FINA Committee Meeting

STANDING COMMITTEE ON FINANCE

COMITÉ PERMANENT DES FINANCES

EVIDENCE

[Recorded by Electronic Apparatus]

Thursday, May 17, 2001

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[English]

The Chair (Mr. Maurizio Bevilacqua (Vaughan—King—Aurora, Lib.)): I'd like to call the meeting to order and welcome everyone here this afternoon.

As we are all aware, the order of the day is Bill C-16, an act respecting the registration of charities and security information and to amend the Income Tax Act.

We have the pleasure to have with us the following witnesses: from the Council on American-Islamic Relations—Canada, Sheema Khan, chair, and Riad Saloojee, executive director; and from the Muslim Council of Montreal, Salam El-Menyawi. Welcome.

As you probably know, the way we operate in this committee is that you have approximately five to seven minutes to make your presentation, and thereafter we will engage in a question and answer session with the members of the committee.

We'll begin with the Council on American-Islamic Relations.

Mr. Riad Saloojee (Executive Director, Council on American-Islamic Relations—Canada): Mr. Chairman and members of the committee, thank you for giving us the opportunity to be witnesses before you here today.

The Council on American-Islamic Relations—Canada is a national organization with a grassroots membership dedicated to presenting an Islamic perspective on issues of importance to the Canadian public.

Our concerns about Bill C-16 can be distilled into three main areas—its scope, its impact on the right to a fair trial, and its potentially disproportionate impact on Muslim charities.

The Liberal government has indicated in its press release and backgrounder to Bill C-16 that the policy rationale of the bill is to close one path of terrorist fundraising and prevent groups with terrorist affiliations from obtaining registered charity status. Bill C-16 also responds to the concerns of the report of the Special Senate Committee on Security and Intelligence in 1999 regarding terrorist fundraising in Canada. The purpose of Bill C-16, as defined in clause 2, mirrors these policy goals.

I'll now turn to our first area of concern—namely, that the bill violates its own policy rationale, as it will target those who do not fundraise or support terrorism.

In targeting charities that make funds indirectly available for terrorism, clause 4 of the bill creates a guilt by association standard that renders the intent of the charity irrelevant. Unintentional, one-time, bona fide transfers of funds by charities to persons or organizations deemed to be terrorists will be caught under Bill C-16. For example, an unintentional transfer by a community church to an aid group whose director is sympathetic to a terrorist cause would be guilty under the policy rationale of the bill for terrorist fundraising.

Humanitarian and social development work will also likely be embraced by the bill, which will impose on organizations an onerous, if not impossible, burden of knowledge in distributing their funds. The bill will likely have a chilling effect on charitable activity, as the charities, fearing the smear of their name and its associated goodwill, would likely curtail their aid in hot-button geographical areas.

We therefore urge the committee to amend clause 4 to ensure that charities that do not fundraise for terrorism are not targeted. Bill C-16 should require either direct or constructive knowledge on the part of the charity to fundraise for terrorism.

Secondly, as supporting terrorism requires or carries a criminal stigma, we further recommend that charities only be linked to terrorism on a standard of beyond a reasonable doubt.

Our second cause for concern is that the provisions of the bill will make a fair, transparent trial impossible. Under clause 6, charities are only entitled to a summary of the evidence supplied by CSIS to the ministers. Bill C-16 therefore subverts our judicial system. As the summary contemplated under Bill C-16 will not disclose particulars of the evidence, it will be inadequate in affording the charity a meaningful opportunity to respond. Without the opportunity to cross-examine information for its accuracy and truth, the right to a fair hearing will be meaningless.

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In criminal cases, secret evidence is rarely permitted, never as a matter of course. Citizens committing the most egregious crimes are accorded the right to disclosure of the evidence. There remains no reason why the judge simply cannot provide the main evidence to the charity while deleting references to names and places.

We urge the committee to ensure that Bill C-16 guarantees a fair and transparent process that does not violate paragraph 11(d) of the Charter of Rights and Freedoms, which guarantees the right to a fair trial. Specifically, we recommend that clause 6 be amended to ensure disclosure of the evidence to guarantee a bona fide opportunity for cross-examination. Our brief details a number of these suggestions.

Under clause 8, the charity may only be given a summary of the foreign intelligence evidence gathered by CSIS from foreign states and agencies. Highly politicized foreign evidence will therefore be insulated from evidentiary scrutiny. It will remain unchallenged for truth and accuracy. No one is above the law. We urge the committee to likewise subject the tendering of politicized foreign evidence under clause 8 to legislative controls.

Under clause 7, the normal rules of evidence are suspended, and all relevant evidence may be tendered. Relaxed rules of evidence might present hearsay, innuendo, rumour, or bald assertions as statements of fact. There is no incentive under the bill against presenting sloppy evidence that would never be tolerated in open court. We urge the committee to amend clause 7 to allow normal evidentiary rules.

Under subclause 5(3), the charity must apply to have its identify protected. The name of the charity, therefore, will initially enter the public domain. Charities would be stigmatized as terrorist fronts or terrorist sympathizers, and their work would be adversely, perhaps irreparably, affected. We urge the committee to amend subclause 5(3) and protect the identity of the charity as a matter of course.

Lastly, we recommend that the charity amend subclause 6(2)—I have a slight error in my brief—to allow the charity the right to an appeal.

Our third and last cause for concern is that legitimate Muslim charities would be disproportionately affected by the bill due to stereotypes on Islam. Rampant stereotypes of Islam and Muslims, most notably where Islam is treated as synonymous with violence and fundamentalism, will likely cause the disproportionate targeting of Muslim charities under the legislation.

I'd like to draw a brief analogy to the U.S. In the field of immigration law in the United States, the Secret Evidence Act has sanctioned the use of secret evidence as a judicial process. The act has come under withering criticism from activists, judges, and academics. Almost every public case of secret evidence abuse involves an Arab or a Muslim. On March 28, the Secret Evidence Repeal Act was introduced to ban the use of secret evidence in INS deportation-related proceedings.

The American Civil Liberties Union, for example, has argued that secret evidence has often consisted of unverified, and unverifiable, rumour and innuendo that cannot be tested for reliability under rigorous cross-examination. Secret evidence could be something as “secret” as a newspaper clipping, the substance of which could be refuted if only it was known.

Drawing on the U.S. experience, Muslims are concerned with Bill C-16 being used as a fishing expedition and, at worst, a witch hunt.

We urge the committee to ensure that Bill C-16 does not disproportionately target particular ethnic or faith communities. We feel that our suggestions would be a practical means of achieving that end.

Fighting the funding of terrorism while ensuring a fair and transparent trial are not dichotomous goals. We can, and must, have both. In attempting to fight injustice we should not be compelled to commit injustice. Our proposals attempt to strengthen Bill C-16, remedy its weaknesses, and ensure that the core values of our justice system are respected to guarantee fairness and justice for all. I hope the committee will take our suggestions to heart.

Thank you again for this opportunity. I look forward to hearing your questions.

The Chair: Thank you very much for your input.

We'll now hear from the Muslim Council of Montreal, Mr. Salam El-Menyawi. Welcome.

Mr. Salam El-Menyawi (Chairman, Muslim Council of Montreal): Thank you.

First, I would like to thank the honourable chairman and the honourable members of the committee for providing us with the opportunity to present our concerns.

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I am here today to convey a very serious message from the Canadian Muslim community—more specifically, Quebec Muslims—that I am sure is shared by many other communities and charitable organizations who are internationally active.

In my 28 years in Canada, I have never seen the state of apprehension and anguish in my community that has been caused by the idea of introducing Bill C-16. The mere fact that my community realizes that such measures could be thought of or could be instituted one day in the Canadian justice system is causing an overall unease and angst.

Glancing through the text of the bill, any reasonable Canadian who cherishes the value of Canadian justice, liberty, and freedom can easily understand the concerns caused by the introduction of this bill. Please allow me to mention some of the statements that infringe on Canadian liberty, security, and fundamental justice.

One, the decision is not subject to appeal or review by any court.

Two, the judge examines in private the security or criminal intelligence reports in the absence of the applicant or the registered charity and any counsel representing it.

Three, under evidence, the judge may, according to clause 7:

admit any relevant information, whether or not the information is or would be admissible in a court of law.

And that constitutes the information available to the judge on which he must base his judgment.

Four, the punishable offence is:

that an applicant or registered charity makes or will make available any of its resources, directly or indirectly, to an organization or person and that the organization or person engages or will engage in terrorism or activities in support of terrorism.

This is even if the local organization is not aware of the terrorist activities, had no intention to be involved in such activities, has no resources to check on the activities of a charity-receiving organization, and acted with due diligence when it made its resources available to others.

This is clearly undefendable guilt by association, but that is not all. As paragraph 4(a) states, “made available” in the past, meaning that the law would be retroactive as well, which means we are empowering our foreign intelligence, if they wish, to wipe out half of the Canadian charities as soon as the bill becomes law.

When a person lies in our courts, we reject his or her testimony, but strangely enough we continue to accept this type of information regardless of how many times we catch them misrepresenting the facts.

Five, paragraph 8(1)(a) states:

the Minister or the Minister of National Revenue may make an application to the judge for the admission of information obtained in confidence from a government, an institution or an agency of a foreign state, from an international organization of states or from an institution or an agency of an international organization of states;

Again, in the absence of the defendant the judge may examine evidence as to

whether the information is relevant but should not be disclosed to the applicant or registered charity or any counsel representing it

The pressing question is, would the information received from an agency of a dictatorial or other type of state be accepted as fact? What if this state is engaged in oppression and state terrorism? What if this state has a political interest and wishes to manipulate our system and our freedom? And what if those agencies' information does not enjoy the same credibility in their home as this bill may facilitate here in Canada? Unlimited ambiguities.

Six, I assume to solve some of these ambiguities the law states:

The Governor in Council may make any regulations that the Governor in Council considers necessary for carrying out the purposes and provisions of this Act.

This is a serious blanket approval to design and redesign the bill away from the eyes of elected members of Parliament.

There is secret evidence, guilt by association, retroactive justice, lack of consistency, and no appeal. I am sorry to say that this is a clear breach of the principles of justice, the rule of law, and a complete lack of proper checks and balances.

Finally, under these suspicious circumstances, if an organization was found guilty this will not only lead to the revoking of the registration of the charitable organization, which may paralyze an honest charity, but it will also stigmatize the organization, its members, and the community it represents as terrorists or supporters of such, causing irreparable damage and forcing the organization to defend itself against the odds, which would be a very costly affair indeed, leading to the final demise of the organization.

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Furthermore, history and experience with similar laws south of the border dictate to us that Muslims will be disproportionately targeted in the applying of this bill because of the continued stereotyping and maligning of Muslims and Islam in the media, and even sometimes from elected officials.

Due to the fact that the giving of alms is an article of faith and one of five Islamic pillars, Muslims have to be engaged in charity, not only because they wish to do so but also because it is a requirement of their religion. Keeping in mind that 80% of refugees around the world are Muslims who are expecting the better-off Canadian Muslims, who are enjoying a good life in Canada, to be able to reach out and help them in war and poverty, this would cause Muslims to be more exposed than any others to the draconian effects of the bill.

We must focus on the purpose of this bill. If the objective is to deter terrorism, then this bill has no teeth against a person who is engaged and determined to support terrorism. The charitable status under the Income Tax Act means nothing to such a person. But the honest person's organization, and the community at large, will be the victims, and against them the bill would very sharp teeth indeed.

However, if we wish to join the international efforts to curb terrorism, we must go to the roots of the problem of terrorism and exert efforts there. The scope of this bill, which will both limit and discourage charities, which is a religious requirement protected by the constitution, and the devastating effect for a defendant being found guilty under these circumstances, makes these measures no longer a regular income tax act and would not justify the imposing of this unacceptable limits on our free and democratic society.

There is no perfect justice system in the world, but our Canadian justice system is one of the best. Under this system, and with built-in due process and the checks and balances, we still make mistakes. Jail has devastated the lives of innocent people. To empower this bill would be totally unfair to Canadians, remembering that when there is no justice for some of the people, there will be no justice for all of the people. And unlike the immigration bill, this is a precedent-setting bill for every Canadian.

It is better that ten guilty persons escape than one innocent person suffer. We are here punishing ten innocent organizations, consisting of hundreds of people, to catch one guilty person. We say the accused is innocent until proven guilty, but here, not only is the accused guilty until proven innocent, but the accused is going to need more than just a lawyer to defend against, and rebut, a witch hunt and secret evidence produced by foreign state sources. The accused is going to need an astrologist, a magician, and unlimited resources, which are not allowed, not available, and most probably will not even work. It's undefendable.

If you do not modify this bill to conform with the principles of justice and due process, or maybe in a Canadian term fundamental justice, you would be telling the Muslim community at large, and a multitude of Canadian charitable organizations of different religious backgrounds, that they are dispensable. You will be telling Muslim Canadians that they are dispensable, that you are willing to sacrifice them at the first excuse you find, and that democracy is not necessarily for all.

Honourable Chairman, honourable members of the committee, if we do not maintain justice, justice will not maintain us. Justice should not only be done but should manifestly and undoubtedly be seen to be done. And at the end, I humbly ask for the blessing of God, may he protect each and every one of us, and may he guide you to an honourable way that is fair and just.

Thank you.

The Chair: Thank you very much.

We'll now proceed to the question and answer session.

Ms. Barnes.

Mrs. Sue Barnes (London West, Lib.): Thank you.

I apologize in advance that I have to leave for about 40 minutes in the middle of your hearings. I appreciate the effort that you've put into your papers today and will give it due consideration, I assure you.

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In particular, I hear the generalization fear that you've enunciated today. I think that's something we should take into account. I'm also pleased that you've given us some direct recommendations.

I would be interested if either one of you has some suggestions as to how, if this process were to proceed, especially the process that has you receiving a certificate and then having a lapse of time before you—and by “you” I mean any charity—get the right to have the identity hidden.... Is there any recommendation where that name isn't out in public because of a lapse in process? I can tell you, I've been trying to think of something in this vein. Should that process come in advance, like a reversal of procedures here, so that even from the first movement there is a veil so that no damage is caused just from the process beginning?

Perhaps I haven't expressed myself well, but I think you know exactly what I'm talking about.

Mr. Riad Saloojee: That's certainly one of our concerns. One of our major concerns is that because identity is not protected as a matter of course, the name of the charity will enter the public domain in the early stages of the process. And because stigmatizing a charity as a terrorist front or a terrorist sympathizer is such a grave image to be carried with you, we feel it would have a chilling effect on charitable work and would irreparably damage the goodwill of that charity.

We propose, as you suggest, that the identity of the charity should be protected as a matter of course immediately when the process starts. That's really the only way to ensure that it won't enter the public domain and that charities will not be stigmatized by being thought of as terrorist fronts or sympathizers.

I'm not fully conversant about how that will work legally.

Mrs. Sue Barnes: I might just say that one of the corollaries that came to my mind is justice in a youth court in that everything is non-disclosed with public information, right off the bat, as a matter of course. We run the whole court system that way unless some application for...and that's where I'm heading.

Mr. Riad Saloojee: I would definitely support an analogy to the youth system, that there should be some mechanism to protect identity, as a matter of course, so that no rumour or innuendo leaks out in the beginning phases of the hearing.

Mrs. Sue Barnes: Would you like to add to that?

Mr. Salam El-Menyawi: If we look at this point only in isolation, then the solution would be “Great, no problem”, but we have to balance it with many other issues. We're going to have somebody guilty by association. Even if you hide his identity, take him into a closed room, at the end you're going to prove against him things he is not even aware of, and has no intention of doing. So I don't know how far this process will help us before we check out the fundamental justice of the whole bill, before we walk in.

We should really focus on the purpose of this bill, which is to curb terrorism. I don't think a terrorist is waiting for the tax reform to come home—if he wishes to send finances, he won't wait to announce it through a charity. A terrorist is going to get his finances by whatever means, such as breaking into a bank. I don't know how much this measure will hurt terrorism, or whether it's even our jurisdiction to fight terrorism itself.

Mrs. Sue Barnes: I take your point. Obviously, some people must disagree, else we wouldn't have a bill before us on that point. And I agree that it's not a matter of a tax receipt for money expended. I think it goes far beyond that, and this is something we're going to have to grapple with.

I want to let you know, as I'm sure you're aware, that this bill has not yet been voted on in principle. It's here for discussion. I think we can look at some of the areas you've raised. I'm sure after our break we'll be coming back with some suggestions on some of these avenues that we need to pursue, including the constitutionality.

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My past training tells me there's always more than one side to the story. I'm willing to suspend my coming down on either side, but I'd like a fair hearing for all sides on this. I really do thank you for adding what you have today.

Mr. Chair, I think I will leave that for now other than to assure the witnesses that I'm going to be looking at their briefs in detail over this break.

Mr. Salam El-Menyawi: Before the honourable member leaves perhaps I can mention something. Yes, there are two sides of the coin always. Granted, that is true, but we are willing to work with any committee and with any institution to help give ideas on how to do these kinds of things. Because the people who suffer most from terrorism are Muslims, and we are willing to help with any work in this area.

Clearly, I think we should be given enough time to express ourselves on some of these problems, because it involves the stigmatization of not only a charity but also the whole community. You can't understand the anguish in the community when they wake up in the morning, listen to the news, and hear there was a terrorist act. They are waiting to know who did it, and they keep praying to God, “Oh, Allah, we hope it's not a Muslim”. Because we know the outcome of such an action. It falls on everyone.

My point, clearly, is the proportionality of the Income Tax Act versus the benefits that will befall the community. Is it proportional? Is it enough to set limits on the freedom and fundamental justice? Is what you gain out of it good enough to set those limits? That's a question we'll have to answer.

The Chair: Thank you, Ms. Barnes.

Mr. Cullen.

Mr. Roy Cullen (Etobicoke North, Lib.): Thank you, Mr. Chairman. As I mentioned to you, I have to leave shortly as well, but I thank the witnesses for their presentations. I'll be going over their briefs in more detail later.

Mr. Saloojee, early on in your brief you hit on a couple of points, those being the notions of indirectly available and guilt by association.

In one sense, I guess, the government always has to balance a whole host of competing interests or competing objectives. You would probably concede that an organization that's involved in terrorist activities could configure themselves such that they have a humanitarian organization and they have a terrorist.... I mean, I'm simplifying. This is a very complex area. The charitable organization could be funding the humanitarian efforts, if you like. And as I think the witnesses said yesterday, they don't know boundaries, these funds.

So I don't know if, at some point, you have any way to guide the committee on that point. How do you strike that balance so that you can attack those groups that would deliberately configure themselves in a way that would allow people to do these things, balancing against guilt by association?

The other question I had, and a concern I have as well, is on these unintentional one-time transfers. A charitable organization could maybe find itself in a situation where unintentionally the moneys go to an end that they're not really happy with themselves. I'm not sure what kind of latitude or discretion the government authorities would have. They might have to say, well, too bad, you've lost your status.

As to process issues, I think you've made that case very clearly, that we have to be very careful with that. As you say, if an organization is tainted at the front end, even if they are shown to be not attached to terrorists, the ability of that organization to raise funds legitimately is going to be tainted.

There's a whole host of issues, so I'll just throw those ideas out for any comments. I'm sure we're going to be doing a lot of work on this bill.

Mr. Riad Saloojee: I'd like to make just a few comments. First, I think those are really very important aspects of the bill that need to be looked at very closely. While I would definitely concede that, for example, a terrorist organization might creatively configure itself to have, if you like, a terrorist front and a humanitarian front—that, no doubt, is true—I think the focus of our suggestion was that because we are going to be targeting charities domestically, charities that are incorporated here in Canada, we have to make sure, before we target them, before we stigmatize them, that they willingly, with knowledge, with intent, decided to fundraise for or support terrorism.

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Now, part of the definitional section definitely deals with that, but when the definitional section talks about indirectly making available funds, that casts such a broad and sweeping net it's going to necessarily embrace those organizations who do make an unintentional transfer, who do make a one-time transfer, who do make a transfer not knowing that the transferee on the other side does terrorism or is engaged in terrorist works. The problem there is simply that our justice system is based on transparency and accountability, and we should not punish those who do not wilfully, or with intent, support terrorism.

To simply impose on those charities a type of strict liability where, if money goes, they're necessarily targeted, is very unfair. It imposes on them an onerous burden of knowledge that is simply, in our opinion, impossible to meet. With charities sending money here, there, and everywhere for humanitarian causes or for humanitarian concerns, I think it's very difficult for them to be meticulous about exactly where their money goes. If money happens to fall into the lap of a so-called terrorist group, I don't think it's fair to target and to punish them.

I think the government obviously should have the burden to meet the evidence, or should have the burden of proof, and the government should definitely be able to prove negligence at least, or wilful blindness or constructive knowledge or some type of intent, before it jumps the gun and targets those charities.

Mr. Roy Cullen: Thank you.

The Chair: Mr. Gallaway.

Mr. Roger Gallaway (Sarnia—Lambton, Lib.): I apologize for arriving late.

I pose this to all of you. Yesterday, as you probably are aware, we had the Solicitor General here, and the Minister responsible for the Canada Customs and Revenue Agency. They declined to define terrorism, for starters. They say it's evolving. And I don't want to say that this is an accurate reflection of what they said, because quite frankly I'm not certain what they said.

I would ask you, if there was a definition of terrorism that limited the scope of terrorism to those acts that are found within the Criminal Code of Canada, would that give you any comfort?

Mr. Riad Saloojee: We would certainly like the definition of terrorism to be limited, and we think it's very important that it be limited, especially where a lot of the activity will involve humanitarian work—work overseas, work in so-called hot-button geographical areas—where it's very easy to generalize and where, without a very thorough and rigorous understanding of the context of that particular place, I think it's very easy to simply slap people with the label of being terrorists or supporting terrorism. So any type of more rigorous definition of terrorism would, I think, be welcome.

Mr. Roger Gallaway: Moving along from that, we'll just try to consider some clauses in isolation.

One of the things that has struck me about this bill is clause 5, which deals with judicial consideration of the certificate. The fact is, the revenue department and the Solicitor General would give a charitable organization seven days—maybe eight, maybe nine, but seven days is the minimum standard—after being served with notice to be prepared to go to court, albeit a first appearance.

I'm just wondering if you'd like to comment on that in light of the fact that the Government of Canada usually reserves to itself 15 or 30 days to reply.

Mr. Riad Saloojee: I think there are two concerns, and that's a very important one. It is a very short time to allow the charity to mount a defence, especially when a lot of the evidence will not be disclosed to it. So we would definitely like to see that time extended more graciously to ensure that the charity is able to get effective legal representation, and also for the charity to have disclosure to the evidence.

I think the flip side of this is that the process, in our estimation, is fairly drawn out and fairly cumbersome. We're also concerned that not only does a charity have to be very quick in court, but the legal obstacles for overturning the certificate are also fairly hefty. We're very concerned that especially charities with limited means and resources are really going to have to scrounge for the financial means to be able to defend themselves. That is definitely one of our concerns as well.

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Mr. Roger Gallaway: Yesterday the Assistant Deputy Minister in the Solicitor General's department stated that in certain types of cases involving administrative law, people get a fair hearing, and in fact some of these trials are lasting 50 days. I wonder if you are aware—and I don't know your organization with respect to financial wherewithal—of any organizations, under the umbrella of groups that you are acquainted with, that in fact mount a defence that would last 50 days. I'm talking in terms of cost.

Mr. Riad Saloojee: I think they would be very hard-pressed to mount a defence. Certainly for some organizations, those that perhaps have limited means and limited resources, 50 days is a lot of trial time. Coming from a legal background, I understand very vividly the costs that are involved. The legal fees are very substantial. Trial time for 50 days is a very onerous burden.

So I think we are back to the cost issue. I think it's going to be very difficult for many charities to be able to finance that type of defence.

Mr. Roger Gallaway: My final question for the time being is with regard to the veracity of the type of information that is going to be fed into the system in Canada. Yesterday Mr. Ward Elcock, the head of CSIS, was present. As we know, CSIS really never says too much publicly, and yet Mr. Elcock—once again I'm going to convey an impression of what he had to say—let it be known that they deal with people in other countries. I mean, I don't think Canada has agents in other countries, but they have contacts with other security forces and police forces in and around the world. He said that this information is fed in, they analyse it, and everybody should be happy that this stuff is sanitized and whatever they present is true.

Now, you represent an umbrella organization of Muslim and Islamic groups. I can think of a number of states—for example, Sudan—where I would be very suspicious of information fed to any security force by the authorities in that country. In fact, I would be very suspicious of information fed from a Christian state like Northern Ireland.

I wonder if you can comment in light of the group you represent on the types of information or the veracity of information being fed from a great number of states.

Mr. Riad Saloojee: I think the political history of our western civilization has taught us to be skeptical and to treat information coming from states with a healthy dose of cynicism. It's certainly a great leap of faith to assume that all the evidence that comes from foreign states or from states is absolutely untarnished and untainted.

One of our concerns is that evidence coming from foreign states will likely be, or will be, very politicized. Therefore, not to subject it to disclosure or to certain legislative controls is really going to undermine the justice process. There are definitely many states that have totalitarian regimes who certainly don't share our own democratic values. To allow those states to simply feed information into our judicial process without having that information scrutinized simply goes against the most fundamental core values of our system.

There are many states, for example, that would look at even relief work as a political threat, as something that needs to be controlled. It's not improbable that many governments of course have their own agenda, and I think all such foreign politicized evidence needs to be disclosed. There must be mechanisms to ensure that this information can be scrutinized for its accuracy and for its truth. Certainly I think we need to be skeptical about those initiatives.

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Mr. Roger Gallaway: Can I ask a couple more?

The Chair: Yes.

Mr. Roger Gallaway: All right. Thank you.

I don't know which group raised the issue of the Secret Evidence Repeal Act in the United States. I haven't read anything on this, but I can think of cases in Canada, going back into the early 1960s with the Gouzenko trial, where there were unknown witnesses appearing with hoods on in courtrooms in this country. That was a much different paradigm in terms of the nature of the trial, but I also think of the fact that in 1992 in this country CSIS opened a file with the name Preston Manning on it. It was thought that the Heritage Front had infiltrated the then Reform Party. And in fact a parliamentary committee had a look at that in the mid-1990s.

Could you tell us, sir, for the record, your knowledge of what the experience has been in the United States with respect to secret evidence? I have to point out that in that country, there's greater political control on their police agencies, especially at the level of the FBI and the CIA.

Mr. Riad Saloojee: I tried to use the U.S. initiative in a very focused way. The U.S. initiative, the Secret Evidence Act, is of course different from our act. There are some very fundamental differences, one of which is that act's view of immigration, but I thought the analogy would be instructive on two fronts.

First, it's been soundly criticized and it's come under withering assault from courts, academics, and activists simply because there have been a number of gross human rights abuses under that act. In retrospect, for a lot of those who were charged under that act, the evidence against them was very scanty and in many cases non-existent. Those violations have been publicly documented. So that was one of the analogies I wanted to draw.

The second analogy was that the Muslim and Arab community has been disproportionately targeted under that act. Most—if not all then certainly most—of the very public cases that have come to public attention have involved Muslims and Arabs. I thought that was something that needed to be brought out simply because part of that was as a result of the pervasive stereotypes about Islam and Muslims, and how Islam and Muslims are almost synonymously treated with violence or with fundamentalists.

So those were two of the analogies I wanted to draw in terms of the U.S. Secret Evidence Act.

Mr. Roger Gallaway: Thank you.

The Chair: Thank you very much, Mr. Gallaway.

Mr. Epp.

Mr. Ken Epp (Elk Island, Canadian Alliance): Thank you.

Thank you for being here and for giving us your perspectives. I have some questions that, if you don't mind, are sort of preliminary to this bill.

Did I hear you say that Muslims are required to contribute a portion of their salary, regularly, to the organization? Did I hear that correctly? Is that a requirement?

Mr. Salam El-Menyawi: Yes, I did say that, but it's not from their salary. They are required to pay alms as a percentage of their assets, yearly, to the poor, to the needy, to their relatives in order to make sure that poverty and want are eradicated from society. Thank God that in Canada, poverty of that kind is not here, so normally we look out of Canada to pay those alms to people who are in complete want and poverty.

Mr. Ken Epp: So this is like our property tax, then? It's based annually on your assets?

Mr. Salam El-Menyawi: I can't add the word tax to it except in trying to simulate it. Rather, it's a religious requirement, in Arabic called zakat, relating to alms. It varies. It could be on property. It could be on agricultural land. It could be on harvest. You have to give 10% or 5% of your harvest, something of that sort, yes, to the poor.

Mr. Ken Epp: This is again beyond the purview of this particular bill, but it seems to me that with that kind of a requirement, the motivation to contribute is not dependent upon a tax receipt and the tax reduction that results from that. In other words, you would get your money anyway.

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Mr. Salam El-Menyawi: Well, tax receipts only help to facilitate Canadian Muslims not to pay taxes on some of the money they are paying out, so it would take them that extra mile.

Mr. Ken Epp: It would save you the expense, but I mean, the money will still flow, even it were done with after-tax dollars.

Mr. Salam El-Menyawi: Yes.

Mr. Ken Epp: Okay. I think that's true for many organizations.

I don't know, Mr. Chairman, if this is beyond the purview of this bill, but I think if John Bryden were here he might be interested in this. I think we should study sometime whether or not using a tax deduction for charity should even be continued in this country, whether the way it's done should be changed. Maybe we should let people give their money wherever they want, say, and cut the 10,000 government bureaucrats out of the loop in terms of deciding who gets registered and who doesn't. Then we could maybe have a law that says if you're raising money for terrorism, that's against the law, and you'll go to jail if we find out that you do that, instead of just saying, well, it's okay to raise money for terrorism, but we just won't give you a tax deduction for it any more.

I find I have great objection to this bill, because I don't think it really addresses the problem—that is, raising money for terrorism. It fails to do that, in my view.

Coming back to the questions I wanted to ask, you indicated two things. And this came from both of you. One is that you decry terrorism. Yet you also said that Muslims are more frequently the targets of investigation, deregistering, and this type of thing than other groups.

To what do you attribute that fact? If your official teaching is that you're against any of these acts, why then are you the most frequent targets? To what do you attribute that?

Mr. Salam El-Menyawi: When we look around the world we find that most of the hot-button areas around the world are Muslim areas. When we look at most Muslim countries we find that there are dictatorships in most of these countries. We also find that many people are willing to live in peace and that no Canadian would want to live in and exercise the same circumstances as many Muslims today are exercising. We find that many of them suffer when some take it in their hands to try to free themselves from the dictatorial regimes. Others feel the fallout of these trials disproportionately by having people going against them and committing oppression and terrorism against them, whether it's state terrorism or individual terrorism.

Mostly comes the other part, which is when this kind of action takes place in different places. You get this kind of street fighting. Normally it's attached to Muslims because there is poverty, there is want, and there are other problems. There are 1.2 billion Muslims around the world, and when we look at some of the stories and realize that this is, of course, reflecting on Muslims, then we find that people who are fighting terrorism work against specifically Muslim communities instead of to eradicate terrorism from every community and from every direction.... I'm trying not to generalize, but generalization always take places in this area. I think it also relates to lack of enlightenment about Islam and Islamic teachings in relation to this issue, which is normally looked at in a different aspect or twisted when it comes to our community here.

Mr. Ken Epp: Yes. Well, I have some Muslim friends, and they tell me that their teaching is peace, getting along with each other, etc. When I ask them, “But do you not also teach that there is a thing called the jihad?”, they say “Oh yes, that's in our teaching, but we don't practise it.” How do you answer this?

Mr. Salam El-Menyawi: Jihad certainly is in our teaching, and it is totally incorrect to say you don't practise it. Saying that jihad is a holy war is totally incorrect. The word jihad itself means a struggle, a struggle to alleviate from one's life all that is bad, to struggle against his soul, to struggle to work hard, to be spiritual, to struggle to be able to care of his family, to struggle to defend himself and defend his family. All these are certainly there, and to practise it, of course. So I don't know, if he's equating jihad with terrorism, then....

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Mr. Ken Epp: I guess what he was doing was...and you're trying to disassociate from that stereotyping.

Mr. Riad Saloojee: I'd like to make I guess two or three points about that. I'll try to be brief.

First, on the Islamic view of violence, generally if you look at the primary sources on Islam, violence against civilians and against innocence is absolutely, unequivocally condemned. The only time Muslims are allowed to fight is when people transgress against them. Therefore, the only time Muslims are allowed to engage in jihad...and the Arabic word literally means “struggle”. It does not mean “holy war”. It can mean a physical struggle, but more importantly it means an internal struggle for self-purification. The only time jihad is legally defensible in Islamic law is when someone is transgressing against you and you have to defend yourself.

The vast majority of Muslims in the world are peace-loving. The vast majority of Muslims in Canada are good Canadian citizens.

Secondly, regarding, if you like, the sources of stereotypes or misconceptions, I think that's a very large, complex issue. I would submit that there are historical reasons for why Muslims have been stereotyped, and why there are misconceptions. There are educational reasons and there are geopolitical reasons as well.

Mr. Ken Epp: Okay.

I want to ask you about your concern around this bill. It seems to me, from my own thinking and from what I've read in the bill, that the object of any bill we bring in Parliament should be, if there's something that's illegal—and we believe that terrorism and all its promotion should be illegal—to correctly identify in law those who are doing it and bring them to justice. The law should also be very careful to exonerate the innocent.

What I'm hearing from you is that you do a lot of good works. Your people bring you money. You administer that for the benefit of the poor and others—around the world, I believe? Yes. So it's not just in Canada but around the world.

So you are taking Canadian money in that sense and you're helping to alleviate ills right around the world, as many charities in our land do. In that regard, your concern is whether you are going to be fingered for promoting terrorism when in fact all you're doing is what we would call good works.

Now, there is this provision in this bill that the ministers make this judgment and actually decide whether or not the charity should be deregistered. Then it's sent to a judge. The judge has to determine whether or not it's a valid decision that these two ministers have made. But that decision is not appealable. It also, as you have correctly pointed out, is not subject to the usual rules of evidence, cross-examination, and all of that. They could go even on hearsay evidence.

Don't you trust, though, that the judge would get down to the bottom of this? In Canada our judicial system is deemed to be very trustworthy. A judge isn't going to likely say you're guilty based on hearsay evidence. The judge knows the law. Surely he's going to have the ability to discern between evidence that's proper and evidence that isn't. Do you not have that trust?

Mr. Salam El-Menyawi: Maybe I'll say one thing and you can take it from there.

I know just recently there was a problem in Nigeria. Our whole country, in the newspapers and other media, was quite hot about why the Sharia was employed in Nigeria, and where was the lawyer to defend them? So one of the things we are criticizing other countries for is the right to have counsel.

Now, what I'm hearing you say is that the judge is enough; you don't have to have counsel to take care of you. So we have taken a very important and fundamental right for a Canadian to be able to have his counsel present and to rebut this kind of evidence.

We know our system. We know it's a good system. We know the Canadian system is one of the best around the world. And lawmakers know that. But for us to give up this right, when we hold this up to the light I don't think the limits to be put on the freedom of Canadians in our society are justified by what we'll gain from this law.

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The other point, of course, is the fact that our Canadian system is fantastic, but even with the existence of a judge and jury and the prosecutor and the defending lawyer, we have put people in jail by mistake. Imagine now taking one out of the equation; you are giving more chances that those mistakes will be made.

I mention Milgaard and others who were jailed by mistake and 10 years later we take them out and pay them some compensation. That causes irreparable damage. By the time we discover we made a mistake or the evidence was fabricated or somebody had an interest, political or otherwise, it would be too late.

It's also a question of consistency. When we look at the bill, we see there is no consistency in who is a terrorist, no consistency in which state you would deal with, no consistency in what kind of evidence we should trust. Then we put all of this in front of the judge and tell him to judge, regardless of anyone else to help him scrutinize those facts or even just give a second opinion, to support him in the honourable work he's doing. I think that would be serious.

Mr. Riad Saloojee: I'd like to make three or four points about that. I, for one, don't think it's a question of trust at all. I think it's a question of more fundamental, more basic values in our justice system. Our justice system is based on the idea of an adversarial system—that is, the truth emerges in, if you like, a contest of wills between one side and the other. That, we have always felt, is the best engine for truth.

The judge is not supposed to be partisan in a hearing or in a trial. The judge is in essence a neutral arbiter. They're supposed to get information from both sides, information that sometimes is at odds or loggerheads, and they're supposed to then make a decision. Now, if we allow the disclosure of evidence in a criminal court for criminals who commit egregious crimes, why would we not allow the disclosure of evidence for charities who do charitable work and who might be stigmatized as terrorist fronts?

If we allow it in criminal court, I would submit that we should also allow it in this case. Judges are not omniscient. They don't necessarily have a wide, complete, cosmopolitan base of knowledge. Therefore they might not know the particulars of that case. I would submit that the best person to launch a defence and to protects its own interest is not the judge but the charity itself. The charity will not be able to offer up a fair defence or a bona fide defence without looking at the evidence. I think by insulating the evidence from the charity we're subverting our judicial system and we're undermining its adversarial character. I think that's very problematic in our search for the truth.

The Chair: Ms. Khan, did you want to say something?

Ms. Sheema Khan (Chair, Council on American-Islamic Relations—Canada): Yes, just to emphasize that it's not the issue of trusting or not trusting the judge, it's an issue of human fallibility. One of the strengths we have in this democracy is a system of checks and balances that hopefully will circumvent or correct the human fallibility that exists at every level.

I'll give you just one analogy. In our holy teachings we revere the prophet David. We are told that he was a very wise prophet and a judge. A case was brought to him where he heard only one side. He made a judgment. Then he was rebuked by God for coming to a conclusion without hearing the alternate side. So we are taught that even people whom we consider the holiest can be subject to fallibility.

This is why you need a system of checks and balances, and I think this is what we are trying to emphasize here as well.

Mr. Ken Epp: Thank you.

Mr. Salam El-Menyawi: I want to ask one question: What if the judge needs to hire the services of an expert witness to check the evidence? Would he do this on behalf of the other people? He wouldn't. He's only a judge to look at the evidence as it is. Here again we see that the one who can take care of the best interests of his right is the accused himself, who may need an expert witness, who may need others to analyse the facts, and then come in front of the judge and review it.

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Mr. Ken Epp: You've given very compelling arguments that actually reflect the questions we were asking of the officials just yesterday on this very topic. Thank you for backing us up.

I have another question, and that is, these officials said that they could not make this public because it puts at risk our national security, or it could, and therefore they can't risk it. How would you answer that?

My approach is that an organization that is in fact innocent is not going to be involving national security. Therefore, let them, at their choice, come up and say now we're going to have an appeal of this, and it's going to be public because we have nothing to hide. An organization that is guilty may just say, okay, we accept the verdict, and thereby not blow their cover.

That's just my little theory. Do you think it would work? What do you have as an alternate response to that?

Mr. Salam El-Menyawi: When I look at national security and when I look at this bill, I see completely the reverse, honestly. The ones that are being threatened are our charitable organizations, the honest ones. The ones that have guilty minds or that are doing something deceitful in the community will be able to do without the tax refund. They don't need the registration. It is very important to know that this bill will not help with that. The only thing this bill will do is damage many charitable organizations that are doing very good work around the world.

By the way, for most of the charitable organizations, especially in my community, the percentage of the charity that leaves Canada is very little compared with the work locally. So for the very little that is done from time to time in order to let people know that we support them in their agony and grief, it may backfire.... For example, do you know how much Canadians would suffer if you closed a mosque because someone has paid $5,000 to a charity and then...without having charitable status, would not be able to respond, pay the bills, and continue for people to be able to worship? It's very serious. There's no proportionality to the gains you may have for that one person who could be handled in other ways.

[Translation]

The Chair: Mr. Roy.

Mr. Jean-Yves Roy (Matapédia—Matane, BQ): Thank you, Mr. Chairman.

In your last statement, you seem to suggest that this bill is absolutely not needed given the number of organizations which could be involved or concerned. That's my first question.

My second question is more in relation with one of the aspects about which you talked a lot, namely with what is called guilt by association. As I understand, your main concern is that charities which are raising money here, in our country, in order to help people abroad might at some time be related to a terrorist group just because, I would say, they don't know where the money was spent. If I understood you correctly, that was your point.

I'm a little bit ill at ease in front of that type of assertion, for it seems to me that in that regard charities must be in some way responsible and accountable to the state as well as to the people from whom it gets funds. I would like to know your opinion on that. I feel that by making such a statement, you are somewhat failing to recognize that charities have a responsibility to make sure that their funds are spent for the objectives they pursue.

[English]

Mr. Salam El-Menyawi: I'm not a lawyer but let me reflect a bit on a couple of points here. One, when we relate to criminal law one would have to prove mens rea. The onus would be on the crown to prove that the person has an intention to commit such an act. Sometimes the intention could be proved with a rather low standard of evidence. Perhaps the mere fact of committing the act shows that there was an intention for him to kill someone, shoot a gun or do something.

Then we have another kind of liability, which is strict liability. The mere fact that you cross a traffic light means you are guilty. It doesn't matter if you have a defence that you didn't know or that your brakes were no good. It doesn't matter; you are guilty. We do this in protection of our traffic lights, and the fine is set. There are limits on that person.

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But look at the consequences of finding someone guilty here. You are not just cancelling his permit. You are cancelling him out of the society. You are stigmatizing him, one, and two, you are stigmatizing his community, because right away it will be sensationalized on TV and radio, the media in general, that a certain organization in this community is committing terrorism or has been aiding and abetting terrorism.

Why in this bill does it read that when a person will be found to have committed an offence it would allow them to revoke his permit, or the permit of such an organization? That revocation of the permit may come not because he committed an act but because he gave money to an organization where someone in this organization has done something that is totally unknown even to the organization, and indirectly to him. It's totally unfair that you would ask me to pay for something I did not even know about. Yes, you have a responsibility, but we do our best to pay for the areas where, according to our religion, our charity has to go—directly to the poor, to eradicate poverty and loss.

But there is also a question of resources. Do we, in order for us to be a charity, have to engage with CSIS, or CIA, or some intelligence somewhere, to tell us which organization we can and cannot deal with just because we have to give $5,000? Even though this bill is clear that if a person who will be found guilty of it does not mean he committed an act of terrorism—it's only based on the organization unknowingly committed an act of terrorism, or someone on the staff somehow was engaged in an act of terrorism—still our media talks about it. They say, “Why are you worried about it? This bill talks about fighting terrorism, so why are you complaining?” So already the point is clear, that it will be translated not that a person has done something knowingly but....

The consequences of finding someone guilty are very severe, and for him, he has to defend himself. To defend himself goes against all odds in this bill. With all the secret evidence and all the problems he has to face, as I mentioned, he needs a magician to tell him what he's charged of, or what is the problem, and how he can defend himself. He will need unlimited resources to try to defend himself. It would be totally unfair and unacceptable, and it does not go along with fundamental justice in this case.

Did I say this bill is not necessary? Yes, I did. I said this bill is not necessary. Indeed, it isn't necessary if the purpose of the bill is to fight terrorism, because this is not the way you're going to fight terrorism. The money will continue to go and the income tax rebate or income tax refund is not that important to raise this money.

Two, terrorism does not necessarily need charity. The question was raised earlier that a terrorist organization may have a side for charity and another side. Fine, tell us. Tell us that, this organization, we have enough information, and it has been written off. Deal with that organization, and until they prove that they are not dealing in terrorism they will be written and blacklisted on the Canadian list to show that we should not deal with such an organization. But don't let me deal with them and then come and say “I got you”. That's entrapment. You are entrapping me to close me off, not letting me exercise my religion in Canada while it is protected under the Constitution.

The measures taken in this bill would make it impossible—it's undefendable—to do so. Yes, I can do without the bill, of course, and every charitable organization, Muslim and non-Muslim, as well can do without it, but we would have to make sure, if we wish to gain the credibility of the Income Tax Act, not to be funding somebody engaged in terrorism. We should do it in a way that is compatible with a measure of justice. Because the stake is very little; it's only some money...and that could be compensated. If we harm families and people and communities, the anguish is high, the apprehension is high, and you ought to be careful.

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The Chair: Mr. Saloojee.

Mr. Riad Saloojee: I have just a very quick comment. The purpose of the bill and the policy rationale of the bill is to stop terrorist fundraising. Certainly I don't think organizations that fundraise for terrorism should ever be exonerated. Our position is that all charities should be diligent about where they send their funds. The problem, though, is that the provisions under the bill are so wide and cast such a broad net that they'll encompass unintentional, one-time, bona fide transfers of funds by charities.

The example we gave, and I think it's an important and very telling example, is that an unintentional transfer by a community church or synagogue or mosque to an aid group whose director, or for that matter whose employee, is sympathetic to a terrorist cause would be caught under the policy rationale of the bill for fundraising terrorism.

We think that's inconsistent with the policy objectives of the bill. Certainly charities should be careful and should be diligent about where they give their funds, but the bill is so broad it will encompass charities who unintentionally do a one-time transfer of funds or, for example, merely, if funds become available or fall into the lap of a terrorist group or terrorist organization, they would be targeted. So we think that's inconsistent with the policy rationale of the bill, and it certainly is inconsistent with the right to a fair trial and fundamental freedoms under the charter.

The Chair: Thank you, Mr. Saloojee.

Seeing no further questions, on behalf of the committee I'd like to thank you very much for your presentations. This bill has obviously raised a lot of interesting issues. We have already asked departments to provide us with further clarification with regard to a number of those issues. That happened at our first meeting on the bill.

So we'll continue to work on it until we're satisfied, I guess, but you've certainly given us a lot of things to think about. We'll keep your points in mind as we try to improve the bill.

Thank you very much.

The meeting is adjourned.