25 February 2015
Hon. Grant Mitchell: Honourable senators, I'll return to my calm self now to talk about a more serious issue: terrorism, the export of homegrown terrorism and the consequences of terrorism within our own boundaries. Bill C-44 addresses that issue in part, which leads me to the first broad point that I would like to make: to put this bill and the nature of this bill in context.
It is very important for all of us to realize that, while there may be some room for more powers, it is not immediately obvious that that is the case. In fact, the Minister of Defence was very clear on October 29, just after the attack on Parliament Hill, about the nature of the existing laws. He said:
There are already some very robust measures that we can use — 83.3 and 8-10 do allow for the type of preventative interventions, if I can use that word for — for the police.
It is not immediately obvious that it is all about laws. In fact, we're in the midst of a study, in the Senate Defence Committee, on radicalization and terrorism. I think a point may have been made by Senator White in one of his questions, if not by one of the witnesses, that you can't arrest your way out of this problem, that it takes more than simply laws to solve the problem of radicalization, homegrown terrorism.
In fact, one could argue that once you get to the stage of having to apply laws, it could well be way too far down the process and it could be too late, the damage already having been done.
What we are finding, which is quite well known and has even been acknowledged by the Minister of Public Safety, is that a "multifaceted approach" is required. That was a word used by one of our witnesses on Monday in our committee. Laws and powers are one feature of that and, in fact, may not be the most important.
I would like to quote the Minister of Public Safety in his speech to the House of Commons on Bill C-44 at second reading.
Our approach, "Responding to Violent Extremism", is outlined in a document entitled 2014 Public Report On The Terrorist Threat To Canada. It is based on three interrelated strategies: building community capacity, which equates to prevention; building law enforcement capacity, which this bill will do by clarifying the powers of the Canadian Security Intelligence Service; and developing programs to stop radicalization resulting in violence through proactive early intervention. We must remember that preventing terrorism is our national security priority.
The question that even his statement begs is: It isn't simply that we need to have laws; we need to have a variety of other approaches.
A point was made by witnesses from the Kanishka Project, which to the government's credit was founded five years ago to fund research into terrorism and radicalization issues. Important work has been done and we had two very distinguished academics appearing before the committee on Monday to present.
They said that the world and certainly North America is at the quite early stages of understanding — and the research required to create that understanding — the reasons behind root causes. Of course, it would be nice to know what the cause of the problem is before you start trying to apply solutions. When that term was criticized some months ago, it always struck me as odd that the Prime Minister would criticize somebody for talking about root causes, suggesting that the Prime Minister must just make up solutions in the off chance that in some random way they will address the problem he's trying to solve. We need to know root causes. There's a logical connection to knowing the causes and figuring out the best way to fix them.
The Prime Minister clearly didn't seem to want to understand that, but these two presenters did. They said that we need to do a great deal of research. Kanishka is a project in Canada that has funded some of it, but that funding is up. We need to know that funding will be reinstated and continued, particularly now as the issue is so heightened.
It is also the case — the minister alludes to it — that it takes strong, sophisticated police work and intelligence services work.
What is ironic and unfortunate is that despite the fact the minister himself acknowledges that, and despite the fact that literally within the last year this has emerged as a very intense and growing demand on the resources of our police, security and intelligence forces, budgets have been cut significantly by the government.
In 2012, in the government's economic action plan, they laid out their intention to cut $688 million from the Public Safety budget over three fiscal years, and they have done this.
I'm quoting a speech by the critic in the House of Commons, Randall Garrison.
He points out:
We have seen cuts beginning in 2012 now amounting to $24.5 million annually for CSIS, something like a 5% cut in 2012. . .
There were $143 million cut from the Canadian Border Services Agency, a cut of nearly 10%, including cutting more than 100 intelligence staff from the CBSA . . .
The RCMP's budget has been cut by about 15 per cent since 2012, $195 million in 2012 alone.
Appearing before the Defence Committee of the Senate, the commissioner said that he's reallocated 300 people to this problem, begging the question of who is doing what they used to be doing, and how can he do what he needs to do with a 15 per cent cut in his budget? Perhaps the 300 are sufficient, although he made the point — and a CSIS witness made the point — that they have to prioritize the people they're aware of and make some judgments about who is more intensely a potential problem than somebody else because they simply don't have the resources, I would argue, to do what they need to do.
It would seem that it is also true that they have begun to apply their activities more intensely. We have seen some recent arrests, and to their credit. They unfortunately hadn't been able to do enough or didn't do enough in the Rouleau case in Saint-Jean-sur-Richelieu, but I think it is a question of police resources to do this properly. Now is not a time to be cutting 15 per cent from the RCMP budget, and it is now up to $45 million since 2012 from the budget of CSIS. It is extremely important that the police have adequate resources.
The third issue that I would like to discuss, in the context of this bill, is that it is extremely important we understand that this bill and the bill to follow, Bill C-51, raise the question of how we find a balance between civil liberties, our freedoms, our values, the way of life that we know and the safety and security challenges that have arisen because of the terrorism problem.
One feature in this area of debate is that it is extremely important — and I think there's a general consensus — we don't become something that we're not. Otherwise, the terrorists have won. It is extremely important to understand that the way we react, what we do and ultimately what we say is a reflection of who we are as Canadians. It is a reflection of our fundamental values, our fundamental strengths, and if we don't react properly, it is a direct reflection that those terrorists are getting to us, eroding who we are and what we are, and the values that we hold so significantly in our culture and in our society.
In that context, I also want to talk about the question of the rhetoric that we use. The way we react to the laws that we bring in, for example, Bill C-44, or the programs that we bring in to support a community or the police, is part of it. Concrete action. But there is also the question of rhetoric and the issue of the words that are used and the focus used and just understanding that talking tough and using strong, provocative language may not only not be effective, but it may be quite counterproductive.
By contrast, I want to read a statement by the Premier of Alberta, Jim Prentice, in reaction to the threat of West Edmonton Mall that was in some terrorist video. I know West Edmonton Mall very well; it's about a kilometre from where my wife and I live and raised our family. This is, I believe, inspired political leadership and political rhetoric in a good way — I use that term "rhetoric" — at a time when we need inspired leadership and inspired words.
Remember, this threat is in his capital city, the West Edmonton Mall being threatened, surrounded by literally thousands upon thousands of residential houses, condominiums and apartments and, therefore, Albertans, of course:
I share the concerns of Albertans about the recent apparent terrorist threat against North America shopping centres, including West Edmonton Mall.
The RCMP have reassured the public that there is no evidence of any imminent threat to public safety, and the ownership and management of West Edmonton Mall have indicated that additional safety and security precautions are being put in place.
Our law enforcement and security services do excellent work in keeping Albertans safe, and I am confident they are treating this matter seriously. While vigilance among the public is important, the ultimate victory over those who would do us harm is to live our lives in freedom.
On this day, I would encourage all Albertans to do just that — enjoy our friends, families and the province we love in the same way we always do.
Contrast that to other rhetoric that we heard. Contrast that to the action taken by the government to appeal the niqab ruling for the woman who wants to wear and have the right to wear her niqab in the swearing-in ceremony. Consider a federal minister who has suggested that Muslim women should not be allowed to take the oath while even wearing a hijab, which covers the head but not the face. Consider the aggressive terminology that has been used at the national level by certain leaders and compare it to the inspired, insightful and elevating terminology that isn't designed to create fear but instead is designed to unify and strengthen and bring Albertans together, the statement and the rhetoric and the language that has been chosen by the Premier of Alberta, Jim Prentice. It is a very powerful juxtaposition, and it's something to keep in mind.
The pulpit that national political leaders have is extremely powerful, and people, believe it or not, listen to them. They can be very provocative or they can be calming and provide leadership and not play on people's fears.
At the base of this bill, and at the base of Bill C-51, which we will be discussing in several weeks, is, among other things, the question of policing, intelligence and security powers. What we know and what we have seen time and time again in history, and even experienced in our own country, in Canada, is that if we are not ever-vigilant about the powers that we give to police, if we do not supervise, watch and monitor, they, in their passion for doing their job, not out of some malfeasance or negative motivation, but in their passion for doing their job under the pressures they have to operate, under the stakes that are so high, it is very, very easy for police and security forces to go too far.
Of course, the very inception of CSIS as a non-police force, civilian-based intelligence organization, was the excesses of the RCMP some 30 years ago in the way that they handled security and intelligence matters, and of course it came to a boiling point, if I can use that pun poorly, when they burned down a barn, and finally a decision was made.
And there it is. There's the case. There is the example, in our own experience, very, very clear that if police forces and security forces have powers — as I say, I'm not impugning their motives, but through a passion for the job and the stresses and the stakes at risk in the job at hand, and the consequences if they don't do it properly, they can misuse their powers.
That raises, I think, a key and core issue in this debate and that is the question of oversight of police, security and intelligence agencies. I think there are as many as 14 or 15 actually operating in Canada now, not to mention municipal police forces across the country that are part of this effort as well. I think it is extremely important that we keep in mind that we are increasing policing and security powers for agencies that do not have adequate oversight if measured on a number of metrics, but most obviously measured against our allies, particularly the other four of the Five Eyes, all of whom have, for example, parliamentary oversight; many, if not most, western democracies have parliamentary oversight. Canada simply doesn't.
Now, more than ever, as we bring in Bill C-44, we need to consider that oversight issue very seriously.
Bill C-44 has been described broadly, frequently — I will just quickly summarize — it will address the question of human sources. There is some advantage to that in the way that it does that. It will establish and allow CSIS to protect their human information sources, intelligence sources, in the way that police can now, and it's a response to a court case that said they didn't have the power to do that.
It is a double-edged sword. I will get into that in a few moments. The bill will also simply confirm what is already the case, and that's that CSIS has a mandate with unlimited geographic scope. It can and has been undoubtedly working both within and outside of Canada. The bill will also provide jurisdiction to the Federal Court, requiring them to consider the provision of warrants and, where appropriate, to allocate warrants for intrusive measures such as intercepting private communications with a wiretap or calling on a foreign intelligence service to do the same. This particular clarification is of particular importance where CSIS could be operating in foreign countries without the knowledge of the foreign and local authorities.
It also allows for CSIS to have authority, a warrant to break laws in these other countries. That is, of course, a very powerful and significant issue that we need to take seriously.
The bill will finally hurry up — unfortunately — the coming into power or into effect of the Strengthening Canadian Citizenship Act. That's the one where, if you were born in Canada but because your parents were born in some other country that automatically allocates you their citizenship due to your parents having been citizens or still are, that you could actually be deported for a terrorist activity even though you have never lived in that country, you've never been in that country, and it was simply a citizenship bestowed upon you as a matter of course. That's what the bill does.
I'm not saying that there aren't some things that recommend this bill. In fact, there are some things that recommend the bill. The fact is that we have a problem. We have a serious problem; we need to address it. This bill is, I think, a well-intentioned effort to do that.
It's to the government's credit that the bill actually acknowledges, unlike other countries such as the United States and the U.K., that our intelligence agency, CSIS, will be operating outside the country and that it can, in fact, be authorized to break the laws of other countries in doing so. At least it's open and honest, and that's something worth noting.
There is, of course, some serious and significant advantage in being able to protect human sources of information in the intelligence-gathering business. To the extent that that is necessary, if not often at least from time to time, that's a recommended element of this bill.
It's also true that having the Federal Court involved in the authorization of certain activities that can be questionable is an advantage in this bill.
Before you think I'm going to get carried away with the positives, I'm going to stop and tell you what I think is wrong with the bill, or some of the questions that it begs, or some of the things that we need to do to fix it.
One of the most important problems with the bill is the question of protecting human sources and creating what is called officially the "class privilege." The police have a different standard and a different understanding of that power. They are very reluctant to extend class privilege, guaranteed anonymity of a source because, when it comes to prosecution, that can mean that that source will not be able to present evidence and information received from that source — I'm not a lawyer, but I think this is part of the problem — may not be able to be presented as evidence. The police are careful to use it only when they absolutely have to, and later in investigations usually, and with great care, because it can prohibit the ability to achieve a successful prosecution.
In fact, that's exactly what happened in the Air India case, and it's the reason behind recommendations by the Major inquiry, the "Major" being former Justice Major, into the Air India case. He recommended several ideas for ensuring that intelligence agencies don't extend this protection, this guaranteed anonymity, too readily and too early in an investigation.
There is a different context within which CSIS, for example, and intelligence gatherers work, different than the police. They are more inclined to look for information and less inclined to be concerned about the ultimate prosecution. I'm not saying they're not concerned about it, but the pressure on them is to get information early. There is reason in that. If you're confronted directly with a choice between stopping something from happening and successfully prosecuting a person who might have made it happen or did make it happen, probably your bias would be to make sure that the event didn't happen in the first place. In this intelligence-gathering business, you might be very inclined to extend that privilege, that protection of anonymity, very soon in an investigation.
It's often particularly important in the case of immigrant communities. New immigrants, perhaps, in particular, are quite afraid of being exposed within their own community, or generally, because they often come from countries where being exposed to the police generally doesn't have pleasant outcomes. And there can, of course, be various kinds of pressures that they could be subjected to. It's often very difficult to get people in communities where there may be radicalization occurring to come forward and give information because of these fears, again heightening the inclination to give this protective anonymity early on.
Justice Major's central recommendation was that this anonymity promise should not be implicit. It should be absolutely explicit, and it should be necessary that it be explicitly given to the source. He recommended that then, and there is legal analysis now about Bill C-44 that raises the concern that just the nature of the structure of this bill implies that any human source has this protection already. It would be important to consider an amendment in a way that would specify explicitly that human sources don't get this protection unless it is explicitly given as an explicit promise. It's within that context and that realm that decisions could be made about the point at which you begin to sacrifice the likelihood of successful prosecution for the advantage of earlier information that may prevent this.
This raises another question, and that is the relationship between, for example, CSIS and the RCMP. While it's not as much the case as it used to be, there is evidence, I believe — I think we've heard it in some of the testimony, if not absolutely explicitly, certainly between the lines — of some siloing, if I can use that word, between and amongst the various agencies. Again, with respect to the issue of anonymity and protection of anonymity, it becomes even more important that CSIS and the RCMP are able to work together and are integrated in their work as effectively as possible.
That raises two major questions: how we supervise and how we coordinate. Part of that is reporting. One of the concerns about this bill and about the activities of CSIS and the strengthening of CSIS is the question of supervision. A subset of that is the question of reporting. It has been mentioned in the context of this bill that the Security Intelligence Review Committee, which has responsibility for review of CSIS, has the responsibility also of ensuring that CSIS is reporting adequately to the minister on CSIS's activities. SIRC, in its last report, I think, 2013, made the point very clearly that they weren't convinced that that was happening.
To compound that problem, there was an inspector general with a budget of about $1 million a year who had the responsibility of ensuring that CSIS was presenting and reporting properly to the minister. It's a very important step that there be that relationship and that the minister is aware of what CSIS is doing. The inspector general's position was done away with by this government, and the responsibility was given to SIRC, the security review agency of CSIS, but they didn't get the million dollars. Not only that, but they have about a $2.7 million budget with a handful of people — I think about 11. They're a committee of five, the review committee, of which there are only four now appointed, and they are all part time. They have the responsibility of only post facto review, which isn't entirely adequate, but they have that responsibility over an organization with a budget of over $500 million and 2,000 people. On top of that, they now have the responsibility that used to be accorded to an inspector general, without having been given the money to do it.
So when I mentioned the problem of constraining police and security intelligence enthusiasm from time to time, I'm raising specifically this as an example of how it is that the government hasn't taken that, I think, adequately into consideration.
It's also true that SIRC was very concerned about the lack of cooperation that they saw between CSIS and the Department of Foreign Affairs, DFATD, and consider that they also raised the problem that they can't share information with Communications Security Establishment Canada, CSEC's commissioner or the RCMP review board.
There is a problem with silos. There is a problem with reporting the activities of at least CSIS to the minister, as is prescribed in the act. There is, I believe, and I think many do, inadequate resourcing to one agency, SIRC, that has the responsibility to review what CSIS does. And there is the problem that practically all the other agencies have literally no review board or mechanism whatsoever over what they do. In fact, CSEC does, but it's simply a commissioner with a very small group of employees as well.
The Privacy Commissioner, Daniel Therrien, raised the question about the lack of safeguards also around sharing information from foreign interventions. So CSIS can be active in other countries in cooperation with those countries' authorities or not, and particularly, if they're in cooperation with those countries' authorities, they could be giving up information that they can't then control. That's exactly the kind of thing that happened in the Maher Arar case, and it remains a problem that hasn't been addressed.
As an aside, there is no sunset clause, I think, in this bill. The tradition for this kind of bill is that it should be sunsetted and reviewed every five or two years, and that has not been the case in Bill C-44.
The central theme of my comments is that there is much more to solving the terrorism problem than simply laws. Laws are part of it. This law does some things that may be improvements. It does, however, run up against the issue of civil liberties and excessive police powers, excessive police force and security agency powers and force. It particularly runs up against that because it makes no provision for adequate, supervised oversight or for adequate reporting.
It's essential, I think, that that be a feature that is an amendment to this bill or that we resurrect as a Senate the bill originally presented by Senator Segal and Senator Dallaire, which I've now undertaken to sponsor, which calls for a United Kingdom-type oversight board, which has had tremendous success. Now, with the pressures that we're under, with the pressures that our police forces are under, it is absolutely essential that we consider this.
Our freedoms and our security are what are at stake here. But being secure and giving up critical freedoms and civil liberties is, as I've said earlier, tantamount to admitting defeat and giving the terrorists what they are looking for. They want to change our way of life.
The way that we need to address that problem is to find the balance. Yes, there are some places where we might be able to enhance, as I say, the laws, but it's also extremely important that the agencies we give the fundamental responsibility for implementing those laws and for creating, sustaining and taking the steps to do that for our security and our safety be properly supervised.
Why is it that this government wouldn't simply do that? It would solve almost every last feature of the criticism they're receiving about this bill, and it wouldn't cost that much money. They spent $30 million glorifying the War of 1812. To quote the Prime Minister, again, with rhetoric, we're at war, and he can't find the money to make sure that we can fight that war adequately and properly, while at the same time taking relatively inexpensive measures to protect the very thing that we're fighting for: our civil liberty, our values, our basic freedoms, our way of life.
So why is it that he can't see that or wouldn't take that relatively easy step? It's not like he has to make it up.
Senator Cowan: It's called leadership.
Senator Mitchell: It's called leadership, yes.
It's done. There are models of it all over the world, and there are several, three or four, different studies that call for it — one, in fact, done by the Senate of Canada, I think in 2011. That was an all-party committee, of course. It was the Segal-Joyal committee that called for that, and the O'Connor and Major commissions. Again, this is easy to fix, and it's very difficult to understand why the government wouldn't want to go to at least the limited lengths that would be required to fix it.
In summary, I would say that we have to do more than create laws. We have to look at police resources. We have to look at research and understanding so that we know what the problem is. We have to look at empowering the communities that are the focus of some of this concern about radicalization. It isn't just a single community. Many people in those communities are trying their best to counteract the terrorist message, but they're often not integrated communities, they're spread across the country and they don't have resources.
I was speaking to an imam yesterday who made the point that often immigrant groups are the focus of some of this discussion. The immigrants are very new, they're not wealthy and they're still building their lives and re-establishing themselves in a new society. There needs to be some leadership. Again, that's a place where government could help to empower these communities to make the case, because they want to make the case, against the radicalization that might be occurring within their immediate communities.
We need to have research, police programming, police resources, community support and understanding that there are ways beyond simply applying harsh laws that are preventative and that there are many people working on that in this country that need resources. There is much success in models around the world, where the intervention and the analysis are done long before laws are ever required. As I say, once you need the law, it may be too late.
I'm quite happy to see this bill go from second reading to committee. There are questions that the Defence Committee, which is, of course, a great committee, will be pursuing on behalf of our colleagues in the Senate. These are important questions about how we can strengthen this bill, get to what it needs to achieve, which is building our sense of security and safety but also making sure that is not done at the expense, at the cost, of who we are and what we are as a people and as a society.
Hon. Pierrette Ringuette: Would the honourable senator take a few questions?
Senator Mitchell: Yes, I would.
Senator Ringuette: I have been listening very carefully to your comments about this bill. Did I hear you say that within this bill there are provisions to give CSIS, which should be a law-abiding agency of Canada, a blank cheque within our Canadian framework to break the laws of other countries? Did I hear that correctly?
Senator Mitchell: Not quite a blank cheque. It is apparent — and we need to verify this — that they would need to have authorization of the Federal Court to do that. One well-known academic — I believe it's Professor Wark — made the point that he could never, ever imagine a time when a judge, who is to uphold the law, would be put in the position of having to provide authority for an agency of government to break the law. So it is problematic and it is controversial.
At the same time, as I understand, they're not allowed to break the law within Canada, but this bill would extend them the authority to break the law in countries outside of Canada. I didn't mention, but it's also true and needs to be acknowledged, that that's another reason why there needs to be strong communication with the minister and there needs to be strong communication among this minister, the Minister of Defence and the Minister of Foreign Affairs, because breaking laws in other countries can have real implications for foreign relations with those countries.
It's also the case, which is unanswered in here, if one of our operatives in CSIS is caught breaking the law in another country, what recourse do we have to assist that person in not being prosecuted or worse?
Senator Ringuette: That's a very important issue, at least for me, as a Canadian and being proud that Canada was a peacekeeper, to all of a sudden find myself looking into legislation that would say in our Canadian laws that an agency of government can break the laws in other countries. I think that is against the Geneva Convention. Hopefully, at your committee, you will seek clarification and opinion in regard to this issue in relation to the Geneva Convention and the international courts.
I understand the purpose, but that doesn't mean we have to go below the terrorist line in regard to action in order to counter them. I honestly hope you will look into the Geneva Convention and have advice of the international courts and the international legal community in regard to this, because fundamentally this is at the heart of our country.
The Hon. the Speaker pro tempore: Unfortunately, Senator Mitchell's time is up. Will the chamber grant Senator Mitchell five more minutes?
Hon. Senators: Agreed.
The Hon. the Speaker pro tempore: I will remind Senator Ringuette that we're waiting for the question.
Senator Ringuette: Yes. The bottom line is that I want to have the commitment from the honourable member that all these international institutions will be brought forth at the committee in regard to this piece of legislation in order to make sure that we're on the right path and not countering the purpose of this bill.
Senator Mitchell: Senator Ringuette, thank you for your recommendation and your suggestions about issues to consider in the study of this bill.
I am sure that the chair of the committee, Senator Lang, and the committee members will take your recommendation under advisement.
Hon. Lillian Eva Dyck: Will the honourable senator take another question?
Senator Mitchell: Certainly.
Senator Dyck: Thinking along those same lines where this proposed law is suggesting that Canadian security agents can potentially break the law in another country, has anyone looked at whether there's legislation in other countries that allow their security personnel to break laws in Canada? If that were to happen, what would people think?
As a Canadian citizen, I would think that I wouldn't want someone from another country who is in intelligence being able to come here and break our laws. Do you know anything about legislation from other countries that has an equivalent clause, or what do you think of granting that kind of privilege to someone else to come into our country?
Senator Mitchell: What I do have is analysis that has simply pointed out anecdotally that neither the U.K. nor the U.S.A. explicitly provide for that power for their security intelligence agencies in legislation. That's not to say that they don't break laws in other people's countries. While I am purely speculating — and I'm not sure that anybody could do anything more than speculate about this — it would be far less likely that we would be inclined or need to do that in a country that is an ally such as a Five Eyes ally, including Australia, the U.S. or the U.K., and it's also, one would hope, less likely that our allies would do that in our country.
But, no, I can't give you any source of guarantee that that isn't the case and it's a legitimate concern that we need to raise. It might be, of course, that we would be provoking more of that with this legislation.
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