13 May 2015
Hon. Grant Mitchell: I am the official critic of Bill C-51. While I respect and admire the presentation made by Senator Runciman — thoughtful, considered and presented with quiet dignity, as he always does — I have to say that there are many reasons why I disagree with the position he has taken.
I would like to say before I start that we have had a very good process of review of this budget because of the pre-study, which is not often done, and I don't encourage them often. But the pre-study meant that we had some very good witnesses who presented on both sides of the case. I was more compelled by those who raised concerns, and I will explain why.
It is not generally my practice to highlight certain witnesses, but I would like to recognize the work of Craig Forcese and Kent Roach, among others, who have literally dedicated their lives to the analysis of this measure and Bill C-44 over the last number of months. Professor Craig Forcese is from the University of Ottawa and Professor Roach is from the University of Toronto — they had excellent input.
Almost all of the witnesses, most Canadians and certainly I and my caucus colleagues accept the premise upon which this bill was originally initiated, which is that there's a problem with terrorism. We can't take it for granted. We have to be careful of it. It has two parts: home-grown terrorism that can be expressed violently within Canada, and home-grown terrorism expressed by people leaving Canada and going elsewhere to fight for terrorist causes.
This is by no means a problem to be taken lightly. I would say that none of us who would oppose this bill would for one moment take it lightly. I certainly do not take it lightly.
Second reading is a debate about the principle of a bill. The government, ably represented by Senator Runciman in his presentation, would construe the principle of this bill to be securing the safety and security of Canadians — protecting Canadians and simply extending laws in order to do that.
I had an experience recently that brought home to me the other half of that equation, and that is that this isn't truly the principle. The fundamental principle of this bill is not simply about securing the safety of Canadians, but it is about securing the safety of Canadians while balancing that against the protection of rights and civil liberties. That's the fundamental principle of this bill and it is not being addressed adequately. That's the reason why I have a great deal of difficulty supporting the bill. In fact, unless otherwise convinced over the course of debate — and I can't imagine that I will be, at this point having heard so much of it — I will be voting against the bill.
The importance of rights and of protecting rights is, of course, intrinsic to our institution and to our chamber. We simply have that as one of our explicit responsibilities and mandates. The importance of rights and their fragility was brought home for me very recently. Omar Khadr is my neighbour. Omar Khadr's lawyer lives just over our fence and several houses way. I'm not offended or concerned that Omar Khadr is my neighbour.
What concerned me was that as I began to understand more and more about the Omar Khadr case, I began to see how his rights have been abused, every step of the way, to varying degrees of intensity, to a point where a 15-year-old child soldier had been treated in a way that almost nobody else in the world had been treated, as a result of the war in Afghanistan. I believe he is the only person who was convicted of this kind of crime — of murder — in the Afghan war. He was convicted of penalties and crimes that didn't even exist and weren't created until after he had done whatever it is that he had done.
We left him to languish in a prison to be tortured. We left him there long after other Western nations left prisoners from their countries. We left him in Guantanamo Bay despite the fact that it was our responsibility and duty as a country to bring him back and deal with him here. We were repeatedly remiss in the protection of his rights.
That brings the issue more clearly into focus. What is truly at stake in this bill is, yes, protecting Canadians, holding them safe and secure. This is absolutely a priority and the government continues to say that is the government's singular priority. My take on that is that while that is a priority, it has to be an equivalent priority with protecting the rights and the civil liberties of all Canadians. It is those rights that are threatened by this bill.
The question was addressed well in the presentation made by the Canadian Bar Association to committees of both houses of Parliament. They said:
The key question is, "Does the bill strike the appropriate balance between enhancing state powers to manage risks and safeguarding citizens' privacy rights and personal freedoms?"
I would argue in a word: No.
What is left by this bill is simply intrusion or a great risk of intrusion into Canadians' rights, with bigger — and more intrusive — government without really any additional balance or oversight to speak of and without any effort made to limit the manner in which that intrusion can affect Canadians who are in no way, shape or form going to be involved in terrorism, threats of terrorism or terrorist activities.
I begin my analysis of the bill by saying that this bill addresses only laws. Senator Runciman has laid out very well the five areas where laws are either added or where the bar, over which determines and limits a law, has been lowered. Those areas are of course with respect to the following: the sharing of information; CSIS' powers; creating, extending, maintaining the no-fly list; the Criminal Code; and immigration hearing processes. We are not going to arrest our way out of the problem of terrorism in this country. Once it gets to the point where you need laws and arrest, then you are way past being too late.
I was compelled by the number of police officers of all ranks, senior in particular and very senior in several cases, who said that some of their best days in policing are when they are working within communities to prohibit, offset, deter, defer and divert criminals or people who might one day become criminal or terrorists before they ever get to the stage where that is a reality.
What this bill suggests is that you can solve the problem simply by more laws. You can't. The first criticism that I would have of this bill is that it is brought without any broader strategy. What would be the important components of a broader strategy? First, the witnesses say, and I think it was obvious, that we need more research. We do not fully understand what it is that causes the radicalization process. Hundreds of thousands of people are subjected to the same kind of "propaganda." Many people attend the kinds of places where some people think that radicalization occurs, and yet very small minorities of these people are ever radicalized to some level of terrorist initiative.
One of the things that struck me, particularly when we were in our study of radicalization more generally — and not to be critical of witnesses — was just how much the witnesses were wrestling with the subject matter because there isn't yet a depth of understanding of it. Much of the witness testimony was anecdotal. There are few scientific broadly-based studies where you have empirical evidence to support what it is that is going on in the radicalization and terrorism development process.
A strategy needs to have the idea of supporting research. Kanishka has been an excellent government program, but its funding will be finished and there's no indication that it will be replenished. That's the first element of a strategy.
The second element is that you need preventive programs. These preventive programs need to be throughout our community and our society and in many different ways.
First, police need resources to do community outreach. That can be time-consuming. It takes personnel, patience and well-trained police constable personnel; and there's a tremendous demand for more of it now, given the threat that we face.
We see that the RCMP has taken 600 people away from investigating other kinds of crimes to investigate terrorism. These are not 600 people working directly in the community on a day-to-day basis to create relationships and to try to find out what is happening before it gets to a level of terrorist radicalization. You need resources to help police forces — not just the RCMP, but also municipal police forces across this country — to train the personnel to do those kinds of community-based programs.
Communities need resources. Some of the communities that people want to focus on in this debate do not have a great deal of money or structure or a unified leadership. Communities need resources to deal with problem youth, perhaps within their own community. That has become clear as we have pursued this issue through witness testimony and through study.
We need adequate resources. The strategy has to come with money. There are 600 RCMP officers, as I said, who have been taken from files on financial crime, organized crime and drug crime, and they have been put on terrorism. That could amount to about $110 million to $120 million a year just for those 600 officers who haven't been replaced. The budget that the government has announced might, depending how you work it out, end up giving the RCMP about $20 million a year. It is not adequate. CSIS representatives have indicated the same problem, that they're on the edge of the limits of their resources.
If Bills C-51 and C-44 are new tools in the tool boxes of the police and national intelligence services, they won't have the personnel to use those tools. Even if this were the way to go, they wouldn't have the people to exercise, utilize and implement whatever it is that they have been given in these bills. Adequate resources for police, intelligence services, community groups and community programs are part of the strategy that is simply just lacking.
Perhaps one of the most important, although one of the most subtle, elements of the strategy is this: caution and prudence with the rhetoric that we use. It is extremely important that we do not isolate, identify or stigmatize given communities. It is intuitive to understand that, but over and over again we were told by police officers at the senior-most ranks that to stigmatize a community is to further alienate that community, which stimulates and it is generally believed to be one of the causes of radicalization, i.e., alienation, removal from society and being withdrawn. It also inhibits adequate police and intelligence investigatory techniques to the extent that if a community is isolated and stigmatized, then it is less likely to feel that it can trust these authorities and, therefore, less likely to be able to relate to them and give them the kind of information that they need to head things off before they get to an intense and critical level.
This latter point about stigmatization is extremely important in a number of ways. I want to make clear one of those ways: If we simply focus on certain groups, we may well limit the frame of reference and the focus on other possible sources of terrorism, which then becomes a limiting factor in the way you might deal with terrorism. As I have stated, this focus on stigmatizing and naming certain groups can also alienate those groups, further encouraging their radicalization and possibly inhibiting their inclination to deal with authorities in a cooperative manner. This isn't necessarily as it should be, but it is a human reaction and we are dealing with a very human process.
Ultimately, the strategy also must balance the powers given by the state to police and national security authorities with protections for our rights. One of the most key elements of that part of the strategy is proper oversight. There is ample evidence, prima facie practically, that there is not adequate oversight. I was encouraged to hear Senator Runciman say that he wouldn't close the door on parliamentary oversight, although he has certain doubts and I respect that. There is ample evidence, and I will talk about that as I proceed.
The second section of my presentation deals with what I'm calling a general assault on rights. I'm not going to say "no rights," but there is a serious assault on rights in a number of different ways. Senator Runciman and I see this new class of warrants for CSIS, which would "authorize CSIS to undertake disruptive action," quite differently. They are unprecedented. Other warrants in our system, and there are basically two kinds, do not offend the Charter of Rights. In fact, great care has been taken in the Charter of Rights to ensure that the major class of search and seizure is included in the Charter of Rights under reasonable grounds if properly approved.
There are many things about the criminal warranting process that make it much more acceptable. The fact that it doesn't offend the Charter of Rights is the most prominent reason that this process is acceptable. There are other elements, one of which is that eventually the person who is the target of a warrant needs to be notified. While that might be less relevant in the case of terrorism if the target is in some foreign country, nevertheless, the interests of the other side, not necessarily the person, and the rights encroached upon need to be protected in the process of allocating these warrants. There is no indication of or provision for those rights to be protected. That is to say, when one of these warrants is applied for, the judge should be given the opportunity, if not directed, to have a special advocate to represent society's broader interests in the allocation of a warrant that could see people's Charter rights offended, if not outright abused. It is very important that the other side — society's side, the right side — be included in what now would be an ex parte warrant process.
There is no provision for follow-up. While it is said that SIRC will have to follow up on each of these warrants, SIRC is a very small organization. Even though its resources have gone from $2.7 million to $5.4 million, I believe, there's no indication that it's adequate, given that they had said they were definitely underfunded to begin with.
Unlike criminal warrants, not all of which end up in cases before the courts, which at least gives some of them the chance to be reflected in an open and due-process way, few of these CSIS warrants will ever end up in court cases.
That raises another problem with these CSIS warrants which is that they can actually diminish the likelihood of successful prosecution because garnering a warrant that is an abuse of the Charter of Rights, which nets information that might one day end up being useful evidence, in that way won't be usable in a court case. This particular provision, as is the case with other provisions in this bill, can actually limit the possibility of successful prosecution because of the way that it is structured.
Another problem is the disruptive powers that these warrants will allow them. I should also say that there's a whole range of activities that CSIS will be able to undertake right up to just before they apply for a warrant.
They only have to apply for a warrant when they themselves decide that whatever it is that they want to do will offend the Charter of Rights. Not may, not might, but will. It isn't just speaking to the parents of some potentially radicalized youth. Disruptive activities can range from that — and certainly that is the case that the government makes — to detention. We don't know. To very intense questioning. We don't know. Certainly, if there isn't at least a special advocate there to represent the other side of the story, the likelihood that that might happen could be greater.
Essentially, these disruptive powers bring CSIS back into the realm of being a police force, out of the realm of being an intelligence agency. The great irony in that is that the reason that CSIS was originally created was because the police force that used to do that, the RCMP, went over the line in its intelligence activities and burned down a barn to disrupt a meeting that they saw as being seditious in some way or undermining security in some way. It was the barn burning that ultimately precipitated the creation of CSIS as a very clearly, distinctly differentiated body that was an intelligence agency and not a police agency. This bill sees it creeping, if not jumping, into the realm of almost fully-fledged policing.
The bill will also enhance the government's power to include individuals on the no-fly list. We have a no-fly list now. Now, it will enhance the power to include individuals on the no-fly list. The problem is that there is no requirement for the courts or for the government to tell the person who has been put on the no-fly list why they've been put on the no-fly list. Even if they come to appeal it, there is no requirement that they be told what it is that they have "been charged with." So they will be expected to deal with an appeal without having full information on the reason they have been put on that list. That is a fundamental intrusion into due process. It's an undermining of due process. It's a fundamental intrusion into people's rights. How would any of us feel if we were by mistake put on that list? We couldn't even find out why, and, when it comes to appealing that process, we still can't find out why. When it comes to appealing that process, we don't even have a special advocate or a representative of our interests in that process who can represent our interests.
While the minister is required to review this list within 90 days of a person's being put on it, there's no provision for a quicker review in the event that there's a clear mistake or in the event that there's some emergent situation that might affect that person and that the review should be done earlier. Also, at the end of 90 days, if you don't hear from the government, that's that. They don't have to tell you. You're still on the list, and you don't know why. So that's another way in which the bill assaults individuals' rights.
The bill also creates a new and broad definition of the crime of advocating terrorism in general. It says that you just have to knowingly do it. You don't have to willfully do it. You don't have to do it with any specifics in mind. Just knowingly do it. That causes legal problems; it causes rights problems. It particularly causes problems with respect to civil disobedience. Civil disobedience is a tenet of a democratic society. Civil disobedience is advocacy, demonstrating, taking steps that actually break the law, and you know they break the law. It might be blockading a road or blocking the path of a pipeline, but it is absolutely a tenet, a proper tenet and an acceptable tenet, of a properly functioning democracy to have civil disobedience. The key element of civil disobedience is that those who undertake it accept the power of the state ultimately to inhibit that or to punish them for having done it. But this bill so broadly defines the idea of terrorist activity that it isn't clear at all that it won't scoop up an Aboriginal group or an environmental group and translate what they're doing from a legitimate act of civil disobedience, reflecting their democratic right to oppose the state, and roll that into a terrorist activity that somehow undermines the security of Canada.
We received much input on this from Aboriginal groups. One letter that our committee received was from the Union of British Columbia Indian Chiefs, signed by, amongst others, Grand Chief Stewart Phillip. They make this case very powerfully, where they say, for example, that, late in 2014, the group's president, Grand Chief Stewart Phillip:
. . . stood in support of those in opposition to Kinder Morgan's proposed expansion of the Trans Mountain pipeline in the unceded Coast Salish Territories. On November 27, 2014 Grand Chief Stewart Phillip crossed the police line on Burnaby Mountain where Kinder Morgan was conducting exploratory drilling for the expansion of the pipeline. During the weeks' long protest over 24 protectors of public parklands were arrested including Grand Chief Stewart Phillip.
If Bill C-51 were implemented and if somebody — the government — decided that that pipeline is critical infrastructure, critical to the security of Canada — and certainly one could make an economic argument in that regard — what's to say that this legitimate type of protest in a properly functioning democratic society couldn't be seen to be a terrorist activity? Again, an affront to rights.
Instead of suggesting that terrorist advocacy needs to be done only "knowingly" in order to be an affront or in order to be a criminal activity, this could be softened by replacing "knowingly" with "willfully." That particularly applies to the advocacy case or to propaganda or to discussion.
What is also very disconcerting about this particular feature of the bill is that in cases in areas like this in the Criminal Code, usually the Criminal Code lays out the basis for defending yourself. In this case no definition is provided for defences that might be used in the case of terrorism advocacy charges, such as public interest or education.
With respect to immigration and security certificate hearings — and this is another area where rights are in jeopardy — to this point, these often are secret. The person whose security certificate is at stake, for example, is not personally present in these hearings, generally, but they are represented by a special advocate. The special advocacy provision will still exist. However, now it will be up to the government to define what information the special advocate will get. So the very prosecutors who are trying to win the case to prohibit the allocation of the security certificate will be the very people who will tell the defence what information they can get, and there are cases, evidence, very strong input by a number of special advocates that that can cause a deep problem with respect to the rights of the person who is applying for the security certificate.
The bill also introduces very subtly powers of search and seizure to the Ministry of Transport, search and seizure of computer and phone information without warrant. The bill also lowers the bar on preventative detention and on peace bonds. So the police can put somebody in detention for three days. Now, they will be able to do it for seven. With respect to peace bonds, they're making it easier to do a peace bond.
The argument can be made, I think, that in Canada a peace bond has never actually been utilized, but there's also no evidence that the reason for that is the way that that the peace bonds are currently structured. There's also no evidence that the current process of preventative detention hasn't actually worked.
In this case, again, the onus should be on the government to prove that lowering the bar on preventative detention and on peace bonds is necessary, and there simply isn't adequate indication. Certainly there's a question about whether or not, in fact, the current situation isn't good enough and it just hasn't worked because the police haven't focused on it, they haven't been inclined to think they need it, or they haven't seen where its use could be much, much more productive in the case of terrorism cases where you are trying to prevent something from happening.
Another broader area that I single out of threats to rights is threats to privacy, and that addresses the section of the bill that is the sharing of information act. In principle, this isn't all bad. The bill will allow for the sharing of information between and amongst 17 designated agencies from other areas of government. Certainly Justice O'Connor, in his commission concerning the Arar case, was very, very adamant that the siloing of information was and is a problem. It probably still is a problem. In fact, he went so far as to say that had there not been siloing of information between CSIS and the RCMP, the Air India disaster could probably have been stopped.
It isn't that we shouldn't be breaking down those silos. I think that's an important feature of the bill. We should be breaking down those silos. However, once again, this is being done in a way that is broader than it needs to be and could be limited without particular cost and in ways that wouldn't inhibit the achieving of the objective that this provision is trying to achieve. For example, agreements between those agencies of government, those departments, giving information and the 17 agencies that are designated recipients can be done. There's nothing stopping them from being done, agreements or memorandums of understanding, but they're not required. Even if they are done, there is no provision for them to be properly reviewed in any kind of structured, ongoing way.
Yes, as Senator Runciman points out, SIRC reviews what CSIS does, so SIRC has an ability to look at any information that CSIS receives, but it can't really look at any information that CSIS shares because SIRC doesn't have the power to go beyond what CSIS does. It can't follow the threat of an information or the threat of an issue beyond the silo within which CSIS is defined.
It would be easy to fix this problem. Simply have a more robust review mechanism and have that mechanism, a super SIRC, perhaps, with the resources to properly review these memorandums of understanding, or have the Privacy Commissioner with the resources to oversee this process and make sure the memorandums of understanding are done and make sure they're followed.
It should be noted that not only are there about 100 agencies in government that will be able to share information with these 17 designated agencies, and the 17 designated agencies will be able to share between and amongst themselves, but Canada has intelligence gathering and sharing relationships with 290 international agencies and countries — 290. There is no requirement of memorandums of understanding for how that information will be used. In fact, the bill does not limit. Quite the contrary, it explicitly says that once information is shared with CSIS or the CRA, because it's one of the 17 specified, or with the Canada Border Services Agency or any of these groups, there is no way for the group or the department providing the information to limit its use beyond giving it to that other organization. That agency or department can send it wherever it wants. That conjures up, of course, the Arar case.
There's a suggestion that the information shared only has to be relevant. That's a much lower standard than the standard utilized in privacy acts and related kinds of legislation where the information shared has to be necessary and has to be proportionate. If it were specified as necessary and proportionate to the level of a national security risk or potential risk, then, again, rights would be less threatened. There's not even a guarantee that the information has to be terrorism-related. There is no real specification that this information that's shared about our privacy needs to be terrorism-related. It can be for, who knows, whatever number. In fact, nine reasons are specified, but again, the definitions are very broad.
There's no limit on how long any of the information that's shared can be held. There's no specification of when it needs to be destroyed.
This is particularly disconcerting, all of this, when you consider that the CRA is one of the 17 receiving agencies and it's a sharing agency. You start to wonder why it is that no matter how often we asked, we couldn't get an answer for why this legislation refers to taxpayers' information as being shareable but doesn't refer to "designated taxpayer information," which has always been the term that's been used elsewhere. It may be that that's a benign change, but it may be that it isn't, and my suspicions are aroused because I can't get an answer on the implication of that difference — "designated taxpayer information" and in this act only "taxpayer information."
Imagine that you give money to an environmental group or to a group that you think does international aid work, feeding the poor in some third world country. What's to stop the CRA from simply doing a run on their computers to find out everybody who donated money to those kinds of organizations and then give that personal information to the RCMP or to CSIS or to CSEC? There is nothing to stop that. Zero. If ever there was an area in our government-related privacy that was almost sacrosanct, it was CRA and tax information, as it should be, because if people can't trust that their information is private, then there's always this risk that they may not be as willing to deal with the CRA in the way that they should. That's not right, but again, it's a human process.
I think that we need to understand that there are a series of these, and I've only I would say literally touched the tip of the iceberg. In fact, I'm just going to finish with one other area in which rights are undermined, and that is that there is no process for ensuring that information being shared is reliable. In the Arar case, the information that was shared wasn't reliable. That was one of a series of problems that occurred in the Arar case.
So, again, if we had a review process, the Privacy Commissioner would be one place, and the Privacy Commissioner has been held out by this government, and the Auditor General, as being ways that all of this will be reviewed. But let's remember that the Privacy Commissioner and the Auditor General don't review all of these 17 departments, even annually. They don't review all of the hundreds of departments and agencies of government even annually. So there is no provision or no guarantee that they would be reviewing the processes of sharing information on any kind of regular basis. There is no provision that the Privacy Commissioner in particular would be reviewing memorandums of understanding, even if they were done. The Privacy Commissioner's powers are limited, among other things, to being able to say whether the process of transferring information was illegal or legal, so there's another gap in those processes that raises serious questions about our rights.
One of the greatest frustrations I feel about this bill is that there is a sentiment, probably, amongst Canadians — there is a fear and a sense — that something needs to be done. I'm not saying that everything in this bill is entirely wrong, but I am saying that there's enough in this bill and a lot in this bill that is threatening to rights.
So much of that could be offset if we just had proper oversight, but we don't have proper oversight. We don't have parliamentary oversight. Oversight is the ongoing, day-to-day policy initiative advice. Review is after the fact. We have no ongoing oversight from an independent third party body, which could be fulfilled by a parliamentary oversight body. Our Five Eyes partners, the key intelligence group within which we work, all have parliamentary oversight — all of them. They have all worked well. The British model that's in the Dallaire-Segal bill has worked exceptionally well; there has never been a leak. We don't have it.
What we have is SIRC, which has a handful of people to supervise CSIS, which has 2,000 or 3,000 people. SIRC now has a budget of $5.4 million to supervise an agency with a budget of $2 billion to $3 billion. SIRC can't supervise anything that goes outside of CSIS, such as an operation that CSIS might be working on with some other group.
We have SIRC. And we have a commissioner who oversees CSEC, which is the communications surveillance group. He has 11 people, and I don't know if the budget is even a million dollars. We have the Civilian Review and Complaints Commission under the RCMP, but they don't just review the terrorism-related activities of the RCMP; they review everything that the RCMP does. Again, that is after the fact. That leaves 17 receiving, designated agencies with some form of national security or policing enforcement responsibility without any supervision at all, without any third party supervision to speak of at all. The Department of National Defence and its efforts, and the Foreign Affairs department, their intelligence and national security enforcement roles are without supervision of any kind.
It is so frustrating to consider that if only we had that, if only we had parliamentary supervision, the kind of super SIRC or SIRC-like supervision over all of these national security agencies, if only we had a Privacy Commissioner who could take a fuller, more active role in the review of the transfer and sharing of information. If only we had those things, many of the concerns that people have with this bill would be alleviated. I'm not saying all of it, but much of the concern would be alleviated. It is simply overkill to do what's being done now without adequate supervision.
Senator Runciman made a very good point. He said the world has changed. This isn't the kind of intelligence environment we found ourselves in even in the Cold War, which was a little less intense. It has changed. It is much more intense, and we are giving more power to police, other enforcement agencies and national security agencies. It goes almost without saying, certainly I would say almost by definition, because of that evolution, the powers are evolving, but the supervision of those powers haven't evolved commensurately and they need to.
Finally, and I alluded to it earlier, there is the whole question of limited resources. We've heard over and over again from the RCMP that they've moved the 600 personnel. That leaves whatever they were doing undone. Unfortunately, some of what they were doing was financial crime, and while that might not look like terrorism, financial crime is often related to terrorism. Those files are now going unattended. They need at least a back-of-the-envelope calculation because we can't get real figures, but it's probably $120 million just to replace the 600, not to mention the extra work that they've got because of terrorism overall, and they've been cut by about 15 per cent in the last three years. Resources are critical. CSIS would say the same thing. Can I have another five minutes?
The Hon. the Speaker: Are honourable senators willing to grant five minutes to Senator Mitchell?
Some Hon. Senators: No.
The Hon. the Speaker: There is an unwillingness to grant Senator Mitchell five more minutes.
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