to amend the Criminal Code (investigative hearing and recognizance with conditions). My name is Ihsaan Gardee, and I am the executive director of the Canadian Council on American-Islamic Relations, or CAIR-CAN. I am joined today by Khalid Elgazzar, a member of CAIR-CAN's board of directors. He is with me to endeavour to address questions of a legal nature.
CAIR-CAN is a national, not-for-profit, grassroots organization that for the past 10 years has worked to empower Canadian Muslims in the fields of human rights and civil liberties, anti-discrimination and outreach, and public advocacy.
We are mindful of the increased emphasis on public safety and national security in response to the threat of terrorism during the last decade. For the record, Canadian Muslims, like our fellow citizens, are unequivocally committed to their nation's security. We are also cognizant of the real risks to our free and democratic society posed by overreaction and fear when they are used as the basis of public policy and legislation. At the end of the day we risk eroding the foundational values upon which Canada rests, while not making us any safer from terrorism. In short, it would be a lose-lose situation.
We strongly disagree with those who would suggest that attaining a balance between human rights and security is an insurmountable task. In addition to sharing many of the concerns others have raised regarding the proposed legislation, Canadian Muslims have particular misgivings regarding how security regimes such as Bill C-17 have a disproportionate impact on members of our communities that may be considered discriminatory.
In our view, Bill C-17 raises a number of serious concerns that we hope this committee and Parliament will address by not making this bill into law. Chief among our concerns is how the proposed legislation may impact human rights and civil liberties in Canada. We also have concerns about the danger posed by the gathering of information that could be shared with foreign governments whose record on human rights is questionable. The lack of caveats or controls on information sharing has already had a devastating impact on the lives of a number of Canadian Muslims. Finally, we are also concerned about the efficacy of and the need for the proposed legislation, and we are concerned about the potential for abuse, despite measures proposed by others to mitigate this potential.
With regard to the impact on individual freedom and liberty, after 9/11 every major criminal terrorism-related incident, from the Toronto 18 to the case of Momin Khawaja, has been disrupted and prevented without the need for preventive detention or investigative hearings. Some legal commentators have argued that there is a narrow gap within the Canadian context in which preventive detention has utility. However, there are significant risks associated with overreaching state powers, such as the ability to detain someone for up to 72 hours. To jeopardize civil liberties for a potential yet unrealized circumstance pushes the boundaries between civil rights and concrete national security concerns.
It is CAIR-CAN's position that our Criminal Code has existing provisions that are more than sufficient to enable our courts and law enforcement agencies to disrupt and prevent terrorism-related offences before they occur. Under section 495, a detained individual arrested on reasonable grounds must be brought before a judge, who may impose the same conditions as those available under the proposed anti-terrorism measures. The judge may even refuse bail if he or she believes that the person's release might jeopardize public safety. We feel that the experience of the last 10 years has demonstrated that the burden of surrendering civil liberties will be disproportionately borne by Canadian Muslim communities.
It remains unclear how terrorism-related acts are distinguished from other criminal acts in their practical application. For example, the recent firebombing of an RBC branch in Ottawa prior to the G-20 summit was treated as an act of arson, and no charges were laid under anti-terrorism provisions. We are not advocating a broadening of the definition of terrorism; we merely wish to draw attention to the fact that the application of anti-terrorism measures has not affected all groups in an equal manner.
With regard to the dangers of unrestricted information sharing, CAIR-CAN is also deeply concerned about how information gleaned during the proposed investigative hearings could be, and has been, used against Canadian Muslims. We know that in other jurisdictions, capital punishment or other cruel and inhumane treatment is acceptable and, in some cases, routine.
We need look no further than the case of Maher Arar to see how the unfettered sharing of information without any safeguards or adequate redress mechanisms has had a devastating and irreversible impact on both the individual in question and the community to which he belongs.
Not only does the proposed legislation not address issues of redress; even if redress mechanisms were adequately provided for, they would not account for the lingering and deeply personal impact on those who, while subsequently cleared of any involvement in terrorism, must still live with the real and destructive stigma of having been previously labelled a terrorist by the Canadian state and its security agencies.
As Justice Dennis O'Connor highlighted in the Arar inquiry report, and I quote: "The impact on an individual's reputation of being called a terrorist in the national media is obviously severe. As I have atated elsewhere, labels, even inaccurate ones, have a tendency to stick."
Even if one's story did not become the subject of national media attention, the label of “potential terror suspect” is one that has a chilling effect on both the individual concerned and also, by extension, on his community.
I will move on to consider the need for, and the effectiveness of, BillC-17. As has been pointed out in previous hearings of this committee on these provisions, police officers can already use existing Criminal Code provisions to arrest someone who it is believed is about to commit an indictable offence.
Section 495 of the Criminal Code states, and I quote:A peace officer may arrest without warrant a person...who, on reasonable grounds, he believes...is about to commit an indictable offense
Reid Morden, a former head of the Canadian Security Intelligence Service, or CSIS, expressed serious concern about the impact on our legal system of the provisions contained in BillC-17. Of particular note, Mr. Morden explained to the CBC, and I quote:
Speaking strictly of those two particular provisions, I confess I never thought that they should have been introduced in the first place and that they slipped in, in the kind of scrambling around that the government did after 9/11...It seemed to me that it turned our judicial system somewhat on its head. I guess l'm sorry to hear that the government has decided to reintroduce them.
In summary, CAIR-CAN believes our existing criminal law regime and system of natural justice more than adequately addresses the need to prevent terrorism offences before they occur. BillC-17 is therefore unnecessary, and at the end of the day jeopardizes civil liberties and the rule of law.
To conclude, it is CAIR-CAN's considered and strong position from a rule-of-law perspective that our elected representatives must take a clear and unambiguous stand to ensure that the charter's fundamental rights are protected against the very real risk posed by extraordinary and unnecessary new police powers.
We would like reiterate our position that the proposed provisions would, in all likelihood, disproportionately impact upon members of the Canadian Muslim communities.
Our security agencies have already disrupted and prevented terrorism-related incidents using ordinary security and investigative techniques. It is CAIR-CAN's belief that our law enforcement agencies should continue to be given support in executing intelligent and efficient policing that is carried out within the bounds of the rule of law and the charter.
Thank you.