With respect to Canada’s anti-terrorism
framework and the objective of balancing the need to protect the security of
Canadians with the need to protect and preserve rights and freedoms, we have
identified the following 13 general issues as requiring comment and the
attention of government: (1) the
definition of “terrorist” activity; (2) racial profiling; (3) the need for a
special advocate during certain proceedings; (4) the listing of terrorist
entities; (5) the scope of the offences relating to financing and providing
services in support of terrorism; (6) the denial or revocation of an
organization’s charitable status, (7) issues in relation to the Canada Evidence Act; (8) investigative
hearings and recognizance with conditions/preventive arrest; (9) electronic
surveillance and the interception of private communications; (10) concerns
relating to the privacy of Canadians and the sharing of information; (11)
issues in relation to the Security of
Information Act; (12) detention and deportation under a security
certificate; and (13) the need for adequate oversight and review of matters
relating to Canada’s anti-terrorism framework.
DEFINITION OF “TERRORIST
ACTIVITY”
What constitutes a
terrorist activity lies at the heart of Canada’s anti-terrorism
framework. It is of central importance
not only to the Anti-terrorism Act,
but also as the basis for the activities that are undertaken to protect our
society from terrorist threats. The
scope of what constitutes terrorism – whether wide or narrow – guides security
and intelligence agencies in their investigations, police in their enforcement
of the law, decisions of the Crown on whether and how to prosecute, and
inevitably a court in its judgement to convict or acquit.
The definition of “terrorist
activity” introduced into the Criminal
Code by the Anti-terrorism Act classifies
an extremely broad array of actions, or failures to act, as terrorist
activities. The definition has two
parts. In the first part, paragraph
83.01(1)(a), terrorist activity is
defined to include any act or omission committed, threatened, attempted or
counselled, inside or outside of Canada, that amounts to a terrorist offence
referred to in any of ten anti-terrorist international conventions entered into
by Canada.
Public Safety and Emergency Preparedness Canada and Justice Canada officials indicated that this part of the
definition is necessary to enable Canada to comply with the
obligations it has assumed in relation to prohibiting terrorist activity under
the international conventions it has signed.
The second part of the
definition, paragraph 83.01(1)(b), is
more general in scope. Most of the
commentary the Committee heard from witnesses during its hearings related to
this part of the definition. Section
83.01(1)(b) defines terrorist activity as:
|
(b) an act or
omission, in or outside Canada,
(i) that is
committed
(A) in whole or
in part for a political, religious or ideological purpose, objective or
cause, and
(B) in whole or
in part with the intention of intimidating the public, or a segment of
the public, with regard to its security, including its economic
security, or compelling a person, a government or a domestic or an
international organization to do or to refrain from doing any act,
whether the public or the person, government or organization is inside
or outside Canada, and
(ii) that
intentionally
(A)
causes death or serious bodily harm to a person by the use of
violence,
(B) endangers a
person’s life,
(C) causes a
serious risk to the health or safety of the public or any segment of the
public,
(D) causes
substantial property damage, whether to public or private property, if
causing such damage is likely to result in the conduct or harm referred
to in any of clauses (A) to (C), or
(E) causes
serious interference with or serious disruption of an essential service,
facility or system, whether public or private, other than as a result of
advocacy, protest, dissent or stoppage of work that is not intended to
result in the conduct or harm referred to in any of clauses (A) to (C),
and includes a conspiracy,
attempt or threat to commit any such act or omission, or being an
accessory after the fact or counselling in relation to any such act or
omission, but, for greater certainty, does not include an act or
omission that is committed during an armed conflict and that, at the
time and in the place of its commission, is in accordance with customary
international law or conventional international law applicable to the
conflict, or the activities undertaken by military forces of a state in
the exercise of their official duties, to the extent that those
activities are governed by other rules of international law.
|
Under this part of the
definition, terrorist activity is defined to include acts or omissions
committed, threatened, attempted or counselled, inside or outside of Canada, in
whole or in part, for political, religious or ideological purposes, causes or
objectives. In addition, to fall within this
part of the definition, the activity must be committed with the intention of
intimidating the public or compelling a person, government or organization to
act a certain way, as well as with the intention to cause one of a number of
specified serious types of harm. For
greater certainty, saving provisions exclude certain conduct from the ambit of
the definition, namely activities related to lawful armed conflict under
international law, advocacy, protest, dissent or work stoppage, and the
expression of religious, political or ideological belief that does not intend
to intimidate or cause harm.
The definition of “terrorist
activity” found in the Act forms the foundation for the new terrorist offences
introduced into the Criminal Code, as
each of the terrorist offences either
incorporates the definition of terrorist activity or the definition of
“terrorist group,” which includes reference to the term terrorist activity. Accordingly, the scope of the definition of
terrorist activity has a bearing on how and when charges are laid for these
offences and how prosecutions are conducted.
Concerns Regarding the Motivation Clause
Certain witnesses
appearing before the Committee criticized various aspects of the definition of
terrorist activity, with some arguing that it was too broad and could encompass
legitimate political dissent, others suggesting that it was too complex and
difficult to understand, and others recommending that it be done away with
altogether and that the government rely on pre-existing Criminal Code
provisions to counteract the
terrorist threat. However, by far the
most prevalent criticism related to the motivation clause and the unfair effect
it could have on the investigation and prosecution of individuals for alleged
terrorist acts.
![Text Box: “As we understand it, that phraseology was put into the [A]ct by the draftspersons to limit the scope of it. … It imposes a higher standard from an investigative standpoint. When you begin the process of investigation leading to prosecution, you have a higher threshold of proof because you have to address one of those elements [of motive] in order to trigger the responses.”
(Vince Westwick, Canadian Association of Chiefs of Police)](rep02feb07-e_files/image013.gif)
Many witnesses were concerned that the definition of terrorist activity,
as written, requires police and security agencies to investigate, and for the
Crown to prove, that a terrorist act had been committed for a political,
religious or ideological purpose, objective or cause. While the Minister of Justice and Attorney
General, Department of Justice officials and law enforcement officials testified that the introduction of a motivation requirement into the
definition of terrorist activity actually makes it more difficult for
prosecutors to satisfy the burden of proof in terrorist offence prosecutions
because, in addition to proving act and intent, the prosecutor must also establish
motive. However, numerous witnesses were
of the opinion that the motivation clause requires or encourages police and
security agencies to inquire into the personal beliefs of those under
investigation or to engage in racial and religious profiling.
The Committee also notes the U.N. Human Rights
Committee’s concluding observations in its review of Canada’s compliance with the International Covenant on Civil and
Political Rights. In its April 2006
report, the U.N. Committee stated:
The Committee, while noting the existence of a social protest
protection clause, expresses concern about the wide definition of terrorism
under the Anti-Terrorism Act. The State party should adopt a more precise
definition of terrorist offences, so as to ensure that individuals will not be
targeted on political, religious or ideological grounds, in connection with
measures of prevention, investigation and detention.
OurCommittee
believes that a definition of terrorist activity is necessary and supports the
preventive aspects of the Anti-terrorism
Act that flow from this definition. Offences relating to financing,
facilitating, instructing and concealing terrorist activity are essential
elements in disrupting potential attacks against our society. We are also of the view that the current
definition of terrorist activity, while complex, contains adequate fault
requirements and is sufficiently specific in its description of what
constitutes terrorist activity. However,
we believe the motivation clause in the second part of the definition to be
problematic. We concur with witnesses
that requiring the police to examine motive, and prosecutors to prove that a
terrorist act or omission has been undertaken for a political, religious or
ideological purpose objective or cause, may unwittingly target some segments of
our population and encourage racial and religious profiling during
investigations. Accordingly, the
Committee believes that the motivation clause should be removed from the
definition of terrorist activity.
RECOMMENDATION 1
That clause 83.01(1)(b)(i)(A) of the Criminal
Code, which requires an act or omission to be “... committed in whole or in
part for a political, religious or ideological purpose, objective or cause,” be
removed from the definition of “terrorist activity” found in section 83.01(1).
The
Committee notes that the Ontario Superior Court of Justice also recently concluded
that the motivation clause in the second part of the definition of terrorist activity
should be removed. Mohammed Khawaja, the
first person charged with terrorist offences introduced by the Anti-terrorism Act, challenged the
constitutionality of both the definition of terrorist activity and the
terrorist offences with which he was charged before that court. While the Court decided that the terrorist offences
with which he was charged withstood scrutiny under the Canadian Charter of Rights and Freedoms and that the definition
also withstood Charter scrutiny in
many respects, it found that the motivation clause violated the rights to
freedom of religion, expression and association guaranteed under the Charter. The Court accordingly severed the motivation
clause from the rest of the definition of terrorist activity.
The Dilemma of Defining Terrorism
While the definition of terrorist
activity in the Criminal Code is
similar, in some respects, to definitions of terrorism enacted in other
jurisdictions, such as the United Kingdom,
Australia, France and the United States, it is also different
from these definitions, being broader than them in some respects and narrower
in others. Public Safety and Emergency
Preparedness Canada and Justice Canada
officials have described the Criminal
Code definition as “specifically tailored to our domestic needs.”
![Text Box: “The experience in the previous 12 [U.N.] conventions is that one cannot arrive at a mutually satisfactory definition because of the difficult issue of dealing with what are often described as ‘freedom fighters.’ It is the question of the moral equivalency of terrorism versus armed conflict.”
(Keith Morrill, Foreign Affairs)](rep02feb07-e_files/image014.gif)
Having
said this, Canada
has also been actively participating
in United Nations discussions around the notion of creating an international
definition of terrorism and a comprehensive anti-terrorism convention. Canadian representatives have been supportive
of a simpler definition of terrorism on an international level than the one
found in the Criminal Code, one which
would prohibit causing or threats of causing death or serious injury to persons
and serious damage to public or private property, with the intent to compel a
person, an international organization or a state to do or refrain from doing
something. The Minister of Public Safety
and the Minister of Justice and Attorney General have stated that Canada
has supported a simpler definition during United Nations negotiations on this
topic as a result of the need to establish a common basis for action through
broad consensus at the international level. Canada’s approach before the United
Nations reflects both the difficulty in defining terrorism generally, as well
as the difficulty in achieving accord on this subject internationally. The United Nations has been struggling for
years to develop consensus regarding an international definition of terrorism, yet
despite the increased efforts which have been made, no agreement has yet been
reached.
![Text Box: “It is obvious that in the end we will need, as the Secretary General [of the U.N.] has said, a general definition of terrorism in order to avoid this debate about freedom fighters and many issues and aspects of international terrorism.”
(Jean-Paul Laborde, United Nations Office on Drugs and Crime)](rep02feb07-e_files/image015.gif)
Our Committee recognizes
the importance of having a domestic definition of terrorism that reflects Canada’s
specific needs, concerns and experiences with terrorism, as well as the
importance of developing an internationally acceptable definition of
terrorism. We believe that the
government should continue to participate
in efforts to create an internationally acceptable definition and encourage the
government to work towards achieving consensus in this regard. In the event that international consensus is
achieved, we are also of the view that Canada should tailor the definition
of terrorist activity in the Criminal
Code to reflect the definition of terrorism or terrorist activity adopted
internationally.
One Definition of Terrorism in the Canadian Context
Another point made by witnesses who
appeared before the Committee is that Canada currently has two definitions of
terrorism, the one outlined above, which is used in criminal matters, and the
other developed by case law and used in immigration matters. The definition of terrorism used in
immigration matters is the one found in the International
Convention for the Suppression of the Financing of Terrorism, where terrorism
is defined as any “act intended to cause death or serious bodily injury to a
civilian, or to any other person not taking an active part in the hostilities
in a situation of armed conflict, when the purpose of such act, by its nature
or context, is to intimidate a population, or to compel a government or an
international organization to do or abstain from doing any act.”
![Text Box: “We strongly recommend the definition … which comes from a United Nations convention … [T]hat definition has been utilized within the context of immigration law. Having multiple definitions of ‘terrorism’ at work in Canadian law at best creates confusion or uncertainty.”
(Greg P. DelBigio, Canadian Bar Association)](rep02feb07-e_files/image016.gif)
This definition is much
narrower in scope and less complex than the definition of “terrorist activity”
in the Criminal Code. Some witnesses suggested, during Committee
hearings, that the simpler definition used in the immigration context should
also be used in the criminal context.
However, others pointed out that the simpler definition fails to account
for property damage. The Committee is satisfied that the definition of
“terrorist activity” in the Criminal
Code, absent the motivation clause, is sufficiently precise and
specifically targets the types of criminal activity the government wishes to
prohibit. However, we are troubled by
the fact that there are currently two definitions of terrorism operating in the
Canadian legal context. We are also
concerned by the possibility that, at some future date, the government may
choose to enact different definitions of terrorism in different statutes,
depending on the subject matter being treated.
This is the approach that has been taken by the United States. While this approach does have its advantages,
in that multiple definitions of terrorism allow the definitions to be tailored
to the requirements of the subject matter, such advantages, in our view, are
outweighed by the fact that multiple definitions come with a level of confusion
about which definition applies and how it is interpreted in accordance with the
Charter. Citizens must be in a position to know
precisely what conduct comes with criminal, immigration or other consequences. Different definitions serve to make what
constitutes terrorism unclear.
RECOMMENDATION 2
That the government legislate a single
definition of terrorism for federal purposes.
RACIAL, RELIGIOUS AND ETHNIC PROFILING
The Committee was moved by testimony on the part of many
witnesses indicating that they have been disproportionately affected by the
provisions of the Anti-terrorism Act
and national security and law enforcement practices generally. One of our primary concerns during the course
of our study was the sense of marginalization and vulnerability felt by members
of the Canadian Arab and Muslim communities, and certain other immigrant or
visible minority groups, since 11 September 2001. The Committee believes that this should be a
primary concern of Parliament and the government as well. It must be clear that the targeting or
profiling of individuals for scrutiny or investigation by government officials in
the fight against terrorism solely by reason of their membership in a
particular racial, religious or ethnic group is not an authorized practice
under the Anti-terrorism Act.
Political, Religious or
Ideological Objectives
When the Special Senate Committee on the Subject Matter
of Bill C-36 was conducting its pre-study of the legislation in 2001, concern
was expressed by witnesses that the Anti-terrorism
Act would indirectly encourage profiling because the definition of
“terrorist activity” requires terrorist acts to be motivated by a political,
religious or ideological purpose. In the
preceding section of this Report, we recommended that the motive requirement be
removed from the definition of terrorist activity in the Criminal Code. Among other
things, our intention is to reduce the likelihood of unfair targeting or
prosecution of individuals based solely on their religion, or other irrelevant
characteristics.
At this time, we also note that section 89 of the Anti-terrorism Act amended the
definition of “threats to the security of Canada” set out in section 2 of the
Canadian Security and Intelligence
Service Act (CSIS Act), which guides CSIS in its investigations and
collection of information. Paragraph (c) of the definition now states that a
threat to the security of Canada includes “activities within or relating to
Canada directed toward or in support of the threat or use of acts of serious
violence against persons or property for the purpose of achieving a political,
religious or ideological objective within Canada or a foreign state.” Before 2001, reference was made to a
political objective only. For similar
reasons to those we cited in favour of removing the reference to a political,
religious or ideological purpose, objective or cause from the definition of
“terrorist activity” in the Criminal Code,
we believe that the reference to a political, religious or ideological
objective should be removed from the definition of “threats to the security of
Canada” in the CSIS Act.
The Committee recognizes that the definitions in the statutes
are for different purposes. Unlike in
the context of the Criminal Code, the
definition in the CSIS Act is not for the purpose of attributing motive in the
commission of an offence or to assign criminal liability. Rather, it is to set out, as well as limit,
the capacity of CSIS to investigate certain threats. The reference to a political, religious or
ideological objective cannot simply be removed from the CSIS Act, as it would
render CSIS responsible for investigating any
activities involving the threat or use of acts of violence against persons or
property, most of which are more properly the responsibility of the
police. Still, we believe that paragraph
(c) of the definition of “threats to
the security of Canada” can be amended to indicate the types of threats that CSIS
is to investigate without referring to a political, religious or ideological
objective.
For example, the definition might refer to activities
involving serious violence for the purpose of terrorism, intimidating the
public and/or compelling the Canadian government or a foreign state to act in a
certain way. While the purposes of the Criminal Code and CSIS Act are different
and the provisions of each statute must be tailored accordingly, the definition
of terrorist activity in the Criminal
Code might provide guidance on how to amend the definition of threats to
security under the CSIS Act. The
drafting goal would be to replace even the pre-existing reference to a
political objective with wording to ensure that security and intelligence
agencies do not target individuals for improper reasons, and to prevent
perceptions of such profiling. If it is
no longer necessary to consider the political, religious or ideological beliefs
of a suspected terrorist or person of interest, CSIS and other agencies can
better focus on the specific conduct, pattern of behavior, and other relevant
information in respect of an individual.
RECOMMENDATION 3
That
paragraph (c) of the definition of
“threats to the security of Canada” in section 2 of the Canadian Security and Intelligence Service Act be amended by
removing the reference to a political, religious or ideological objective and
replacing it with alternate wording to indicate the type of violent activities against
person or property that constitute threats to the security of Canada.
At this point, the Committee wishes to make a clear
distinction. Targeting individuals, or
selecting them for investigation, solely on the basis of their race, national
or ethnic origin, colour or religion, which we will call “racial profiling” for
ease of reference, is not only inappropriate and unacceptable, but also
violates the equality provisions of section 15 of the Canadian Charter of Rights and Freedoms. Subjecting an individual to prosecution on
the basis of religious, political or ideological motive also constitutes an
infringement of certain fundamental freedoms guaranteed in section 2 of the Charter,
including those of religion, thought, belief, opinion, expression and
association. On the other hand, targeting a person
belonging to a particular group or community on the basis of other and relevant characteristics or information is appropriate and
acceptable. The Committee does not wish
to place a chill on investigations of terrorism, and acknowledges the very
legitimate work of security, intelligence and enforcement agencies who suspect
that an individual may be involved in terrorist activity based on his or her
comportment, travel history, written communications, association with known or
suspected terrorists, and the like.
Principles of Non-Discrimination
In 2001, the Special Senate Committee on Bill C-36 urged
the government to place a high priority on ensuring that officials, such as law
enforcement and security agencies, the judiciary, Crown prosecutors and
correctional staff, engage in ongoing training sensitive to the ethnic
diversity of Canadian communities. It
also suggested that the government create a mechanism to enable representatives
of minority groups to share views of methods best suited to achieving the
necessary level of cultural and ethnic sensitivity in balancing the new anti-terrorism
laws on a non-discriminatory basis. As
part of our discussion and recommendations below, we in many ways follow up on
the views of the Special Committee in 2001.
![Text Box: “[A]nti-terrorism policy [should] not be administered in a manner inconsistent with the Canadian Charter.”
(B’nai Brith Canada)](rep02feb07-e_files/image018.gif)
We would like to
emphasize that the provisions enacted by the Anti-terrorism Act, and indeed all legislation, must be interpreted
in light of the Canadian Charter of
Rights and Freedoms and the Canadian
Human Rights Act, both of which already prohibit discrimination in the application
of Canadian laws. We believe that the
protections guaranteed by the Charter
and Canadian Human Rights Act warrant
particular emphasis where certain measures, investigative techniques, and
offence provisions, such as those that exist in the context of Canada’s
national security and anti-terrorism framework, risk being applied
disproportionately to certain Canadians.
Even in extraordinary
times and in response to extraordinary threats, the normal principles of
non-discrimination must continue to be followed.
Policies in Place to
Combat Racial Profiling
With respect to racial profiling, and more specifically
its avoidance, the Committee was told by the federal government that racial
profiling does not occur and that discriminatory practices, including the
targeting of minorities, have no place in law enforcement and security and
intelligence work. However, we did note
an evolution in the views of police, security and intelligence agencies as our
work progressed and community members were given the opportunity to express the
unease and anxiety they were feeling. By
the end of our study, government representatives acknowledged that, despite the
fact that racial profiling is not officially condoned, certain groups
nonetheless feel that they have been the targets of racial profiling. They also recognized that policies and
practices against racial profiling require monitoring, enforcement and ongoing
training.
All of the representatives from law enforcement and
national security agencies who testified before the Committee indicated that
their organizations now provide some type of cultural sensitivity and/or
diversity training for their officers, in order to educate them on how to deal
appropriately with individuals from different ethnic groups. By way of example, the Minister of Public
Safety and Minister of Justice and Attorney General pointed to the Bias-free
Policing Strategy implemented by the RCMP in response to the Action Plan
Against Racism. Representatives from
national security organizations also indicated that they were beginning to engage
in community outreach activities to make communities that have felt singled out
more aware of their work and what they do, and were actively recruiting more staff
from Canada’s
diverse communities.
Although efforts have been made on the part of the
government to ensure that racial profiling does not take place, many witnesses
who appeared before the Committee as representatives of community organizations
or to address civil liberties matters asserted that racial profiling had
occurred and was still occurring. They
also explained that the perception of certain communities that they are being
targeted or singled out for increased scrutiny and
investigation is a strong
one, and that a culture of fear has been created, particularly among Canada’s
Muslim and Arab groups. Several
witnesses also claimed that members of their communities had been intimidated
and harassed by police and security officials.
It is clear to the Committee that some degree of racial profiling takes
place in Canada and that measures must be strengthened, not only to ensure that
racial profiling is not practiced, but to improve relations generally between
security and law enforcement agencies, on one hand, and Arab, Muslim and other
minority groups, on the other.
![Text Box: “[I]ntelligence, security and police services personnel should be provided with appropriate educational and training programs to promote enforcement of Canadian anti-terrorism laws with appropriate sensitivity to civil liberties and personal and community sensibilities.”
(Ed Morgan, Canadian Jewish Congress)](rep02feb07-e_files/image022.gif)
In the September 2006 report of the Commission of Inquiry into the Actions of Canadian Officials in
relation to Maher Arar, Justice O’Connor stated in his Recommendations 19 and
20 that Canadian agencies involved in national security and anti-terrorism
investigations, particularly the RCMP, CSIS and the Canada Border Services
Agency, should have clear policies against racial profiling and expand the
training given to staff on issues relating to it. With respect to training, we would add that
police and other officials should also be made more aware of the diversity of
cultural practices and religious observances in Canada. A greater degree of familiarity must be
fostered between minority communities and national security agencies, not just
so police and security officials are more understanding of community concerns
but so community members also fulfill a responsibility to understand the laws
that affect them, how Canada’s national security regime functions, and the
policies and practices of police and prosecutors.
![Text Box: “[E]thnic and racial profiling would not accomplish the goal of enhanced security. … Members of the community that are targeted and the larger community will be alienated and unlikely to cooperate in efforts to root out terrorism.”
(National Organization of Immigrant and Visible Minority Women of Canada)
“I believe that racial profiling is a gift to terrorists. Once they know the profile you are looking for, they will send people whom you would never racially profile. You will be following every innocent person, and the one that you want will get through.”
(Imam Salam Elmenyawi, Muslim Council of Montreal)](rep02feb07-e_files/image023.gif)
In the Committee’s view, security and law enforcement
agencies must understand that the targeting of individuals based on race and
ethnicity does not enhance Canada’s
anti-terrorism goals. Rather, it leads
to the deterioration of government-community relationships, and deprives
national security agencies of important intelligence. If certain communities believe that they are
unfairly targeted and therefore distrust the police or CSIS, they will be less
likely to share information regarding actual terrorism-related activity. It was also pointed out to the Committee that
if national security or law enforcement agencies focus their attention and
resources on individuals with particular characteristics, they may fail to stop
terrorist activity on the part of individuals who do not have those
characteristics.
RECOMMENDATION 4
That, in addition to implementing clear policies against racial
profiling, all government departments and agencies involved in matters of
national security and anti-terrorism engage in sufficient monitoring,
enforcement and training to ensure that racial profiling does not occur, the
cultural practices of Canada’s diverse communities are understood, and
relations with communities are improved generally.
Resolving
Complaints and Improving Public Awareness
Despite the existence of
public complaints mechanisms, including those through the Commission for Public
Complaints against the RCMP, the Director of CSIS, and the Security
Intelligence Review Committee, the Committee was told that many members of
ethnic communities do not complain about their treatment at the hands of police
and security officers because they are either unaware that complaint mechanisms
exist or are too afraid to come forward to use them. We believe that a campaign to increase the
public’s awareness and understanding of the available complaints mechanisms
will alleviate some of the fear and hesitation experienced by individuals who
have concerns regarding racial profiling or any other aspect of police and
security practices.
![Text Box: “[T]here may be reluctance on the part of such communities to exercise both their rights and their responsibilities as citizens of this country. In terms of their rights, this means taking advantage of established recourse mechanisms in the event that they feel they have experienced mistreatment by intelligence or security agencies. It also means discharging the responsibility as citizens to help those services in their work to protect all Canadians.”
(Jim Judd, Canadian Security Intelligence Service)](rep02feb07-e_files/image024.gif)
In particular, we believe
that the public should clearly know that the Canadian Human Rights Commission
and the Canadian Human Rights Tribunal have jurisdiction in relation to any
complaint regarding discrimination by a federal department or agency. In fact, the Commission released the
conclusions of a research project in October 2006 on the extent to which human
rights concerns are prevalent in the exercise of various powers relating to
national security. We also note that concerns brought to the
attention of the Commission may lead to results. For example, the Commission signed a
memorandum of understanding with the Canada Border Services Agency in December
2005, by which the latter agreed to a more proactive and systemic approach to
reduce discrimination in relation to members of the public.
In short, Canadians and, in particular, Canada’s
minority communities must be confident that, particularly when extraordinary
national security measures are available to intelligence and law enforcement
agencies, there are mechanisms in place to ensure the equality protections to
which all individuals are entitled. As a means of combating racial profiling,
the Committee urges an improved RCMP complaints mechanism, as recommended by
Justice O’Connor, in December 2006, following the Commission of Inquiry into
the Actions of Canadian Officials in relation to Maher Arar. Finally, we hope that the
standing parliamentary committee that we recommend in the last section of our
Report would, if created, function to assure the public that discrimination is
not tolerated in Canada’s
anti-terrorism regime. The committee
would not only examine the content of anti-terrorism legislation, but also how
those laws are being applied.
RECOMMENDATION 5
That the
government launch an information program and produce materials in various
languages to increase public awareness of: the proper role and powers of police
and national security agencies in the fight against terrorism; the rights of
individuals, particularly on questioning or arrest; and the mechanisms that are
available to address complaints, particularly those of racial profiling.
Cross-Cultural Roundtable on Security
![Text Box: “[The Roundtable] will facilitate a broad exchange of information between the government and diverse communities on the impact of national security issues. It will serve to better inform policy-makers by providing insights on how national security measures may impact Canada’s diverse communities, and it will promote the protection of civil order, mutual respect and common understanding.”
(Doug Breithaupt, Department of Justice)](rep02feb07-e_files/image027.gif)
In accordance with the 2001 Special
Committee’s recommendation that the government create a mechanism for
consultation with representatives of minority groups, the government announced
in April 2004 that it would be establishing a Cross-Cultural Roundtable on
Security (CRS) to engage in a long-term dialogue on matters related to national
security and how these matters affect Canada’s diverse communities. On 8 February 2005, all 15 members of the CRS
were appointed by the government from a pool of over 230 nominees, with one
member being replaced in November 2006. Since
its establishment, the CRS has held six meetings. The Ministers of Public Safety and Justice are
required to meet with the Roundtable at least once per year, and the Minister
of State for Multiculturalism is also to be invited.
We would like to first remind the government of the
primary objective behind community consultation in matters of national security
and anti-terrorism. It is not simply to
solicit the views of most or all ethnic and cultural groups in Canada. It is to understand and correct the
disproportionate impact that anti-terrorism laws, policies and practices have
on those communities most affected by them.
The Committee accordingly believes that the mandate of the CRS should be
more clearly defined and focused. While
obtaining input from all of Canada’s
diverse communities remains desirable, the objectives of the CRS should more
specifically include obtaining insights from those groups most
disproportionately affected by the anti-terrorism framework, whatever groups
those might be at a given time, as a result of changing circumstances. The point is that national security and law
enforcement officials should be sensitized by, and the government should learn
from, the experiences of those communities or individuals who have actually
been negatively affected by certain investigative techniques, the provisions on
terrorist financing or the listing of entities, and the like. By listening to those groups most affected,
the government will be in a better position to respond by making the
appropriate changes to laws, policies and practices. There should be proper communication
strategies and a clear channel from community input to government action.
Representatives of some of
the community groups who appeared before the Committee stated that the CRS
lacks legitimacy in the eyes of the Arab and Muslim communities because none of
its members have been selected from the largest Arab and Muslim populations in Canada, which are in Montreal
and Toronto. While the Committee recognizes that not every
region, city or community can be represented on a roundtable that has a maximum
membership of 15, and that all minority groups in Canada deserve a voice, we do
remind the government to be sensitive to the need for balanced representation when
obtaining insights on how national security measures affect
those communities left most vulnerable as a result of the enactment of the Anti-terrorism Act. Balanced representation also consists of a
diversity of spoken languages, for example those spoken by Canada’s main Arab and Muslim
communities, whether French, English or the language of their country of
origin. If the government believes that
it is unable to accommodate all of the groups significantly affected by the national
security framework, we see no reason why membership on the Roundtable cannot be
greater than 15. It is important that
the composition of the CRS reflect the objectives it is trying to achieve.
To further legitimize the CRS in the
eyes of minority groups, the Committee suggests that it be detached from the
Department of Public Safety and Emergency Preparedness, so that it is more
independent, clearly sets its own agenda and priorities, and speaks for
communities rather than the government. The
CRS should be ensured permanent status so that it will not be discontinued as a
result of a decision on the part of a particular government or department. Moreover, while we note that three meetings
of the CRS have taken place in each of 2005 and 2006, and that its terms of
reference currently preclude more than four meetings per year, we believe
consideration 
should
be given to a greater number of meetings so that Canada’s communities have more
opportunities to voice their concerns. A
greater number of meetings, which may also require a greater budget, will
enable the Roundtable to meet in more locations throughout Canada, where those groups and
individuals affected by anti-terrorism laws and policies reside. In the end, we leave the frequency of
meetings and other procedural matters to be decided by the CRS itself, but we
want Canadian communities to know that the Roundtable is fully able to receive
and communicate their feedback to the government. While we recognize that the CRS is a limited
solution in response to issues such as racial profiling, it should be rendered
as effective a mechanism as possible.
RECOMMENDATION 6
That the government strengthen the ability of the Cross-Cultural Roundtable on Security to effect
change in matters relating to national security and anti-terrorism by giving it
a more focused mandate, ensuring more balanced representation, detaching it from
the Department of Public Safety and Emergency Preparedness and increasing its
budget, all for the purpose of obtaining input from those communities most
affected by anti-terrorism laws, policies and practices.
PROCEDURAL FAIRNESS: THE NEED FOR A SPECIAL ADVOCATE
An overriding concern on the part of witnesses who
testified before the Committee related to a perceived lack of procedural
fairness in circumstances where an individual is not able to obtain full disclosure of information,
despite the serious consequences that may result from the proceedings. Witnesses drew the Committee’s attention to several
situations where individuals may be denied access to classified or confidential
information, for reasons based on national defence, national security,
international relations or the safety of any person, and therefore not be in a
position to fully respond to the allegations and arguments against them. While each of these proceedings is referenced
again in later sections of this Report, the Committee considered it important
to group them together at the outset in order to discuss an overarching
theme: the need for a special advocate
to represent the interests of the affected party, as well as the public
interest in disclosure, where information is withheld by the government.
When entities or
individuals are not able to have complete access to evidence that is relevant
to them, their right to make full answer and defence is significantly
hindered. While the Committee recognizes
that information must sometimes be withheld from a party where national
security is at stake, it believes that the procedural disadvantages should be
reduced through the appointment of a special advocate who would test the
government’s case. This would provide a
more appropriate balance between national security interests and the rights of
individuals to a fair proceeding.
The Committee
accordingly believes that the assistance of a special advocate is necessary in
at least five contexts: judicial review
of a decision to list a terrorist entity under the Criminal Code;
judicial consideration of a certificate having the effect of denying or revoking
charitable status under the Charities
Registration (Security Information) Act (CRSIA); applications under the Canada Evidence Act (CEA) with respect
to the disclosure of information; applications under the CEA to vary or cancel
a certificate issued by the Attorney General of Canada prohibiting the disclosure
of information; and judicial consideration of a security certificate under the Immigration and Refugee Protection Act (IRPA).
The Need for a Special Advocate
![Text Box: “[O]ur concern stems from the fact that the evidence used to determine whether a person or organization ought to be listed consists of untested intelligence information, including information obtained from foreign governments and their security agencies.”
(Canadian Muslim Lawyers Association)](rep02feb07-e_files/image030.gif)
The need for a special
advocate to respond to the government’s confidential information in proceedings
to review the listing of a terrorist entity or the denial or revocation of
charitable status is important due to the serious consequences resulting from
these executive decisions. While being
listed as a terrorist entity under the Criminal
Code does not itself constitute a criminal offence, individuals associating
with the listed entity may be subject to prosecution for a terrorist offence,
crimes relating to the financing of terrorism, and seizure and forfeiture of
property. A denial or revocation of
charitable status under the CRSIA has significant financial repercussions.
![Text Box: “[A]n advocate of some sort [should] be appointed to protect the interest of an accused in a secret hearing … [T]oo frequently the information that is presented by a party may be incomplete or may present only one side of the story. In the absence of complete disclosure and an opportunity for testing, there are risks. Some form of advocate may minimize those risks.”
(Greg P. DelBigio, Canadian Bar Association)](rep02feb07-e_files/image031.gif)
With respect to the CEA, witnesses who appeared before
the Committee expressed serious concerns about the fairness of withholding
information from parties to administrative or criminal proceedings. Where the Attorney General issues a
non-disclosure certificate, or a judge decides to provide only part or a
summary of relevant information to a party, the ability of the party to make
full answer or defence, or to argue that the information should be disclosed,
is severely impeded.
![Text Box: “[The special advocate’s task during security certificate proceedings] would in fact be to argue for disclosure of information in all matters as well as argue for non-deportation based on the information over which privilege is claimed.”
(British Columbia Civil Liberties Association)](rep02feb07-e_files/image032.gif)
The provisions governing
the review of a security certificate proved to be the most contentious during
the Committee’s hearings. While the IRPA
instructs the judge to deal with all matters informally and as expeditiously as
is consistent with fairness and natural justice, witnesses were alarmed that
crucial information may nonetheless be withheld from the permanent resident or
foreign national, as well as his or her counsel. The need for a special advocate is particularly
important during the security certificate process, given that no appeal or
subsequent review is available and the consequences of the process could be
serious, namely indefinite detention or deportation to torture. There is also a relatively low standard of
review, in that the judge is not called upon to determine whether the
allegations against the individual are true, but only whether the certificate
is “reasonable.”
The Committee recognizes
that there are current legislative safeguards that ensure some degree of
procedural fairness when individuals are not able to obtain access to
information that relates to them. For
example, affected parties are entitled to receive a summary of the information
relevant to their case. However, the
fact that certain information may be omitted from the summary, yet still be
considered by the judge, demonstrates that additional safeguards are
necessary. Without compromising national
security interests, the availability of a special advocate would ensure a
greater degree of procedural fairness than currently exists under the Anti-terrorism Act and related
legislation.
Finally, the Committee notes the United Nations Human
Rights Committee’s comments regarding non-disclosure of information during
criminal or other proceedings in its review of Canada’s compliance with the International Covenant on Civil and
Political Rights. In a report issued in
April 2006, the U.N. Committee expressed concern regarding the amendments
to the CEA introduced by the Anti‑Terrorism
Act, stating that they do not fully abide by the requirements of due
process set out in article 14 of the Covenant. The U.N. Committee stated that Canada has an obligation “to guarantee
the right of all persons to a fair trial, and in particular, to ensure that
individuals cannot be condemned on the basis of evidence to which they, or
those representing them, do not have full access.” Additionally, the U.N. Committee cautioned
against invoking exceptional circumstances as a justification for deviating
from the fundamental principles of a fair trial.
We believe that the foregoing comments in favour of
greater procedural fairness under the CEA apply equally to proceedings to
review a decision to list a terrorist entity under the Criminal Code, to sign a certificate that has the effect of denying
or revoking charitable status under the CRSIA, and to issue a
security certificate under the IRPA. To
reduce the unfairness to parties who are denied access to information used
against them, there should at least be a special advocate who would test the
evidence on their behalf, as well as make arguments to persuade the court that
information, which the government claims must be kept confidential in the
interest of national security, should in fact be disclosed to the affected
party.
Role and Responsibility of
a Special Advocate
A special advocate having
access to classified or confidential information would not be able to disclose
it to the party affected by the proceedings.
As a result, the special advocate envisioned by the Committee would not directly
represent any individual or organization.
In other words, there would be no solicitor-client relationship. However, the special advocate would still
represent the interests of the affected party, to the extent possible, by arguing
in favour of the disclosure of information to the individual and ![Text Box: “[There should be] a security-cleared special advocate position to carry out the function of both challenging arguments that information should not be disclosed to the affected party and in challenging information that cannot be disclosed.”
(Jennifer Stoddart, Privacy Commissioner of Canada)](rep02feb07-e_files/image033.gif)
testing the information and evidence against him or her. Such an advocate may be viewed as representing
not only the interests of the party, but also the public interest in
disclosure, the openness of court proceedings and the integrity of national
security matters.
The special advocate
would attend in camera or ex parte hearings in the absence of the
affected party and his or her counsel.
Being privy to confidential information, the advocate would challenge
the Crown or Attorney General’s arguments against disclosure, or the facts
alleged against an individual. The
Committee does not believe that it is sufficient for the court alone to test
the validity or reliability of the confidential information. The Committee is aware of at least one judge
who has found it problematic to hear only one party, review materials produced
by only one party, and yet be faced with the difficult task of determining what
might be wrong with the government’s case and how witnesses ought to be
cross-examined. We also note that Justice O’Connor, during
the Commission of Inquiry into the Actions of Canadian
Officials in relation to Maher Arar, benefited from the assistance of amica curiae, or independent
counsel. Moreover, he recommended, in
his December 2006 report, that a new agency to review complaints regarding the
national security functions of the RCMP should have discretion to appoint
security-cleared counsel, independent of the RCMP, to test the need for
confidentiality and to test information that may not be disclosed to the
complainant or the public.
![Text Box: “[W]here information is being processed in camera and people who are affected do not have a chance to see it, at the very least, there should be a secured public advocate who can look at all the material and attempt to represent that person’s interests at in camera sessions.”
(Alan Borovoy, Canadian Civil Liberties Association)](rep02feb07-e_files/image034.gif)
Due to the obvious need for confidentiality in matters of national
security, the appointment of a special advocate is the best option available to
protect the interests of a party who is denied access to certain
information. While the special advocate
would not be the party’s lawyer in the usual solicitor-client sense, and therefore
would not be in a position to develop legal strategies that are fully
transparent to the party, he or she would nonetheless communicate with the
party and his or her counsel. The
objective would be to ensure that the process during in camera hearings has been or will be as fair and just as
possible. Given the obligation to keep
confidential information secret, the appointment of a special advocate would
not completely guarantee procedural fairness, but would significantly improve
the current state of affairs.
The Committee considered
the extent to which a special advocate should be able to interact with the
affected party, or his or her counsel, after
receiving confidential information. The
inability of the special advocate to communicate with the affected party or his
or her counsel after attending in camera
hearings or receiving confidential information has been criticized in the
United Kingdom, where special advocates are generally only able to communicate
beforehand (or in very limited situations afterwards, with the approval of the
court).
In our view, if the special
advocate is able to communicate with the party affected by the proceedings only
before receiving the confidential
information, his or her role is rendered much less effective, as he or she is
unable to meaningfully test the reliability of a specific piece of classified
or sensitive information, or the validity of keeping it confidential. If the special advocate were to have access
to the party and his or her counsel after
obtaining confidential information, we are confident that the advocate would be
able to maintain the secrecy of the evidence and not disclose it. That said, appropriate measures or protocols
would need to be put in place to ensure that the affected party does not learn the
confidential information.
In addition to being
sworn to secrecy, and being subject to offences under the Security of Information Act, a special advocate should follow clear
guidelines when meeting with the affected party or his or her counsel. For example, he or she might communicate with
the client in the company of another person, likewise sworn to secrecy, so that
there can be close monitoring of what is discussed and inadvertent errors of
disclosure prevented. In other words,
the limited ability of the advocate to communicate information to the party
must be acknowledged and maintained. The
Committee believes that the government is in a position to establish
appropriate safeguards to ensure that sensitive information relating to matters
of national security is kept secret. The
underlying objective would be to permit communication between the special
advocate and the affected party, in the interest of procedural fairness, while
still maintaining the credibility and integrity of matters involving national
security confidentiality.
Selection of a Special
Advocate
The Committee considered
how a special advocate in proceedings relating to anti-terrorism and national
security should be selected. The first
option is for a party’s existing counsel to obtain a security clearance in order
to gain access to classified, secret or otherwise sensitive information. This, however, is a time-consuming process,
would require a waiver of the solicitor’s obligation to disclose all
information to the client, and would raise concerns and delay if the counsel
did not successfully obtain the clearance.
This approach also means that there could be an indefinite number of
individuals gaining access to classified information, rather than a limited
number who develop an expertise and assist in several matters.
![Text Box: “[T]he court could provide the individual with a roster of pre-screened counsel who could function as special advocates. The individual could select a special advocate from this roster.”
(Federation of Law Societies of Canada)](rep02feb07-e_files/image036.gif)
The more preferable approach is therefore to have a roster of
security-cleared lawyers, funded by the government, who could act as special
advocates, regardless of whether an affected party already has his or her own
counsel. Without discussing in detail
the appropriate selection process or precise qualifications, the Committee
believes that these lawyers should have the necessary expertise to represent
the interests of an affected party in any of the various types of proceedings
where the party is denied access to information in the interest of national
security. The pool of special advocates
should be from among the private bar, so as to avoid any apprehension of bias
in relation to the government. Barring
any conflict of interest, the affected party should be entitled to select the
special advocate from the list of pre-screened counsel. Finally, depending on the number of
anticipated cases where the appointment of a special advocate would be required
in order to address information withheld by the government, there should be an
appropriate number of individuals on the roster.
Proceedings Requiring a Special Advocate
As already conveyed, there are at
least five anti-terrorism-related matters that the Committee believes require
the assistance of a special advocate in order to rebalance the proceedings in
favour of the disadvantaged party who does not have full access to
information. These are now reviewed in
greater detail. First,
the Committee believes that a special advocate should be appointed to represent
the interests of the affected entity during judicial review, under section 83.05 the Criminal Code, of a decision to list a
terrorist entity. Second, a special
advocate having access to confidential information held by the government should
be appointed to represent the interests of the affected organization during
judicial consideration,under section 5 of the CRSIA,
of
a decision to sign a certificate that has the effect of denying or revoking charitable
status.
Section 83.05 of the Criminal Code allows an organization or
individual to be listed as a terrorist entity on the basis of reasonable
grounds that it has knowingly been involved in a terrorist activity, or is
knowingly assisting another terrorist group.
A listed entity may apply to the Federal Court for judicial review of
the decision. Under the CRSIA, an
organization may have its charitable status under the Income Tax Act denied or revoked on the basis of a certificate
stating that there are reasonable grounds to believe that it has made, makes or
will make resources available, either directly or indirectly, to a terrorist
entity or in support of terrorist activities.
The certificate is automatically referred to the Federal Court for consideration
under section 5 of the CRSIA.
On review of the listing
of a terrorist entity, or a certificate that has the effect of denying or revoking
charitable status, the judge examines, in private, the information on which the
decision was based, such as security or criminal intelligence reports. Additional evidence may be heard in the
absence of the entity, organization or its counsel, if the government so
requests and the judge believes that disclosure would injure national security
or the safety of any person. However, the
judge is to provide the entity or organization with a summary of the
information that may not be disclosed, so that it is reasonably informed of the
reasons for the decision to list or to deny or revoke charitable status.
In both types of
proceedings, the government may make an application to the judge, in private
and in the absence of the affected party and its counsel, to admit information
obtained in confidence from foreign or international sources but to withhold
the information from the party. If the
judge believes that the information is relevant, but that disclosure would
injure national security or the safety of any person, the judge must exclude
the information from the summary of information provided to the party, but may
still consider the information when reviewing the decision under consideration. This possibility underscores the need for a
special advocate to represent the interests of the affected entity or
organization, as information used by the judge in his or her main decision may
be unavailable to the affected party.
Two
other types of matters during which a party may be unable to make full answer
and defence as a result of secret information exist in the context of the
CEA. In particular, the Committee
concludes that a special advocate should be available
to represent the interests of the affected party during applications for the
disclosure of information under section 38.04.
We also conclude that a special advocate should be appointed during applications
under section 38.131 to vary or cancel a certificate issued by the Attorney
General of Canada prohibiting the disclosure of information.
Under section 38.04 of the CEA, a
judge of the Federal Court may hear an application with respect to the
disclosure of information that has been withheld by the government in any
criminal or administrative proceeding.
The application is confidential.
Under section 38.06, the judge may or may not authorize disclosure,
depending on whether disclosure would be injurious to international relations, national
defence or national security, and whether the public interest in disclosure
outweighs the public interest in non-disclosure. The judge may authorize the disclosure, with
or without conditions, of all of the information, part of it, a summary, or a
written admission of facts.
Under
section 38.131 of the CEA, a judge of the Federal Court of Appeal may hear an
application to vary or cancel a certificate issued by the Attorney General
prohibiting the disclosure of information.
An affected individual does not have access to the information referred
to in the certificate unless disclosure is authorized by the judge. The judge is required to confirm the
certificate and the confidentiality of all information that he or she
determines relates to information obtained in confidence from a foreign entity,
or in relation to a foreign entity, national defence or national security. In both types of proceedings under the CEA, a
special advocate is necessary in order to test the government’s assertion that
information must be kept secret.
Finally,
the Committee believes that a special advocate is necessary to represent the interests of the permanent resident or foreign
national during judicial consideration of a security certificate under section
78 of the IRPA. Under section 77 of that Act, a security
certificate may be issued stating that a permanent
resident or a foreign national is inadmissible on grounds of security,
violating human or international rights, serious criminality or organized
criminality. The grounds for
inadmissibility on the basis of security include engaging in terrorism under
section 34. The certificate is then
referred to the Federal Court for a determination of its reasonableness.
During
consideration of a security certificate, the judge examines all information and
evidence in private, ensuring the confidentiality of the information on which
the security certificate is based. The judge is required to provide the affected
individual with a summary of the information that may not be disclosed, so that
he or she is reasonably informed of the circumstances giving rise to the
security certificate. However, as when a
court reviews the listing of a terrorist entity or a decision to deny
charitable status, if the judge believes certain information is relevant, but
that disclosure would injure national security or the safety of any person, the
judge must exclude the information from the summary of information, but may
still consider the information when reviewing the security certificate. Again, it is the ability of the court to
consider information that is entirely withheld from the affected party that the
Committee considers particularly problematic.
If an individual may be deprived of a specific piece of information that
the judge inevitably relies on to uphold the security certificate, there should
be a special advocate available to test that piece of evidence during the
proceedings that the individual is not entitled to attend.
While courts have thus
far upheld the security certificate process as constitutional, the process was
challenged before the Supreme Court of Canada in the context of the appeals of Mohamed
Harkat, Adil Charkaoui and Hassan Almrei in June 2006. A decision had not yet been rendered at the
time of the preparation of this Report.
However, regardless of the outcome of those appeals, the Committee
echoes comments made by certain witnesses that nothing precludes Parliament
from granting more than the minimum guarantees required by the Canadian Charter of Rights and Freedoms
to satisfy the principles of fundamental justice and due process.
The Committee notes that
the listing of a terrorist entity under the Criminal
Code is subject to subsequent ministerial review, which occurs
automatically every two years, as well as on application of a listed
entity. An organization that has been
denied charitable status or has had it revoked under the CRSIAmay apply for review if there has been
a material change in circumstances. A
decision not to authorize disclosure under section 38.06 of the CEA is subject
to appeal. However, in the Committee’s
view, the availability of a subsequent review or appeal does not compensate for
a lack of full procedural fairness during the initial process. Two, or even many, opportunities to challenge
a particular decision do not reduce the disadvantages arising from
non-disclosure if an individual remains unable to fully respond to the
information against him or her at every stage.
The Committee also points out that an appeal is not currently available
from a decision to confirm a certificate of the Attorney General prohibiting
disclosure, or to uphold a security certificate.
The Committee is also
aware that if the inability to obtain disclosure under the CEA is in the
context of criminal proceedings, the trial judge may make any order that he or
she considers appropriate in the circumstances to protect the accused’s right
to a fair trial, such as an order dismissing specified counts, or staying the
proceedings altogether. However, we note
that information may also be withheld under the CEA during administrative
proceedings, and that these remedies would not apply. More importantly, the possibility of a stay
of proceedings, or other order to ensure procedural fairness, does not entirely
alleviate concerns regarding non-disclosure if the accused is not able to fully
argue in favour of the particular order that he or she believes should be
granted. A possible remedy on the part
of the judge does not replace full procedural fairness. Further, during all of the proceedings
discussed above, a judge may receive into evidence
anything that he or she believes is reliable and appropriate, even if it would
not otherwise be admissible under Canadian law.
This departure from normal evidentiary rules demonstrates the
importance of having a special advocate who would
test the relevance and reliability of the evidence.
RECOMMENDATION 7
That in
proceedings where information is withheld from a party in the interest of
national security and he or she is therefore not in a position to make full answer and
defence, a special advocate having access to the
confidential information held by the government be appointed to represent the
party’s interests, as well as the public interest in disclosure, by challenging
the facts and allegations against the party and the government’s arguments for
non-disclosure.
RECOMMENDATION 8
That the special advocate be able to
communicate with the party affected by the proceedings, and his or her counsel,
after receiving confidential information and attending in camera hearings, and that the government establish clear
guidelines and policies to ensure the secrecy of information in the interest of
national security.
RECOMMENDATION 9
That the party affected by the proceedings be
entitled to select a special advocate from among an adequately sized roster of
security-cleared counsel who have the appropriate expertise and are funded by,
but not affiliated with, the government.
LISTING OF TERRORIST
ENTITIES
The Anti-terrorism
Act introduced provisions into the Criminal
Code allowing Cabinet to establish a list of terrorist entities. Under these provisions, found in sections
83.05 to 83.07, the Minister of Public Safety recommends listing, based on
criminal and security intelligence reports received from law enforcement and
security agencies, and Cabinet decides whether or not to list. The basis for listing an entity is that there
are reasonable grounds to believe that the entity, which may be an organization
or an individual, has knowingly been involved in a terrorist activity or is
knowingly assisting a terrorist group.
The Minister of Public Safety is required to review the list of entities
every two years to determine whether or not reasonable grounds to keep the
entity on the list remain, and makes a recommendation to Cabinet about whether
or not the entity should be retained on the list.
Entities are not allowed to challenge or make
submissions with respect to the listing decision before it has been made. They can, however, apply to the Minister to
be removed from the list once they have been added to it and, if refused, may
apply to the Federal Court for judicial review of the Minister’s decision. As stated earlier in this Report, during the
judicial review process, the security and intelligence reports forming the
basis for the listing decision are examined by the judge in private, and
additional evidence may be heard in the absence of the entity or its counsel if
the judge believes that disclosure would injure national security or the safety
of any person. The judge is, however,
required to provide the entity with a summary of the undisclosed information.
It is not a crime to be a listed entity in Canada. However, becoming a listed entity under the Criminal Code can have serious consequences,
because listing means that the entity is thereby automatically defined as a
terrorist group, and those who associate with terrorist groups may be charged
with terrorism-related offences.
Moving Towards Harmonized
Lists of Terrorist Entities
Currently, there are 40 entities on the Criminal Code list, none of which are
individuals. There are, however, two other listing regimes
for terrorist entities in Canada. One was created under the United Nations Al-Qaida and Taliban
Regulations (UNAR)and the other
was created under the Regulations
Implementing the United Nations Resolutions on the Suppression of Terrorism (UNSTR). Both sets of regulations wereenacted under the United Nations Act.
The UNAR list was created in 1999 in direct response to
United Nations Security Council Resolution 1267, which called on states to
prohibit dealings with Usama bin Laden,
Al-Qaida and the Taliban. The UNAR
contain provisions designed to make it illegal to deal with property of, or
provide services, arms or technical and military assistance to, the Taliban,
Usama bin Laden and entities associated with them. In contrast to the Criminal Code list, both individuals and organizations are found on
the UNAR list, as it mirrors the list of entities established by the United
Nations 1267 Committee, which oversees state implementation of sanctions
imposed by the Security Council on individuals and entities belonging or
related to the Taliban, Usama Bin Laden and Al-Qaida.
The UNSTR list was created in October 2001 to allow Canada
to comply with United Nations Security Council Resolution 1373, which, among
other things, called on states to freeze terrorist assets without delay. The UNSTR contain provisions designed to make
it illegal to deal with property of, provide services to, and collect funds for
listed entities. The provisions
contained in sections 3 and 4 of the UNSTR are roughly equivalent to the
terrorist financing offences found in sections 83.03, 83.04 and 83.08 of the Criminal Code. Like the UNAR list, the UNSTR list
contains names of both individuals and organizations. Both the UNAR and UNSTR lists are the
responsibility of the Minister of Foreign Affairs, although it appears that the
Minister of Public Safety makes recommendations to Cabinet as to who should be
added to the UNSTR list. Under section 2
of the UNSTR, the Minister of Public Safety is the individual to whom entities
apply if they wish to be removed from this list.
The UNAR list contains
hundreds of names, and, until recently, so did the UNSTR list, because it
contained all of the names on the UNAR list as well as some of the names on the
Criminal Code list of terrorist
entities. However, in June 2006, the
government made amending regulations that had the effect of reducing the number
of names on the UNSTR list to 36. This
was done in order to avoid duplication in terms of listing. Now, entities, be they individuals or
organizations, may not be listed on the UNSTR list if they are on either the
UNAR or Criminal Code list. The June 2006 regulations also modified the
process by which those listed under the UNAR or UNSTR may challenge decisions
to list them. Now, judicial review is
essentially available in the same way as it is for a listing under the Criminal Code.
The Committee recognizes that different consequences
flow from being on each of the three lists.
As stated previously, when one is placed on the Criminal Code list of terrorist entities, one is automatically
considered to be a terrorist group under the Criminal Code. This means
that if someone is charged with a terrorist financing offence for dealing with
an entity on this list, the Crown merely needs to show proof of listing in
order to substantiate that the person in question was, in fact, dealing with a
terrorist group. By contrast, being
placed on the UNAR or UNSTR list does not automatically make one a terrorist
group under the Criminal Code. If someone is charged with a terrorist
financing offence for dealing with someone on the UNAR or UNSTR list, the Crown
must prove that the listed entity “has, as one or more of its purposes or
activities facilitating or carrying out any terrorist activity,”
before the listed entity is considered to be a terrorist group.
The Committee is
encouraged to see that the government has taken steps to avoid duplication of
names on the three lists of terrorist entities currently in effect in Canada. The previous state of affairs, where an
individual or organization might be found on more than one list, was confusing,
and made it difficult for those listed to determine which set of listing
provisions applied to them and what steps they needed to take to challenge
their listing decisions. We are likewise
encouraged to see that the processes for challenging the listing decisions have
been harmonized, so that no matter which list an entity finds itself on, it is
able to challenge the listing decision in Federal Court. Further, the Committee is pleased to see that
at least one of these lists, the UNAR list, mirrors the United Nations
list. While the Committee recognizes
that Canada may consider it
necessary to deviate from the United Nations list for the purpose of the other
two lists as a result of evidence provided by Canada’s own security services, the
Committee believes that the government should be required to provide clear
justification for its decisions. In
particular, there should be an explanation in cases where the government lists
an individual or group on the UNSTR or Criminal
Code listthat is not on the
United Nations list, or where it decides against listing an individual or group
that is on the United Nations list, should that situation arise.
RECOMMENDATION 10
That the
government provide written justification for listing each terrorist entity under
its three listing regimes.
The Listing of Individuals
The Committee notes that to date, the government has not
listed any individuals on the Criminal
Code list of terrorist entities.
However, we urge the government to exercise caution in listing
individuals on any of the three terrorist lists. The Committee is mindful of the case of one
individual who ran a money service business, and who was placed on both the
United Nations 1267 Committee list of entities and Canada’s
UNSTR list as a result of a November 2001 decision of the United States to include him on a
list of individuals who supported terrorism.
As a result of these listing decisions, the individual’s bank account
was frozen for several months, his business was shut down, and it became a crime
for anyone to deal with him financially.
While the individual in question was eventually able to prove that he
was not associated with terrorist groups and terrorist activities and was
ultimately removed from both the U.N. and the UNSTR lists, the initial listing
decision had serious personal consequences for him.
The Committee believes that the listing of individuals
is a delicate and sensitive matter, given the severe impact that listing can
have on individuals, as opposed to organizations, and the residual prejudice
that individuals may suffer even after being removed from the list. In addition, as the above case demonstrates,
when one country decides to list an individual, it can increase the likelihood
that other countries and the United Nations will follow suit, adding the
individual in question to their own lists of terrorist entities. The Canadian government should accordingly exercise
care when deciding whether or not to list individuals as terrorist entities under
any of its three listing regimes. Furthermore, in the event that the government
decides to remove an individual from any one of its three lists, it should ensure
that its reasons for de-listing the individual are shared with other states and
international organizations that may have placed that individual on their own
lists of entities.
Due Process Concerns in
Respect of Criminal Code Listing
During the course of the Committee’s hearings, witnesses
expressed additional concerns relating specifically to the Criminal Code list of terrorist entities. In particular, several witnesses claimed that
the procedure for challenging the Minister’s recommendation through judicial
review was unfair, first, because entities can only challenge the listing
decision after it has been made, and second, because the entity and his or her
counsel are not automatically entitled to be present at the judicial review
hearing, and may only receive a summary of the evidence heard by the
judge. Comments were also made about the
fact that the Minister of Public Safety is responsible for initially
recommending the listing of an entity to Cabinet, conducting the initial review
of an entity’s application to be removed from the 
list, and reviewing the list
every two years to see whether to recommend continued listing. It was felt that having the same authority
perform all three roles would make it much more difficult for entities to be
de-listed when circumstances warranted it, and that having some type of
independent third party review the initial listing decision before it was made,
and at the two year review point, would help to ensure that the evidence
provided by law enforcement and security agencies in support of listing
received a thorough review.
With respect to the judicial review process and the fact
that evidence may be presented in private and kept secret, the Committee is of
the view that its earlier recommendations regarding the appointment of a
special advocate to represent the interests of the affected entity during
judicial review would address this issue.
Allowing a special advocate to test secret evidence presented by the
government would enable listed entities to more effectively challenge decisions
to list them. The appointment of a
special advocate would provide more balance between the need to keep certain
information confidential for national security or safety reasons and the rights
of individuals to respond to allegations and arguments against them.
With respect to the inability of a person to challenge
the listing decision until after it has been made, and concerns that the
Minister of Public Safety is involved in both the initial recommendation and
review stages of the listing process, the Committee agrees that there should be
more elements of due process. We believe
that this could be achieved by having another organization provide input as to
the appropriateness of an initial listing decision and whether to retain or
remove an entity from the list after two years.
The Committee does not believe that additional input is necessary with
respect to the ministerial review of an entity’s application to be removed from
the list because a decision not to remove the entity may be challenged in
Federal Court.
As to who should provide input at the time of the
initial listing and every two years, we believe that the person or organization
should be within government, due to the fact that the information provided to
the Minister of Public Safety is likely of a kind that could injure national
security or the safety of persons if released. The Committee feels that the Department of Justice
should be responsible for reviewing the security or intelligence reports
provided by law enforcement and intelligence agencies upon which the initial
decision to recommend listing is based, as well as the information provided by
these agencies at the time of the two year review. The review of information by a separate
department experienced in reviewing and evaluating the strength of evidence
would help to ensure that recommendations to list, or to retain entities on the
lists, are well-founded.
RECOMMENDATION 11
That the
Department of Justice be required to review and provide an independent
evaluation of the information that security and intelligence agencies provide
to the Minister of Public Safety before he or she recommends to Cabinet the
listing of a terrorist entity, retaining one on the list, or removing one from
the list.
FINANCING AND PROVISION OF SERVICES IN RELATION TO TERRORISM
The Anti-terrorism
Act introduced many provisions designed to prevent and combat the financing
of terrorism. First, the Act introduced
new offences into the Criminal Code to
prohibit persons from providing any assistance, including monetary assistance,
property or services, to terrorist groups or in support of terrorist
activities, whether directly or indirectly.
Second, the Act amended the Proceeds
of Crime (Money Laundering) Act, renaming it the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (PCMLTFA). The
amendments to the PCMLTFAwere
designed to allow the Financial Transactions and Reports Analysis Centre of
Canada (FINTRAC) to track and investigate suspicious financial transactions and
transactions over $10,000 related to terrorism, or to money laundering, and to
provide information to law enforcement agencies, or to the Canadian Security
Intelligence Service (CSIS), if the transactions relate to a threat to the
security of Canada.
Terrorist Financing Offences
With respect to the terrorist financing offences, new
offences introduced into the Criminal
Code by the Act included:
·
section 83.02, which prohibits
the collection and provision of property for terrorist or certain other
purposes when done willfully and without lawful justification or excuse;
·
section 83.03, which prohibits
providing property or services or making property or services available to
persons when one intends or knows they will be used for terrorist activities;
·
section 83.04, which prohibits
using property for terrorist activities or possessing property knowing it will
be used for such activities;
·
section 83.08, which prohibits
knowingly dealing in property owned or controlled by a terrorist group,
knowingly entering into or facilitating any transaction in respect of such
property, and knowingly providing financial or other related services in
respect of such property;
·
section 83.18, which prohibits
knowingly participating in or
contributing to the activity of a terrorist group;
·
section 83.19, which prohibits
knowingly facilitating a terrorist activity;
·
section 83.21, which prohibits
knowingly instructing a person to carry out any activity for the benefit of, at
the direction of, or in association with a terrorist group; and
·
section 83.22, which prohibits
knowingly instructing any person to carry out a terrorist activity.
The Anti-terrorism
Act also introduced reporting requirements, accompanied by penalties, into
the Criminal Code. Under section 83.1, for example, persons in Canada or Canadians outside Canada are
required to disclose the existence of property in their possession and control
that they know is owned or controlled by or on behalf of a terrorist group to
the Commissioner of the Royal Canadian Mounted Police and the Director of
CSIS. They are also required to disclose
information about a transaction or proposed transaction in relation to such
property. Failure to do so is an offence
under section 83.12 of the Criminal Code. Finally, freezing and forfeiture provisions
specifically designed to deal with terrorist property were also introduced by
the Anti-terrorism Act.
Are Due Diligence Defences
Necessary?
![Text Box: “I am concerned about the reach and breadth of those parts [of the Act] that deal with facilitating terrorist activities. You have to worry about the remoteness of the connection between the activity of the person and any subsequent terrorist activity that might or might not be committed. As the connection becomes more remote, the cost to the rights of individuals becomes more difficult to justify.”
(Jamie Cameron, Osgoode Hall Law School)](rep02feb07-e_files/image044.gif)
Several witnesses who appeared before the Committee were of the opinion
that some of the offences designed to prevent or suppress the financing of
terrorism were too broad in scope, and that the wording used in some of them
was vague or unclear. These witnesses
referred to section 83.19 of the Criminal
Code to illustrate this point.
Section 83.19 prohibits knowingly facilitating a terrorist activity, but
then goes on to state that a terrorist activity is facilitated regardless of
whether or not the facilitator knows that a particular activity is facilitated,
any particular terrorist activity was planned or foreseen at the time it was
facilitated, or any terrorist activity was actually carried out.
Several witnesses feared that persons could
find themselves charged under section 83.19 for performing acts that
unwittingly or unintentionally facilitated terrorist activity. It was suggested that those engaged in the
international funds transfer system known as “hawala” might be at risk in this
regard. This is problematic because in
some parts of the world, where people live far from banks or where the banking
system is not dependable, the hawala money transfer system is the only reliable
way for persons in Canada
to send money to family members overseas. It was also suggested that charities could be
at risk of being charged with facilitation and other terrorist financing
offences when providing aid in situations like the December 2004 tsunami
disaster, or simply by giving to humanitarian organizations that provide
assistance or distribute aid in a wide variety of countries and situations,
such as the Red Cross. Some witnesses
asserted that charities working in particular countries are vulnerable to
having aid appropriated by terrorist groups due to the effective control these
groups have over certain territories within these countries.
To date, no charities
have been charged with terrorist financing offences as a result of aid or
assistance provided during the tsunami or other disasters,
and there have been no reported cases of persons being charged with terrorist
financing offences as a result of hawala money transfers. As a result of their concerns, however, some
witnesses recommended that the ambit of the terrorist financing offences be
limited by narrowing the definition of terrorist activity in section 83.01(1)
of the Criminal Code. Others recommended that due diligence
defences be created for these offences.
For their parts, the Minister of Public Safety and the Minister of
Justice and Attorney General indicated that the terrorist financing provisions
in the Anti-terrorism Act were
enacted to enable Canada to meet its obligations to the inter-governmental
Financial Action Task Force (FATF) as well as its obligations under the International Convention for the Suppression of the Financing of
Terrorism and U.N. Security Council Resolution
1373.
The Ministers also indicated that concerns over persons
being charged with terrorist offences as a result of inadvertently or
unintentionally providing assistance to terrorist group or in furtherance of
terrorist activities were unfounded, as all of the terrorist financing offences
contain words like “willfully,” “intending” and “knowingly” and are true
criminal or full mens rea offences. As such, the Crown is required to prove
culpability or a guilty state of mind before anyone can be convicted of these
offences. There is therefore little
chance that someone could be convicted of providing unintentional or
inadvertent aid in furtherance of a terrorist activity or to a terrorist
group. In addition, the Ministers argued
that because these offences are true criminal offences, there is no need to
provide due diligence defences for them, whereby persons would be able to avoid
conviction by demonstrating that they took all reasonable steps to ensure that
they were not providing aid or assistance to terrorist groups or to further
terrorist activities. They believe due
diligence defences would be inappropriate and unnecessary, since persons may
only be convicted of these offences if the Crown is able to prove subjective
intent.
The Committee notes that the Ontario Superior Court of
Justice was asked, in the recent Khawaja case,
to evaluate whether or not the mens rea or
intent required to commit offences under sections 83.18, 83.19 and 83.21 of the
Criminal Code had been so watered
down by qualifying language that these offences were fundamentally unfair,
violating the rights to life, liberty and security of the person guaranteed by
section 7 of the Charter. The Court found that these offences
required sufficient subjective intent, on the part of an accused, to withstand Charter scrutiny.
Our Committee is of the view that the objective of
maintaining national security and denying terrorists access to funds and resources
must be reconciled with the possibility of an individual being charged under
the Criminal Code as a result of
making a charitable donation or sending funds to family members, where those
funds somehow make their way to a terrorist group. As with so many other aspects of the Anti-terrorism Act, there is a need for
a balanced approach. However, the
Committee is reassured by the fact that to date, no charities or individuals
who have transferred money using the hawala banking system have been charged
with terrorist financing offences. This
indicates that police and prosecutors have been acting with appropriate
judgment and caution. The Committee also
accepts the explanation provided by the Ministers as to the high level of
intent required before individuals or organizations can be convicted of these
offences. We therefore believe that it
is unnecessary to expressly provide due diligence defences for these offences
in the Criminal Code. However, the Committee is also of the view
that any court asked to interpret these offences in the future should interpret
the level of intent required in accordance with the statements made by the
Ministers. In other words, if a person
is able to demonstrate that he or she has taken all reasonable steps to ensure
that the money they have donated or transferred does not make its way to a
terrorist organization or is not used to further terrorist activity, he or she
should not be found guilty.
Are Special Exemptions Necessary to Protect the Right to Counsel?
It is a fundamental principle of our legal system that persons charged
with offences have the right to retain and instruct counsel. The right to counsel helps to ensure that
persons accused of crimes receive fair and full defences. Accordingly, some witnesses appearing before
the Committee expressed concern that certain terrorist financing offences, most
notably sections 83.03 (providing property or services or making property or
services available for terrorist or other purposes) and 83.18 (participating or contributing to the activity of a
terrorist group), as well as the reporting requirements in section 83.1, could
negatively effect the provision of legal services. They claimed that the new offences and
reporting requirements, given their broad wording, could significantly
interfere with the solicitor-client relationship by hampering the ability of
members of terrorist groups or those accused of committing terrorist activities
to retain the counsel of their choice, pay for the services of counsel, and be
assured of solicitor-client privilege in their dealings with counsel. Some witnesses therefore recommended that
special exemptions be created to exclude lawyers performing their duties as
counsel from the reporting requirements in section 83.1, and to prevent them
from being charged under sections 83.03 and 83.18.
In response, the Ministers stated that lawyers could
potentially be convicted under section 83.03 of making property, financial or
other related services available for terrorist activities by creating a trust
or other vehicle for a terrorist group.
However, in order to be convicted, the Crown would have to prove that
the lawyer knew or intended to provide the property or services to further a
terrorist activity. They also stated
that under no circumstances might a lawyer be convicted, under either section
83.03 or 83.18, for providing legal advice in defence of an accused person,
since that would not be considered provision of a related service, and
providing legal advice would not be considered knowingly participating in or contributing to the activities of a
terrorist group. With respect to the
reporting requirements under section 83.1, the Ministers were of the view that
the obligation to declare the possession of property or information about transactions
concerning terrorist property does not fall within the ambit of
solicitor-client privilege. In their
view, that privilege extends to communications between solicitor and client and
to legal advice provided to clients only.
The Committee has concluded that no special exemptions
need to be created for lawyers when providing legal services to or representing
those accused of terrorist offences.
Solicitor-client privilege does not appear to be placed in jeopardy by
section 83.1 of the Criminal Code, and
the Crown would be required to prove subjective intent, on the part a lawyer,
before he or she could be convicted under sections 83.03 or 83.18.
The Proceeds of Crime (Money Laundering) and Terrorist Financing Act
With respect to the
reporting requirements introduced by the PCMLTFA, and the role FINTRAC plays in
investigating suspicious transactions in relation to terrorism, the Committee
notes that the system appears to be functioning well. In its 2005-06 annual report, FINTRAC advised
that it had made 168 case disclosures to law enforcement agencies and/or CSIS
during the past year, and that the dollar value of transactions disclosed was
$5 billion. These numbers are up from
142 case disclosures totaling just over $2 billion in 2004-05.
![Text Box: “Section 11 of the [A]ct explicitly excludes solicitor-client privilege from the reporting requirement. … I would be happier if there were some reporting requirement for lawyers because, at present, the reporting we get is not by them but about them by other financial institutions. … More generally, by not having them report, we are, in essence, making it possible for them to be sought out by, or targeted by, unsavoury elements for the purpose of conducting transactions that would otherwise be reportable in other institutions. From a FINTRAC perspective, that is undesirable.”
(Horst Intscher, FINTRAC)](rep02feb07-e_files/image049.gif)
The Committee also notes that Parliament passed An Act to amend the Proceeds of Crime (Money
Laundering) and Terrorist Financing Act and the Income Tax Act and to make a
consequential amendment to another Act (Bill C-25) in December 2006. This legislation enhances information sharing
between FINTRAC, law enforcement and other agencies, both domestically and
internationally; creates a registration regime for money service businesses
like hawalas (these businesses were already subject to reporting requirements
under the PCMLTFA); increases information available in FINTRAC disclosures;
creates an administrative and monetary penalty regime; and deals with reporting
requirements for legal counsel. The government should continue its current
dialogue with the legal community on the subject of reporting requirements,
and work with money services businesses like hawalas to ensure that these
international fund transfer businesses understand their reporting requirements
and their obligations with respect to registration.
DENIAL OR REVOCATION OF CHARITABLE STATUS UNDER THE INCOME
TAX ACT
Sections 113 and 125 of the Anti-terrorism Act created the Charities
Registration (Security Information) Act (CRSIA), which provides a process
through which applicants for status as registered charities under the Income Tax Act or charities already
registered under that Act may have their applications for status denied or
their existing charitable status revoked.
The process requires the Minister of Public Safety and the Minister of
National Revenue to issue a certificate stating that, based on information,
there are reasonable grounds to believe that an applicant or registered charity
has made, makes or will make resources available, either directly or
indirectly, to a terrorist entity or in support of terrorist activities as
defined in the Criminal Code. Once the certificate has been signed, the
matter is automatically referred to the Federal Court for review. The certificate must be upheld by a Federal
Court judge as reasonable before an applicant can be denied status as a registered
charity or an organization can have its charitable status revoked.
The evidentiary provisions
under the CRSIA, which are similar to those found in the Criminal Code with respect to listing terrorist entities, do not
allow the applicant or registered charity to have access to confidential
information that forms the basis of the certificate. Witnesses discussed the fact that the
charities and their counsel are not automatically entitled to be present during
the judicial review hearing, and might only receive a summary of evidence from
the judge. We believe that we have
appropriately addressed these issues through our recommendation for a special
advocate, discussed earlier in this Report.
The remaining issues
raised by witnesses regarding the CRSIA can be divided into two categories:
other procedural concerns, and concerns over the effect that the CRSIA has had
or could have on charitable giving or work.
With respect to additional procedural concerns, witnesses were worried
about the fact that, as in the listing process ![Text Box: “Under the Anti-terrorism Act, the onus is on the person making the charitable donation to be absolutely sure that their funds will not be used for terrorist purposes. … We recommend that in the interest of fairness, [Canada Revenue Agency] inform a charity about its reservations before the denial or revocation of charitable status and provide the latter with a reasonable opportunity to appeal or justify its work.”
(Anu Bose, National Organization of Immigrant and Visible Minority Women of Canada)](rep02feb07-e_files/image051.gif)
for terrorist entities under
the Criminal Code, charities are
unable to challenge decisions to issue certificates against them until after
the certificate has been signed by the Ministers. This was a particular preoccupation, given that there is no appeal from the
decision of the Federal Court, which reviews the certificate. The Committee is of the opinion, however,
that its earlier recommendation regarding the appointment of a special advocate
to represent the interests of affected organizations would also help to
alleviate this additional procedural concern.
Implementing a greater degree of procedural fairness during judicial
review would provide a registered charity or applicant for charitable status an
improved opportunity to challenge the certificate decision generally. This should compensate for the lack of
ability to appeal the Federal Court decision and the fact that applicants or
charities are only able to challenge the Ministers’ decisions to issue
certificates after the fact. As the
consequences under the CRSIA are primarily financial, rather than entailing
possible criminal liability, we believe that a special advocate is a sufficient
safeguard in this context.
With respect to witness views about the effect that the
CRSIA has had or could have on charitable giving or work, some stated that the
CRSIA, coupled with the new terrorist financing offences added to the Criminal Code by the Anti-terrorism Act, have created a
“chill” with respect to charitable giving or work. They make donors reluctant to give to
charities for fear of being charged with terrorist financing offences, and
create anxiety for charitable organizations over the prospect of being
de-registered or denied charitable status as a result of providing aid or
assistance that unintentionally or inadvertently makes its way to a terrorist
organization or group. Some witnesses
suggested that in order to counteract these effects, a due diligence or
humanitarian defence should be provided to registered charities or applicants
for charitable status under the CRSIA.
For their parts,
the Minister of Public Safety and the Minister of Justice and Attorney General
stated that, to date, the power to issue a certificate under the CRSIA has not
been used. They also advised that, in
their view, charities are vulnerable to abuse by terrorists and terrorist
organizations because they can provide a cover for terrorist activities and
hide support for terrorism. Accordingly,
providing due diligence or humanitarian defences to charities could have the
effect of making charities more attractive targets for infiltration by
terrorists. Finally, the Ministers
asserted that putting certain types of aid or aid organizations beyond the reach
of the CRSIA and its administrative checks, by creating due diligence or
humanitarian defences, would make it difficult for Canada to meet its international
obligations to suppress terrorist financing.
The Committee is
reassured by the fact that, to date, the power to issue a certificate under the
CRSIA has not been used. In our view,
this indicates that the government is exercising appropriate restraint with
respect to denying charitable status to or de-registering charities. We further accept the Ministers’ statement
that adding a due diligence or humanitarian defence to the CRSIA could have the
unintended effect of making charities more vulnerable to being used as front
organizations for terrorists. The
Committee is also satisfied that the appointment of a special advocate, by
specifically addressing problems inherent in the judicial review process, would
help to address witness anxiety about the “chill” effect of the CRSIA on
charitable giving or work. The special
advocate would test the evidence raised against charitable organizations in
security and intelligence reports, and better enable them to respond to
allegations that they have made, made or will make resources available to
terrorist groups or in support of terrorist activities. The availability of a special advocate during
judicial review would therefore restore balance to the processes under the
CRSIA, helping to ensure that charities are treated fairly. Having said this, however, the Committee urges
the government to use its powers to deny or revoke charitable status under the
CRSIA with caution, in order to ensure that charities are not penalized for
legitimate aid activities that might occasionally tangentially benefit
terrorist organizations or groups.
NON-DISCLOSURE OF INFORMATION UNDER THE CANADA EVIDENCE ACT
Section 43 of the Anti-terrorism
Act made significant amendments to the Canada
Evidence Act (CEA). The new
provisions make it easier for the government to prevent the disclosure of information
in court or during other proceedings, on the basis that disclosure could injure
international relations, national defence or national security. The Attorney General of Canada may also issue
a certificate prohibiting the disclosure of information for the purpose of
protecting information obtained in confidence from, or in relation to, a
foreign entity, or to protect national defence or national security. Such a certificate, which must be published
in the Canada Gazette, expires after
15 years but may be reissued.
The need for a special advocate to represent the
interests of the individual from whom confidential information is withheld
during an application with respect to the disclosure of information, and on
review of a certificate of the Attorney General prohibiting disclosure, has already
been discussed in this Report. Our
Committee believes that providing a special advocate in this, as in other
contexts, will help to ensure that individuals without access to certain
evidence are better able to mount defences in court proceedings and to know and
understand the case against them in proceedings generally. This section of the Report will now address
some of the other issues raised by witnesses who testified before the Committee
regarding the provisions of the CEA.
References to “International
Relations”
“Sensitive information” means “information relating to
international relations or national defence or national security that is in the
possession of the Government of Canada, whether originating from inside or
outside Canada,
and is of a type that the Government of Canada is taking measures to safeguard.”
[CEA, section 38]
“Potentially injurious information” means “information of a
type that, if it were disclosed to the public, could injure international
relations or national defence or national security.” [CEA, section 38]
A common point made by
certain witnesses was that the definitions of “potentially injurious
information” and “sensitive information,” found in section 38 of the CEA, are
overly broad and give the government too much latitude in terms of what may be
excluded from disclosure. In particular,
there is a somewhat vague reference in each of the definitions to information
that could injure, or that is relating to, “international relations.” Some suggested that if the objective is to
protect information obtained in confidence from a foreign government or entity,
this should be clearly stated. Others
went so far as to say that the reference to international relations should be
removed altogether, as only information from a foreign entity that would injure
national defence or national security should be protected, and these latter two
grounds for non-disclosure are already found in the definitions.
Although the concept of
injuring international relations existed in the CEAprior to the changes brought about by the Anti-terrorism Act, the Committee believes that it requires
legislative clarification. There are
ways in which international relations may be injured without necessarily
warranting confidentiality in the same way as when national defence or national
security is at stake. An example might
be a minor diplomatic slight to another country, a small embarrassment to Canada
in its dealings with another government, or a difficulty during international
negotiations over trade or some other matter unrelated to defence or
security. Neither section 38 of the CEA
(which defines sensitive and potentially injurious information) nor section
38.06 (which gives a judge authority to withhold information that is injurious
to international relations, national defence or national security) specifies
the type or degree of injury to international relations that is necessary to
warrant confidentiality. Accordingly,
the Committee believes that there may be instances where information is
withheld without appropriate justification.
A more precise indication of what constitutes information injurious to
international relations would give a judge better guidance in determining
whether or not the information may properly be withheld.
RECOMMENDATION 12
That the
definitions of “potentially injurious information” and “sensitive information”
in section 38 of the Canada Evidence Act,
and the basis on which a judge may decide not to authorize the disclosure of
such information under section 38.06, be amended to specify the way in which
information must injure or relate to international relations, for example by
restricting the authority to withhold information to situations where the information
could breach specified confidences of another country.
Review of a Certificate of the Attorney General Prohibiting
Disclosure
|
“If
the judge determines that some of the information subject to the
certificate does not relate either to information obtained in confidence
from, or in relation to, a foreign entity…, or to national defence or
national security, the judge shall make an order varying the certificate
accordingly.” [CEA, subsection 38.131(8)] |
With respect to a certificate of the Attorney General
prohibiting the disclosure of information, many witnesses questioned whether
the standard of review by a judge of the Federal Court of Appeal is
satisfactory. For a certificate to be
cancelled or varied under section 38.131 of the CEA, an applicant must satisfy
the court that the information does not “relate to” information obtained in
confidence from a foreign entity, or does not “relate to” national defence or
national security. Some witnesses argued
that simply requiring that the information relate to foreign information,
national defence or national security provides too broad a basis for
non-disclosure. Others felt that only
information the disclosure of which would actually injure national defence or
national security should ever be the subject of a certificate of the Attorney
General.
As certificates of the
Attorney General are intended to allow the government to insist on
non-disclosure after disclosure has already been authorized, the Committee
recognizes that the basis for a certificate must be somewhat broader than the
reasons for non-disclosure in the first place.
A requirement that the information be injurious to national defence or
national security would sometimes (though not always) repeat a test that has
already been used by a court under section 38.06. Still, in the Committee’s opinion, a
certificate of the Attorney General should relate to information that more than
minimally affects government interests.
We further note that a certificate may be issued and upheld on the basis
of protecting information that is “in relation to” a foreign entity. A very wide range of innocuous information
can be in relation to a foreign entity.
The Committee is
accordingly of the view that amendments should be made to the CEA to ensure
that information is withheld under a certificate of the Attorney General only
where it is clearly necessary to protect national defence, national security,
or a specified aspect of Canada’s relations with foreign entities. First, section 38.13
of the CEA should be amended to specify what it means for information to be “in
relation to” a foreign entity when the Attorney General issues a certificate on
the basis. Second, section 38.131 should
be amended to specify the way in which information must “relate to” information
obtained in confidence from a foreign entity, or to national defence or
national security, in order for that aspect of the certificate to be confirmed
by a judge of the Federal Court of Appeal.
Because the
ability of the Attorney General of Canada to issue a certificate prohibiting
the disclosure of information is an extraordinary power, a court must be in a
position to fully determine whether that power has been properly
exercised. Even if no certificate has
been issued to date, there should be sufficient legislative limitations and
safeguards to protect the interests of parties engaged in criminal or
administrative proceedings.
RECOMMENDATION 13
That
sections 38.13 and 38.131 of the Canada
Evidence Act be amended to ensure that information is withheld, under a certificate of
the Attorney General of Canada prohibiting the disclosure of information, only
where it is necessary to protect national defence, national security, or a
specified aspect of Canada’s relations with foreign entities.
The Public Interest in
Disclosure
![Text Box: “There is no requirement that the veto [through a certificate of the Attorney General] be in the public interest. There is virtually no test, except for what the government wishes to keep secret. That is an example that should be particularly alarming.”
(Maureen Webb, Canadian Association for University Teachers)](rep02feb07-e_files/image060.gif)
In addition to upholding a
certificate of the Attorney General only where information more than minimally
relates to certain national interests, it was suggested to the Committee that
the Federal Court of Appeal judge performing the review under section 38.131 of
the CEA should be required to weigh the public interest in disclosure against the
public interest in non-disclosure, as is required when a court considers making
a disclosure order under section 38.06. The Minister of Justice and Attorney General and Minister of Public
Safety responded that the standard of review under section 38.131 is satisfactory
because a certificate of the Attorney General may only be issued after an order
or decision has been made under the CEA or any other Act of Parliament
authorizing disclosure of the information.
The suggestion is that a certificate will often be issued after a judge
has already considered the public interest in disclosure.
However, the Committee notes that a certificate may also
be issued after disclosure has been administratively authorized, for example
under the Privacy Act or Access to Information Act, in which case
no judge has yet weighed the public interest in disclosure against the public interest in
non-disclosure. Even if a court has
already done so, the review of a certificate of the Attorney General should
nonetheless involve consideration of the public interest, so that proceedings
affecting individuals, and matters stated to involve national security, are as
transparent as possible while still ensuring the safety of Canada. A judicial balancing of the competing
interests of the public’s right to know and national security confidentiality
would provide assurance to Canadians that both are considered important.
RECOMMENDATION 14
That
section 38.131 of the Canada Evidence Act
be amended so that, in determining whether or not a certificate issued by the
Attorney General of Canada prohibiting the disclosure of information should be
varied, canceled or confirmed, the judge must consider whether the public
interest in disclosure outweighs in importance the public interest in
non-disclosure.
The Availability of an
Appeal
Under subsection 38.131(11) of the CEA, there is no
review of, or appeal from, a decision of a judge of the Federal Court of Appeal
regarding the validity of a certificate of the Attorney General prohibiting the
disclosure of information. The Committee
believes that an appeal should be available in the interest of procedural
fairness, particularly where the result of the decision is that an individual
will not have access to information that may be used against him or her. The fact that an application before the
Federal Court of Appeal may already follow a court proceeding during which
disclosure was authorized does not justify the preclusion of an appeal, as it
is also possible for a certificate of the Attorney General to be issued after
an administrative decision to disclose information, without any prior court
involvement.
RECOMMENDATION 15
That
subsection 38.131(11) of the Canada
Evidence Act be repealed, and that an order of a judge of the Federal Court
of Appeal varying, canceling or confirming a certificate issued by the Attorney
General of Canada prohibiting the disclosure of information be subject to an
appeal to three judges of the Federal Court of Appeal.
INVESTIGATIVE
HEARINGS AND RECOGNIZANCES
WITH CONDITIONS/PREVENTIVE ARREST
Section 4 of the Anti-terrorism
Act enacted provisions to allow investigative hearings, which was a
new form of recourse for police and the courts.
Under section 83.28 of the Criminal
Code, a peace officer may apply to a judge for an order for the gathering
of information with the prior consent of the Attorney General. If there are reasonable grounds to believe
that a terrorism offence has been or may be committed, a court order may compel
a person to attend a hearing, answer questions on examination, and produce anything
in their possession or control. A person
who evades service of the order, is about to abscond or fails to attend an
examination may be subject to arrest with a warrant under section 83.29.
Section
83.3 of the Criminal Code was
another provision enacted in 2001 as an extraordinary measure in the fight
against terrorism. It allows a recognizance
with conditions and preventive arrest.
With the consent of the Attorney General, a peace officer may lay an
information before a provincial court judge if he or she suspects that a
terrorist act will be carried out and that a recognizance with conditions or
arrest is necessary to prevent it. If
the peace officer suspects that immediate detention is necessary, he or she may
arrest a person, without a warrant, prior to laying the information or before
the person has had a chance to appear.
An arrested person must
be brought before a judge within 24 hours, or as soon as possible
thereafter. The judge is required to
release the person unless the peace officer establishes that continued
detention is necessary to ensure the person’s later appearance or to protect
the public. At the main hearing, a judge
must decide whether to impose a recognizance, which means that the person must
keep the peace and be of good behaviour for up to twelve months, as well as
respect any other conditions such as not being in possession of a weapon. If it is determined that the person should
enter into a recognizance but the person fails or refuses to do so, the judge
may order imprisonment for up to twelve months.
To
date, there have been no investigative hearings held, according to the annual
reports that the Attorney General of Canada are required to table under section
83.31 of the Criminal Code, and those
that have been made available by the provincial Attorneys General. Although the government used section 83.28 to
obtain an order requiring a potential witness to attend an investigative
hearing in the context of the Air India trial, and the Supreme Court of Canada
upheld the constitutionality of the section in June 2004, the investigative
hearing was never convened. There has likewise
been no reported use of the provisions on recognizance with conditions/preventive
arrest. These provisions, along with
those on investigative hearings, expire at the end of
the fifteenth sitting day of Parliament after December 31, 2006, unless a resolution to extend them is
passed in both the House of Commons and the Senate.
Witnesses who appeared
before the Committee had very different views regarding investigative hearings
and recognizance with conditions/preventive arrest. Some argued that the measures represent a
substantial departure from our legal traditions. It was suggested, for example, that the
obligation to give testimony violates the right to remain silent, and that the
power of preventive arrest is too broad because it may be grounded in mere
suspicion. Witnesses feared that the
extraordinary nature of these provisions may creep into the general criminal
law and that these processes might eventually be made available for purposes
other than to prevent terrorism-related offences. Others suggested that the provisions represent
nothing new for a democratic country.
They argued that a recognizance with conditions is little different than
a peace bond, and that investigative hearings have procedural safeguards to
ensure that an individual’s rights and liberties are not violated. The RCMP stated that these tools remain
useful, as they allow potential threats to be addressed proactively.
Given that neither the
investigative hearing nor the recognizance with conditions/ preventive arrest
process has reportedly been used, it is difficult for the Committee to make a
definitive judgment as to the need for them. The fact that they have not been used led some
witnesses to say that they have proved unnecessary. Conversely, when the Minister of Justice and
Attorney General of Canada appeared before the Committee, he suggested that
just because a mechanism in the fight against terrorism has not been employed
does not mean that it will not be required in the future. Witness recommendations were accordingly
divided into two possibilities: extend
the provisions or eliminate them.
The
Committee acknowledges the very difficult task of balancing national security
interests against individual rights and freedoms in the context of
anti-terrorism. On one hand, sections
83.28, 83.29 and 83.3 of the Criminal
Code are intended to protect the safety of the public by preventing what
can amount to very horrific acts. On the
other hand, investigative hearings encroach on civil liberties by compelling
individuals to give evidence before any criminal proceeding has been initiated,
or any offence has been committed. While
the provisions on recognizance with conditions/preventive arrest are comparable
to other Criminal Code provisions,
they give the police more latitude to arrest and a judge more latitude to order
the continued detention of the individual or impose restrictions on him or her.
At the same time, the
Committee notes that protections were put in the legislation to ensure a
certain amount of due process. Although individuals
attending an investigative hearing must answer questions and produce all
requested material, they are expressly entitled to retain and instruct counsel,
may invoke any law relating to privilege or non-disclosure, and are protected
from self-incrimination in that no answer given or thing produced may be used
against them in future criminal proceedings, except for perjury or giving
contradictory evidence. The provisions
on recognizance with conditions/preventive arrest call for an appearance before
a judge as soon as possible, and place the onus on the government to show that
a recognizance or detention is necessary for public safety or the
administration of justice. Further, the
use of either set of extraordinary powers enacted in sections 83.28, 83.29 and
83.3 of the Criminal Code requires
the consent of the Attorney General.
Later in this
Report, the Committee recommends that the entire operation of the Anti-terrorism Act be reviewed and
monitored on an ongoing basis by a standing parliamentary committee, or failing
that, be subject to another comprehensive parliamentary review at a future
date. We believe that the provisions on
investigative hearings and recognizance with conditions/preventive arrest
should continue in effect for another three years, and that they should be
re-evaluated by the established parliamentary committee or committees, before
expiry, to determine whether further extension is warranted.
![Text Box: “[T]he burden is on the government to justify these powers because they come, unquestionably, at the expense of the rights of individuals.”
(Jamie Cameron, Osgoode Hall Law School)](rep02feb07-e_files/image065.gif)
At the same time, we stress
that, in the context of the annual reports tabled under section 83.31 of the Criminal Code, the federal government
should not only indicate whether these extraordinary powers have been used, but
also whether they are still needed and, if so, why. In particular, if any of the provisions are
used in the future, the government should explain why ordinary Criminal Code measures proved
unsatisfactory. Conversely, if the
provisions remain unused, we ask the government to justify their continued
existence or acknowledge that they should cease to apply. Certain witnesses who appeared before the
Committee criticized the extent and quality of the governmental reports on the
use of investigative hearings and recognizance/preventive arrest, and asked for
greater background and context on the use of the provisions. Finally, the Committee urges all of Canada’s
Attorneys General to provide their annual reports in a timely fashion, as it
appears that some provinces are not up to date in their reporting.
RECOMMENDATION 16
That the application of sections 83.28, 83.29
and 83.3 of the Criminal Code, relating
to investigative hearings and recognizance with conditions/preventive arrest,
be extended to the end of the fifteenth sitting day of Parliament after
December 31, 2009, subject to the possibility of further extension following
resolutions passed by both Houses of Parliament.
RECOMMENDATION 17
That the Attorney General of Canada include, in
each annual report on the use of investigative hearings and recognizance with
conditions/preventive arrest, a clear statement and explanation indicating
whether or not the provisions remain warranted.
ELECTRONIC SURVEILLANCE AND INTERCEPTION OF PRIVATE COMMUNICATIONS
In addition to introducing
provisions to allow investigative hearings and recognizance with
conditions/preventive arrests, the Anti-terrorism
Act also strengthened the ability of police to perform electronic
surveillance on a person suspected of a terrorist offence and the capacity of
intelligence services to intercept the private communications of Canadians for
certain purposes.
Electronic Surveillance
under the Criminal Code
Sections 6, 7 and 8 of
the Anti-terrorism Act made changes
to the electronic surveillance provisions of the Criminal Code. Specifically,
investigative powers that
were introduced in 1997 to make it easier to use electronic surveillance
against criminal organizations were extended to the investigation of the terrorist
offences introduced by the Anti-terrorism
Act. These changes included:
·
eliminating
the need to demonstrate that electronic surveillance is a last resort in the
investigation of terrorist offences, which is an exception to the general rule applicable in
other circumstances;
·
extending
the period of validity of a wiretap authorization from sixty days to up to one
year when police are investigating a terrorist offence; and
·
permitting
a delay of up to three years in notifying a target after surveillance has taken
place, as opposed to the 90 day period that is applicable for other criminal
offences.
A superior court judge must approve the use of electronic
surveillance.
![Text Box: “For terrorist offences, the duration of bugging periods will be one year instead of – as it is for many other matters – 60 days. … Again, this is difficult to justify. It would be impossible to fill a thimble with the number of times that judges have refused such wiretap permission to the police … [T]his provision … reduces judicial supervision of one of the post privacy-intrusive instruments in the police arsenal.”
(Canadian Civil Liberties Association)](rep02feb07-e_files/image066.gif)
Some
witnesses who appeared before the Committee felt that by making it easier for
police to use electronic surveillance when investigating terrorist offences,
the government effectively weakened constraints on what is an invasive state
power. They suggested that law
enforcement agencies should be forced to demonstrate that they have tried other
investigative methods, or that these methods would be unlikely to succeed,
before they obtain prior judicial authorization for a wiretap. They also suggested that ordinary time limits
respecting the length of validity of a wiretap and for notifying a target of a
wiretap after the fact should be reinstated.
The
Committee is of the opinion that, due to the fact that multiple individuals are
often involved in carrying out terrorist activities, with each having his or
her own discrete role to play in furthering the terrorist activity in question,
investigating terrorist offences has much in common with investigating criminal
organization offences. Law enforcement
officials should accordingly have the benefit of the changes regarding electronic
surveillance introduced by the Anti-terrorism
Act to assist them in investigating terrorist offences. However, the Committee believes that the use
of these provisions should be clearly monitored to ensure that they are, in
fact, used to investigate suspected terrorist offences, and that they do not
begin to be used for more general law enforcement purposes.
Interceptions of Private Communications by the Communications Security Establishment
The Anti-terrorism Act
also clarified the mandate of the Communications Security Establishment
(CSE), Canada’s
signals intelligence agency, to intercept the communications of foreign targets
abroad. It introduced subsections
273.65(1) to (4) of the National Defence
Act, which created a new mechanism allowing the CSE to intercept “private
communications”where one part of the communication
either begins or ends in Canada. The CSE can intercept private communications
with prior written authorization of the Minister of National Defence, instead
of prior judicial authorization, which is required for electronic surveillance
under the Criminal Code. However, interceptions can only be for the
purpose of obtaining foreign intelligence or for the purpose of protecting Government
of Canada computer systems and networks from mischief, unauthorized use or
interference. In addition, the
legislation contains safeguards designed to ensure that the CSE’s power to
intercept private communications is not misused.
Prior to issuing an authorization
to intercept private communications for foreign intelligence purposes, the
Minister of National Defence must be satisfied that the interception will be
directed at foreign entities located outside of Canada, that the information cannot
be reasonably obtained by other means, that the expected foreign intelligence
value of the information justifies the interception, and that satisfactory
measures are in place to protect the privacy of Canadians and to ensure that
the private communications are only used or retained if essential to international
affairs, defence or security.
Prior to issuing an
authorization to intercept private communications for the purpose of protecting
Government of Canada computer systems or networks, the Minister of National
Defence must be satisfied that the interception is necessary to identify,
isolate or prevent harm to the systems or networks, that the information cannot
reasonably be obtained by other means, that the consent of those whose private
communications are to be intercepted cannot reasonably be obtained, that
satisfactory measures are in place to ensure that only essential information
will be used or retained, and that satisfactory measures are in place to
protect the privacy of Canadians in the use or retention of the information.
Some witnesses who appeared before the Committee believed that the CSE
should be prohibited from intercepting private communications, or that prior
judicial authorization should be required, instead of prior ministerial
authorization, before the CSE conducts such interceptions. However, the Chief of the CSE stated that it
was necessary for Parliament to give the CSE power to intercept private communications
for foreign intelligence purposes because of changes in communications
technologies that make it extremely difficult for the CSE to prove or know,
prior to interception, whether both ends of a communication have occurred
outside of Canada. He further stated that it was necessary for
Parliament to give the CSE power to intercept private communications for the
purpose of protecting Government of Canada computer systems or networks because
CSE needs to monitor activity on Government of Canada networks and sample
messages that have characteristics associated with viruses or other malicious computer
codes.
With respect to the suggestion that the CSE should be required to obtain
prior judicial authorization rather than prior ministerial authorization before
intercepting private communications, the former CSE Commissioner advised us
that executive rather than judicial authorization is necessary because warrants
from Canadian courts have no jurisdiction outside of Canada.
The Committee accepts
the explanations provided by the Chief of the CSE as to why the CSE needs the
ability to intercept private communications for foreign intelligence and to
protect data and computer systems. We
also accept the explanation of the former CSE Commissioner as to why prior
ministerial authorization, rather than prior judicial authorization, is used
for these interceptions. In addition, we
derive comfort from the fact that the Office of the CSE Commissioner is both
empowered and required, under sections 273.63 and 273.65(8) of the National Defence Act,to review and report on an annual basis
regarding the lawfulness of the CSE’s activities, including any interceptions
of private communications under authorization by the Minister.
To date, the Office of
the CSE Commissioner has been satisfied that all interceptions of private
communications have been lawful.
However, the Committee remains concerned, as was the former CSE
Commissioner, that the standard required to satisfy the Minister that all
necessary preconditions to intercepting private communications have been met is
unclear. The Committee is of the view
that amendments should be made to clarify the standard. Such clarification would not only assist the
Minister in deciding whether or not the necessary preconditions have been met
in intercepting private communications, but also assist the CSE Commissioner in
his review of the Minister’s decisions.
Accordingly, opinions on such matters as the nature and purpose of the
interception, the utility of alternative means of investigation and the
measures in place to protect the privacy of Canadians should be expressly based
on either reasonable belief or reasonable suspicion.
RECOMMENDATION 18
That subsections 273.65(2) and (4) of the National Defence Act be amended to
clarify whether the facts and opinions, which are necessary to satisfy the
Minister of National Defence that all of the preconditions for issuing a
written authorization to intercept private communications have been met, should
be based on reasonable belief or reasonable suspicion.
Interceptions of private communications pursuant to ministerial
authorization, rather than pursuant to judicial authorization, are not the norm
in Canada.
Such interceptions intrude, albeit perhaps necessarily in some instances, on
the privacy of Canadians. While the
Committee recognizes that the Minister of National Defence may authorize the
CSE to intercept private communications only if satisfied that adequate
measures are in place to protect the privacy of Canadians and that intercepted
information will be used or retained only if essential to international
affairs, defence or security, or alternatively, essential to identify, isolate
or prevent harm to Government of Canada computer systems or networks, we wish
to ensure that intercepted information is disposed of if it has been determined
to be non-essential or when it is no longer essential in this regard. Accordingly, to protect the privacy of
Canadians, we are of the view that the CSE should develop information retention
and disposal policies containing specific time frames for the disposal of
information with respect to the private communications it intercepts pursuant
to ministerial authorization, if it has not already done so. We also believe, in the interests of
transparency and accountability, that the CSE should make these policies
publicly available.
RECOMMENDATION 19
That, in order
to safeguard the privacy of Canadians and those in Canada, the Communications
Security Establishment develop, if it has not already done so, information
retention and disposal policies, containing specific time frames for the
disposal of information, with respect to the private communications it
intercepts pursuant to 273.65(1) to (4) of the National Defence Act, and
that it make these policies publicly available, in the interests of
transparency and accountability.
The
Committee is also of the view that, in the interests of accountability and
transparency, the CSE should be required to report to Parliament regarding the
number of ministerial authorizations to intercept private communications issued
each year, and whether or not they were issued for foreign intelligence
purposes or for the purposes of protecting Government of Canada computer
systems or networks. Currently, the CSE
is under no obligation to report this number, although CSE officials did advise
the Committee that, as of April 2005, no more than 20 ministerial
authorizations had been issued and only five were still operational.
RECOMMENDATION 20
That the Minister of National Defence or the
Communications Security Establishment be required to report annually to
Parliament on the number of ministerial authorizations to intercept private
communications issued during the year, the number still in force by the end of
the year, and the general purpose for which each authorization was issued
(i.e., to obtain foreign intelligence or to protect computer systems or
networks).
ISSUES RELATING TO THE PRIVACY OF CANADIANS AND INFORMATION SHARING
The Anti-terrorism
Act introduced provisions that specifically affect the ability of Canadians
and those in Canada to
access information about themselves or their government, as well as provisions that
allow the government to collect personal information about Canadians and those
in Canada
and share it with others. Other pieces
of national security legislation, such as the Public Safety Act, 2002, likewise introduced provisions that affect
matters relating to information and privacy.
Further, information and privacy issues arise as a result of government
contracting policies and information sharing agreements within Canada
and with agencies and businesses in other countries, whether formal or
informal.
Citizen Complaints under the Access to Information Act, the Privacy
Act
and the Personal
Information Protection and Electronic Documents Act
Section 87 of the Anti-terrorism
Act added section 69.1 to the Access
to Information Act, section 103 added section 4.1 to the Personal Information Protection and
Electronic Documents Act (PIPEDA), and section 104 added section 70.1 to
the Privacy Act. These provisions are designed to work in
conjunction with section 38.13 of the Canada
Evidence Act (CEA)which, as
described previously, allows the Attorney General of Canada to issue
certificates prohibiting the disclosure of certain types of information in
connection with a proceeding.
“Proceeding” under section 38 of the CEAis defined broadly enough to include a complaint made under the Access to Information Act, the PIPEDAor the Privacy Act.
Sections 87, 103 and 104 of the Anti-terrorism Act state that if the Attorney General issues a certificate
prohibiting disclosure under the CEA before a complaint is filed under the Access to Information Act, the PIPEDAor the Privacy Act respecting a request for access to information, these
Acts do not apply in relation to the documents or personal information
sought. In addition, they provide that
where a certificate prohibiting disclosure has been issued after a complaint
has been filed, all proceedings with respect to the complaint to the
Information Commissioner are discontinued, and all proceedings with respect to
the personal information to which the complaint to the Privacy Commissioner
relates are discontinued.
Certain witnesses appearing
before the Committee expressed concern about the way the Anti-terrorism Act has altered the Access to Information Act, the PIPEDAand the Privacy Act. Witnesses argued that the changes operate to
reduce the ability of members of the public to access information in the hands
of the government, and that accordingly, these provisions run counter to the
principles of transparency and openness so important in Canada. In addition, claims were made that these
amendments have interfered with the ability of the Privacy Commissioner and the
Information Commissioner to perform the review and oversight functions they are
statutorily mandated to perform, and thus have adversely affected the
government’s accountability to the public.
The Information and Privacy Commissioners both expressed particular
concern in this regard.
![Text Box: “[I]n section 87 the entire investigation of the entire complaint must stop [if the government issues a certificate], which is even inconsistent internally in the [Anti-terrorism Act], with use of different words, when you compare it with sections 103 and 104. Both of those attempt to try to restrict it to the information, but in a complaint under the Access to Information Act they do not.”
(Alan Leadbeater, Office of the Information Commissioner of Canada)](rep02feb07-e_files/image072.gif)
In addition, the Office of the Information Commissioner
pointed out the effect that the issuance of a certificate by the Attorney
General prohibiting disclosure would have on the Information Commissioner’s
investigations. It indicated that while
the issuance of a certificate would only halt proceedings of the Privacy
Commissioner in relation to the personal information to which a complaint under
the Privacy Act or PIPEDA relates, it
would have the effect of halting all
proceedings in relation to a complaint made to the Information Commissioner
under the Access to Information Act,
even if the certificate were issued in relation to only one or two pieces of
information forming the subject of the complaint.
The Committee believes that the special advocate process
it recommended earlier in relation to sections 38.04 and 38.131 of CEA would
address many of the issues regarding openness, transparency and accountability
raised by witnesses is relation to sections 87, 103 and 104 of the Anti-terrorism Act. However, we are troubled by the sweeping
effect that section 69.1 of the Access to
Information Act has on the ability of the Information Commissioner to
investigate complaints once the Attorney General has issued a certificate
prohibiting disclosure. We believe that
the wording of section 69.1 of the Access
to Information Act should be narrowed to make that provision akin to
section 4.1 of the PIPEDA and section 70.1 of the Privacy Act.
RECOMMENDATION 21
That the
government amend section 69.1 of the Access
to Information Act so that, in the event that a certificate of the Attorney
General under section 38.13 of the Canada
Evidence Act is issued after a complaint has been made to the Information
Commissioner, the Information Commissioner’s investigation of the complaint as
a whole is not halted, but only his or her investigation in respect of the
information subject to the certificate.
Changes Introduced by the Public Safety Act, 2002
Other national security legislation, such as the Public Safety Act, 2002, introduced
provisions that have the potential to affect the privacy of Canadians. Changes made by that Act to the Aeronautics Act and the PIPEDA are
particularly significant in this regard. For example, the Public Safety Act, 2002 added section 4.81 to the Aeronautics Act, which empowers the
Minister of Transport or other designated person to require air carriers and
airline reservation systems to provide passenger information to him or her for
the purpose of transportation security.
The Minister of Transport may disclose the information to other officials
within the Department of Transport and to certain officials outside the
department, such as the Minister of Citizenship and Immigration, Minister of
National Revenue, and the Chief Executive Officer of the Canadian Air Transport
Security Authority, for the purposes of transportation security. “Transportation security” is broadly defined.
For the purposes of
section 4.81 and section 4.82 of the Aeronautics
Act, “transportation security” means “the
protection of any means of transportation or of any transportation
infrastructure, including related equipment, from any actual or attempted
action that could cause, or result in,
(a) loss of life or personal injury;
(b) substantial damage to or destruction of a means
of transportation or any transportation
infrastructure; or
(c) interference with any means of transportation or
with any transportation infrastructure that is likely to result in loss of life
or personal injury, or substantial damage to or destruction of any means of
transportation or any transportation infrastructure.” [Aeronautics Act, subsection 4.81(0.1)]
Another provision introduced by the Public Safety Act, 2002 that affects or has the potential to affect
the privacy of Canadians is section 4.83 of the Aeronautics Act, which relieves aircraft operators from certain restrictions
under the PIPEDAthat generally
prohibit organizations from disclosing personal information in their possession
without the consent of the individual to whom the information relates. Under section 4.83, aircraft operators can share
advance information respecting passengers on board or expected to be on board
aircraft scheduled to land in a foreign state.
Currently, the only foreign state to which Canada
is required to provide this information is the United States. This is because section 4.83
was specifically enacted to enable aircraft operators to comply with United States
laws compelling such disclosure, accompanied by monetary penalties for
non-compliance.
Section 4.82 of the Aeronautics
Act, which is not yet in force, would allow the RCMP Commissioner, the
Director of CSIS, or officials designated by them to obtain this same airline
passenger information, without warrant, for transportation security purposes,
or for a variety of other purposes, some of which are not directly related to
terrorism, transportation security or national security. For example, they would be able to obtain passenger
information to enforce arrest warrants in relation to offences punishable by
imprisonment of five years or more and arrest warrants under the Immigration and Refugee Protection Act and
the Extradition Act.
In
addition, the Public Safety Act, 2002 amended section 7 of the PIPEDA to
allow private sector institutions to collect personal information about their
clients, without their consent, and to disclose it to government, law
enforcement and national security agencies in certain specified circumstances –
for example, if the institution in question suspects that information relates
to national security, the defence of Canada or the conduct of international
affairs – as long as they have identified their lawful authority to obtain that
information.
![Text Box: “Under the Public Safety Act … airlines can be compelled, without warrant, to disclose information about passengers to police for anti-terrorism purposes. It may well be that few people would question such a goal … [b]ut the use of this information is not confined to the purposes of anti-terrorism and transportation safety. The Public Safety Act also allows the information to be used to identify passengers for whom there are outstanding arrest warrants for a wide range of ordinary criminal offences … [T]he machinery of anti-terrorism is used to nourish the needs of ordinary law enforcement, lowering the standard ordinarily demanded of law enforcement authorities.”
(Jennifer Stoddart, Privacy Commissioner of Canada)](rep02feb07-e_files/image073.gif)
During the course of the Committee’s proceedings, while
general unease was expressed about the amount of information sharing allowed
under the Aeronautics Act and about
modifications to the PIPEDA, the provision that received the most attention was
section 4.82 of the Aeronautics Act. Witnesses were worried that it would allow
police and security intelligence agencies to obtain airline passenger
information for purposes other than national security. In their view, the extraordinary provisions
introduced into the Aeronautics Act by
the Public Safety Act, 2002 were
designed to address threats to transportation safety and national security. Persons who are wanted on outstanding criminal
charges or for immigration or extradition purposes are not necessarily threats
in this regard. Some witnesses were also
of the view that allowing police and security agencies to obtain information
from airlines and aircraft operators to enforce regular warrants when
individuals are traveling by air, while failing to allow this with respect to
any other means of transportation, was inequitable.
Some Committee members were comfortable with allowing
police or immigration officers to use information from airlines and aircraft
operators for the purpose of enforcing regular criminal or immigration
warrants, as law enforcement officials should be able to use information
available under the law to enforce the law, particularly when a warrant relates
to a general offence that is very serious.
Other Committee members were troubled by this prospect, echoing comments
made by witnesses regarding the erosion of privacy rights that this provision,
if proclaimed, would bring about. Still
others were troubled by the fact that general warrant information would be made
available to police and immigration officials only with respect to those who
travel by air, and not with respect to those who travel by other means. The Committee accordingly believes that the
government should give careful consideration to the scope of section 4.82 of
the Aeronautics Act before it is
brought into force.
Canada’s
Proposed No-Fly List
Witnesses appearing before the
Committee also expressed anxiety over the prospect that Canada might decide to develop its
own version of a no-fly list, which would be used by aircraft operators and
airlines to prevent people from boarding aircraft. Witnesses were particularly concerned that
the government might follow the United
States’ example when and if it chose to
create its own list.
Originally,
the Transportation Security Administration in the United States produced two separate
types of watch lists: a “no-fly” list and a “selectee” list. Now, these two lists are subsets of a general
consolidated watch list known as the Terrorist Screening Database, which is
maintained by the Terrorist Screening Centre, an agency responsible for
integrating all existing watch lists in the United States.
If
an individual’s name is on the no-fly list, then he or she will be denied
permission to board an aircraft in the United States. If an individual’s name is on the selectee
list, then he or she will automatically be selected for enhanced security
screening every time he or she flies, although boarding may be permitted
following enhanced screening. It is
unknown how many people are on these lists, although estimates provided by the
American Civil Liberties Union indicate that listed persons may number in the
tens of thousands. While the Transportation
Security Administration advises that individuals are placed on this list if
they are or may be threats to civil aviation or national security, it is
unknown what criteria is used to decide whether a person represents such a
threat. While the United States Congress
has called for a mechanism whereby individuals would be able to appeal or seek
redress respecting decisions to place them on the no-fly and selectee lists,
appeal and redress mechanisms and policies have not, to date, been finalized. The Transportation Security Administration
has, however, developed a mechanism whereby one can apply to correct cases of
mistaken identity.
![Text Box: “Some key features of our approach include a well-defined and targeted list focused only on persons who pose a threat to aviation security, [a] case-by-case consideration of each individual proposed for inclusion on the [‘no-fly’] list, sufficient information on individuals to minimize false matches to people with similar or the same names, [and] easy and quick access to a reconsideration mechanism to allow individuals to seek a quick review of their inclusion on the list if there were to be a mistake.”
(Jean Lapierre, former Minister of Transport)](rep02feb07-e_files/image074.gif)
When
the former Minister of Transport appeared before our Committee in November
2005, he indicated that the government was, in fact, considering the creation
of a no-fly list, and was in the process of consulting stakeholders about the
parameters of the list. Then in October
2006, the current government revealed that it was, in fact, creating this list,
known as the Passenger Protect Program (PPP).
It expects to have the PPP in place for domestic flights by early 2007
and for international flights later in the year. It appears, however, that the government does
not plan to follow the United
States example when creating the PPP
list. First, the government has
published details describing, in general, how people will be selected for
listing. According to Transport Canada
information, an Advisory Group, led by Transport Canada officials, will be created
to assess individuals on a case-by-case basis for listing, using information
provided by CSIS and the RCMP. It will
make recommendations to the Minister of Transport, Infrastructure and
Communities as to whether to add or remove someone from the list. The list will reportedly be updated every 30
days. Guidelines for determining whether
or not people should be added to the PPP include whether they:
·
are
or have been involved in a terrorist group and are individuals who, it can
reasonably be suspected, will endanger the security of any aircraft or
aerodrome or the safety of the public, passengers or crew members;
·
have
been convicted of one or more serious and life-threatening crimes against
aviation security; or
·
have
been convicted of one or more serious and life-threatening offences and who are
individuals who may attack or harm an air carrier, passengers or crew members.
While
recognizing that the PPP does not yet appear to be in place, the Committee is
concerned about the lack of specific listing criteria, particularly in the
third guideline. It is unclear, for
example, how the Advisory Group led by Transport Canada will determine whether
or not a person may attack or harm an air carrier, passengers or crew members
or what types of offences will be considered serious or life-threatening for
the purposes of the PPP list.
Individuals need to understand how and when the law applies to them,
particularly in situations when the law may be used to deny them rights or
benefits. The government should
therefore take additional measures to ensure that individuals know and
understand the criteria that will be used by officials to decide whether or not
they will be allowed to board an aircraft.
RECOMMENDATION 22
That the government produce
and publish clear guidelines or criteria specifying when, and in what
circumstances, individuals will be added to the Passenger Protect Program list.
It
appears that in addition to providing a mechanism for individuals to correct
cases of mistaken identity, the government intends to provide a mechanism for
individuals to challenge the decision to include them on the PPP list. According to Transport Canada information, an individual would be able
to appeal the listing decision to Transport Canada’s Office of Reconsideration,
which may arrange for an independent assessment of the case and make
recommendations. Individuals would also
have the option of appealing to the Security Intelligence Review Committee, the
Commission for Public Complaints Against the RCMP, or the Canadian Human Rights
Commission. They could also apply to the
Federal Court for judicial review.
The Committee is encouraged to see
that the government plans to provide listed individuals not only with a
mechanism to correct cases of mistaken identity, but also with several avenues
to challenge decisions to place or keep them on the PPP list. We wish to ensure, however, that individuals
are able to appeal decisions to place them on the list and that they know their
rights and responsibilities with respect to their applications to
challenge. The Committee is therefore of
the view that the government should create an appeal process as well as publish
clear guidelines and information with respect to it.
RECOMMENDATION 23
That the government provide
individuals listed under the Passenger Protect Program with a process to appeal
decisions to list them and produce and publish clear guidelines on how individuals
may challenge decisions to place or keep them on the list.
Federal Government Outsourcing Contracts
Another concern raised by
certain witnesses appearing before the Committee related to the fear that
personal information of Canadians and those in Canada might be made available
to United States foreign intelligence officials under the USA PATRIOT Act,
which was the United States’ primary legislative response to terrorism, enacted
in October 2001.
The USA PATRIOT Act contains a
provision allowing foreign intelligence officials in the United States, such as the FBI, to obtain access
to “tangible items” under the Foreign Intelligence Surveillance Act, a U.S.
federal statute. Tangible items may
include a wide array of records or documents regardless of who is in possession
of them. Before issuing such an order,
the Foreign Intelligence Surveillance Act court must be satisfied that there
are reasonable grounds to believe that the tangible items sought are relevant
to an authorized investigation to obtain foreign intelligence information about
a non-U.S. person or to protect against terrorism or espionage. Individuals who receive tangible items
production orders are generally prohibited from revealing to anyone but their
lawyer that they have received such an order, although they can challenge the
non-disclosure aspect of the order as well as the order itself in court.
The USA PATRIOT Act also allows FBI officials to issue
National Security Letters (NSLs), a type of administrative subpoena, to
communications firms, financial institutions and other third parties, in order
to compel them to provide certain customer and financial records, whenever the
FBI certifies the records are relevant to an authorized investigation to
protect against international terrorism or clandestine intelligence
activities. As is the case with tangible
items production orders, persons who receive an NSL are generally prohibited
from revealing to anyone but their lawyers that they have received one,
although they are able to challenge the non-disclosure aspect of the order as
well as the NSL itself in court.
Certain witnesses who appeared before the Committee were
concerned that foreign intelligence agencies in the United States could use
provisions in the USA PATRIOT Act to access the personal information of
Canadians and those in Canada, either by obtaining it from Canadian
subsidiaries of U.S companies located in Canada or from U.S. companies with
which Canada’s federal or provincial governments, or private companies in
Canada, have signed outsourcing contracts.
The term
“outsourcing contract” is used to describe a contract in which the parties
agree that some of the goods and services that would normally be provided by a
particular organization will instead be provided by an external entity or
organization.
The Minister of Public
Safety stated that U.S. law
would not operate to allow subsidiaries of U.S.
companies located in Canada
to provide the FBI with tangible items pursuant to a U.S.
order, since the laws of Canada
would apply to these subsidiaries. However,
the Committee remains worried about this possibility, particularly in light of
a recent decision of the Supreme Court of British Columbia,
which indicates that expert opinions differ as to the effect that a USA PATRIOT
Act production order would have on records in the control of a Canadian
subsidiary.
The Committee notes that the Treasury Board Secretariat
has recently conducted a risk assessment respecting the contracting practices
of all federal government departments and institutions, to see whether, under
their current contracting practices, they provide personal information of
Canadians to external organizations that could potentially be accessed by the
U.S. foreign intelligence agencies under the USA PATRIOT Act. We are reassured by the results of this March
2006 assessment, which revealed that only seven out of 160 federal government departments
or institutions were in the medium or high risk category with respect to
outsourcing contracts. We also note that the Treasury Board
Secretariat has developed guidelines to assist federal government departments
and institutions when negotiating outsourcing contracts, to ensure that these
contracts contain contractual clauses that limit, as much as possible, both the
information and access to information provided under contract to external
organizations. However, the Committee believes it is necessary
to ensure that the federal government remains ultimately responsible for any
information it shares under contract, in the event that the personal
information of Canadians becomes available to external agencies like the FBI or
other U.S.
agencies. Federal departments and
institutions must be held accountable for the use or misuse of personal
information of Canadians and those in Canada provided under outsourcing
contracts to external entities.
RECOMMENDATION 24
That
federal departments and institutions be required to protect personal
information provided under outsourcing contracts to external entities by
securing against the unauthorized access, collection, use, disclosure or
disposal of personal information; placing restrictions on storage, access, and
disclosure of personal information outside of Canada; reporting any demand for
disclosure of personal information received to the Privacy Commissioner; and protecting whistle-blowers who report a
foreign demand for information.
Information Sharing by
Means of Agreement or Informal Exchange
During the course of the
Committee’s hearings, witnesses also discussed information sharing not mandated
by legislation, but which occurs anyway, either by means of agreements, as in
the case of the agreements that Canada and the United States have entered into
under the Smart Border Declaration, which allow for information exchange
between Canada and U.S. officials on a variety of border issues, or through
more informal information sharing arrangements.
The Maher Arar case provides a distressing illustration of what can
happen when this type of information sharing occurs in the absence of clear
guidelines or adequate review and oversight.
The Committee recognizes that information sharing has
been one of the topics studied in depth by the Commission of Inquiry into the
Actions of Canadian Officials in Relation to Maher Arar. We encourage the government to implement the
recommendations of Justice O’Connor in relation to information sharing in his
September 2006 report.
In particular, we would like the government to implement Recommendations 2, 9,
12 and 13, not only with respect to information sharing by the RCMP, but with
respect to information sharing by any Canadian agency involved in protecting
national security.
Recommendation 2 of Justice O’Connor’s September 2006 report
suggests that co-operative or integrated arrangements in relation to national
security investigations be reduced to writing.
Recommendation 9 states that the RCMP should never share information in
a national security investigation without attaching written caveats respecting
who can have access to the information and how the information is to be used.
Recommendation 12 states that where Canadian agencies become aware that foreign
agencies have made improper use of information provided by Canadian agencies,
they should file a formal objection. Finally,
Recommendation 13 states that the Department of Foreign Affairs and
International Trade should provide annual reports to the RCMP and CSIS assessing
the human rights records of various countries, to assist these organizations in
evaluating whether, and on what basis, they should continue to share
information with agencies of these countries.
RECOMMENDATION 25
That the
government put information sharing arrangements in relation to national
security investigations in writing; ensure that Canadian law enforcement and
security agencies attach written caveats regarding the use of shared
information; require Canadian agencies to make formal complaints to foreign
agencies regarding the misuse of shared information; and produce annual reports
assessing the human rights records of various countries.
SECRECY AND DISCLOSURE UNDER THE SECURITY OF
INFORMATION ACT
The Anti-terrorism
Act introduced several changes to the Act formerly known as the Official Secrets Act, including renaming
it the Security of Information Act (SOIA)
and creating new offences relating to economic espionage, communication of
safeguarded information to foreign entities or terrorist groups, and committing
violence or threats at the direction of a foreign entity or terrorist group for
the purpose of harming Canadian interests.
Additionally, the SOIAnow
permits the deputy head of a government institution to designate a person who has,
has had or will have access to special operational information as a person
permanently bound to secrecy, if it is in the interest of national security to
so designate that person. The new
concept of “special operational information” is broadly defined as information
that the Government of Canada is taking measures to safeguard and that may
reveal, or from which may be inferred, any of a long list of types of
information. Only the Governor General,
the lieutenant governors of provinces and judges are exempt from being
designated as persons permanently bound to secrecy.
Disclosure under Section
15 of the SOIA
![Text Box: “No person is guilty of an offence under section 13 or 14 if the person establishes that he or she acted in the public interest.” [SOIA, subsection 15(1)]](rep02feb07-e_files/image077.gif)
Sections 13 and 14 of the SOIAcreated offences prohibiting persons bound to secrecy from
intentionally and without authority communicating or confirming special
operational information, or information that, if it were true, would be special
operational information. There is a
limited defence under section 15, which allows disclosure of secret information
in the public interest in order to prevent the commission of an offence. Before disclosing the information, however,
an individual is required to bring the concern to the attention of his or her
deputy head, the Deputy Attorney General of Canada, the Security Intelligence
Review Committee (SIRC) or the Communications Security Establishment
Commissioner.
When appearing before us, a
representative of SIRC indicated that it was unclear what role SIRC is expected
to play in respect of the public interest disclosure defence under section
15. While the provision states that, in
certain circumstances, individuals wishing to avail themselves of the defence must
first bring their concern to SIRC, it does not state what SIRC is supposed to do
once a person does so. For example, it
is not known whether SIRC would conduct an investigation relating to the
special operational information, have certain statutory powers, or make findings
or recommendations through a report to a particular person. Considering the potentially serious
repercussions for government employees were they to disclose secret information,
SIRC believed that there should be more clarity in this matter. The Committee agrees that clarification is
required – not only with respect to the responsibilities of SIRC, but also the
other individuals who might receive notice, under section 15 of the SOIA, of a
concern regarding the possible commission of an offence.
RECOMMENDATION 26
That the government specify
the procedure to be followed by a deputy head, the Deputy Attorney General of
Canada, the Security Intelligence Review
Committee and the Communications Security Establishment Commissioner, as the
case may be, when they receive notice of a concern from a person wishing to
disclose special operational information under section 15 of the Security of Information Act.
Disclosure under Section 4
of the SOIA
![Text Box: “Every person is guilty of an offence under this Act who, having in his possession or control any secret official code word, password, sketch, plan, model, article, note, document or information, [communicates it to an unauthorized person].” [SOIA, paragraph 4(1)(a)]](rep02feb07-e_files/image079.gif)
Section 4 of the SOIA contains the more general offences
of unauthorized use or possession of secret information by any individual, not
just government officials bound to secrecy.
This section pre-dates the Anti-terrorism
Act and went essentially unchanged in 2001.
The public interest defence set out in section 15 of the SOIA is not
available to individuals who contravene section 4. Some witnesses suggested that section 4
should likewise contain a public interest defence so that individuals may
disclose information, for example, to prevent an offence or report wrongdoing
on the part of the government. Others
believed that section 4 of the SOIA requires amendment so that the further
dissemination of leaked material is not prohibited unless its disclosure could
reasonably be expected to injure national defence or national security, or the
material contains markings to indicate its classified nature.
Section 4 of the SOIAwas the subject of commentary by many witnesses,
in particular, because it was used by the RCMP as a basis for executing search
warrants at the home and office of Ottawa
Citizen journalist, Juliet O’Neill, on the grounds that she might have
information in her possession classified as secret in relation to the Maher
Arar investigation. Some expressed the
view that section 4 creates a chill with respect to public debates on national
security issues. The Committee notes
that the validity of the search warrants used against Ms. O’Neill were quashed
by the Ontario Superior Court of Justice in a decision rendered on 19 October
2006. The Court also struck down as
unconstitutional subsections 4(1)(a),
4(3) and 4(4)(b) of the SOIA, dealing
with wrongful communication and receipt of secret information, and allowing
another person to have possession of it.
The Court found that these subsections provide no guidance to the public
as to what constitutes prohibited conduct, and give the government the
unfettered ability to arbitrarily protect whatever it chooses to classify as
“secret official” – or even just “official” – information. The Committee is encouraged to learn that the
federal government will not be appealing the decision of the Ontario Superior
Court but will instead consider legislative options to resolve the concerns
raised by the judge.
The Type of Secret Information Protected
In our view, two defects
of section 4 of the SOIA require correction by the government in
particular. First, section 4 fails to
clearly and appropriately circumscribe the type of information that an
individual may not communicate, use, retain or allow another to possess. “Secret official” is too broad a concept, as
it encompasses more than information that might be injurious to the interests
of Canada,
such as information that would merely embarrass. The term “official document” is even more
problematic in its imprecision. In order
to more clearly indicate the nature of protected information, we 
note that the United
Kingdom’s Official Secrets Act qualifies
information that may not be disclosed on the basis that disclosure would be
“damaging,” for example to the work of the security and intelligence services,
the capability of the armed forces, or the interests of the country abroad. Our SOIA should be amended in such a way that
section 4 covers only information that must remain secret in order to protect
the safety, security or other specified interests of Canada.
RECOMMENDATION 27
That the Security
of Information Act be amended to
narrow the information that is applicable for the purpose of the offences under
section 4, such as by restricting it to secret official information the
disclosure of which would harm Canada’s
national defence, national security or other legitimate specified interests.
The Need for a Public Interest Defence
![Text Box: “[There should be a defence for] one who is in possession of information that could fall under the category of security intelligence and who thinks that the public needs to know it in order to prevent some form of abuse.”
(Wesley Wark, University of Toronto)](rep02feb07-e_files/image082.gif)
The second problem regarding section 4 of the SOIAis that it fails to provide for a
public interest defence. Just as there
may be times when a person sworn to secrecy must disclose information in the
public interest under section 15 of the SOIA, we believe there are times when
an individual – whether a government employee, journalist or ordinary member of
the public – must disclose information in order to prevent an illegal act, or
protect the life, health or safety of an individual. The Committee points out that, in addition to
the principles that operate to ensure secrecy and loyalty to the government,
there is an additional democratic principle by which matters of legitimate
concern should be brought to the attention of the public for debate or
resolution. We further note that, in the
case involving Ms. O’Neill, the Ontario Superior Court rejected the
government’s argument that a general public interest defence already exists
under section 4. The judge concluded that the express availability
of the defence under section 15, in conjunction with its absence under section
4, indicated Parliament’s intention in 2001 not to provide for a public
interest defence for the section 4 leakage offences.
We therefore call on the
government to amend section 4 of the SOIA so that it contains a defence based
on disclosure in the public interest.
This defence should be broader than the one currently set out in section
15, given that section 15 only permits disclosure to prevent the commission of
an offence and requires the individual sworn to secrecy to first raise his or
her concern within the government. With
respect to section 4, there may be times where disclosure is necessary for a broader
reason than to prevent an offence, and where first alerting the government may
defeat the purpose of bringing a matter to the attention of the public. Accordingly, a judge asked to determine
whether an offence has been committed under section 4 should more generally
weigh the public interest in disclosure against the public interest in
non-disclosure. Such a test under an
amended section 4 would be comparable to the test under section 38.06 of the Canada Evidence Act, where a judge
considers the public interest in disclosure when deciding whether to authorize,
in the context of criminal or administrative proceedings, the disclosure of
information that has been withheld by the government.
RECOMMENDATION 28
That the Security
of Information Act be amended so that no person is guilty of an offence
under section 4 if a judge determines that the person acted in the public
interest and the public interest in disclosure outweighed in importance the
public interest in non-disclosure.
A Purpose Prejudicial to the Interests of the State
![Text Box: “[M]uch could be gained both in terms of civil liberties and focusing limited resources by defining the state’s national security interests in a narrower and more tightly focused fashion.”
(Kent Roach, University of Toronto)](rep02feb07-e_files/image083.gif)
An individual commits various
offences under sections 4, 5 and 6 of the SOIA if he or she communicates
information, or attempts to gain admission to a prohibited place, for any purpose that is “prejudicial to the safety or interests of
the State.” When the Anti-terrorism Act was enacted in 2001,
this concept was specifically defined in section 3 of the SOIA. However, witnesses appearing before us suggested
that section 3 is too broad in defining what constitutes a purpose that is
prejudicial to the safety or interests of Canada. In particular, it includes commission of an
offence punishable by a maximum term of imprisonment of two years or more “in
order to advance a political, religious or ideological purpose, objective or
cause.” Some also argued that a prejudicial
purpose should not include the various economic or financial harms listed in
section 3.
The
Committee agrees that the SOIA’s current statement of what constitutes a
purpose prejudicial to the interests of the State is too broad. At a minimum, the reference to a political,
religious or ideological motive should be removed for the same reasons that we
cited earlier in the context of removing this phrase from the definition of
“terrorist activity” in section 83.01 of the Criminal Code. We also believe
that the government should evaluate the extent to which activities that affect
the economic or financial well-being of Canada
should be included within the concept of prejudicing the safety or interests of
Canada. While such harms resulting from the use of
secret information or entry into a prohibited place should be prevented, we
question whether they should be criminalized in the SOIA to the same extent as
injuries to health, safety or security.
RECOMMENDATION 29
That
paragraph 3(1)(a) of the Security
of Information Act be amended by removing the reference to the advancement
of a political, religious or ideological purpose, objective or cause from what
constitutes a purpose that is prejudicial to the safety or interests of Canada.
DETENTION AND DEPORTATION UNDER SECURITY CERTIFICATES
The process by which
non-citizens may be detained and deported based on confidential evidence that
they pose a risk to the security of Canada is not contained in the Anti-terrorism Act. Rather, it has existed in Canada’s immigration law for many
years, although amendments have substantially altered the process. Security certificates have been employed
infrequently but have garnered much criticism.
As a tool being used by the government in response to individuals who pose
a significant threat, the Committee determined that it was important to address
this contentious topic in the context of Canada’s anti-terrorism framework.
|
A “permanent resident” is a person who has
acquired permanent resident status and has not subsequently lost that
status. [IRPA, section 2]
A
“foreign national” is a person
who is not a Canadian citizen or a permanent resident, and includes a
stateless person. [IRPA, section 2] |
Under section 77 of the
Immigration and Refugee Protection Act
(IRPA), a permanent resident or foreign national may
be inadmissible to Canada
on grounds of security, violating human or international rights, serious criminality
or organized criminality. 
If so, they
are subject to a security certificate, which is then referred to the Federal
Court for a determination of its reasonableness. If the certificate is found to be reasonable,
it becomes a removal order, and there is no appeal or further judicial
review. Since 1991, 28 security
certificates have been issued, only 6 since 11 September 2001. Of the 28 issued, 19 have resulted in
deportations, the two most recent being the deportation of Ernst Zundel to Germany in March 2005 and the removal of an
individual using the alias Paul William Hampel to Russia in December 2006. Three security certificates have been quashed
by the courts as unreasonable, one of which was subsequently re-issued. Six people in Canada are currently the subject of
a security certificate: Mohamed Harkat,
Hassan Almrei, Adil Charkaoui, Mohamed Mahjoub, Mahmoud Jaballah and Manickavasagam
Suresh. Three of these individuals have
been released from detention on strict conditions: Mr. Suresh, Mr. Charkaoui and Mr. Harkat.
We have already recommended earlier in this Report that, in the course of
judicial consideration of the reasonableness of a security certificate, a
special advocate should be appointed to protect the interests of the foreign
national or permanent resident by having access to the confidential information
on which the certificate is based and challenging non-disclosure and the
reliability of the evidence. In this
section of our Report, we address some remaining concerns regarding the
security certificate process raised by witnesses who appeared before us.
Detention and Detention Review
![Text Box: “[One] should consider what the other options are, short of this extreme mandatory detention scheme that applies now. … [In other contexts] regardless of what kind of criminal they are, people get regular detention reviews.”
(Barbara Jackman, as an Individual)](rep02feb07-e_files/image086.gif)
Because it relates to
immigration, the security certificate process applies only to permanent
residents and foreign nationals, not Canadian citizens. Even as between permanent residents and
foreign nationals, different procedures are applicable. Once a security certificate has been signed, a
warrant may be issued for the arrest
and detention of a permanent resident under section 82 of the IRPA, on the
basis of reasonable grounds to believe that the permanent resident is a danger
to national security or to the safety of any person, or is unlikely to appear
at the proceeding or for removal. Foreign
nationals, on the other hand, are automatically subject to detention without
the issue of a warrant. Under section
83, the detention of a permanent resident must be reviewed by a judge within 48
hours, and then at least once every six months, until the security certificate
is reviewed and the permanent resident is either removed (deported) or allowed
to remain in Canada. There is no such detention review for a
foreign national prior to the hearing on the security certificate, which is
contrary to the approach used in criminal law, where persons generally have the
right to detention review shortly after being detained. As the Committee was troubled to learn, where
a security certificate is upheld but deportation is not possible due to the
risk faced by the individual in their home country, detention may continue for
years. The often long delay between
issuing a security certificate and holding the hearing to determine its reasonableness
also poses serious problems in terms of due process and the resolution of
matters within a reasonable time.
Many witnesses were harsh in their criticism of the security certificate
process, calling long-term detention without criminal charges “our own version
of Guantanamo Bay.”
It was argued that the process is discriminatory in that it only applies
to non-citizens and that it constitutes a significant departure from our usual court
processes where deprivation of liberty requires the state to meet a higher
evidentiary burden. Confirmation of the
certificate merely on the basis that it is “reasonable” is particularly
problematic, given that there is no appeal from such a determination. We were also warned of the possibility of
errors in these types of cases.
The Committee notes the United Nations Human Rights Committee’s concluding
observations in its review of Canada’s
security certificate process and its compliance with the International Covenant on Civil and Political Rights. In its April 2006 report,
the U.N. Committee was concerned that “some people have been detained for
several years without criminal charges, without being adequately informed about
the reasons for their detention, and with limited judicial review.” It therefore urged Canada to “ensure that
administrative detention under security certificates is subject to a judicial
review that is in accordance with article 9 of the Covenant, and legally
determine a maximum length of such detention.”
The U.N. Committee also expressed concern about the mandatory detention
of foreign nationals who are not permanent residents. It stated that Canada “should also review its
practice with a view to ensuring that persons suspected of terrorism or any
other criminal offences are detained pursuant to criminal proceedings in
compliance with the Covenant. It should
also ensure that detention is never mandatory but decided on a case-by-case
basis.”
The Committee recognizes
that immigration law distinguishes between the rights of Canadian citizens and
those of permanent residents or foreign nationals. Unlike a citizen, a permanent resident or
foreign national does not have the unqualified right to enter and leave Canada,
or to remain here. We also recognize
that there is a justification in treating matters that involve Canada’s
national security differently from those that do not. However, this does not mean that the
procedure surrounding the detention of a non-citizen on the basis of a security
certificate should not be as fair and just as possible. Departures, in the interests of national
security or the fight against terrorism, from full adherence to the usual
principles of fundamental justice and due process should be as minimal as they
can be in the circumstances.
We note that section 84
of the IRPA permits a foreign national who has not yet been deported, within
120 days after a security certificate has been upheld, to apply for
release. The judge may allow release,
under any appropriate conditions, if satisfied that the individual will not be
removed within a reasonable time and that his or her release 
will not pose a danger to national security or the safety of any
person. If a foreign national may apply
for release after consideration of
the security certificate, we see no reason why he or she should not be entitled
to detention review before the
security certificate has been considered.
We are also aware that in a decision rendered 1 February 2006, the
Federal Court found that the long continuing detention of a foreign national
without review prior to consideration of the security certificate is
discriminatory within the meaning of section 15 of the Canadian Charter of Rights and Freedoms, when compared to the
statutory entitlements of permanent residents.
Because a foreign national
who is the subject of a security certificate may be arrested without a warrant,
the unavailability of detention review under the current legislation means that
no judge has considered the matter at all
until the main hearing on the certificate, which can often be several months or
years later. This is clearly an affront
to the normal principles of due process that cannot be justified simply on the
basis of national security. Accordingly,
the Committee is of the view that foreign nationals should be eligible for
detention review at least some point prior to the determination of the
reasonableness of a security certificate.
A judge should not order continued detention unless satisfied that the
foreign national is a danger to national security or the safety of any person,
is unlikely to appear at a future proceeding, or is unlikely to appear for the
purposes of removal, should it be ordered.
We recognize that the factors and information considered by the judge
during review of the detention of a foreign national may be different from
those considered in the case of a permanent resident. For example, a foreign national may more
likely pose a flight risk due to insufficient ties to Canada, or the government’s information relating
to the alleged national security risk may more likely come from foreign sources
rather than from sources within Canada.
RECOMMENDATION 30
That subsection 83(1) of the Immigration and Refugee Protection Act
be amended to require a judge to review, within 48 hours, the detention of a
foreign national who is subject to a security certificate.
As indicated earlier,
pending consideration of the security certificate, a permanent resident is
currently only entitled to detention review every six months. In addition to allowing foreign nationals to
have prior detention review, we believe that both permanent residents and
foreign nationals should be entitled to detention reviews more frequently than
every six months. The Committee notes,
for instance, that detention reviews in other contexts of the IRPA occur far
more often. With respect to the security
certificate process, the Committee points out that it is possible within a
relatively short period of time for an individual’s circumstances to change or
for information to become available, which might justify the release of the
individual on conditions. Accordingly,
detention reviews should be conducted, not only within 48 hours of arrest, but
subsequently within 30 days and then every 90 days after that. Again, it is in the interests of due process
and fundamental justice, while still bearing in mind the unique challenges
posed in matters of national security, that the Committee makes this
recommendation. It is a means of
ensuring that there is ongoing and frequent judicial review of a person’s case
throughout what can be a very lengthy period of detention.
RECOMMENDATION 31
That subsection 83(2) of the Immigration and Refugee Protection Act
be amended to require the detention of a permanent resident or foreign national
who is subject to a security certificate to be reviewed by a judge within 30
days after detention and at least once every 90 days thereafter.
Evidence or Information Obtained by Torture
Some witnesses who appeared before the Committee referred
to the danger of relying on evidence obtained by means of torture and the
concern that it could be used in security certificate proceedings. Beyond the moral aspects of using such
evidence, we agree that its reliability is highly suspect. We also note that, in December 2005, the
British House of Lords unanimously
held that information obtained by torture could not be used in court
proceedings, including where British officials had no prior involvement in the
torture and where the torture was perpetrated outside of the territory or
control of the United
Kingdom.
![Text Box: “[Legislation] should state explicitly that any evidence obtained by torture is inadmissible and that where the source of evidence is from a foreign intelligence agency in a country known to practice torture, the evidence is presumptively unreliable.”
(British Columbia Civil Liberties Association)](rep02feb07-e_files/image091.gif)
Witnesses who appeared
before us suggested that the rules of evidence and administrative law should be
strengthened to forbid acceptance by any court or agency of information that is
derived from torture. We note that, in
September 2006, Justice O’Connor, who headed the Commission
of Inquiry relating to Maher Arar, stated in his Recommendation 15 that
Canadian agencies should identify information that comes from countries with
questionable human rights records, consider the human rights implications, and
take proper steps to assess the information’s reliability. We reiterate these views. Canadian security and intelligence agencies
must carefully scrutinize any information that may have been obtained by
torture before using the information as a basis for an investigative technique,
to lay charges, or to substantiate a prosecution or security certificate. This may also require a more appropriate
allocation of resources and a greater number of personnel with the necessary
expertise to properly analyze information that may have been obtained by
torture. The crucial point is that Canada’s national security and law
enforcement agencies should commit to the careful assessment of claims of past
torture and the reliability of any evidence that may have been obtained from
it.
With
respect to the rules of evidence, we were reminded by a witness that it is a
general principle of law that evidence that is not reliable, which means
credible and trustworthy, is not to be taken into account. Evidence derived by torture is, by its very
nature and source, unreliable and should therefore be substantiated or
corroborated by other means. Although
the rejection of unreliable evidence should go without saying, we note that
paragraph 78(j) of the IRPA 
states that the judge
considering a security certificate may receive into evidence anything that is
“appropriate.” For certainty and
clarity, the Committee believes that this should be changed to “reliable and
appropriate,” particularly given that these are the qualifying words used in
the comparable provisions governing judicial review of the listing of a
terrorist entity, consideration of a certificate having the effect of denying
or revoking charitable status, applications under the Canada Evidence
Act with respect to the disclosure of information, and applications to vary
or cancel a certificate of the Attorney General of Canada prohibiting
disclosure.
RECOMMENDATION 32
That paragraph 78(j) of the Immigration and
Refugee Protection Act be amended to expressly state that the judge
considering the reasonableness of a security certificate may receive into
evidence anything that is “reliable and appropriate.”
The Availability
of an Appeal
![Text Box: “In respect of security certificates, we [suggest] an accelerated appeal…, given the few cases, the importance of this matter and the problems that occur with indefinite detentions.”
(Murray Mollard, British Columbia Civil Liberties Association)](rep02feb07-e_files/image093.gif)
Certain witnesses who appeared
before the Committee expressed concern about the fact that subsection 80(3) of
the IRPA precludes judicial review of, or an appeal from, the Federal Court’s
decision regarding the reasonableness of the security certificate. They found it very unfair that an individual
is immediately subject to removal once a certificate is upheld by a single
judge. We likewise seriously question
whether the finality of the initial determination complies with the normal
principles of justice when a person’s rights and interests are at stake. In the security certificate process, where
individuals do not have unimpeded access to the information used against them,
and where the consequences of the proceedings may be continued detention or
deportation, the latter sometimes to a country where the individual may be at
risk of harm or ill-treatment, it is unacceptable for them not to have the
right of appeal. The principles of
justice and due process demand it.
RECOMMENDATION
33
That subsection 80(3) of the Immigration and
Refugee Protection Actbe repealed, and that the determination of a
judge of the Federal Court regarding the reasonableness of a security
certificate be subject to an appeal to the Federal Court of Appeal.
Deportation and the Risk
of Torture
During his appearance
before the Committee, the Minister of Justice and Attorney General repeatedly
pointed out that individuals who are subject to a security certificate may be
released from detention if they agree to return to their country of
nationality. It is also sometimes
possible to negotiate the removal of an individual to a third country. However, where an individual’s country of
origin is one with a record of human rights abuses, and removal to a safe third
country is not available, this raises the serious possibility that the individual
may be tortured once he or she is outside Canada. In other words, it is not always a solution
to say that an individual may end his or her detention by voluntarily agreeing
to leave Canada, or that
detention will end if the security certificate is upheld and the individual is
ordered to be removed from Canada.
With respect to the deportation of individuals subject
to a security certificate, the Committee believes that Canada’s commitments under the United
Nations Convention against Torture must
be upheld. Article 3(1) explicitly
prohibits state parties from returning a person to another state where there
are substantial grounds for believing that he or she would be in danger of
being subjected to torture. Article 2(2)
provides that under no circumstances are states permitted to deviate from this
absolute prohibition. In May 2005, the United
Nations Committee against Torture criticized Canada’s failure “to recognise, at
the level of domestic law, the absolute nature of the protection of article 3
of the Convention that is subject to no exceptions whatsoever.”
The foregoing comments were echoed by the United Nations
Human Rights Committee in its April 2006 report on Canada’s compliance with International Covenant on Civil and
Political Rights:
The
State party should recognize the absolute nature of the prohibition of torture,
cruel, inhuman or degrading treatment, which in no circumstances can be derogated
from. Such treatments can never be
justified on the basis of a balance to be found between society’s interest and
the individual’s rights under article 7 of the Covenant. No person, without any exception, even those
suspected of presenting a danger to national security or the safety of any
person, and even during a state of emergency, may be deported to a country
where he/she runs the risk of being subjected to torture or cruel, inhuman or
degrading treatment. The State
party should clearly enact this principle into its law.
Certain witnesses who appeared
before us repeated the substance of the United Nations’ statements, namely that
individuals should not be deported to a country where there are substantial
grounds to believe that they would be in danger of being tortured. The Committee recognizes that this principle poses the dilemma of how to
appropriately deal with a person who cannot safely be deported from Canada
but, as a result of a risk to national security, faces the prospect of
indefinite detention here. Nonetheless,
we believe that, in
order to confirm that torture is never justifiable, as well as uphold its
international obligations, Canada
should enact an express prohibition against deportation to torture,
specifically in the context of removal on the basis of a security
certificate. Accordingly, Canada’s national security agencies should carefully
assess claims of anticipated torture in order to determine whether or not there
are reasonable grounds to believe that the individual will be subject to
torture in the country to which he or she may be removed if a security certificate
is upheld. It is also important to bear
in mind that torture does not only include state-sponsored torture, but may
also be the result of the failure of the receiving country to protect the
individual from torture by a third party.
RECOMMENDATION 34
That the Immigration
and Refugee Protection Act be amended to provide that, unless an individual
chooses to voluntarily leave Canada, there shall be no removal of a permanent
resident or foreign national on the basis of a security certificate if there
are reasonable grounds to believe that the individual will be subject to
torture in the country to which he or she will be removed.
Diplomatic Assurances Against Torture
One of the ways by which
Canadian officials might conclude that torture is not likely to occur, and that
an individual may therefore be removed following confirmation of a security
certificate, is through the acceptance of a “diplomatic assurance.” In other words, governments will occasionally
remove an individual to a country known to engage in torture, on the basis of a
commitment that the individual will, in fact, not be tortured. A diplomatic
assurance from another country may consist of an undertaking to observe the
human rights of an individual, as well as a mechanism to confirm that this
commitment is being met, such as through monitoring or reporting.
Commentators argue that diplomatic assurances are
ineffective, as they are generally given by countries with a persistent pattern
of human rights abuses that will not change.
Given the clandestine nature of torture, there is difficulty monitoring
a state after the return of an individual to ensure that ill-treatment does not
take place. Moreover, the acceptance of
diplomatic assurances erodes the international prohibition against torture, as
all states should abide by the prohibition regardless. Diplomatic assurances were the subject of a
May 2006 report of the United Kingdom Parliament’s Joint Committee on Human
Rights, which concluded that a number of cases point to their unreliability in protecting
against torture.
To the extent that the Canadian government may consider
a diplomatic assurance to be reliable evidence that an individual does not face
a risk of torture if removed to another country under a security certificate,
we wish to ensure that appropriate mechanisms are in place for monitoring the
return. This includes the ability to
obtain information regarding the status and condition of the returned
individual from a reliable source. If
the government does not fully believe that it will have the capacity to
determine whether or not an individual is being properly treated, and that the
diplomatic assurance is being complied with, the government should not deport
the individual.
RECOMMENDATION 35
That,
before removing an individual to a country where torture is possible, on the basis of a diplomatic
assurance that the individual will not be tortured, the government ensure that
there will be an effective means of monitoring the individual’s return,
including the ability to access the necessary information to ascertain whether
or not the individual is being tortured.
The Need for an International Solution
The
principle against deportation to torture can result in a very unfortunate
predicament for a person detained under a security certificate who a judge
believes should not be released as a result of a risk to national security or
the safety of a person. The case of
Mahmoud Jaballah illustrates this. On 16
October 2006, the Federal Court upheld the decision to detain him on a security
certificate, asserting that Mr. Jaballah should be removed from Canada
as soon as could reasonably be done. However, the Court also ruled that Mr.
Jaballah could not be deported to Egypt, his country of citizenship,
because of the risk of torture he would face there, nor to any other country where
he could face a risk of torture. The
result is that Mr. Jaballah must either remain in detention, leave Canada
voluntarily, or be removed to a safe third country willing to accept him.
When faced with the
alternatives of indefinite detention in Canada and deportation to a country
where torture is probable, the former will undoubtedly be the choice of most
individuals subject to a security certificate, and indeed, it should be the
government’s choice. That said, even in cases where an individual will not face a risk of torture on
removal to a particular country, the Committee does not believe that removal is necessarily the easy solution. An individual may still be a threat to Canada
if living elsewhere. Further, in the fight against terrorism, Canada has a responsibility to the international
community. Simply deporting individuals,
so that other countries must deal with them or contend with the threat posed,
is in some ways an abrogation of a collective duty to reign in terrorists and
make the world a safer place.
The Committee does not
know the answer to the very difficult question of how best to deal with
individuals who pose a threat to Canada but face a risk of torture in the only
country or countries to which they may be removed, or how best to deal with
individuals who may or may not face a risk of torture but pose a threat to the
international community at large. We do,
however, urge Canada
to begin a dialogue with other countries, perhaps by encouraging the creation
of a United Nations task force or proposing an examination by the existing
Security Council Counter-terrorism Committee, so that the international
community may reflect on these important questions. Among other things, it must be determined
whether there is a maximum limit to continued detention and at what point an
individual should be charged with a specific offence, particularly given that
the international community can share intelligence in order to bring an alleged
terrorist to justice. While preventive
measures, such as deportation on the basis of a security certificate, are
occasionally necessary in the fight against terrorism, there is a point at
which the precautionary principle must give way to the principle by which individuals
are entitled to know and respond to the allegations against them, and be tried
in a country that respects the principles of fairness and due process.
RECOMMENDATION 36
That
Canada show leadership in engaging the United Nations on the issue of how to
properly deal with alleged or known terrorists who, regardless of what country
they are in or to which they may be removed, pose a threat to the international
community as a whole.
RECOMMENDATION 37
That
Canada show leadership in engaging the United Nations on the issue of how to
properly deal with alleged or known terrorists who may not be removed to
another country due to a risk of torture, and are instead subject to indefinite
detention without the prospect of criminal or other proceedings in which to
respond to the case against them.
OVERSIGHT AND REVIEW OF CANADA’S NATIONAL SECURITY AND ANTI-TERRORISM FRAMEWORK
The lack of adequate oversight and review of matters
relating to national security and anti-terrorism has been a recurring preoccupation
since the time the Anti-terrorism Act
was first tabled in Parliament. When a Special
Senate Committee conducted its pre-study of Bill C-36 in the fall of 2001, a
recommendation was made that an Officer
of Parliament be appointed to monitor, as appropriate, the exercise of powers
provided in the Anti-terrorism Act. It was further suggested that this officer
table a report annually, or more frequently, as appropriate, in both
Houses. The Special Senate Committee on
the Subject Matter of Bill C-36 also suggested that the entire Act be
sunsetted, in other words be subject to expiry on a future date and renewed or
re-enacted if it was determined to be justified.
In October 2004, the Interim Committee of
Parliamentarians on National Security recommended the creation of a
parliamentary intelligence committee to ensure that the security and
intelligence community effectively serves Canada’s interests, respects the Charter of Rights and Freedoms and
remains fiscally responsible, properly organized and well managed. In November 2005, a National Security Committee of
Parliamentarians was proposed in Bill C-81, which died on the Order Paper with the dissolution of the
38th Parliament. With access
to classified information, the Committee’s mandate would have been to review
the legislative, regulatory, policy and administrative framework for national
security in Canada,
the activities of federal departments and agencies in relation to national
security, and any other matters relating to national security referred to it by
the government. The Committee would have
been comprised of Senators and Members of the House of Commons but would have
reported to the Prime Minister.
We also note some of the
approaches used by other countries to monitor or review their national security
and anti-terrorism frameworks. In the United Kingdom,
an independent reviewer has been appointed to monitor the operation of that
country’s anti-terrorism legislation.
The U.K.
also has an Intelligence and Security Committee, made up of parliamentarians
who oversee the operations of relevant agencies and report to the Prime
Minister. The United
States has a Senate Select Committee on Intelligence and
a House Permanent Select Committee on Intelligence, although their powers to
review and to obtain classified information are greater than that normally
enjoyed by parliamentary committees in Canada.
We believe that the best way
to ensure that Canada’s
anti-terrorism initiatives are exercised in a manner consistent with our
fundamental principles and values – and the best way for Canadians to feel
confident that the powers are being exercised in this way – is to provide for
ongoing, independent oversight and review.
That said, recommendations from witnesses who appeared before us
differed on how to best achieve this.
Some asked us to endorse the National Security Committee of
Parliamentarians previously proposed in Bill C-81, while others called for a
parliamentary review of the operation of Canada’s anti-terrorism framework
every few years. Some wished to appoint
an independent reviewer of anti-terrorism legislation, responsible directly to
Parliament and with a role similar to that of Lord Carlile in the United Kingdom. Others suggested that the government
strengthen the ability of the Commission for Public Complaints Against the RCMP
to oversee that organization. Still
others called for the creation of a new overall oversight body that would
monitor not only the conduct of CSIS, the CSE and the RCMP, but all other government agencies and departments,
to the extent that they are involved in matters of national security. The new body would provide integrated
oversight, as well as monitor the operations of agencies that are not currently
subject to external or independent review.
Oversight of National Security Activities
![Text Box: “[O]versight should be independent, effective and accessible.”
(Ziyaad Mia, Canadian Muslim Lawyers Association)](rep02feb07-e_files/image099.gif)
Canada’s
primary oversight bodies in matters of national security are the Security
Intelligence Review Committee (SIRC), whose mission
is to protect
Canadians’ rights by ensuring that the Canadian Security Intelligence Service (CSIS)
acts within the law; the Commissioner of the Communications Security Establishment (CSE), which
oversees the activities of Canada’s signals intelligence agency; and the
Commission for Public Complaints against the Royal Canadian Mounted Police (RCMP). The operations of CSIS are also subject to internalreview by the Inspector General, who reports to the government as to
whether CSIS is complying with its operational policies and ministerial directives.
While SIRC
and the CSE Commissioner are generally perceived to be effective oversight
mechanisms, the Commission for Public Complaints Against the RCMP is not, due
to its limited powers. For instance, SIRC has almost complete authority
to review the activities of CSIS, and has access to sensitive and classified
information, with the exception of Cabinet confidences. The Commission for Public Complaints Against
the RCMP, on the other hand, usually only
becomes involved when individuals complain directly to it, or are dissatisfied
with how the RCMP has handled their complaints and appeal to it. Moreover, the Public Complaints Commission
receives only information that the RCMP believes is relevant to a complaint. The Commission is not involved in any form of
continuing review of the operations of the RCMP or the adequacy of its
practices. While the Public Complaints
Commission has the mandate to review complaints arising out of the national
security functions of the RCMP,
its ability to discharge that mandate is hindered, due to its limited access to
information.
In the context of the
Commission of Inquiry into the Actions of Canadian Officials in relation to
Maher Arar, Justice O’Connor recommended, in his December 2006 report, the
creation of an enhanced review and complaints body to oversee the national
security functions of the RCMP. In our view, it is clear that the RCMP
requires more comprehensive oversight of its anti-terrorism-related powers and
national security activities. We believe
that the preferable way to achieve this is to give an oversight body powers
comparable to the powers that SIRC enjoys in its review of CSIS activities,
including the fullest possible access to information and an ability to audit
the day-to-day operations of the RCMP to ensure that it is always in compliance
with the law. We note that Justice
O’Connor made similar recommendations, namely that the new oversight body,
which he calls the Independent Complaints and National Security Review Agency
for the RCMP (ICRA) should have authority to conduct self-initiated reviews,
subpoena documents, compel testimony, and investigate and report on complaints.
With respect to improved oversight of the RCMP, we
believe that particular emphasis should be placed on proper information and
criminal intelligence sharing, respect for individual rights, and the avoidance
of racial profiling. At the same time,
the Committee wishes to point out that additional oversight and review is not
the only or even best way to ensure that the fight against terrorism is
properly carried out. Nothing replaces
well-staffed, well-financed police and intelligence services that are able to
adequately perform their functions and gain the trust of the community in the
first place.
RECOMMENDATION 38
That the government implement more effective oversight of
the RCMP, akin to the level and nature of oversight that SIRC performs in
relation to CSIS, particularly in terms of access to information and the
capacity to audit day-to-day national security functions.
A Standing Parliamentary Committee
In conjunction with adequate oversight of the RCMP, the
Committee believes that there must be ongoing parliamentary monitoring of
national security matters, including the Anti-terrorism
Act, other relevant legislation, and the policies of the government departments
and agencies that are involved. Particularly because many aspects of
the Anti-terrorism
Act, as well as the Public Safety Act, 2002, are extraordinary, they should be subject
to ongoing parliamentary oversight and review to assess their continued relevance,
and to keep them in the public eye. It
is the cumulative effect of all of Canada’s anti-terrorism laws,
policies and practices that requires careful assessment on an ongoing basis, to
ensure that the rights and interests of individuals are affected no more than
is necessary to protect national security.
The powers of surveillance, enforcement and investigation given to Canada’s
security, intelligence and police services, as well as to federal ministers,
should not creep into the general law and become entrenched.
Canada’s anti-terrorism legislation is
disparate and the government departments and agencies implementing and
enforcing it are diverse. In addition to
CSIS, the CSE and the RCMP, there are the Financial
Transactions and Reports Analysis Centre, the Canada Border Services
Agency, the Canadian Air Transport Security Authority, and the Canada Revenue
Agency. Many government departments are also
implicated in matters relating to national security, namely Justice, Public
Safety and Emergency Preparedness, National Defence, Foreign Affairs and
International Trade, Citizenship and Immigration, Transport, and Health. Further, there are other watchdog agencies
that sometimes play a role in protecting the interests of individuals in the
context of anti-terrorism, such as the Office of the Privacy Commissioner, the
Office of the Information Commissioner, the Office of the Auditor General, and
the Canadian Human Rights Commission.
![Text Box: “The legislation and its implementation need to be monitored and decisions vested in the government and its ministers need to be subject to third-party review.”
(Ed Cashman, Public Service Alliance of Canada)
“[A] parliamentary role in this area seems advisable.”
(Alex Neve, Amnesty International)](rep02feb07-e_files/image102.gif)
By receiving information
on the activities of these departments and agencies as they relate to
anti-terrorism and national security, as well as being referred relevant annual
reports by them, a parliamentary committee would be able to review issues that involve
more than one agency or where no form of integrated review is available. It could also examine whether there should be
an oversight mechanism within the government to monitor and coordinate the
activities and policies of all agencies involved in national security
matters. We are aware that Justice
O’Connor recommended, in December 2006, the establishment of an integrated review
coordinating committee, made up of the CSE Commissioner, the Chair of SIRC, the
Chair of a new RCMP review agency, and a fourth independent person. A parliamentary committee could examine the desirability
and feasibility of such an arrangement, or receive information from the
integrated review coordinating committee, if it were created.
Even if the committee
recommended by Justice O’Connor is established, it is important to have
scrutiny by Parliament as a means of balancing executive oversight and keeping
the public apprised of anti-terrorism-related matters and activities. The practices of government agencies,
particularly those involved in national security, can be very unfamiliar to the
average Canadian and it is through Parliament that the public often learns
about issues and expresses its views and opinions. Likewise, parliamentary involvement would
still be warranted if SIRC and a newly created ICRA were to have expanded
authority to oversee other national security agencies, as also recommended by
Justice O’Connor. While duplication of effort should be
avoided, it is necessary, given Canada’s
constitutional framework, to have parliamentary review and scrutiny that
complements the policy and operational decisions of the government. The fact that the Anti-terrorism Act provides for the courts to authorize certain
investigative powers of police is another example of complementary
oversight. If the government, the courts
and Parliament each fulfil their respective roles in Canada’s anti-terrorism framework,
there is three-pronged oversight and accountability through the executive,
judicial and legislative branches.
A standing parliamentary
committee might also choose to address one specific issue relating to a
particular agency in great detail, or ensure the adequacy of required reports,
such as those of the Attorney General of Canada on the use of investigative
hearings and recognizance with conditions/preventive arrest. The objective would be to hold the government
to account and instil public confidence.
At the same time, the committee would shape law and policy through its
observations and recommendations, as well as directly influence legislation
when amendments to Canada’s
anti-terrorism laws are referred to it for study. A standing committee would have the further
advantage of being in a position to follow up on issues identified in previous parliamentary
reports. On that point, the committee we
are contemplating would report directly to Parliament, as is the normal course,
rather than to the Prime Minister, as was envisioned by Bill C-81.
We considered the extent
to which a standing parliamentary committee should have access to secret or
confidential information. Barring special
situations that might warrant it, in which case the committee might conduct its
proceedings in camera with the
appropriate approval, the parliamentary review that we envision would be open
and transparent, undertaken in much the same way as our present study. Public hearings and witness testimony from
those affected by Canada’s
anti-terrorism and national security legislation and policies would allow the
agenda of a standing committee to be driven by those issues that are of the
greatest public concern. We expect the
committee’s work to be more comprehensive – a form of overall monitoring as
opposed to review of specific operations and individual
cases or complaints. Particularly once
oversight of the RCMP’s activities is improved, the standing committee would
provide a complementary form of scrutiny.
We believe that it is
preferable for the standing committee to be established by the Senate, with a
sufficient number of Senators with the relevant expertise and experience, in
order to take advantage of the Senate’s institutional memory in relation to the
Anti-terrorism Act and other past
developments in Canada’s
national security framework. The
committee should also have a dedicated staff, as does the Standing Joint
Committee on Scrutiny of Regulations, and a sufficient budget for it to carry
out its mandate. We recognize that there are existing parliamentary committees that
currently address matters relating to Canada’s national security. However, the committee we envision would have
no other responsibilities, and would place a particular emphasis on laws,
polices and issues relating to anti-terrorism.
Whether or not a
standing parliamentary committee is established to provide ongoing oversight
and review of Canada’s
anti-terrorism legislation and regime, there should, at a minimum, be another comprehensive
parliamentary review of the provisions and operation of the Anti-terrorism Act in three years, as
well as every five years after that. We
point out that we have already recommended earlier in this Report that the
provisions on investigative hearings and recognizance with
conditions/preventive arrest expire in three years unless extended by
Parliament. This means that those
provisions would require prior examination either by the standing parliamentary
committee that we recommend or in the context of the next parliamentary review
in three years.
As
Canada’s anti-terrorism legislation and national security framework never cease
to affect the rights and freedoms of specific individuals and are always
relevant to the general public, the Committee believes that it is strongly
preferable to carry out oversight and review on an ongoing basis, rather than
wait for a parliamentary review at a future date before addressing these
important matters. It is for this reason
that we recommend both a standing parliamentary committee to conduct ongoing
examination and monitoring of issues and activities relating to national
security and anti-terrorism, as well as consistent periodic reviews of the
provisions and operation of the Anti-terrorism
Act specifically.
RECOMMENDATION 39
That a
standing committee of the Senate, with dedicated staff and resources, be
established to monitor, examine and periodically report on matters relating to Canada’s
anti-terrorism legislation and national security framework on an ongoing basis.
RECOMMENDATION 40
That the Anti-terrorism Act be amended to
require, within eight years of royal assent (i.e., by December 2009) and within
every five years thereafter, another comprehensive review of the provisions and
operation of the Act to be undertaken by a parliamentary committee or
committees established by either or both Houses of Parliament, followed by a
report or reports to Parliament, within a year after each review is undertaken or
such further time as may be authorized, setting out any recommendations for
change.
APPENDIX 1 – LIST OF RECOMMENDATIONS
RECOMMENDATION 1
That clause 83.01(1)(b)(i)(A) of the Criminal
Code, which requires an act or omission to be “... committed in whole or in
part for a political, religious or ideological purpose, objective or cause,” be
removed from the definition of “terrorist activity” found in section 83.01(1).
RECOMMENDATION 2
That the government legislate a single
definition of terrorism for federal purposes.
RECOMMENDATION 3
That paragraph (c) of the definition of “threats to the security of Canada” in
section 2 of the Canadian Security and
Intelligence Service Act be amended by removing the reference to a
political, religious or ideological objective and replacing it with alternate
wording to indicate the type of violent activities against person or property
that constitute threats to the security of Canada.
RECOMMENDATION 4
That, in addition to implementing clear policies against racial profiling,
all government departments and agencies involved in matters of national security
and anti-terrorism engage in sufficient monitoring, enforcement and training to
ensure that racial profiling does not occur, the cultural practices of Canada’s
diverse communities are understood, and relations with communities are improved
generally.
RECOMMENDATION 5
That the
government launch an information program and produce materials in various
languages to increase public awareness of: the proper role and powers of police
and national security agencies in the fight against terrorism; the rights of
individuals, particularly on questioning or arrest; and the mechanisms that are
available to address complaints, particularly those of racial profiling.
RECOMMENDATION 6
That the government strengthen the ability of the Cross-Cultural Roundtable on Security to effect
change in matters relating to national security and anti-terrorism by giving it
a more focused mandate, ensuring more balanced representation, detaching it from
the Department of Public Safety and Emergency Preparedness and increasing its
budget, all for the purpose of obtaining input from those communities most
affected by anti-terrorism laws, policies and practices.
RECOMMENDATION 7
That in
proceedings where information is withheld from a party in the interest of
national security and he or she is therefore not in a position to make full answer and
defence, a special advocate having access to the
confidential information held by the government be appointed to represent the
party’s interests, as well as the public interest in disclosure, by challenging
the facts and allegations against the party and the government’s arguments for
non-disclosure.
RECOMMENDATION 8
That the special advocate be able to communicate
with the party affected by the proceedings, and his or her counsel, after
receiving confidential information and attending in camera hearings, and that the government establish clear
guidelines and policies to ensure the secrecy of information in the interest of
national security.
RECOMMENDATION 9
That the party affected by the proceedings be
entitled to select a special advocate from among an adequately sized roster of
security-cleared counsel who have the appropriate expertise and are funded by,
but not affiliated with, the government.
RECOMMENDATION 10
That the
government provide written justification for listing each terrorist entity under
its three listing regimes.
RECOMMENDATION 11
That the
Department of Justice be required to review and provide an independent
evaluation of the information that security and intelligence agencies provide
to the Minister of Public Safety before he or she recommends to Cabinet the
listing of a terrorist entity, retaining one on the list, or removing one from
the list.
RECOMMENDATION 12
That the
definitions of “potentially injurious information” and “sensitive information”
in section 38 of the Canada Evidence Act,
and the basis on which a judge may decide not to authorize the disclosure of
such information under section 38.06, be amended to specify the way in which
information must injure or relate to international relations, for example by
restricting the authority to withhold information to situations where the information
could breach specified confidences of another country.
RECOMMENDATION 13
That sections
38.13 and 38.131 of the Canada Evidence
Act be amended to ensure that information is withheld, under a certificate of the Attorney General of
Canada prohibiting the disclosure of information, only where it is necessary to
protect national defence, national security, or a specified aspect of Canada’s
relations with foreign entities.
RECOMMENDATION 14
That section
38.131 of the Canada Evidence Act be
amended so that, in determining whether or not a certificate issued by the
Attorney General of Canada prohibiting the disclosure of information should be
varied, canceled or confirmed, the judge must consider whether the public
interest in disclosure outweighs in importance the public interest in non-disclosure.
RECOMMENDATION 15
That subsection 38.131(11) of the Canada Evidence Act be repealed, and
that an order of a judge of the Federal Court of Appeal varying, canceling or
confirming a certificate issued by the Attorney General of Canada prohibiting
the disclosure of information be subject to an appeal to three judges of the
Federal Court of Appeal.
RECOMMENDATION 16
That the application of sections 83.28, 83.29
and 83.3 of the Criminal Code, relating
to investigative hearings and recognizance with conditions/preventive arrest,
be extended to the end of the fifteenth sitting day of Parliament after
December 31, 2009, subject to the possibility of further extension following
resolutions passed by both Houses of Parliament.
RECOMMENDATION 17
That the Attorney General of Canada include, in
each annual report on the use of investigative hearings and recognizance with
conditions/preventive arrest, a clear statement and explanation indicating
whether or not the provisions remain warranted.
RECOMMENDATION 18
That subsections 273.65(2) and (4) of the National Defence Act be amended to
clarify whether the facts and opinions, which are necessary to satisfy the
Minister of National Defence that all of the preconditions for issuing a
written authorization to intercept private communications have been met, should
be based on reasonable belief or reasonable suspicion.
RECOMMENDATION 19
That, in order to
safeguard the privacy of Canadians and those in Canada, the Communications
Security Establishment develop, if it has not already done so, information
retention and disposal policies, containing specific time frames for the
disposal of information, with respect to the private communications it
intercepts pursuant to 273.65(1) to (4) of the National Defence Act, and
that it make these policies publicly available, in the interests of
transparency and accountability.
RECOMMENDATION 20
That the Minister of National Defence or the
Communications Security Establishment be required to report annually to
Parliament on the number of ministerial authorizations to intercept private
communications issued during the year, the number still in force by the end of
the year, and the general purpose for which each authorization was issued
(i.e., to obtain foreign intelligence or to protect computer systems or
networks).
RECOMMENDATION 21
That the
government amend section 69.1 of the Access
to Information Act so that, in the event that a certificate of the Attorney
General under section 38.13 of the Canada
Evidence Act is issued after a complaint has been made to the Information
Commissioner, the Information Commissioner’s investigation of the complaint as
a whole is not halted, but only his or her investigation in respect of the
information subject to the certificate.
RECOMMENDATION
22
That the government produce
and publish clear guidelines or criteria specifying when, and in what
circumstances, individuals will be added to the Passenger Protect Program list.
RECOMMENDATION
23
That the government provide
individuals listed under the Passenger Protect Program with a process to appeal
decisions to list them and produce and publish clear guidelines on how
individuals may challenge decisions to place or keep them on the list.
RECOMMENDATION 24
That federal
departments and institutions be required to protect personal information
provided under outsourcing contracts to external entities by securing against
the unauthorized access, collection, use, disclosure or disposal of personal
information; placing restrictions on storage, access, and disclosure of
personal information outside of Canada; reporting any demand for disclosure of
personal information received to the Privacy Commissioner; and protecting whistle-blowers who report a
foreign demand for information.
RECOMMENDATION 25
That the
government put information sharing arrangements in relation to national
security investigations in writing; ensure that Canadian law enforcement and
security agencies attach written caveats regarding the use of shared
information; require Canadian agencies to make formal complaints to foreign
agencies regarding the misuse of shared information; and produce annual reports
assessing the human rights records of various countries.
RECOMMENDATION 26
That the government specify
the procedure to be followed by a deputy head, the Deputy Attorney General of
Canada, the Security Intelligence Review
Committee and the Communications Security Establishment Commissioner, as the
case may be, when they receive notice of a concern from a person wishing to
disclose special operational information under section 15 of the Security of Information Act.
RECOMMENDATION 27
That the Security
of Information Act be amended to
narrow the information that is applicable for the purpose of the offences under
section 4, such as by restricting it to secret official information the
disclosure of which would harm Canada’s
national defence, national security or other legitimate specified interests.
RECOMMENDATION 28
That the Security
of Information Act be amended so that no person is guilty of an offence
under section 4 if a judge determines that the person acted in the public
interest and the public interest in disclosure outweighed in importance the
public interest in non-disclosure.
RECOMMENDATION 29
That paragraph
3(1)(a) of the Security of
Information Act be amended by removing the reference to the advancement of
a political, religious or ideological purpose, objective or cause from what
constitutes a purpose that is prejudicial to the safety or interests of Canada.
RECOMMENDATION 30
That subsection 83(1) of the Immigration and Refugee Protection Act
be amended to require a judge to review, within 48 hours, the detention of a
foreign national who is subject to a security certificate.
RECOMMENDATION 31
That subsection 83(2) of the Immigration and Refugee Protection Act
be amended to require the detention of a permanent resident or foreign national
who is subject to a security certificate to be reviewed by a judge within 30
days after detention and at least once every 90 days thereafter.
RECOMMENDATION 32
That paragraph 78(j) of the Immigration and
Refugee Protection Act be amended to expressly state that the judge
considering the reasonableness of a security certificate may receive into
evidence anything that is “reliable and appropriate.”
RECOMMENDATION
33
That subsection 80(3) of the Immigration and
Refugee Protection Actbe repealed, and that the determination of a
judge of the Federal Court regarding the reasonableness of a security
certificate be subject to an appeal to the Federal Court of Appeal.
RECOMMENDATION 34
That the Immigration
and Refugee Protection Act be amended to provide that, unless an individual
chooses to voluntarily leave Canada, there shall be no removal of a permanent
resident or foreign national on the basis of a security certificate if there
are reasonable grounds to believe that the individual will be subject to
torture in the country to which he or she will be removed.
RECOMMENDATION 35
That, before
removing an individual to a country where torture is possible, on the basis of a diplomatic
assurance that the individual will not be tortured, the government ensure that
there will be an effective means of monitoring the individual’s return,
including the ability to access the necessary information to ascertain whether
or not the individual is being tortured.
RECOMMENDATION 36
That Canada show
leadership in engaging the United Nations on the issue of how to properly deal
with alleged or known terrorists who, regardless of what country they are in or
to which they may be removed, pose a threat to the international community as a
whole.
RECOMMENDATION 37
That Canada show
leadership in engaging the United Nations on the issue of how to properly deal
with alleged or known terrorists who may not be removed to another country due
to a risk of torture, and are instead subject to indefinite detention without
the prospect of criminal or other proceedings in which to respond to the case
against them.
RECOMMENDATION 38
That the government
implement more effective oversight of the RCMP, akin to the level and nature of
oversight that SIRC performs in relation to CSIS, particularly in terms of
access to information and the capacity to audit day-to-day national security
functions.
RECOMMENDATION 39
That a standing
committee of the Senate, with dedicated staff and resources, be established to
monitor, examine and periodically report on matters relating to Canada’s
anti-terrorism legislation and national security framework on an ongoing basis.
RECOMMENDATION 40
That the Anti-terrorism Act be amended to
require, within eight years of royal assent (i.e., by December 2009) and within
every five years thereafter, another comprehensive review of the provisions and
operation of the Act to be undertaken by a parliamentary committee or
committees established by either or both Houses of Parliament, followed by a
report or reports to Parliament, within a year after each review is undertaken
or such further time as may be authorized, setting out any recommendations for
change.
APPENDIX 2
– LIST OF WITNESSES
Monday,
February 14, 2005
The Honourable Anne McLellan, P.C., M.P.,
Deputy Prime Minister and Minister of Public Safety and Emergency Preparedness.
Public
Safety and Emergency Preparedness Canada:
Paul
Kennedy, Senior Assistant Deputy Minister;
Christian
Roy, Counsel, Legal Services.
Department
of Justice Canada:
Bill
Pentney, Assistant Deputy Attorney General, Citizenship, Immigration and Public Safety.
Monday,
February 21, 2005
The Honourable Irwin
Cotler, P.C., M.P., Minister of Justice and Attorney General of Canada
Department
of Justice Canada:
George Dolhai,
Director/Senior General Counsel, Strategic Prosecution Policy Section;
Doug Breithaupt,
Senior Counsel, Criminal Law Policy Section;
Stanley Cohen, Senior General Counsel, Human Rights Law Section;
Daniel Therrien,
Senior General Counsel.
Monday,
March 7, 2005
Canadian
Security Intelligence Service:
Jim Judd, Director;
Dale Neufeld,
Deputy Director of Operations.
Monday,
March 14, 2005
Norwegian
Defence Research Establishment: (by videoconference)
Thomas
Hegghammer, Senior Analyst.
King’s
College London:
(by videoconference)
Michael
Clarke, Director, International Policy Institute.
Norman Patterson School of International Affairs, Carleton University:
Martin
Rudner, Director, Centre for Intelligence and Security Studies.
Mackenzie
Institute:
John
Thompson, President.
Institute of Defence
and Strategic Studies, Nanyang Technological University
(Singapore):
(by videoconference)
Rohan
Gunaratna, Head, International Centre for Political and Terrorism Research.
Tuesday,
March 15, 2005
University of Toronto:
Wesley
K. Wark, Professor, International Relations Programme.
Osgoode Hall
Law School:
Patrick
J. Monahan, Dean.
Jamie
Cameron, Professor.
University of Toronto:
Kent
Roach, Professor, Faculty of Law.
Dalhousie University:
Wayne
MacKay, Professor, Faculty of Law.
Monday,
March 21, 2005
Public
Safety and Emergency Preparedness Canada:
Paul
Kennedy, Senior Assistant Deputy Minister.
Department
of Justice Canada:
Daniel
Therrien, Senior General Counsel;
Robert
Batt, Senior Counsel, Legal Services, Canadian Security Intelligence Service (CSIS).
Canada
Border Services Agency:
Claudette
Deschênes, Vice-President, Enforcement Branch.
Citizenship
and Immigration Canada:
Craig
Goodes, Acting Director General, Case Management Branch.
Foreign
Affairs Canada:
Keith
Morrill, Director, Criminal, Security and Treaty Law Division.
Ruth
Archibald, Senior Coordinator, International Crime and Terrorism Division;
Keith
Morrill, Director, Criminal, Security and Treaty Law Division.
Monday,
April 11, 2005
Royal
Canadian Mounted Police:
Giuliano
Zaccardelli, Commissioner.
Ontario Provincial Police:
Gwen
Boniface, Commissioner.
Ottawa Police Service:
Vince
Bevan, Chief.
Communications
Security Establishment:
Keith
Coulter, Chief;
Barb
Gibbons, Deputy Chief, Corporate Services;
John
Ossowski, Director General, Policy and Communications;
David
Akman, Director, Legal Services, General Counsel.
Canadian
Association of Chiefs of Police:
Edgar
MacLeod, President;
Vince
Westwick, Co-Chair, Law Amendments Committee;
Frank
Ryder, Co-Chair, Law Amendments Committee.
Monday,
April 18, 2005
Financial
Transactions and Reports Analysis Centre of Canada:
Horst
Intscher, Director;
Sandra
Wing, Deputy Director, External Relationships;
Josée
Desjardins, Senior Counsel.
Commission
for Public Complaints Against the RCMP:
Shirley Heafey,
Chair;
Steve McDonell,
Senior General Counsel.
Security
Intelligence Review Committee:
Susan Pollak,
Executive Director;
Tim Farr,
Associate Executive Director;
Marian McGrath,
Senior Counsel;
Sharon Hamilton,
Senior Research Advisor.
Monash University (Australia):
(by videoconference)
David
Wright-Neville, Professor, School of Political and Social Inquiry, Faculty of Arts.
Monday,
May 2, 2005
Canadian
Bar Association:
Susan
T. McGrath, President;
Greg
P. DelBigio, Chair, Legislation and Law Reform Committee, and Vice Chair, National Criminal Justice
Section;
Tamra
L. Thomson, Director, Legislation and Law Reform.
Canadian
Council of Criminal Defence Lawyers:
William
M. Trudell, Chair.
Canadian
Muslim Lawyers Association:
Ziyaad
Mia, Former Director;
Faryal
Rashid, Member.
Canadian
Lawyers for International Human Rights:
David
Morris, Former Member of Board of Directors.
Monday,
May 9, 2005
Royal
Canadian Mounted Police:
Giuliano
Zaccardelli, Commissioner;
Wayne
Hanniman, Inspector.
Office
of the Privacy Commissioner of Canada:
Jennifer
Stoddart, Privacy Commissioner;
Raymond D’Aoust,
Assistant Privacy Commissioner;
Patricia
Kosseim, General Counsel, Legal Services.
Canada
Border Services Agency:
Alain Jolicoeur,
President;
David Dunbar, Acting
Head of Legal Services;
Claudette Deschênes, Vice-President,
Enforcement Branch;
Candice
Breakwell, Director, Legislative Affairs and Access to Information and Privacy.
Monday,
May 16, 2006
Canadian
Civil Liberties Association:
Alan
Borovoy, General Counsel;
Alexi
Wood, Policy Analyst.
Amnesty
International:
Alex
Neve, Secretary General.
Rights
and Democracy:
Jean-Louis
Roy, President;
Lloyd
Lipsett, Senior Assistant to the President.
Ligues des droits et libertés:
Philippe
Robert de Massy, Lawyer;
Denis
Barrette, Lawyer.
Monday,
May 30, 2005
The Honourable Reg Alcock, P.C., M.P.,
President of the Treasury Board.
Office
of the Information Commissioner of Canada:
John Reid,
Information Commissioner;
Alan Leadbeater,
Deputy Information Commissioner of Canada;
Dan Dupuis,
Director General, Investigation and Reviews;
Daniel Brunet,
General Counsel.
Canadian
Council for Refugees:
Andrew
Brouwer, Member of the Executive Committee.
Canadian
Bar Association:
Lorne
A. Waldman, Member, National Citizenship and Immigration Law Section.
As an
Individual:
Barbara
Jackman.
Treasury
Board of Canada:
Helen
McDonald, Chief Information Officer;
Donald
Lemieux, Senior Director.
Monday,
June 13, 2005
Office
of the Communications Security Establishment Commissioner:
The Right
Honourable Antonio Lamer, P.C., Commissioner;
Joanne Weeks,
Executive Director.
Canadian
Council on American-Islamic Relations:
Riad
Saloojee, Executive Director.
Coalition
for Muslim Organizations:
Adam
Esse, President.
Canadian
Arab Federation:
Omar
Alghabra, National President.
Canadian
Islamic Congress:
Khurrum
Awan.
Monday,
June 20, 2005
United
Nations Office on Drugs and Crime (Vienna)
(by videoconference)
Jean-Paul
Laborde, Chief, Terrorism Prevention Branch.
Imagine
Canada
Peter
Broder, Corporate Counsel and Director, Regulatory Affairs;
Robbin
Tourangeau, Vice-President, Public Policy and Government Relations.
As an
Individual
Blake
Bromley, Partner, Benefic Lawyers.
Monday,
September 26, 2006
Canadian
Jewish Congress:
Ed
Morgan, National President;
Manuel
Prutschi, Executive Vice-President.
B'nai
Brith Canada:
David
Matas, Senior Legal Counsel.
Canadian
Association of University Teachers:
Maureen
Webb, Legal Counsel;
James
Turk, Executive Director.
Public
Service Alliance of Canada:
Ed
Cashman, Regional Executive Vice-President;
Seema
Lamba, Human Rights Officer.
Monday,
October 17, 2005
As an
Individual:
Joan
Russow.
Canadian
Red Cross:
The
Honourable David Pratt, P.C., Advisor and Special Ambassador;
Sylvain
Beauchamp, Senior Policy Advisor, International Humanitarian Law.
Federation
of Law Societies of Canada:
George
D. Hunter, Vice-President;
Katherine
Corrick, Director of Policy, Law Society of Upper Canada.
International
Civil Liberties Monitoring Group:
The
Honourable Warren Allmand, P.C., Steering Committee Member;
Roch
Tassé, National Coordinator.
As an
Individual:
François
Crépeau, Professor, Faculty of Law, University of Montreal.
British Columbia Civil Liberties
Association:
Murray Mollard, Executive
Director.
African
Canadian Legal Clinic:
Marie
Chen, Acting Director of Legal Services;
Royland
Moriah, Policy Research Lawyer.
National
Organization of Immigrant and Visible Minority Women of Canada:
Anu
Bose, Executive Director.
Monday,
October 24, 2005
Canadian
Labour Congress:
Hassan
Yussuff, Secretary-Treasurer;
David
Onyalo, Executive Assistant to the Secretary-Treasurer.
Cross-Cultural
Roundtable on Security:
Dr.
Zaheer Lakhani, Chair.
Public
Safety and Emergency Preparedness Canada:
Marc
Whittingham, Assistant Deputy Minister, Portfolio Relations and Public Affairs.
Monday,
October 31, 2005
Canadian
Security Intelligence Service:
Jim
Judd, Director.
Canadian
Islamic Congress:
Faisal
Joseph, National Legal Counsel.
Muslim
Council of Montreal:
Imam
Salam Elmenyawi, Chairman.
Monday,
November 14, 2005
The Honourable Joe Volpe, P.C., M.P.,
Minister of Citizenship and Immigration;
The Honourable Jean Lapierre, P.C., M.P.,
Minister of Transport.
The Honourable Anne McLellan, P.C., M.P.,
Deputy Prime Minister and Minister of Public Safety and Emergency Preparedness;
The Honourable Irwin Cotler, P.C., M.P.,
Minister of Justice and Attorney General of Canada.
Citizenship
and Immigration Canada:
Anne
Arnott, Director General, Case Management;
Claudette
Deschênes, Vice-President, Enforcement Branch,
Canada Border Services Agency;
Daniel
Therrien, Acting Assistant Deputy Attorney General, Legal Services.
Transport
Canada:
Jacques
Pigeon, Departmental General Counsel, Legal Services;
John
Forster, Associate Assistant Deputy Minister, Safety and Security.
Canadian
Air Transport Security Authority:
Jacques
Duchesneau, President and Chief Executive Officer;
Marc
Duncan, Vice-President, Chief Operating Officer;
Michael
McLaughlin, Vice-President and Chief Financial Officer.
Justice
Canada:
Bill
Pentney, Senior Assistant Deputy Minister, Policy Sector.
Department
of Public Safety and Emergency Preparedness Canada:
Margaret
Bloodworth, Deputy Minister.
Monday,
November 21, 2005
Air India
182 Victims Families Association:
Bal
Gupta, Chair;
Nicola
Kelly, Executive Committee Member.
As an
Individual:
Maureen
Basnicki.
Monday,
June 12, 2006
The Honourable Stockwell Day, P.C., M.P.,
Minister of Public Safety.
The Honourable Vic Toews, P.C., Q.C., M.P.,
Minister of Justice and Attorney General of Canada.
Public
Safety and Emergency Preparedness Canada:
William
Elliott, Associate Deputy Minister;
James
Deacon, Director General, National Security Policy.
Department
of Justice Canada:
Bill
Pentney, Senior Assistant Deputy Minister, Policy Sector;
George
Dolhai, Director/Senior General Counsel, Strategic Operations Section;
Stanley Cohen, Senior
General Counsel, Human Rights Law Section.
Monday,
June 19, 2006
Canadian
Bar Association:
Lorne
A. Waldman, Member, National Citizenship and Immigration Law Section;
Tamra
Thomson, Director, Legislation and Law Reform.
FACT-FINDING MISSIONS
Please note: titles
reflect positions held at time of meeting.
Washington, D.C. – September 2005
Officials at the Canadian Embassy in Washington
The Honourable Frank McKenna, Canadian Ambassador to the United States
Daniel Glaser, Acting Assistant Secretary, Terrorism and Financial
Intelligence -- Terrorism Finance,
U.S. Department
of the Treasury
Paul Rosenzweig, Senior Legal Research Fellow, The Heritage
Foundation, Center for Legal and Judicial Studies
Representative F. James Sensenbrenner (R-WI), Chairman of the House
of Representatives Committee on the Judiciary
Bill Kehoe, General Counsel to the House of Representatives
Committee on the Judiciary
Representative John Conyers (D-MI), Ranking Member of the House of
Representatives Committee on the Judiciary
Representative Jerrold Nadler (D-NY), Member of the House of
Representatives Committee on the Judiciary
Representative Zoe Lofgren (D-CA), Member of the House of
Representatives Committee on the Judiciary, and Member of the House Judiciary
Committee's Subcommittee on
Immigration, Border Security, and Claims
Mark Agrast, Senior Fellow, Centre for American Progress
Representative Jeff Flake (R-AZ), Member of the House of
Representatives Committee on the Judiciary
Bruce Swartz, Deputy Assistant Attorney General, Criminal Division,
Department of Justice
London, England – November 2005
Mel Cappe, Canadian High Commissioner to the United Kingdom
Members of the Canadian High Commission's Intelligence Liaison Group
Gus Hosein, Privacy International
Lord Holme, Chair of the House of Lords Constitution Committee and
former Co-Chair of the Newton Commission
Sir Iqbal Sacranie, Secretary General of the Muslim Council of Great
Britain, and other members of the Muslim Council of Great Britain: Assistant
Secretary General, Onesa Malik; Miraz Irahasan
The Right Honourable Paul Murphy, Chair of the Intelligence and Security
Committee
The Right Honourable Charles Clarke, Home Secretary
Professor Michael Clarke, Director, International Policy Institute, Kings College,
London
Professor Anthony Glees, Director, Brunel Centre for Intelligence
and Security Studies
Sandra Bell, Director, Royal United Services Institute, Homeland
Security/Resilience
David Bentley, Associate, Royal Institute of International Affairs
Kevin O'Brien, Security/Terrorism Consultant and former Senior
Analyst, RAND Corporation
The Right Honourable John Denham, Chairman, House of Commons Home
Affairs Committee, and other members of the Committee
Gareth Crossman, Policy Director, Liberty
Ben Muir, Higher Executive Officer of the London Resilience Team,
and other members of the London Resilience Team
The Right Honourable Alan Beith, M.P.
The Honourable William Hoyt
Sir David Omand, GCB
Bob Whalley
The Baroness Hayman
Right Honourable the Lord Mawhinney Kt.
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In the fall of 2001, in the
aftermath of the attacks in ![Text Box: “Legislation designed to meet this objective [of security] must be tempered, must respect human rights, and must ultimately strike a proper balance between the two.”
(Ed Cashman,
Public Service Alliance of Canada)](rep02feb07-e_files/image002.gif)
The government has an obligation
to ensure the security of Canadians and to protect the civil liberties that are
the basis of our democratic society. Both
of these obligations are of fundamental importance, and ![Text Box: “[A]n integrated approach to human rights and security or anti-terrorism has the best chance of preventing the human rights violations that are so damaging to individuals, the fabric of our society and the foundation of our democracy.”
(Jean-Louis Roy, Rights and Democracy)](rep02feb07-e_files/image003.gif)
It is clear, both in
international and our own domestic law, that all rights are of equal value, and
that one right cannot be sacrificed in the name of preserving another. However, when dealing with the threat of
international terrorism, how best to protect and preserve our rights,
obligations and values becomes a complex question for Canadian society and its
lawmakers to answer. Our government and
courts have already been struggling with this challenge, as demonstrated in the
context of the Commission of Inquiry into the Actions of Canadian Officials in
relation to Maher Arar and by the constitutional challenges to the Immigration and Refugee Protection Act’s
security certificate process, which were heard by the Supreme Court of Canada
in June 2006. As stated by former
Supreme Court of ![Text Box: “We must strike a balance and our response against terrorism must be proportionate with the terrorist threat. There must be no overreaction and there must be no under-reaction.”
(Rohan Gunaratna, Institute of Defence and Strategic Studies, Nanyang Technological University [Singapore])](rep02feb07-e_files/image004.gif)
The Anti-terrorism Act’s introduction and quick passage in the fall of
2001 was of course a direct consequence of the tragic events of September 11 of
that year. The subsequent terrorist
attacks in Madrid, Bali, Saudi Arabia, Egypt, Beslan and London – as well as
more recent events such as the arrest of 18 suspected terrorists in Toronto, an
alleged plot to bring down ten flights bound from Britain to the United States,
an alleged plot to bomb the Sears Tower in Chicago, arrests in Lebanon with
respect to an alleged suicide bomb targeting the New York subway system, and
the arrest of nine suspected terrorists in Birmingham, England – have
demonstrated that the threat has not abated.
![Text Box: “We have failed utterly, not only to prevent this tragedy [of Air India] and convict the perpetrators, but to incorporate the terrorist attack into our history. This has been hurtful to both the families and the entire nation. As a result, we collectively act as if terrorism has never happened here, as if somehow we are immune to the threat of global terrorism. Terrorism in Canada is already a fait accompli. The sooner we learn from it, the better.”
(Nicola Kelly, Air India 182 Victims Families Association)](rep02feb07-e_files/image005.gif)
It is clear to the Committee
that the danger to our society is real and palpable, despite some suggestions
that Canadians do not feel that they are directly threatened by international
terrorism. Prior to 11 September 2001,
the bombing of Air ![Text Box: “[I]f one single terrorist succeeds in executing a terrorist act, hundreds of victims and family members suffer the incalculable pain for decades and millions are terrorized by fear for all time.”
(Bal Gupta, Air India 182 Victims Families Association)](rep02feb07-e_files/image006.gif)
