Proceedings of the Special Senate Committee on the
Subject Matter of Bill C-36
Issue 1 - Evidence, October 22, 2001 (afternoon sitting)
OTTAWA, Monday, October 22, 2001
The Special Senate Committee on the Subject Matter of Bill C-36 met this day at 1:30 p.m. to examine the subject matter of Bill C-36, to amend the Criminal Code, the Official Secrets Act, the Canada Evidence Act, the Proceeds of Crime (Money Laundering) Act and other Acts, and to enact measures respecting the registration of charities, in order to combat terrorism and explore the protection of human rights and civil liberties in the application of this Act.
Senator Joyce Fairbairn (Chairman) in the Chair.
[English]
The Chairman: Honourable senators, this is our second meeting, with witnesses, of the Standing Senate Committee on Bill C-36, the Anti-terrorist Act, which was introduced by the government in response to the tragic events of the September 11.
This morning we heard at length from the Minister of Justice and her officials. This afternoon we will welcome the Solicitor General of Canada; the Director of the Canadian Security Intelligence Service; and officials from Canada Customs and Revenue Agency and the Department of Finance on the issues of money laundering and charitable donations.
The Senate is studying the proposed legislation so that our concerns and recommendations will be sent in advance to the House of Commons Justice Committee and will hopefully be included in the bill when it officially comes to the Senate for final debate and formal committee study.
This afternoon, I am pleased to welcome our first witness, Mr. Ward Elcock. He will be with us for one hour and a half. I would encourage all honourable senators to be concise with questions so that all senators will have a chance to participate.
Mr. Elcock, thank you for coming and please proceed.
Mr. Ward Elcock, Director, Canadian Security Intelligence Service: Honourable senators, I do not have an opening statement, so if you wish to proceed to questions, I will be happy to respond.
Senator Andreychuk: Included in Bill C-36 are tools that you will be able to employ that you have not had before. Would these tools be equally valuable to you for your ongoing work in such areas as drugs, organized crime and money laundering investigations not related to terrorism?
Mr. Elcock: Honourable senators, the tools of the legislation are to be used mostly for the police and the other ministries. There are some provisions that do affect and are important for us. However, in terms of the tools, they are meant primarily for the police. The bill provides for uses of our information, but the tools are really for the police.
Senator Andreychuk: Could you expand on those areas that relate to CSIS?
Mr. Elcock: There are provisions wherein our information will be the basis of action taken; whether in respect to charities; or the freezing or seizing of assets; or the creation of a list of terrorists and so on. An important set of provisions that are contained in the provisions amending the Canada Evidence Act will allow the courts a somewhat broader frame of action in terms of dealing with secret intelligence in court cases. In that sense, it will be useful to us because our information can be used more effectively than in the past.
There will be changes to the Official Secrets Act that have been coming for some considerable period of time. It will be a good to have those changes in place.
Senator Andreychuk: Is it fair to say that what will help you most are the increased resources that will be made available to you not directly as a result of this bill, but out of the September 11 incident and the government's announcements that they will be addressing those issues?
Mr. Elcock: The government has said they are addressing those issues. We will be looking forward to additional resources, if we get additional resources out of that process.
Senator Andreychuk: There is some discussion about having counter intelligence or more than information gathering and intelligence gathering that you have now. There has been a call to have an increased overseas capacity. What is your opinion on that, other than what I have read in the newspapers?
Mr. Elcock: There is a misunderstanding, and I testified to that effect last week. I have commented on in the past, but the question has never been put to me before last week.
The reality of our legislative mandate is that we have authority, in respect to threats to the national security of Canada, to operate within or outside of Canada. This we do, depending on whether we can obtain what we need here or somewhere else. In some cases, it is more effective to do those operations, or collect information, outside of Canada rather than from here. We do that. There is no mandate apart from the issue of whether we have the resources to do the kinds of operations we need to do and where we want to do them. The reality of operating outside the country is that, by definition, it is more expensive, risky and difficult.
In terms of foreign intelligence, for the purposes of the CSIS Act, leave aside the dictionary definition of foreign intelligence. Foreign intelligence, for the purposes of CSIS Act, means only that information that has no threat-related component to it. It means nice-to-know information. That information is what price country X prepared to pay for Canadian wheat this year. Threat-related information is whether country X is building a nuclear weapon. The wheat price is nice-to-know information that is collected in Canada and not abroad. In terms of threat-related information, there is no territorial limit to my mandate.
Senator Andreychuk: You are saying that the CSIS mandate gives you the tools you need. It might be a question of more resources. Bill C-36 is focusing on what is done with your information as opposed to giving you more of a mandate. Is that correct?
Mr. Elcock: That is correct.
Senator Stollery: I have been casting my mind back over the past few years. Everyone has been talking about September 11, and we all agree that it was a dreadful event that took place in New York on that day. However, so was the Air India bombing, of some years ago that sent more than 300 Canadian citizens to the bottom of the Atlantic Ocean. I would have called that an act of terrorism. I do not know why we did not spend more time dealing with that subject then. I realize that police work and information collecting are two separate things, but the investigation seems to have been an incredible failure. No one has ever been convicted for that bombing. I find that astounding. We are talking about who did the bombing of the World Trade Center and the various conversations that are taking place about that, but no one has ever been convicted for the Air India disaster.
If you had had aspects of this bill those many years ago, would that have made the intelligence on that affair less of a failure?
Mr. Elcock: I do not know that I can make that kind of connection. As I said in response to a previous question, most of the tools in the legislation are tools for the police. In a sense, you might be better to address the questions to the police as to whether it would have made it easier for them to prosecute the offence than it has up until now.
I think it would be inappropriate for me to go further than that, given that three people have been arrested in connection with that incident. They will go on trial some time in the next few months.
Senator Stollery: The Air India bombing was in 1985. We are now 16 years after that bombing. I lived in Algeria during the civil war there, and I understand something about the collecting of information. The police act on information they are given by the intelligence services. I assume that if the police were not successful it is because they did not have the information that seems to involve a great deal of to-ing and fro-ing between Canada and the Punjab. Thus, CSIS would have been involved in collecting that information.
The police have arrested three people in connection with the bombing. However, they would have been using information provided by CSIS to carry out those arrests. Again, if this bill had been in place in 1986, or at whatever the appropriate time would have been, would it have made it any easier to have caught and convicted those people?
Mr. Elcock: A crucial distinction between what CSIS does and the police do is that the police proceed on the basis of evidence. CSIS simply collects intelligence. While you are correct in stating that we provide intelligence to the police, that intelligence, in some cases, is not enough for the police to use to arrest or convict a suspect. The information that we provide them with may point them in a particular direction, but often they must collect additional information in order to successfully prosecute someone. The reality of the changes to the Canada Evidence Act might have made it easier for information to be passed from CSIS to the RCMP so that it could have been used in a court case. At this juncture, however, that would be speculation on my part. We provide intelligence to the police, not necessarily evidence.
Senator Kelleher: I would like to correct the record before we leave this topic. We have convicted the person who made the bomb that brought down the Air India flight. He was extradited from Britain and served 12 years in prison in British Columbia for manslaughter. Thus, there was a conviction.
Senator Stollery: However, charges have been laid more recently. They must have been against people who were not convicted or they would not have charged them.
Senator Kelleher: We believe a number of the people who did the bombing were killed in a shootout over in India and Pakistan.
Senator Stollery: I will not pursue that because there are charges pending right now. Obviously, the mater-minds were not killed in a shootout in Punjab. They did not go to jail. It is to those people that I am referring. The impression among the public is that the main authors of the intellectual crime were never convicted.
Mr. Elcock: If I can make a slight correction, the individual who was successfully prosecuted was prosecuted in respect to the bomb that went off at Narita airport. It is believed there is some connection between the two events. The individuals charged in British Columbia were charged only in respect to the Air India incident.
Senator Murray: Mr. Elcock, I have been reading the three reports pertaining to the special committees on terrorism, public safety and security and intelligence. I know you are familiar with those reports. The most recent of them was tabled in January 1999. Among other things, it is noted that the definition of a threat to the security of Canada, in section 2 of the CSIS Act, is materially different from the security exclusion provisions of the Immigration Act.
I do not know whether that is still the case or whether those issues are addressed in Bill C-11. Perhaps you can tell me. In any case, does it matter?
The committee notes that the David McDonald commission, a special commons committee, and the committee itself had all made this observation and recommended that those definitions be brought into line as part of the current review of the Immigration Act. What do you have to say about that?
Mr. Elcock: At the end of the day, that would be an issue for the Department of Citizenship and Immigration; it would be a policy issue for that department. The definition in each act is for different purposes. In our act it simply defines what it is we can collect intelligence on; and, by definition, what we cannot collect intelligence on. The fact that the definition is, perhaps, somewhat broader than the definition in another piece of legislation is probably not a serious difference. However, there is a difference.
Senator Murray: The Senate committee points out that the definition in the Immigration Act is much more restrictive than in the act that governs your organization. CSIS has not expressed a view as to whether or not it would be better to bring the wording of that act into line with this bill.
Mr. Elcock: No, we have not.
Senator Murray: What will be the procedure for listing terrorist organizations? I presume you will have collected some intelligence on that matter and will be advising the minister and the Solicitor General.
Mr. Elcock: I suspect that is still a process that awaits the legislation being passed. In all likelihood, the list would come from organizations that we had identified as fitting the bill. It is likely that list will be made up on the basis of submissions we will need to make to our minister and through our minister to the Governor in Council. It will be not unlike the present 40.1 process whereby we send a certificate to both ministers. If the ministers agree and, ultimately, if the Governor in Council agrees, then the organizations name will go on the list. There will need to be a process like that. With an appeal process behind that we will have to have made the case before the name is added to the list.
Senator Murray: With regard to the wider mandate for the Communications Security Establishment, or CSE, which appears to be contemplated in this legislation, do you see any problem of overlap and duplication between their work and yours?
Mr. Elcock: No, I do not.
Senator Murray: Are there guidelines for sharing information with foreign governments, that is, information on Canadian citizens or, indeed, about citizens of their own country that yours or other organizations have collected?
Mr. Elcock: I cannot speak for other organizations, but certainly anything that we share is subject to review by SIRC. They would have access to any information we had disclosed to a foreign government or any information we received from a foreign government and what we do with it.
Senator Murray: Is there a need-to-know criterion?
Mr. Elcock: Do you mean in terms of SIRC's access?
Senator Murray: No, in terms of your sharing with a foreign government?
Mr. Elcock: In terms of the information we share with foreign governments, we obviously look very carefully at the government we are sharing with. We look at the nature of the institutions we were sharing with; their reputations; their approaches to operations; and their preparedness to keep secret whatever we have shared with them. There are a whole variety of things we look at before we share information with anyone.
Senator Murray: Including the nature of the information.
Mr. Elcock: Including the nature of the information, yes.
Senator Murray: This question gets slightly speculative, perhaps, but I heard the Minister of Justice say the other day that the mere fact of occupying a bridge, for example, is not a terrorist act. My mind went back to the Oka confrontation of 1990. Will the tools that CSIS will get in this legislation help you in foreseeing a situation such as arose at Oka where, by the use of arms, there was an occupation of territory?
Mr. Elcock: As I said in response to an earlier question, the reality of the legislation is that it does not change our powers. The legislation does not change our powers at all. It has no impact on our mandate. It does not give us any additional powers.
Senator Murray: I will put the question to others.
Senator Kenny: Mr. Elcock, could you share with the committee why you believe that the changes were necessary to the Official Secrets Act? Will you elaborate on why the Security Information Act will be helpful and an improvement for CSIS?
Mr. Elcock: The reality of the Official Secrets Act is that it is a dead duck. It is impossible to prosecute anyone under the act, as it now exists, except in the clearest case of espionage and probably in a case where you are prepared to release immense amounts of information surrounding such a case in order to get a conviction. There was therefore, a need for legislation particularly for organizations like my own. Keeping information secret is not an unimportant facet of life, and having an effective piece of legislation that allows you to keep that information secret is important.
Senator Kenny: Can you point to specific aspects that would give you better tools than you now have?
Mr. Elcock: The fact that indeed we would be able to prosecute someone who revealed secret information is, in and of itself, the key change in the law. The existing legislation is unworkable under the Charter.
Senator Kenny: Could you comment for the committee on the question of designating persons under the act so that they are permanently bound to secrecy by a deputy head? I am interested in knowing if an individual can be designated retroactively.
Mr. Elcock: I do not believe so.
Senator Kenny: I am looking at clause 10(1)(a) where it says:
...the person had, has or will have access to special operational information.
The word had leads me to believe there is a retroactive aspect here.
Mr. Elcock: I suspect the lawyers would be better equipped to answer that question than I am, but it is not clear to me if you are designated in respect of that previously received information or not. I am not sure there is an after-the-fact consequence of being designated. You are only designated from the point at which you are designated, if that is the point you are driving at. In other words, if you had access to information and the government decided to designate you, I think you are only designated from the point at which you are designated and not before.
Senator Kenny: What happens if someone does not like being designated? What recourse do they have?
Mr. Elcock: Not much under the legislation.
Senator Kenny: What about Clause 29, provision 15? There is a discussion of a person who, if they are acting in the public interest, may disclose. Could you elaborate on that for us? Would you explain that clause so we have a better understanding of when someone could disclose information that they believe to be in the public interest?
Mr. Elcock: It would be difficult to put a hypothetical example together. The lawyers felt that it was essential under the Charter to include a public interest offence; in other words, putting a defence in the legislation for someone who had a legitimate reason for disclosing information would be essential if the legislation were to be successful in withstanding a Charter challenge.
Senator Kenny: Can you give us an example of how that might work?
Mr. Elcock: I suspect if the individual believed that he had a justifiable case of malfeasance on the part of the organization or some member of the organization in some operation that case might well be considered. If they followed the steps provided for in the legislation that would be considered perhaps as a public interest defence. It is hard to know at this juncture precisely what the courts will accept.
Senator Kenny: Are you comfortable with this? It sounds like this is not something you would have been put in the act, but it has been put in to make it Charter-proof.
Mr. Elcock: That is probably a good description, Senator Kenny.
Senator Beaudoin: This morning I raised the question of the interception of private communications. There is a section that says that the Minister of National Defence may authorize interception when those private communications come from the international scene. However, the system in Canada is still the same as before. We still have to go before a court of justice to obtain a warrant. Is that the situation in your centre?
Mr. Elcock: Yes, it is. Only the police and CSIS have the authority to seek a warrant to intercept communications in Canada.
Senator Beaudoin: Only you.
Mr. Elcock: And the police.
Senator Beaudoin: When it is at the international level, I understand the authorization comes from the Minister of National Defence.
Mr. Elcock: That piece of the legislation has nothing to do with CSIS. It is purely in respect of the Communications Security Establishment.
Senator Fraser: Mr. Elcock, you are aware that parliamentarians have been particularly interested in oversight aspects or gaps in this bill. You work with a review committee. Could you tell us how that works and, what affect the existence of that committee has? What are the advantages and disadvantages?
Mr. Elcock: I think that in the early days there was considerable unease about a review committee. We describe it as a review committee, not an oversight committee. There is a difference. There was some concern about a review committee, and there certainly was some concern on the part of our allies about a review committee, particularly one that has broad access, and it is the broadest of any committee I am aware of. Most of that has gone, certainly on the part of our allies. Within the organization, most people would see SIRC as an important part of the service and why we are where we are.
There are a couple of important positive results. If a person is accused of having done something wrong, at least someone can give the person a "good housekeeping seal of approval" and thereby say to the government, and to the public, that this person is innocent of the accusations. Unfortunately, that entity can confirm that the person has done something wrong but, generally speaking, it should be known when a person has played by the rules.
The other benefit is that this kind of review makes for a very disciplined organization. That is a good thing in this kind of business.
Senator Fraser: Would you describe for me in some mundane terms how it works? Does SIRC come in once a year for a morning, or do they come in every month? Do you give them regular reports on what is going on or do they just come in and say that this time they want to look at this kind of activity? How does it work?
Mr. Elcock: Committee members are appointed. At the beginning of each year the full-time staff member set up a work plan. They set up a review process. They may decide to review offices in the Prairies this year and in Quebec the next. They may decide to review our offices in other parts of the world to see how they are functioning. They may review certain investigations to see whether the work was justified and carried out appropriately.
Members of the committee carry out a hearing function for complaints against the service. Designating the review work is a continuous process.
Senator Fraser: I understood you to say that, in the end, the agency believes that this has been a positive element?
Mr. Elcock: Yes.
Senator Fraser: It has brought an element of discipline as well as protection?
Mr. Elcock: That is true.
Senator Fraser: Are there any disadvantages?
Mr. Elcock: It is fairly onerous. It requires a fairly large effort to supply the kinds of support that SIRC needs to do its job. In order to review our files on a specific operation, someone from that office must go and explain the operation to them. When they are explaining the operation, they are not doing what they are normally employed to do which is to conduct intelligence operations. In that sense it is onerous and it occasionally has its conflicts. It is by definition a slightly adversarial process. CIRC and CSIS were not meant to be close friends. We are mutually respectful professionals but the relationship is not always friendly.
Senator Fraser: Would you say that the structure that Canada has established is more or less rigorous than, for example, the American congressional committee review that exists for intelligence purposes?
Mr. Elcock: By far and away the most rigorous review process in the world is in Canada.
Senator Kenny: As a point of clarification, there is oversight in the United States but there is no oversight by SIRC here.
Mr. Elcock: I thought of that when I made my response, Senator Kenny. I think the Canadian system still has a good deal more review. Different people could weight the issues differently. I weighted the issues in that way because the comprehensive nature of review in Canada is far greater than in the United States. The oversight in the United States tends to be narrower than is the oversight here in Canada.
Senator Tkachuk: I want to follow up on our discussion this morning with Department of Justice officials and the minister.
We have been told that the provisions in the bill regarding the Privacy Act were needed because of international reasons. In other words the provisions are needed to help in the sharing of information between Canada, Europe, the United States and some other countries. Is any information being withheld today because we do not have this legislation?
Mr. Elcock: I do not believe that our service is not being provided with information now because that provision is not in current legislation. As I understand it, the Department of Justice believes the provision should be there to create concordance between the Access to Information Act and the Canada Evidence Act. In that way one could have the same result in both cases. I do not think it is there because of a lacuna that makes foreign countries think we cannot protect our information.
Senator Tkachuk: How do you protect the information now?
Mr. Elcock: We classify the information and share it only on a "need to know" basis. The Official Secrets Act and the new act to be entitled the Security Information Act are, in that respect, far more important for protecting that kind of information in the future.
Senator Tkachuk: Earlier this morning we discussed possible terrorist activity in Canada. Do you have evidence now and did you have evidence before September 11 of terrorists and terrorist groups operating in Canada?
Mr. Elcock: There are terrorist groups with members, adherents and, in some cases, operatives in Canada, as there are in other countries in the world.
Senator Tkachuk: For how long would you have known that?
Mr. Elcock: It depends on the group. In some cases, we have known for a considerable period of time. Some of the individuals may never have actually committed any crime. Membership in some organizations has not hitherto been a problem for anyone. A member of a terrorist organization who has never committed a criminal act, especially one with adequate false identification and even some sometimes with legitimate identification, could move around the world easily.
Senator Tkachuk: What would change under this act?
Mr. Elcock: Many of the activities carried out by people in such organizations would now be criminalized. Their fundraising would be criminalized. There are a number of activities that in the past would not be considered an offence. The act will allow for an arrest to be made.
Senator Tkachuk: Would you have supplied evidence to government officials and ministers that these particular people in this particular city are raising funds for and are members in a terrorist organization and they kill people? Would you have relayed that kind of information, or is that information that no one needed to know?
Mr. Elcock: We would probably have provided information not dissimilar from that, in some cases. The difficulty with terrorist fundraising until now has been that, even if you knew someone was collecting money on behalf of a terrorist organization, the only way to press a prosecution would be to show an actual dollar bill collected in downtown Toronto was used to buy weapons in some other city. That is almost impossible to do.
Senator Tkachuk: Under this bill, people, including the police, can gather information on almost any Canadian. Would the people you follow because of involvement in terrorist organizations, both before September 11 and after, be Canadian citizens, refugees, or people waiting for citizenship?
Mr. Elcock: Representatives of every one of those groups are among the population of adherents to terrorist groups in Canada.
Senator Tkachuk: Do we have many citizens of Canada operating as terrorists?
Mr. Elcock: To give you an example, I believe Mr. Carter, the gentleman whose name was added to the most recent list of those whose assets were frozen, is a Canadian citizen.
Senator Tkachuk: Would they be in the majority?
Mr. Elcock: They probably would not.
Senator Tkachuk: What parts of the world would they come from?
Mr. Elcock: They come from every part of the world. It is an admirable fact of Canadian society that we have populations from virtually every part of the world. Unfortunately, in some of those parts of the world there are struggles taking place, for one reason or another, and often there are terrorist groups. Sometimes those people filter in with the rest of the population.
Senator Tkachuk: I do not know whether I am right here or not, but there are two kinds of terrorist groups: those who want to do harm to us and those who, for some reason, do not like what is happening in their country and want to do harm to others.
Mr. Elcock: That is not a bad classification.
Senator Tkachuk: The ones who want to do harm to North Americans, where do they come from?
Mr. Elcock: The pre-eminent groups at this point in time would be the Sunni terrorists, such as the bin Laden organization, al-Qaeda, and several associated Somali and Egyptian organizations.
Senator Tkachuk: Should the government be doing anything to assist CSIS in doing its work? The sooner we provide the resources needed to gather intelligence on these groups and either prosecute them or get them out the country, the safer and more secure Canadians will feel.
Have you made any suggestions to the government that could make your work more efficient, substantial and effective?
Mr. Elcock: In terms of CSIS, as I said, this legislation does not add to our powers. In a sense, our powers as mandated are largely sufficient for the purposes. In terms of resources, as I said in responding to an earlier question, the government has indicated it is looking at longer term resource requirements for organizations like CSIS and other parts of the community. A decision on that is forthcoming in the not-too-distant future.
This bill, on the other hand, provides, not so much for us but for the enforcement agencies, clear authority to prosecute behaviours that heretofore would not have been prosecutable.
Senator Jaffer: I have a question that I am not sure is appropriate. You can tell me if it is not.
Mr. Elcock: There are no inappropriate questions, only dumb answers.
Senator Jaffer: You are very kind. In response to a senator's question, you identified some groups about which we have concerns. There are honest people in those groups who have raised a concern with me about racial profiling. I want to know if you do racial profiling and whether collecting this list will mean you will have expanded rights in doing racial profiling?
Mr. Elcock: We do in fact do some profiling. The profiling that we do is essentially to provide immigration with an essential set of things to look out for in respect of particular groups or organizations. That is not a racially-profiled list. It is not based on colour. It is based on origin, on educational and work background, and a number of other things. In some cases we are targeting, say, Somalis who went to a particular school so it may look as if this is racial profiling, but it is not.
Senator Jaffer: You mentioned immigration. Normally, after people are accepted as a refugee, you often become involved in interviewing and speaking to them after they get landed. Do you get involved before as well?
Mr. Elcock: Bill C-11, which amends the Immigration Act, will have us doing pre-screening of refugees. We have not to this point done that, but in the future we will be screening as immigrants arrive. The names will be given to us by immigration and we will screen them in hopefully as efficient a manner as we do now with landed immigrants.
Senator Jaffer: Would you be doing pre-screening in the countries of origin as well or only after they arrive here?
Mr. Elcock: We would screen the names as given to us by the Department of Immigration.
Senator Joyal: The media has been reporting that there were approximately 50 terrorist organizations involving more than 350 people in Canada. Can you confirm that?
Mr. Elcock: Madam Chair, that was a number the media took out of a presentation I made originally to Senator Kelly's Senate committee. That quote, which has lived on in every newspaper story I can think of, was simply a snapshot at a particular point in time. The number that we would be looking at at any point in time could be higher or lower, depending on our focus. We manage risks, so we are looking at the highest risks at any particular moment.
There is no particular magic to the numbers 350 or 50. It is the reality that there are terrorists and adherents of terrorist organizations who seek to come to Canada and who are in Canada, and there are a number of organizations that have a structure here.
Senator Joyal: In your opinion, with the passage of this legislation as it stands now, can we conclude that in a short time some of the people that you have been monitoring in the last years would be brought to justice to answer accusations either to previous federal legislation or to the new crimes that are created in this legislation?
Mr. Elcock: I am not sure that there will be a flood because there are not thousands or tens of thousands of terrorists in Canada. I think there will likely be prosecutions under the new legislation. The existing legislation does not, in most cases, offer much in the way of prosecuting, unless someone has carried out a terrorist act and committed a crime in the process. There will likely be prosecutions under the new legislation, but the process involved will not necessarily be easy. It will be a court process, which, by definition, with its appeals, will likely take some time. It will not happen overnight, but the legislation will certainly provide additional tools for the police to prosecute members of terrorist organizations.
Senator Joyal: In other words, you are not in a position to tell us, to take the example of the al-Qaeda organization linked to Osama bin Laden, that in a very short period of time those people will be brought to justice because they are a part of a terrorist organization against which Canada has made a decision to put the Armed Forces on active service?
Mr. Elcock: Membership is not an offence. For any individual to be charged under the new legislation, the police would need sufficient evidence to demonstrate that in fact certain activities that are caught by the act had been carried out by the individual.
There would need to be a prosecution; a court case. There would be all the appeals and so on. That process will go ahead once the legislation is approved, but that is a process that does not happen overnight.
Senator Joyal: In other words, even if that bill were adopted in a short period of time, it does not mean that people who belong to a terrorist organization would be brought to justice in Canada in the near future and, especially, the ones linked to Mr. Osama bin Laden?
Mr. Elcock: We will be assisting the police, and the police will be seeking to prosecute anyone we can find who has, in fact, committed an offence under the new legislation. That process, even if we identify them all and have several candidates, will not be a quick process. The legislation has a great deal of protection.
Senator Joyal: You mentioned that the major thrust of the legislation would be used by the police force not by your service. In other words, if there is a sunset clause in that bill, you will not be drastically affected in the effectiveness of your operation?
Mr. Elcock: The legislation has essentially no impact on our mandate at this juncture, so any other provision added would, obviously, have no impact either. The reality of a sunset clause would mean the provisions that allow the prosecution of terrorists for certain kinds of offences would fall.
Senator Joyal: For example, the Privacy Commissioner has mentioned that sections 103 and 104 could affect your operation. You are not concerned that even if those two special sections were amended that that would be of any embarrassment in the usual operating of your operation?
Mr. Elcock: The reason for that amendment to the act is to provide coherence between two pieces of legislation. It is there to provide a similar result under both pieces of legislation. By definition, there may well be in the future, if the legislation is there, a case in which we would be involved and in which that section would be important. However, as I said earlier, there is no barrier at this point in terms of our sharing information with foreign services or other foreign countries.
Senator Joyal: Do you believe it to be a reality that the American media can report that terrorists are operating in Canada and we do not have the capacity to provide the American authorities with the information that they need. Based on your knowledge and experience, is that not the reality?
Mr. Elcock: No, I do not believe that is the reality at all. The reality for all modern, democratic Western countries is that if you permit the free movement of people and money, which you must do in a modern economic country, some people will move under the threshold. The same is true for the United States and most Western European countries. We are in the same boat, and most of the organizations I deal with would say the same thing.
Senator Joyal: Are there American-based terrorist groups that have operations in Canada?
Mr. Elcock: I am not sure which groups you are thinking of.
Senator Joyal: The one, for instance, linked to Mr. Timothy McVeigh?
Mr. Elcock: The militia groups do not seem to have existence in Canada. It is not something that has crossed the border particularly well.
Senator Joyal: They could come to Canada to plan terrorist activities in the United States.
Mr. Elcock: That is always possible.
Senator Joyal: In the past, to your knowledge, did that happen?
Mr. Elcock: No.
Senator Joyal: Nor any other American-based terrorist group?
Mr. Elcock: That covers a wide range of territory. I would not go that far.
Senator Murray: I have one issue I wish to raise with Mr. Elcock. Are you satisfied that CSIS now has adequate tools to decipher encrypted data?
Mr. Elcock: The issue of encryption is a difficult one. There is no question that encryption is widely used by terrorist groups and others. There are some ways around encryption. There are some techniques that get one around encryption. In a sense, it changes ones' method of investigation rather than presenting a total barrier to investigation.
Senator Murray: The Senate committee stated that when CSIS, the RCMP and others came before the committee, they had urged a legislative or regulatory regime that would provide you with mandatory access to the keys used to encrypt and decrypt communications and stored data. Later, they indicated that you had sought a change to the Criminal Code to compel the holder of a cryptographic key or password to give it up in response to judicial warrant. Then they went on to say it is clear that security and law enforcement agencies are on the losing side of the debate over encryption. The winning side of the debate, apparently, is the consideration of costs, exports, economic growth, privacy, confidentiality and so on.
They say that other solutions would be expensive, time consuming and, in the case of strong encryption, ineffective. Would this bill not have been a good opportunity to give you the tools that you were seeking when you appeared before the Senate committee?
Mr. Elcock: I believe there have been some discussions around some elements of what might be called the lawful access, including encryption, in a number of other areas. People are still looking at the possibility, and there has been some talk of possibly a second bill, and some of those provisions might be there. In a sense, it is a more complicated piece of legislation.
Senator Murray: I appreciate that, and we will look forward to the second bill.
Senator Tkachuk: With respect to the 72 hours that you have to clear a refugee, if indeed that is the right way to put it, is that enough time?
Mr. Elcock: The 72 hours does not refer to our running the name through our system or doing any checks on the individual. That is an immigration deadline. In many cases, we will be able to make a 72-hour deadline because we will be processing those by computer for the most part. However, the reality is that the deadline is not in terms of our investigation of particular refugee claims.
Senator Tkachuk: Would you be processing all of them?
Mr. Elcock: Yes, all of the refugee names.
Senator Tkachuk: How many people do you think that would be in a week or a month?
Mr. Elcock: I believe there is something in the order of 40,000 or 50,000 refugees a year, so it is a fair list of names.
Senator Tkachuk: How many of those do you think would be coming from countries that you indicated earlier would be the ones who might want to do us harm?
Mr. Elcock: That is impossible to foretell. Refugees tend to come from areas in the world where a particular problem has occurred. These problems include is starvation or economic breakdown, for example.
Senator Tkachuk: Just about every continent except for South and North America?
Mr. Elcock: Yes.
Senator Tkachuk: At what point in the process will you be asked to see if a person might have terrorist ties or might be ineligible? The process for refugee determination is complicated. I am not sure how much Bill C-11 will change that, but will you get involved at the beginning when the claim is made?
Mr. Elcock: Yes.
Senator Tkachuk: Whether it is made here in Canada or outside the country, will the name be given to you almost immediately?
Mr. Elcock: It should be, yes.
Senator Tkachuk: Citizenship and Immigration will then determine if the claimant is eligible. Will they wait for your report before they make that determination?
Mr. Elcock: It depends on whether we are able to generate something quickly or not. In many cases, there will be no problem. In other cases, it may take us longer. The refugee is not through the final process yet, even though their claim has been found to be eligible. In other cases, we will have to collect more information before we can provide advice to immigration.
Senator Tkachuk: At the same time as that person is going through the process, you are working on that person?
Mr. Elcock: Yes, and we may have some additional information we can provide to immigration.
Senator Joyal: Mr. Elcock, in the past has your agency been involved in legal proceedings as a result of people who feel that the agency has gone beyond its mandate?
Mr. Elcock: It would be surprising if one had an intelligence service about which people did not complain. People complain about what they think we have done or what they believe we have done. On occasion, yes, we are.
Senator Joyal: Could you be more specific? What was the last one?
Mr. Elcock: I am not sure which one you are thinking of, senator.
Senator Joyal: I just asked you about the last one.
Mr. Elcock: I cannot off the top of my head. I am drawing a blank. We do get complaints.
Senator Joyal: What kind of complaints?
Mr. Elcock: The complaints are as varied as the people who make them. Complaints include people who think that we are broadcasting instructions through their teeth with microwaves. We have gotten more sensible complaints from people who believe that they are being followed. In some of those cases it may or may not be us who is following the person. We get complaints from organizations that believe that they are thought to be terrorist organizations. They want to defend themselves against these accusations. There are a wide variety of complaints.
Senator Joyal: How do you deal with them in relation to the review committee?
Mr. Elcock: The process under the CSIS Act is that they must advise me that they have a complaint. It is then referred to SIRC and SIRC deals with their complaint.
Senator Joyal: Does that trigger a readjustment of your operation? How do you deal with that once you are aware that a complaint has been lodged?
Mr. Elcock: It does not involve any change in our operations. There is simply another process on the side. They will make their case to SIRC. We will make a response to SIRC and SIRC will come to a conclusion one way or another.
Senator Joyal: At the end of a year, or after a certain period of time, you go through the process as far as those conclusions are concerned. Would you report to the minister, for instance, the kind of readjustments that have been made if it is found that your procedure needed to be adapted to a special context?
Mr. Elcock: In most cases, if SIRC has a recommendation that would change our process or change the way we operate, they would make that recommendation to the minister. The minister would have to decide whether or not he wanted us to implement it.
Senator Joyal: Has that happened recently?
Mr. Elcock: It has not happened recently that I can recall; but it has happened in the past, yes.
Senator Kelleher: A little earlier we had a discussion about your new funding. I know, as I am sure you know, that you suffered drastic cuts in the number of your employees. I personally think this has led to certain criticisms that have arisen about the performance of CSIS. Will the additional funding that you receive restore you to your former level of service and number of employees? I will not get into names here. Or will you still be a little behind the eight ball?
Mr. Elcock: If we were suddenly to receive, like on Christmas morning, all the resources we lost through deficit reduction, I am not sure we would know what do with them. If we were to try to absorb the difference between the original high number of CSIS and the present number, which is on the order of 700 people, it would be impossible for us to get that many people trained and into the organization. Essentially, it would be beyond our capacity to cope.
Senator Kelleher: Do you feel the new funding you will receive will restore you to the level that you feel you can live with?
Mr. Elcock: Like any other organization, we have a sense of what we need, and we have provided that view to the government. We will have to wait and see what, indeed, the government decision will be. As the government has said publicly, those issues are now under consideration. They will be taking the decisions in the near term.
Senator Finestone: Madam Chair, I was out of the city this morning on other business. However, in the course of driving to Montreal I listened to a very interesting interview with a past director of CSIS. I suggest that we get a copy of that particular interview. It was extremely enlightening, at least from his perspective. It raised some questions in my mind that I would like to share with you.
He said that, among other things, CSIS has always had special rights in terms of listening rights and the taping of conversations, whether over a cell phone or a regular telephone. These special rights extended for a period of one year. However, they had no obligation to advise the party that they had done this taping. I gather in this bill, and I do not know the number of the clause, there is now the right for the police to tape for an extended period of time; but, at the end of a period of time, and I think it is a year, they would need to advise the party that they had been under surveillance. This would release information into the general public that would allow them either to seek more protection underground or subject them to a court challenge.
I do not know if that is what you know or think about that particular aspect of their concern around this bill. The former director had four concerns. Had I known I was to be on this committee, I would have listened and taken notes. However, that is difficult to do while driving. I would appreciate an answer to that particular observation.
Mr. Elcock: The description of our powers is essentially accurate. Under section 21 of our act, we have the authority to obtain warrants, which allows the interception of communications without notice to any party. The reason that it is without notice to any party is that we are by definition a covert agency. We do not operate in the public view. We do not collect evidence as the police do. We do not collect to an evidentiary standard. We are there as a preventive organization rather than an enforcement organization.
From our point of view it would make no sense to provide notice to anyone. However, in the case of the police the rules are different, and have been traditionally so. The legislation will give the police some additional powers in terms of the length of time for which they can obtain a warrant and so on, as well as with regard to the notice provisions.
Senator Finestone: Then they must advise the party.
Mr. Elcock: I believe that is right.
Senator Finestone: In your view, does that reduce your capacity?
Mr. Elcock: It has no effect on our powers.
Senator Finestone: Do the police mandated with these new powers have to advise you that they are listening and have put surveillance into place?
Mr. Elcock: We try not to wind up watching the same target or running the same intercept. There is coordination between the police and our organization.
Senator Finestone: It will not be like we see on some television programs where people are tripping over each other because of their jurisdictions.
Mr. Elcock: We try not to do that.
Senator Joyal: It has been reported that last summer, before the events of September 11, the American government was informed that there was going to be a terrorist attack. Did indeed that information get to the Americans?
Mr. Elcock: Madam Chair, there has certainly been an expectation for some time, particularly heightened last spring and this summer, about the possibility of some terrorist action on the part of al-Qaeda.
Senator Joyal: Did you have the same information from your own sources?
Mr. Elcock: We had some information from our own sources. Obviously, we share information with a number of other services.
Senator Joyal: Then you were not the only one who was made aware that there was something from al-Qaeda that would happen?
Mr. Elcock: No.
Senator Joyal: When you receive that kind of information, would you share it with the various professional people with whom you are normally in touch?
Mr. Elcock: Yes.
Senator Joyal: Is this the same information you had following the initiative taken by the international coalition in Afghanistan? Did you share the information that there might be retaliation on the part of al-Qaeda outside Afghanistan?
Mr. Elcock: Given the capabilities of the organization and its track record, the likelihood of some response cannot be discounted.
Senator Joyal: Do you have any other specific elements that could put you on the trace of something?
Mr. Elcock: We are certainly working very hard, but not at this juncture.
The Chairman: Thank you very much, Mr. Elcock. We appreciate you coming here this afternoon. You have given us a great deal of information that we did not have before.
Honourable senators, our next witnesses this afternoon are from the Canada Customs and Revenue Agency and the Department of Finance. We certainly thank you all for appearing. For the benefit of colleagues, we will begin with an overview from Mr. Roy, Assistant Deputy Minister from the Department of Finance. We also have with us today another veteran, Mr. Horst Intscher, also from the Department of Finance, who is the Director of Financial Transactions and Reports Analysis. We also have with us Ms Walsh and Mr. Snider, from Canada Customs and Revenue, and Mr. Lalonde, Mr. Seeto and Mr. Ernewein, from the Department of Finance.
Please proceed Mr. Roy.
Mr. Yvan Roy, Assistant Deputy Minister, Counsel, Department of Finance: Honourable senators, I had not planned on making a long presentation to you this afternoon on what this bill is doing that is of special interest either to us in the Department of Finance or to CCRA. By way of an overview, I can stress some elements that may be of particular interest to you. The portions of the bill that will be of interest to us are Part 4 and Part 6. Part 4 would be at page 87 of the bill, at least in my copy, and Part 6 would be found at page 125.
By way of introduction with respect to Part 4, these are a number of amendments to the legislation passed by Parliament last year creating an agency responsible for helping the Government of Canada deal with problems caused by money laundering, or FinTRAC. The government proposes to broaden the mandate of that agency for the purpose of ensuring that this agency not only fights or helps in the fight against money laundering but also assists in our fight against the funding of terrorism.
The Minister of Justice informed you that a number of changes to the Criminal Code are proposed in this legislation for the purpose of allowing Canada to ratify the UN Convention on the Suppression of the Financing of Terrorism. One of the provisions of particular interest in this legislation is the one that prohibits the financing of terrorism.
We have in place an agency that will be up and running soon. The agency will help with the examination and analysis of transactions for the purpose of identifying trends and eventually help us fight terrorism and most particularly the funding of terrorism. This piece of legislation proposes that the tools that are in place be used for the purpose of attacking the funding of terrorism.
It is proposed by the government that the agency be used to analyse information and to provide that information to an agency such as CSIS. This information is to be passed on when there is, in the opinion of the agency, a threat to the security of Canada.
Also, the agency would like to be able to enter into agreements with counterparts in other countries in order to start that net that we have been talking about and to talk to each other and be in a position to intervene in appropriate cases. This is what Part 4 is trying to achieve.
Part 6 is the creation of a brand new piece of legislation that would be called the Charities Registration Security Information Act. This piece of legislation, if it is passed by Parliament, will provide the state with the tools to deny organizations their charity status. As we all know, you can make donations to charity organizations and benefit from tax deductions. This legislation would allow the Minister responsible for CCRA, the Minister of Revenue, as well as the Solicitor General to issue a certificate, the purpose of which would be to deny organizations status as a charity. Once that is done, that certificate issued by ministers would be reviewed before the Federal Court. The Federal Court would then decide whether it was reasonable, under the circumstances, to issue that certificate. You will see that there is a mechanism in there that provides details of that process.
Once that status has been denied, some tax consequences will follow. Most importantly and most obvious, the charity cannot issue charitable deduction slips to donors.
Other consequences flow from this provision. If you want us to discuss those, we will be more than pleased to do so.
These are the two important tools in this bill that will help us to fight terrorism by drying up sources of funds for organizations that exist to terrorize the Canadian public.
[Translation]
Senator Bacon: The bill would give the Solicitor General additional powers to suppress the financing of terrorism. It would even grant authority to deny registration as a charitable organization.
Would this withdrawal of registration apply only where there is proof that the funds are handed over to terrorists or would it apply also in cases where the police suspects this might happen?
If this power to deny registration does not exist at the present time, is it possible to withdraw that status when there is evidence that the donations benefit criminal activity?
Mr. Roy: Presently, important provisions in this regard can be found in section 4 of what will become the Charities Registration Act.
The Ministers, i.e. the Solicitor General and the Minister of National Revenue, are required to have reasonable grounds to believe one of the three elements outlined in section 4 applies.
Once the certificate has been issued, it needs to be reviewed by the Federal Court as to its reasonable character. It is clear that the police will have to provide proof because it is not enough to have an opinion grounded on nothing. Evidence must be provided for a judge to agree with the Minister that there are reasonable grounds to issue the certificate. That evidence must obviously be related to one of the three elements listed in section 4.
Senator Bacon: Have there already been cases where you abrogated registration for reasons of criminal activity?
Mr. Roy: This power already exists for certificates. In immigration matters, where an individual is suspected of belonging to a terrorist group, it is possible, under the Act, to issue a certificate denying refugee status, and this certificate is reviewable by the courts.
You all know that there can be no decision made by the government that is not reviewable by a court. This was established by courts several years ago and even cabinet decisions are reviewable.
These provisions establish a framework for judicial review. Rather than leaving it all to common law, this bill sets out a process for a review so as to avoid potential procedural hangups. The judicial review procedure set out here is along the same lines as the usual process.
Senator Bacon: I would like to return to section 83.05 on page 16. It says the Solicitor General may recommend placing a person or an organization on a list of terrorists. What guarantee do we have that only terrorist entities will be placed on this list, as opposed to individuals or organizations opposed to globalization, or members of a union, or simply adepts of a given religion?
Mr. Roy: I am a lawyer and legal advisor in the Department of Finance. The lawyer in me will tell you that the protection in this regard is the definition of terrorist activity and the possibility for courts to come down with a decision that the lists are too broad.
With regards to the definition proposed by the government, I should tell you that it tries to avoid being too broad and too open-ended by making sure that people who protest by legitimate means are not caught by the definition you have here.
Once we have a definition that is recognized as reasonable, there will be a possibility for the court system to keep things in the proper context. In my view, it is in any cabinet's inherent interest to make sure the list will not be too broad or too vague. And if that inherent interest is not met, there are avenues for the courts to intervene.
We need to look at the whole context in order to assess if the process is functional. There are a number of checks and balances in the form of a definition, of the government's interest not to go too far and, ultimately, of a court intervention to make sure it all stays within the bounds of reason.
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Senator Tkachuk: I have some questions on money laundering. I was part of the committee that reviewed the act. At the time, we were told it was important to pass the bill in order to get the organization going. Can you tell us, Mr. Intschster, is FinTRAC up and running? Is it fully functional?
Mr. Horst Intscher, Director, Financial Transactions and Reports Analysis Centre of Canada, Department of Finance: We are very close to being up and running, senator. We were established, as you know, on July 5, 2000. Our most immediate challenges were to obtain staff and accommodations. We have been busy training train analysts and putting in place systems to deal with the expected information flows.
Together with our colleagues from the Department of Finance, we also conducted extensive consultations with reporting entities with a view to formulating regulations to govern the reporting of information as required by the act.
The regulations were pre-published in February. Over the spring and summer, we received submissions from reporting entities. The regulations were revised. The package was severed to facilitate implementation of the regulations. We expect to be able to receive voluntary information a week from today. The regulation requiring the reporting of suspicious transactions will come into force on November 8 at which time we will be operational.
The second package of regulations will be published later this fall. Those regulations include the governing the reporting of electronic funds transfers, large cash transactions and cross-border currency movements These reporting requirements will come into effect early in 2002.
Senator Tkachuk: Under the investigative hearing portion of the bill there are certain powers granted for gathering evidence. Will this be a tool that you will be able to use, or officials or RCMP will be able to use, to haul in lawyers, bank presidents or accountants who may be affiliated not only with Mafia-type people, organized crime, but perhaps terrorist activity? Could this power be used that way?
Mr. Intscher: I will defer to my colleague Mr. Roy. However, this is not a power that would be available to FinTRAC. FinTRAC can only receive information that is required to be reported.
Senator Tkachuk: Then you pass it on to whomever.
Mr. Intscher: If we have reasonable grounds to suspect, then we can pass it on.
Senator Tkachuk: It is now passed on to Mr. Roy, and Mr. Roy says maybe he can haul in those bankers. Would you be able to do that now, or would you be able to if this bill were passed?
Mr. Roy: Right now, the state of the law in this country is that if you do not wish to speak with the authorities, you do not have to speak with the authorities.
Senator Tkachuk: I know that is what it is now.
Mr. Roy: The purpose of clause 4, concerning section 83.28 is to force some people to appear before a judge for the purpose of giving evidence. I do not think there is anything here that limits this to a particular class of people. The experience that we have with financial institutions, is that they have been cooperating with the authorities whenever possible.
What is being contemplated with those investigative hearings is the possibility for people who may be involved in one fashion or another with terrorist activities, who have absolutely no incentive whatsoever to be the good corporate citizens that our financial institutions are, to be brought before a judge for the purpose of ensuring we can advance an investigation.
Let us not forget that these provisions also provide for some guarantees. The Constitution ensures that you cannot incriminate yourself and, therefore, whatever you have said at those hearings will not be used against you. Even evidence that is derived from what you have said cannot be used in the future. To answer your question more directly the provision is not for only very particular people. Rather, it is a power that is broader than this.
Senator Tkachuk: You are saying that it is not only the man with the gun in the t-shirt but also the bank president, the accountant or the lawyer that can be hauled in front of this investigative hearing process. I am not saying you would do it. I am just saying you now have the power to do that. Do you not?
Mr. Roy: As long as the person can be said to offer some information with respect to a terrorism offence, you are correct. There is nothing that limits this to a particular class of people.
Had the legislation been drafted in that fashion, I am convinced that some people would have said it is much too narrow. You must give us more, if this is to be useful in any way, shape or form. At the end of the day, it depends on who is willing to use a power like this.
Let me offer another observation. Because you cannot use that information against someone, or you cannot use whatever evidence you derive from the information we have received from someone, this scheme provides for checks and balances. There is an incentive for the state not to use this unless it has no other choice but to resort to this mechanism.
Will that be a power that will be used by the state? I have no way of knowing.
Senator Tkachuk: Neither do I. That is why I am asking. Neither does anyone else here.
The head of CSIS was here before you. I asked a question about different types of terrorists. There are terrorist who are present in this country, and those who want to do us harm. On the other hand there are terrorists who just want to do harm to their people back home. He concurred that that was probably true.
The IRA has been very active in North America. They have used North America as a place to gather cash. John Lennon gave them money. He lived in the United States. The IRA kills people. They are terrorists back home. I believe that we should target this and other organizations like it.
Do they have organizations that they gather cash through and pass on to other organizations back home? Is that the kind of organization you want to close down here in Canada. Or do you just want to close down the organizations that want to hurt us? Does it apply to those who want to hurt Americans, but not necessarily us? Who is caught in this web?
Mr. Roy: I believe that the provisions we are talking about here would apply as long as the organization is involved in terrorism. This takes you back to the definition of terrorist activities.
Terrorist activities, are not only international, but domestic as well. However, in the instance that you bring to our attention, an organization that would be doing terrorism abroad, would, in all likelihood, be covered by a provision like this. Therefore, a certificate could be issued against such an organization collecting funds in Canada for the purpose of supporting terrorist activities elsewhere. Again, terrorism is not limited to what is taking place domestically but, rather, covers both.
Senator Tkachuk: That is good to know. Does this bill apply to people raising money or simply to the charitable status of the organization that is raising money?
Mr. Roy: Senator, are you talking about the offence of financing terrorism, or are you talking about Part 6, which deals specifically with charities?
Senator Tkachuk: Anyone can incorporate a non-profit organization. It does not necessarily need to have tax status. Is this bill drafted to remove the tax status but not necessarily the gathering of cash? If an organization called the IRA Forever or al-Qaeda-whatever is raising cash, fundraising, having dinners, and so on, but has not asked for tax status, is that okay?
Mr. Roy: Part 6 is clear that all we are talking about is the decertification of those organizations. However, you bring me back to the offence of financing of terrorism, found at page 15 in the draft that we have. That would be under clause 83.2 of the Criminal Code. We see that it is an offence to willfully and without lawful justification or excuse provide or collect property. It is a two-way street.
If you are doing that for the purpose of supporting a terrorist activity, then you are financing terrorism and that constitutes an offence.
These are two different things. Basically, you are targeting that problem two ways. Someone who does that wilfully is supporting a terrorist organization, knowing full well what he or she is doing, and is committing an offence under clause 83.2.
What is being done on the tax side is the state is telling those organizations that are collecting the money that the state is going to decertify the organization. Therefore, the organization will no longer be capable of receiving money and, anyone wishing to contribute would no longer be eligible for a tax deduction.
Mr. Ernewein can tell you that there are other tax consequences that follow from the fact that you are being decertified. He can tell you what will happen to the accumulated assets that have been gathered by the organization.
Mr. Brian Ernewein, Director, Tax Legislation Division, Department of Finance: Briefly, the effect of a certificate issued by the Solicitor General and the Minister of National Revenue and confirmed by the Federal Court is that the registered charitable status of an organization is revoked. The resulting effect is that they cease to be a registered charity for tax purposes. That has two principal effects. One is that they will no longer be entitled to issue charitable donation receipts for tax purposes. The second is that their status as a charity is lost. That triggers consequences already found in the deregistration of charity provisions in the Income Tax Act. In summary, the consequence for the charity is that it is required to divest itself of all its assets. Either its property must be transferred over to another qualified donee, essentially another registered charity; or, if they are not, they are required to be given over to the Crown in the form of a tax. Upon loss of its registered status, essentially, the charity is made defunct by reason of the loss of its assets.
Senator Stollery: I would like to comment on some of the questions that Senator Tkachuk asked. This business of money laundering is an old story. When Senator Murray was the Leader of the Government in the Senate we had a bill that dealt with the issue of money laundering. We have been talking about the Colombian drug lords and the billions of dollars that they would launder.
It is common knowledge in the drug business that Miami is the corporate headquarters. If you pick up a Florida newspaper, you often read there is yet again another money laundering operation. This time it is Joe's Pizzeria, and they took in $12,000 last year. That seems to be the extent of the success of their money laundering campaign.
As I understand the picture, and you can just run this past me again, the IRA, for example, has a dinner club and they give tax receipts because they have qualified under provisions of income tax legislation as some kind of a charity. The first part of this question seems to be that the federal government removes the right to give the tax receipts to people who buy dinner at the IRA supper club. Is that right? I would have thought that the IRA is universally recognized as a terrorist organization. Presumably, the IRA supper club, if it exists, or organizations which make up the IRA supper club under a different name and have some tax status as a charitable organization, lose their ability to give the tax receipts. Is that correct?
Mr. Ernewein: On the assumption that there is a charitable organization and it is engaged in terrorist activities, the consequence is that it would be deregistered and therefore lose its ability to issue tax receipts.
Senator Stollery: What happens if someone asks for me for $1,000 and tells me that with that money he will provide wooden legs to people who have only one leg and I give him the money. This is the association to provide wooden legs. I know nothing about this association, but Joe has asked me for the money. He has been very successful in raising funds and ends up with $10 million. What happens then? If there is no tax receipt involved what happens? That money will go to a less respectable cause than that of providing artificial limbs.
Mr. Roy: Under this legislation, it will be one of two things in order for the legislation to kick in. Either this organization you are talking about is already registered with Revenue Canada...
Senator Stollery: We assume it is not. Why would it be? They are just collecting money. Lots of people give money and do not need a tax receipt.
Mr. Roy: The other possibility is that clauses 83.02 or 83.03 kick in. The organization is actually using the money, not to do the good deals that it claims it is doing but, diverting the money to terrorist activities. At that point, people who are providing those resources and who know that is the case, or people who are receiving those resources and know that is the case, would possibly be prosecuted. Under the criminal standard you would have to prove beyond a reasonable doubt that they had that knowledge. In those circumstances, the person will be found guilty of the crime. These are the only two possibilities that we have under this legislation to go after these people.
Senator Stollery: The chances of this having any real effect on anything are minuscule. Anyone could come up with many different ways of contributing money to an organization that they feel strongly about. It sounds to me like this will go the way of all the other attempts to control flows of money. It will be ineffective.
There are many organizations and concepts that contribute to terrorist violence. The human imagination has no problem coming up with various schemes to fund violence. The proposed legislation looks great on paper, like all the other schemes to control money laundering and the financing of terrorist organizations, but they never seem to work. In essence what occurs is business X is closed and soon after business Y opens. As you look at this and analyse it, it seems to me that this scheme will go the way of all the others.
Mr. Roy: Senator, in a free and democratic society there are just so many laws that can be created for the purpose of trying to stop a phenomenon such as money laundering or the financing of terrorism.
I do not know how much money we are talking about here. You may have seen last weeks newspaper reports stating that as much as $30 billion a year leave this country and go to tax havens.
What will you do to stop this from happening? Senator, I have no way of knowing how much money is leaving the country. Nobody knows. However, we know that it does happen.
The bill you speak about goes back to the late 1980s, when there was a section in the Criminal Code that was created for the purpose of trying to target the laundering of money. The government is trying to provide the tools in order to tackle that problem. Mr. Intscher is now in charge of the agency that will tackle this problem.
Senator Stollery: How many charges have been laid on that particular change that was done in the late 1980s?
Mr. Roy: I do not know, senator.
Senator Stollery: Have any charges been laid?
Mr. Roy: I do not know. I know that every year there are a significant amount of assets that are frozen. Eventually these assets are forfeited to the state. I do not have the precise information for you.
What I am trying to say is that we are trying, as advisers to the government, to give some tools to refine the instruments that are available to us. We, as civil servants, are looking around for new ways to fight the problem.
FinTRAC is an agency that has counterparts elsewhere. Are our counterparts doing any better than we are with this problem? I can probably provide you with a system that will be foolproof, but the government will check every little transaction that takes place in advance. If that is to happen, we will bring the system to a halt. Nothing will be happening. Obviously, this is not what the government is trying to do. Therefore, we are trying to provide some tools that will identify where there is a significant problem and then do something about that problem.
If charities are being used for the purpose of laundering money for the purpose of terrorism we must do something about this. The Minister of Finance and the Minister of National Revenue are saying that they have to be given the proper tools with which to combat this problem. If the financing of terrorism is an issue, and we believe that it is an issue, we have got to give ourselves the tools. What are the tools that we have? We start with making it on offence to finance terrorism. You would be the first one to tell me if the offence was broadly worded. You will catch all sorts of people who have nothing to do with this.
This is the balance that is being struck here. In creating an offence on the criminal standard, the state will have to prove beyond a reasonable doubt that you know what you are doing when you are giving money to some organization. I would not want to go into particular organizations. However, when you give money to some organizations, knowing full well what they are about, you should be prosecuted. It will be up to the state to prosecute those cases. The people who give a few dollars here and there and think that money will be used for humanitarian goals will not of course, be prosecuted. There is also a great deal of that taking place and we should not be targeting these people because they are doing the good things that they are hoping will produce good results.
Senator Finestone: Mr. Roy, you have led me to a question I had not thought to ask. In a democratic society the rule of law prevails. I presume that the drafting of these 147 clauses has been to ensure that the rule of law be respected. That the rule of law be respected and in place and that the exceptions to that rule of law would be defined and therefore, being a law, allowable in Canadian democratic society. Is that a fair principle?
Mr. Roy: Absolutely, senator.
Senator Finestone: You like that. I wonder if you are not uncomfortable in any way that we are breaking the trust of Canadians in a democratic society? Have we defined terrorism clearly and succinctly enough to know if we are targeting terrorist charitable organizations? Do we have a definition in place somewhere?
Mr. Roy: You are asking me a question that should be answered by the Minister of Justice, the ministers in the government and, at the end of the day, by parliamentarians. You will pass this piece of legislation or not.
The lawyers here can tell you that the Department of Justice has looked at this legislation very carefully. Indeed, the Minister of Justice has said that she does not remember a piece of legislation being scrutinized this closely. This bill is trying to target the phenomenon of terrorism. It does not apply outside of that scope. That is the first point.
Second, the definition of terrorist activities is one that is being used in other jurisdictions including the United Nations in its convention of the year 2000. If you look carefully at the definition used in that convention and look at the definition used in both England and the United States you will come to the conclusion that these are instruments that are certainly not reproduced in our legislation because we have our Canadian way of doing things. However, the basic elements, the checks and balances in the definition are what you will see in other places. That is for the purpose of targeting the phenomenon of terrorism and nothing else.
That phenomenon that we thought was at best remote a month and a half ago is now with us. The state is saying, as part of the Canadian way, as part of what the Constitution requires of the government, that we need to provide Canadians with the safety they have requested. Hopefully, that is the balance that is struck here. It is not for me to say whether the balance has been struck. It is for you to say. However, I submit to you that in an attempt to target that phenomenon, you must also keep in mind that Canadians are asking for something to be done about this.
Has the government gone overboard? You will tell me. However, it is really targeted to the phenomenon of terrorism. With respect to that, we were talking earlier about other provisions such as investigative hearings. Again, it is targeted to terrorism and nothing else.
Preventative arrests, that is another provision that is included in the bill. Again, it is limited to that and nothing else. If the definition is reasonable, and if we collectively think that there is a need for something to be done about terrorism, perhaps it will be ruled in the future as being reasonable in a free and democratic society. That is certainly the assessment that has been made by the department of which I am a member.
Senator Finestone: I can appreciate that and I can sense your deep commitment and I think Canadians share your view. They do want something that is reasonable and justifiable in a democratic society. It is right in our Charter and it is an obligation that we have. If we are to go beyond the Charter you must pretty well be assured that it is reasonable and justifiable. That is one of the reasons for my question.
Have you draw a chart of the terrorism definitions that are to be found in the United States, England and the UN?
Madam Chair, I would like to have a request made to the Department of Justice to have a chart in which the definitions for terrorism and terrorist activities have been defined so that we can cross-check and see how the Canadian vision of society compares with what they have seen and defined as terrorism. It has always been helpful when we have done that, that we have a yardstick of measure for ourselves.
If that is available I would ask you, Mr. Roy, with that deep commitment and deep sense of the participation that you have demonstrated, if you would please be so kind as to inquire and see that either we get it or we make the request through our clerk?
Mr. Roy: Senator Finestone, it will be a pleasure for me to get the support of my colleagues. You must appreciate that I used to be part of the group that was developing this kind of legislation. I am not any more, but I will speak with my colleague, Mr. Mosley. I believe I have seen something, so we will try to make something available to you.
Senator Finestone: If we are looking at money laundering, we are only really attacking the organization that is in place to collect that money. You keep saying go to clause 83.2. I have been reading clause 83.02 and clause 83.01, and they still do not satisfy me. How do we attack and find the party that is out there soliciting? He is not giving tax receipts but he is sure shipping money.
I am interested in how we catch the person, not merely the charitable organization. Could you tell me how you read that into clause 83?
Mr. Roy: The person who is collecting the property is certainly covered by this provision. The person who is providing the money is also covered by the provision; such is the case in clause 83.03.
Senator Finestone: What page are you on?
Mr. Roy: I am at page 15 and page 16 in the bill.
Senator Finestone: Financing of terrorism?
Mr. Roy: Yes. It is not only the person who is providing the funds that is prosecuted by this clause, but also the person who is collecting the funds. They are both guilty of the offence, as long as they are doing it with the required knowledge. Again, as I was trying to say, if you have someone who is providing money for the purpose of helping to buy some milk for children in some country, and that is truly what the person believes, you and I would agree that we should not be prosecuting this kind of behaviour.
The law is cast in such a way that this is scenario is not possible. The Crown must prove beyond a reasonable doubt that the person involved has been involved with the intention of financing terrorism.
Senator Finestone: Let us say that a person has been misled and given money to clear out anti-personnel land mines in Afghanistan. The money however, has been funnelled to a terrorist group. Is the misled person protected under clause 83.03?
Mr. Roy: If I am the one who has given that money, and I truly believe that it has gone for the purpose of clearing land mines, I would not be charged under the clause. However, the person who has collected the money for a different purpose would be captured by the clause because that person is collecting the money in the full knowledge that they are doing so to financing terrorism.
Senator Finestone: Are we sharing the list of charities that are terrorist based with other countries? Do we know the names and numbers of terrorist organizations that are being so classified as terrorist?
Mr. Roy: I do not have any knowledge with respect to that, senator. Perhaps others do around the table. I do not know.
The Chairman: Senator Finestone, there are other senators on the list. Could we put your next question down to a second round?
Senator Finestone: Certainly.
Senator Kelleher: Clause 83.24, on page 31, states:
Proceedings in respect of a terrorism offence or an offence under section 83.12 shall not be commenced without the consent of the Attorney General.
If you work your way backwards, you would see that it also includes clause 83.08 in respect to the freezing of property, clause 83.11 in connection with an audit and clause 83.1(1) with respect to disclosure.
Why do we need the consent of the Attorney General? We enact an act. We set up certain things that state what shalt not be done. If those things are done, we will prosecute the offender. When lawyers are about to do something in my department, it is suddenly discovered that the consent of the Attorney General is required. Why is that? What is the rationale?
Mr. Roy: Usually, when you have a provision such as this in the Criminal Code or more generally in our criminal law, it is because there is a concern that the provisions could be abused. Under our law, it is possible to launch a private prosecution. You need to prosecute a case without having the support of the police, the Crown prosecutor or anyone for that matter. You can do this yourself. You will see provisions of this nature throughout the Criminal Code.
Government officials and Parliament, because Parliament might agree with this, are concerned that the provision might be abused. We are concerned that people will lay information. If a person is being targeted as having supported terrorism, that person's reputation would be tainted in some fashion or another.
There is a better mechanism in place. The Attorney General would make the determination whether the case is appropriate to be prosecuted instead of leaving that up to private prosecution.
I have not been close to that portion of the bill, and I cannot answer specifically with respect to this item. However, that is usually the policy rationale if there are provisions in the code requiring the consent of the Attorney General.
Provisions in the Criminal Code regarding war crimes and crimes against humanity require that before a prosecution is launched, the Attorney General must determine that it can be launched. This provision probably falls in that same general category.
You may wish to get a better answer from one of my colleagues from the Department of Justice when they appear before this committee. However, that is usually the reason for these provisions.
Senator Kelleher: If there is an act addressing some offences, I do not know why you have to go to the Attorney General individually each time to commence proceedings.
Mr. Roy: I wish to stress that I think that the difficulty is not with respect to Crown prosecutors laying charges, but rather with private citizens starting private prosecutions in those cases. Therefore, there is the intervention of the Attorney General prior to the beginning of the proceedings.
It is not because the Attorney General does not have confidence in their Crown prosecutors, but rather, if you do not have a clause like this, anyone in this country has the power to lay information before a judge and to prosecute a case. You do not need to have a Crown prosecutor to do this.
Senator Kelleher: I am aware of that.
Mr. Roy: You remember your days as Solicitor General.
Senator Kelleher: I was wondering if you were involved in those discussions.
Mr. Roy: With respect to this item, no, senator.
Senator Kelleher: Was that handled solely by the Department of Justice?
Mr. Roy: That is correct.
Senator Kelleher: Perhaps we could ask them that question when they return.
Mr. Roy: I hope they do not contradict me. They may.
Senator Murray: A background paper that the government has put out notes that Canada will ratify the suppression of terrorist financing convention. Are you familiar with that convention?
Mr. Roy: I did not bring it with me, senator, however I remember reading it.
Senator Murray: Perhaps others at the table are familiar with it. It says here that only four other states have ratified this convention.
Mr. Roy: Up to now, yes.
Senator Murray: Do you why?
Mr. Roy: I think that convention has been open for ratification since December of 2000.
My understanding is that it is simply because the domestic instruments have not been created; the most important one of these being that you have to criminalize the financing of terrorism. Very few countries have such instruments in place. It is my understanding that many more since September 11 are in the process of creating this.
Senator Murray: There is no policy reason for why we have not done so thus far; it is a question of instruments. I presume the bill will equip the government with the instruments to implement that convention here. Is that the case?
Mr. Roy: You are right.
[Translation]
Senator Joyal: Part 6 of the bill deals with the registration of charities: are these provisions identical to those contained in a previous bill tabled in the House of Commons and later withdrawn? Are there any differences and, if so, which are they?
Mr. Roy: I think there are one or two very minor differences.
[English]
Ms Donna Walsh, Director, Special Compliance Initiative Division, Charities Directorate, Policy and Legislation Branch, Canada Customs and revenue Agency: There are really only two areas of change. The first is that the grounds for issuance of a certificate under clause 4 of the bill are now tied to the new provisions in the Criminal Code defining terrorist activities and naming the organizations that would be named as listed entities because of their involvement in terrorist activities.
The second area where there is a minor change is with respect to the length of the certificate. Under Bill C-16, the length of the certificate was three years. We have extended that to seven years with the recognition that acquiring charitable status provides an important air of legitimacy to these support activities. It helps to create a layer of deniability about the use of funds. It is a serious matter and we felt seven years was a better deterrent and reflected the seriousness of that activity.
[Translation]
Senator Joyal: Mr. Roy, one thing concerns me when I read section 2 in Part 6 and section 47 in Part 4. In my copy of the bill, on page 87, section 47 reads:
An Act to facilite combatting the laundering of proceeds of crime and combatting the financing of terrorist acti vities,...
The bill defines rather clearly in its early provisions what is meant be terrorist activities.
In Part 6, subsection 2.(1) on page 125 says:
The purpose of this act is to demonstrate Canada's commitment to participating in concerted international efforts to deny support to those who engage in terrorism,...
The Proceeds of Crime Act refers specifically to the financing of terrorist activities as defined in section 83.01 of the Criminal Code.
But in the case of charitable organizations, the definition of terrorism is not included in the act. It seems to me that it is very clear in the act establishing the agency dealing with money laundering. One act deals with terrorist activities while the other targets terrorism generally. It is therefore broader. The scope of the Charities Registration Act targets terrorism generally without making reference to a specific activity. Some activities could be perceived as being of a terrorist nature but not come under the definition of terrorist activities as spelled out at the beginning of the bill. These definitions are very precise. There are other activities that could be perceived as being terrorist activities but that do not aim at producing an immediate effect. It could be, for example, propaganda. One could, for example, consider a person who organizes meetings and promotes an interpretation of the Koran along the lines of Al-Qaeda - which is a minority view on the interpretation of the Koran - as engaging in an activity covered by the provisions on de-registration of charities but without triggering the provisions of Part 4.
Is there any specific reason why Part 6, the Charities Registration Act, has a wider scope than Part 4?
Mr. Roy: I too am troubled by this. The Minister of Justice, when she introduced the bill and appeared before various groups and fora, insisted on the fact that we define terrorist activities but not terrorism. If I understand your thinking, your first question aims at establishing that changes made to section 4 in order to limit the scope to terrorist activities are probably proper but that maybe in drafting the bill we forgot to limit the scope in section 2 by referring specifically to terrorist activities.
I am afraid section 2 is exactly the same as it was in Bill C-16 where neither terrorist activities nor terrorism were defined. I am afraid that change was not made, while it probably should have been. With your permission, I will draw your comment to the attention of my colleagues to see if an amendment should be introduced in order to effect that change.
I am a bit troubled by this. If this language remains unchanged, I am not sure it would be an important flaw in this bill because the certificate to be issued is linked to terrorist activities in section 4. Section 2 merely outlines the purpose of the act. In any case, my first reaction, Senator Joyal, is similar to yours and would be to say that we need to limit the scope of this legislation to what we have in mind in the section that sets out the purpose. The scope is terrorist activities and not terrorism as such.
Senator Joyal: You understand that in the criminal domain, people need to understand precisely the offence they are charged with and not simply be given a generic definition that could be opened to abuse, depending on the circumstances of the case.
Mr. Roy: I am afraid you uncovered a flaw and we will have to see if we need to remedy it.
[English]
Senator Joyal: My last question is in relation to the registration of charities, which is found in clause 6(2) of the bill.
[Translation]
A determination under paragraph 1)(d) is not subject to appeal or review by any court.
In your presentation, you stated there would be a judicial review. This judicial review is set out in section 6 on page 132. For what basic reason does the bill totally exclude any appeal of the decision of the Federal Court judge?
Mr. Roy: You can guess at the reasons. These matters must be handled expeditiously because the government tries to avoid repeated appeals. The process to review these matters is set out in sections 10 and following. The government does not want to get stuck in an endless series of proceedings.
I do not think this provision goes too far, but it certainly is one that will draw attention. We would not want to have a judicial consideration of the certificate and, in parallel, a judicial review process under our common law. Such a duplication of review procedures would mean we would never get anywhere.
Rather than relying on the standard review procedures, a statutory regime is established under sections 18 to 28 of the Federal Court Act.
Senator Joyal: Could we not have an appeal process with time limits that would maintain the principle of an appeal to the Federal Court of Appeal but with some time constraints to avoid undue delays?
Mr. Roy: I cannot speak for those other departments, but I would not be opposed. These appeals could take place quite rapidly. I draw your attention to paragraph 11(5) where it says that the determination of the Court under the review provisions of sections 10 and following is itself not subject to appeal or judicial review.
In this matter, the government chose to keep things simple by going to a Federal Court judge to get a final determination, whether that decision comes down in favor of or against the government. I have taken note of your comments but I cannot go any further.
[English]
Ms Walsh: I would add that the judicial review process is a review of the facts to determine the reasonableness of the certificate. While it is not an appeal in that sense, it certainly is a review of the facts. Our laws do allow for different kinds of reviews. It was felt to be appropriate to the administrative law circumstances that the decision would be made within, and it is modelled on the process that is already used under a similar section of the Immigration Act for similar reasons. It was designed to address a similar context. I do not know if that helps at all.
Senator Fraser: I want to be sure that I understand what we are doing. My attention has been drawn to an article dating back to 1995. It is not current, but I think the principle applies. This is article in the Congressional Quarterly Researcher that quoted a professor of constitutional law at Georgetown University talking about the American Constitution. However, he said:
...patently unconstitutional to make it a crime to support charitable activities of groups that are designated as terrorist. The government cannot punish somebody for associational support of a group that has both lawful and unlawful ends unless the government shows that the person supporting specifically intended to further the unlawful ends. It is perfectly permissible for the government to prohibit people from supporting terrorist activities of any organization, but it is unconstitutional to prohibit people from supporting a hospital, a school or political activities of a group just because the group also engages in unlawful terrorist activity.
Make it clear in my mind how what we do in the case of the friends of some country's benevolent association where 90 per cent of the money they raise goes to famine relief and hospitals and 10 per cent goes to some terrorist group. What do we do, how is it constitutional, and how does it square with Canada's Constitution?
Mr. Roy: Senator, the comment made was premised upon an article that is referring to the American Constitution. In this country you are confronted with the fact that we can, in a free and democratic society, contravene, in a limited way, some of the protections that exist under our constitution. Our clause says that it must be done in a free and democratic society.
With respect to the financing of terrorism, the government will rely heavily on the fact that the United Nations just about unanimously passed a convention that requires countries to target and prohibit the financing of terrorism. Indeed, when we look at our partners, whether they be in Western Europe, England, Australia, or New Zealand, we see that they are all in the process of putting together provisions which will look, we think, remarkably like the sections that you are talking about.
It will be the argument of the government, if and when we must defend the constitutionality of this, that we are in an era where it is not only a good idea to do this, but it is also required by international law. We will be going forward and arguing that this is a measure that is tailored solely to address the scourge that has become terrorism. That is why it is so important for this house and Parliament as a whole to satisfy itself that the proposed definition of terrorist activities is narrow enough to target what we are trying to target.
We submit to you that this is a definition that does the trick. However, you must satisfy yourself of that.
Senator Fraser: Help me to satisfy myself. Let us look at the Ruritanian Benevolent Association. It gives 10 per cent of its money to the Ruritanian Liberation Front and 90 per cent of its money to hospitals in Ruritania. What happens to that group under this law?
Mr. Roy: Under this law, you may have a prosecution in spite of the fact that only 10 per cent of the assets are used for terrorism financing, because the law as written says that as long as you are using that in whole or in part, that is sufficient for prosecution.
In the case of a prosecution, Canada must show that the person who is taking those assets and transferring them for the purpose of helping terrorism knows what he or she is doing. If persons in Canada are sending money to organizations without the knowledge that money will be diverted to terrorism, then that person does not have the required knowledge. I must stress, however, that knowledge as defined in our law may also be wilful blindness. If they should know but they choose not to know, those persons would probably be covered by this clause. Those who do not know are not covered by the provisions and should not be.
Senator Fraser: Is it possible for my friendship association, or whatever, to correct its ways, to hand information over to the prosecution, to testify against the vice-president who was in charge of links with terrorists, and then to devote themselves genuinely, verifiably, in future to the financing of hospitals and famine relief? Can the agency get its registration back? Is it gone for good once it is gone?
I see, in clause 11, that a former registered charity can come back and ask for a review of that decision. Is that the clause that would apply to my hypothetical benevolent association?
Mr. Roy: I do think so.
Mr. Ernewein: There are two possibilities. A review of the certificate or a general review to re-establish registered charity status is possible. That may not have the effect of allowing the organization to recapture the property or assets that were used at least in part for terrorist activity. However, as far as going forward and operating as a pure charity, that possibility exists.
It is also possible to create a new charity to carry on purely charitable activities, but that would not include re-qualifying or reconstituting the existing charity. Starting anew with a new organization would presume, as you have in your question, that the new organization would carry on purely charitable activities and so regain the original charitable objective.
Senator Fraser: However, the old assets would stay seized? They would not be given back?
Mr. Roy: The assets would have been transferred.
Senator Finestone: Madam Chair, am I misinformed? We have heard from three members of Canada Customs and Revenue Agency. Would they be part of the group who handle visitors who come across our borders?
The purpose of my question is because I am concerned about the nature of the investigation when people arrive at the Canadian border and three days are allotted to assess those people. In just three days they are to be assessed as to whether they are a seen as a possible threat or as terrorists. How can that be done in a three-day period? If this is the right party, I would like them to return.
The Chairman: Mr. Jones will respond to you.
Mr. Ray Jones, Director General, Investigation Directorate, Compliance Programs Branch, Canada Customs and Revenue Agency: Honourable senators, no witnesses are here from the Customs side of the house. You may want to schedule a separate group or ask the immigration witnesses.
The Chairman: Senator Finestone, we are seeking to have the Minister of Immigration come to this committee. We will include that question then.
I thank the witnesses for coming for this tough but good discussion.
Honourable senators, we are delighted to have with us the Solicitor General, Lawrence MacAulay, and with him, Mr. Paul Kennedy, the Senior Assistant Deputy Solicitor General, Nicole Jauvin, Deputy Solicitor General, and Ian Blackie, the Director of the National Security Group.
Mr. Minister, we appreciate the time you are giving to us. I should say to colleagues that I know that everyone will have questions. We have about an hour and a half, and I will ask colleagues and those responding to be as concise as possible after we hear the minister's statement. I will try to have everyone recognized with a question and a supplementary. We will go into a second round so everyone will have a chance.
The Honourable Lawrence MacAulay, M.P., P.C., Solicitor General of Canada: Honourable senators, it is a pleasure to be here to discuss the government's anti-terrorism bill.
I certainly appreciate how quickly you have turned to the pre-study of this bill, which is now under review by the justice committee in the other place.
We know it is not the ordinary procedure, but these are not ordinary times. I applaud your decision to undertake a pre-study of the bill. I believe it reflects how seriously you take the issue and the urgency of the need to protect Canadians. As I said to the Justice and Human Rights Committee last Thursday, Canada needs this bill, our allies need this bill, and, more importantly, our law enforcement and security agencies need this bill. They need more powerful tools to detect and deter terrorists and those who support them. This proposed legislation is designed to give our law enforcement and security agencies and the courts the ability to do so.
A great deal of work has gone into drafting Bill C-36. It contains key reforms, and it also breaks new ground. It is a bold and comprehensive piece of proposed legislation, but I emphasize it is made in Canada and conforms to Canadian values, to the Charter and to the wishes of the people.
Canadians want tougher laws and they want laws that truly help protect them. They expect us to be able to help our neighbours to the south.
Our government has adopted a four-point anti-terrorism plan. Its objectives are as follows: first, to stop terrorists from getting into Canada and protect Canadians from terrorism; second, to bring forward tools to identify, prosecute, convict, and punish terrorists; third, to prevent the Canada-U.S. border from being held hostage by the terrorists and affecting the Canadian economy; and; fourth, to work with the international community to bring terrorists to justice and to address the root causes of such hatred.
Since September 11, we have made a concerted effort to review our laws and procedures to ensure the security of our borders and the investigation of criminals and terrorists. We have already taken comprehensives measures to improve airport security; help the RCMP and CSIS fight terrorism; tighten up our borders and freeze the assets of terrorists.
Over the last two weeks, the government has announced $280 million in new funding to be invested immediately in our national security. I remind you that this is on top of a $1.5-billion allocation to the RCMP, CSIS, Immigration and Customs in the 2000 budget.
A review of our state of readiness is not over. This past weekend, my colleagues and I, on a special committee of cabinet, chaired by my colleague, the Minister of Foreign Affairs, continued our meetings to discuss the range of tools and laws we have in place, those we are proposing and those we still may introduce. As the Prime Minister has said, what needs to be done will be done.
We have delivered for debate in Parliament a comprehensive set of legislative tools to deter and disable terrorists. Some of these are extraordinary and are complementary to the efforts of the United States and our allies. They build upon our forward-looking approaches against organized crime, money laundering, and drug dealing. However, make no mistake, we have built into this legislation rigorous checks and balances, legislation that, according to the Minister of Justice, has already been given thorough scrutiny against the requirements of the Charter.
We are very concerned to ensure that these measures are targeted to terrorists and those who help them.
It will give police more investigative tools. We will be able to better protect our security information, detain terrorists before they harm our friends, our citizens, and our way of life. We will also be able to go after the money that supports these terrorist groups. With this enabling legislation, we enact the two remaining counterterrorists in the United Nations conventions not yet ratified by Canada. These conventions are aimed at ensuring that terrorists and organized criminals have no sanctuary, but rather face a common front of determined nations united against them.
If we are to truly prevent terrorism and bring terrorists to justice, we need this legislation. While doing so, we still must maintain and uphold Canadian values to be consistent with the Canadian Charter of Rights and Freedoms and ensure that due process be employed and respected. The Attorney-General and I believe we have found this balance.
I should like now to point out to some honourable senators three specific anti-terrorist provisions that call for the personal intervention of the Solicitor General.
The first is the issue of the freezing and seizing of terrorist funds; choking off their money supply is critical to fighting terrorism. This bill brings strong provisions against terrorist funding. It reinforces what we have already done and is built upon our successful money laundering laws. We will designate terrorist groups. We will make it easier to freeze their assets, prosecute those who give them financial support, and deny or remove charitable organizational status from those who channel funds to terrorists.
Our goal is to cut off financial support for terrorists by making it a crime to collect or give funds to their organizations, either directly or indirectly. We will retain the provisions of my bill that denies or removes charitable status from organizations that are making resources available to terrorists. However, as I emphasized earlier, we will have checks and balances to ensure fair and due process.
In this case, the Solicitor General and the Minister of National Revenue must sign a certificate that will be reviewed by the Federal Court and decisions to deregister must be published in the Canada Gazette. As well, to help dry up terrorist funding, the new agency FinTRAC will be permitted to disclose financial information about the RCMP and CSIS in respect of terrorist activities.
We are doing this because it is essential that we collect as much information as we reasonably can and that we make the best use of that information by sharing it both at home and with our allies. It will be up to the Solicitor General to grant approval of the application by CSIS for that information. This entire process is reviewable by an independent Federal Court justice.
Let me turn to the list of terrorists. It will be up to the Solicitor General to recommend to the Governor in Council that an entry be listed, where there are reasonable grounds to believe that it is engaged in terrorist activity. We have building a review mechanism to ensure the integrity of the list process. By law, the Solicitor General will have to review that list every two years, and the listing may be subject to Federal Court review. This is yet another safeguard that is built into the bill.
In conclusion, is my hope that honourable senators will look favourably upon this legislation and we will look forward to any suggestions to make it even more effective. I emphasize again, we need this legislation, we need it to protect Canadians and our allies in their help against terrorism.
The Chairman: I have been advised that the minister will have to leave at 5:30. I have a number of people who want to ask questions now. I wonder whether we could do our best to get around the circle once and then try and do a follow-up if that would be agreeable.
Senator Lynch-Staunton: My question, minister, is concerning the list. Will the list include names of groups or names of individuals or both?
Mr. MacAulay: It could be both. It could be the name of an individual and it could be the name of a group. Any information that is gathered by government agencies, RCMP, CSIS, or any other organization, is submitted to me. I evaluate it and then, should I feel it should go on, as you know, I take it for Order in Council. If that should proceed, then they are listed.
Senator Lynch-Staunton: Reading the definition of terrorist activity, it certainly goes way beyond some of the activities, in particular the one climaxing on September 11. It can also be applied to strictly domestic activities. For instance, the Hell's Angels qualify under just about every definition of terrorist activity. Would they qualify to be on your list?
Mr. MacAulay: When the legislation is passed, I must be provided with information from a government agency. I have to evaluate that information and then decide. In the position I am in, I can never pass judgment before I receive the information as to what I would do or not do.
Senator Lynch-Staunton: I can give you information that, with no exception, Hell's Angels qualify under every provision that comes under the definition of terrorist activity, including ideology. I would think that perhaps the FLQ in 1970 might have come under the same provisions. I wonder if the Mafia would come under the same provisions.
What I am trying to get from you, minister, is how far in Canadian society does the net of the definition of terrorist activity extend? Right now, this proposed legislation is the result of a terrible event. However, to my mind, the way it is written and drafted it goes way beyond those who caused that event or their sympathizers. I should like to know whether you share that view or not.
Mr. MacAulay: Senator, I would like to say that in this situation it is not who you are, it is what you have done. If you have done something that in my evaluation you should be listed as a terrorist organization or individual, then an Order in Council approves that recommendation from me and then that person or organization is listed.
I think you can understand where I would not want to say that a certain group would or would not meet that requirement. What needs to happen is I have to review the information with my officials and decide whether that should go forward. What we want to do is ensure that funding of terrorists or terrorist organizations is stopped.
Senator Lynch-Staunton: We are all in agreement with that. However, I will still try to draw you out by using the example of the Oka crisis and the seizure of the Mercier Bridge for one summer with armed people on it upsetting public safety and all the consequences of that. Would that group, under this proposed legislation, be considered a terrorist group?
Mr. MacAulay: You are asking me on the spur of the moment to evaluate something that I have not evaluated in depth. The fact of the matter is, before I indicate whether in my opinion a group should be designated or not, it will take some evaluating.
Senator Lynch-Staunton: Surely you are doing the evaluation now, you are not waiting for the Royal Assent before you start to evaluate?
Mr. MacAulay: We will be working to ensure that we stop terrorist fundraising. That is exactly what we will do. What I do not want to do, senator, and I know what you want me to do, but I will not indicate clearly: It is not the group; it is what has been done.
It is not who you are; it is what you have done. That is what this is really all about.
Senator Lynch-Staunton: It does include the Hell's Angels. Thank you.
[Translation]
Senator Bacon: I would like to come back to section 83.05 regarding the designation of an individual or an organization as terrorists. What assurance do we have that only terrorist entities will be placed on that list and not members of a union or simply people practising a given faith? Who will provide the information required for putting people on the list of terrorists? Is it CSIS?
There are reasons for concern in view of the complaints that have been reviewed by the Security Intelligence Review Committee. The operations of CSIS need to be tightened in order to avoid having on that list innocent people who have no real link with terrorist organizations. We only need to look at the 1999-2000 report of CSIS, entitled "Operational Review of the Canadian Security Intelligence Service". It describes several case histories.
Regarding case one, the report concludes:
The Committee found that the Service's reports on its interviews of the complainant contained material inaccur acies about the complainant's replies to important questions, and relied on statements supposedly made by the complain ant that were inaccurately recorded.
This is disturbing. About the second complaint, the report states:
...although we believe the Service's initial interest in the complainant was reasonable, given the complainant's acti vities in support of the overseas nationalist movement, the Service's investigation failed to produce information which would constitute reasonable grounds to conclude the complainant was a member of the terrorist organization.
On case 3:
The committee found the Service brief to be biased and full of conjecture, often repeating the same point as if to give it more weight. The Committee's investigation revealed that some of the Service's assertions lacked substantiation and some damaging allegations about the complainant were found to be untrue.
These three cases are rather disturbing. The review committee found that the Service's criteria for membership in an organization that are far too broad, which caused people who are simply supporters of a nationalist movement and are peaceful and law-abiding to be labelled as terrorists.
There is cause for concern in this report. I would like to hear your views on this. How can we be sure innocent people will not be placed on that list of terrorists since the 1999-2000 report says it has already happened?
[English]
Mr. MacAulay: I can assure you, senator, that we certainly do not want anyone on the list who is not involved in terrorism.
First, the definition does not cover legitimate dissent. That is for sure. SIRC reviews every ruling CSIS does. It is an overview of what CSIS does.
Your concern is that an individual or an organization could be on the list that should not be on the list. This can be reviewed and no doubt will be reviewed, if requested, by the Federal Court.
[Translation]
Senator Bacon: Mr. Minister, it is the Security Intelligence Review Committee that says this: people have had their names placed on the list as being terrorists, whereas they are not. Is there not a need to tighten operations?
[English]
Mr. MacAulay: First, I must evaluate the information that is given to me by the RCMP and CSIS and decide whether the information they give me is accurate or not. Then I take it to cabinet. It is also reviewed by the Federal Court. Should an individual or group feel that they are inappropriately on this list, it can be taken to the Federal Court. What CSIS does can be reviewed by SIRC.
You are telling me that in the report someone is named as a terrorist who is not a terrorist. Mr. Kennedy, perhaps you could expand.
Senator Bacon: That is what it says here. If you read the document here, 1999-2000, there are three or four cases or people who were considered as terrorists where they were not.
Mr. Paul Kennedy, Senior Assistant Solicitor General: I am familiar with that instance. All three relate to the same issue and the same ruling by the same SIRC committee. One advantage we have here is that terrorist activities, for the purpose of this legislation, are actually defined in terms of the activities. The SIRC had some disagreement as a matter of principle as to whether or not activities that were being carried out by that organization were, in fact, terrorist activities. That is where the point of departure arose. This legislation seeks to try to define what activities are problematic. To that extent, it removes that ambiguity.
The SIRC is there to find if there is fault and to correct the fault. The reality is that there are tens of thousands of cases that are reviewed by CSIS each year in which they provide advice to departments and agencies in terms of security clearances and refugees. Relatively speaking, there have been few instances where fault has been found. In the context of the quality of the work they perform, bear in mind there are tens of thousands of cases each year that are looked at. There is always room for improvement. That is why we have SIRC and the reports. You must put that in context. In the vast majority, there is no problem. Can there be improvement? Yes, there can. Is there a check and balance? The SIRC is a check and balance, and here the minister and the Federal Court will be a check and balance. As I said, the rarity is that, for the first time in legislation, someone has tried to define what terrorist activities are, if that is any guidance.
Mr. MacAulay: Senator, simply because you belong to a terrorist organization does not mean that you will be listed.
Mr. Kennedy: We are dealing with two issues here with respect to that. The legislation calls for listed entities and entities. I think the minister is trying to indicate that clearly there is provision in the legislation for a list to be prepared of organizations, and to the extent that they can be identified, they will be identified. You will always have ongoing embryonic groups discovered, and if one is doing activity in relation to an entity that is engaged in that activity, that as well will constitute an offence. In other words, the list is not exhaustive, but it will be useful to people in terms of what organizations they should not associate with or support.
Senator Andreychuk: I wish to follow up on that, minister. When the publication of this list took place in the past under SIRC, one problem was that one was not quite sure whether one was suspect or not. Under this legislation, how will the publication take place? My concern is not for the organization or the individual listed. When you say an organization or a group is a terrorist organization, how does the innocent person that does not qualify for your definition clear himself?
Mr. MacAulay: If CSIS or the RCMP provides me with information and I evaluate it to the best of my ability, with the resources that I have, and take it to cabinet and there designate it, they are on the list.
Senator Andreychuk: If you take an organization and you get them listed, having gone through the proper procedures to the best of your ability, but someone in that group identified with that organization is totally innocent of terrorist activity, and that is the definition you use, how does that person clear himself? Will it be guilt by association? What if that person's association is innocent? What if they joined that group because they were told the organization was humanitarian, but it turns out they are not. How do they clear themselves and get their reputation back? How do they function in this society?
Mr. MacAulay: It is the group that is designated. If I understand what you are telling me, if you do business with that group, if that individual supports that group and makes financial donations to that group, then that must not deal with the group that is so designated.
If a person deals with a group that is designated, that is what is considered breaking the law. If the individual has done nothing wrong, they are not on the list. The only way that they will commit an offence is by supporting or doing business with a group that is listed.
Senator Andreychuk: If I am an innocent person and join a foundation and I tell everyone that it is a great group and they are doing great things, and then I find they are listed, I have already publicly stated that I am associated with them. How does one clear one's name if they had an honest belief that the organization was credible? In other words, how does that person not wear the taint afterwards?
Mr. MacAulay: If I understand what you are saying, the individual has done nothing wrong. You are saying that this individual has indicated quite clearly that they are involved with a group that is a terrorist organization and then they find out afterwards. Perhaps Mr. Kennedy would like to respond.
Mr. Kennedy: One of the main factors we tried to look at, and you will see it both here and in the organized crime legislation, is that we have not criminalized membership. Membership is not stigmatized or criminalized. The minister is right, we will put up a list of entities and they are defined as persons or groups to signal to people. It becomes like a red beacon to beware.
Clearly, it would be possible for individuals to be innocently involved with that group. Anything is possible. The signal for them, once that has happened, is to disassociate themselves from that point out. Their bona fides would be assessed in the sense of what action they take once that group is brought to their attention as being a terrorist group.
In terms of culpability, as the minister has pointed out, any of the activities that are described, if you do those activities, then clearly you have a problem. That is how we have to approach it. There is always the risk, once you put a group list together.
I must advise you that, having been involved in the charities portion of Bill C- 16, and having consulted with approximately 20 national voluntary sector groups that represent a large group of charities, they said that they wanted to be provided with a list. This may be somewhat like a double-edged sword. If there is no list, they are complaining. If there is a list, there is a side, too.
The advantage of the list is that it provides clarity to people about those groups that we consider problematic. It is Hobson's choice, if you do or do not do it. There are pros and cons. These groups asked us to give them a list, so we have lists. In any event, the United Nations is also creating lists. The lists are out there.
Senator Fraser: Minister, the Solicitor General draws up the list. The Solicitor General defends that list, if necessary, in a one-time only court hearing that may be held in secret so that the person listed does not get to hear all of the evidence. That person may not see all of the evidence against him or her.
Two years later, the Solicitor General reviews the list he or she has drawn up and has the opportunity to state that it is still a good list. First, would it not be appropriate to have that review conducted yearly, perhaps, and, second, conducted by an independent body, something like the Security and Intelligence Review Committee?
Mr. MacAulay: If there is some disagreement on whether the person should be listed or not, there is a provision to go to the Federal Court.
Senator Fraser: That is some protection, but not sweeping protection for the person in that the evidence that the Solicitor General will bring can be heard in whole or in part in camera and the person's counsel may perhaps receive only a summary of the evidence. Sometimes the summary leaves out the portions that could have been refuted. That person will remain on the list for as long as the Solicitor General thinks it is a good idea. The Solicitor General, with respect, is acting in the closed loop here.
Would it not be appropriate, given the extraordinary impact on individual's lives of being listed, to have an independent review mechanism that comes into play?
Mr. MacAulay: What is proposed is that the list is reviewed every two years. However, as I have said, the person or group can go to the Federal Court.
Senator Fraser: They can only do that once, however.
Mr. MacAulay: If they have new information, there is a possibility to approach the court again. However, if a list is compiled and the court asked to rule on a matter, the problem with this type of legislation is that it can involve names or groups of people that supply the information whether these people should be listed. That information can be from foreign intelligence. That information can endanger lives if these names are released in open court. That is why we have in camera here because if you do not have in camera then we could not use the information that is provided in court.
Senator Fraser: I understand that point.
Mr. MacAulay: We review the list every two years, because it is an offence to deal with the people on the list. We review it every two years. One does not make it to this list without having broken the rules as far as terrorist acts.
Senator Fraser: A person makes it to the list as long as there are reasonable grounds to think that they have been involved with terrorist acts.
Mr. MacAulay: This is being done to choke off the funding, to stop the funding of terrorist organizations. If we do not do it this way, there is no other way to stop the funding going to these groups.
If we do not protect the people or the organizations that supply the information to be able to find out whether these people should be listed, then we cannot use the information in open court. We review it every two years because it is certainly not the place to be on that list. The fact of the matter is we must be sure the organizations that are on there should be on there. That is why we are doing it every two years. If the people on the feel they should not be there, then they have the option of going to the Federal Court. It is pretty open.
Senator Murray: Part 5 of this bill would amend a number of acts, including the Access to Information Act, the Personal Information Protection and Electronic Documents Act, the Privacy Act, in virtually identical words to give to the Attorney General of Canada the right, at any time, to personally issue a certificate that prohibits the disclosure of information for the purpose of protecting international relations or national defence and security.
These acts already permit the government to invoke an exemption on grounds of international relations, and so on. I believe I am correct in saying that. The way the process works now - and your deputy minister can correct me because she knows the process intimately from a previous life - the government invokes the exemption under one of these acts. If the person seeking the information under Access to Information objects to the invocation of that exemption, that person goes to the Commissioner of Information. The Commissioner of Information can call the government officials in and demand an explanation as to why that exception is being invoked. He can go so far as to order the government to yield the information, and, if I am not mistaken -
Ms Nicole Jauvin, Deputy Solicitor General: No.
Senator Murray: He can take the government to court.
Ms Jauvin: The commissioner, I believe, has the power to recommend to the deputy head to release the information. If the deputy head does not follow the recommendation of the information commissioner and there are other reasons that the commissioner would like the information to be made public, then he could take the government to court if he has to.
Senator Murray: Thank you. That is the way it works, yes. I will now address my remarks to the minister.
The purpose of these amendments, minister, is to cut out the commissioner of information, cut out the commissioner of privacy, cut out due process and cut out the courts. Is it not?
Mr. MacAulay: Is this under access to information?
Senator Murray: Or privacy or whatever. The amendments are in virtually identical language.
Mr. MacAulay: Mr. Kennedy, you can answer this, but it is the Attorney General who handles that.
Senator Murray: It is a policy question. Let me put it in more neutral language: the effect of the amendment is to cut out those officers of Parliament, to cut out due process and to cut out the courts.
Mr. MacAulay: I do not think so.
Mr. Kennedy: If I can put it in context, there has been a practical problem in terms of interaction of matters before the court on access and privacy. I am sure colleagues from the Department of Justice can expand on this. There have been cases, for instance, where there is a separate process under ATIP. If you claim the wrong exemption, the courts have held that we cannot use the provisions of the Canada Evidence Act to prevent the disclosure to cure that fault. If you are careless and pick exemption A and it does not apply and B does, it is out the door.
Senator Murray: What does that have to do with this?
Mr. Kennedy: We also find in courts which run parallel to the judicial processes where the courts are making rulings on the admissibility of evidence, people are also using access and privacy as a separate vehicle. What they have tried to do here in Access to Information, under amendments 37 and 38, is find a way to rationalize before the court the treatment of access to national security information. They designed that process. You looked at that process, which was deemed to be the entire process. Once you had done that, then you had to look and ask what are the consequential amendments, if any, that would have to impact on other vehicles for accessing information. That is why you have to look at the Official Secrets Act amendments in conjunction with access and privacy and the mechanisms that were created. You are dealing with the same subject matter. You must go back and look at the root problem you are dealing with.
The effect on a narrow class of information would be to give to the Attorney General a fiat to stop certain information from going out. I ask you to look back at the model of the Official Secrets Act to see what was created there and the powers there. That will help guide you as to why they sought out those recommendations.
Senator Murray: I think we had better take another look.
Senator Kenny: Do we have a foreign intelligence service overseas at this time?
Mr. MacAulay: We have an intelligence agency that has the power to collect any information that deals with a threat to the security of Canada. That is what we have.
Senator Kenny: Does it have sufficient resources?
Mr. MacAulay: The director of CSIS has indicated that he has the resources to carry out his mandate, but as you are fully aware, Senator Kenny, things have changed since September 11. You are aware that we have provided it with $10 million on Friday, and we are continuing to evaluate what needs to be done.
The big thing that needs to take place, as far as I understand with CSIS and all the security agencies here and around the world, is to ensure that they have the capacity to intercept and evaluate what they intercept. That is the big problem, as well as the expense to all security intelligence agencies. You are aware, of course, that we have the committee and we are evaluating what needs to be done, what changes need to be made and what funds need to be provided. In fact, that is what we are doing.
Senator Kenny: Is the 5 per cent increase enough?
Mr. MacAulay: For the moment, yes, the 5 per cent increase is enough. What we have to do is evaluate that we have enough funding in place. I have been to a number of countries around the world. If you talk to any police organization or security intelligence agency in this world, it would indicate it could use more money.
Senator Kenny: What does the Solicitor General think?
Mr. MacAulay: The Solicitor General thinks we have to evaluate with CSIS and the RCMP to ensure that they have the appropriate funding to be able to fulfil their mandate. The fact is at the moment they do.
Things happened on September 11 that should not have happened. The United States has much more money and a much bigger organization, but things did not work. We have to ensure, and that is why this cabinet committee is in place, that we examine and evaluate what has been done, in cooperation with CSIS, and ensure that we are able to put the proper funding in place, and we will.
Senator Kenny: The definition of Attorney General in Part 1, right at the beginning under the Criminal Code section makes reference to:
...the Attorney General or Solicitor General of the province in which those proceedings are taken and includes his or her lawful deputy.
Who could that be? Is that one person or could that be any number of people? Can you deputize a series of people to carry out this function or the functions the legislation deals with later on, or is it the deputy head of the department?
Mr. MacAulay: I would expect it is the respective deputies in the territories or provinces. However, I should like to have a legal answer, and I should like to ask the Department of Justice to respond. You are making an overall evaluation, and I am aware that you are quite capable of doing an in-depth evaluation of legislation, which we appreciate. I want to be sure you have the proper answer.
Mr. Kennedy: Those definitions are the definitions in the Criminal Code for those purposes.
Senator Kenny: Can you help me with it, please? Can any number of people within a department be deputized? Can they become lawful deputies, or is this power restricted only to the deputy head of the department?
Mr. MacAulay: It is restricted to the deputy head of the department.
Senator Kenny: And no other?
Mr. Kennedy: Yes, there is the minister and the deputy. That law comes out of the Interpretation Act. It is defined here. In the code itself some activities can only be done by the minister, the Attorney General or Solicitor General. Some can be performed by the deputy as deemed appropriate. Those functions are laid out. Our colleagues at the Department of Justice have a manual which sets out exactly which functions in the code can be done by the deputy and which must be done by the minister.
Senator Kenny: You say that there are two people involved: the minister and the deputy. You are saying that power cannot be sent further on?
Mr. Kennedy: That is right.
Senator Beaudoin: This bill amends many statutes, including the Corrections and Conditional Release Act. Clause 94 of the bill seems to imply some retroactivity. Retroactivity and criminal law are not good neighbours. I should like to know a bit more about the retroactivity in clause 94(1) at page 114.
Mr. MacAulay: Are you addressing the correctional services issue where parole cannot be sought until half the sentence has been served? Is that the change you are referring to?
Senator Beaudoin: Clause 94(1) states:
The following provisions apply to an offender regardless of the day on which the offender was sentenced, committed or transferred to penitentiary.
Some principle of retroactivity is found there, if I am not mistaken. I should like to know why it is there. This is purely for information.
Mr. Kennedy: I do not pretend to be an expert in this area on the corrections side, but I have a note indicating that this clause provides that offenders convicted of conspiracy to commit or of committing offences in Schedule 1 of the Corrections and Conditional Release Act will be excluded from the accelerated parole release program. That is where they are released after serving one sixth of their sentence, regardless of the day on which they are sentenced, committed or transferred to penitentiary.
We are saying that an offender who falls into that category is not eligible for the program that lets first-time federal offenders go out after one-sixth of the term is served. Normal parole provisions call for completing one-third of your sentence and frequently up to two-thirds.
This provision however, will not apply to offenders in respect of whom the National Parole Board has directed release on parole under section 126 of the Correctional Releases Act before the coming into force of the bill.
This clause intends to take away, from offenders who are currently incarcerated for these offences, the speedy release option after serving one-sixth of the sentence.
Senator Beaudoin: Is the punishment not retroactive?
Mr. Kennedy: No, the punishment is not effected. The parole release date is effected. Instead of getting released after one-sixth early they are going to have to fall into another regime. The sentence imposed is not affected. It affects eligibility for early release.
Mr. MacAulay: The dangerous offender status is also available. Some of these offenders may never be paroled if they fit the requirements.
Senator Beaudoin: I am not at all worried about the question of security. I want to know why there is such retroactivity.
[Translation]
Ms Jauvin: You make a good point. The language does not seem very clear. I do not think the intent is to make this retroactive; it means regardless of the date on which the offender was convicted.
The calculation starts at a different stage. If this could be interpreted as being retroactive, we need to check it out. I do not believe that was the intent.
Senator Beaudoin: It is not the intent of the legislator?
Mrs. Jauvin: I do not think so, but it needs to be checked.
[English]
Senator Jaffer: The definition of terrorist activity refers to an organization inside or outside Canada. Will the list of terrorist organizations which is to be prepared include organizations inside and outside of Canada?
Also, I understand that some racial profiling is being used. Perhaps you can correct me on that. Would racial profiling be used in preparing these lists?
Mr. MacAulay: The most important thing is this, and these are words that we all need to hear: It is not who you are; it is what you have done.
This has absolutely nothing to do with race or religion. We will act on information that is provided, no matter who or where or what group is referenced. The fact is, if a person or group fits the prerequisites set out for this list, that name will be on this list, no matter who that person is. This has absolutely nothing to do with race or group of people.
Senator Jaffer: Will the list consist of people in organizations inside and outside of Canada?
Mr. MacAulay: Yes, it may.
Senator Tkachuk: We have been told that this is a very important bill and that is why we are doing a pre-study. May I ask why you are leaving early?
Mr. MacAulay: I have another meeting. I gave one hour and there are three portions of this bill on which I can respond. If I need to return for other issues, I can return.
Senator Tkachuk: We had you scheduled until 5:50. Can we keep you that long?
Mr. MacAulay: I need to go at 5:30 because I have another commitment. I am sorry. I understood that you wanted to see me today and I wished to oblige the Senate. I know better than to not oblige you. I appreciate that you want me for a little longer.
Senator Tkachuk: I am sure it is very important business. I asked the Minister of Justice about the identity of these terrorists in Canada and about the evidence we have as to the origins of these people. I am sure that since September 11 we have been busy trying to figure out who would want to do harm to us in Canada.
Do we have any evidence about where most identified terrorist organizations originate? What part of the world do they come from? Are many of these terrorists Canadian citizens?
Mr. MacAulay: Honourable senators, as you are aware and as a number of witnesses have already stated here quite clearly, this country has people who are associated with terrorist organizations. The same is true for every industrialized country in the world. Our security intelligence agency and our police force deal with our national security. I am not at liberty to indicate to you who they are or where they are or where they come from.
Senator Tkachuk: You have no demographic information on where these people are from?
Mr. MacAulay: I do have information, however, I will not share information publicly that deals with the national security of the country.
Senator Tkachuk: You are asking permission to publish the lists of these organizations. You must have information of some kind as to what kind of people they are. Are they Asians? From where do they come? Are they refugees, immigrants or Canadian citizens? Who are they?
Mr. MacAulay: Senator, there will be the establishment of a list. As I said before, it has nothing to do with where you are from; it has to do with what you have done. That is how the list is put together. When the list is put together it will be in The Canada Gazette. It will be available for all Canadians to see. You are fully aware that it would be totally inappropriate of me to indicate to you who they are, or who they might or might not be.
Senator Tkachuk: We have already agreed with the United States that the al-Qaeda organization is the one that you believe is responsible for the acts of September 11. We have gone to war on that basis. Is that a group?
Mr. MacAulay: Senator, I cannot respond to that question. I appreciate your concern, however. I am fully aware where you are coming from.
Senator Tkachuk: Do you believe we can prevent these people from coming to our country?
Mr. MacAulay: I believe that measures will be taken by this country and many countries around the world to make sure that we have much better control of these types of activities. That is why, senator, your government and the Senate are sitting right here evaluating. I expect that you will be coming up with recommendations that possibly will be accepted to make sure that we have the proper laws in place. That is why we have the committee in place, in order to make sure that we have the proper funding in place. I can assure you that we will do both, and you will help us.
Senator Tkachuk: I have a feeling, from the answers to my questions, about how this bill will be administrated. I think that some of this information should be shared with the public so that the public is aware of what is happening.
We have been told by witnesses who have appeared before the Senate on Bill C-11 that there is not much in this refugee bill that will be dealing with preventing refugees from coming into Canada. We have nothing in this particular bill that is taking any action. We have no moratoriums on refugees. We have a good idea of who these terrorists are and where they come from. To keep ourselves safe, why are we not taking actions to that effect and why are we not doing anything about that?
Mr. MacAulay: Are you asking me why I am not indicating to you what groups we may or may not evaluate to put on the list? The answer to that would be it would be an inappropriate action for a Solicitor General to take before he evaluates the situation and before he takes his evaluation to the cabinet. That would be a totally inappropriate action, which I will not be taking.
Senator Tkachuk: From your earlier comments, are you saying that you would be open for suggestions or recommendations to the refugee bill, C-11, as well?
Mr. MacAulay: I have come here to defend this piece of legislation and my responsibility. I have not dealt in-depth with that piece of legislation, but I would be pleased to discuss it with you sometime. We are here dealing with this bill and trying to make sure that we take the proper process. We had a great deal of discussion on how the lists are put together and how the process should be done. Perhaps the honourable senator feels that it should be more public. I would be interested in hearing just what the committee has to say. There is no doubt that many times this place has contributed improvements to legislation. Possibly you will improve it here.
The Chairman: Thank you, Mr. Minister. Colleagues, thank you very much for cooperating. I truly appreciate that.
Mr. MacAulay: I wish to thank all honourable senators.
Senator Finestone: I should like to pursue the issue of our borders and our frontier and our Canada/U.S. openness; the importance of being able to trade and at the same time the importance of trying to determine the difference between a tourist and a terrorist, or a refugee and an immigrant.
How will you do that? Evidently we are saying somewhere that we are able to determine that they are bona fide. Is that this bill or the immigration bill?
Senator Andreychuk: It is Bill C-11.
Senator Finestone: How will you do that? You have responsibility for that border. I believe at least the possibility is vested there. If we are worried about tourists, it is appropriate to ask what is being done to make sure it is not a terrorist but a tourist who gets across. If it is a terrorist, how do we know to hold them back if you are only giving 72 hours to examine them?
Ms Jauvin: Essentially, this is a bill under the Department of Immigration. It is not one that I have any personal or deep knowledge about. We can talk a bit about some of the new measures that were announced recently to help the agencies that are working at the border, but I do not know if that is what you want to hear. If you do, we can provide details.
Senator Finestone: Perhaps I am out of order. It was my understanding that this department is responsible for CSIS and the RCMP. Are you not responsible for the border guards?
Ms Jauvin: The Canada Customs and Revenue Agency is at the border, and that is under the responsibility of the Minister of Revenue, Mr. Cauchon.
Senator Finestone: I will save that for him, then.
Senator Fraser: On the lists under clauses 83.05(1)(a):
...the entity has carried out, intended to carry out, partici pated in or facilitated a terrorist activity.
In the definitions this bill says that, in regard to facilitation, you can have facilitated something even if you did not know you were doing so. In a number of other sections of the bill, however, the text specifically says that in order for an offence to be committed you must have knowingly facilitated something.
Would it not be appropriate to include here the word knowingly so that we would be saying you could be listed if you have carried out, attempted to carry out, participated in or knowingly facilitated a terrorist activity?
Ms Jauvin: Again, that definition is a definition that would now form part of the Criminal Code and is, therefore, under the purview of the Minister of Justice. That ministry would set the standard.
Senator Fraser: This is about who gets on the list, is it not?
Ms Jauvin: The role of our minister is to look at the information given to him by enforcement agencies like CSIS, the RCMP and, perhaps, certain parts of Immigration and come to a conclusion as to whether he has reasonable grounds to believe that these organizations have committed terrorist acts or terrorist activities. He must have grounds to believe that this is the case. He then takes that recommendation to cabinet and then has to convince his colleagues.
Senator Fraser: What public purpose would be subverted if the word knowingly were inserted in this section? Let me explain. I asked about knowingly facilitation and knowingly facilitating this morning when the Justice Minister and her officials were here. I hope I am doing them justice in my summary of what they said. They said that they did not include the words knowingly facilitate for certain cases where, on the face of it, you had to know what you are doing. If you are recruiting someone for terrorist training, you know what you are doing. You are facilitating knowingly.
The classic example people cite is the ordinary citizen who rents his basement to someone who turns out to have terrorist meetings there. Their activity is unknown to you. Should you be on the list for having facilitated a terrorist activity, or should not the bar be set just a bit higher so that you must have known that you facilitated it?
Ms Jauvin: Mr. Kennedy will want to say something, but my point is that my minister and the minister to whom we report will be responsible for administering the test that is in the act as finally passed. If the act says facilitated, then, obviously that will be the test. If the bill is changed and the wording is changed to knowingly facilitated because of a decision of the cabinet then, obviously...
Senator Fraser: Of Parliament.
Ms Jauvin: Cabinet and Parliament, of course. Obviously, then, that would be...
Senator Finestone: That is an interesting slip of the tongue.
Ms Jauvin: Sorry, the first step is cabinet. For the administration, the first step is cabinet before it goes to Parliament.
Mr. Kennedy: In the context of the legislation and looking at the word facilitation on page 15 I see that the word particular is important. The concept there is "knows about a particular terrorist activity."
If you look back at what we are hearing, for instance, with reference to September 11, those events were the ears in the taking. People were pre-positioned to do certain things without necessarily knowing how they would be directed at the last moment. There would be people who would be assisting them, knowing that they were assisting a terrorist organization without necessarily knowing what the ultimate object of that particular terrorist event would be. That is why that is in there. It is the nature of the creature we are dealing with.
With Bill C-24, the organized crime package, you will probably find there is similar language there too. If you have reference to organized crime groups, biker gangs and so on, you know that their institutional purpose is to commit crime. Knowing that, you know actions that you do to facilitate that entity will assist them to carry out their corporate object, which is to commit crime. With a terrorist group, it is to commit terrorist acts. It is a convenient shield to say: I helped you three years ago by giving you a safe house or false documents or false identify, by giving you money, by facilitating your travel to another country, but I did not know you would drive your airplane into the World Trade Center. Is that not a convenient way out? That is why the facilitation is there.
These are sometimes many years in the offing. If you do not have that, it is a laissez-passer for people to assist these groups with no consequence. That is the rationale for that. Whether or not you agree with the rationale, I suggest that is the rationale for it. If you look at what is done in Bill C-24, you will see that many of the activities for facilitating, participating and instructing mirror the model before the Senate in Bill C-24.
Senator Fraser: For the record, I should like to say that I am not worried about the people who provide false documents and guns and all that. I am worried about the Canadian flying instructors who might have taught those men how to fly not realizing what was at stake.
Mr. Kennedy: They would not be captured, with the greatest respect, because they would have to knowingly facilitate, knowing that they were dealing with a terrorist organization.
Senator Fraser: Thank you.
Senator Jaffer: Mr. Kennedy, with the example you were giving of someone who helps someone because they think there is an injustice happening in their country, there is no definition of who a terrorist is. Terrorist activity is very much set out. Sometimes, as Senator Fraser said, the boundary is very thin. Some injustice is happening in Canada, and I may be working with people who later on have been found to have other intentions. Did I facilitate? That is a concern I have.
I have a question about something the act does not cover, and that is an annual report. I understand in wiretapping that you have an annual report to Parliament. Would you comment on what you would think about having an annual report on the organizations, roughly how many you want to put on the list and, in the end, how many were put on the list?
Ms Jauvin: In response to your first question, clearly the government would recognize the importance of these decisions to list groups or people. That is why the standard is quite high. Grounds to believe is a high standard in criminal law. It is a high standard that the minister would have to meet. The cabinet would have to meet it also. That would then be subject to review by the Federal Court, which could look at all the information and challenge that again. Yes, it is a difficult decision to take when you list a group or list a person. That is why the standard is so high. That is why there is judicial review as well.
Senator Jaffer: That is not what I was asking. I was asking about the annual report. I was also asking about facilitating unknowingly. There is a thin line between helping someone because you think an injustice has been done and then later finding that that person has committed a terrorist act.
Mr. Kennedy: With reference to the annual report, you are quite right. There is an annual report in terms of the number of wiretap applications that are made. That is done for CSIS as well as for the RCMP. That is because the application procedure is secret. Normally, it is an ex parte application before a judge, and until the application actually comes to the court, you do not know there has been a police wiretap.
In this particular case, though, the listing will be a public listing, so you will know exactly how many there are. The whole purpose of the list is to make it public. You will see each time that it goes out on a list. There is a public accountability in that regard.
The other issue that you have spoken to is one that has troubled the international community for decades, which is the freedom fighter terrorist routine. An academic has done some research, and notes there is in excess of 192 different definitions of terrorist or terrorism is, and no uniform agreement on the definition. There is consensus on what you see described here as terrorist activities.
There will always be the challenge that my freedom fighter is your terrorist, or vice versa. We must accept the fact that the use of violence in pursuit of a political, religious or ideological regime or objective is unacceptable.
Once you move away from that premise, then you become involved in the good freedom fighter, bad terrorist debate. As I say, you can read the paper and you will see diametrically opposed purposes. Our purpose is to start by looking at those activities. Everyone agrees that those activities are bad. They include activities such as serious violence against persons with property, intimidation of the public, bombings and things such as that. These are activities that are clearly directed at innocent members of society to intimidate them.
One must be cautious. If one is to associate with someone who is trying to support a political objective in Canada or elsewhere, one must ensure that the avowed purposes do not involve the kinds of activities that are described here because those are ones that entail violence or risk of death to people.
Senator Jaffer: Your last sentence gives me even more worry about facilitation. People do not become terrorists in a day. These are ongoing things. People first work in communities. It is the facilitation where people may not know. I have great difficulty with your last explanation.
Mr. Kennedy: The language under clause 83.19 is:
Every one who knowingly facilitates a terrorist activity is guilty of an indictable offence...
You do not have to know the particular serious death or harm they will cause, but you know that is their modus operandi. That is the connection you make. If you do not know that they are involved in this activity, you do not have the requisite mental intent. However, if you know you are dealing with a terrorist organization that does these things and you assist them, then you are knowingly facilitating.
I appreciate that this is a complex piece of legislation. There are bits and pieces that must be strung together.
Senator Murray: Mr. Kennedy, I am not being obtuse, I just do not understand what you were explaining to us earlier about the connection between the Official Secrets Act and the amendments to the Access to Information Act, the Privacy Act, et cetera.
The amendments to the Access to Information Act, the Privacy Act, and so on, will give the Attorney General of Canada unfettered discretion and power to simply declare that certain information cannot be disclosed because it would be prejudicial to international relations, or whatever. In so doing, it cuts out such due process as now exists under those acts involving the commissioners, and so on.
If I understood something of your explanation, it was that these amendments to the Access to Information Act and the Privacy Act, and so forth, are consequential upon what we are doing with the Official Secrets Act. Would you mind explaining that to me again?
Mr. Kennedy: Thank you, Senator Murray, I wanted to take the first opportunity to correct the record. The connection is with back to the Canada Evidence Act, not the Official Secrets Act.
Perhaps my colleagues at the Department of Justice would be better able to explain this element. However, without getting into the rationale, under the Canada Evidence Act, the Minister of Justice has reserved the right to issue a certificate to print the disclosure of that information. If the Minister of Justice has that vehicle under the Canada Evidence Act then you must see what other vehicles are available that could cause that information to be disclosed. Those other statutory instruments are the Access to Information and Privacy Act.
For consistency, if you wish to amend the Canada Evidence Act, then you must make a corresponding change to the other piece of legislation.
Senator Murray: Even though I am not a lawyer I do not see how that follows. I am looking at the amendments to the Canada Evidence Act, on page 74, new section 37(1) for the first time:
...a minister of the Crown in right of Canada or other official may object to the disclosure of information before a court, person or body... by certifying orally or in writing to the court, person or body that the information should not be disclosed on the grounds of a specified public interest.
Is that what you are reading?
Mr. Kennedy: I am looking at page 87, new section 38.13.
Senator Murray: That reads:
The Attorney General of Canada may at any time personally issue a certificate that prohibits the disclosure of information in connection with a proceeding for the purpose of protecting international relations or national defence or security.
I am not sure that we would need under the Access to Information Act, or these other statutes that I have referred to, to cut out the process that now exists to enable the commissioner to make a finding as to whether the exemption is justified.
Mr. Kennedy: I was trying to indicate to you that this is the device you should look at. It flows from the changes from the Canada Evidence Act. You are quite right, if you play the process through, there can be a hearing, an objection is taken, the matter is contested, it goes to the Federal Court, and there can be a ruling by a judge from the Federal Court that something be released. That information might be of such a sensitive nature that it provokes the Attorney General to rely upon this clause and issue a certificate that this information cannot be released. That is after that process.
Once you have done that in terms of a proceeding before the court, you must then step back and ask, if there are other vehicles that one can rely upon other than a ruling by the court in terms of disclosure to get information from the government. Yes, there are two others: The Privacy Act and the Access to Information Act.
If you do not look over and provide something comparable, what you have is an absolute certificate for a proceeding before the court. At that point someone can turn around and the commissioner may say release it, or it goes up on a separate vehicle and it is then released. You might respond that you have filed a certificate.
Senator Murray: The proceeding could be one that had been launched by the Information Commissioner, could it not?
Mr. Kennedy: That would be interesting. In the case I referred to earlier, where a request had been made under the Access to Information Act, a wrong decision had been made in terms of the exemption. The matter went up to the Federal Court and was to be ordered released.
The Government tried to invoke the Canada Evidence Act to bar its release. My understanding is that there was a ruling from the court that they could not rely upon the provisions of the Canada Evidence Act to prevent its release; it would have gone out the door under a separate vehicle.
The point is that it does not necessarily follow that if you have the provision here, it would override access or privacy unless you specifically said so, or there was some way to tie them together. I believe that is what they tried to do here; they have tried to tie each of these three regimes together.
Senator Murray: I think it is a problem.
Ms Jauvin, I am interested in Confidences of the Queen's Privy Council for Canada and clause 44, found at page 89 of the bill, setting out a change to the Canada Evidence Act. Clause 44 states:
The Act is amended by adding, after section 54, the schedule set out in Schedule 2 to this Act.
I know this is not under your supervision but I think you probably will understand why they have done it and you can tell us what it is they are trying to do here.
Ms Jauvin: We have different numbered pages but I have found it. I truly have nothing to do with this area right now, but I believe it is a reference to the title in the next section that is section 39 of the Canada Evidence Act. I do not believe there is any change here.
Senator Murray: It is nothing substantive?
Ms Jauvin: That is the conclusion I came to when I read the bill.
Senator Andreychuk: I wish to go back to this list of terrorists to see if I understand the points being made by Senator Jaffer and Senator Fraser.
As I read the clauses under List of Terrorists, a person could be placed on the list for unknowingly facilitating terrorist activity. On the previous page, clause 83.01(2) states:
For the purposes of this Part, a terrorist activity is facilitated whether or not(a) the facilitator knows that a particular terrorist activity is facilitated....
It is only if a person is charged that the word knowingly becomes important. A person can be named on the list even without assisting knowingly. That is the dilemma we are trying to point out with this clause. The problem is further compounded by the earlier clause 83.05 (1):
The Governor in Council may, by regulation, establish a list on which the Governor in Council may place any entity if...the Governor in Council is satisfied that there are reasonable grounds to believe that
(a) the entity has...facilitated a terrorist activity...
We have absolutely no idea how this list will be established until we see the regulations. This is an important power that may affect the lives of more people than the terrorists; these are the facilitators. We do not want to trap innocent people who happen to live near a terrorist and who may have extended them a hand. You will have to persuade me that the regulations will exclude the person who unknowingly facilitated.
Senator Fraser: There will not be any regulations.
Senator Lynch-Staunton: There are no regulations now.
Senator Murray: The regulation will be the list.
Ms Jauvin: You will be guided by what is in the bill right now, assuming that this is what survives at the end of the day. Again, the test is that the Solicitor General would have to form an opinion that he or she has grounds to believe that the entity facilitated terrorism. Obviously, if the person unknowingly gave a permit...
Senator Fraser: Or a flying lesson.
Ms Jauvin: The Solicitor General would decide if there were reasonable grounds to believe and on which to convince colleagues and a court that the entity facilitated a terrorist activity. That conclusion would be made in the entire context of the act and the Criminal Code. You must bear in mind that the offence of facilitating has the criteria of knowingly facilitating. This entire context would come into play.
Senator Andreychuk: Would it not be better to allay our fears about this clause? The minister must be satisfied on reasonable and probable grounds that the entity facilitated terrorist activity. One would hope that he would look at the issue of "knowingly," but that would not be in his purview. If push comes to shove, he can name any person that he thinks facilitated terrorism. That was my original question. The named person must fight back to prove innocence. We will not know how the names get on the list until we see the regulations.
Senator Murray: The regulation is the list. You will not learn anything from the regulation except the name.
Senator Andreychuk: We do not know that. I want to know how, when and in what form this list is to be established.
Senator Murray: It is by regulation.
Senator Andreychuk: It is by regulation and so I am no wiser until I look at The Canada Gazette. That gives me concern. Can you allay our fears that innocent people will not be trapped? This clause is not clear and it is the wrong signal to give out to the public.
Ms Jauvin: We certainly understand that concern. It must be examined because we all share the same objective here. The last thing we would want is to put someone on the list that should not be there because of some test that is not specified here. We will certainly look at that and see whether there are ways of alleviating these concerns.
Senator Andreychuk: What if a person is a permanent resident but not a Canadian citizen who finds his or her name on the list without any proof?
This list continues for some time. After the Second World War, when the Communist issue was the hot item many people later found they did not get Canadian citizenship because they were somehow associated with communist activity. As late as the 1970s, in my own personal legal experience, we were fighting to get Canadian citizenship for people who unwittingly attended a social activity that had been organized by a group that was a front for communist activity. Those collected lists of names made it into the RCMP and the Department of Immigration and elsewhere. Can we have some assurance that that will not happen here and that there will no false trail that will prejudice the innocent in Canada?
Ms Jauvin: We are assured that the list will be made public, so the people on the list will know. We are also assured that anyone who disagrees with the judgment to place his or her name on the list can ask to demonstrate why he or she should not be on the list.
The Solicitor General may come to that conclusion and recommend to the Governor in Council that the name is taken off the list. Also, there is a possibility of going to the Federal Court. If a judge decides that there are no reasonable grounds to believe that the person should be on the list, then the name will be taken off the list. At that point, the person is not on the list anymore.
Mr. Kennedy: There is a separate vehicle under both the Immigration Act and the Citizenship Act. Those are the provisions that allow the government to take action to remove permanent resident status and have a person deported from the country if it believes that person is involved in activities that constitute a threat to the state. The activities are defined there.
Conversely, there is a test for a person who is applying for citizenship, and in the last couple of years, they have mirrored each other. That is the one that allows the state to deny a person citizenship if he or she applies for it. One can apply every three years. There is a mechanism there. There are mechanisms currently in place under the Immigration Act and the Citizenship Act to deal with people who are on the list. It would be an unusual situation if the government did not take some action against a person who was on the list. There are vehicles there. Those actions are subject to review by SIRC in terms of pursuing a denial there, and SIRC can make recommendations one way or the other. There are mechanisms currently in place.
Senator Lynch-Staunton: The question of the list troubles me greatly. First, I do not think that any regulations will act as a guide to the minister responsible because there is nothing in clause 83 that speaks to regulations.
I am troubled by the fact that the chapter heading to this section is List of Terrorists. I would be less unhappy if it were called the List of Suspected Terrorists. Once you get on the list, you are guilty.
What troubles me more is that individuals being assessed for placement on the list do not have an opportunity to defend themselves. It is one-sided. It is police evidence, Intepol and so on. Does the individual have a opportunity to be heard before the list is drawn up? If so, where can we find that?
Ms Jauvin: You asked if they have an opportunity to speak before the list is made up and the answer to that question is no. There is an opportunity for a person to be heard once they have applied to have their name removed.
Senator Lynch-Staunton: That is dreadful. You will find people on this list who do not deserve to be there; that is inevitable. With this approach being brand new, it is inevitable, and one person would be too many. We have seen miscarriage of justice in this country despite all our efforts. At least one person will be on this list and will not deserve to be there. Does no one care about that person's reputation, the harm to the family and the harm to whatever else? I find the approach a bit crude in that the government will put you on the list and then you have to get yourself off of it. The argument is that we are facing unusual times. That is true, we are facing unusual times and we need to take drastic actions, but there is still the protection of the individual. If a person gets himself off the list in two or three years, so what? The damage has been done.
At least change the heading to List of Suspected Terrorists. The heading has a sense of finality to it that indicated that the person on it is guilty. The person is then in the position to prove his own innocence. That goes against every basic rule of law of this country.
I see you nodding. Do you agree with me?
Ms Jauvin: It is just I feel this is what is before you now in terms of whether you want to make that determination.
Senator Lynch-Staunton: The Canada Gazette had a list of names that were in accordance with one of the UN conventions on terrorism. If I have caught you by surprise on this one, I will ask someone else another time and I will have it with me. If you are familiar with that, can you expand upon it?
Ms Jauvin: I am familiar to the extent that the government has recently, by Order in Council, passed an instrument. I do not think it is a regulation. It is simply an Order in Council.
Senator Lynch-Staunton: It is a convention, I think.
Ms Jauvin: There is a regulation under the convention, and then an Order in Council was passed under that regulation that sets out a list of organizations whose assets are to be frozen. I believe that is the one to which you are referring.
Senator Lynch-Staunton: I think it is. Do you know where those names came from?
Ms Jauvin: The Governor in Council made the decision on the recommendation of ministers who had looked at all of the evidence placed before them with respect to the organizations on the list.
Senator Lynch-Staunton: I am sorry I did not bring it in. I will bring it in tomorrow so colleagues can share it.
Ms Jauvin: The list was brought up.
Senator Kenny: Was there any consideration of advanced notification of people going on the list? When the drafting was going ahead, was there any discussion about it?
Ms Jauvin: The Department of Justice essentially drafted the bill. I do not know if Mr. Kennedy is aware. We would not know.
Senator Kenny: Can you anticipate any problems? Would there be any problems if there were, for example, a 60-day advance notice to an individual before he went on the list?
Mr. Kennedy: Yes, potentially there would be some problems. Part of the effort here is to seize the assets of terrorist groups. If a terrorist is put on the list and looks at this legislation, then he will know the next step is that the Attorney General of Canada can make a application to seize and freeze the terrorist's assets. Of course, the Office of Financial Institutions would be looking at seizing the assets, too. Effectively, we are saying that we believe you are a terrorist organization. The moneys flee this jurisdiction quickly and go to another jurisdiction where they are thought to be safe. There is a price to be paid for notification.
With regard to both terrorist organizations and organized crime, they are businesses and they need operating capital. That is the money. That is the challenge you face. With early notification, the money is gone.
Senator Kenny: You cannot think of a way to deal with that problem before someone is notified?
Mr. Kennedy: I am indicating that is the challenge we have. The other comment is that being on the list does not criminalize your behaviour. This may be facetious. The key about putting someone on a list is it criminalizes the behaviour of people who deal with individuals or groups on the list. It is a bit difficult to say that if a person deals with a terrorist they run the risk of committing a criminal office that may be punishable by 10, 14 years or life. This is a list of suspected terrorists.
Senator Kenny: What does being on the list do to your reputation?
Mr. Kennedy: I indicated to you the challenge of putting suspected terrorists on the list and then the conduct of the people who deal with people on the list is criminalized.
The Chairman: Thank you very much, colleagues, and thank you for staying here to answer our questions.
The committee adjourned.