01 April 2015
Hon. Grant Mitchell: Honourable senators, it is a challenge to rise to debate this bill, but it is very important. This bill deals with an issue that is very important to Canadians and, to some extent, to people around the world.
I speak to third reading on Bill C-44, which is one of the two anti-terrorism bills. I do that out of a — I don't want to say a sense of pleasure, of course, because it's very unfortunate that we have to be discussing this kind of an issue at all, but it is necessary and it's a duty for all of us in this chamber. We all know and feel deeply that we protect the safety and security of Canadians.
I think we also know and feel deeply and share that in doing so, we also protect the civil liberties of Canadians, and that really is the issue that is at the very core of Bill C-51, of any further efforts that are made to deal with radicalization. It's certainly the balance that the Senate Defence Committee is trying to find. I am a member of that committee, of course, but I would like to say that our Defence Committee deserves a great deal of recognition and appreciation by colleagues for the work that all members are doing.
We had a great trip to Toronto last week, packed full of meetings with police, other intelligence and policing services, members of the community and so on.
We have been doing a lot of work on this in the committee. We started our study on radicalization and terrorism issues the same day as the Quebec incident, and we had RCMP Commissioner Paulson and the head of CSIS, Mr. Coulombe, before us on the Monday following the shooting on the Hill. We've done a lot of work, and some of that I can share with you today.
I would like to say a couple of general things. First of all, I'd like to congratulate and thank Senator White for his two presentations at second and third reading. I will say two things in particular about that. One, he has actually convinced me that a couple of the concerns that I had perhaps aren't as intense as they should be, which should be happy news to all of you because that will therefore somewhat limit the amount of time I need to speak.
Senator Day: Well done!
Senator Mitchell: If he's never accomplished anything else, he can put that notch on his belt.
I'd also like to say, and this is very significant, that Senator White was extremely careful about the words that he used to describe the problem. He did not in any way, shape or form ever isolate a single group, a single religion, and he was consistent with others in his former profession whom we have spoken to, who have been extremely careful about that. We have spoken to police chiefs, to senior CSIS officials and to RCMP officials, and to a person, they have been extremely careful about the words they use because they understand the power of those words.
I referred to the very enlightened statement made by Premier Prentice around the time of the threats to West Edmonton Mall. I referred to his comments in my second reading speech, and I would draw people's attention to that again. He said that we cannot ever allow ourselves to become what the fear that the terrorists try to engender would drive us to become.
In fact, one of the people with whom we met in Toronto made a very powerful point. They said that fear is the greatest danger to our public security. Fear could also be argued to be one of the greatest dangers to our civil liberties, and it is extremely important that we do not overreact, at least in the way of the words we use to describe the problem. I congratulate Senator White on that, and I appreciate it greatly.
The underlying implication of this bill — perhaps by definition and perhaps only by the stage it is at in the evolution of steps to deal with the terrorist threat here and the terrorist threat we're involved in, to the extent that Canadians may travel elsewhere to fight with terrorists — is that somehow it is laws that are going to be emphasized and the solution to the problem.
Somebody said that we cannot arrest our way out of this problem. Again, I come back to a statement made by Senator White in questioning statements made by senior police and senior intelligence officers, which is that you cannot arrest your way out of this problem.
Again, almost to a person, they talked about their greatest successes in dealing with terrorist threat, in dealing with gang threat. For example, in dealing with the radicalization process, as it's now becoming defined, which has parallels in the process of somebody becoming a gang member, people involved with the police in the intelligence community, in my experience, have said that their greatest successes don't come from criminal prosecution; their greatest successes come from prevention.
When they talk about prevention, I'd like to quote in that regard some testimony received from Craig Forcese, an associate professor from the Faculty of Law at the University of Ottawa. He said that we need to be supporting the RCMP's nascent Countering Violent Extremism program.
We deceive ourselves in presenting this as a problem to be solved by prosecutions and penitentiaries. Law is a partial and imperfect strategy, and empirical studies of past de-radicalization efforts suggest that too much coercive law can precipitate exactly the consequences it is supposed to deter.
It is very important that we do not simply see the solution to the terrorist problems as being found only in prosecutions and only in moral laws. There are many other things that need to be done to deal with that particular issue.
I emphasize rhetoric, prevention and preventive programs. Preventive programs involve many things, particularly police community outreach programs. Every police department in the country, major or otherwise, probably has them — every one that I've spoken to does — and not just for terrorism. In fact, they've started them for many other reasons. They want to get to know young people on the corners, where they live, in their communities so that they can bring them into society so that young people can see that the authority of the police is not a threat but is in fact a harbour and to their advantage. That means community outreach programs.
For the police community outreach programs, it also means in this context certain community awareness programs. Many people in the past might have come across somebody, like the shooter on Parliament Hill in Ottawa, whom they removed from their mosque, for example, not ever understanding for a single moment that that person would do what he eventually did. I think now people are beginning to be more aware of the fact that they need to take the next step if they see certain kinds of behaviour or become concerned about somebody's behaviour, but that takes community awareness, and that takes programs, resources and support.
It also is true that prevention, community outreach and dealing with terrorism, for the police, is now a slightly new phase to some extent, or certainly has a new intensity in dealing with terrorism investigations and the radicalization process.
Again, that takes training within police forces, and that takes resources, which brings me to the problem of resources. That's also not addressed in this legislation.
The government has said police need more tools, and I think there's a general consensus that to some extent they do need some more legal tools. But as I said in committee, what's the good of having the tools if you don't have sufficient workers to use them?
We heard from the RCMP that they have taken 600 personnel from other forms of investigation — literally hundreds of files on organized crime investigations, drug investigations, financial crime investigations. It's interesting to note that both drug crime and financial crime can be directly related to the support of terrorist activities. We now know that hundreds of files have been left because the personnel that were dealing with them have been pulled into terrorist files. Who's doing the work that they were doing? Nobody.
The government argues that they had increased national safety, national security financing by one third, but they started to decrease it when they became government. They started to decrease it in 2012. If it was sufficient at one third higher in 2012, when we didn't have the intensity of this terrorist threat and concern, how can it be that that funding level at 15 or 20 per cent reduced since then can still be sufficient? The evidence, the proof, is in the pudding. The fact of the matter is, the RCMP have taken 600 personnel from other investigations and put them onto terrorist investigations, so they don't have the resources.
If you start to then go to the next step of training, the complexity of information-sharing that will be involved to some extent as a result of this bill, but more broadly as a result of Bill C-51, the training that needs to be done throughout the government, throughout municipal police forces and so on, resources are required. We can't arrest our way out of this problem. We can, to some extent, help by preventing our way out of this problem. We need resources once the arrests are made. We need resources at the investigation stage that leads up to any arrests, and we need resources for what's being called the "pre-criminal" stage, where people can be diverted. Community program resources would be ranked high in that area.
More specifically with respect to the bill, the bill addresses the question of protecting human intelligence sources used by CSIS. That change in the bill is required as a result of court cases that have rendered it obvious, made it obvious that CSIS doesn't have the same powers as a police force to extend anonymity protection of the confidentiality of a witness or an intelligence source. So that in itself at one level is a good thing, that they will have the power to do that.
Within certain communities, it's extremely important that people are anonymous, that they're left anonymous because they can be afraid of repercussions. That is absolutely understandable.
The problem — and this is where it's tough to find the balance — is that if a source is given anonymity or protection too early in a process, or at any point in a process, that source can end up not being eligible or available for prosecutions, if it comes to that.
In fact, there is evidence that in the Air India case that a conviction was lost because anonymity, confidentiality, was given. That's not to say that necessarily it was given incorrectly, but it is to emphasize the point that we have to be extremely careful about how we offer that anonymity.
There was expert testimony — at least experts have written as well — that to some extent a potential intelligence source might imply from this legislation that they get protection, that it's a blanket protection for anybody who becomes a source. At least one, probably two, of our legal expert witnesses underlined the fact that we should make this explicit. I will have an amendment that I will move formally at the end of my comments that would call for the necessity of CSIS giving an explicit promise, not in any way implied or implicit, but an explicit promise when they decide to do that to protect somebody's confidentiality and to protect their identity.
I'll read a quote from a Professor Kent Roach, who is the Pritchard-Wilson Chair of Law and Public Policy, the Faculty of Law at the University of Toronto, who presented to our committee. He says about human sources and the ability to give them this kind of protection:
My concern, though, is that with these new bills we may be sleepwalking into a situation where we're going to make it more difficult to use those offences in practice.
What he's saying is that if we're not careful about how we use this, if we're not explicit about how we use this, we could end up losing successful prosecutions further down the evolution of a certain case. I will move an amendment about that.
The bill also acknowledges in legislation, by definition, that the CSIS organization will be allowed to, as it does now, formally carry out activities outside of Canada, and that raises some concerns. It raises some question because there's also provision in the law whereby they can get a warrant to break foreign laws.
Essentially, as I understand it, not being a lawyer, a warrant is authorization even within Canada to break a law but to do it within a very restricted and monitored way. There is some question about whether you could monitor that as effectively internationally. It's also important to note that the United Kingdom and the United States of America, as an example, which undoubtedly carry out intelligence activities in other countries, don't specify that in their legislation.
It may be that, as Senator Kenny said to me, the toothpaste is out of the tube on this because of the Mosley example and you just can't reinsert it, which is unfortunate because in a way we are publicly authorizing our intelligence agency to break laws internationally. We are actually going to be in a position where judges will be asked to authorize that. That may raise risks for our agents, if they were ever caught doing that in another country, but it also raises the question of reciprocity and how other nations may react to that. That could, in turn, have some consequences with international relations with these countries. As I say, I raise it simply to note it and to offer up caution on the record with respect to this issue, but it may be that we're past the point of no return owing to the way that the matter evolved in the courts.
Another issue that I think is extremely important with respect to this bill is the question of oversight. I think I've hardly ever quoted media reports, let alone editorial or columnist comment, but I really do want to mention that in this case because there is a very powerful piece in the National Post by John Ivison entitled "Tories' behaviour during anti-terror bill hearings borderline anti-democratic." He says, "Parliamentary oversight, which would have ameliorated some of the legislation's excesses, was never considered." He writes, "The reasons why are instructive."
He says that there is evidence of a deep mistrust between the government and the opposition. The argument has been used, at least unofficially, that the reason that the government would be opposed to a parliamentary oversight group is how could they trust other parties? How could they trust the Bloc, for example? How could they trust the New Democrats? Probably they think how could they trust the Liberals? He happens to mention just the Bloc and the New Democrats as being at the basis of the government's concern. He writes:
This strikes me as wandering beyond partisan arrogance into terrain that is borderline anti-democratic.
Would a Bloc MP break a sworn oath of secrecy and endanger national security for partisan advantage? Has NDP Leader Tom Mulcair broken his oath as a privy councillor to keep secret matters revealed to him in that capacity?
I think that's a very powerful observation. Say what we will, disagree as we might — as we often do — the fact of the matter is that the people who come to this chamber and the other chamber do so with, generally I think, high principles in mind and certainly with the safety and security of the people of this country — in the case of the Bloc it may not be exactly the country, but of the people of this country — always in mind.
He also quotes Churchill, and I'm going to quote his quote of Churchill:
As Churchill told the House of Commons in 1947, "We accept in the fullest sense of the word, the settled and persistent will of the people. All this idea of a group of supermen and super-planners making the masses of the people do what they think is good for them, without any check or correction, is a violation of democracy."
Professor Forcese goes on to emphasize this point:
— if you keep pressing the thumb on more powers for police and for the intelligence services and keep ignoring the fact that our review system is broken, you are queuing up another legitimacy crisis. The CSIS Act lasted 30 years more or less unamended because it was enacted with deliberation and balancing power with accountability. In comparison, the post-9/11 measures have lurched from controversy to challenge to new controversy. Policy and lawmakers need to sit down with the Arar commission policy report and take it seriously.
And I emphasize his last line:
Anti-terrorism law cannot be all sails and no anchor.
What are the issues with respect to oversight? One of them is resources. For SIRC, the Security Intelligence Review Commission, I think there's a prima facie case that can be made that they simply don't have enough resources. They have a budget of between $2.7 million and $2.8 million. They have a part-time board of five people, only four of whom are actually appointed at this time. They have 11 people and they are to review — only after the fact, not during or before — the operations of an organization with a $500-million budget and 2,000 people.
Those reviews include, among other things, ensuring now that reporting on the activity of CSIS to the minister is done properly. That used to be done by the inspector general, whose position has been discontinued and whose budget has also been discontinued. So SIRC not only has more work to do as a result of that, but they don't have any more money with which to do it.
This bill will mean that they will have more work to do, because they will have a body of warrants that are called for and allowed for in this bill that weren't allowed for in the past, and they still won't have more resources with which to do it.
But at least there is a SIRC. In the case of CBSA, there is no oversight. In the case of DFATD, there's no oversight. In the case of CIC, there's no ongoing oversight. There's no ongoing oversight at a macro level that can coordinate the many agencies — depending how you count them, probably 14 or 15 — that are involved in intelligence gathering and that will, as a result of Bill C-51, even more be involved in information sharing.
SIRC wrote in recently released documents:
Currently, SIRC reviews still lack the ability to "follow the thread" of a CSIS investigation if it involves another government department or agency.
This was in their own report that was tabled in Parliament on Tuesday.
SIRC's effectiveness is dependent on (CSIS's) timely provision of information. In those cases where there are delays in receiving information, SIRC is at risk of being unable to complete its reviews and investigations in a timely manner.
So, SIRC itself is acknowledging that it has problems and it's not as though SIRC is a body that's made up of former opposition party members. Deborah Grey is on it and she would have been, I expect, one of the authors of that report. So there's a certain objectivity in their assessment of the problem.
There are really two kinds of oversight we're talking about. There's parliamentary oversight, which would be made up of parliamentarians, as the name would suggest, and I will move an amendment to offer that possibility in this legislation.
There's also bureaucratic oversight in the case which is SIRC, which is also the body that reviews the RCMP post facto. They review RCMP activity. It is called the Civilian Review and Complaints Commission.
So there are those kinds of bureaucratic bodies, but they're very limited in their powers, they're very limited in their resources and, as I say, they don't cover the whole broad spectrum. We need some of that kind of capacity for sure for CBSA.
It was Justice O'Connor who mentioned that there should be what has come to be called a super-SIRC that would review a variety of intelligence-gathering agencies, in addition to CSIS, which it now has responsibility for. These agencies could include CIC, Transport Canada, FINTRAC and DFATD.
He also goes on to say that with respect to the coverage for CBSA, the Canada Border Services Agency, that a new group, which he called the "Independent Complaints and National Security Review Agency," should be formed out of a revamped Commission for Public Complaints Against the RCMP, which is now the Civilian Review and Complaints Commission, which I mentioned had one more iteration.
So we do need parliamentary oversight for many reasons: first, for policy direction. I think the intelligence-gathering community and the terrorist investigation community would appreciate that, just a sounding board. We also need it so that there can be a greater link between these organizations and the will of and the sense of the public about what they should be doing and how they should be doing it. This group could also offer up third-party support for budgetary argument, which police chiefs have told me is a huge advantage for them when they have a police commission.
I would also argue that in this context we should have a proper public oversight police commission for the RCMP that could specifically help the RCMP in that way, as is now the case for almost every major, if not every major police force in the country.
I will propose several amendments on oversight. One will be to offer up two additional powers for SIRC. I'm not moving that at this moment, but I will in a few minutes. Another one will be to outline a model for parliamentary oversight and a third amendment will be a short and specific one — which is a sunset clause, essentially — to allow there to be parliamentary review of this bill and these new powers within a certain specified period of time.
I am developing legislation — although I haven't finalized it yet, I will be presenting it, I hope, this session — on an RCMP public commission oversight board. I would like to see, of course, although I'm not moving an amendment in that regard, something done for the oversight of CBSA.
I will finish my comments by mentioning one other thing that was raised in testimony by Professor Roach, whom I quoted earlier, and that addresses the issue of special terrorist prosecutors. There's some evidence that about 20 prosecutors worked specifically on — I think it's the Toronto 18 case. Professor Roach actually argues that this might be a function that should be formalized, that there are special techniques, special burdens, special laws that will now begin to address terrorism that aren't necessarily utilized in criminal cases. It's also true that while prosecutors work very closely with the RCMP as investigations evolve, Professor Roach would argue that that is not so much the case with respect to CSIS and it might be that this special prosecution function could address CSIS.
Those would be my comments. These would be my amendments, and I will read them. I have two and a half pages of them, so it will take me a bit of time to do that.
I'm moving them all at once. That will require a single vote on these amendments. The one amendment will address the question of how identity, confidentiality and anonymity protection is provided, and it essentially will say it should be done explicitly; and three amendments will address better oversight of our intelligence and terrorist investigation activities. The amendments will affect SIRC, giving it a couple more powers. Another amendment will outline how a parliamentary oversight model could be established — what it would be. A third one will call for a sunset clause.
Motion in Amendment
Hon. Grant Mitchell: Therefore, honourable senators, I move:
THAT Bill C-44 be not now read a third time, but that it be amended
(a) in clause 2, on page 1, by replacing line 10 with the following:
"having received an explicit promise that their identity will be kept confidential, has";
(b) on page 4, by adding after line 39 the following:
"8.1 (1) Paragraph 38(1)(a) of the Act is amended by adding the following after subparagraph (iii):
(iii.1) to review the practices of the Service in relation to the giving of promises of confidentiality to human sources;
(2) Paragraph 38(1)(a) of the Act is amended by adding the following after subparagraph (v):
(v.1) to monitor any warrant issued under subsection 21(3) that authorizes activities outside Canada pursuant to subsection 21(3.1),";
(c) on page 5, by adding after line 4 the following:
"9.2 The Act is amended by adding the following after section 55:
SECURITY OVERSIGHT COMMITTEE OF PARLIAMENT
55.1 (1) There is established a committee, to be known as the Security Oversight Committee of Parliament, which is to be composed of eight members of both Houses of Parliament who are not ministers of the Crown or parliamentary secretaries, and of whom four must be members of the Senate and four must be members of the House of Commons.
(2) Members of the Committee must be appointed by the Governor in Council and hold office during pleasure until the dissolution of Parliament following their appointment.
(3) A member of either House belonging to an opposition party recognized in that House may only be appointed as a member of the Committee after consultation with the leader of that party.
(4) A member of either House may only be appointed as a member of the Committee after approval of the appointment by resolution of that House.
(5) A member of the Committee ceases to be a member on appointment as a minister of the Crown or parliamentary secretary or on ceasing to be a member of the Senate or the House of Commons.
(6) Every member of the Committee and every person engaged by it must, before commencing the duties of office, take an oath of secrecy and must comply with the oath both during and after their term of appointment or employment.
(7) For purposes of the Security of Information Act, every member of the Committee and every person engaged by it is a person permanently bound to secrecy.
(8) Despite any other Act of Parliament, members of the Committee may not claim immunity based on parliamentary privilege for the use or communication of information that comes into their possession or knowledge in their capacity as members of the Committee.
(9) Meetings of the Committee must be held in camera whenever a majority of members present considers it necessary for the Committee to do so.
(10) The mandate of the Committee is to review the activities of the Service and the legislative, regulatory, policy and administrative framework under which the Service operates, and to report annually to each House of Parliament on the reviews conducted by the Committee.
(11) The Committee has the power to summon before it any witnesses, and to require them to
(a) give evidence orally or in writing, and on oath or, if they are persons entitled to affirm in civil matters, on solemn affirmation; and
(b) produce such documents and things as the Committee deems requisite for the performance of its duties and functions.
(12) Despite any other Act of Parliament or any privilege under the law of evidence, but subject to subsection (13), the Committee is entitled to have access to any information under the control of federal departments and agencies that relates to the performance of the duties and functions of the Committee and to receive from their employees such information, reports and explanations as the Committee deems necessary for the performance of its duties and functions.
(13) No information described in subsection (12), other than a confidence of the Queen's Privy Council for Canada in respect of which subsection 39(1) of the Canada Evidence Act applies, may be withheld from the Committee on any grounds.
(14) The annual report required under subsection (10) shall be submitted to the Speakers of the Senate and the House of Commons, and the Speakers shall lay it before their respective Houses on any of the next 15 days on which that House is sitting after the Speaker receives the report.
(15) In this section, "Committee" means the Security Oversight Committee of Parliament established by subsection (1)."; and
(d) on page 7, by adding after line 33 the following:
12.1 Within two years after the coming into force of this Act, a review of the adequacy of the oversight mechanisms provided for under the Canadian Security Intelligence Services Act shall be undertaken by any committee of the Senate, of the House of Commons or of both Houses of Parliament that is designated or established for that purpose.".
I will sit down after thanking the counsel and parliamentary clerks' offices for doing great work in getting those prepared.
Some Hon. Senators: Hear, hear.
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