Thank you, Mr. Chairman.
I apologize to the committee. I was hoping to get some written material together, but I've gotten virtually none done. I do have a handout here, unfortunately in English only, that outlines my background in dealing with national security matters over the last 40-odd years. Most recently, for the last two and a half years I've been a special advocate in the security certificate process for Hassan Almrei and Mohamed Harkat.
I wanted to comment first on the circumstances of the Air India case, because that is the only case in which this legislation that came in under the anti-terrorism bill was used, and it's a rather bizarre circumstance. It was described as a fiasco, and I think that's an appropriate description.
When this legislation came in, nobody, I think, contemplated that it would be used as it was in the Air India case. It was an application brought under the investigative hearing provision of the legislation. It was argued in the Supreme Court of Canada on December 10, 2003. Judgment was released in June 2004.
You have to understand a little of the circumstances of the case.
Inderjit Reyat had been extradited from England and pleaded guilty to manslaughter for the Narita bombing. He got 17 years in jail for that. He was then prosecuted, along with Bagri and Malik, for the Air India bombing, the one that killed all of the people over the Atlantic.
There was a person who worked with Mr. Malik at one of the Khalsa schools. She was an unnamed witness and was never named during the course of things. She had a confrontation with Mr. Malik at the school, and her testimony was basically that Mr. Malik had confessed to his involvement in the Air India bombing.
Mrs. Reyat had been hired at the school by Mr. Malik and worked there. The government wanted to know whether or not her testimony would confirm what the unnamed witness said. The government had preferred a direct indictment in that case, so there was no preliminary hearing, and they never got to know what Mrs. Reyat was going to say. They tried to use the investigative hearing process to figure out what went on. In effect, it was an attempt to have a discovery process in the criminal hearing.
Mr. Reyat, who, as I say, had been charged in the major Air India bombing, had negotiated a plea to manslaughter and gotten 5 additional years. As you know, he was ultimately convicted of perjury for the evidence he gave in the Air India bombing case.
Those are the circumstances, and the only circumstances in which one of these sections was used. The sections are unique in Canadian law. While the Supreme Court of Canada held it to be constitutional, it changes things dramatically: there is no right to remain silent, and you can be detained or released on onerous release conditions.
There have been many comments, including the comments made today, comments by MPs in the House, comments by witnesses before the Senate committee, and comments by Reid Morden. All say that this legislation shouldn't go through and is improper.
I may have missed something in my reading, because I've been a little bit tied up with the Harkat decision since last Thursday, but I have not seen, in any of the material I've read, any valid justification advanced for this drastic change in the Canadian legal process.
One of the things that I found was that the Senate committee, in January2008, was talking about the recommendations from the O'Connor commission--the Arar commission--for RCMP oversight. We still don't have RCMP oversight.
We have nothing on the oversight issue, and I would suggest to this committee that the reputation of the RCMP at the present time is poor in national security matters and in other matters.
Commissioner Elliott's dealings with the senior staff have been at issue. The departure of Commissioner Zaccardelli was at issue. The handling of the material they got from Abdullah Almalki, which they shipped down to the Americans with caveats, led to the torture of Mr. Arar. The Arar inquiry, the Iacobucci inquiry, and the Air India inquiry all dealt with issues relating to the RCMP and Project A-O Canada.
John Major has recommended the creation of a national security adviser to coordinate matters between CSIS and the RCMP. There was an announcement last week that government has not adopted that recommendation.
In December 2006 Dennis O'Connor recommended the creation of an independent complaints and national security review agency to oversee the national security functions of the RCMP, which presently are not the object of any oversight role or responsibility.
It's my respectful submission that this committee should not be worrying about these provisions; they should be worrying about whether or not CSIS is doing its job adequately, whether the RCMP is doing its job adequately, and whether there are oversight mechanisms to make sure that they do their job adequately.
I would ask you to consider whether anything useful would come out of an investigative hearing in regard to this type of matter. Assuming that you're dealing with somebody who's a real terrorist and is really involved in things, if you bring him before a judge and say, “Answer the questions”, whether he has counsel or not, he'll either politely or impolitely tell you he's not going to answer the questions or he'll lie about the answers. I can't see anything useful coming out of these hearings.
The question I would urge you to ask yourself is whether these provisions are worth the substantial changes in our legal regime.
Last September I was in England; some of the special advocates were meeting with special advocates in England. We ultimately had an opportunity of meeting with Lord Carlile, who is a sort of overseer of the anti-terrorism provisions in England. Sitting in his office, we talked about things. We talked about the five people who were on control orders in England, which are vastly worse than what we're talking about here. Lord Carlile told the story about visiting one of the people under control orders who was up in the Midlands. He was under virtual house arrest, except for fair employment. One of the things Lord Carlile said was that when he was talking to the guy, the guy said: “Actually, it's not so bad for me. The only thing it really interferes with is pubbing and pulling.” Then I had to ask for a translation of what “pulling” meant, and it had to do with chasing women.
The provisions you are looking at here, in my submission, change the Canadian legal landscape. They change it in a way that isn't useful. They should not be passed, and in my view they are not needed. There are other provisions of the code that allow for various ways of dealing with these people.
I'll just refer briefly to what Mr. Forcese has in his paper about what to do with the guy with the padded coat walking on Parliament Hill. One of the things you should do as an RCMP officer is walk up to him and say, “Hi, I'm an RCMP officer. I want to ask you some questions.” Depending on what the guy does, there may be consequences following from that.
I think there are ways of doing police investigations that avoid the necessity of these dramatic changes.
Thank you very much.