Public Safety Committee on Nov. 28th, 2012

[Dr. Bal Gupta]

I agree with Rob Alexander. I think in retrospect, one of the RCMP officers in one of his interviews used the words “eureka point”. The question was why these guys were not stopped; they were following the individuals, but they were not stopped. His answer was that they were not at the eureka point where they could stop them under the existing law.

So this will be useful, and as I said, we have to be proactive. Let us hope we don't have to deal after the fact. We can stop them; it doesn't matter.... Sometimes it happens that the events that are stopped before they take place are not counted in these statistics. It's almost like asking, “Why do I need insurance or a fire extinguisher if I've never had a fire?” Let us hope it happens that way, that it is not needed.

As a group, we are very satisfied with the provisions in Bill S-7 and with its procedural safeguards that it balances civil liberties against the need to protect law-abiding citizens.

[Maureen Basnicki]

The short answer is, yes, I agree to the provisions of Bill S-7, and I'm optimistic that the committee will find it's the right thing to do.

I want to be proud of my country. It seems when we talk about the economy, it's certainly the topic of concern. Canada prides itself on the fact that it took steps beforehand to lessen the impact of the economic situation, and we're very proud of ourselves, and we continue to sing our praises.

In the area of terrorism, which is also a global concern, I want the same sense of pride, so that I can say, “You know what? We took preventative steps to lessen the impact.” I hope it will be an exercise in futility. We all do. Nevertheless, we have to have an exercise in reality here, and the reality is that there could be an attack, and I think this is a giant step in the right direction.

[Judy Sgro, Liberal, York West, ON]

What more would you like us to do?

[Maureen Basnicki]

Let me consult the many legal minds that are helping C-CAT. I'm sure there are more things. I hope this is the first step. Personally I don't have the expertise in creating legislation. I'm encouraged by this piece, but I do know there are many more things that we need to look at.

We talk about balance. One thing in particular, and I'm going to direct my attention to it, is that this is about security and the safety of Canadians. We don't have a balance between the needs of the victims of terrorism, the victims of this heinous crime, and the needs of the perpetrators. I only have to use the example of a Canadian who was convicted of terrorism. His name is Omar Khadr. His name was brought up a number of times in the discussions here.

Again, I want to change the conversation. You know, victims need the tools to be reintegrated into society as well. It's not all about the perpetrators. We need psychological help, medical help, legal help. It has been a long road for all of us, and in that other area I certainly want to bring forth some more suggestions.

I think Rob mentioned that he was 15 when his father was killed. Why is the discussion always about the fact that Omar Khadr was 15 when he committed these atrocious acts? My son was 16 when his father was murdered.

Anyway, with regard to some of the objections that I heard when we got into the discussion of child soldiers and that type of thing, I'm not here to argue about that. That's a different conversation. As a mother, I have my concerns too.

But as a victim, as somebody who.... And I call myself a victim because it was horrible that my husband was killed, but I've been revictimized by politics on many, many occasions. It's not the country that I know and love. I found that Canada at the highest level didn't treat the Canadian victims of terrorism, in my case 9/11, and didn't show that sense of caring and looking after our needs, the way that the American government did.

There's one more thing. Terrorism right now is at the provincial level. It's treated at the provincial level. This is not a provincial-level matter. It is a federal issue and counterterrorism laws have to be made at the federal level. That's why we're here today. There has to be a policy for victims at the federal level as well.

[The Chair, Conservative, Kevin Sorenson]

Thank you very much.

We'll come back to the official opposition now, to Mr. Scott.

We're in five-minute rounds.

[Craig Scott, NDP, Toronto—Danforth, ON]

Thank you.

I'd essentially like to go in two directions, following up directly on what Ms. Basnicki was just saying and asking if there's anything further you wanted to add.

We have recently been through a bill on offender accountability around the issue of raising surcharges. There's a bit of a conflict of philosophy amongst some of us as to what extent we should be able to have robust victim services that draw on the public purse in the same way in which we would look at other social support services from the state, versus seeing primarily, or even only, the money supporting victim services to come from perpetrators.

I wonder if you have any position on that in light of your own experience. I find what you're saying extremely interesting around the need for a much more active federal role, but I honestly do not see a federally oriented victim services approach without there being literally general revenue funds as part of it.

[Maureen Basnicki]

I've been very proactive in that area. In fact the Justice for Victims of Terrorism Act that was recently passed was part of the omnibus bill. I agree, victims don't want to go after a federal tax purse per se. How good would it be to actually be able to litigate in civil court and get the money from the perpetrators who were the cause of it? You have to look at the Justice for Victims of Terrorism Act to see what that's all about.

There are many ways, especially in this economy, to mirror what the United States did, for example. Immediately after the attack there was a tax benefit to victims. They were forgiven their taxes. In Canada, in the response that I got.... Immediately I was told that for 2001, the year in which my husband was killed, and the year 2000 my taxes would be forgiven, as they were in the United States.

Not only were they not forgiven—there was not equality with the victims in the United States, the Canadians residing in the United States—but our government at the time came after me for taxes not paid. He paid quarterly taxes based on his salary, the amount that he was making, and he was quite a successful man.

You know, there are different areas in which you can help victims of terrorism. You can only imagine how hard it is for us to see our taxes being used for the penal system, for incarcerating the individuals, but no tax benefit for the victims.

[Craig Scott, NDP, Toronto—Danforth, ON]

That's a very interesting perspective.

[Maureen Basnicki]

There are a number of ways. We have a lotto in Canada. It doesn't matter what your status is. Suddenly, if your number is up, you win the jackpot—huge amounts of money, tax-free money. But I would suggest that if for whatever horrible reason your number is not up, it's the worst day of your entire life and you lose your loved one, who in many cases is the breadwinner of the family....

You know, there are many ways.

[Craig Scott, NDP, Toronto—Danforth, ON]

Great. Thank you.

Mr. Gupta—

[The Chair, Conservative, Kevin Sorenson]

Very quickly.

[Craig Scott, NDP, Toronto—Danforth, ON]

—I was also going to ask you a little about prevention, but....

[Dr. Bal Gupta]

One aspect is the other type of support, emotional and so on. With Air India we were left to float or sink on our own. Nobody from the federal level or provincial level gave us any support.

This is a sad commentary. We can spend whatever the figure is, $55,000 or $65,000 per person in a penitentiary, or maybe $100,000—

[The Chair, Conservative, Kevin Sorenson]

It's $140,000, maybe.

[Dr. Bal Gupta]

—but when it comes to dealing with victims of crime, the amount is a round one: zero.

That's where I have even qualms with the so-called civil liberties associations. They will be up in arms about providing facilities to the prisoners, but I have yet to find a civil libertarian to come.... At least in the Air India case, nobody ever approached us on if they could help us.

[The Chair, Conservative, Kevin Sorenson]

Thank you very much, Doctor.

Unfortunately, that concludes our time. The hour seemed to go fairly quickly.

I don't think there's anything I can really add. I just feel for each one of you, whether it was in the eighties or in 2001, and I certainly want to thank you, on behalf of the committee, for what you have done to help remember your lost loved ones but also to make changes that would impact our country and that would prevent such acts from ever taking place again.

Thank you for appearing today.

We're going to suspend momentarily and allow you to exit and then allow our next guests to take their places.

Thanks again.

[The Chair, Conservative, Kevin Sorenson]

I will call this meeting back to order to try to keep on time and to make certain our guests have the specified amount of time.

We're continuing our meeting this afternoon of the Standing Committee on Public Safety and National Security and our study of Bill S-7.

On this panel we will hear testimony from the Canadian Civil Liberties Association. We have Nathalie Des Rosiers, as general counsel. As well, by video conference from Vancouver—she's coming in loud and clear, and the picture is clear—we're hearing from the British Columbia Civil Liberties Association, Ms. Carmen Cheung. She is counsel for the association.

Our committee wants to thank you for agreeing to help us with our study on Bill S-7. I understand that both of you have opening statements.

We will go to Vancouver first of all, and welcome Ms. Cheung.

[Carmen Cheung, Counsel, British Columbia Civil Liberties Association]

Thank you very much.

Good afternoon. It is such an honour and a privilege to appear before this committee again. On behalf of the B.C. Civil Liberties Association, I wish to thank you for this opportunity to present on Bill S-7.

The BCCLA is a non-profit, non-partisan organization based in Vancouver, British Columbia. Since its incorporation in 1963 the mandate of the BCCLA has been to promote, defend, sustain, and extend civil liberties and human rights in Canada. We speak out on the principles that promote individual rights and freedoms, including due process and fundamental justice concerns in situations where individual interests are affected or engaged by the state.

Last year we appeared before this committee to express our serious concerns about the preventative detention and investigative hearing provisions in Bill C-17, the predecessor bill to the one under discussion today. At that time we highlighted our concerns that while it is far from clear that such measures would have any demonstrable effect on combatting terrorism, they would very likely result in eroding the democratic principles and ideals that all of us seek to protect.

Rather than repeat in detail those comments, I refer the committee to the BCCLA's submissions from February of last year, which are attached as an appendix to the speaking notes I have provided to the committee this morning. I would instead like to focus my remarks today on our concerns with the approaches to combatting terrorism reflected in this bill.

In the proposals to resurrect preventative detention and investigative hearings, we see an approach that looks to expand the scope and reach of state authority without accompanying expansion of accountability and oversight. In the provisions seeking to create new offences under the Criminal Code for leaving or attempting to leave Canada with the intent to take part in terrorism as it's very broadly defined already in the Criminal Code, we see an approach to national security that continues to focus primarily on criminal sanctions without sufficient consideration of rehabilitation.

Let me first address the issue of accountability and oversight. The preventative detention provision in Bill S-7 permits holding an individual without charge, or without even the intent to charge, for up to 72 hours based on mere suspicion of dangerousness. It strips an individual's liberty absent proof or even suspicion of an offence and runs counter to basic principles of fundamental justice.

The investigative hearing provision in turn transforms our courts into investigative tools of CSIS and the RCMP and is fundamentally inconsistent with the spirit of the right to silence, the right against self-incrimination.

Both of these provisions expand the power and the authority of the state to encroach on basic civil liberties. Indeed, the extraordinary nature of such proposed state powers is reflected in the fact that they, like their predecessor legislation from 2001, are accompanied by sunset clauses.

Yet, at the same time government seeks to expand the powers of our national security agencies, we see no similar efforts to ensure that accountability and oversight of the national security apparatus are any more robust.

Six years ago the Arar commission made clear that the accountability mechanisms for national security oversight had simply not kept pace with the scope and scale of national security operations. To that end, Justice O'Connor made a series of detailed recommendations directed at improving the accountability and review mechanisms for national security operations.

Chief among his recommendations, of course, was the integration of national security review across agencies and review bodies, and the creation of a national security umbrella committee, which would facilitate cross-agency accountability. It is an uncontroversial proposition that national security operations can only be effective if there is inter-agency cooperation. But what that means also is that there needs to be inter-agency review and oversight.

Six years after the close of the Arar inquiry, we are still very far from that integrated system of national security review. And to this day, notwithstanding Justice O'Connor's recommendations, there still is no mechanism for independent review of the national security activities of the CBSA, Citizenship and Immigration Canada, Transport Canada, FINTRAC, or DFAIT.

The provisions in this bill contemplate an expansion of investigative powers. They also imply increased information sharing, not only between the various national security agencies such as CSIS, the RCMP, and the CBSA, but also between these agencies and foreign partners.

As with all national security matters, the exercise of these powers and the extent of this information-sharing will be largely kept secret.

These characteristics of national security operations—lack of transparency, increased information-sharing, increased international cooperation—were all highlighted by Justice O'Connor in 2006 as reasons why strong and effective review and accountability mechanisms are so crucial.

This observation has equal, if not greater, force today. The level of inter-agency integration and international cooperation is even more significant now than at the time of the Arar inquiry, yet conversely, in important respects, we have less accountability and oversight. Indeed, we have grave concerns that, with respect to national security accountability, what we are currently seeing is not only a failure to keep pace, but an actual deterioration of existing oversight and review mechanisms.

In particular, we are very troubled by the elimination of the office of the Inspector General of CSIS this year, given that it was one of only two accountability mechanisms specifically provided for in the CSIS Act. Meanwhile, SIRC, which is now expected to take up the duties of the inspector general, has had no corresponding increase in its resources. Though SIRC itself has said that its mandate should be broadened to allow for a review of national security matters that involve CSIS and go beyond the strict confines of that agency, this recommendation has yet to be taken up.

Accordingly, we urge the committee to refrain from further expanding the powers of our national security agencies until appropriate and effective accountability and review mechanisms have been established. We believe that strong and robust oversight mechanisms are important not only for protecting human rights and civil liberties; they are crucial for ensuring that our national security policies and practices are effective.

We raise the issue of efficacy in national security practices because we agree—again, we agree—that terrorist activities violate fundamental human rights. We must have counterterrorism strategies that work. To that end, however, our counterterrorism efforts cannot be singularly focused on criminalizing conduct. Our criminal laws relating to terrorism as they currently exist are already quite expansive and capture a very wide range of offences and activities, yet this bill proposes to widen the net even further by creating these so-called training camp offences.

This emphasis on criminalization ignores the fact that terrorism cannot be stopped simply by making it illegal. In his testimony before the Special Senate Committee on Anti-terrorism concerning this bill, Professor Kent Roach very rightly noted that we must start talking about rehabilitation of terrorists and reconsider our policy of “once a terrorist, always a terrorist”. Rehabilitation is particularly important in the context of who would be caught up in the ambit of these training offences: likely, young people. The failure to rehabilitate and reintegrate individuals engaged in terrorism or caught up in terrorism perpetuates the cycle of marginalization, disenfranchisement, and alienation that leads to further radicalization. In the end, none of us are safer.

Therefore, we would urge you to refrain from passing this legislation. We cannot afford to grant these extraordinary powers of detention and investigation while we still suffer from deficiencies in accountability and oversight. We cannot continue to expand the reach of the criminal law without making some commitment to ensuring proper and meaningful rehabilitation of those accused or convicted of terrorism offences. Safety and freedom must go hand in hand.

Thank you again for this opportunity. I look forward to your questions.

[The Chair, Conservative, Kevin Sorenson]

Thank you very much, Ms. Cheung.

Here in our committee room, we'll go to Ms. Des Rosiers, please, for 10 minutes.

[Nathalie Des Rosiers, General Counsel, Canadian Civil Liberties Association]

I will begin my presentation in French, and then continue in English.

I want to thank the committee for inviting the Canadian Civil Liberties Association. The association has existed for almost 50 years, and its mandate still consists in taking a principled stand on issues facing society.

Today, I invite you to think about two issues. A framework of analysis should support the study of certain provisions that, like those included in Bill S-7, were subject to a sunset clause. In that context, it's a matter of conducting an in-depth study of what has happened since the terrible events that left their mark on Canada and the world.

The association certainly recognizes that the duty of states to protect their citizens and nationals is well-established. We must never neglect that duty. That is a state's primary duty. Terrorism is a threat to everyone's security. Therefore, a state must deal with terrorism while respecting international law and constitutional law. The threat of terrorism has not diminished. That's not what the association's position is.

As we heard earlier, terrorist acts have real consequences on many people. The Air India terrorist bombing took place 27 years ago, and the September 11 attacks were carried out 11 years ago. Despite everything, I think this committee's duty is to develop the most effective counterterrorism approach. The question is not whether we should react to terrorism or have an anti-terrorism strategy, but rather whether the strategies included in Bill S-7 are the best and the most appropriate ones.

We should take advantage—and I think that is the goal of this exercise—of the advances in knowledge that have been made in counterterrorism over the past 11 years. Many developments have been made around the world in the assessment of the best counterterrorism practices. I will share some observations—for instance, reviews from Great Britain regarding anti-terrorism measures.

We think that the framework of analysis invites parliamentarians to take their role very seriously and to address the issue as follows, while applying the following principles.

You certainly have to take into consideration the latest developments in the fight against terrorism. Parliamentarians must also ensure that the Constitution is respected. In addition, I think that parliamentarians must make sure that the bills that are passed have no indirect effects, unintended consequences or negative impacts on certain groups of citizens.

I will now talk about the latest developments in the fight against terrorism.

I'm going to move into English, if that's okay.

[The Chair, Conservative, Kevin Sorenson]

Yes, go ahead.

[Nathalie Des Rosiers]

I invite the committee to take into account the very wise remarks of Lord Macdonald of River Glaven, QC, from England, who was asked to review the work of the committee that had been charged with reviewing the anti-terrorism measures adopted in the U.K. I put it to you that his approach....

I mean, I think Lord Macdonald of River Glaven starts from the proposition, as I do, that certainly terrorism is a serious threat, and something must be done. What he is concerned about is whether the mechanisms that had been developed in England continued to be efficient and were the best possible.

I think he starts his remarks by saying that things must be done, but the best thing.... I'll quote him, from here: that the review rightly recognizes that “Where people are involved in terrorist activity, they must be detected and...prosecuted and locked up.”

In a way, his approach would be to look at the strategies, in particular the control orders in there, that have prevented and undermined evidence-gathering in a way that is not pursuing the objective of responding through the use of regular criminal law.

The second point he made is that all measures must be geared generally to the use of regular criminal law procedure. That has been the practice in Canada, as well, in the context of the group of 18. In that context, exceptional measures are undermining the legitimacy of the counterterrorism measure.

He goes on to say that exceptional measures are better framed in exceptional legislation and should not be normalized. A similar sentiment was evoked by the eminent jurist. The last thing, and I'll conclude with this, is that he says, the “paucity of use” of a measure—and I'll use his language, although it's difficult for me to use the British sound—“hardly speaks of pressing need”.

Eventually what he concludes is, first, what were the powers that were used by the legislation? Do they continue to be relevant? Have they had perverse effects in undermining and gathering of evidence? If they haven't been used, then he cautioned against maintaining them, with the view that indeed “paucity of use...hardly speaks of pressing need”. Therefore, as he suggests, there's always a good reason to increase state power but we must be cautious to resist the temptation, and strongly evaluate the case for increased powers.

I think Canada is now in a position to evaluate how its response will be judged on international law and on the international scene. Elsewhere in the world, as you read this morning in the paper, the state gives themselves large powers to ensure stability. It would be a mistake, in this context, for Canada to put legislation on the books by which the major claim to fame, or the major reassuring feature, has been that it's not been used and will probably not be used again. It's a mistake to put legislation on the books that is designed not to be used.

I will now talk about constitutionality.

I will make two small remarks here, which are linked solely to the fact that when you look precisely at Bill S-7 , there are ways in which it does not completely reflect the thinking of the Supreme Court when it dealt with la question de l'audition pour investigation, investigative hearing. In that context, it did insist that the testimony should not be used in the context of criminal proceeding. This is covered by subsection 83.28(10).

It also demanded that it not be used in the context of administrative hearings. This is not in the bill. It should be in the bill; otherwise it risks failing a constitutionality test. The point is that the right to silence, the protection against self-incrimination, exists not only in criminal proceedings but also in administrative proceedings. This is not in the bill, and it should be there.

Finally, I would caution the committee about relying on this case without reading the other cases that have assessed the counterterrorism framework of Canada.

It is important to remember that the Supreme Court ruling preceded the first decision in Charkaoui v. Canada. The court assessed the mechanism and was concerned about the changing role of judges.

Clearly,

investigating hearings transform the role of judges, from being passive in the context of a contradictory system to a more inquisitorial system. This is alien to our judicial system and it doesn't fit well.

Indeed, I think the reason why the procedure is not used is probably that CSIS agents are far more adept than judges—and I say that with all the respect in the world to the judges—at asking pointed questions. Their training, as judges, is to listen to an exchange of ideas as opposed to being out there and pointing.... So there's danger in transforming without sufficient guarantees.

A month ago, CCLA hosted a conference on the social cost of counterterrorism. In that context, we were interested in mapping the indirect effects of the counterterrorism measures.

I will just point out—I invite the committee to actually pay attention to this—some of the conclusions that came out: discrimination against Muslim and Arab Canadians has increased; many people change their names to get jobs; many people suffer from agoraphobia. We also had an entire study that was done to identify people who were repliés on themselves; the communities were actually increasing their mistrust of the authorities. That may not be the way to go.

Lord Macdonald of River Glaven said, “The British are strong and free people, and their laws should reflect this”. I submit that Canadians have a free and strong nation, and their laws should reflect this as well.

Merci beaucoup.

[The Chair, Conservative, Kevin Sorenson]

Thank you very much.

We'll move quickly into our first round.

We'll go to Mr. Hawn, please, for seven minutes.

[Laurie Hawn, Conservative, Edmonton Centre, AB]

Thank you very much, Mr. Chair.

Thank you both for being here.

Ms. Des Rosiers, you may disagree, but the minister has already addressed the issue of constitutionality. That is a part of the review process, which goes into all of this. You mentioned Lord Macdonald and his emphasis on prevention. I think we would all agree that prevention is better than reaction after an event.

You testified against Bill C-17 on February 10, 2011. You said that Bill C-17 creates “a precedent for other countries in the world who will look to and use the Canadian precedent”. I guess, not to put words in your mouth, that's perceived as a dangerous precedent.

Are you aware of what other countries are doing, such as the U.K. and Australia, for example, which have much more severe measures than what we're proposing?

[Nathalie Des Rosiers]

Yes, although what is interesting and what I was trying to point out is that the review in the U.K. was indeed to reduce the powers that had been used in this context. The report was to change the way in which control orders were being used in the—