02 June 2015
Hon. Grant Mitchell: Honourable senators, I have a lot of work to do with this bill, so I'll get right to my points.
Bill C-51 is entitled the Anti-terrorism Bill. There is some deep question in my mind as to whether it will contribute significantly to that, but it is designed to address the issue that confronts us. That issue is not to be taken lightly. No reasonable person would take the threat of terrorism lightly at this time in the history of our country.
There are, I think, four manifestations of terrorism, two of which we talk about all the time and two that are more subtle or subdued, not as evident and apparent within our social framework.
The first, of course, is the danger of attacks on Canadian soil. We have seen those. We saw those with the attack in Quebec and with the attack in our own Parliament. We saw it with the conspiracy of the Toronto 18 and with the conspiracy to wreck a VIA Rail train. It is the serious threat of physical attacks that could kill, harm individuals and damage, if not destroy, infrastructure.
The second risk and threat of terrorism is the danger of Canadians being radicalized and travelling elsewhere to fight radical causes. Those two are widely spread in our discussion in the lexicon of this debate, but there are two others that are, as I say, not as highly elevated but are in many ways every bit as important.
What we must keep in mind is that there is a pretty consistent theme that defines many of the people who end up in these categories — threatening attacks here, undertaking attacks here or travelling abroad — and many of them are young people. They are young people in various communities across this country, from Calgary to Montreal.
It struck me yesterday, as I was preparing for this speech, to imagine being a parent of a young person, waking up one morning and realizing they were either in Syria or they had been stopped at the border on the way to Syria. This young person, often under 18 or just barely over 18, who you thought you knew, who you raised, you loved, protected, cared for and nurtured has all of a sudden ended up in Syria fighting a war that didn't bear resemblance to their circumstances, or they were caught trying to get there. I began to realize what a huge human impact this has on our neighbours, on communities across this country.
Imagine a parent confronting that horror. That's another threat of terrorism. Young people could be manipulated by the Internet or by sources, individuals and places that we have yet to come to grips with, in a way that they would make a decision that would literally end their life, or ruin their life and the lives of other people. We can't forget that. It's at the basis of what we need to keep in mind when we're involved in this debate; namely, that we, as Canadians, are all in this together. This isn't a we-they situation. This isn't some sort of a community somewhere that's more damaged by this than somebody else — that should be separated and alienated. There are communities that are suffering deeply and directly because families and members of their community are directly involved and endangered by it in ways that others of us aren't. I mention that as a third threat.
The other threat is the threat to our rights. One of the great and unfortunate ironies would be if we reacted inappropriately to the threats in such a way that we actually do what the terrorists want us to do, which is to erode our democratic and civil liberties and, in some senses — I don't want to say "overreact" — but react in a way that is not quite on the mark, because we feel these pressures in the instant or moment, and we haven't taken the time to step back to say, "Wait a minute. What is it we are trying to accomplish and how do we accomplish that?"
That's not to say there is not some value in this bill. This bill addresses a number of issues that need addressing. In particular, and this is a point that was made by Justice Major in his review of the Air India tragedy, such an attack might have been avoided had there been better protocols for transferring information between CSIS and the RCMP. It became part of the debate and analysis of terrorist concerns throughout that period, in the intelligence and policing communities; namely, that we had to do something about sharing information between and among government agencies, security agencies, et cetera.
That hasn't been accomplished as well as it could be. Progress has been made by these agencies, but it is correct that the siloing in this area needs to be addressed. And although it does not do it adequately — and in some sense it does it dangerously, I would argue — this bill does address that.
I think there's room to bolster the no-fly-list provisions. Part of that is the sharing of information and accumulating of that information more rigorously. Again, though, I'm not sure it has been accumulated more carefully.
Finally, there are some arguments to be made that preventive detention and peace bonds might be strengthened in the way they could be applied, but I'm cynical about, and I'm not convinced that they fully address the issue that they're trying to address.
But there is some value to this bill; I don't say there is not. At the same time, what is critical about this bill, for me, isn't so much what it's trying to do, but that it isn't doing it particularly well. In some cases, and in some deep and important ways, it's doing it dangerously. It doesn't achieve one fundamental thing: Any time a government begins to expand state powers, policing and national security powers in particular, you have to be doubly careful about protecting civil liberties and democratic rights.
I think that's where this bill fails. It attempts to do the former without achieving the latter. What's particularly frustrating is that you could achieve the latter — that is to say the protection of civil liberties and rights — with changes to this bill that wouldn't be inordinate or difficult. For some of the changes, their time has absolutely come.
You could get what you want with powers for policing, and you could protect civil liberties at the same time.
Minister Blaney came to our committee and made an interesting point. He said he's come to the conclusion that there can be no prosperity without security. That might be true; I'm not sure. It raises some interesting philosophical debate possibilities. But I do know for sure that there can be no security without the protection of rights, period. What other major reasons would there be for the protection of rights if it weren't to underline the importance of security? Security and rights go hand in hand, and you can't have one without the other as far as I'm concerned.
It's very instructive and probably indicative of the government's failure to capture that balance or even to consider the balance in focusing just on one side of the equation. The preamble, the first "whereas" on page 2 of the bill, says:
Whereas the people of Canada are entitled to live free from threats to their lives and their security;
And it begs the question of what the rest of that sentence should be. It should be:
Whereas the people of Canada are entitled to live free from threats to their lives and their security, and threats to their rights;
It would have been so easy to have applied that to this preamble that it's very instructive that it wasn't applied.
As I say, I'm not opposed to what needs to be done or that we need to address the issue of terrorism in a significant way. I'm just saying that this bill doesn't do it very well and it might do it dangerously.
First, let me give it some context. There is no overall strategy. Wesley Wark, who came to one of our open caucuses this week, made the point that there has only once been a national security strategy document written in this country. That was in 2004. He made the point it wasn't particularly good, but at least it was a start. We still don't have one.
A strategy to deal with terrorism has a number of elements that must be met. First of all, we need to know more about the process of radicalization. That's the Kanishka Project. It was a good project. It has been limited in its financing — that's been cut — and it's also been limited in the number of years it will continue.
We don't know enough about what causes the process of radicalization. We've had witness after witness before the committee who has made that point.
We need preventive programs and rehabilitative programs for people who have been radicalized or who are in the pre-criminal stages — the evolution of radicalization. We need to have community work done by police. Senior police officers told us over and over again, independently, that the best days of their working lives on issues like this are when they are in the community dealing with people in the community and connecting with them so they can solve these problems before they occur.
We need support for communities that are facing this problem. Often these communities are filled with new immigrants who are not powerful within our society in the way that other communities are. They need help and understanding. They need some resources.
We need education. This was a point that was made by Senator Jaffer at one of our committee meetings. We need intense and coordinated counter-narrative efforts, particularly to counter the messages that come via the Internet.
One of the problems that a strategy of this type underlines and emphasizes is that the government has not put enough resources into dealing with terrorism.
There are questions that are addressed in this bill that beg the issue of whether we need more or new laws, or whether we have sufficient laws but not enough resources with our police and other national security forces to deal with them — to properly implement those laws.
The illustration that makes the point is the classic example that the RCMP has moved at least 600 personnel from other major crime files to terrorism. A rule-of-thumb, back-of-the-envelope analysis of that would say that's probably a cost of about $120 or $130 million a year. The Prime Minister announced $30 million a year over the next five years. That's insufficient.
They will argue that they increased the resources from 2006 to 2012, but if there were sufficient resources in 2012 with that increase and the intense terrorist threat didn't exist at that time and it has been cut 15 to 20 per cent since that time, then there aren't sufficient resources to deal with terrorism and the other pressures on the RCMP, for example, at this time. CSIS made the same point; namely, that they are having to prioritize in a way that they might not otherwise have done if they'd had sufficient resources.
The other thing lacking in the context of this bill is proper oversight. The world has changed. There is no question of that. At least during the Cold War, as dangerous as the world was, we knew how to manage it. We figured that out. It took decades, but we figured it out.
Now we have a new configuration of threat and it is deeply frightening in part because we haven't figured out how to deal with it yet. But things have changed fundamentally. This threat is complex, and complex perhaps in a way that we hadn't anticipated before and complex on our own soil, within our own boundaries, and it therefore more directly addresses our rights and civil liberties issues perhaps than other kinds of threats did in the past, even the Cold War threats.
We need to restructure oversight and review. Just for the record, oversight is that which is done by a body on a day-to-day basis. It is policy and managerial to some extent, driven by developing plans and working with an organization with the future in mind. Review is the back end of that. That is looking back at what an organization has done. We have not enough oversight. We have no external oversight of our national security efforts and we have not enough operational review. I will get into that later in my speech.
On balance, in the end, I would say all that adds up to is there being no balance in this bill. There is insufficient balance, at the very least, in the bill, and it is because the government has not come to grips with yes, extending state powers where they might be needed, but no, they have not, on the other hand, on the other side of the equation, developed the kinds of protections that civil liberties and democratic rights require when they will inevitably be threatened by this process.
Let me tell you a number of ways in which rights and freedoms will be threatened, first of all with respect to Part 1 of the proposed security of Canada information sharing act. That basically addresses, as the name suggests, the ability of organizations within government and with other governments to share information. There will be 17 different agencies in Canada that will be receiving information. They are called recipient institutions. Other government agencies and departments will have an obligation if they see information that they think should be forwarded to those 17, and there are 260 some-odd countries with which we share information or have national security relationships. This is a complex information-sharing process and it's fraught with danger for privacy and for rights.
What it does not provide for is that which would protect our privacy. Many elements would protect our privacy. For example, there is no legislative requirement for memorandums of understanding that would define the kinds of information that could be shared between and amongst departments and other governments and what that information could be used for, for example. There is no specification of the need to have a memorandum of understanding between entities that are sharing information. If they do decide to have a memorandum of understanding, there is no required review of those MOUs by any agency or review agency or review group in our government. There is no required review of any information once it has been shared, and there is nobody in particular that has the resources or the specific focus to do it.
Now, the government will argue the Privacy Commissioner could do that, and the answer to that is, first, the Privacy Commissioner probably doesn't have the resources to do it; and second, the Privacy Commissioner can look at what information has been shared but can't rule, doesn't have the power to rule, on the lawfulness of the sharing of that information. What's more, the Privacy Commissioner doesn't have the resources to check 17 recipient agencies with a multitude of information sharing occasions or instances on any kind of regular basis.
We had an excellent witness from CRA, Ms. Hawara, yesterday and previously. She was very forthright. We asked when the last time was that the Auditor General audited them, and she said, "Well, 2010." Five years ago, the Auditor General audited that area of the CRA that has national security responsibilities and jurisdiction, which is charities work. I asked, "When is the last time that the Privacy Commissioner audited you?" She said, "I never saw the Privacy Commissioner."
So the Privacy Commissioner might get around to auditing each of these 17 departments and agencies, I don't know, once every 17 years, or each of them once every 17 years. The Auditor General? Who knows? It took two years for him to audit us. He might have been auditing some of these agencies. But they don't have the resources to do it and nobody is checking.
The definition of what kind of information can be shared is too broad. It says information that one department determines might be relevant to the jurisdiction — they might be guessing about that — and the responsibilities of one of the recipient departments, or of 17 of the recipient departments. "Relevant" is awfully wide, extremely wide. In fact, the word that has been proposed by the Privacy Commissioner, who was also an excellent witness, is "necessary." The information should be necessary. The point he makes in his presentation is this: Applying a relevant standard, because it exposes the personal information of everyone, would contribute greatly to a society where national security agencies would have virtually limitless powers to monitor and profile ordinary Canadians. Do you know what this sounds like? This sounds like gun control on steroids.
The fact is that they will have broad powers to look at information because that information has to be relevant. It doesn't have to be necessary to the work and jurisdiction of the recipient group, or proportional to that. There is no real limit to what the information can be used for once it is shared. There is nothing to stop, ultimately, it would seem, or I haven't been convinced, another Maher Arar case. There are no limits to how long the information could be kept and no specification of how that information will be properly destroyed in a timely fashion.
There is a definitional problem with information that can be shared. It would be information related to an activity that undermines the security of Canada, which would include, among other things, interference with the Government of Canada in relation to the economic or financial stability of Canada. Well, that's a very broad indication of what might be relevant information. You can begin to see why it is that Aboriginal groups and environmental groups are very concerned. For example, say they set up a camp, as is done sometimes in the North, across a pipeline, or inhibit the building of a pipeline because they feel differently about the pipeline than the government does. At what point does that stop being advocacy and start being terrorism if they happen to damage something in the process of doing that?
There is also a very subtle but nonetheless disturbing change of the standard term, "designated taxpayer information," which currently is what is allowed to be shared by CRA in limited cases. "Designated" has been dropped, so now what can be shared is "taxpayer information." How much more broad is that? What's to stop the CRA from running a metadata kind of program to determine who is giving what amounts of money to which charities that somehow somebody in CRA might think is of relevance to CSIS, and all of a sudden CSIS has taxpayer information on a variety of charities and charitable givers with no strings attached. They can use it however they want.
You could imagine a case. On the weekend, and I know this was purely anecdotal, there was a demonstration, and now it has been reported that one of the RCMP members said to one of the demonstrators, "You're not a citizen right now, not while you're demonstrating." All of a sudden, there is a tension between a demonstrator and an RCMP officer. That's written up in a report, with names attached to it, and that's shared because it looks relevant to CSIS. CSIS finds out that that demonstrator was up north living in a camp that crossed a pipeline, and now you have an 18-year old or a 17-year-old with a file being built that could begin to change their life and change it way into the future.
There is no ability for the one group, SIRC, which supervises CSIS, to follow a thread of information. They can look at what information is being used in CSIS but, if that information is passed to CRA or CBSA or some other group, they don't have the power to follow that. That, of course, means that they can't adequately review in the way that the government might argue or consider that they could.
So there is much danger for privacy. Part 2 is the no-fly list. This list, in and of itself, is a good idea. But if you're on that no-fly list and you want to get off it because there has been a mistake then you will have real trouble. You can appeal it to the courts but the judge may base a decision on that appeal on information and other evidence even if the summary of that information and evidence is not provided to the appellant. Has it been provided to the appellant? So the appellant may not ever find out why that they have been put on the list. If they go to the courts, it is under no obligation, if secrecy concerns are involved, to tell them. The judge can rule on that.
The minister can actually withdraw information that he or she has given to the courts and then the judge, having seen that information, regardless of what the judge thinks of its relevance to the case, can't use it. The judge may, however, use evidence and information that wouldn't be admissible in a normal court of law. At any time in the procedure the judge must, on the request of the minister, hear information or other evidence in the absence of the public or of the appellant — of the individual — in fundamental secrecy.
You might say that it makes sense because certain things need to be kept secret. Well, that is true. But there is in other places under the Immigration and Refugee Protection Act, a provision to appoint special advocates. They play a very important role in keeping something that is secret private while representing the interests of the person who has been accused of something, which in this case is being put on a no-fly list. The advocate gets to speak first to the appellant, in this case, for several days, maybe for even a week, to exhaust everything that they need to find out about the case because they can't speak to them again. They sit in the proceedings and represent that appellant. There are those who would argue in this case that the judge could still call an amicus curiae, which is very different from a special advocate because they don't get to advocate. They just do some extra work for the judge, but they don't ever get to speak to the appellant.
This is a case where in Canada, in the 21st century, where the minister can limit information that would bolster his or her side of a hearing, exclude the appellant from the process, not have anybody representing that appellant and not tell that appellant what exactly it is that they have been accused of. Imagine that. This is Canada. That's the 21st century. That's a tremendous threat to due process in the law.
The Criminal Code, Part 3, there are several things here, most of them relating to definitional issues, which in my mind are arguably too broad. As a result of that, it again lays open the possibility of false positives, which is where people are being dragged into the net of a criminal action when in fact they really didn't do something criminal.
There is some question about the terminology, "advocates" and "terrorism" in general as being critical to the exchange of information and ultimately to a Criminal Code violation. There would be those who argue that this would be mostly covered by hate speech laws now. The difference, in this case, is that there is no specification of defences, as is the case with hate speech laws. I quote the Canadian Bar Association, from their presentation:
There is no requirement of mental fault and the proposal lacks public interest, education or religious discussion defences.
Even the police are concerned about that limit, about that chill on freedom of speech because it could limit the intensity or desire with which members of a community would choose to talk about their concerns or what's being said within their community about violence or terrorism. It could actually impede the investigation process and the ability of stopping things before they get more serious.
It also says that the offence is if the advocacy is done knowingly. There are those who argue that it should be strengthened, who say that the bar should be raised to "willingly." "Knowingly" could be — and it's an interesting irony — applied to the fundraiser that the Conservative Party put out, which quoted the ISIS person's threat against the West Edmonton Mall, which is about a kilometre from where I live. That was done knowingly, and that was a message to incite terrorism, so "willfully" is a recommended choice in that case.
The preventive detention, the peace bonds are probably little more than blunt instruments. Professors Forcese and Roach agreed in their presentation that the changes to preventive detention or peace bonds are about changing law where the real issue has been resource and operational problems. It may be that those laws need to be changed, but what they haven't been convinced of is that resource issues have been properly addressed and that these changes may not actually be necessary. I'm not saying whether or not they are. I am saying that we're not sure there are enough resources for the police to have used the laws that they already have, let alone laying on new laws.
So the problem under Part 3 of the Criminal Code is, again, it broadens things with false positives, the danger of people being sucked into a net of criminality, when they shouldn't, and not having the defences that would be specified as they are in the case of hate speech.
With respect to the CSIS provisions, Part 4, these hinge on new warranting activities — special new warrants — that will allow CSIS operators and officials to involve themselves in what are called disruptive activities. The danger there is that those disruptive activities might be police activities. Even though the bill specifies that nothing allows CSIS to perform law enforcement activities, there is nothing to say that they might not do that. In fact, we have gone over the very line that was crossed when the RCMP had national security intelligence and policing functions decades ago, when they burned a barn to disrupt what they thought was a terrorist meeting. So it was out of that that CSIS was created to separate the intelligence gathering body from the policing body.
Now we're stepping back across that line and what's worse — and this is the most egregious threat to rights in the bill — is that they will be able to, as a result of these warrants, explicitly break the Charter of Rights. I repeat: explicitly break the Charter of Rights. This isn't like other warrants that are structured in a way under the Charter of Rights so that they don't break the Charter of Rights. This will explicitly break the Charter of Rights. I want to read from the Forcese and Roach presentation again, where they make a very startling and powerful comment about this feature of the bill:
The current proposal is a . . .
. . . rupture . . .
with fundamental understandings of our legal system.
For the first time, judges are being asked to bless in advance a violation of our Charter rights, in a secret hearing, not subject to appeal, and with only the government side represented. There is no analogy to search warrants — those are designed to ensure compliance with the Charter.
This is a constitutional breach warrant. One other witness said: "It's like smuggling a notwithstanding clause into this law." What's also very disconcerting is that these warrants will be done in secret — because they deal with secret information — but again without the availability of a special advocate, of somebody who is representing the public interest in this process. Our legal system, which is respected and renowned across the world, is based upon on adversarial process. Our judges are good, but our judges are also not infallible and they appreciate deeply the give and take of the adversarial process that is presented before them daily in our court system. But it won't be presented before them in this system.
So here we have a process of allowing what shouldn't be a police force to begin to do policing activities that might break the Charter of Rights, applying for a warrant to do so when they decide it will break the Charter of Rights, and all of that being done in secret without any third party, external or offsetting side to the government's case. That is an affront and tremendous risk to and encroachment upon our civil rights. But there's more.
The Supreme Court has made it very clear that there must be accountability, an essential feature of a warrant regime that respects the Charter of Rights and Freedoms. There is no structured accountability of these warrants in the bill.
I will say to the minister's credit that he acknowledged, after pushing throughout our hearings — and I congratulate the chair, Senator Lang, for pushing on this point as well, and it's in our observations — that he will see that warrants circle back to SIRC, the review body of CSIS. But it's not in the proposed legislation, so it doesn't necessarily have to happen; and we don't know if they have the resources to do it.
There's also a problem with the definition of "national security," how it differs between departments and how they would reconcile those differences.
In the part of the bill on the Immigration and Refugee Protection Act, the problem again is related to the assault on due process for security certificate hearings. That's where special advocates have been allowed, but under C-51 the government will have the right to filter the information that the special advocates receive. The minister will be able to give information and take it back, and then the judge won't be able to use it. As well, the appellant involved in the security certificate hearing won't be present, so the process will be weighted more than it already is to the government's side.
Here again we will have, in the 21st century in a once-enlightened democracy, the possibility of secret hearings where information on one side can be controlled by that side — information that might be relevant and important to the case being made by the other side. They won't get the information, and their representative in secret hearings won't get it either.
I'm going to finish up my comments and go to amendments. Oversight could change and fix a lot of this. We need parliamentary oversight on both sides of the house — all parties represented. The other four of our Five Eyes partners have variations on that; and it works. We need broader operational or administrative review processes. Right now, only 3 of 17 such groups have review processes. CSIS has SIRC; CSEC has a commissioner, a very small group; and the RCMP has the Civilian Review and Complaints Commission. O'Connor proposed a super SIRC, which would do the business it does for CSIS for all 17 of these agencies. We could have a more powerful role for the National Security Advisor. There are ways to handle this. The CBSA doesn't have anyone reviewing what it does, period. Imagine that. We need to make sure that we have resources for the Privacy Commissioner, the RCMP, CSIS and other institutions working on these important matters.
As a result, I will propose amendments to the bill. I was hoping I wouldn't have to read them, but I do. It will be the most exciting part of my speech.
In conclusion, the breadth of powers to be extended in some senses is staggering. It is particularly staggering given that this is being done by a government that hates big government. If ever there was an intrusion into Canadians' lives in a way that that would capture the essence of big government, it is, of course, to be found in this bill in the variety of ways that I have outlined and probably in several ways I have not outlined. I will move that the bill be amended in various ways: that we establish policies defining information sharing; that we establish memorandums of understanding in the law; that we establish that the Privacy commissioner must be notified of these MOUs and of the information that is exchanged. These amendments will provide a more measured approach to the type of taxpayer information that falls within the parameters of this bill. We will exclude any ability to contravene the Charter of Rights. We will give powers to SIRC that it doesn't have now to do proper reviews of what CSIS is doing with the new warrants. We will allow SIRC and the Commissioner of CSEC, the review board of the RCMP and the Privacy Commissioner to exchange information as they review, that is, follow the thread of information. We will provide for oversight. All of the proposed amendments I am moving will capture in total those summarized ideas.
Motion in amendment
Hon. Grant Mitchell: Therefore, honourable senators, I move:
THAT Bill C-51 be not now read a third time, but that it be amended
(a) in clause 2, on page 5:
(i) by adding after line 15 the following:
"(1.1) Each Government of Canada institution that discloses information under subsection (1) must do so in accordance with clearly established policies respecting screening for relevance, reliability and accuracy of the information.", and
(ii) by adding after line 18 the following:
"(3) Prior to disclosing information under this section, the Government of Canada institution must enter into a written arrangement with the recipient Government of Canada institution specifying principles governing information sharing between the Government of Canada institutions.
(4) The written arrangement entered into pursuant to subsection (3) must be consistent with the principles enumerated in section 4, and include provisions respecting the circumstances under which shared information is retained and destroyed, the confirmation of the reliability of the shared information and future use of the shared information.
(5) The Government of Canada institution must
(a) notify the Privacy Commissioner of any written arrangement into which the institution plans to enter; and
(b) give reasonable time to the Privacy Commissioner to make observations.
(6) A copy of any written arrangement entered into pursuant to subsection (3) must be provided to the Privacy Commissioner.";
(b) in clause 6,
(i) on page 8, by replacing line 31 with the following:
"6. The portion of subsection 241(9) of", and
(ii) on page 9,
(A) by replacing line 2 with the following:
"(b) designated taxpayer information, if there are reason-", and
(B) by deleting lines 19 to 21;
(c) in clause 42, on page 49,
(i) by replacing lines 21 to 23 with the following:
"measures will be contrary to", and
(ii) by replacing line 29 with the following:
"enforcement power or authorizes the Service to take measures that will contravene a right or freedom guaranteed by the Canadian Charter of Rights and Freedoms.";
(d) in clause 50, on page 55, by replacing line 1 with the following:
"50. (1) Paragraph 38(1)(a) of the Act is amended by striking out "and" at the end of subparagraph (vi), by adding "and" at the end of subparagraph (vii) and by adding the following after subparagraph (vii):
(viii) to review the use, retention and further disclosure of any information disclosed by the Service to a Government of Canada institution, as defined in section 2 of the Security of Canada Information Sharing Act, or to the government of a foreign state or an institution thereof or an international organization of states or an institution thereof;
(2) Section 38 of the Act is amended by";
(e) on page 55, by adding after line 8 the following:
"50.1 Subsection 39(2) of the Act is amended by striking out "and" at the end of paragraph (a), and by adding the following after paragraph (b):
(c) during any review referred to in paragraph 38(1)(a)(viii), to have access to any information under the control of the Government of Canada institution concerned that is relevant to the review; and
(d) during any review referred to in paragraph 38(1)(a)(viii), to have access to any information under the control of the government of a foreign state or an institution thereof or an international organization of states or an institution thereof that the government, international organization or institution consents, upon request by the Review Committee, to disclose any information that is relevant to the review.
50.2 The Act is amended by adding the following after section 39:
39.1 (1) If on reasonable grounds the Review Committee believes it necessary for the performance of any of its functions under this Act, those of the Commissioner of the Communications Security Establishment under the National Defence Act, those of the Civilian Review and Complaints Commission for the Royal Canadian Mounted Police under the Royal Canadian Mounted Police Act or those of the Privacy Commissioner under the Privacy Act, the Review Committee may convey any information that it itself is empowered to obtain and possess under this Act to
(a) the Commissioner of the Communications Security Establishment;
(b) the Civilian Review and Complaints Commission for the Royal Canadian Mounted Police; or
(c) the Privacy Commissioner.
(2) Before conveying any information referred to in subsection (1), the Review Committee must notify the Director and give reasonable time for the Director to make submissions.
(3) In the event that the Director objects to the sharing of information under this section, the Review Committee may decline to share the information if persuaded on reasonable grounds that the sharing of the information would seriously injure the Service's performance of its duties and functions under this Act.
(4) If the Review Committee dismisses the Director's objection, the Director may apply to a judge within 10 days for an order staying the information sharing.
(5) A judge may issue the stay order referred to in subsection (4) if persuaded on reasonable grounds that the sharing of the information at issue under this section would seriously injure the Service's performance of its duties and functions under this Act.
(6) At any time, the Review Committee may apply to a judge for a lifting of any stay issued under subsection (5) on the basis of changed circumstances.
(7) For greater certainty, the Review Committee may request information it believes necessary for the performance of any of its duties and functions under this Act from the Commissioner of the Communications Security Establishment, the Civilian Review and Complaints Commission for the Royal Canadian Mounted Police or the Privacy Commissioner.";
(f) on page 55, by adding after line 16 the following:
"51.1 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 members of both Houses of Parliament who are not ministers of the Crown or parliamentary secretaries.
(2) Subject to subsection (3), the Committee is to be composed of eight members, of whom four must be members of the Senate and four must be members of the House of Commons, and it shall include at least one member of each of the parties recognized in the Senate and in the House of Commons.
(3) If either of the two Houses of Parliament has more than four recognized parties, the committee membership must increase to include at least one member of each of the parties recognized in the Senate and in the House of Commons and to maintain an equal number of members of the Senate and members of the House of Commons.
(4) 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.
(5) 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.
(6) 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.
(7) 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.
(8) 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.
(9) 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.
(10) 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.
(11) Meetings of the Committee must be held in camera whenever a majority of members present considers it necessary for the Committee to do so.
(12) 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.
(13) 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.
(14) Despite any other Act of Parliament or any privilege under the law of evidence, but subject to subsection (15), 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.
(15) No information described in subsection (14), 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.
(16) The annual report required under subsection (12) 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.
(17) In this section, "Committee" means the Security Oversight Committee of Parliament established by subsection (1).
If I can just step outside the motion for one moment, these related amendments are the other side of the ability of SIRC to share information in its review processes, that is, to follow the thread with other agencies.
National Defence Act
51.2 The National Defence Act is amended by adding the following after section 273.64:
273.641 (1) If on reasonable grounds the Commissioner believes it necessary for the performance of any of the Commissioner's functions under this Act, those of the Security Intelligence Review Committee under the Canadian Security Intelligence Service Act, those of the Civilian Review and Complaints Commission for the Royal Canadian Mounted Police under the Royal Canadian Mounted Police Act or those of the Privacy Commissioner under the Privacy Act, the Commissioner may convey any information that the Commissioner is empowered to obtain and possess under this Act to
(a) the Security Intelligence Review Committee;
(b) the Civilian Review and Complaints Commission for the Royal Canadian Mounted Police; or
(c) the Privacy Commissioner.
(2) Before conveying any information referred to in subsection (1), the Commissioner must notify the Chief and give reasonable time for the Chief to make submissions.
(3) In the event that the Chief objects to the sharing of information under this section, the Commissioner may decline to share the information if persuaded on reasonable grounds that the sharing of the information would seriously injure the Establishment's performance of its duties and functions under this Act.
(4) If the Commissioner dismisses the Chief's objection, the Chief may apply within 10 days to a judge designated under section 2 of the Canadian Security Intelligence Service Act for an order staying the information sharing.
(5) The judge may issue the stay order referred to in subsection (4) if persuaded on reasonable grounds that the sharing of the information at issue in the application would seriously injure the Establishment's performance of its duties and functions under this Act.
(6) At any time, the Commissioner may apply to a judge for a lifting of any stay issued under subsection (5) on the basis of changed circumstances.
(7) For greater certainty, the Commissioner may request information the Commissioner believes necessary for the performance of any of the Commissioner's functions under this Act from the Security Intelligence Review Committee, the Civilian Review and Complaints Commission for the Royal Canadian Mounted Police or the Privacy Commissioner.
Royal Canadian Mounted Police Act
51.3 The Royal Canadian Mounted Police Act is amended by adding the following after section 45.47:
45.471 (1) Despite any other provision in this Act, if on reasonable grounds the Commission believes it necessary for the performance of any of its functions under this Act, those of the Security Intelligence Review Committee under the Canadian Security Intelligence Service Act, those of the Commissioner of the Communications Security Establishment under the National Defence Act, or those of the Privacy Commissioner under the Privacy Act, the Commission may convey any information that it itself is empowered to obtain and possess under this Act to
(a) the Commissioner of the Communications Security Establishment;
(b) the Security Intelligence Review Committee; or
(c) the Privacy Commissioner.
(2) Before conveying any information referred to in subsection (1), the Commission must notify the Commissioner and give reasonable time for the Commissioner to make submissions.
(3) In the event that the Commissioner objects to the sharing of information under this section, the Commission may decline to share the information if persuaded on reasonable grounds that the sharing of the information would seriously injure the Force's performance of its duties and functions under this Act.
(4) If the Commission dismisses the Commissioner's objection, the Commissioner may apply within 10 days to a judge designated under section 2 of the Canadian Security Intelligence Service Act for an order staying the information sharing.
(5) The judge may issue the stay order referred to in subsection (4) if persuaded on reasonable grounds that the sharing of the information at issue in the application would seriously injure the Force's performance of its duties and functions under this Act.
(6) At any time, the Commission may apply to a judge for a lifting of any stay issued under subsection (5) on the basis of changed circumstances.
(7) For greater certainty, the Commission may request information it believes necessary for the performance of any of its functions under this Act from the Commissioner of the Communications Security Establishment, the Security Intelligence Review Committee or the Privacy Commissioner.
51.4 The Privacy Act is amended by adding the following after section 34:
34.1 (1) Despite any other provision in this Act, if on reasonable grounds the Commissioner believes it necessary for the performance of any of the Privacy Commissioner's functions under this Act, those of the Security Intelligence Review Committee under the Canadian Security Intelligence Service Act, those of the Commissioner of the Communications Security Establishment under the National Defence Act or those of the Civilian Review and Complaints Commission for the Royal Canadian Mounted Police under the Royal Canadian Mounted Police Act, the Privacy Commissioner may convey any information that it itself is empowered to obtain and possess under this Act to
(a) the Commissioner of the Communications Security Establishment;
(b) the Security Intelligence Review Committee; or
(c) the Civilian Review and Complaints Commission for the Royal Canadian Mounted Police.
(2) Before conveying any information referred to in subsection (1), the Privacy Commissioner must notify the head of the government institution and give reasonable time for the head to make submissions.
(3) In the event that the head objects to the sharing of information under this section, the Privacy Commissioner may decline to share the information if persuaded on reasonable grounds that the sharing of the information would seriously injure the government institution's performance of its duties and functions.
(4) If the Privacy Commissioner dismisses the head's objection, the head may apply within 10 days to a judge designated under section 2 of the Canadian Security Intelligence Service Act for an order staying the information sharing.
(5) The judge may issue the stay order referred to in subsection (4) if persuaded on reasonable grounds that the sharing of the information would seriously injure the government institution's performance of its duties and functions.
(6) At any time, the Privacy Commissioner may apply to a judge for a lifting of any stay issued under subsection (5) on the basis of changed circumstances.
(7) For greater certainty, the Privacy Commissioner may request information it believes necessary for the performance of any of its functions under this Act from the Commissioner of the Communications Security Establishment, the Security Intelligence Review Committee or the Civilian Review and Complaints Commission for the Royal Canadian Mounted Police.";
(g) in clause 57, on page 57, by deleting lines 4 to 33; and
(h) in clause 59, on page 57, by replacing line 43 with the following:
"85.4 (1) The".
I might just say those last two are in aid of rebalancing the powers the minister has under IRPA.