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

8:50 a.m.

Conservative

The Chair Conservative Kevin Sorenson

Welcome, everyone.

This is meeting number 53 of the Standing Committee on Public Safety and National Security, Thursday, February 10, 2011. Today we will be continuing our study of Bill C-17, an act to amend the Criminal Code (Investigative Hearing and Recognizance with Conditions).

Members will recall that the Minister of Justice, the Honourable Rob Nicholson, and his officials testified before our committee on December 15, 2010, outlining the goals and the features of this bill.

Appearing before us today, we have, from the Canada Muslim Lawyers Association, Ziyaad Mia, chair of the advocacy and research committee. Welcome. From the British Columbia Civil Liberties Association we have Carmen Cheung, counsel. As well, from the Canadian Jewish Congress we have Eric Vernon, director of government relations and international affairs. We thank you for coming in response to an invitation sent only yesterday. From the Canadian Civil Liberties Association we have Nathalie Des Rosiers, general counsel. Again, thank you for coming on short notice.

Our committee thanks the panel for agreeing and making the effort to appear before us today.

I understand that each of you has opening comments; then we'll proceed into a number of rounds. We have two hours today, or just short of that. We'll proceed into two rounds of questions. Perhaps we can work our way along, starting from one end of the witness table.

Mr. Mia.

8:50 a.m.

Ziyaad Mia Chair, Advocacy and Research Committee, Canadian Muslim Lawyers Association

Thank you, Mr. Chair.

Good morning, Mr. Chair, members of the committee, fellow witnesses, and guests. My name is Ziyaad Mia, and I am representing the Canadian Muslim Lawyers Association today. Thank you for inviting me to participate in this session on this very important matter that we have before us.

The Canadian Muslim Lawyers Association represents various Muslim lawyers across this country. As some of you may know, we've been involved in the national security and anti-terrorism issues that have arisen over the last decade, quite deeply. We have a number of concerns and we have expressed them over the last ten years. Some of them were heard, some of them not heard. We hope that you will listen to us today and that we can engage in a discussion about our concerns.

One of our central concerns with this legislation and the general tone of law and policy in this area is that it is largely driven by fear. The problem with that is that fear does not develop good law and does not develop good policy. At the end of the day, in this climate that we have in the world in the war on terror, the culture of fear, unfortunately there is xenophobia. Muslim Canadians, Muslims around the world seem to bear the brunt of it.

That's not the essence of all I'm going to talk to you about today; it is one concern I have.

I also have concerns about having broad and blunt powers that are not precisely crafted put into the law, to sit there and maybe be used against other vulnerable minority communities in the future. At the end of the day, when you have poorly drafted laws, mistakes are made and innocent people's lives are destroyed. And that's a real thing. We read about in the papers, but at the end of the day, when the rubber hits the road, it's real people—real children and families—who are destroyed. And you can't put that back together through compensation alone.

So we have two major concerns. The first is that these laws that are before you today are not necessary. We have in this country a Criminal Code that is robust; there are a number of provisions, and I'm happy to engage you on them. But what we have before you today is legislation that takes us away from the fundamental protections in the Criminal Code and in the Constitution of this country, which are finely crafted to strike the right balance in respecting rights and getting at criminals and terrorists—because that's what terrorists essentially are. And we're watering down or in some cases possibly throwing away historic, fundamental protections that have been with us for centuries: on arbitrary detention, habeas corpus, judicial independence, and the separation of powers. These are not things to be taken lightly, and we are putting them significantly at risk.

My second point is that these types of powers run the risk of abuse. When we talk about this today, we can talk about all the examples we now have over the last ten years of the mistakes that have been made and innocent people's lives that are being destroyed. I don't think that's your aim and I don't think it's our aim at the Muslim Lawyers Association. We stand firmly with every other Canadian to stop terrorism in its tracks, but we need to make sure we don't catch a lot of innocent people in the process of doing it. It will stigmatize some communities, and as I said, there is the very real fear of scope creep, once we start to change the fundamental fabric of the legislation and the Constitution of this country.

Many people have come before your committee, and the rhetoric and the discourse are about “striking a balance” between national security and civil rights. I'll tell you one thing: I don't think we need to strike a balance. Because we have the Constitution in this country and the criminal law in this country, a balance has been struck. We don't have a system of absolute rights; section 1 of the charter is essentially a balancing mechanism. We as a community have decided to strike that balance.

What you're doing is moving that balance from one place on the spectrum to another, closer to security. That is fine, if you want to do that. But I don't think this is being discussed exactly in that way. We've been told that we're balancing things, away from absolute to a balance, when in fact what we have is a movement of that balance: we're moving and altering the fundamental social contract in this country and we're not having a proper public debate about it.

So it is a fallacious argument to say that we're striking a balance.

As we've said, our position before you on numerous occasions and in front of other committees is that these provisions are unnecessary. The fundamental principle of legal drafting is that you do not draft laws that are unnecessary, and you need to be precise in drafting.

We have—and we can talk about these provisions and you've heard about them before—the Criminal Code.

Section 495 of the code allows you to pre-empt criminal activity. It was fallacious for the previous government and for those saying it now to say that we need to stop the terrorists before they get on the plane and that we didn't have the tools to do that before. We did have the tools to do that before. They were called the Criminal Code and investigative techniques. We need to use those, I agree; we need to use those robustly. But to say that preventative arrest is needed because we need to stop something that might happen.... Well, we have tools that will do that.

There are the peace bond measures. Section 810 of the Criminal Code, as you know and as you've heard, has those protections already there, including for terrorism. Now, I may have some criticisms about how those may be applied broadly, in a civil liberties perspective, but they are there. And they're based on reasonable grounds, not reasonable suspicion; that's a very important point we should be talking about today. Part 13 of the code covers all sorts of preparatory offences—conspiracies, attempts, et cetera—and those address exactly what prevention is all about.

Basically, what I think we're doing today as a society is putting the cart before the horse. These are poorly designed laws, they're overly broad, they're loose, and they're giving police and the security agencies—although CSIS doesn't use these powers, their investigations lead into and feed into this system—loose, blunt powers, and they're ill-equipped to deal with them.

You know that there's a host of inquiries sitting on the table gathering dust: the Arar inquiry, the Air India inquiry, the Iacobucci inquiry. You have two cases, Almrei and Charkaoui, in which CSIS and the RCMP were roundly thrashed as incompetent, as not really understanding geopolitics in the way they should, so that we can catch real terrorists instead of wasting resources on other things. That's what we heard from Justice Mosley.

On top of that—forget national security—the RCMP is in a bit of disarray. You have the Dziekanski affair, which is a tragedy, a fundamental tragedy in this country: that an innocent man was killed and the RCMP then moved forward to mislead all of us. Not only is it an insult to our intelligence; it is fundamentally wrong.

There's a lot that's wrong with the RCMP. At this table two days ago you heard from the RCMP senior brass about what's wrong with the RCMP. We know that CSIS doesn't “get it”, as Justice Mosley says. They don't understand what jihad is. They had it all wrong with Almrei in the first case. They're chasing an innocent guy when they should be chasing real terrorists, putting the cart before the horse.

What you need to do is clean house with CSIS and the RCMP; implement the Arar commission's findings immediately; have that oversight, that transparency, those protections, so that we get our police and security agencies going after real terrorists—which is what we all want to do—while respecting the rule of law. Essentially, we have a picture of a security service and a national police force that are dysfunctional and in disarray, and you need to work with them to clean that house before we even consider any extraordinary new powers.

These are sunsetted provisions, which you're trying to bring back. The point of a sunsetted provision is exceptional power. If we keep renewing it, it's not an exceptional power anymore. Justice Binnie in the Air India case looked at the investigative hearings and raised that very concern. He raised this red flag: that if you keep renewing this, it is no longer an exceptional power. And from a rule-of-law and a democratic perspective, that is very dangerous. We are now at the point where we might have permanent emergency legislation, permanent exceptional legislation. I don't want to get into the constitutional theory, but it's fundamentally contradictory to our system of government and the rule of law. That is the kind of thing that you see Mr. Mubarak has: 30 years of emergency law. It's a bit absurd: it's a permanent emergency.

I'm not comparing us to Mubarak or the Nazis—obviously we're far from that—but I'm raising the issue because we don't want to start adopting measures that are indicative of those societies. Nazi Germany had legal theorists who said essentially that the leader decides when there's exception and when it ends. We don't have that; we have the rule of law and we have oversight over government. We have courts, checks and balances, and oversight over police and security services.

I'm telling you, we don't need to say “we'll just pass this for another five years”. Security agencies will always tell you they need more power. Every government agency and every institution will tell you they need more power and they need more money. That is just how things work.

I'll leave you with one reminder—I'm finishing up. I'm sure you're all familiar with Edmund Burke, a great parliamentarian. He was actually the father of modern conservatism; I have a lot of respect for him. More than 200 years ago he said that “the true danger is when liberty is nibbled away, for expedience, and by parts”. And I think that is what we have before us today: we're nibbling away by expedience—“let this one pass, let that one pass”—and at the end of the day we have nothing left.

Thank you very much for your attention. I look forward to your questions.

9 a.m.

Conservative

The Chair Conservative Kevin Sorenson

Thank you, Mr. Mia.

We'll now move to Ms. Cheung, for ten minutes.

9 a.m.

Carmen Cheung Counsel, British Columbia Civil Liberties Association

Thank you very much.

Good morning. My name is Carmen Cheung, and I'm counsel with the British Columbia Civil Liberties Association. On behalf of the BCCLA, I wish to thank the members of the committee for the invitation and opportunity to present on Bill C-17today.

The BCCLA is a non-profit, non-partisan advocacy group based in Vancouver, British Columbia. Since its incorporation in 1863, the mandate of the BCCLA has been to promote, defend, sustain, and extend civil liberties and human rights around Canada.

We speak out on the principles that promote individual rights and freedoms, including due process and fundamental justice concerns in situations in which individual interests are affected or engaged by the state.

In December this committee heard from our colleagues with the International Civil Liberties Monitoring Group, La Ligue des droits et libertés, the Canadian Council on American-Islamic Relations, and others. The BCCLA echoes many of the concerns so persuasively voiced here already, namely that the proposed legislation does little to protect Canadians, while at the same time compromising many precious and hard-won democratic safeguards.

Let me start by addressing the preventative detention provision, which permits a holding of an individual without charge for up to 72 hours based on mere suspicion of dangerousness. When this provision was last in force in the Criminal Code, it was never invoked. Advocates for preventative detention point to this statistic as demonstrating restraint on the part of law enforcement agencies; we view it as evidence that such sweeping powers of preventative detention are simply unnecessary.

Protection of personal liberty is a fundamental value in Canadian society and indeed in any free society. Expanding the powers of the executive to detain people must be examined with the utmost scrutiny. Canadian principles of fundamental justice impose limits, both procedural and substantive, on deprivations of liberty. This means two things. First, the process through which any individual is subjected to detention must meet the requirements of fundamental justice. Second, the substantive reasons for any detention must be justifiable in a free and democratic society.

Detention without charge or conviction is deeply problematic, because it is based on a hypothetical. It depends upon speculating on the future dangerousness of an individual because of assumed propensity. Preventative detention is necessarily based on propensity reasoning, because if there were actual evidence of preparation to commit a terrorist act or of conspiracy to commit a terrorist act, then there would be grounds to lay charges for committing a criminal offence, and suspected individuals could be detained under the usual criminal law procedures. Stripping an individual's liberty when no offence has been found to have been committed or when no offence is even suspected to have been committed runs counter to basic principles of fundamental justice.

The Criminal Code, as it currently exists, contains more-than-adequate mechanisms for prosecuting past terrorism offences and preventing future ones. The sweep of terrorism-related offences in the Criminal Code is broad. As defined in the code, terrorist activity encompasses everything from conspiracy to the attempt or threat to commit an act of terrorism to the actual terrorist act itself.

The code also confers expansive powers on authorities to impose conditions on individuals who pose a danger to public safety. As you've already heard, this is reflected generally in section 810.2, and with respect to terrorism offences in section 810.01. As you've also already heard, as recent law enforcement investigations have shown, the terrorism provisions in the current Criminal Code are effective. They have been successfully used to protect the safety of Canadians and to disrupt prospective terrorist attacks.

Detaining individuals based on predictions of future dangerousness is a troubling proposition. Because the requirements of proof are relaxed, there is an increased chance not only of error or abuse, but of such errors or abuse going undetected and without remedy.

For example, it may be difficult to accurately assess whether the prediction of dangerousness is ultimately borne out. Let's say an individual is held in preventative detention and no terrorist attack takes place. The fact that no terrorist attack ensued may mean that by detaining the individual, law enforcement officials successfully disrupted a terrorist plot. But it may equally mean that the detained individual was not involved in any planned attack at all. Such uncertainties cannot be the basis on which Canadians and others in this country are imprisoned for any length of time.

On the other hand, prosecuting inchoate offences such as conspiracy permits the government to incapacitate potentially dangerous people and to disrupt terrorist plots before they can take place, but the evidentiary requirements for laying charges provides a measure of protection against mistake or abuse.

Separate from the deprivation of liberty associated with preventative detention, there is the stigmatizing effect of being labeled a terrorism suspect or an individual associated with terrorist activities. We believe it is fairly uncontroversial to say that the stigma associated with an accusation of terrorism is severe. Yet the system of preventative detention proposed in this bill would effectively brand an individual a terrorist even though law enforcement officials may not have any grounds to lay charges, let alone evidence to convict, now or ever. The potential harm to that individual's reputation and other negative impacts flowing from being labeled as a terrorist cannot be discounted.

With respect to the second substantive prong of Bill C-17, the reintroduction of investigative hearings, we would observe that such a mechanism effectively renders the courts an investigative tool of CSIS and the RCMP. Indeed, we would adopt the logic of Justices LeBel and Fish of the Supreme Court of Canada, when they found that investigative hearings such as the ones proposed here compromise judicial independence from the other branches of government, which is a cornerstone of our democracy.

Although writing for the dissent, Justice LeBel's and Justice Fish's words should have resonance for anyone who subscribes to the concepts of the rule of law and an independent judiciary. They wrote:

Although a judge may be independent in fact and act with the utmost impartiality, judicial independence will not exist if the court of which he or she is a member is not independent of the other branches of government on an institutional level. .... Section 83.28 requires judges to preside over police investigations; as such investigations are the responsibility of the executive branch, this cannot but leave a reasonable, well-informed person with the impression that judges have become allies of the executive branch.

While the previous iteration of this investigative hearing provision may have been deemed "charter-proof", to borrow a phrase from Professor Kent Roach, that does not mean that these measures are truly compatible with the right against self-incrimination. As contemplated in Bill C-17, investigative hearings bear all the hallmarks of complying with the right against self-incrimination. We would submit, however, that they still do not comply with the spirit of the right to silence.

We believe that Professor Roach, of the University of Toronto Law School, perhaps said it best, with respect to the 2001 version of this provision. He wrote:

Regardless of whether investigative hearings can or cannot survive Charter review, there is a strong case that they are unnecessary, unprincipled and unwise. Those who will talk will do so without the threat of prosecution. Those who will refuse to talk or who lie will likely not be deterred by the threat of continued detention or prosecution for failing to obey a judicial order or for perjury. More fundamentally, it is unworthy to abrogate centuries of respect for the right to silence and the right against self-incrimination during police investigations. Attempts at Charter proofing, in the form of judicial authorization, right to counsel and use and derivative use immunity, should not take away from the fundamental damage that investigative hearings will do to our long traditions of adversarial criminal justice.

And indeed, while the Supreme Court did find the 2001 investigative hearing provision to be constitutional, it made that finding only after reading into the law what had not been expressly provided by Parliament. It placed limits on the use of investigative hearings. Specifically, it held that information gathered could not be used against an individual in any kind of proceeding, including extradition or deportation hearings or proceedings in foreign jurisdictions. As it is currently drafted, however, the investigative hearing provision fails to reflect those requirements and leaves open room for potential misapplication of the law. Given the danger that the information compelled through investigative hearings could potentially be used against Canadians or others abroad, perhaps by countries where human rights protections are not as robust as those found in Canada, we are deeply concerned that the Supreme Court's direction has not been codified here.

Finally, we wish to note that while the provisions at issue here, like their predecessors from 2001, are accompanied by sunset clauses, we fear that putting these measures in law again will be far from temporary. We urge you to refrain from passing this legislation and giving it a state of de facto permanence in Canada. Canada has historically served as an example among nations of how democracy, freedom, and the rule of law can be upheld on an ongoing basis. But we must be vigilant in protecting these values. The measures proposed by this bill have afforded no demonstrable gains in combating terrorism and instead would work to erode the democratic principles and ideals that we seek to protect.

I'll end here for now. Thank you again.

9:10 a.m.

Conservative

The Chair Conservative Kevin Sorenson

Thank you, Ms. Cheung.

We'll now move to Mr. Vernon, please.

9:10 a.m.

Eric Vernon Director, Government Relations and International Affairs, Canadian Jewish Congress

Thank you very much, Mr. Chair.

Thank you for the opportunity, even as late in the day as it came, to appear before this committee as it studies this important legislation.

I am delighted to be here on behalf of Canadian Jewish Congress, which for over 90 years now has been the advocacy voice of the Jewish community of Canada and a voice for human rights for all Canadians.

Thank you for the invitation to present the Jewish community's views on antiterrorism in Canada and on Bill C-17.

Let me begin by stating clearly that Canadian Jewish Congress supports Bill C-17. I think it's good that I understand what it means to be a minority, because I clearly am one at this panel. At the same time, we would examine with interest any amendments that this committee might eventually recommend after completing its review towards strengthening the legislation as part of the overall anti-terrorist regime in Canada.

It will come as no surprise, I'm sure, that Canadian Jewish Congress has for many years, and well prior to 9/11, been a strong advocate for a comprehensive and effective counter-terrorism regime in Canada on behalf of a community that is essentially twice targeted--that is, both as Canadians and as Jews.

In our brief on the legislation establishing CSIS, the Canadian Security Intelligence Service, CJC noted, and I quote:

If terrorism is allowed to implant itself in Canada because we are reluctant to establish realistic measures to prevent it, its impact will spread beyond any particular community to affect Canada as a nation and in the international forum. As terrorism grows more organized and more international in scope, so must the efforts to contain it be more organized, serious, and efficacious.

Members of the committee, that brief was submitted in April 1984, almost 27 years ago, and yet in the aftermath of September 11 it became clear just how unprepared Canada was in dealing with the threat of international terrorism and its domestic manifestations. Canadian Jewish Congress was therefore gratified by the government's introduction of then Bill C-36, including the two ultimately sunsetting clauses that lie at the heart of Bill C-17 now.

To date, thankfully, Canada has been spared the agony of the suicide bombings and attacks that, at least since the turn of the new century, have become a commonplace weapon in the terrorist arsenal. But our nation has certainly not been immune to terrorism, not least the tragic events surrounding the bombing of Air India flight 182.

Canada's Jewish community has been targeted for terrorist violence by the likes of Ahmed Ressam and Jamal Akal, and beyond that we cannot but see the community's security in the context of the vulnerability of and attacks on sister communities elsewhere in the world, both before and after September 11, 2001.

Given the multicultural and pluralistic nature of its society, Canada is especially vulnerable in an increasingly interconnected world to terrorist infiltration. While the vast majority of ethnic, cultural, and community groups and their members pose no threat, terrorists are well positioned to exploit, intimidate, or attract individual fellow ethnics and/or co-religionists into supporting, financially and otherwise, and providing valuable cover for their activities in one way or another. We have already had a glimpse into the potential for homegrown radicalization, and if that weren't enough, we have the examples of the U.K. and elsewhere in Europe to ponder.

From our perspective, it was a decided strength of the Anti-terrorism Act that it set its primary sights on prevention of terrorist acts rather than the apprehension and punishment of perpetrators. Potential terrorist operations, or those discovered in progress, must be thwarted immediately. The powers of recognizance with conditions and investigative hearings introduced by the act remain important for the attainment of this purpose. Though having been sparingly used, as we know, it is still important to have these powers available to our security and police forces, because the best and first line of defence against terrorism is effective and timely surveillance and intelligence gathering, intrusive though they may be at times.

We believed in 2001 and continue to believe in the importance of granting expanded powers to the security services through recognizance with conditions and investigative hearings for the careful monitoring of individuals and groups that are suspect and the amassing of relevant information well in advance.

Now, since the passage of the Anti-terrorism Act, Canadians have been passing judgment on how well it met the most fundamental challenge facing any democracy, namely, how to provide for the safety and security of its citizens while minimally impairing the basic civil liberties that underpin their society.

The two sunsetted measures clearly provide a stern test to any democratic society. In fact, these two provisions seem to epitomize the zero sum game of protection of security versus protection of human rights. And as we know, they ultimately died on the floor of the House of Commons.

From our perspective, one need not approach the debate from the either/or perspective of security versus rights. If terrorism is rightly regarded as an assault on human rights, it stands to reason that the implementation of counter-terrorism measures necessarily protects the highest priority rights of life, liberty, and the security of the person--the foundation of all other rights and freedoms.

Now, the corollary of course is that these actions themselves must always be rooted in and comport with the rule of law. A properly framed and implemented counter-terrorism policy enhances civil liberties and core charter values and protects them as part of the way of our life, whose essence is threatened by terrorism.

A look around the world clearly tells us that terrorist acts remain a clear and present danger, and our security and police personnel must have sufficient authority to take preventive action to interdict possible attacks before they occur. Nonetheless, we are fully cognizant of the potential severity of these measures, and we are heartened that Bill C-17 provides additional safeguards to reassure Canadians' concerns about the possible adverse impact of these measures.

Members of the committee, the most fundamental role of the state is to protect the safety and security of its citizens and the core national way of life. Governments such as ours must thwart the efforts of those who would use our open society against us and then shut it down, while at the same time we must be sure not to impair the very democratic nature of that society. But it would be the ultimate irony if in striving to maintain civil liberties we strip authorities of the necessary powers to stop terrorists and extremists from destroying our open and free society.

In our respectful submission, Bill C-17 deserves expeditious passage, as it successfully meets the challenge in restoring the authority for the use of recognizance with conditions and investigative hearings while providing additional safeguards for fundamental civil liberties and rights.

I thank you for your kind attention and look forward to your questions.

9:20 a.m.

Conservative

The Chair Conservative Kevin Sorenson

Thank you very much, Mr. Vernon.

We'll now move to Ms. Des Rosiers. Welcome back.

9:20 a.m.

Nathalie Des Rosiers General Counsel, Canadian Civil Liberties Association

Thank you very much.

I want to thank the committee for having invited the Canadian Civil Liberties Association to appear. I will make the first part of my remarks in French and the second in English.

The Canadian Civil Liberties Association has existed since 1964. It has always worked to defend the rights and freedoms of Canadians. We will make four proposals as part of our submission.

The first is that in its current form, Bill C-17, An Act to amend the Criminal Code (investigative hearing and recognizance with conditions) contains major flaws and problems that must be remedied.

Secondly, like other rights and freedoms advocacy groups, we question the need to proceed this way and to adopt the bill in its current form.

Finally, I won't repeat what has been said by my colleagues, but I simply want to present the international context surrounding the bill. I will begin with that proposal.

This is an opportunity for us to take a sober look at provisions adopted in 2001, which expired in 2007 because of a provision, and to determine now if they were appropriate and necessary.

This is being done in a context where we hear the United Kingdom is preparing to review the use of control orders which had been used consistently as of 2001.

One of the reasons why many people say that Bill C-17 is not that dangerous is that these measures have not been used excessively by our police forces. Despite that, it creates a precedent in terms of commitment and in the context of international law. It becomes a precedent for other countries in the world who will look to and use the Canadian precedent.

The only guarantee that Canadians had in the face of these powers is that they were not abused and were almost never used. The same will not be true in other countries. Given Canada's leadership role in terms of international human rights, it is important to look at whether this is the right time to introduce a legal tool which fundamentally questions some of the principles around which our system is organized. That is one of our proposals.

I won't repeat what my colleagues have said. I just want to stress a couple of ways in which the bill stresses our system and its fundamental tenets. There are three tenets, I think, of our system that are at odds with the premise and the economy of the bill, and I think that's why we, as civil libertarians, are searching within this bill for guarantees.

The first one is that, obviously, we live in a system where judges are not inquisitorial judges. They are judges who work and are trained in the context of contradictory evidence. Indeed, I think one of the ways in which we have been able to fine-tune our system of counter-terrorism.... Canadian civil liberties all support the idea that the government has a duty to engage in counter-terrorism. What we're debating here is whether this is the best way. It's not to question the effort; it's to ensure that indeed it does what it seeks to do.

We have responded in other contexts by insisting there be special advocates, to ensure that judges are not put in a position to be inquisitorial. They're not trained for this; it is incompatible with the way in which they are proceeding. But this is not present here. Contrary to what happened after the Charkaoui decision, we are not seeing here a recognition that there needs to be.... If you're going to take someone and threaten his or her liberty in front of a judge in a context where the judge will have to rely on the information provided, you need to balance this by having at least a special advocate. That's what we've learned in other contexts, and I think this, indeed, should be looked at in this context as well.

The second tenet of our system that I think is fundamentally challenged by Bill C-17 is the one referred to earlier. It's the fundamental tenet that you ought not to be detained, arrested, or subject to punishment unless there is a format or a framework by which the accusations and the evidence against you can be tested and at the end of the day you are found to be guilty or not, and that's the end of it.

This process allows preventative detentions that threaten the concept of strong protection through habeas corpus. It creates a fracture in our legal thinking, and that's why people react to this with such visceral fear. It was a great advancement in law and legal thinking to insist that a king not be able to put people in jail simply because he was afraid that something might happen to threaten public order. The writ of habeas corpus was a great advancement in saying it is inappropriate to detain people without having a process to fundamentally challenge the evidence on which you are being detained. That's why people react with such fear to this case in which preventative detentions are being normalized in the process.

Finally, the third principle of our system is that there is no obligation for Canadians to cooperate with the police. Here, they are forced to come and give testimony in front of a judge. As Kent Roach has said numerous times, some people will tell the truth, some people will lie, and indeed they will not cooperate more because there's a threat of being incarcerated.

Now, let me go through the different dispositions and look specifically at some of the challenges they present and some of the ways in which they ought to be.

In our view, the bill should not proceed. It's not necessary and it's not the way to go. But if it is to proceed it must have additional guarantees that are not there.

The first guarantee is under proposed section 83.28. There is no guarantee that this indeed will not be relying on evidence obtained under torture. That's a significant issue. What we would suggest is that there be a commitment that there be included a specific reference saying that there is an affidavit from CSIS, an affidavit from the police, which is being recognized by the judge, as to the evidence's not having been obtained under torture.

We're insisting on this not only because there is a general prohibition around the world against torture and Canada should be part of it, should be an instrument, a model on this. It's also a good signal to say to other countries that whatever evidence they would want to lead in will not be acceptable. But what is interesting as well is that it protects our system from being polluted by the fact that some evidence obtained under torture may have found its way somewhere. If everybody along the system has to guarantee that to their knowledge—and they do the investigation—the evidence has not been obtained under torture, we improve the guarantee that the system will not inadvertently be an instrument of perpetrating torture.

One concern that has been raised, and I think my colleague has raised it, is that it does not protect testimony from being used in proceedings outside of Canada. This was mentioned by the Supreme Court. This is not in the bill; it should be in the bill.

As well, it should not be used against members of the family of people who testify. That's another aspect. Many people who could be compelled here will be shunned for sure by their community but will expose themselves to great dangers, and there's no provision here to ensure their protection.

I know my time is running out, and I just want to make sure that.... Let's see: no special counsel proceeding has been.... There has been no guarantee that no evidence has been obtained under torture....

There are no boundaries to the conditions that can be imposed by the judge, and I think there should be a way in which these conditions are reviewed and found not to be unnecessary.

Finally, there's no right of appeal. There should be a right of appeal.

9:30 a.m.

Conservative

The Chair Conservative Kevin Sorenson

Thank you very much to all our witnesses.

We'll move into our first round of questioning.

Mr. Holland, you have seven minutes, please.

9:30 a.m.

Liberal

Mark Holland Liberal Ajax—Pickering, ON

Thank you, Mr. Chair, and thank you to the witnesses, each of you, for very compelling testimony.

I think we recognize that the initial provisions came into being immediately after September 11. At that time there was a feeling that we needed to act as quickly as possible to do something to give extra powers to police, but I think wisely those provisions had sunset clauses to allow the country—Parliament, Canadians, and the judiciary—to examine both the necessity and the applicability of those provisions.

Over that period of time, we have heard, as the witnesses have said, from the Supreme Court. We have also heard from the former head of CSIS, who says that these provisions are unnecessary and don't provide any additional security.

But I have to say that I've also been moved by seeing the faces of security and intelligence failures: Maher Arar, Mr. El Maati, Mr. Nureddin, Mr. Almalki, and others. There were a couple of other cases referenced as well by Mr. Mia.

Let me just say to Mr. Vernon, I have to reject the premise that the suspension of due process or civil liberties for the possibility of greater collective security is unto itself not enough, because the danger of that argument is that it has no end. That argument could continue to the point that it fundamentally destroys the things that are most fundamental and important about what we're trying to protect.

The question here is, if you are going to suspend the civil liberties of an individual, if you are going to suspend due process, can you demonstrably prove two things: first, that you are in fact making substantive improvements to collective security; and second, that you have vigorous and robust oversight to ensure in those circumstances that the power will not be misused or that the powers will be restrained or that, if mistakes happen, they will be immediately caught and rectified?

On the first point, I am yet to hear in the testimony that we've had over the three meetings we have held any concrete examples of specifically how these provisions would achieve my first point. In fact, we've heard the former director of CSIS, who was responsible for oversight of all intelligence services in this country, say—not before this committee, but publicly—that these provisions fail in that first measure.

The second one is, I think, even more important, and I would bring this question first to Mr. Vernon. The second one deals with oversight. We have O'Connor, Iacobucci, Brown, the Standing Committee on Public Safety and National Security, Mr. Kennedy, Mr. Major, all of whom have brought out recommendations on oversight, the vast majority of which are unanswered. We have many departments involved in intelligence today that have no oversight: Immigration, as an example; the Canadian Border Services Agency, as an example.

Would you not agree with me, Mr. Vernon, that prior to the continuation or the re-institution of any extraordinary measures, we would first have to make sure that security and intelligence oversights, failures, and deficiencies that exist today are repaired?

9:35 a.m.

Conservative

The Chair Conservative Kevin Sorenson

Mr. Vernon.

9:35 a.m.

Director, Government Relations and International Affairs, Canadian Jewish Congress

Eric Vernon

Thank you for your questions, Mr. Holland.

I think that it would certainly be in the best interests of the country to have those recommendations examined carefully and the ones that are deemed to be effective implemented, but I don't see that as a necessary first step towards maintaining these powers. We're not talking about powers that have been exploited or abused at all. This notion that these powers are some kind of first step down the slippery slope to fascism or some kind of jack-booted changes in our fundamental way of life I don't think holds water.

So I don't think that the changes that are being recommended in this bill need to be held hostage to the implementation of recommendations of other inquiries.

9:35 a.m.

Liberal

Mark Holland Liberal Ajax—Pickering, ON

My point, though, Mr. Vernon, is that these are not examples in abstraction; these are very specific examples. I have given you very specific names of Canadians who found themselves detained and tortured in foreign jurisdictions. According to Canadian inquiries, it was the failures of Canadian intelligence and security that led to their detention and torture. Those individuals faced horrific circumstances as a result of failures here in Canada and because of a lack of oversight that was in place in this country.

So I'm asking you, not in some vague abstraction but with great specificity, should we not ensure that we fix those deficiencies before giving, or even contemplating, expanded extraordinary powers that would have the potential, if there were not vigorous and robust oversight, to produce other such failures?

9:35 a.m.

Director, Government Relations and International Affairs, Canadian Jewish Congress

Eric Vernon

I think the second part of your formulation is probably something we'd be more sympathetic toward. Obviously the impact on the lives of the individuals you have mentioned is not something we take lightly, but it seems to me that having these powers in place did not necessarily mean that they're going to be improperly used or that they represent some kind of a thin edge of the wedge of the destruction of our democratic way of life.

If you have some specific proposals that will enhance parliamentary oversight, I think that would be very important. We'd certainly be interested in looking at those.

Obviously our police and security services are made up of human beings. There are mistakes. There are flaws. But the systems are in place. There are additional safeguards placed into this bill. If you have a couple more, one or two key recommendations, we'd be happy to look at those.

9:35 a.m.

Liberal

Mark Holland Liberal Ajax—Pickering, ON

I know I have a very limited amount of time, but I would like to hear from one or some of the other witnesses on this point, because I think the issue of oversight's an important one.

I agree, Mr. Vernon, people are human. Failures happen. It's the reason why we need to have vigorous and robust oversight. In my estimation, for the reasons that I outlined, I don't feel that it's present, and I'm wondering if I could hear perhaps from some of the other witnesses on the import of that.

Mr. Mia.

9:40 a.m.

Chair, Advocacy and Research Committee, Canadian Muslim Lawyers Association

Ziyaad Mia

Thank you for your question.

9:40 a.m.

Conservative

The Chair Conservative Kevin Sorenson

Very quickly, Mr. Mia. We're already a minute over, so very quickly.

9:40 a.m.

Chair, Advocacy and Research Committee, Canadian Muslim Lawyers Association

Ziyaad Mia

I talked about the balance. Just to address your first question, due process and the adversarial process set that balance to find the truth to avoid mistakes while catching criminals.

And to Mr. Vernon's point, this isn't an issue about parliamentary oversight, sir. The Arar inquiry identified massive failures in the security and intelligence policing—CSIS, the RCMP, others—massive failures that led to the destruction of a human being, of a Canadian's life. Everybody makes mistakes, and that is why we need oversight. He didn't recommend pitches and patches. He recommended a robust oversight system that covered all security agencies, because if we're going to play in this game of national security and terror in the world, we better have a check and balance, and that's what he's talking about.

9:40 a.m.

Conservative

The Chair Conservative Kevin Sorenson

Thank you, Mr. Mia.

We'll now move to Madame Mourani, please.

9:40 a.m.

Bloc

Maria Mourani Bloc Ahuntsic, QC

Thank you, Mr. Chairman. Welcome everyone, and thank you for coming today.

Ms. Cheung, you are from British Columbia. You undoubtedly followed the saga involving Mr. Fadden. He stated in the media that there were agents of influence in British Columbia. Elected municipal officials are allegedly agents of influence from China. I would like to...

9:40 a.m.

Conservative

The Chair Conservative Kevin Sorenson

On a point of order, Mr. Rathgeber, please.

9:40 a.m.

Bloc

Maria Mourani Bloc Ahuntsic, QC

I hope I won't be interrupted each time...

9:40 a.m.

Conservative

Brent Rathgeber Conservative Edmonton—St. Albert, AB

Mr. Chair, you'll note from today's agenda that the order for the day is to examine Bill C-17. I am not even remotely convinced that this line of questioning could in any way, shape, or form fall under an inquiry with respect to Bill C-17.

February 10th, 2011 / 9:40 a.m.

Conservative

The Chair Conservative Kevin Sorenson

Thank you, Mr. Rathgeber.

I try to give as much latitude as I can to the line of questioning, but I'll tell you, relevance is something that we do try--especially on legislation--to keep. So I would ask you to be relevant to Bill C-17 and to the idea of terrorism. I'll give you some latitude, so continue, Ms. Mourani.

9:40 a.m.

Bloc

Maria Mourani Bloc Ahuntsic, QC

Mr. Chairman, if Mr. Rathgeber let me finish my remarks, he would perhaps understand their relevance. Furthermore, I hope that this will not be taken from my time.