The Centre for Refugee Studies (CRS), York University

1. The Centre for Refugee Studies, an organized research unit of York University, was formally inaugurated in the fall of 1988 as the successor to the Refugee Documentation Project, a research and data repository collected by Operation Lifeline, during the Indochinese Boat People Crisis, augmented by successive refugee movements both to Canada and throughout the world in the 1980s.

2. The Centre for Refugee Studies is engaged in research on refugee issues. It informs public discussion as well as policy development and practice innovation by international, governmental, advocacy and service organizations; and it supports teaching in refugee and migration studies. Refugee studies is conceived in broad terms, as being concerned with the displacement of populations and individuals across and within borders, for reasons of persecution, expulsion, violence, violation of fundamental human rights and loss of essential human security and livelihood. It covers not only accommodation, protection, and assistance for refugees through asylum, settlement, resettlement and reintegration, but also the prevention of displacement. Its approach is necessarily interdisciplinary and it respects diversity in perspectives. CRS faculty members have testified before various Parliamentary committees over the years and do so as members of the Centre; consistent with the nature of an academic centre however, such submissions (including this one) do not purport to represent the Centre as a whole, but rather offer an independent and personal viewpoint.

National Security and Terrorism

3. Although Bill C-11 includes a number of positive measures, including the proposal for consolidated protection decision making, the Bill maintains and further reinforces a number of very serious deficiencies in the current Immigration Act with respect to national security and terrorism. This brief is exclusively focused on these concerns.

The Context: The McDonald Commission

4. Historically national security has been an all-purpose justification for the assignment of guilt by association. During the inter-war period of the twentieth century, for example, deportation was used as a means of eliminating political dissent. Trade unionists, Communists and socialists were frequently accused of provoking social unrest, fomenting international revolution or inciting violence. In retrospect we can easily see the extent to which both racism and ideological prejudice were at the heart of some of the most shameful episodes in Canadian history.⁽¹⁾

5. In the wake of concerns about the conduct of the Security Service of the RCMP in the 1970s, the government established the Commission of Inquiry Concerning Certain Activities of the RCMP, commonly referred to by the name of its chair, Mr. Justice D.C. McDonald. In 1981 the McDonald Commission released its second report, "Freedom and Security Under the Law."⁽²⁾ The Commission found that the RCMP had subjected many groups, including the "new left", Québec separatists, unions, the Indian movement and others to surveillance, infiltration and "dirty tricks", solely on the grounds that they were exercising their freedom of expression through lawful advocacy, protest and dissent. A full chapter of the Commission's report addressed immigration security screening. The Commission found that the statutory security criteria set out in the Immigration Act were "too broad" and were inconsistent with the definition of "threats to the security of Canada" which the Commission proposed should inform all security related screening activities.⁽³⁾ The Commission observed that,

Canada must meet both the requirements of security and the requirements of democracy: we must never forget that the fundamental purpose of the former is to secure the latter...In taking the position that the requirements of security in Canada must be reconciled with the requirements of democracy, let us be clear that we regard responsible government, the rule of law and the right to dissent as among the essential requirements of our system of democracy.⁽⁴⁾

6. Although the Commission recommended including political violence and terrorism within the admissibility provisions of the Immigration Act, it underscored the importance of distinguishing between international groups secretly pursuing in Canada terrorist objectives against foreign governments, from representatives of foreign liberation or dissident groups who come to Canada to promote their cause openly.⁽⁵⁾ Based on the Commission's findings Parliament endorsed the establishment of a new security intelligence agency, outside of the RCMP with a mandate to investigate and advise but no prosecutorial or enforcement powers.
 

The Creation of CSIS and the Definition of "Threats to the Security of Canada"

7. In 1984 the Canadian Security Intelligence Service Act (CSIS Act) was adopted and the Service was created to, inter alia, provide government departments and agencies with security assessments on prospective immigrants. Section 2 of the CSIS Act defines "threats to the security of Canada" as being (a) espionage or sabotage; (b) foreign influenced activities within or in relation to Canada that are detrimental to its interests and are clandestine or deceptive and involve a threat to any person; (c) activities within or relating to Canada, directed toward or in support of the threat or use of serious violence against persons or property for the purpose of achieving a political objective within Canada or a foreign state; and, (d) activities directed against undermining by covert unlawful acts, or directed toward or intended ultimately to lead to the destruction or overthrow by violence of the constitutionally established system of government in Canada. The specific qualification that a threat to the security of Canada "does not include lawful advocacy, protest or dissent unless carried in conjunction with any of the activities referred to above,"⁽⁶⁾ is an important safeguard included at the end of section 2.
 

8. Parliament has failed to implement the McDonald Commission's proposals with regard to revising the Immigration Act. The result is that the definition used by CSIS officers to investigate and provide advice to Ministers with regard to security risks that may be posed by prospective immigrants continues to be inconsistent with the admissibility provisions of the Immigration Act and Bill C-11. Whereas the term "threat" in the CSIS Act is specifically defined in terms of enumerated activities rather than associations, the Immigration Act and now Bill C-11 maintains the terminology of "being a danger to the security of Canada" as a basis for inadmissibility [s. 34(1)(d)] and as a exception to the principle of non-refoulement [s.115(2)(b)], leaving the interpretation of its parameters to discretionary decisions by the Minister, with no reference to the CSIS Act or other criteria apart from the equally ambiguous concept of "national interest." The Security Intelligence Committee, the agency which the McDonald Commission suggested could serve as a critical mechanism of civilian oversight in matters of national security, has consistently proposed changes to the Immigration Act to eliminate these inconsistencies.⁽⁷⁾

^{Recommendation 1: All references to "danger to the security of Canada" in Bill C-11 should be amended to include the definitional standards and specific exemption in section 2 of the CSIS Act. Terminology which can be applied in a manner that directly encroaches on fundamental rights should be explicitly defined in legislation and subject to full Parliamentary scrutiny, not left to Regulations or policy guidelines.}

^{The Introduction of Anti-Terrorism Measures}

^{9. It was a security-conscious, "law and order" Conservative government that developed the "terrorism" clauses ultimately included in Bill C-86 in 1992. This was the same government that moved the entire Immigration bureaucracy to a newly created Department of Public Security. Bill C-86 introduced a new form of criminality into the Act, provisions to render refugees and immigrants "inadmissible" where there are reasonable grounds to believe they will "engage in terrorism"(8) or are "members of an organization that there are reasonable grounds to believe will...engage in terrorism". An additional subsection provided that persons are inadmissible if they have engaged in "terrorism", or are "members of an organization that was engaged in terrorism" unless they can satisfy the Minister that their admission would not be detrimental to the national interest. In effect, the provisions label a person as a terrorist by reference to his or her past or present membership in a terrorist group. The Act itself provides no further details as to what constitutes terrorism, a terrorist group, or the role a person must play within a group in order to fall within the relevant category. According to former Solicitor General Doug Lewis, these clauses were designed to ensure that Canada does not become a safe haven for retired or active terrorists.(9) However reasonable such an objective may be, neither the Hon. Mr. Lewis nor this government have demonstrated that the means chosen to achieve it are careful or proportional to the harm which might be prevented.}

^{10. Bill C-11 retains the references to terrorism and membership in terrorist organizations as a basis for inadmissibility [s. 34(1)(c) and (f)] - and for denying access to protection for refugee claimants [s. 101(1)]; for the possibility of immediate removal in the absence of a hearing [s. 44]; for mandatory detention, without a warrant, during the certificate process for all non-permanent residents, [ss. 82-83]; for denying all non-citizens direct access to the Security Intelligence Review Committee (afforded to permanent residents under the current Act); and for offering, instead, only minimal review by a single judge of the Federal Court with no possibility of appeal [ss. 64(1) and 76-81]; for justifying removal of protected persons (including Convention refugees) and other non-citizens, even in circumstances where they would be in danger of torture in the absence of an oral hearing before an independent decision maker [ss. 112, 115].}

^{Terrorism and Canada's International Obligations}

^{11. The absence of legislative definition in Bill C-11 for the terms "terrorism", "membership in a terrorist organization" and "security of Canada", leaves refugees and immigrants impermissibly susceptible to unprincipled, arbitrary and even unconstitutional decision making with wholly inadequate opportunities for meaningful review or recourse.}

^{12. Although there has been substantial consensus on the need for a coordinated effort to combat international and transnational crimes, the international community has consistently rejected a generalized definition of terrorism on the basis that the term is ambiguous and subject to political manipulation. One scholar notes that the term has been used as a synonym for "rebellion, street battles, civil strife, insurrection, rural guerrilla war, coups d'état and a dozen other things," with the result that it has "become almost meaningless, covering almost any and not necessarily political, act of violence."(10) Higgins, a member of the International Court of Justice, has observed that "terrorism is a term without legal significance."(11)}

^{13. A further difficulty exists with regard to how to characterize the activities of national liberation movements - which once certain conditions are met, may have a legitimate right to resort to force against an oppressive government.(12) While the yardstick for determining the scope of application of legitimate resistance remains somewhat imprecise, International Humanitarian Law (IHL) represents an accepted codification of when the use of force by individuals is permitted. Canada has directly incorporated this body of law into the Geneva Conventions Act and the government has been an advocate of the principles of equality rights and self-determination at the United Nations.(13) International legal scholars have suggested that resistance would appear to be legitimate when the following conditions exist:}

^{i) a State policy of serious and systemic violations of fundamental human rights toward the entire population or towards significant parts of it (for example, ethnic or religious minorities);
ii) institutionalized and effective forms of legal redress are not available;
iii) the act of resistance was directed at the perpetrators of violations; and
iv) the act was aimed at preventing a specific violation or stopping a regime which does not respect human rights.(14)}

^{14. To ensure that Bill C-11 accords the same treatment to both state and non-state actors in the context of self-determination wars, security designations should be explicitly guided by IHL. While the government seeks to promote international cooperation in the eradication of violence, it is imperative that comity does not become an all-purpose justification for riding roughshod over individual rights and undermining legitimate resistance or political dissent, at home and abroad. Indeed, Canada is on record stating that the fight against terrorism must be consistent with the broader commitments to human rights and the rule of law. The institutions entrusted to fight terrorism would attract public support by respecting those principles.(15)}

^{Recommendation 2: Section 3(1)(i) of Bill C-11 should be amended to identify as an objective, "promoting international justice and security in accordance with the international legal standards and the Geneva Conventions Act." Such an amendment will ensure that security designations are made with the explicit direction that people who have been involved in a legitimate conflict should not be deemed inadmissible on security grounds for the mere fact of having supported or been engaged in an internal conflict as a non-state actor.}

^{15. While the United Nations has unequivocally condemned "all acts, methods and practices of terrorism",(16) it has attempted to address the complexities of political violence by eschewing umbrella definitions of terrorism in favour of proscribing specific and defined criminal misconduct. To date, the United Nations has developed eleven separate agreements prohibiting, among other things, aircraft hijacking, aircraft sabotage, attacks against ships and fixed platforms in the ocean, attacks at airports, violence against officials and diplomats, hostage-taking, the use of unmarked plastic explosives, terrorist bombings, and most recently, the financing of terrorist offences. Regional bodies have adopted similar agreements. The essential goal of these treaties is to elevate the specified offences to the status of "international crimes," ensuring prosecution of the accused by imposing upon signatory states the alternative obligation to extradite or submit the accused for prosecution to the appropriate national authority.}

^{16. The new International Criminal Court (ICC), a separate but complementary initiative, will have jurisdiction over international crimes including genocide, crimes against humanity, war crimes and aggression - whether committed by states or insurgent groups. However, the Rome Statute does not identify "terrorism" among the distinct categories of crimes within the Court's jurisdiction.(17) With the exception of the crime of aggression, which currently remains undefined pending adoption of an agreed definition, the treaty defines each of the crimes with specific reference to illegal acts.(18) It deserves mention that the Rome Statute includes detailed provisions with regard to individual and "superior" criminal responsibility. In this regard, mere membership in an organization, in the absence of a nexus to the commission of an offence, or in the case of superior officers, in the absence of personal command responsibility for their subordinates who committed an offence, is not a crime under the Rome Statute.(19)}

^{17. The prevailing international legal characterization of terrorism avoids politicization by closely conforming to accepted principles of criminal justice. One of the essential elements of criminal law is the requirement of mens rea. Individuals will be found complicit in the commission of an offence only when they knew or ought to have known that their activities were supporting the crime. International law also recognizes the inappropriateness of a standard of liability that imports a notion of "guilt by association." To the extent that the international treaties allow for the possibility of an individual being designated as a "terrorist", they do so only with regard to persons who have intentionally perpetrated or been complicit in a specified act of violence.}

^{18. Consistent with the international community's functional approach of criminalizing specific acts, Canada's Criminal Code identifies discrete offences involving aircraft, international maritime navigation, internationally protected persons, nuclear material and hostage taking as well as war crimes and crimes against humanity, all of which may be subject to Canadian prosecution, regardless of where the offence was committed.(20)}

^{19. The Criminal Code also addresses conspiracy, common intention and aiding or abetting of unlawful acts, clearly extending its reach to people who contribute material support to the commission of illegal acts. It should be noted that the new treaty on the financing of terrorism criminalizes "terrorist" fundraising only to the extent that funds are collected "wilfully … with the intention that they should be used or in the knowledge that they are to be used, in full or in part, in order to carry out…" the specified offences or acts.(21) Additional provisions indicate that it is also an offence to participate as an accomplice, organize or direct others to commit an offence, or intentionally "contribute to the commission of an offence by a group of persons acting with a common purpose.(22) The treaty is a clear affirmation that those who financially contribute to violent acts are to be considered just as culpable as those who detonate the bombs. At the same time, mere membership in an organization, in the absence of other evidence demonstrating intentional and personal involvement, would not meet the test for prosecution or extradition under the terms of the treaty.}

^{20. We might recall that membership in an organization has not been a crime in Canada since the imposition of the War Measures Act against the Front de libération du Québec during the October crisis thirty years ago.(23) Only a minority of countries have enacted legislation making it a crime for citizens and non-citizens alike to belong to a "terrorist" organization, to provide support or recruit for a "terrorist" organization. As enacted, America's Anti-terrorism and Effective Death Penalty Act of 1996 (AEDPA) specifically prohibited terrorist fundraising, established a process for designation of foreign terrorist organizations, and made it an offense, as defined by statute, to provide material support to terrorists. Even with that degree of specificity, elements of the AEDPA have been invalidated as constitutionally vague.(24)}

^{21. The fact that section 34 of Bill C-11 permits an adverse finding against an individual based on one's membership in a group is inconsistent with international standards and widely accepted principles of criminal law. The inclusion of an undifferentiated notion of membership, and the broad discretion built into Bill C-11 leave unacceptably wide scope for xenophobic prejudices and a patchwork of specific biases to inform both administrative and judicial decision making. It also renders certain groups susceptible to decision making based on popular and pervasive stereotypes that they are likely to be terrorists. The Canadian Council for Refugees has documented the extent to which certain groups of non-citizens, particularly racialized persons from poor and conflict ridden societies, have been subject to differential security treatment under the terrorism provisions of the current Act. Those who have been found inadmissible, or have been kept waiting without a decision being made on terrorism-related grounds include significant numbers of Iranians with some association with the Mujahedin-E-Khalq movement, Kurdish people, Sri Lankan Tamils, Sikhs, Algerians and Palestinians.(25) Even Judges of the Federal Court have acknowledged that terrorism is "not capable of a legal definition that would be neutral and non-discriminatory in its application." (26)}

^{22. Application of the terminology terrorism and membership in a terrorist organization in section 34 will result in people being caught up in a security net even if their association with the organization did not coincide with the period of violent action of the organization. Refugee claimants and Convention refugees have often sought the protection of Canada because their actual or perceived support for a particular cause or group has put them in danger. In Canada, these same individuals will remain in constant fear that their support for such groups and causes may lead to expulsion from the country. Participation in civic life and opportunities to freely express one's beliefs can be an integral means of facilitating the adaptation and integration of newcomers in Canadian society. Bill C-11 (and the current Act) creates a "chilling effect" across newcomer communities in Canada and forces non-citizens to choose between exercising their associational and expressive rights at great risk or renouncing them altogether.(27)}

^{24. The cliché, all too frequently endorsed by current decision makers that "one knows a terrorist act when one sees one" is symptomatic of the lack of rigour and principle that administrative and judicial attempts to apply "terrorism" necessarily engender. Even if it were possible for Parliament to develop a more even-handed definition of the term, one that would provide meaningful and non-discriminatory guidance for decision makers, there is no need for it. The other admissibility provisions already included in sections 34 - 36 of the Bill are fully adequate to address genuine security concerns by including within their ambit persons who have committed unlawful acts in the past, those who are considered likely to engage in acts of violence or unlawful activities in the future; as well as more generally, persons who constitute a "danger to the security" of Canada. A focus on acts and offences, rather than support for causes, is consistent with international treaty obligations and should go some way to ensuring that political activists are not caught in the net. Further, the Minister has authority pursuant to other provisions of Bill C-11 as well as the Citizenship Act to initiate revocation proceedings if information surfaces later to suggest that residence or citizenship status was conferred improperly.}

^{Recommendation 3: The relatively recent amendments to the Immigration Act concerning "terrorists" and "members of terrorist organizations" should be removed from Bill C-11. The norms developed in international law and domestic criminal law concerning membership, complicity, and conspiracy should be incorporated as clear definitional standards in sections 34 - 36 and should inform all security related decisions.}

^{Exceptions to the Principle of Non-Refoulement}

^{25. The United Nations Human Rights Committee has expressed concern that "Canada takes the position that compelling security interests may be invoked to justify the removal of aliens to countries where they may face a substantial risk of torture or cruel, inhuman or degrading treatment."(28) In November 2000, the Committee against Torture expressed a similar concern and recommended that Canada "comply fully with article 3(1) of the Convention prohibiting return of a person to another state where there are substantial grounds for believing that the individual would be subjected to torture, whether or not the individual is a serious criminal or security risk."(29) In its more wide-ranging study also released last year, the Inter-American Commission on Human Rights commented that "[t]he fact that a person is suspected of or deemed to have some relation to terrorism does not modify the obligation of the State to refrain from return where substantial grounds of a real risk of inhuman treatment are at issue."(30) The Commission gave particular attention to the procedural inadequacies inherent in the immigration security scheme.}

^{26. In a case currently pending before the Supreme of Canada, the government of Canada has adopted the position that undifferentiated security concerns are an "exceptional circumstance" sufficient to justify derogation from the absolute prohibition on refoulement contained in the Convention against Torture.(31) This position is in flagrant violation of existing international jurisprudence, the UN Human Rights Committee's own guidelines as well as those of the UNHCR.(32) It is also out of step with prevailing international standards and practice in extradition, which recognize an express limitation on the duty to extradite where the accused will face serious human rights violations or otherwise discriminatory applications of the criminal law authority.(33) Section 115 (2)(b) of Bill C-11 maintains this wholly unsupportable view in permitting the refoulement of protected persons to torture and other forms of persecution on security grounds.}

^{Recommendation 4: Bill C-11 should be amended to fully incorporate the absolute prohibition on refoulement where there is a danger of torture. No foreign national, regardless whether or not protected status has been conferred, should be subject to deportation in circumstances where he or she is at risk of torture.}

^{27. Furthermore, Bill C-11 is silent with regard to the nature of the procedures by which the Minister will reach a "danger opinion" pursuant to s. 115. These will be set out in Regulations. The ad hoc process invoked under section 53 of the current Act (which uses largely similar language as s. 115) does not accord with the most basic procedural protections, let alone the requirements of fundamental justice under the Canadian Charter of Rights and Freedoms. Under the current Act, there is no requirement for the Minister to provide reasons for her decision that a refugee is a "danger to the security of Canada." Nor does it require the Minister to provide the individual with the details of the case to meet or an opportunity to reply to submissions made to the Minister by her representatives. The current Act and Regulations fail to contemplate a hearing of any kind and necessarily preclude any meaningful review or recourse from an unprincipled or arbitrary exercise of discretion which resulted in an opinion that a refugee or other protected person is a "danger to the security of Canada" and should be removed.}

^{Recommendation 5: Bill C-11 should be amended to recognize that the nature of any decision under section 115 and its potential consequences on an person's fundamental right to life, liberty and security of the person require the highest level of procedural protection. Section 115 should explicitly mandate a procedure before an independent and impartial decision-maker to ensure that Ministerial decisions are correct and that a reviewing court has the means by which to scrutinize the process that led to the decision.}
 

^{28. It deserves mention that under the current Act prior to the ministerial opinion stage, permanent residents at least have the protection of automatic access to SIRC for a thorough review of the basis for issuing a security opinion in the first place. Under the provisions of Bill C-11, that safeguard has been eliminated and the Federal Court will be the only forum for reviewing the reasonableness - but not the merits of security opinions. While anyone retains the right to complain to SIRC with regard to CSIS conduct or advice, such complaints do not act to stay a person's removal while an investigation is pending nor are the recommendations of SIRC binding on the Minister. The recent case of a Kurdish refugee from Turkey who initiated a complaint with SIRC is illustrative. After a hearing and independent investigation, SIRC found that the individual had been improperly identified as a member of a terrorist group and recommended that he be processed for landing.(34) Almost a full year later CIC rejected the refugee's application for permanent residence and in the letter setting out the reasons for the decision, failed to make any reference to the findings of the SIRC report.}

^{Recommendation 6: Bill C-11 should be amended to afford automatic review of ministerial security opinions by SIRC, on terms similar to those set out in section 39 of the current Act but for all "foreign nationals."(35) In the event the government is not willing to adopt this approach, the jurisdiction of SIRC with respect to permanent residents should be restored.}

^Conclusion

^{All of the recommendations contained in this brief necessarily require a significant rethinking of the assumptions upon which law and policy in the area of immigration and national security are currently based. I believe such a reformulation is absolutely essential in order to ensure that fundamental human rights are not sacrificed on the altar of counter-terrorism. While the numbers of affected individuals are relatively small, the gravity of the issues at stake signal an urgent need for law reform. In this regard the McDonald Commission's warning that the requirements of security must be reconciled with the requirements of democracy is apposite. Or as Keely and Russell suggest,}

^{Have not horrors enough been perpetrated in the name of national security, and in the very countries from which the asylees come to North America these days? Are the persecutors going to win by making us like them?(36)}

Recommendation 1: All references to "danger to the security of Canada" in Bill C-11 should be amended to include the definitional standards and specific exemption in section 2 of the CSIS Act. Terminology which can be applied in a manner that directly encroaches on fundamental rights should be explicitly defined in legislation and subject to full Parliamentary scrutiny, not left to Regulations or policy guidelines.

Recommendation 2: Section 3(1)(i) of Bill C-11 should be amended to identify as an objective, "promoting international justice and security in accordance with the international legal standards and the Geneva Conventions Act." Such an amendment will ensure that security designations are made with the explicit direction that people who have been involved in a legitimate conflict should not be deemed inadmissible on security grounds for the mere fact of having supported or engaged in an internal conflict as a non-state actor.

Recommendation 3: The relatively recent amendments to the Immigration Act concerning "terrorists" and "members of terrorist organizations" should be removed from Bill C-11. The norms developed in international law and domestic criminal law concerning membership, complicity, and conspiracy should be incorporated as clear definitional standards in sections 34 – 36 and should inform all security - related decisions.

Recommendation 4: Bill C-11 should be amended to fully incorporate the absolute prohibition on refoulement where there is a danger of torture. No foreign national, regardless of whether or not protected status has been conferred, should be subject to deportation in circumstances where he or she is at risk of torture.

Recommendation 5: Bill C-11 should be amended to recognize that the nature of any decision under section 115 and its potential consequences on an person’s fundamental right to life, liberty and security of the person require the highest level of procedural protection. Section 115 should explicitly mandate a procedure before an independent and impartial decision-maker to ensure that Ministerial decisions are correct and that a reviewing court has the means by which to scrutinize the process that led to the decision.

Recommendation 6: Bill C-11 should be amended to afford automatic review of ministerial security opinions by SIRC, on terms similar to those set out in section 39 of the current Act but for all foreign nationals. In the event the government is not willing to adopt this approach, the jurisdiction of SIRC with respect to permanent residents should be restored.

^{1. N. Kelly and M. Trebilcock, The Making of the Mosaic: The History of Canadian Immigration Policy (Toronto: University of Toronto Press, 1998) at 107-110, 132-163, 234-247, 260-262 and 274-310. See also, R. Whitaker, Double Standard, The Secret History of Canadian Immigration (Toronto, 1987) at 103 and D.H. Avery, Reluctant Host: Canada's Response to Immigrant Workers, 1896-1994 (Toronto, 1995) at 126-143.}

^{2. Commission of Inquiry Concerning Certain Activities of the Royal Canadian Mounted Police, Freedom and Security Under the Law, Second Report-Vol, 2 (Ottawa: Minister of Supply and Services Canada, 1981)}

^{3. Ibid., at 823.}

^{4. Ibid., Vol. 1, at 43-44}

^{5. Ibid., at 436.}

^{6. CSIS Act, R.S. 1985, c. C-23, as am. by R.S., 1985 c.1 (4th Supp.). s. 2 (a), (b), (c), (d).}

^{7. See, e.g., the Security Intelligence Review Committee, Annual Report 1997-1998, Section 1 at 10 <www.sirc-csars.gc.ca/ar9798_e.html>. The same recommendations have been made by the Kelly Committee: Report of the Special Senate Committee on Security and Intelligence, Jan. 1999, ch. 2 at 11; and the Legislative Review Advisory Group: Not Just Numbers, A Canadian Framework for Future Immigration, 1997, Recommendation 138.}

^{8. Ibid., s. 19(1)(e)(iii).}

^{9. Hon. D. Lewis, Solicitor General, House of Commons Debates, 132:163 at 12533, 22 June 1992.}

^{10. W. Lacqueur, ed., The Terrorism Reader (1979) at 262.}

^{11. R. Higgins, "The General International Law of Terrorism" in R. Higgins and M. Flory, eds., Terrorism and International Law (London: Routledge, 1997) at 28.}

^{12. See, W. Kälin and J. Künzli, "Article 1 F(b): Freedom Fighters, Terrorists and the Notion of Serious Non-Political Crimes" (2000) 12 IJRL Special Supplementary Issue on Exclusion 46; and S. Aiken, "Manufacturing Terrorists: Refugees, National Security and Canadian Law" (2000) 19:3 Refuge 54.}

^{13. Geneva Conventions Act, R.S.C. c. G-3, as am. S.C. 1990, c.14; Statement of the Canadian Delegation to the UN Commission on Human Rights, 21 Oct. -1 Nov. 1996.}

^{14.Kälin and Künzli, supra note 12 at 53.}

^{15. See R. Fowler in the Security Council, 19 Oct. 1999, Press Release SC/6741.}

^{16. U.N.G.A. Res. 53/108, 26 Jan. 1999 at para. 1.}

^{17. A draft text proposing that inclusion of "Crimes of Terrorism" within the parameters of the Court's jurisdiction was not adopted.}

^{18. One hundred and twenty states voted in favour of the establishment of the ICC and to date 22 of the 60 states required for the Statute to enter into force have ratified it. Canada signed the Rome Statute in December 1998 and ratified it on 7 July 2000. See <www.un.org/law/icc/statute/status/htm>. The Rome Statute is the most current codification of a universal approach to combating serious international crimes. See <www.un.org/law/icc/statute/romefra.htm>.}

^{19. See Rome Statute, art. 25(3) "Individual criminal responsibility", art. 28 "Responsibility of commanders and other superiors" and art. 30 "Mental element"; See also Report of Preparatory Commission for the ICC, Finalized Draft Text of the Elements of Crimes, PCNICC/2000/INF13/Add.2,<www.un.org/law/icc/statute/elements/english/add2e_w.doc>; and the decision of the International Criminal Tribunal for the Former Yugoslavia in Prosecutor v. Tadic, which gave extensive consideration to the question of criminal responsibility, Opinion and Judgment. Case No. IT-94-1-T, 7 May 1997, paras.688-692.}

^{20. Criminal Code, ss. 76, 77, 78, 78.1. Until last year, s. 7 of the Criminal Code stipulated that in cases where the alleged acts were committed outside Canada, prosecutors had to prove an offence under international law as well as an equivalent offence in the Code. This was one of the reasons why prosecution of World War II war criminals has been difficult, particularly after the Supreme Court's ruling in R. v. Finta [1994] 1 S.C.R. 701.}

^{21. Convention for the Suppression of the Financing of Terrorism, 9 Dec. 1999, GA. Res. 54/109, art. 2.1; signed by Canada February 10,2000.}

^{22. Ibid., art. 2.5.}

^{23. In response to what many scholars have described as a "very modest terrorist threat", the Canadian government proclaimed the War Measures Act which gave the police sweeping powers to arrest and detain anyone suspected of association with the "FLQ". The use of these powers was widely criticized at that time and "has come to be regarded as a heavy-handed overreaction." W. M. Vaughn, "Canadian Reason of State: Terrorism, Emergency Powers, and Civil Liberties" in D.A.Charters ed., Democratic Responses to International Terrorism (New York: Transnational Publishers, 1991) at 165.}

^{24. Humanitarian Law Project v. Reno, 205 F. 3d 1130 (9th Cir. 2000).}

^{25. Canadian Council for Refugees, Refugees and Security, 25 March 2001.}

^{26. Re Ahani, 42 Imm.L.R. (2d) 219 at 226 (F.C.T.D.), Denault J.}

^{27. Ibid.}

^{28. UN Human Rights Committee, Concluding Observations on Canada, UN Doc. CCPR/C/79 Add. 105, 7 April 1999.}

^{29. UN Committee against Torture, Concluding Observations on Canada, UN Doc. CAT/C/XXV?Concl. 4 22 Nov. 2000.}

^{30. The Inter-American Commission on Human Rights found that Canadian procedures did not ensure full compliance with the government's obligations to prevent and protect against torture. The Commission commented further that "[t]he fact that a person is suspected of or deemed to have some relation to terrorism does not modify the obligation of the State to refrain from return where substantial grounds of a real risk of inhuman treatment are at issue." Inter-American Commission on Human Rights, Report on the Situation of Human Rights of Asylum Seekers within the Canadian Refugee Determination System, OEA/Ser.L./V/II.106/Doc.40 rev. (2000) at para.154.}

^{31. Suresh v. Canada (Minister of Citizenship and Immigration), [2001] S.C.C. File No. 27790, Respondent's Factum, para. 36.}

^{32. In the case of Paez v. Sweden the U.N. Committee Against Torture directly addressed the scope and nature of article 3 of the CAT and its relationship with the Refugee Convention. This case involved Sweden's proposal to deport a failed refugee claimant who was a member of the Shining Path and had admitted to handing out home-made bombs which were used against police. The Committee rejected Sweden's contention that the "terrorist character" of the Shining Path could justify the deportation, noting that "the nature of the activities in which the person concerned engaged cannot be a material consideration when making a determination under article 3 of the Convention." Committee Against Torture, Communication No.39/1996, U.N. Doc.A/52/44 (1997) at 94. See also Khan v. Canada, Committee Against Torture, Communication No. 15/1994, U.N. Doc. A/50/44 (1995) at 46; International Covenant on Civil and Political Rights, art. 7; the U.N. Human Rights Committee General Comment 20 (article 7) UN Doc. CCPR/C/21/Add.3: "State parties must not expose individuals to the danger of torture or cruel, inhuman or degrading treatment or punishment upon return to another country by way of their extradition, expulsion or refoulement"(at para. 9); and EXCOM Conclusions No. 6 (XXVIII) on Non-Refoulement and No. 7 (XXVIII) on Expulsion (1977); EXCOM Conclusion No. 79 (XLVII) General Conclusion on International Protection (1996), para.(j).The European Court of Human Rights has developed a similar protection against non-refoulement. See, e.g. Chahal v. U.K. (1996), Reports of Judgments and Decisions, 1996-V, paras. 72-82; 23 EHRR, 1997, at 413.}

^{33. See, e.g., United States v. Burns and Rafay [2001] S.C.C. 7.}

^{34.  In the Matter of the Complaint under the Canadian Security Intelligence Service Act by Suleyman Goven, File no. 1500-83, 7 April, 2000.}

^{35. I am not endorsing the unfortunate use of the term "foreign national", adopted in the Bill to describe non-citizens.}

^{36. C.B. Keely and S.S. Russell, "Asylum Policies in Developed Countries: National Security Concerns and Regional Interests" in A. Simmons, ed., International Migration, Refugee Flows and Human Rights in North America: The Impact of Free Trade and Restructuring (New York: Centre for Migration Studies, 1992) 229 at 241.}