Public Safety Committee on Nov. 28th, 2012

[Laurie Hawn, Conservative, Edmonton Centre, AB]

They're still more severe, even now.

[Nathalie Des Rosiers]

Yes, I think there are certainly differences in the details of the different aspects of it.

[Laurie Hawn, Conservative, Edmonton Centre, AB]

I would agree with Lord Macdonald about strong and free. That's where we are too.

Ms. Cheung, you talked about the need to educate and rehabilitate and so on. That's a long-term process. I think you'd probably agree with that. It's not an overnight thing.

While that's going on, laudable as that is, and I don't disagree with that, do you think it's still okay to allow people—for instance, the Toronto 18, if that was the case—to travel to Afghanistan and Pakistan for terrorism training, when we know who they are and we know what they're up to? Is that allowable?

[Carmen Cheung]

I think the issue is that the current criminal law, as it exists, is completely capable of identifying and prosecuting these, as we saw in the Toronto prosecutions. It's unclear why we need to create further criminal offences to capture conduct that is already criminalized.

[Laurie Hawn, Conservative, Edmonton Centre, AB]

While they're gathering evidence and tracking the Toronto 18, for example, is it okay to allow them to leave the country to go to Afghanistan or Pakistan, where we know they're going for more training? We haven't arrested them yet, because we're still building a case: should we just let them go?

[Carmen Cheung]

In terms of the level of proof required in this case, the mens rea is quite high. So to that degree, we're comforted by that. But we are very concerned that we continue to criminalize, not just with respect to these training offences but by increasing the penalties. I mean, the first half of this bill discusses increasing penalties for crimes that are already in the Criminal Code.

This focus on criminalization really neglects that we have to start having a conversation about rehabilitation and reintegration, and we are not having that conversation.

[Laurie Hawn, Conservative, Edmonton Centre, AB]

I don't disagree with that, but in the meantime, in my view, we can't let those activities continue without taking some action.

You talked about victims issues, and I know, Ms. Des Rosiers, you—

[Nathalie Des Rosiers]

I'd like to respond to your question about this offence.

[The Chair, Conservative, Kevin Sorenson]

Just allow Mr. Hawn to finish his question.

[Laurie Hawn, Conservative, Edmonton Centre, AB]

You can add your response to the next one.

Previous witnesses talked about the lack of apparent concern from organizations like yours about victims issues and so on. We heard you talk about the social cost of counterterrorism. How about the social cost of terrorism?

[Nathalie Des Rosiers]

Sure. I personally am very concerned. My previous work was on victims defence work, so I think....

The idea that there's opposition between civil libertarians and victims is not, I think, the right reflection, because indeed nobody wants the wrong person to be caught, or the system not to work. When somebody is wrongfully charged, the victims are not that much better off. Indeed, I think we have always said that we support—and we did support—the compensation for victims of terrorism. We support compensation for victims of torture as well.

To me, the idea that we should be pitted one against the other is not appropriate. Indeed, we all want a system that works, that's not unfair, and that has legitimacy, so that people will continue to participate and cooperate to the extent that they want in a system that will ensure that it has sufficient due process.

I want to also answer this, if I may, very quickly. I think part of the issue, when you ask if we should let them leave, is that in the bill you would have to have quite a bit of evidence to be able to arrest them. What Lord Macdonald suggests is that all these control orders that were preventing the police...and the alleged terrorists for engaging into business for communicating with their co-conspirators, were indeed undermining the gathering of evidence. In the case of the Toronto 18, the fact that they had trained elsewhere was part of the evidence.

I'm not an expert in policing tactics, but I'm just saying that you should be worried about what elsewhere they have assessed...how they have assessed that some of these strategies may look good but are not used for good reasons.

[Laurie Hawn, Conservative, Edmonton Centre, AB]

Thank you.

I have one more quick question, and that is with regard to the safeguards. I forget who talked about——perhaps it was Ms. Cheung—the government being able to take action without grounds. That's simply not the case, and I guess I'd ask for your comments on the safeguards. I would suggest there are more safeguards in this legislation than there are in the normal Criminal Code in terms of protecting the rights of the people that we are suspicious of.

[Nathalie Des Rosiers]

Well, actually, you are distorting the normal practice of the Criminal Code. In our view, the use of the regular Criminal Code is better for many reasons: police officers know how to deal with this; they are trained in this; judges know how to behave in this.

So the way in which you may respond—and nobody's saying don't do anything—is to say we need continued training, continued resources, and continued investment in gathering evidence as opposed to minimizing the need for evidence and distorting the normal processes. I think the bulk of commentary at the international level seems to say that strengthening the ability to get the evidence as opposed to transforming the process is maybe the best way.

[Laurie Hawn, Conservative, Edmonton Centre, AB]

You appreciate that the police are in favour of this bill.

[The Chair, Conservative, Kevin Sorenson]

Thank you, Mr. Hawn.

We'll move to Mr. Scott, please.

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

Thank you, Mr. Chair.

Thank you to both of the witnesses.

I want to very briefly summarize that the deputy commissioner for the RCMP was testifying last session, and it was pretty clear that he saw a connection between the new “leaving the country” offence, where you'd leave, or attempt to leave, with the intent to commit a series of potential terrorist offences, and the new “recognizance with conditions” provisions in this bill.

Just to put you on the spot a bit, I'm wondering what would be wrong with this. When you have a system where you actually know that young people in particular are leaving, and they have this intention—you have good evidence, not intelligence evidence but evidence that can be used in court—rather than going to a prosecuting stage, with all of its implications, with the kinds of concerns we have about criminal records in terms of what good they do in the end, what we do instead is we go into a recognizance-with-conditions mode and put conditions, which might even include taking their passport away for 12 months, and we have a cooling-down period.

I'm reading between the lines in the testimony of the deputy commissioner, and I'm just wondering what you would think about that.

[Nathalie Des Rosiers]

Well, there are a couple of things. I think if it does not...it must be bounded by safeguards. Part of the problem with not prosecuting and simply creating risk profiles and not using the Criminal Code is that you certainly lack the public scrutiny on it. You lack the oversight that judges do.

We're not a society that says in general when the police think that someone may not be the...that we should just reduce their liberty for 12 months to give them a cooling period. That has not been the Canadian way. That has not been the way in which presumption of innocence works.

What we have invested in instead...because we are concerned that indeed mistakes may occur. People may have a tendency to restrict the liberty of people in an unfair way. What will the remedy be for these people who for 12 months will not be able to do anything...? You know, you could prevent them from travelling; there are lots of consequences. And they've never had their day in court. They will not have a day in court to justify this. The consequences there are immense.

I think the idea of investigating and trying to pursue the route that we know works and that has worked for a long time, protecting the presumption of innocence but at the same time ensuring the safety of the public, is the criminal law route. I'm not saying that we should not invest in....

Sorry; go ahead.

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

Thank you.

Ms. Cheung, did you have a reaction to that scenario? Would you have similar concerns, or would you think that we actually should be open to that?

[Carmen Cheung]

I have very similar concerns to those of Nathalie. The only thing I would add to what Nathalie has already quite compellingly said is that establishing guilt is a very different thing from establishing dangerousness. By simply deeming someone as dangerous, that really just preempts the whole determination of guilt or innocence that accompanies our typical criminal proceedings. It's much harder to disprove dangerousness, especially if you're not being given the same procedural and due process safeguards that would accompany a prosecution.

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

Thank you so much.

This committee in 2006, in a report on counterterrorism, actually did accept that investigative hearings might be a good idea to continue before being sunsetted, but only with respect to future acts where there's an imminent peril. The provisions we have here don't seem to make a distinction; they're past, present, future. And there's certainly by definition no imminent peril component.

Would you be supportive of a provision that is future-oriented for investigative hearings? Here we're not talking about prevention and recognizance, we're talking about investigative hearings where you're looking at an imminent peril.

[Nathalie Des Rosiers]

In my view, if you have an imminent peril, the investigative hearing is not going to be the way that the police officers are going to choose to go. I think because of the wait and the difficulty in managing the hearing, this will not be a useful tool.

Part of the analysis here is that I think we should be ensuring that this is not just for show; that if the provisions are being put forward, we should make sure that they are necessary, because on their face they do violate the Constitution, so the burden is to establish that they are necessary and justifiable in a free and democratic society. If they have flaws in them, I think you should insist that they be corrected. Certainly I think it's better to have only for the future...and certainly better that they be an imminent danger so that you curtail the use.

But the investigative hearing transformed the role of the judges. They moved from a system that we've used for many centuries to a more inquisitorial system. I think there is some discomfort about this, because the ethics around it are just not well thought through.

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

Ms. Cheung, I was wondering if I could take you in another direction. You indicated that the worry about bringing back a version of the two provisions is expansion without oversight. My colleagues have talked about the fact there are more procedural safeguards in the current provisions being proposed than had been in the previous version; I think that's correct. But you went on to say your real concern is the lack of accountability mechanisms, especially with inter-agency activity.

Can you give me a short answer as to what parts of the Arar commission recommendations are needed, maybe not in this bill but coming down the road?

[The Chair, Conservative, Kevin Sorenson]

You have 15 seconds.

[Carmen Cheung]

Basically it's the main provision, which is the creation of an inter-agency oversight mechanism, either by way of an umbrella committee or by creating the statutory gateways that Justice O'Connor referred to, which would permit the existing review agencies to look beyond the narrow borders of the particular agency that they're responsible for—that is, if SIRC is reviewing conduct by CSIS, if CSIS is interacting with the CBSA or the RCMP to be able to also look into that relationship and the work that's gone on there, rather than having to stop at an artificial border that doesn't exist in operations but still exists in how reviews are conducted.

[The Chair, Conservative, Kevin Sorenson]

Thank you very much, Ms. Cheung.

We'll now move back to the government side, to Ms. Findlay, please.