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.