Submission of Canadian Islamic Congress To Standing Committee on Public Safety and National Security 17/01/12
My name is James Kafieh.
I am the legal Counsel for the Canadian Islamic Congress.
On behalf of the Canadian Islamic Congress (CIC) I wish to thank the members of the Standing Committee on Public Safety and National Security for its invitation to present to you today.
The CIC is Canada’s largest national non-profit and wholly independent Islamic organization serving Canada’s Muslim community which numbers about 750,000. The CIC is an advocacy organization that offers an Islamic Canadian perspective on political, social, cultural and educational issues.
In 2001 the Canadian Islamic Congress raised its concerns about rushed anti-terrorism security legislation that was introduced to meet post 911 expectations. Among the provisions of that legislation were the ‘investigative hearing’ and ‘recognizance with conditions’ powers that are now reintroduced in Bill C-17. This time the “War on Terror” hysteria has largely dissipated.
INVESTIGATIVE HEARING
Under the provision for an “Investigative Hearing”, a peace officer, with the prior consent of the Attorney General, can apply to a superior court or a provincial court judge for an order for the gathering of information: if
a) there are reasonable grounds to believe that a terrorism offence has or will be committed;
b) there are reasonable grounds to believe that information concerning the offence or the whereabouts of a suspect is likely to be obtained as a result of the order; and
c) reasonable attempts have been made to obtain such information by other means.
This provision bears strong resemblance to the “Star Chamber” of old. Although the present legislation conveys an air of protection from self-incrimination for individuals compelled to appear this protection is easily lost when two or more persons are rounded up. For example, two or more persons may find themselves prosecuted not on the basis of information they gave but rather on the basis of information they gave about each other. To avoid an end run on the centuries old right of persons to remain silent and from self-incrimination, the “Investigative Hearing” powers should include the granting of immunity from prosecution for compelled persons on matters about which they provide only truthful information. In short, persons would then be strongly motivated to tell the truth, the whole truth and nothing but the truth. What more do we legitimately want.
We also need to bear in mind that not everyone who chooses to remain silent in such circumstances is guilty, that choosing to remain silent is not an admission of guilt or proof of guilt. People may, for example, have legitimate concerns for themselves, their families and communities.
Such an extraordinary measure as Investigative Hearings should only be used for the purpose of preventing an imminent act of Terrorism. It should never be used as an investigative tool for past acts. The present text of Bill C-17 allows for Investigative Hearings of past events where the imperative of safeguarding of innocent life from imminent attack is wholly absent. This is, in itself, an escalation from the previous form of this provision. As such we are already witnessing creep in the use of such provisions before the court.
In addition, the Investigative Hearing provision fundamentally alters and distorts our system of justice in that it places prosecutors in the role of investigators and places the judiciary in a position of presiding over a criminal investigation.
RECOGNIZANCE WITH CONDITIONS (or Preventative Arrest)
Prof. Craig Forcese’s paper entitled “Catch and Release” quotes Justice Laws of the English Court of Appeal as stating “the most fundamental and probably the oldest, most hardly won and the most universally recognized of human rights” is freedom from executive detention. Yet it is this very right that is being negated by Bill C-17.
“Recognizance with Conditions” allows a peace officer, with the prior consent of the Attorney General to lay “an information” before a provincial court judge if he or she believes that a terrorist act will be carried out and suspects that the imposition of a recognizance with conditions or the arrest of a person is required to prevent it. This provision allows for the arrest and detention of people without ever proving any allegation against them. It could also make people subject to conditions on release with severe limitations on their personal freedom, even if they have never been convicted of any crime.
Anyone refusing to accept and comply with the terms of the Recognizance may be imprisoned for up to 12 months. The legislation does not limit the number of times this provision may be reapplied. How is this consistent with our Canadian values and the principles upon which our system of justice is founded.
Canadians have the example of Security Certificates to understand the impact that this kind of provision can have. The most recent cases of five men who were detained for up to eight years without ever being charged or convicted of a crime should give us all cause for concern. Bill C-17 creates a legal regime in which all Canadians will be subject to measures indistinguishable from those of the now largely discredited Security Certificates that were limited for use only against immigrants and refugee applicants.
BILL C-17 IS UNNECESSARY
It is the position of the CIC that these provisions are not only damaging to Canadian values and fundamental legal principles but also unnecessary. In 2005, the CIC issued a position paper entitled “Security with Rights: Justice is the Ultimate Guarantor of Security”. In it CIC cited Muslim Canadian commitment to Canada and its security. The CIC further expressed its concern that the potential abuse of newly expanded security powers by CSIS and the RCMP would lead to abuse and the erosion of Civil Liberties. The CIC’s concerns remain unchanged. However, we now have nearly a decade of history that includes a narrative of how post 911 security concerns have lead to a general undermining of our Canadian values and Civil Liberties. The reliance of our international airports on measures now widely described as “Security Theatre” has alienated a growing segment of Canadians. No fly lists, botched security certificates, and even “indirect” responsibility for the torture of Canadians overseas, as was found at the Iacobuci Inquiry, have all taken their toll on public confidence.
Yet it must be noted that Muslim Canadians have played a critical role supporting genuine Canadian security concerns. The Toronto 18 group, for example, was broken primarily due to members of the Muslim community notifying the authorities of their concerns. What is missing under the present security plan is a genuine partnership between Canadian security and the Muslim community. An illustration of how strained things have become is the recent cancellation by the Minister of National Defence of a speaking engagement extended by the Canadian Armed Forces to the CIC’s Executive Director, Imam Delic.
The fundamental question is whether either draconian measure is even necessary. Reid Morden, the former head of CSIS, believes that these measures are unnecessary and present significant dangers for civil liberties. The CIC agrees with him. Interestingly, the “recognizance with conditions” power was never used during the 5 years of its existence, and the “investigative hearings” power was used only once but with no significant outcome. Indeed, there is no evidence that the Criminal Code as presently composed has failed to meet the demands of Canada’s legitimate needs relating to security and justice. This begs the question, “Why are these provisions being brought back”?
CIC RECOMMENDATIONS
While the CIC remains opposed to this bill, we submit and recommend the following to minimize the damage done to our legal system, |Canadian values, and fabric of Canadian society.
1. The revised investigative hearing provision limit its scope to deal only with imminent terrorism offences,
2. Section 83.28(2) be amended to make it clear that a peace officer must have reasonable grounds to believe that a terrorism offence will be committed before making an ex parte application.
3. It be clarified that anything done under sections 83.28 and 83.29 would be deemed “proceedings under the Criminal Code”.
4. The Investigative Hearing powers should include the granting of full immunity from prosecution on all matters about which only truthful information is provided.
5. Access to a lawyer of the compelled person’s choice be facilitated without delay or interference and be funded at the cost of the crown before during and after the investigative hearing.
6. The compelled person should also have unrestricted access to a special advocate having unfettered access to all information in the care, custody or control of the crown in relation to the compelled individual.
7. The provision for detention without charge for a period greater than 24 hours be removed entirely from Bill C-17.
8. The powers set out in Bill C-17 should not be implemented until the accountability framework for the RCMP has been enacted and is fully operational.
9. Compensation for the wrongful use of these powers must be provided to harmed persons.
10. An independent oversight mechanism answering directly to Parliament should be established to oversee the provisions in Bill C-17 for as long as these provisions remain part of the Criminal Code. And,
11. A sunset clause with an evaluation framework must be included with the legislation.
We are often told during difficult times that what we need do is find the correct balance between security and rights. I conclude with the quote from Benjamin Franklin who well over two hundred years ago shared the wisdom that “those that compromise their liberty for security soon find that they have neither.”
The recent example of the security measures at last summer’s G20 conference in Toronto and the devastating impact it had on the quality of our civil liberties provides a timely reminder that Mr. Franklin’s wisdom remains relevant today and in the discussion of this security legislation before this committee.
