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The Hon. Joan  Fraser, B.A. Senator Joan Fraser is well-known to Canadians as a journalist and commentator. Appointed to the Senate on September 17, 1998, by the Rt. Honourable Jean Chrétien, Senator Joan Fraser represents the province of Quebec and the Senatorial Division of De Lorimier.

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Third Reading of the Combating Terrorism Act

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Statement made on 31 May 2012 by Senator Roméo Dallaire

Hon. Roméo Antonius Dallaire:

Honourable senators, I would like to give you my comments about Bill S-7. More specifically, I would like to draw your attention to certain points, since you will be voting on this bill, which I support as amended.

I believe that it is essential to draw your attention to certain aspects that, I hope, will be examined by our colleagues in the other place. Perhaps they will propose other amendments to the bill based on these observations.

Bill S-7, An Act to amend the Criminal Code, the Canada Evidence Act and the Security of Information Act, more commonly known as the Combating Terrorism Act, has been the subject of debate and thorough examination by the Special Senate Committee on Anti-terrorism since March.

As Senator Frum explained, we heard from a number of witnesses who convinced us to approve each clause of this bill unanimously.

I would like to add, as I said yesterday, that we are still unable to properly review this bill in terms of security because we do not have access to documents, information or secret or classified briefings. Not having access to that classified material limits our ability to assess where this fits in our overall security envelope.

More and more, it is becoming evident that in this time of complex security scenarios, parliamentary access to classified material is essential in order for us to examine some of these very demanding and complex — even ambiguous at times — bills for our security.

The United States, Great Britain and Australia — two of which have Westminster-style parliaments like ours — already have measures in place to give their legislators access to such material, as well as the ability to make more informed decisions about national security and to take a logical approach to these different bills. We must follow their example and begin a process whereby we too can implement such measures so that parliamentarians will have the right to oversee the operation of the institutions responsible for our national and international security.

In addition, parliamentarians' access to information, one of the aspects of Bill S-7 that I found very worrisome, is also a subject that I am passionate about. I would like to focus on a point that Senator Frum has already discussed — the impact that this bill will have on youth, that is, people under 18 years of age.

Honourable senators, children do not start wars and young people do not send others into battle. Armed conflicts are incited by adults. For these reasons, adults have a responsibility to protect children and to prevent them from being used as instruments in any conflicts, including acts of terrorism. We must ask ourselves whether Bill S-7 makes it possible for us to carry out this very specific responsibility.

The new offences introduced by this legislative measure, such as the offence of leaving or attempting to leave Canada to commit an act of terrorism, are a means to prevent Canadians, particularly youth, from engaging in this type of conflict. However, the fight against terrorism and the prevention of attacks requires us to consider the causes of such threats. To fight terrorism, we must deal with its deep-seated causes such as exclusion and radicalization, especially of youth, and the manifestation of the rage burning in their souls, their hearts and their emotions.

In reviewing Bill S-7, our objective as legislators is to prevent other young people from getting deeply involved in terrorism. If we fail, we must at least ensure that these young people will have fair and equitable trials and that they will not be dealt with as adults.

That is why, honourable senators, I will spend some time discussing two factors that should prevent other young people from following the path of the Toronto 18: prevention and prosecution.

Honourable senators, the best way to deter a terrorist attack from happening in Canada, and notably committed by a Canadian, is to implement a robust prevention strategy. Criminalization, such as the Criminal Code amendments brought in by Bill S-7, is but one piece of what needs to be a much broader strategy to fight against terrorism, i.e., a national strategy within the global environment.

This past winter, the government published its first counterterrorism strategy entitled Building Resilience Against Terrorism. This is a positive start. We note that Canada is a proudly multicultural nation and that historically we have welcomed those oppressed or persecuted in other nations and given them fertile ground on which to flourish. This is not a given, however. Programs, practices and support networks are essential to ensuring that refugee and immigration populations feel included in the fabric of Canada.

What I have tried to raise in the process of considering Bill S-7 is that we need to recognize that refugees in Canada are often the result of armed conflict and political instability. Dr. Shelly Whitman, director of the Child Soldier Initiative at Dalhousie University, said in her testimony before the committee:

. . . failure to address the inadequacies of our social integration for refugees has the ability to manifest itself into a problem that can result in the recruitment and use of our Canadian-born youth into armed groups and terrorist activity abroad.

We have seen evidence of this recruitment, particularly with al-Shabab in Somalia, the arrest of Mohamed Hersi in 2011, whose case has yet to come to trial, and others. In our prevention efforts, it is crucial to be aware of the fact that, for example, over 80 per cent of the Somali-Canadian community — one of Canada's largest African minority groups — is under 30 years of age. The best way to curb any potential interest or engagement in al-Shabab, or other such groups, is to fight marginalization and create a positive identity through inclusion and opportunity.

There are a few programs in place, such as the Cross-cultural Roundtable on Security and the RCMP's National Security Community Outreach. These are positive efforts that need to grow and continue, and not be curtailed or be under threat of being curtailed.

We also heard in testimony that it is crucial that Canada's police services get training in dealing with youth, particularly engaging with radicalized youth who can find their place in the diaspora within this country. If we are unable to reach marginalized youth who eventually find themselves and can find themselves in the hands of al-Shabab, then we need, secondly, to talk about prosecution.

Honourable senators, we also heard in testimony that the line between a youth engaged in terrorism activities and a youth engaged in child soldiering is blurry. A growing body of law exists to dictate the use, recruitment and activities of child soldiers in armed conflict. This includes the Convention on the Rights of the Child, the Optional Protocol on Children in Armed Conflict, the Paris Principles, the International Labour Convention Number 182, UN Security Council resolutions and precedents set by the Special Court for Sierra Leone, let alone the International Criminal Court in its recent findings.

International law is clear that a child soldier is not simply a 12-year-old with an AK-47. It includes all those under 18 who are:

. . . forcibly or voluntarily recruited or used in hostilities by any kind of armed forces or groups in any capacity, including but not limited to soldiers, cooks, porters, messengers and those accompanying such groups. It includes girls recruited for sexual purposes and forced marriage. It does not, therefore, refer exclusively to a child who is carrying or has carried arms or weapons.

Key developments in international law now recognize the recruitment and use of children as a grave violation of international law and a prohibited category of crime against children and, in fact, crimes against humanity. However, a "child terrorist" is not defined with the same degree of clarity as a "child soldier." The Criminal Code of Canada defines "terrorist group" and "terrorist activity," but not a "terrorist" or, for that matter, a "child terrorist." Age-specific protection for those engaged in the activities outlined in section 83.01(a) simply does not exist. Further still, terrorism offences in the Criminal Code do not apply to acts committed during an armed conflict.

Youth offenders under the Combating Terrorism Act are, therefore, nowhere explicitly defined. The Department of Justice has explained, as is stated in the committee's report, that Bill S-7 would be a law of general application to persons of all ages and that the Youth Criminal Justice Act has exclusive jurisdiction over young persons in contact with the law.

When concerns were raised, however, about the particular and separate treatment youth should be afforded throughout the legal process, we were told that, in addition to the Youth Criminal Justice Act, the common law would apply. The courts rely upon the common-law presumption that any legislation adopted in Canada is consistent with its international legal obligations, both customary and conventional, such as the instruments I have cited above.

Honourable senators, I am not particularly of a legal mind. A military mind has a certain discipline, but is not as in-depth as a legal one. I understand that for those of you who have been trained to see the world in this way that the necessary tools may be in place to ensure that potential youth offenders will be treated properly.

I have succinctly read the Youth Criminal Justice Act and I believe in the laws of our land, of course. I also know, however, that I have dedicated not only my own efforts in eradicating the use of child soldiers, but I have become significantly familiar with the instruments applicable in that field.

For the public record, and future reference, I would like to cite article 7 of the statute of the Special Court for Sierra Leone, which puts together in one sentence stipulations that I believe are essential in any trial of a young person for terrorism offences. We are trying to define what is not defined. It states:

Should any person who was at the time of the alleged commission of the crime below 18 years of age come before the court, he or she shall be treated with dignity and a sense of worth, taking into account his or her young age and the desirability of promoting his or her rehabilitation, reintegration into and assumption of a constructive role in society, and in accordance with international human rights standards, in particular the rights of the child.

Canada, as a member of the United Nations Security Council, helped draft this statute tabled in August 2000. Since its inception, Canada has also been one of the major donors funding the Special Court for Sierra Leone which dealt with essentially with child soldiers on all sides. The lead judge, and only non-African, was an admirable Canadian, Brigadier-General (Retired) Justice Pierre Boutet, who was once the Judge Advocate General of the Canadian Forces and who spent six and a half years in that court.

Article 7 broadly reflects the stipulations of the declaration of principle of the Youth Criminal Justice Act, including section 3.1(a)(2) that states that the YCJA is intended to:

. . . rehabilitate young persons who commit offences and reintegrate them into society . . .

This is good and strong and is to be liberally construed, but I believe that article 7 of the Sierra Leone statute pushes our obligations to youth rehabilitation and reintegration explicitly further. If accomplished, if the mandate of encouraging the "assumption of a constructive role in society" is fulfilled, this will be a significant step in ensuring the safety of Canada and the world from terrorism, and the abuse and use of children.

Finally, I remind honourable senators that the Anti-terrorism Committee has encouraged the Department of Justice to conduct a child rights impact assessment on this legislation and I bring to your attention the observations. I note that, as is outlined in the 2007 report of the Standing Senate Committee on Human Rights entitled Children: The Silent Citizens, such assessments should be conducted prior to bills becoming law to determine the potential effects that any proposed legislation could have on children. I would argue, and have argued, that the impact of being labelled a terrorist at a young and developing age could be devastating and, in fact, misconstrued in the face of the law and the legislation we are presented with.

Further, in accordance with both Children: The Silent Citizens and our expert witness testimony, there is often a difference between cup and lip with respect to the way in which legislation is anticipated in its operation and the way it in fact actually ends up operating for a variety of reasons. That is why child impact assessments are meant to be a continuous process. The predicted impact is first assessed, and later on an evaluation of the actual impact of implementation is conducted. This evaluation of legislation in practice would be open to seeking community and civil society feedback, which is critical to conducting a complete analysis.

Child impact assessments should be normal practice in Parliament. I am therefore glad that the Anti-terrorism Committee's report endorses such an analysis to be conduct by the Department of Justice — a very progressive move in my opinion.

The report's observations also state:

. . . in accordance with the views of certain witnesses, the committee endorses a detailed analysis of the bill's provisions by the Department of Justice to ensure that they are interpreted in accordance with YCJA principles as well as Canada's international obligations regarding the rights of young persons.

I believe it is essential that this assessment be completed and made available before the sunset provisions of this legislation are considered in this chamber again.

I conclude, honourable senators, by reminding you as we move to enact — and I support the enactment of an amended Bill S-7 — that child soldiers and, by extension, child terrorists are to be considered primarily as the victims of those who recruited them, the adults. They do not have the same mental or physical culpability as those adults. We must do everything in our power to make every young Canadian feel a part of the fabric of this nation and its future.

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