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Proceedings of the Special Senate Committee on the
Anti-terrorism Act

Issue 15 - Evidence - Morning meeting

OTTAWA, Monday, September 26, 2005

The Special Senate Committee on the Anti-terrorism Act met this day at 10:43 a.m. to undertake a comprehensive review of the provisions and operations of the Anti-terrorism Act, (S.C.2001, c.41).

Senator Joyce Fairbairn (Chairman) in the chair.


The Chairman: Welcome, honourable senators and guests, to the thirty-second meeting of the Special Senate Committee on the Anti-terrorism Act. In October 2001, as a direct response to the terrorist attacks in New York City, Washington D.C. and Pennsylvania, and at the request of the United Nations, the Canadian government introduced Bill C-36, the Anti-terrorism Act. Given the urgency of the situation then, Parliament was asked to expedite our study of the legislation, and we agreed. The deadline for the passage of that bill was mid-December 2001.

However, concerns were expressed that it was difficult to thoroughly assess the potential impact of this legislation in such a short time. For that reason, it was agreed that three years later, Parliament would be asked to examine the provisions of the act and its impact on Canadians with the benefit of hindsight and a less emotionally charged situation with the public. The work of this special committee represents the Senate's efforts to fulfil that obligation.

When we have completed the study, we will make a report to the Senate that will outline any issue that we believe should be addressed and allow the results of our work to be available to the government and to the Canadian public. The House of Commons is undertaking a similar process at this time.

The committee has met with government ministers and officials, international and domestic experts on the threat environment, legal experts, those involved in enforcement and intelligence gathering, and representatives of community groups. Last week committee members travelled to Washington to speak with some colleagues in Congress.

We are fortunate today to have with us representatives from the Jewish community in Canada. We will hear from Mr. Ed Morgan, National President of the Canadian Jewish Congress, who is joined by his Executive Vice-President, Mr. Manuel Prutschi; and from a long-time visitor to this committee and others over the years, Mr. David Matas, Senior Legal Counsel to B'nai Brith Canada.

I would ask that questions and answers be as concise as possible. Mr. Morgan, please proceed with your presentation.

Ed Morgan, National President, Canadian Jewish Congress: As indicated, I am the National President of Canadian Jewish Congress. With me today is Mr. Manuel Prutschi, Executive Vice-President of CJC. I thank the committee for this opportunity to speak to our brief on the review of the Anti-terrorism Act. I believe that senators have received copies of the brief in both official languages.

When it comes to terrorism, the threat to Canada is neither academic nor speculative. Sadly, we suffered the downing of Air India flight 182, which was, as many commentators said, our 9/11 before there was a 9/11. As Canadian Jews, we think that we may be twice targeted by terrorism; first as members of the broad Canadian family and, second, as belonging to an ethno-religious community that seems to be uniquely profiled for terrorist violence.

All too frequently, terrorism has made victims of Jews the world over, not only in Israel but also in parts of the world ranging from the Middle East to Europe to the Americas. Indeed, the United Kingdom's Community Security Trust has documented over 400 terrorist incidents against Jewish communities and targets outside Israel in the past 30- odd years. The perpetrators are difficult to characterize, in the sense that they have ranged from Marxists to neo-Nazis. Today, I would venture to say that it is not possible to overlook the overt anti-Semitism and murderous activities that characterize groups such as al Qaeda, Hezbollah, Hamas and other groups that similarly share an Islamist bent. The recent case of Jamal Akkal, a Canadian from Windsor who was arrested in Gaza for agreeing to participate with Hamas in potential attacks on Jewish targets in North America, gives us a great deal of concern and should give all of us pause.

Thankfully, the Jewish community has not been a victim of what is commonly thought of as terrorism, although our community and the wider Canadian family have been shaken by firebombings of schools and synagogues. Still, domestic security warnings and emerging stories of terrorist threats and plans against Jews and Jewish institutions, which we have itemized in our brief, are continuing to cause justifiable anxiety in the community.

CJC believes that the government essentially got the balance right in the Anti-terrorism Act and related legislation and regulations; that we are provided with necessary state powers to protect the safety of Canadians while minimally impairing their basic civil liberties. There are those who claim that the measures in the Anti-terrorism Act and related statutes go too far and that they infringe on civil liberties in an unacceptable way. Indeed, some have called for repeal of the Anti-terrorism Act and for an end to measures such as security certificates in the Immigration and Refugee Protection Act. Attacks on the security certificate regime appear to have become something of the thin edge of the wedge for opposition to Canada's overall anti-terrorism regime. With great respect — and we do respect those who disagree with us — we disagree with those views.

In saying that, I want to make it clear that we do not disagree with the overall importance of civil liberties in our legal system or to our society at large. We note that the discussion of the Anti-terrorism Act and its associated security regime brings into play two parallel sets of fear of harm. On the one hand is the fear of becoming a potential victim of terrorism; on the other hand is the fear of becoming a potential victim of the very measures that have been enacted with the intent to prevent terrorism. We think that both sets of fears and concerns are legitimate but not mutually exclusive and that each should be seen as a valid concern touching all Canadians. However, one does not rule out the other, so the key is to find the right balance to minimize the dangers of either of these fears materializing into a reality.

It is on this basis, the attempt to find this balance, that CJC has submitted a brief. Our brief is intended to provide some constructive recommendations aimed at preserving the counterterrorism measures necessary to protect safety and security at a time when terrorism is, unfortunately, a fact of life on the international scene, while at the same time calibrating and fine-tuning the act so that those necessary protections for Canada and its citizens function in a manner that is consistent with civil liberties protection and free from discrimination and unnecessary adverse effects.

With that introduction in mind, let me make the following specific comments. First, since much of contemporary terrorism is rooted in religious-based activity or fanaticism, Canadian Jewish Congress supports the retention of ``religious'' in the triad of rationales — that is, political, religious or ideological — that define terrorist activity in the Anti-terrorism Act.

CJC also supports amendments to the Criminal Code's terrorist provisions and the State Immunity Act that would allow the families of Canadians victimized by terror — for example, through atrocities such as suicide bombings in the Middle East, bombings like Air India and the London underground and hijack and carnage such as 9/11 — to sue civilly those states, organizations and individuals that are complicit in their victimization.

We believe that government must provide front-line security personnel and responders with the necessary human and material resources to investigate, incapacitate and suppress terrorist activity before it strikes, and we urge the government to make more resources available.

CJC welcomes the inclusion in the Anti-terrorism Act of an amendment to the Security of Information Act in the form of section 20(1), which protects against the intimidation or coercion of ethno-cultural communities in Canada for the purpose of terrorist activity. This is important because Canada, which is a positive model for the rest of the world through its multicultural and pluralist society, is also particularly vulnerable to terrorist infiltration for the very same reason. It is our view that the government should invest more resources in increased offshore screening of applicants before they enter Canada so that international conflicts are not so readily imported to these shores.

The Anti-terrorism Act requires that Parliament review the provisions dealing with recognizance, with conditions and investigative hearings. CJC recommends that these measures be renewed for another five years.

We also recommend that, considering the gravity of the IRPA's provisions governing security certificates, that these provisions be amended to provide prospectively for a five-year sunset clause in the form of a mandatory parliamentary review if they are to be renewed at that time. CJC endorses a further parliamentary review of Canada's anti-terrorism regime five years hence.

CJC recommends the appointment of a parliamentary officer to provide a comprehensive annual report to Parliament on the operation of the anti-terrorism regime in place in Canada as a result of all the pertinent federal and provincial legislation. This officer would be mandated to report as to whether there are counterterrorism tools in place commensurate with the current threat. The officer would be empowered to require collection of data on the use of profiling, as well as to receive and investigate complaints from the public with respect to the operation of counterterrorism measures.

Consideration should be given to the inclusion in the Anti-terrorism Act, as part of its preamble, of a declaration that the legislation bears no discriminatory intent against identifiable communities nor is such discrimination an acceptable by-product of its implementation. This has been one of the more publicly debated aspects of the Anti- terrorism Act and we feel that the legislation should be amended to specifically address it.

CJC also recommends that an administrative regulation be made to preclude profiling by colour, race, religion, ethnicity or sexual orientation, as is reflected in the anti-hate legislation as well as in subsections 318(4) and 319(7) of the Criminal Code of Canada. It is to be noted, however, that profiling by nationality or, sometimes, national origin is in a different category and is frequently a legitimate practice.

I pause there because that statement has sometimes caused alarm. We are not advocating gratuitous profiling on a nationality basis and we are painfully aware that there is often too fine a line to draw between ethnic profiling and nationality profiling. To cite the obvious example, the Second World War era internment of Japanese in this country may have been nationality profiling or ethnic profiling. I think the line is too fine to draw and we would not want to engage in it.

Suffice it to say that gratuitous profiling of any category would be impermissible. Having said that, there are circumstances where nationality profiling is a standard part of immigration practice and law enforcement. When one enters Canada, a Customs and Immigration official asks one for one's passport. We always want to know your nationality when you enter. There is a certain legitimacy to inquiring into nationality and making it a focal point for enquiry that does not exist, in our submission, with respect to race, religion, gender or sexual orientation.

It is our submission that intelligence, 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.

CJC recognizes that there are those who oppose biometric identification as being overly intrusive. We believe that it is more respectful, for example, than photographs might be in respect of particular religious practices such as the wearing of a hijab or a turban, or a wig for religious Jewish women, and is more effective as an identification technique.

We submit that the government should produce an informational and educational brochure that explains the Anti- terrorism Act and its associated security regime in terms of what they do and do not do, and that outlines an individual's rights with respect to any queries, interviews or investigations.

We at CJC reiterate our recommendation that the religious property protection in section 430, subsection (4.1) of the Criminal Code of Canada should be extended to include not only places of worship and cemeteries, but also community schools and other institutions that fill an administrative, social, cultural, education or sports function for groups included in sections 318 and 319 of the Criminal Code as being identifiable by virtue of race, colour, religion, ethnic origin or sexual orientation.

I pause to say that an attack on this kind of facility traumatizes not only those directly connected with the institution itself, but also the entire community. This is especially true where children in community centres and schools are concerned. No better example of the widespread injurious impact can be had than the unfortunate firebombing in Montreal of the United Talmud Torah School, an act that would not currently be covered by section 430, subsection (4.1) because it occurred at a school rather than at a place of worship or a cemetery.

CJC also recommends that the federal government allocate sufficient financial resources to assist at-risk communities in upgrading security infrastructure and maintaining appropriate security levels at their community institutions. CJC recognizes that corresponding provincial and municipal programs are also critical to any such federal initiative.

Communities are not only vulnerable to attacks on their property; they are also victimized by threats. The Jewish community has been particularly targeted by a series of alarming threats in recent years. To round out the protection of communities, therefore, we believe that it is important to amend section 264.1 of the Criminal Code along the lines of the proposed amendment to section 430, subsection (4.1), making it a serious and specific offence to utter threats against identifiable groups, be they by mail, telephone, email or other means of communication.

Finally, let me say that CJC continues to believe that terrorism is a real and present danger necessitating the clear, coherent and adequately funded response of the Anti-terrorism Act and its related statutes.

It does trouble us that there are Canadians who feel that they have been victimized by or who see themselves as potential innocent victims of the anti-terrorism regime currently in place, and we have sought to address some of those concerns. Ultimately, however, the protection of the fundamental rights, freedoms and values that define us as Canadians depends on, and is impossible without, protection against the ongoing terrorist threat, and we need unity in that endeavour.

Madam Chair, that concludes my opening remarks. We look forward to your comments and questions.

The Chairman: Thank you, Mr. Morgan. Before we begin questioning, we will hear from David Matas, Senior Legal Counsel to B'Nai Brith Canada.

David Matas, Senior Legal Counsel, B'Nai Brith Canada: Thank you for inviting us. Our colleague, Lynn Cohen, is with us.

I am happy to share the panel with my colleagues, Mr. Prutschi and Mr. Morgan. Our presentations overlap to a certain extent.

The most serious terrorist act anywhere in the world before 9/11, the one that caused the largest number of deaths, was planned, organized and executed right here in Canada, that is, the Air India disaster. There has never been a commission of inquiry into that disaster. We have not digested the lessons to be learned. A mass terrorist attack could again be organized in Canada, which is woefully unprepared. All the warning signs are in place. Terrorists are being recruited in Canada for action abroad. For instance, Canadian Mohamed Jabarah, the subject of a recent book by Stewart Bell entitled The Martyr's Oath, is in a U.S. jail after being arrested in Oman for plotting to attack the U.S. embassy in Singapore.

There are substantial grounds to believe that a Canadian living in Canada was complicit in a foreign terrorist plot. Canadian-born Mohammad Momin Khawaja was arrested in March 2004 in Ottawa and charged with participating in a plot to bomb London, England.

Incitement to terrorism proliferates in Canada without hindrance. In 2004, Sheikh Younus Kathrada, a Vancouver cleric, gave a series of lectures laced with anti-Semitic slurs and urgings to go to the front lines to seek martyrdom in jihad.

Plots for terrorist acts to be committed in Canada have been identified. As one example, Ahmed Ressam, an illegal Canadian resident convicted for attempting to blow up the Los Angeles International Airport in 2000, told investigators of a plot to blow up a fuel truck in a Montreal Jewish neighbourhood.

The Jewish community and its institutions are prime targets for terrorist schemes and incitements. The Jewish community is under threat. These citizens do not feel that the Government of Canada is doing enough to protect them.

Our brief contains dozens of recommendations. I will go through only a few of them, but I invite you to read them all. Our general approach is that the Anti-terrorism Act was a step forward but far too timid. The legislation needs to be enhanced in a myriad of ways to be effective.

First, incitement is the oxygen that fuels terrorism. Canada needs legislation to prohibit this incitement. Dutch minister Piet Hein Donner announced in July that his government would introduce legislation in the Dutch Parliament to make it possible to prosecute individuals who glorify, extenuate, trivialize or deny war crimes, genocide or terrorist attacks.

The Prime Minister of the United Kingdom, Tony Blair, announced in August that his government would introduce legislation into Parliament in the fall that would include the offence of condoning or glorifying terrorism.

On September 14, the United Nations Security Council called on all states to prohibit by law incitement of terrorist attacks, to prevent such conduct and deny safe haven to anyone guilty of it. A preambular paragraph to that resolution states that the Security Council is deeply concerned that incitement to terrorist acts poses a serious and growing danger to the enjoyment of human rights. Canada needs to confront that danger.

Second, the Immigration and Refugee Protection Act should be amended to include as an additional ground of inadmissibility incitement to terrorism. Currently, engaging in terrorism is a ground of inadmissibility, as is being a danger to the security of Canada, but incitement to terrorism is not. In our view, anyone who engages in incitement to terrorism is a danger to the security of Canada. Nonetheless, a specific provision stating that incitement to terrorism is a ground of inadmissibility would have a salutary effect, giving specific direction to immigration officials and a specific warning to those who would engage in incitement to terrorism.

Again, the United Kingdom Home Secretary has proposed the exclusion or removal of any non-U.K. citizen who foments terrorism or seeks to provoke others to terrorist acts, justifies or glorifies terrorism, fosters hatred that may lead to intercommunity violence in the United Kingdom or advocates violence in furtherance of a particular belief.

Third, the offence of mischief to religious property should include attacks on religious-based schools and organizational offices. The firebombing of the United Talmud Torah's elementary school library in Montreal in April 2004 was a terrorist act that should have been prosecuted under the anti-terrorism legislation, but it was not. There was a prosecution for arson only. The prosecutor, it seems, did not hold the view that the school fits within the description of a building that is primarily used for religious worship. The legislation needs change so there can be no question that an attack like the United Talmud Torah's firebombing falls squarely within the anti-terrorist legislation.

In the House of Commons debate on the Anti-terrorism Act in October 2001, government member of Parliament Sarmite Bulte said:

The harm done by a mischief against a religious property goes far beyond the physical damage to the property. The greatest harm comes from the message of hatred that is conveyed by the mischief. Such mischief would create fear among worshippers of a specific religion and divert them from the practise of their religion.

All of that is true of attacks against the community institutions of any religious group. The legislation is now too narrow to combat the harm it was designed to prevent.

Fourth, the amendment to the Criminal Code adding the offence of mischief to religious property refers to bias, prejudice or hate based on religion, race, colour or national or ethnic origin. In the view of B'Nai Brith Canada, sex and sexual orientation should be added to the list. Regrettably, all too much religious bias, prejudice and hate is bias and prejudice against women, or hatred of women, or based on sexual orientation. Some sexist religious fanatics will attack the property of their own co-religionists who treat women equally or who treat people equally regardless of sexual orientation. The law needs to be changed to recognize this grim reality.

Fifth, there needs to be an exception to the state immunity legislation to allow victims of terrorism to sue designated foreign states in Canadian courts for state-sponsored terrorism. Currently, foreign states cannot be sued civilly in Canadian courts for damages inflicted by their own terrorism. An end to financial immunity for terrorists should mean an end to the financial immunity of states that sponsor terrorism. Otherwise, the attempt to eliminate the financing of terrorism will end at the doors of state coffers. The United States has such a provision in its law allowing victims of terrorism to sue in American courts for the damage inflicted by states designated by the U.S. government as sponsors of terrorism.

The Conservative Party has proposed such an exception in the Senate through Senator David Tkachuk. The Bloc Québécois Foreign Affairs critic, Francine Lalonde, has expressed her intent to introduce into the House of Commons a bill that will provide an exception to state immunity for torture and crimes against humanity. These two initiatives should be melded and supported by the other parties in Parliament.

Sixth, the Criminal Code provisions in the Anti-terrorism Act should have a retrospectivity clause. A person should be liable to prosecution for any of the offences created under the legislation, even if they were committed before it became law, as long as the act was an offence at international law or according to the general principles of law recognized by the community of nations at the time the act was committed.

Canadian anti-terrorist criminal law is limited by its retrospectivity. The law was enacted after September 11, 2001, and applies only to acts committed after it was proclaimed. However, many people accused of terrorism now in Canada are implicated in acts committed before the Canadian law came into force. Canada needs retrospective criminal legislation as long as the acts were offences at international law. This proposal is consistent with the new Crimes Against Humanity and War Crimes Act, which makes those offences enacted by that law retrospective.

Seventh, the definition of ``terrorism'' in the legislation requires the Crown to prove an element that is not intrinsic to the defence and it may be difficult to prove that the act or omission is committed in whole or in part for a political, religious or ideological purpose, objective or cause. That requirement means proving that the perpetrator had a particular form of motivation. Proving motive may be difficult where the perpetrator has said or written nothing about what he or she did or the motive may be something other than political, religious or ideological. Yet why should that allow for an acquittal? Furthermore, this requirement about motive is not in the definition of ``terrorism'' in the United Nations Convention on the Suppression of Financing of Terrorism, which the Anti-terrorism Act was supposed to allow Canada to ratify. By making the definition of ``terrorism'' unnecessarily restrictive, Canada may end up violating this convention by not prosecuting or extraditing those whom it requires Canada either to prosecute or extradite.

Eighth, the Anti-terrorism Act should have a non-discrimination clause. We have already seen much discriminatory discourse distinguishing between September 11 terrorists and other terrorists. That sort of discrimination is unconscionable and ends up excusing terrorism. The law must be applied in such a way so that other terrorists fall under its sway as much as anti-American terrorists. A terrorist is a terrorist is a terrorist. One person's terrorist should be every other person's terrorist. It would be unacceptable for Canada to say that terrorism against Americans is illegal, but that terrorism against others is legal. The purpose of anti-terrorism legislation is to protect the victims of terrorism. If Canada prohibits some terrorist organizations and not others, then Canada offers protections to some victims of terrorism and not others. The United Nations anti-terrorism conventions assert this non-discrimination principle.

Ninth, the Anti-terrorism Act has too low a threshold for delisting a terrorist entity once listed. No entity has so far engaged in the delisting process. However, unless the legislation is changed, it will be hard to prevent. The way the legislation reads now, the minister must recommend in favour of delisting as long as there are any reasonable grounds to conclude that the entity should no longer be listed. Surely, the test should be the exact opposite. As long as there are reasonable grounds to refuse the request for delisting, it should be so refused. The legislation should say that.

Tenth, because of the need for execution of removal orders as soon as is reasonably practicable, the minister cannot stay removal for an investigation into possible prosecution even if he wanted to. This statute requires removal in advance of such an investigation. The new Immigration and Refugee Protection Act regulations should provide for referral by the Minister of Citizenship and Immigration of every person subject to removal as a terrorist to the Attorney General for possible prosecution for the offences set out in the Anti-terrorism Act. The Minister of Citizenship and Immigration should be required to stay removal until that investigation is complete and a decision is made whether or not to lay a charge for one of the offences set out in the legislation. This problem is highlighted by the various anti-terrorism conventions, which require states parties to extradite or prosecute terrorists. If a person is deported without criminal investigation or a stay of removal, compliance with these provisions becomes impossible. Deportation is not punishment, but merely a relocation of the terrorist. In many cases, that relocation may be no more than an inconvenience. It will be rarely a deterrent to entry. To discourage attempts at entry, Canadian laws and practices must warn terrorists that they will be subject to prosecution should they enter, and not just to a request to move on.

As you can see from the written brief, we have dozens more recommendations. I will stop at 10 because I promised I would stop after 15 minutes and I intend to keep that promise. I encourage you to read what we have submitted in writing.

Anti-terrorism legislation, both in its form and operation, must respect human rights punctiliously. On that we agree with many of the other people you have heard in other sessions. However, we must remember that terrorism is a great violation of human rights. When the state does too little to defend against terrorism, it is violating the human rights of its citizens.

Senator Smith: I do not intend to ask questions on everything with regard to Mr. Matas. He has presented a thorough brief with a variety of detailed points that we can take into consideration.

Mr. Morgan, I was intrigued by your suggestion of an anti-terrorism officer. Are you talking about Parliament creating an entirely new office? Is this a full-time position, or would you assign this duty to some existing officer? I am thinking about a conscientious cost-accounting of tax dollars, too. What do you have in mind? If I told you how many employees the current ethics officer in the other place has, it would almost blow your mind.

Mr. Morgan: We are aware of the need for fiscal prudence. Having said that, we are also of the view that this is an important enough function that it probably does require a full-time, dedicated officer. One of the problems with anti- terrorism law enforcement in this country has been a lack of confidence in the general public that they have a venue to report to, or that the government has an ongoing audit function on how the anti-terrorism laws are being carried out. We believe a post of this nature would help to create public confidence in the anti-terrorism regime. I do not have any dollar figures with me, but it would be worth having a full-time officer dedicated to this oversight function.

Senator Smith: In terms of the scope, would you see a major or primary focus on, for instance, looking into acts of vandalism across the country? I know you have spoken about how there has been some rise in anti-Semitic events. That might have some appeal to the community that you are closest to. What about another community that would want to have the officer challenging appropriate officials for anyone who might have had their perceived heretofore former rights abridged in some way because of the legislation? It seems that there is potential there for different pitches from two different communities that could be highly politicized, not necessarily in a partisan way. Would that be helpful in the long run?

Mr. Morgan: Our view is that these highly politicized debates or highly politicized accusations about the functioning of anti-terrorism laws occur anyway in Canadian society and having a neutral, non-political administrative officer as a focal point for this debate would be helpful.

I do take your point that different communities might feel that they need to complain about different types of things. Some might feel that law enforcement is not vigilant enough on their behalf. Some might feel that law enforcement is overly aggressive at targeting them. Those complaints are out there. We see them in the op-ed pages and in the press all the time.

It would be helpful for Canada to have a parliamentary officer who could be the focal point for these kind of discussions, and who could also, in addition to taking community complaints — I do not envisage this as only being a complaint department — be mandated with the responsibility of ensuring that law enforcement techniques are properly attuned to the level of threat at any given time.

Senator Smith: It occurs to me, if you are talking about vandalism or something, you might have a jurisdictional problem with regard to the entire area of property and civil rights vis-à-vis the provinces. In terms of clear federal jurisdiction, however, you might have a lot of complaints about racial profiling that may wind up being like beauty — in the eye of the beholder — because none of it will ever be put down into words in an act of Parliament.

Mr. Matas: It is no surprise that I tend to agree with Professor Morgan. In our own brief we have called for enhanced staffing on this issue, first, for police forces. I accept your jurisdictional concerns when we say all the major cities should have a dedicated unit in the police forces to deal with hate crimes and incitement to terrorist crimes.

Federally, we say there should be dedicated staffing dealing with the investigation of funding of terrorism and registration and deregistration of charities. We cited some examples in our brief of problems that have arisen.

On your concerns about the law malfunctioning, and racial profiling, et cetera, my answer to that is once we have a law it should be enforced correctly, effectively, efficiently and professionally. If a law is being enforced in a bad way, the answer is not to abandon the law or not enforce it, but to enforce it properly. Certainly we are opposed to all forms of discriminatory enforcement of the law, but I reject the notion that the policing of our terrorism laws is inherently discriminatory. I do not think it is. To the contrary, if we abandon the enforcement of those laws, that discriminates against the victims.

Senator Smith: I am trying to keep an open mind. I have not prejudged any conclusions.

I want to address one last issue with Mr. Matas. In his opening comment he stated that there has not yet been an Air India inquiry. Bob Rae has been assigned to report. I do not think he has given a date when he will report. I saw him on the plane this morning, and maybe he is getting close. People sometimes worry about using these judicial inquiries in an automatic way, in that sometimes they tend to be — and I say this as a lawyer — almost feeding frenzies for a group of lawyers who drag them on for several years. There was one in Toronto recently, and they had just cause for it, but it went on for two and a half years and a municipality wound up with a bill of over $20 million for the inquiry alone.

Do you think there is a clear-cut case that there is some useful purpose to be served by having one now that the trial is over, or are you waiting to see what Mr. Rae says? I wanted to get your thoughts on that.

Mr. Matas: I think we should wait to see what Mr. Rae says, but I have a certain view about what Mr. Rae should say, and we will see. I may not necessarily agree with him, depending on what he does say, but by all means let us wait to hear what he has to say.

For a long time, the official response of the government in opposing an inquiry was that the crime was still under investigation, there may be charges, that the conduct of an inquiry would jeopardize the criminal investigation and the possible charges. That can no longer be said. As I understand it, there is no real likelihood of possible outstanding charges. It would not impede continuing trials or investigations.

This was obviously a major event for Canada and there are lessons to be learned. The mindset in Canada is concerned that these issues be addressed, with what can be learned and tabulated, either as a matter of the laws that were not in place or that we need to improve our investigative techniques, or both, because right now everything is left under a cloud.

From our perspective, it is not clear that the lessons have been learned from the Air India disaster. We still see a lack of preparedness to deal with terrorism in Canada.

Senator Smith: I have always had a real interest in the Air India disaster, above and beyond most people, I suppose, because by some fluke I actually witnessed that plane take off. It is a long story, but I saw them go by me and I saw a number of the faces in the windows.

My sense is the inquiry would probably tell us that some Mounties were not too careful about looking after evidence properly, and the same with CSIS. However, at the end of the day, part of the problem was that the people who had evidence were too terrified to come forward and be witnesses. I suspect that that is the bottom line and that is what we would find out.

Mr. Matas: My reaction to that is to just look at all the various inquiries we have had in the past. This may be something of a touchy subject, but could you have predicted beforehand what the Gomery inquiry would have disclosed? I was very much involved in the Dechênes inquiry, and I do not think we could have predicted beforehand what that would disclose.

We have a certain amount of knowledge going into an inquiry, of course, but I would say that almost without fail, the Canadian inquiries have been useful — obviously sometimes expensive — in unearthing information that we did not have before, and at the very least, bringing studied consideration to bear on a matter and producing a series of recommendations that develop an impetus they would not otherwise have.

The Chairman: I should mention that in our first hearings, following 9/11, this committee, as it was composed at that time, did recommend that there be a parliamentary officer of some sort. That is on the books from that series of hearings and we will see what develops here.

Senator Andreychuk: I would like to go to Mr. Morgan. I am a little puzzled by the fact that you think national profiling is acceptable. I would like you to expand on that, because to me, it inevitably leads to the same problems as any profiling, racial or otherwise. How could that possibly be of benefit, particularly when people move? They do not necessarily reside in the country where their passport is from, their country of origin, and in today's world I simply cannot see how national profiling is a positive tool. Can you explain it to me?

Mr. Morgan: I will try. First, one should always understand that we are not talking about nationality as being grounds for inadmissibility to Canada or grounds for prosecution. It is not a ground for anything. It is a profile. It is a law enforcement tool. To give a simple example, the Canadian Jewish Congress has been saying now for 60 years that Canada was negligent in the immediate aftermath of the Second World War in allowing many Nazi war criminals into the country. Since my colleague, Mr. Matas, just mentioned the Dechênes commission, I will use that example. If we really wanted to stop the former members of the Gestapo and the storm troopers from coming into Canada, could we really ignore the fact that they tended to be German? We could not possibly say that all kinds of other nationalities were looking for Nazis and all kinds of other nationalities count equally with Germans. International conflict has a locus, and nationality is not a perfect one. I take your point. Increasingly, people move their physical location and change citizenships, but international conflict has a locus and nationality is at least a kind of emblem of that locus.

To take a more recent example, something Mr. Prutschi and I were discussing this morning, an ongoing conflict, people are being terrorized today in Sudan. There are perpetrators of that terror and there are victims of that terror. One would hope that the perpetrators of that terror, the groups generally going under the name Janjaweed, do not find wholesale refuge in Canada. We hope that only the victims of that terror find refuge in Canada. The same is true with the last decade's major horror in Rwanda.

We would hope that we would be generous to the victims of the genocide in Rwanda, but that we would be able to weed out the perpetrators of that genocide and not give them refuge in this country.

However, you cannot even start that task if you do not concede that Rwandan nationality or Sudanese nationality may be one of the things that you must look at. I do not see how you can say that we must assume that Janjaweed might equally come from Sudan or Bolivia. They do not. They come from Sudan.

We must be realistic about this. If our law enforcement officers are concerned about problems of drug trafficking, there are certain countries that produce drugs and many others that do not. I would hope that our law enforcement officers have a certain eye to the nationals of the drug-producing countries, at least as a first line of inquiry. It certainly does not end the inquiry, but it must be one technique that law enforcement officers have at their disposal to help them narrow their focus so that the situation is at least manageable.

I wish to reiterate what I was trying to say earlier in my submission. In terms of enforcing law at the border, nationality profiling is engaged in constantly. As an example, Estonians and Finns are two similar peoples. Their languages are related. The culture and architecture of the two countries are similar; the societies have similar origins. Yet, we have made a determination that Finns do not need a visa to travel here and Estonians do. Finns come from a European Union society and Estonians come from a post-Soviet society. We have determined that Estonians are more likely to pose immigration problems for us than people from Finland, so we have imposed visas. Three years ago — as a colleague has advised me — due to a rash of what were determined to be improper refugee and immigration claims, we imposed a visa requirement on Slovakian nationals that had not existed before. That visa requirement for people carrying Slovakian passports or coming from Slovakia is a form of profiling. That is, we made a determination to increase vigilance in immigration law enforcement over people from a certain country. That is what a visa requirement is. Yet, we do not impose that same kind of vigilance on people coming from another country.

In the general scheme of international law enforcement, nationality is a category to which we do not seem to have the same sensitivity, and I would submit we should not. I would take great offence if a person visiting Canada approached a border officer who said, ``May I see your prayer book, please?'' However, the fact that they say, ``May I see your passport?'' so that they can first determine nationality is a normal part of immigration law enforcement.

Senator Andreychuk: I take your point if it is dealing with genocide and immigration, but I take exception when it is drugs and terrorism, because I believe that these are highly mobile activities by a small number of people; immigration regulation is a slightly different issue. It also carries a different taint for every person of that nationality. It would be hard to identify a country and say that we will discriminate against that country through some kind of profiling, and therefore, it would be hard, in my opinion, to tell the victims from the perpetrators, but you have made your point.

You indicated that you think that incitement to terrorism should be a separate crime. While that sounds appealing initially, we in Canada do not have a definition for ``terrorism;'' we have a definition of ``terrorist activity.'' How would that crime of incitement to terrorism activity be different from the host of measures that we now have in place to deal with hatred and incitement?

Mr. Matas: There are several points. It is true that the legislation defines ``terrorist activity'' but not ``terrorism.'' It is not true to say that we do not have a definition of ``terrorism'' in Canada. It was articulated by the Supreme Court of Canada in the case of Suresh and it has been adopted by other courts since. The Supreme Court of Canada in Suresh adopted a definition from the United Nations Convention on the Suppression of Financing of Terrorism, which Canada has signed and ratified. We do not have any definition, never mind of ``incitement,'' of ``terrorism'' or ``terrorist activity'' in the Immigration Act, and not even in the Anti-terrorism Act. In order to make the prohibition against the admissibility of terrorists in the Immigration and Refugee Protection Act work, the Federal Court has adopted the definition of ``terrorism'' that the Supreme Court of Canada has adopted and that the United Nations has articulated. There is a definition out there. That in itself is not a problem or issue, as I see it.

You do get this contention, mainly — regrettably — amongst the Arab and Muslim states that they want to exclude attacks against civilians in occupied territories — they are fighting occupation — from the definition of ``terrorism.'' As far as I am concerned, however, that exception should not be there. That is the only glitch on the international scene about defining ``terrorism.''

When we talk about incitement and how that is different from what we have already, it may be possible to deal with incitement in other ways, through aiding, assisting or whatever. The advantage of articulating a law that deals with an offence that could be punished in other ways is that it sensitizes law enforcement officials and directs people to the mischief; it has an educational effect. I have given the example of the United Talmud Torah bombing. The person pled guilty and was sentenced; but we have a constant problem of people not realizing the seriousness of the act. The reality is that there is incitement to terrorism that goes unpunished. We have incitement to hatred. Much of the incitement to terrorism is incitement to hatred. You can imagine this happening verbally. If someone says, ``Kill this person or this group of people because,'' then the ``because'' might be incitement to hatred. However, if it is ``Kill this group of people,'' period, it may be hard to say it is incitement to hatred; it may just be incitement to terrorism. You can prosecute people for incitement to murder, but only if you identify the person they want killed. If you say, ``Kill David Matas,'' you can be prosecuted for incitement to murder, but if someone says, ``Kill the Jews,'' that person cannot be prosecuted for incitement to murder. Maybe the person can be prosecuted for incitement to hatred, but if it is just ``Kill the Jews,'' that is incitement to terrorism, for which there is no crime now, and there needs to be.

Senator Andreychuk: I guess we could have a debate as to whether ``Kill the Jews'' would be incitement to hatred. In my opinion, it would be, and there is case law supporting that. It is always in context, obviously.

Mr. Matas: That may not be the best example because the Jews are a disadvantaged minority. Let us say, ``Kill all parliamentarians or senators.''

Senator Andreychuk: They are a disadvantaged minority, too.

Mr. Matas: I am sure you feel that way, but I could not go to court on that.

Manuel Prutschi, Executive Vice-President, Canadian Jewish Congress: I should add that in the anti-hate legislation there is a section that makes it a crime to incite to genocide.

Senator Andreychuk: That is one to ponder, whether we would be better off. Mr. Matas, before the chair cuts me off completely, you have advocated many changes in the law. That is one of our tasks here; but there is a growing school of thought that, whenever we see a problem or an area that has not been covered, we spend our energy trying to create laws to deal with it when we might be better off telling our government to put more resources into intelligence- gathering and to make the laws that we have on the books now more effective.

In the end, we would likely capture as much of the terrorist activity in Canada today as is reasonably possible. Therefore, the administration of that is as important as new laws.

Mr. Matas: I would not quarrel with that and I do not want to make enforcement an enemy of legislative reform. Obviously, the law must be enforceable and effective. One part of the recommendations — from both of us — is about enforcement, such as the hiring of dedicated officers for hate crime units or people to deal with audits. We have concerns about enforcement, but today we are focused on addressing senators in their capacity as legislators.

Senator Smith: I am not arguing with you, but David Ahenakew, who was prosecuted successfully — and appropriately, based on what I read — did not say, ``Kill the Jews,'' but I believe I saw you quoted on that. Was the law not adequate in that incident or did it need more teeth? Could you speak to that, Mr. Matas?

Mr. Matas: Indeed, I was quoted on that. I viewed what he said as incitement to hatred and deemed him rightly prosecuted and convicted. Perhaps that was not incitement to terrorism because he was justifying the Holocaust, which although it is incitement to hatred did not mean he was saying, ``Now, kill a bunch of innocent people.'' There is a gap, because incitement to hatred and to genocide deals with groups that are identified in a particular way, whereas terrorism can target innocent civilians of any kind — majority, minority, advantaged, disadvantaged or randomly selected. There is a difference between indiscriminate mass killings of people and genocide; and there is a difference between incitement to hatred against identifiable groups and incitement to terrorism, which is much more indiscriminate, I would say.

Senator Fraser: Both of these briefs are extremely interesting and contain much food for thought. However, my attention was caught by the same issues that Senator Andreychuk raised, so I will return to them, first with Mr. Morgan and then with Mr. Matas.

Mr. Morgan, on the issue of profiling I am still a little confused by your position. It seems that there is a vast difference between information provided for immigration purposes and profiling, which is a tool used by police or intelligence services to sift out potential surveillance targets and, perhaps, even more than that.

Although I am Canadian, when I return to Canada from travel, I have to fill out a form that includes my date of birth, address and nationality. I do not think that is grounds for profiling, and it is not ageism or discrimination based on my postal code; and I do not expect it to be used in that way. In the case of Rwandans, surely the key element would not be whether the person is Rwandan, but rather whether the person is Hutu or Tutsi; and we do not do that. We are in agreement that that would be considered ethnic profiling. I do not understand why you deem it appropriate to single out nationality when you stand foursquare against profiling on these other, equally sweeping grounds. I just do not follow your reasoning.

Mr. Morgan: I will try again. Perhaps I misspoke or the words did not come out right. I am not saying that profiling is an end. Obviously, we cannot exclude Rwandans because they are Rwandans. Rather, we are trying to help Rwandan victims of the genocide with our immigration and refugee laws and weed out the perpetrators of the genocide. That is the target. We are not trying to exclude Rwandans. I am not saying that the profile is an end, but I am saying that if you want to ensure that you have a focus on the perpetrators of the Rwandan genocide then nationality has to be part of the package. I do not mean to raise absurd examples, but the perpetrators of the genocide were Rwandans and now we are trying to focus further. As a first category, there is nothing offensive about that. Given the events 10 years ago and the influx of Rwandans, immigration officers need to know a little about the history of the region and that Rwandans raise a special problem because there are victims and perpetrators. Immigrants from another country might not raise that problem. There was a violent incident in Rwanda and we want to ensure that the perpetrators of that violence do not enter Canada. As a first line of inquiry — not as an end — it makes sense to ask about nationality to ensure that people from a conflict zone are not treated in exactly the same way as in the next stage of inquiry. They should not be treated in the same way as people from a non-conflict zone, and that makes sense to me. Terrorism tends to erupt in conflict zones.

Absolutely, I take Senator Andreychuk's point that these terrorists are not entire populations but merely a few individuals. However, we must begin to identify them in some way. One means of narrowing down the class might be to identify the people from conflict zones; and that is my meaning. That does not create the social problem that racial profiling in law enforcement raises because racial profiling is socially insidious, whereas identifying international hot spots and nationhood is not socially insidious in the same way. It is a first step in the inquiry that should not be excluded.

I think you understand the point. Most times when we identify terrorists, we put the locus of the conflict as the adjective to the terrorist, such as Chechen terrorists. Somehow, nationality might factor in. If CSIS tells the Department of Citizenship and Immigration that there is a problem with terrorists from Chechnya fanning out and attempting to enter Canada, it makes intuitive sense to focus on a line of inquiry that includes the individual's nationality. We are not looking for Chechen terrorists coming from Africa but we are looking for them coming from Southern Russia.

Senator Fraser: We will agree to disagree because we could continue to cite examples forever. I will speak to one that you cited earlier having to do with war criminals after the Second World War — those guilty of crimes against humanity. Sadly, I believe it to be true that such persons were found to be nationals of almost every country occupied by the Nazis; they were not only Germans. There are rotten apples everywhere and the Nazis found them and used them.

Mr. Matas, you cited the British and Dutch decisions to make it an offence to engage in incitement or glorification of terrorism.

I have not followed the Dutch example but I have followed the British one a little. I noticed with some interest that Mr. Blair's plan to include ``glorification'' has raised a great deal of concern among people whose job it is to think about civil liberties. I find all my instincts responding in the same way.

Then I started to think about what would the difference be between incitement and glorification? Do you have to include the one if you are doing the other? Short of saying ``Kill all the Jews'' or ``Kill all the parliamentarians'' or all the left-handed people, you could glorify those who do kill Jews or parliamentarians or left-handed people and that would presumably have the same effect. That, I assume, was the reasoning behind the decision to include glorifying these acts.

On the other hand, it is a huge limitation on freedom of expression. I ended up thinking, are we not approaching more dangerous ground here than we want or need to? I would like your thoughts about that, namely, if it is possible or useful to draw that line between glorification and incitement.

Mr. Matas: In our own brief, we have asked for criminalization of incitement and not specifically for criminalization of glorification. We referred to the United Nations Security Council resolution. I realize that Canada is not now on the Security Council, but it was unanimous. That resolution refers to incitement but not glorification.

Your question is: Is there a conceptual distinction between glorification and incitement? Yes, to a certain extent. If we had an offence, this is a legal question that might be raised. Somebody might say in defence ``I was glorifying but not inciting,'' and the court would then pronounce upon that.

The way I would approach it is incitement has to be something that is likely to occur. We do have incitement to hatred and we have had a lot of litigation around that. The way that is played out is that you do not have to show actual hatred but you have to show something is likely to generate hatred. Something that will not have that effect is not considered incitement to hatred.

I suppose you could say the same thing about glorification. Some glorification may well have the likely effect of generating terrorism; other glorification may not. That ends up being an evidentiary issue, depending on the nature of the glorification and the context in which it is found.

The issue of whether a particular verbal formulation is incitement to hatred or terrorism cannot be determined just by looking at the words. I can assume that anything said in the context of this chamber would not incite anyone here to terrorism or hatred. Looking at words in the context of this audience, I would say anything goes and everything should go. However, you have to contextualize it in the situation in which it is found and decide whether, in that context, it is likely to lead to terrorism. I do not believe there is one simple answer to that.

There is an implicit concern in what you are saying — this slippery-slope type of argument. You limit it this way and that way, and then all of a sudden, your freedom of speech is gone. I do not accept that slippery-slope metaphor; if you look at slopes, they are on both sides of hills. If they are slippery on one side, they will be slippery on another. If we start prohibiting or unnecessarily restraining our fight against terrorism, we are on a slippery slope to where we are basically allowing terrorism to occur.

We need a set of legislation that obviously shows concern for freedom of expression, but also for the real danger of terrorism and doing something about it. In my view, it is possible to develop a legislative balance that includes a prohibition against incitement to terrorism without an undue limitation on freedom of expression.

Senator Fraser: Would you support including glorification?

Mr. Matas: No, just incitement to terrorism.

Senator Joyal: Welcome, Mr. Morgan and Mr. Matas. I am pleased to see you, Mr. Matas, because of previous testimony and the support that you have brought to parliamentary work in both the other place and this place.

There are aspects of your brief I welcome with enthusiasm, such as where you mention that police forces should have special units to address the issue of hate crimes. In some police forces, especially at the municipal level, they record the number of complaints; in others, they do not.

It is difficult to have a national understanding of the issue of hate crimes in Canada because there is no common approach by various police groups in the country. That is an important issue if we want to address the hate crime question in Canada. I welcome that aspect of your brief. You have not put it forward and that is why I raise it, because I think it is an important one.

I have three issues. First is national origin, as my colleagues have mentioned. I was listening carefully when you were answering Senator Andreychuk and Senator Fraser's questions. I was trying to find the distinction between what you were saying and what the Americans are doing, which is to draw up a list of countries where, if you present yourself at the border, you are on the A list; on that list there are people from, for example, Egypt, Saudi Arabia and so on.

To me, it is not so much the country of origin as the terrorist groups. There are millions of people in Saudi Arabia who are perfectly honest citizens whom we would welcome at any time in Canada, but there are certainly terrorists among Saudis. We have seen it in the result of the investigation of 9/11. Most of them came from Saudi Arabia and they were not people identified before as involved in any criminal activities. They all got their visas to enter the United States and they had no criminal past; they were all citizens that we would have accepted at first sight.

Therefore, what you explained to us about identifying the national origin makes me a little uneasy. It seems to be effective because you say, ``We know that Saudi groups are involved in terrorism'' — and I do not want to single them out but we must look at any citizens coming from Saudi Arabia. Then there is Egypt, and we address the list. When you mention Chechen, Chechen is not a nationality; Russian is a nationality. You have Russian passports. Are we then placing all the Russians on the same list of people?

I do not think it is the most effective way to screen for terrorism. I would think twice before moving in the direction of the Americans. I would have a second look at it to see if what we would be doing there would really serve security. It is one thing to appease public opinion; it is another to be effective.

We see it in the United States, how appeasing public opinion and being effective are two sets of words. In fact, as we get reports of their internal investigations and how they fight terrorism, more and more we see we have something to learn about what not to do. I am not sure that you are not taking us down that same path.

Mr. Morgan: I should never be taken to be advocating crude profiling — crude public relations or public-opinion- oriented profiling as opposed to real intelligence gathering and law enforcement profiling. I think a lot of what you are identifying as faulty in the post-9/11 American situation is crude profiling that is based on prejudices, not real intelligence.

I never want to be taken as advocating that.

Perhaps I am chastened by years now of participation on behalf of the Canadian Jewish Congress in these crimes against humanity cases, when we have people coming into Canada, and after the fact, you wonder, having learned all these lessons from the World War II era war criminals, how could you have let someone like, to use a name that has been in the Supreme Court of Canada already, Mr. Mugesera come to Canada after the Rwandan genocide. Did you not know that the perpetrators of the genocide are trying to flee to places like Canada to hide?

I do not want our immigration and law enforcement agencies to feel hampered in weeding out the perpetrators of violence in world hot spots because they cannot focus in on certain nations. That is my worry. If we have this idea that notwithstanding that we know that massacres are taking place in a certain country, we cannot distinguish between those people and all the other people who want to come here, then we will obviously have generation after generation repeating the same mistake — that of letting in the perpetrators of violence because we did not scrutinize them.

I do take your point. I would never want to be taken to be advocating discrimination. If all we are doing is letting our prejudices play out in the form of profiling, then of course we cannot allow that. I am confident, and maybe that confidence is misguided, that our society does not want its prejudices to play out in the way that American society in the post-9/11 era prompted government to target certain communities just because of who they are. In our situation, we want the opposite. We want to have as wide an immigration policy as possible, and in order to do that, we have to ensure that the perpetrators of violence from international hot spots are not coming here. The ethnic communities, the ethno-cultural communities and the immigrant communities are the ones that suffer most from that. After all, it was the Rwandan community itself here that was pushing the government to turn its focus from World War II era war criminals to the Rwandan genocide and to look at those criminals who came here.

Please, I will reiterate: Maybe this was a lightning rod and should be articulated in a different way. I am not advocating a crude and prejudicial kind of profiling. I am advocating sensitivity to where the world hot spots are and not shying away from investigating the perpetrators of violence and identifying, as a first line of defence, the nation or the region from which they come.

Senator Joyal: My second question is about incitement to terrorism. Senator Fraser raised the objections that have been expressed and written about, especially by certain groups, to the proposal made by the Prime Minister of Britain, Mr. Blair. Section 319 of the Criminal Code states that one can establish, by argument, an opinion on a religious subject or faith. To me, this is a major problem. I read the proposal that you make and that the Minister of Public Safety, Ms. McLellan, has made. I remember what she said about the British proposal.

It seems to me that what we want to address, essentially, is a certain form of reading of the Koran, whereby a literal interpretation of some sections by some brand of religious interpreters leads them to conclude that they have to start a holy war, and those who directly participate in that holy war will go to heaven. They base their interpretation on those sections of the Koran to incite people to violence.

When you start reading things into a religious belief, you are on difficult ground. As much as it might look appealing to say that anyone who incites terrorism should be guilty of an offence, in practical terms, when you implement it, it puts you in a particular context of surveillance and, of course, of analysis. As you said, you have to look into the context and so on.

It seems to me there are other ways of addressing this issue, without entering into the field of limiting freedom of religion. That is essentially what it is. If we are addressing the issue of somebody belonging to a terrorist group that has been listed, then it is easy because we know the activities of the group, and we know the ``political objectives'' of some religious motivations that people might want to pursue. When you are entering the mosque and trying to identify the interpretation people give to religious texts, you are on difficult ground. It might be easily said, but in practical terms it is a very complex field. I can understand why, at first sight, they are restrained about the proposal that you gave us this morning and that has been put forward in Britain.

Mr. Matas: First, I want to thank you for your introductory remarks about police hate crime units and your endorsements of the B'Nai Brith Canada recommendation there.

There was a prior question from Senator Smith about the jurisdictional issue. I draw to your attention that Statistics Canada released in June 2004 a pilot survey of hate crimes for 2001-02 that was very useful. It was only a pilot study. It was only for that one year. Obviously, it is something the federal government could do. We suggest they continue to do it and perhaps expand it to include incitement to terrorism statistics. It is just statistics. B'Nai Brith Canada itself does statistical work on anti-Semitism, and one of the values is the year-by-year comparison; you lose that if you just do it for one year. That study showed that even post-September 11, the primary victim by far of incitement to hatred or hate crimes was the Jewish community. You can understand our concerns when we come to you with this.

Incitement to terrorism and incitement to hatred, at a basic level, are fairly simple. You say there are other ways of dealing with the problem. However, this is the most obvious way. People act out of thought, out of conviction, out of belief and out of attitude. People do not act as robots.

Sure, you can pick them up on the way to the place where they are planning to bomb someone or when they are in a meeting or as members of an organization, but the reality, as I said, is the incitement to terrorism and the incitement to hatred. They are the oxygen that fuels all these acts. If you want to cut off the fuel at its source, you deal with incitement to hatred and terrorism. That is the most obvious and direct way of dealing with it.

The religion problem is not an Islam problem. I would not even say it is a religion problem. Many terrorists use the mask of religion and the words of religion as a way of fomenting their terrorism, but I would call that an abuse and not a use of religion. These are people who are primarily terrorists or who use incitement to terrorism or incitement to hatred, rather than primarily religious people. One only has to look at the human experience around the world to see that this is not specifically an Islamic problem. It happens with every religion. We have seen links. Right now there are extreme right-wing Christian fundamentalists who are nothing but neo-Nazis, and the Nazis themselves tried to hide behind the cloak of Christianity in many ways. Look at the conflict in Sri Lanka and the religion that fuels that — neither side is Islamic. The Jewish community, regrettably, had its own terrorists who tried to use religious justification, and in Israel the Jewish Defence League is banned, despite its attempts to use religion to justify some of the things that it does.

We have to be careful to protect freedom of religion and freedom of expression, but that does not mean that we can do nothing about the grave problem of incitement to terrorism.

Senator Joyal: Mr. Morgan, I would like you to comment further on the security certificate, which you deal with in recommendations 13 and 14 of your brief.

You refer to that on page 5.

In the last paragraph on page 5, Mr. Morgan, you say that Canada ought not to deport individuals to jurisdictions where torture is likely to ensue unless it can negotiate ironclad guarantees against such an eventuality. An alternative to the indefinite detention that thereby results would be to adopt the control measures — house arrest, ankle bracelets and so forth — recently introduced in the United Kingdom, which may be applied, depending upon the individual's circumstances.

Mr. Matas has a proposal at paragraph 13 on page 20. He says that provision for an amicus curiae should be added to the security certificate procedure to represent the interests of the suspect while still ensuring that vital security information is protected, and so on.

We have been wrestling with the issue of security certificates since the Minister of Justice, Mr. Cotler, testified here. He had knowledge of the decision of the House of Lords of last December, which put some limits on security certificates. We cannot but take notice of the decision of the Federal Court in a particular case that I will not name. We must, of course, recognize that the Supreme Court of Canada has decided to hear the case on the constitutionality of security certificates in its current session.

You have raised an important point. It is easy for Canada to deport someone, but that does not cure the terrorist problem. If you just export the problem to another country and let the person loose, he or she might end up in a country where the protection measures are not as effective as the ones we have tried to put in place. As a result, there will be a free agent of terrorism somewhere in the world.

It is important for us to address the issue of deporting terrorists to a country where torture is likely to happen. I remind you of the statement by former Justice Louise Arbour, commenting on the Suresh case. She stated that there are no circumstances in which Canada should deport someone who would be subjected to torture. She made that statement last May or June and I am sure you both have read it.

We have to address that issue as well as the issues of the procedure and the conclusion of the procedure. You have both commented on that this morning. We would, of course, have to amend the Immigration Act and the Anti- terrorism Act to ensure that both systems are parallel, that is, that they offer the same protections and the same effectiveness in results.

Mr. Morgan: You identify one of the most difficult problems in anti-terrorism law enforcement. When people are determined to be inadmissible to Canada because they are a terrorist under section 19 of the Immigration Act, they are simply deported or not allowed in. That is our fundamental remedy for an Immigration Act violation. When that has been the finding in Immigration Act proceedings, we have not done enough to incarcerate them. If they have not been found guilty of a crime beyond a reasonable doubt, they have been found to be, on a balance of probabilities, a member of an inadmissible class.

You are absolutely right that that is a domestic band-aid solution to the international problem of terrorism. In fact, terrorism experts from other countries have accused Saudi Arabia, for example, of having done this with bin Laden. They simply exported him rather than looking for a cure. They treated their own symptom but gave the rest of the world a symptom. To a certain extent, all the countries that use immigration law as one avenue of attacking the problem of international terrorism are doing the same. They are simply saying ``Not in our backyard,'' and they are re- exporting the problem.

Typically, we do not have the kind of evidence needed to convict people like that of crimes in Canada. The reason they are in an inadmissible class of person does not come from our own police investigation of a primary nature because they were not here when they committed their offending acts. We do not have the kind of evidence that would be needed to convict them of a Canadian crime, so we simply send them back from whence they came.

It is true that we are party to all the human rights conventions and the international torture conventions that say that we absolutely cannot send someone back to face torture. The Supreme Court of Canada has not done a bad job in the Suresh case in saying that where there is any modicum of evidence, or even a suspicion that that will happen, we have to rethink the deportation, and they did that. As you know, Suresh was heard together with the case of Ahani, and they did not do that in that case. Mr. Ahani, who was found inadmissible to Canada, also claimed that he would be tortured if he went back to Iran. The Supreme Court said that he could not just make a bald assertion, that there has to be some evidence. I do not think the Supreme Court said this out of any great affection for the Iranian justice system. In the case of the dual Canadian-Iranian citizen Kazemi, we have seen that Iran's can be a very problematic system. However, the Supreme Court said that people in that situation have to at least show some evidence to make that argument, that they cannot simply make the bald assertion. As we know, Ahani was eventually deported, notwithstanding that he had alleged that he would be tortured. You probably know that a year later, the National Post did a follow-up. They photographed him sitting on his parents' front porch in suburban Tehran and quoted him as saying something to the effect that ``Canadians are so gullible.''

Of course we cannot deport people to face torture, but as the Supreme Court said, we must have some evidence to indicate that that will happen and not let it become the cure-all for everyone facing these proceedings.

People found to be inadmissible because they are terrorists under section 19 of the Immigration Act are likely to come from international hot spots, and those places may not have a rule-of-law society like ours, and which we would like to see. It may well be that many of these people are facing deportation to potentially abusive regimes.

We have to do something. We have found them to be inadmissible because there is something dangerous about them. We have not convicted them of a Canadian crime, and we cannot send them back to their country. Having made that finding, it does not seem that we are doing our duty to the Canadian public to simply throw up our hands and let them loose into Canadian society, having found them to be a dangerous type of person. We recommend that we at least start to think about some of the measures that Prime Minister Blair mentioned in the wake of this July's bombings, that is, ankle bracelets and house-arrest type control measures so that we can keep track of the person easily. They are not incarcerated as people who have been convicted of a Canadian crime, but they are people whom the security forces and police can keep track of while they wait out their time in Canada, however long that may take. A regime change in their country of origin may well be the solution. If a person had been found to be a terrorist from the apartheid regime in South Africa, for example, we might not have wanted to send that person back because prisoners were abused there, but once there is a change to a much more benevolent regime, we may be able to deport the person.

We are looking for a stop-gap measure more than anything else.

Mr. Matas: The overall focus of our brief is how the legislation can be strengthened, and when it comes to security certificates there is not a lot that can be said.

We have said there should be an appeal from the Federal Court of Canada to the Federal Court of Appeal, with a leave, because we are concerned that the government might be losing cases it should win. We have seen that where there is a similar provision in the citizenship revocation laws for war criminals and the government has lost cases it should have won and did not have an appeal. We regretted that. Obviously, an appeal would help both sides, but our concern is that the government might be stymied by the lack of the appeal.

We also suggested an amicus curiae, which is a way of expressing our concerns about civil liberties so that we do not dismiss them because we are talking about strengthening the law.

There are different ways of disclosing information without making it completely public. One is disclosing it to the lawyer for the person concerned under a confidentiality agreement, which is a procedure in the Federal Court rules right now for copyrights, patents and access to information, but not for security information.

As you know, the Supreme Court of Canada has granted leave to appeal in the Charkaoui case. Mr. Charkaoui is out on some kind of controlled release, so I do not know how closely they will look at his detention. It looks as if the major issue in which they are interested in Charkaoui is the secrecy of the information and the access he gets to it. I assume we will get a reasoned judgment from the court on that.

My first recommendation to the committee on security certificates is to wait until the Supreme Court of Canada decides that case to see where we are. If they say the present law is constitutionally all right, obviously Parliament can change it as it sees fit, but if they say there are some problems as it stands because of the Charter, Parliament will be constrained in the ways it can change or maintain the law.

Those who know me might well guess that I have written a great deal on this, which I am happy to convey to you separately, but it would take me too long to go through it here and it is not necessarily a B'Nai Brith position.

I absolutely agree with Louise Arbour, Mr. Morgan, and everyone else who says we should not to deport to torture under any circumstances, not even exceptional circumstances. Never deport to torture. That is in the convention against torture and it should be an absolute prohibition.

One thing we must keep in mind is the standard of proof. The convention, the way I see it, is a reasonable possibility. It is a low standard of proof. We should not say you have to prove beyond a reasonable doubt that you will be tortured before the prohibition against removal to torture kicks in. You cannot have that high a threshold. That makes sense in protecting the person concerned. However, I do not think we should have a different standard for protecting ourselves. I do not say that for the individual concerned it should be a reasonable possibility, but unless we can show we are in danger on proof beyond a reasonable doubt we should not protect ourselves. That means if somebody is in detention because he is a suspected terrorist, I do not think we should say he gets out unless we can prove beyond a reasonable doubt that there is a risk of terrorism because that imposes a double standard. We must use the same standard of proof for protecting the person as ourselves.

Senator Joyal: We could go on, because there is another paragraph where Mr. Morgan, in the same section of his brief, stated that the act should be amended to include a five-year sunset clause with provisions for renewal, and essentially, the idea behind that is that you cannot detain somebody indefinitely and not bring the person to court. The Supreme Court of the United States in the Guantanamo case has been clear on that. Any reasonable citizen would understand that a person might represent a permanent risk, but at least a person's case has to be reviewed at some point. We can decide at what time the person will be brought back to court, but as you said, the situation changes, evolves, and there is a point where the court must review the context in which people would be deprived of their freedom without having been sentenced formally for the crime they are alleged to have committed.

That it is an important principle to state if we want to maintain the rule of law that we praise as being the condition under which the legislation is adopted.

Mr. Matas: If I may follow up on that, there are a couple of problems with a security certificate regime and detention in terms of bringing someone before court. If you are in immigration detention, you get a detention review every 30 days. If you are in the security detention regime and going through court, you get a detention review every six months. In my view, it should be the same for both categories.

What is more, if the Federal Court upholds a security certificate but you are not removed, you never get another detention review. The detention review is available while you are going through court and not after. In my view, that is inappropriate. You should always, throughout the entire system, security or no security, have a consistent detention review regime of every 30 days.

Senator Joyal: I wish to return to the issue of retroactivity. I have noticed that you used the words ``retrospective in application,'' which I find less legally severe than ``retroactivity.'' Mr. Matas, I know your conviction on this subject, but as you know, we need sound arguments before we make a law retroactive, especially three years after this legislation was adopted. No one came to the table to tell us that because the act was not retroactive we have lost some important person or some dangerous terrorists. Is this not going beyond what we want to achieve in the context of the principles that we want to maintain in the adoption of anti-terrorism measures?

Mr. Matas: First, retrospective legislation in this area has already been upheld by the Supreme Court of Canada in the case of Imre Finta. He won on his acquittal, but he also challenged the constitutionality of the legislation on the basis that it was retrospective and the Supreme Court said that that legislation was constitutionally acceptable. The court split four to three on upholding the charge to the jury, but that part of the judgment was unanimous. All the judges said the retrospectivity was constitutionally acceptable for actions that were offences at international law at the time, even if they were not domestic offences. I do not see that as a legal problem.

As a practical problem, I will mention the case of Mohammed Issa Mohammed, who hijacked a Greek plane long before September 11. He is in Canada. We cannot deport him anywhere because no country is willing to accept him. The justice system is stymied now. Deportation is not the best remedy, but at least it is something. We cannot do anything with him. If we had retrospective legislation, at least we could prosecute him.

Senator Joyal: I understand that in the case of war crimes you can make charges of genocide retrospective. However, in the case of terrorism, it is a different basis. You cannot really equate the two.

Mr. Matas: Section 11 of the Charter of Rights and Freedoms says that there is a prohibition against retroactivity except for an act that was an offence at international law or criminal court according to the general principles of international law at the time the act was committed.

There is the legal question of when did terrorism become a crime at international law? We are dealing with all these treaties that have specific dates to them and that precede the Anti-terrorism Act.

I am not saying we should go back in time indefinitely. If you look at the crimes against humanity legislation, it reproduces the wording in the Charter. I suggest that you can go back to the time when the act was an offence at international law. I suggest similar wording in this legislation, reproducing the wording of the Charter — so we are obviously not violating the Charter — and leave it up to the prosecutors to figure out whether the act they are concerned about was a crime at international law at the time it was committed.

Mr. Morgan: I agree with Mr. Matas's legal analysis. In terms of overall legal policy, the inclination against retroactive legislation is one of fairness to the accused person. We should not catch the person by surprise, charging them for something that was not a crime when they perpetrated it. The reason courts everywhere have said that charges of crimes against humanity can be retroactive is the wholesale death of civilians. We may not have called it a ``crime against humanity'' — it is a new label — but no one could be unaware, when they killed civilians, that they were doing something that was illegal at the time they did it.

I would say that the same is true of terrorism. Mr. Matas raises the case of Mohammed Issa Mohammed. He was convicted by a court in Greece of attacking a civilian airliner with a machine gun. It may not have been called ``terrorism'' for the purposes of Canadian legislation, but it was a crime then and it is a crime now. Making the current Canadian anti-terrorism legislation operate retroactively implies no unfairness to the accused person in the sense of taking him by surprise.

Senator Joyal: My only argument is that one of the key sections of Bill C-36 was essentially to allow Canada to sign all the United Nations conventions on the issue of terrorism that we had not previously been part of. You will remember it was very important for that bill to be adopted. The government gave as one of the key reasons that bill had to be adopted that Canada's legislation should line up with the international convention that we were signing at that time. Therefore, I have no problems with that, as long as those conventions are part of the Canadian law. However, I am having second thoughts about making it retrospective in the context of conventions that Canada had not signed at the time.

Mr. Matas: The fact is that we pretty much signed them all. The law does not work from the date we signed or ratified it; it works from the date the legislation was enacted, so there is that gap there.

Senator Joyal: Absolutely. That is why I think that the proclamation provisions of Bill C-36 were sound. Now, however, you are asking us, for the reasons that you have explained to us, to change the legislation in that context. We will have to think twice on that.

The Chairman: We thank you for coming here this morning. We have had a very useful discussion here today.

Colleagues, we have some business before the committee. As you know, we are making plans to travel to London in the first week of November. To do that, I have to deal with Internal Economy on a budget this week, so I wanted to get approval from the committee to go ahead with the budget that we distributed to each of you.

Senator Smith: Do you want a motion?

The Chairman: Yes.

Senator Smith: So moved.

The Chairman: Seconder? Any comment?

Senator Andreychuk: I assume that the budget is in line with those of the other committees that are travelling, because I know that some are casting about to get cheaper airfare and so on. I presume all of this was done in consultation, since the chief is sitting here.

The Chairman: We will ask our clerk.

Senator Andreychuk: With that, I would not have any objection.

The Chairman: Yes, we will do that. We will be in contact with your offices. There have been two suggestions for dates. There is a problem with the Finance Committee, but we will work that out with your offices.

The committee adjourned.

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