Public Safety Committee on Dec. 13th, 2010

[The Chair, Conservative, Kevin Sorenson]

I call the meeting to order.

Good afternoon, everyone. Welcome to the 47th meeting of the Standing Committee on Public Safety and National Security. This is Monday, December 13, 2010.

In our first hour we will have six witnesses before us. Actually, they are going to be here for an hour and three-quarters, if I'm not mistaken. We will hold the last 15 minutes for committee business, as we decided last week.

We will begin our study of Bill C-17, an act to amend the Criminal Code (investigative hearing and recognizance with conditions). The Minister of Justice and his officials will be here on Wednesday. In the lead-up to that, today we will hear from a panel of witnesses who will bring some concerns to our attention. We can ask the minister about those concerns when he appears.

Today we have with us, from the International Civil Liberties Monitoring Group, Denis Barrette. Welcome.

From the Canadian Council on American-Islamic Relations, we have Ihsaan Gardee, executive director, and Khalid Elgazzar, member of the board of directors. Welcome.

From the University of Ottawa, we have Craig Forcese, associate professor, faculty of law. Welcome.

From the Law Union of Ontario, we have Paul Copeland, lawyer, and from the Canadian Islamic Congress, we have James Kafieh, counsel.

Each of the organizations appearing before us today has prepared an opening statement. Before we go to questions from our committee, I would welcome those opening statements. Perhaps we'll begin with Monsieur Barrette.

Monsieur Barrette, welcome.

[Denis Barrette, spokesperson, International Civil Liberties Monitoring Group]

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.

Thank you.

[The Chair, Conservative, Kevin Sorenson]

Thank you very much, Mr. Barrette.

We'll now move to Mr. Gardee and Mr. Elgazzar.

[Ihsaan Gardee, Executive Director, Canadian Council on American-Islamic Relations]

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.

[The Chair, Conservative, Kevin Sorenson]

Thank you very much, Mr. Gardee.

Now we'll move to Mr. Copeland, please.

[Paul Copeland, Lawyer, Law Union of Ontario]

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.

[The Chair, Conservative, Kevin Sorenson]

Thank you very much, Mr. Copeland.

We will now move to Professor Forcese.

[Prof. Craig Forcese, Associate Professor, Faculty of Law, University of Ottawa]

Thank you, Mr. Chairman, and members of the committee.

In these submissions, I take no view on the desirability of Bill C-17 in its present form. As Mr. Copeland mentioned, I have written a lengthy paper setting out my support for a limited, carefully restricted form of short-term preventive detention in Canadian law as a last-gasp tool for law enforcement in confronting a reasonable fear of a serious act of terrorist violence, which does not include a fellow walking around with a padded coat on Parliament Hill.

That paper enumerates features designed to render such a system effective while at the same time remaining compliant with civil liberties expectations found in international and Canadian law. I believe the system of preventive detention that is part of Bill C-17's recognizance with conditions power is modest as compared with its closest international analogues. I have doubts that it would prove very useful to law enforcement in practice, but I also believe that efforts to render the provision more effective as a law enforcement tool would have to be buttressed by inclusion of more robust civil rights checks and balances. Such efforts would require reconsideration of the basic architecture of this bill, a task for which I suspect there is little appetite or time in this committee.

I have more acute concerns about the reach of the actual recognizance provisions--that is, the peace bond. Not least, there is very little clear guidance in the bill and in the constitutional jurisprudence on the reach of the conditions that can be imposed via such a peace bond. If the practice under the immigration security certificate regime is any indication, anti-terrorism-related conditions may be quite strict and may be intrusive on liberty.

I have in the past urged parliamentary consideration of the kinds of stricture that may be imposed via a peace bond in the context of both this and predecessor bills and in the parallel provisions in section 810.01 of the Criminal Code. Again, such a review would require sustained scrutiny by this committee. In the absence of such a time-intensive review, I believe there is at least one change that this committee should make to this bill, one related to the investigative hearing provisions.

Bill C-17 is in essence a reimplementation of the original provisions found in the 2001 Anti-terrorism Act. However, developments in constitutional law since 2001 mean that the provisions found both in that original statute and now also in Bill C-17 cannot be read literally. They must be read with an eye to the constitutional jurisprudence of the Supreme Court if they are to be applied in a constitutionally acceptable manner.

Put another way, Parliament is proposing enacting legislation that cannot be read alone. Those applying it must now be expected to have the legislation in one hand and the volumes of the Supreme Court reports in the other. This, in my view, is an invitation to confusion and is fundamentally inconsistent with what I see to be the role of legislation: to provide clear instruction on the applicable law.

Turning specifically to the amendment that seems necessary to satisfy this concern, as you know and as Paul mentioned, in 2004 the Supreme Court examined the 2001 investigative hearing provisions and ultimately concluded that they were constitutional. However, in doing so, the Supreme Court read in certain requirements in the use of investigative hearings, the most important being an expansion of what's known as “derivative use immunity”, guaranteed in the present bill by proposed subsection 82.28(10).

While that clause extends immunity to subsequent criminal proceedings, the Supreme Court said it must go further than that. It cannot be used in any kind of proceeding, including extradition and immigration proceedings. This is a constitutional requirement, and it should be codified right on the face of the bill.

I will stop there. I am happy to address this or any other issues and questions.

[The Chair, Conservative, Kevin Sorenson]

Thank you very much, Professor Forcese.

Welcome, Mr. Kafieh. We look forward to what you have to say as well.

[James Kafieh, Legal Counsel, Canadian Islamic Congress]

Thank you.

My name is James Kafieh. I'm the legal counsel for the Canadian Islamic Congress. On behalf of the Canadian Islamic Congress, I wish to thank the members of the Standing Committee on Public Safety and National Security for the invitation to present to you today.

The CIC is Canada's largest national, non-profit, and wholly independent Islamic organization serving Canada's Muslim community, which numbers about 750,000. The CIC is an advocacy organization that offers Islamic-Canadian perspectives on political, social, cultural, and educational issues.

In 2001 the Canadian Islamic Congress raised its concerns about rushed anti-terrorism security legislation that was introduced to meet post-9/11 expectations.

[The Chair, Conservative, Kevin Sorenson]

Mr. Kafieh, could we ask you to slow down a little bit? Our interpreters are acting like a bunch of auctioneers in there and talking fast, but could you slow it down for our interpretation, please?

[James Kafieh]

I will. Thank you.

[The Chair, Conservative, Kevin Sorenson]

Thank you.

[James Kafieh]

Among the provisions of that legislation were the investigative hearing and recognizance with conditions powers that are now reintroduced in Bill C-17. This time the war-on-terror hysteria has largely dissipated.

With regard to investigative hearings, this provision bears strong resemblance to the Star Chamber of old. Although the present legislation conveys an air of protection from self-incrimination for individuals compelled to appear, this protection is easily lost when two or more persons are so rounded up. For example, two or more persons may find themselves prosecuted not on the basis of information they gave but on the basis of information they gave about each other.

To avoid an end run on the centuries-old right of persons to remain silent and to be protected from self-incrimination, the investigative hearing powers should include the granting of immunity from prosecution for compelled persons on matters about which they provide only truthful information. In short, persons would then be strongly motivated to tell the truth, the whole truth, and nothing but the truth. What more do we legitimately want?

We also need to bear in mind that not everyone who chooses to remain silent in such circumstances is guilty, and that choosing to remain silent is not an admission of guilt or a proof of guilt. People may, for example, have legitimate concerns for themselves, their families, and their communities.

Such an extraordinary measure as investigative hearings should only be used for the purpose of preventing an imminent act of terrorism. It should never be used as an investigative tool for past acts. The present text of Bill C-17 allows for investigative hearings for past events, for which the imperative of safeguarding of innocent life from imminent attack is wholly absent. This is, in itself, an escalation from the previous form of this provision. Such an escalation shows that we are already witnessing creep in the use of such provisions before the court.

In addition, the investigative hearing provision fundamentally alters and distorts our system of justice in that it places prosecutors in the role of investigators and places the judiciary in a position of presiding over a criminal investigation.

With regard to recognizance with conditions, Professor Craig Forcese's paper, entitled “Catch and Release”, quotes justice laws of the English Court of Appeal as stating that the most fundamental, and probably the oldest, most hardly won, and most universally recognized of human rights is freedom from executive detention, yet it is this very right that is being negated by Bill C-17. Recognizance with conditions allows a peace officer, with prior consent of the Attorney General, to lay an information before a provincial court judge if he or she believes that a terrorist act will be carried out and suspects that the imposition of a recognizance with conditions or the arrest of a person is required to prevent it.

This provision allows for the arrest and detention of people without ever proving any allegation against them. It could also make people subject to conditions on release with severe limitations on their personal freedom, even if they have never been convicted of any crime. Anyone refusing to accept and comply with the terms of the recognizance may be imprisoned for up to 12 months. The legislation does not limit the number of times this provision may be reapplied.

How is this consistent with our Canadian values and the principles upon which our system of justice is founded? Canadians have the example of security certificates to understand the impact that this kind of provision can have. The most recent cases of five men who were detained for up to eight years without ever being charged or convicted of a crime should give us all cause for concern.

Bill C-17 creates a legal regime in which all Canadians will be subject to measures indistinguishable from those of the now largely discredited security certificates that were limited for use only against immigrants and refugee applicants.

[The Chair, Conservative, Kevin Sorenson]

Again, I looked around at our interpreters, and their eyes are like saucers. You're going to have to work at really slowing this down. We didn't get it in hard copy to translate it, so they are taking everything you say and trying to get it into French.

[James Kafieh]

I will slow down further.

[The Chair, Conservative, Kevin Sorenson]

It's a tough thing to go from fast to slow, but just please—

[James Kafieh]

I apologize to the translators.

[The Chair, Conservative, Kevin Sorenson]

Thank you.

[James Kafieh]

Thank you.

It is the position of the Canadian Islamic Congress that these provisions are not only damaging to Canadian values and fundamental legal principles but also unnecessary. In 2005 the Canadian Islamic Congress issued a position paper entitled “Security with Rights: Justice is the Ultimate Guarantor of Security”. In it, the CIC cited Muslim Canadian commitment to Canada and its security. The CIC further expressed its concern that the potential abuse of newly expanded security powers by CSIS and the RCMP would lead to abuse and the erosion of civil liberties. The CIC's concern remains unchanged. However, we have now nearly a decade of history that includes a narrative of how post-9/11 security concerns have led to a general undermining of our Canadian values and civil liberties.

The reliance of our international airports on measures now widely described as “security theatre” has alienated a growing segment of Canadians. No-fly lists, botched security certificates, and even indirect responsibility for the torture of Canadians overseas, as was found at the Iacobucci and other inquiries, have all taken their toll on public confidence, yet it must be noted that Muslim Canadians have played a critical role in supporting genuine Canadian security concerns. The Toronto 18 group, for example, was broken primarily because members of the Muslim community notified the authorities of their concerns. What is missing under the present security plan is a genuine partnership between Canadian security and the Muslim community.

An illustration of how strained things have become is the recent cancellation by the Minister of National Defence of a speaking engagement extended by the Canadian armed forces to the CIC's executive director, Imam Delic. The fundamental question is whether either draconian measure in this legislation is even necessary. Reid Morden, the former head of CSIS, believes that these measures are unnecessary and that they present significant dangers for civil liberties. The CIC agrees with him. Interestingly, the recognizance with conditions power has never been used during the five years of its existence, while the investigative hearings power was used only once, with no significant outcome.

Indeed there is no evidence that the Criminal Code, as currently composed, has failed to meet the demands of Canada's legitimate needs relating to security and justice. This prompts the question: why are these provisions being brought back?

If the committee decided to move ahead with this legislation, we would submit the following:

We don't agree with this bill, but we submit and recommend the following to minimize damage done to our legal system, Canadian values, and the fabric of our society: one, the revised investigative hearing provision should limit its scope to deal only with imminent terrorism offences.

Two, subsection 83.28(2) should be amended to make it clear that a peace officer must have reasonable grounds to believe that a terrorism offence will be committed before making an ex parte application.

Three, it should be clarified that anything done under sections 83.28 and 83.29 would be deemed proceedings under the Criminal Code.

Four, the investigative hearing powers should include the granting of full immunity from prosecution on all matters about which only truthful information is provided.

Five, access to a lawyer of the compelled person's choice should be facilitated without delay or interference and be funded at the cost of the crown before, during, and after the investigative hearing.

Six, the compelled person should also have unrestricted access to a special advocate having unfettered access to all information in the care, custody, or control of the crown in relation to the compelled individual.

Seven, the provision for detention without charge for a period greater than 24 hours should be removed entirely from Bill C-17.

Eight, the power set out in Bill C-17 should not be implemented until the accountability framework for the RCMP has been fully enacted and is fully operational.

Nine, compensation for the wrongful use of these powers must be provided to harmed persons.

Ten, an independent oversight mechanism answering directly to Parliament should be established to oversee the provisions in Bill C-17 for as long as these provisions remain part of the Criminal Code.

Eleven, a sunset clause with an evaluation framework must be included with the legislation.

I will close with a couple of thoughts.

We are often told during difficult times that what we need to do is find the correct balance between security and rights. I conclude with the words of Benjamin Franklin, who well over 200 years ago shared the wisdom that those who compromise their liberty for security soon find that they have neither. The recent example of the security measures at last summer's G-20 conference in Toronto and the devastating impact they had on the quality of our civil liberties provide a timely reminder that Mr. Franklin's wisdom remains relevant today in the discussion of this security legislation before this committee.

[The Chair, Conservative, Kevin Sorenson]

Thank you very much.

I want to thank all of you for your opening statements. We'll move into the first round.

Madam Mendes, please go ahead. You have seven minutes, please.

[Alexandra Mendes, Liberal, Brossard—La Prairie, QC]

Thank you, Mr. Chairman.

Thank you all for being with us today.

Thank you very much for sharing your opinion with us. It appears pretty generalized.

It would seem that this bill is completely useless and unnecessary, and that there is a consensus on that. That is what I understood, and I agree.

It seems to us that this bill is reiterating several of the positions that were in the former Bill C-19. Am I correct in this, according to the legal minds? These were clauses that were integral elements of the Anti-terrorism Act, which we know expired in 2007.

Even the public safety minister's annual reports say that no investigative hearings have been held under these statutes and that there's no reported use of the provisions. Am I correct?

[Paul Copeland]

That's other than for Air India.

[Alexandra Mendes, Liberal, Brossard—La Prairie, QC]

That's other than Air India. Okay. Air India was not what this bill was created for in the beginning.

[Paul Copeland]

That's my view.