Evidence of meeting #53 for Public Safety and National Security in the 40th Parliament, 3rd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was powers.

A recording is available from Parliament.

On the agenda

MPs speaking

Also speaking

Ziyaad Mia  Chair, Advocacy and Research Committee, Canadian Muslim Lawyers Association
Carmen Cheung  Counsel, British Columbia Civil Liberties Association
Eric Vernon  Director, Government Relations and International Affairs, Canadian Jewish Congress
Nathalie Des Rosiers  General Counsel, Canadian Civil Liberties Association

9:40 a.m.

Conservative

The Chair Conservative Kevin Sorenson

No.

9:40 a.m.

Bloc

Maria Mourani Bloc Ahuntsic, QC

Thank you.

As I was saying, Mr. Fadden told the media that elected municipal officials in British Columbia were agents of influence. I am sure that you followed that closely. Do you really think we should give additional powers to an agency like that headed by a person like that?

9:40 a.m.

Counsel, British Columbia Civil Liberties Association

Carmen Cheung

I'm not sure if that's precisely what's at issue here. Certainly I think that CSIS has an important function in this society and in protecting Canadians. The accusations made by Mr. Fadden with respect to potential foreign influences from the Chinese community or Chinese people is deeply troubling, but what we are concerned about really is whether these powers are even strictly necessary. It's not so much an issue of should they be given to CSIS or RCMP or whoever, but whether these powers are necessary at all.

9:40 a.m.

Bloc

Maria Mourani Bloc Ahuntsic, QC

You were referring to discrimination earlier on and that is what I would like to focus on. Mr. Mia, you may also respond to this question.

I have heard of a number of situations, in particular in Montreal, but this must also be happening elsewhere throughout Canada. You can tell me if I am mistaken. I have heard that young Muslims are being harassed by CSIS in its investigations. In some cases, someone went to their homes and left a card with simply their first name on it, etc. I will admit that I am concerned about this bill which would grant even more powers to an agency that already seems to have too many. These young Muslims told me that they had not been advised of their rights, nor had they been accused of anything.

There is already discrimination against the Muslim community. Can you tell me how this bill may make it even worse?

9:40 a.m.

Chair, Advocacy and Research Committee, Canadian Muslim Lawyers Association

Ziyaad Mia

Madame Mourani, thank you for your question.

That is a real concern in the Muslim and Arab communities since September 11, 2001, since the Anti-terrorism Act came into play. We're not discounting the fact that, yes, people are suspicious. There are issues in the world today that might lead a normal human being towards.... That's what we call prejudice and discrimination; we all do it. The point there is that we need to check that. I think we all agree that we want to prevent any harm coming to anyone in Canada from illegal acts of any violence—including terrorism, because it's a mass scale of violence.

But to your point, I know that in previous testimony, if I can give a bit of a preamble, people have said: these powers haven't been used, so how can they be discriminatory? It's not really the hard use. You'll probably see that they won't be used a lot. But what we have found in the last ten years is that CSIS, the RCMP, other police agencies, but mostly those two agencies, will demonstrate the “soft abuse” of these powers. They go to vulnerable people—immigrants, refugees, those who are the most vulnerable, but also to other Canadians who are Muslim, or Arab, or maybe seem to be those things—and they are told, “You know, we have these new powers, so if you don't cooperate...”. So it's “play ball with me, or else I have this big stick”.

Not everybody is schooled in the law. I've been to many mosques and community centre events where young people, older people, anyone...their computers were taken. CSIS does not have any police powers. They don't have the right to seize property, arrest, search—nothing. You can tell them to go away. I had people tell me they just handed over their computers to CSIS because they were told they needed to do this.

9:45 a.m.

Bloc

Maria Mourani Bloc Ahuntsic, QC

That is because they do not know their rights.

9:45 a.m.

Chair, Advocacy and Research Committee, Canadian Muslim Lawyers Association

Ziyaad Mia

Exactly.

9:45 a.m.

Bloc

Maria Mourani Bloc Ahuntsic, QC

Many of these people are not even Canadian citizens. They do not know their rights and are afraid of CSIS—someone walks into their house, gets a suspicious look on his face when catching sight of the Koran and asks if they are involved in jihad. Well, I find it absolutely incompetent to assess risk like this, to assess a person's likelihood of committing a terrorist attack based on symbols. I have concerns about CSIS. I have been watching them for a while. They are watching, but I am watching them too and this incompetence worries me. If we have to count on these people to protect us, I am wondering if we will be protected the way we should be. In my opinion the current risk analysis for terrorism is based on cultural criteria rather than clear intelligence. That is what I am seeing out in the field. Am I wrong?

9:45 a.m.

Chair, Advocacy and Research Committee, Canadian Muslim Lawyers Association

Ziyaad Mia

I think you're correct in your assessment. We're not saying CSIS and the RCMP aren't needed. They're needed to do certain things, as Ms. Cheung has pointed out. CSIS has to protect Canada from threats to Canada. Yes, that is their role.

But CSIS actually arose from a wrongdoing of the RCMP. The McDonald commission gave rise to CSIS. The Emergencies Act came out of the misuse of the War Measures Act, because we wanted to control, when we needed to do things to protect Canada in extreme cases.... We have rule-of-law-based mechanisms to do that.

The problem I have with this type of legislation and security certificates and the others is that there's not a lot of oversight. The Supreme Court struck down security certificates because there wasn't that oversight. What happens is the abuse of these powers. My cart-before-the-horse argument is essentially this: CSIS and the RCMP have major problems; they need to go down to the basement and have a little bit of a think and bring in a facilitator and work things out, before they come out and we give them more powers.

Justice Mosley, in the Almrei decision—

9:45 a.m.

Conservative

The Chair Conservative Kevin Sorenson

Go very quickly, please.

9:45 a.m.

Chair, Advocacy and Research Committee, Canadian Muslim Lawyers Association

Ziyaad Mia

—some of it is quoted in Craig Forcese's paper—roundly thrashed them. They don't even understand what jihad is. They made mistakes between a Chechen rebel and al-Qaeda. They were making fundamental mistakes in cases in which all you need to do is read a newspaper or know a little bit about the region. But they don't want to work with the Muslim community in this country, and that's why they don't get it.

So while they're chasing red herrings, real terrorists may be getting away.

9:45 a.m.

Conservative

The Chair Conservative Kevin Sorenson

Thank you, Mr. Mia.

We'll now move to Mr. Davies.

February 10th, 2011 / 9:45 a.m.

NDP

Don Davies NDP Vancouver Kingsway, BC

Thank you, Mr. Chairman.

I have to make a couple of points that seem evident to me from the beginning. One is that I'm also concerned about what I perceive to be a circular argument, which is that in order to protect civil liberties we may have to violate civil liberties.

Excuse me, Mr. Chairman, I can't even hear myself.

9:45 a.m.

Conservative

The Chair Conservative Kevin Sorenson

Could we have some order, please?

Go ahead, Mr. Davies.

9:45 a.m.

NDP

Don Davies NDP Vancouver Kingsway, BC

Thank you.

So it seems circular.

I also think that we go down a dangerous slippery slope when we start saying that in order to protect our way of life and our civil liberties, I may have to violate the civil liberties of other people.

The second concept that comes to my mind is the question of onus. It seems to me that a fundamental feature of the fabric of Canadian society and western democracies is that we as individuals have certain fundamental rights. Those rights are primary, and the onus is on the state to make a case as to when those rights are properly abrogated.

I heard mention of the Charter of Rights and Freedoms. Yes, we are given fundamental rights as individuals, and those rights may be abrogated, if the state can justify an abrogation of those rights “as may be justified in a free and democratic society”. It's not for individuals to justify why they're entitled to their rights. As a matter of being Canadian citizens, as a matter of fundamental liberty in our concept of democracy, we have those rights until the state justifies otherwise.

I want to talk a little bit about what we're dealing with here. We're dealing with the concept of giving police officers the right to preventatively arrest based on suspicion, and we're talking about compelling testimony from people—forcing people to testify. Both of these are significant departures from our current legal system. In fact, I'm going to quote the CBA, which says:

These powers, especially the power to conduct an investigative hearing, represent a significant departure from powers traditionally available to investigate criminal offences.

I'm going to try to go to some fact. If we're talking about a justification for these powers, I think the place we must all start from is the objective evidence. Now, we all know some basic facts, but I think they bear repeating.

This is what we know so far: that these powers were introduced in 2001, and in ten years they have been used precisely once—once in a decade. We know that since the original bill sunsetted—since 2007, when these powers have not been in place at all—we have not had any occasion to utilize these powers. We also know that since those provisions were allowed to sunset, Canadian criminal law has continued to operate effectively.

I also want to quote from the Canadian Bar Association submission that we received, and then I'll ask for some comment on it, if I can. It said we must:

...recognize that rules and procedures in Canadian criminal law, as they existed prior to the addition of sections 83.28 and 83.3, were effective in protecting people within Canada from the harm caused by criminal offences, including those associated with terrorism.

And CBA has identified themselves as the national voice of the legal profession.

Here's my question. If we put these laws into place, which were used once, we have the Canadian Bar Association, the national voice of the legal profession, telling us that the criminal laws we had at that time and since are totally effective in preventing terrorism. We also know that, standing in distinction to the fact that they were used only once, I can name you five cases of serious violations of Canadians' human rights: Messrs. Arar, El Maati, Almalki, Nureddin, and Charkaoui.

Can any of you comment on the evidentiary basis, the objective base that we as parliamentarians would possibly have to proceed with a law that so fundamentally alters our Canadian legal system?

9:50 a.m.

Conservative

The Chair Conservative Kevin Sorenson

Thank you, Mr. Davies.

Go ahead, Madame Des Rosiers.

9:50 a.m.

General Counsel, Canadian Civil Liberties Association

Nathalie Des Rosiers

That's the reason for the sunset clause. When it expires, you evaluate the evidence you have in terms of the dangers the changes seek. I think it's no coincidence that at the same time as we are doing this exercise--and we should do it thoroughly, by looking at the evidence we have of abuses on one side and at the lack of these provisions.... Particularly since 2007, when these provisions were sunsetted and so haven't been in force, prosecutions for terrorism acts have occurred. So it's not as though the police have been unable to act. On the contrary, I think they have been able to act.

It's no surprise that now, in the U.K., they are re-evaluating whether the strong and difficult and dangerous tools, such as control orders, ought not be re-evaluated.

The idea of stepping back, saying that this was not necessary, is no longer necessary, and is not the best way to go--that it's better to invest in better intelligence than to simply give more powers--I think may be a better assessment at this stage.

9:55 a.m.

Chair, Advocacy and Research Committee, Canadian Muslim Lawyers Association

Ziyaad Mia

Thank you for your question.

I agree with Ms. Des Rosiers.

I don't like prognosticating forward or backward. But if I can use one example, you've been told by the minister and security agencies, such as the RCMP, that they need these new powers. They have a lot of powers, and they're not using those very well.

Let's look back 25 years. The real, significant terrorist attack Canadians suffered--and as an Indo-Canadian, I can tell you, that was not acknowledged for ten years as a Canadian tragedy, which, as an Indo-Canadian, I find a bit insulting--was the Air India terrorist attack. Let's pretend that we can go back in time and give CSIS and the RCMP these powers. Would that have saved those Canadians and others? I don't think so. Let's look at what Justice Major, in his findings, said. I'll just give you a couple of little snippets that caught my eye. He said that CSIS surveillance was ineffective, that “Surveillants were unable to distinguish one traditionally attired Sikh from another.”

9:55 a.m.

Conservative

The Chair Conservative Kevin Sorenson

Be very quick, Mr. Mia.

9:55 a.m.

Chair, Advocacy and Research Committee, Canadian Muslim Lawyers Association

Ziyaad Mia

He said that “CSIS failed to include important information...”; that “The RCMP wasted resources...”; that “The concept of 'specific threat' was misunderstood...; that there was a “lack of cooperation” between the RCMP and CSIS.

The RCMP failed, failed, and failed.

9:55 a.m.

Conservative

The Chair Conservative Kevin Sorenson

Thank you.

9:55 a.m.

Chair, Advocacy and Research Committee, Canadian Muslim Lawyers Association

Ziyaad Mia

At the end of the day, that's the problem, not new cops.

9:55 a.m.

Conservative

The Chair Conservative Kevin Sorenson

Thank you, Mr. Mia.

I'm sorry, Mr. Vernon. I'm going to have to cut it off there.

We'll go to Mr. Rathgeber, please.

9:55 a.m.

Conservative

Brent Rathgeber Conservative Edmonton—St. Albert, AB

Thank you, Mr. Chair.

Thank you to all the witnesses for your attendance today and for your interest and concern on this very important and sometimes difficult topic.

To Mr. Mia, would you agree with Mr. Vernon's statement, and a statement that's been said by others, that the first duty of the state is to protect the safety and ensure the security of its citizens?

9:55 a.m.

Chair, Advocacy and Research Committee, Canadian Muslim Lawyers Association

Ziyaad Mia

I don't think it's an either/or situation. I think it is in a bundle of things the state has to do. If all the state has to do is protect your security, you could take away all rights, and we'd be pretty secure. But I don't think that's the society we live in.

I think the real issue is that the state needs to provide security to its citizens so that they can enjoy liberty. Security is the fundamental basis for the things we take as valuable: liberty, freedom, and the right to come and do these things without fearing that we're going to be persecuted for speaking freely.