Anti-terrorism Bill, 201—Third ReadingPublished on 4 June 2015 Hansard and Statements by Senator James Cowan (retired), Jim Munson, Joseph Day, Lillian Eva Dyck, Wilfred Moore (retired)
Hon. Lillian Eva Dyck:
Honourable senators, I rise today to speak to Bill C-51, the Anti-terrorism Act, 2015. We heard just a few moments ago how the bill creates the right balance and that we should deal with it today because we have satisfied Canadians by having enough witnesses. However, when we walk into the Reading Room, what do we see on the television but that there is great concern by the public about Bill C-51 and how it’s trampling upon their rights and privacy rights?
It is a highly contentious bill which I think we should have spent more time debating in the chamber.
Also, each and every one of us received hundreds and hundreds of emails from people across Canada. Each of us has been targeted by the provinces or territories that we represent that we should stop passage of this bill. We have received hundreds if not over a thousand email messages from Canadians urging us to prevent this.
Even today, in the Toronto Star, Ed Broadbent wrote an article on Bill C-51 and I’m going to quote from it. Even today he’s saying that Canadians should exhort us not to pass Bill C-51, that it is not too late and that we should continue to pressure for this bill not to be passed. He said:
At the onset of the debate former Saskatchewan premier Roy Romanow and I called on Parliament to reject the bill. We argued that C-51 threatened our civil rights, and placed the very protections guaranteed by the Charter under the shadow of wider powers to interfere with lawful and legitimate conduct. Further, we pointed out that the bill in itself did not protect us from terrorism. We recognized that terrorism demands a serious, sustained and effective response. The bill did not do this, but it does undermine the rights of Canadians.
That’s Ed Broadbent speaking. He continued:
Vague definitions in the text of C-51 open up troubling questions with regard to who can be targeted, and what might be censored under the new bill. For example, the bill seeks to counter not only “terrorism” but what it describes broadly as “threats to the security of Canada.” How broadly will “threats” to Canada’s “security” be defined?
My colleague Senator Mitchell introduced amendments to the bill to address the concerns expressed to us by hundreds of Canadians about erosion of their Charter rights. He wants to amend clause 42 to prohibit any warranting that would break the Charter. This is an issue that is very important to Canadians and that’s why they are continuing at this very moment to email us and to ask us to stop the bill.
In the testimony before the House of Commons Standing Committee on Public Safety and National Security on March 23, our former colleague, former Senator Hugh Segal, said:
Accountability on the part of our security services to the whole of Parliament is not needless red tape or excessive bureaucracy. In fact, it is the democratic countervail to the kind of red tape and bureaucracy which might unwittingly lose sight of the security mission appropriate to a parliamentary democracy, where laws and constitutional protections such as the presumption of innocence and due process must protect all citizens without regard to ethnicity or national origin.
That’s particularly important because he’s pointing out that we have Canadians who are minorities who may be targeted unfairly by this bill.
We all received a letter from the Civil Liberties Association, signed by Sukanya Pillay, Executive Director and General Counsel, which states:
There would be an exceptional increase in mass information sharing flow across governmental agencies and institutions, and with foreign powers and actors, without adherence to legal safeguard or accountability mechanisms, and without a demonstrable security benefit. Privacy rights would be severely undermined — all in the name of an extraordinarily broad description of “activities that undermine the security of Canada.”
Again, it is referencing the fact that we do not have good definitions of what these activities that undermine the security of Canada could or will be.
In her speech yesterday, Senator Jaffer raised concerns about systemic discrimination. She said:
. . . we can no longer deny that for many Canadians discrimination in many forms has become part of everyday life. Our policy of multiculturalism is one of the most advanced in the world. Yet, simply including multiculturalism in our Charter is not enough. To combat systemic discrimination, the spirit of multiculturalism must run through every policy that we make. This includes how Canadians are policed.
As you know, colleagues, the Truth and Reconciliation Commission released the summary of its final report on its work on Indian residential schools this week. The commission’s report verifies the annual reports from Howard Sapers, Correctional Investigator. His reports document the shockingly high overrepresentation of Aboriginal peoples in federal prisons. This overrepresentation is one facet of systemic discrimination against Aboriginal people.
While Aboriginal people make up only 4 percent of the Canadian population as of February 2013, they made up 23 percent of the federal inmate population. Aboriginal women are even more overrepresented than Aboriginal men in the federal correctional system, representing 34 per cent of all federally sentenced women in Canada. These figures document the discrimination that occurs already within our criminal justice system toward Aboriginal people, let alone what might happen to them if we enact Bill C-51.
According to Justice Sinclair:
The causes of the over-incarceration of Aboriginal people are complex. The convictions of Aboriginal offenders frequently result from interplay of factors, including the intergenerational legacy of residential schools. Aboriginal overrepresentation in prison represents a systemic bias in the Canadian justice system.
Colleagues, systemic bias or racism is part of the culture of the justice system already. Already Aboriginal people are racially profiled. There is no doubt that under the provisions of Bill C-51 Aboriginal people will continue to be viewed unfairly compared to Euro Canadians. Systemic bias or racism towards Aboriginal people is part of Canadian culture. This week Justice Sinclair explained clearly why this is so. He said:
. . . at the same time that Aboriginal people were being demeaned in the schools and their culture and language were being taken away from them and they were being told that they were inferior, they were pagans, that they were heathens and savages and that they were unworthy of being respected — that very same message was being given to the non-Aboriginal children in the public schools as well. As a result, many generations of non-Aboriginal Canadians have had those perceptions of Aboriginal people “tainted.”
Justice Sinclair is diplomatic. He used the word “tainted,” where others would have said “racist.”
Honourable senators, in my second reading speech I outlined how the RCMP are already targeting and monitoring Aboriginal protests and how, in their internal reports, the RCMP have taken what can be called a discriminatory or racist stance by prejudging Aboriginal protesters as violent or extremists.
The January 2014 internal RCMP report entitled Criminal Threats to the Canadian Petroleum Industry states that:
. . . extremists advocate the use of arson, firearms, and improvised explosive devices. And some factions . . . have aligned themselves with violent Aboriginal extremists.
They have said this when there is no evidence proving that that is true. It is a preconception, a prejudging.
This document and other documents reveal how easily Canadian authorities, such as the police, the RCMP and the security officials, assume the possibility of violence when it comes to monitoring First Nation demonstrators. First Nation demonstrators are seen in a light that they are more violent than they really are in the real world.
Given the lack of clear definitions within the bill of what is terrorism and what are protests, I think it is more than likely that Aboriginal people could easily fall under the net of being labelled terrorists, particularly when it comes to protests involved in things like pipelines, which could be considered critical infrastructure. The word “protest” is not defined within the bill. Protest is often a way by which all Canadians and Aboriginal Canadians try to assert their rights and try to convince people that their rights need to be recognized.
Aboriginal people, as well as hundreds of thousands of other Canadians, are concerned about Bill C-51 and about erosion of their rights, while Aboriginal people are concerned about erosion of their constitutionally protected Aboriginal and treaty rights. The National Chief of the Assembly of First Nations, Perry Bellegarde, has said he’s worried about the unjust labelling of First Nation activists as terrorists. He said that Bill C-51 could potentially be used to further oppress defence of Aboriginal rights and titles. Similarly, Grand Chief Stewart Phillip of the Union of British Columbia Indian Chiefs believes that Bill C-51 directly violates the ability of indigenous peoples to exercise, assert and defend their constitutionally protected and judicially recognized indigenous title and rights to their respective territories.
Honourable senators, Senator Jaffer has told us that the committee did not hear from a single Muslim witness. The committee also did not hear from a single national or regional Aboriginal chief.
Senator Munson: What a shame.
Senator Dyck: They heard from Pamela Palmater. She’s not a chief and not a leader. How can we pass this bill when the Aboriginal leaders have not had a chance to put their case forward as to how this bill will affect them? Chief Bellegarde may have been invited. Maybe he couldn’t make the timeline. Why could we not wait until he could appear? Why could we not have a national or a regional Aboriginal leader speak?
Senator Fraser: All good questions.
Senator Munson: They do it for ministers.
Senator Dyck: Absolutely. They are sovereign nations. Their viewpoint should have been taken into consideration.
We all know that all Canadians are concerned about Bill C-51. It is on the news daily. We’re getting emails daily, every minute, on our email system asking us to do our job as senators. Not calling a single Muslim witness and not calling recognized Aboriginal leaders, such as National Chief Bellegarde or Chief Phillip, shows that the committee did not do a thorough job, did not do a thorough review of the bill, because they should have appeared. It is just not right not to have them on the witness list.
The committee should have considered including an amendment that my colleague Senator Fraser put on the agenda yesterday, a non-derogation clause that would have protected the constitutionally recognized Aboriginal and treaty rights of Aboriginal peoples in Canada. It would not have taken away from the rest of the bill. That would have been the right thing to do. That was not done. We have the amendment to consider. It should be passed. Unless that is passed, I do not support this bill.
Hon. Joseph A. Day:
Thank you, honourable senators. I would like to join in the debate on this particular matter. I feel I owe it to the thousands of people who have sent messages to me expressing their views. I have tried to answer as many as I could, and I will continue to do that.
I would be very interested to know how Senator Runciman is answering the emails that I have received that I’m sure he’s been receiving as well.
I have one comment before I go on with the bill itself, and it has to do with what the minister had to say when he came before us at the end of our hearings. I didn’t quite take the same comfort that others did when the minister said he was prepared to consider measures to ensure greater accountability by the Canadian Security Intelligence Service. “Prepared to consider” didn’t give me a great deal of comfort. I will leave it at that.
I would like to say that a tremendous amount of work has to be done. This bill is a colossal piece of legislation, when one looks at it. It has five parts to it.
Let’s put it back in perspective here. Part 1 is the security of Canada information sharing act — a separate piece of legislation. Why not have a stand-alone bill so that we could deal with that separately? If there were some changes to it, we could deal with those amendments logically.
The second portion of this bill is the secure air travel act. It’s another piece of legislation — separate. It could easily stand alone. But it doesn’t; it’s in this five-part tome that we’re asked to deal with very quickly. You heard my comments about the fact that we had only one day of hearings in committee on this.
Part 3 is the Criminal Code amendments. That could have been dealt with separately. Part 4 is Canadian Security Intelligence Service Act amendments, and Part 5 is amendments to the Immigration and Refugee Protection Act.
Honourable senators, there are the pieces of this puzzle that we’re asked to deal with all at once. They are different concepts in different pieces of legislation and in different sections of this bill, and that presents its own difficulties.
We had many witnesses, not specifically with respect to this bill, but as the Honourable Senator Lang pointed out, our Committee on National Security and Defence has been dealing with security issues for some time, and we have been doing a study on radicalization. We looked at Bill C-44, we did a pre-study of Bill C-59, and then along comes the bill with some amendments, and we are now dealing with that.
We have some background, and we have gotten to know some of the witnesses who are visiting us on a regular basis with respect to each one of those separate studies that we are doing.
Let’s look at it very briefly, honourable senators. I know time will run on out on me. Rather than talking about the amendments that have been proposed, let me say that I support every one of the amendments. I would be pleased if we could accept those amendments. But I have a strong feeling that, even with the amendments, this legislation cannot be salvaged. It is not worth trying to amend it into something acceptable.
If we’re not going to reject the entire bill, it would be nice to see some amendments made. I strongly support oversight, like Senator Runciman, but the manner in which that oversight should take place is something that we have to debate. It is not a committee of the Senate and the House of Commons without some debate on what the makeup would be. There are many, many things that we can talk about in terms of oversight, as well as review, and they’re not mutually exclusive. We can have both. In fact, we should. I will give you quotes on that a little later.
Let’s look first at the security of Canada information sharing act, the first piece of legislation. We have to look at clause 5 of this bill, which is the first sort of operative section on “Disclosure of Information”:
. . . a Government of Canada institution may, on its own initiative or on request, disclose information to the head of a recipient Government of Canada institution whose title is listed in Schedule 3 . . . .
A Government of Canada institution is defined as being an institution that is listed or that is under the Privacy Act. The Schedule 3 that is referred to here lists the 17 different government agencies that can receive the information. There’s no overall plan. This is a one-on-one bilateral sharing of information, but honourable senators will know that when information is shared that broadly, leaks do occur, as we have seen this afternoon with respect to the Auditor General’s report. Leaks do occur.
Honourable senators, this particular disclosure —
Senator Cordy: Do you think?
Senator Cools: Kind of unusual.
Senator Day: Honourable senators, the only other thing I think I need talk about with respect to the sharing of information is the Income Tax Act and that income tax and Revenue Canada is involved. At page 8 of the statute, the income tax portion appears and what can be shared between all of these government departments and the 17 other institutions listed in the schedule. In subclause (b) it says:
. . . if there are reasonable grounds to suspect that the information would be relevant . . . .
Prior to this bill coming forward, it was designated taxpayer information — much more limited, but it has been dropped. Now it is all taxpayer information. The only test would be if whoever — Revenue Canada — is giving up our taxpayer information considers that it might possibly be relevant to something.
That is very dangerous, honourable senators. That’s one of the points I wanted to make in relation to that piece of legislation.
Now, Part 2 is secure air travel. You have heard a number of people discuss the secure air travel act, the legislation that appears here and gives the minister discretion. The no-fly list is a different type of list. Prior to this legislation, the existing legislation was for the protection of aeronautics. That was the basic principle. Now the basic principle is security, and the listing and appeal processes are different and the minister may establish the list under section 8 on his own without having a whole lot of background information. Trying to get your name off that list is an interesting process outlined through appeals and judicial review, et cetera.
Part 3, honourable senators, is the Criminal Code. Here, thresholds have been reduced in relation to warrants. Previously in warrants there was the question of “will.” The “will” has been changed to “may” so that “on reasonable grounds that a terrorist activity may be carried out” is the new threshold. No longer does the person asking for the warrant have to think that it “will” likely be carried out or suspects, on reasonable grounds, that an imposition of recognizance with conditions on a person is “likely” to prevent. Previously, it was “necessarily” would prevent.
That’s the lowering of the threshold we see here. Do we have any evidence that the threshold needed to be reduced? No, we don’t. We didn’t get any evidence at the hearing that would be convincing to any of us.
Part 4, honourable senators, is the security intelligence service, CSIS, and they are well-known to us all. They have been before our committee on many different occasions, but the role of CSIS is reconfirmed here. They can operate both in and out of the country. Their new role is one of counterterrorism as opposed to an intelligence-gathering agency. That’s the fundamental shift that we see in the words that appear in this particular one.
Finally, honourable senators, we have the Immigration and Refugee Protection Act. The changes that appear here are equally fundamental and need a separate look in order to give one an understanding of what is being proposed.
In the time that I have left I wanted to talk about, first of all, the various witnesses that have been involved with C-51, the anti-terrorism bill. The Canadian Bar Association has prepared an excellent treatise and they express very serious concerns. Let me read you a paragraph from their document dated March of this year:
The government should also be clear with Canadians about the limits of law. No law, no matter how well-crafted or comprehensive, can prevent all terrorist acts from occurring. Promising public safety as an exchange for sacrificing individual liberties and democratic safeguards is not, in our view, justifiable. Nor is it realistic. Both are essential and complementary in a free and democratic society.
The key question is, “Does the bill strike the appropriate balance between enhancing state powers to manage risk and safeguarding citizens’ privacy rights and personal freedoms?”
Is that balance struck? That’s the essential question. You have heard from speaker after speaker and received report after report and had witnesses that have said no, the balance is not there; this is going too far, too quickly.
We saw it in 2001 with the anti-terrorism legislation. It was our first move in that direction after the Twin Towers in New York City, and we talked about balance at that time. Some of what was done at that time turned out to work, and some of it didn’t. Shortly after that, we had the creation of special advocates.
Keep in mind what a special advocate is. It is not a lawyer acting for the alleged terrorists. A special advocate is someone trained in the law who is a friend of the court, who makes sure there’s fairness and who defends the rights of citizens without being the lawyer specifically for that particular citizen.
The Hon. the Speaker pro tempore: Would you like more time?
Senator Day: I wonder if I could have five minutes.
Hon. Senators: Agreed.
Senator Day: I commend to you this particular document by the Canadian Bar Association. While I have the document out, I’m going to talk about the judicial warrants for search and seizure.
It is important that the point made by Senator Fraser yesterday be repeated again and again, because this bill is poorly worded and far too broad and, in effect, jeopardizes the Charter of Rights and Freedoms. I don’t know if that’s unwittingly, because we bring witnesses in from Justice and they say, “No problem, a judge would never, ever allow that to happen.” Why give the power?
Here is what the Canadian Bar Association had to say:
Judicial warrants for search and seizure prevent, not authorize, Charter violations. A judge authorizing a search is not authorizing a breach of the Charter, but may authorize a search to prevent what would otherwise be a breach of section 8. Other Charter rights, such as the right against cruel and unusual punishment or mobility rights, are absolute, and their violation can never be “reasonable”.
What can be reasonable, because it’s in the Charter, is that there cannot be unreasonable search and seizure. If the judge says you can search or you can seize, he’s saying that’s not unreasonable. Therefore, the Charter is not being breached.
That’s the point. It’s a subtle point but an important one because there is no reasonableness qualification with respect to many of the other rights in the Charter, but the wording that appears in this bill says all Charter rights can be breached if the judge orders it. That is the problem. I wanted to make that point while I had that particular document out.
We had the Privacy Commissioner talking to us about many of the concerns. He says it’s far too broad, the 17 departments, without any oversight.
I have to mention, because they’ve come before us on so many occasions and have done such a fine job, Professor Forcese, who is at the University of Ottawa, and Professor Roach, who is at the University of Toronto. They have appeared before us on many occasions, and they have done excellent work in relation to the analysis, particularly the analysis of the sharing of information.
The proposed security of Canada information sharing act contained in Part 1 is based on the concept of activities that undermine the security of Canada. They said, “This is a new and astonishingly broad concept that is much more sweeping than any definition of security in Canadian national security law.” In important aspects it comes close to a “total information awareness approach,” or at least a “unitary view of government information.”
We worried in the past about silos. This is going to the other extreme, that everybody who works for government knows everything about everybody. They’re saying that is extremely worrisome.
I wanted to leave that message with you, honourable senators.
Finally, I wanted to remind you of the statements by former Prime Minister Chrétien and the many people who signed the note to whom it may concern, to everybody, to the Canadian people, about this:
. . . lack of a robust and integrated accountability regime for Canada’s national security agencies makes it difficult to meaningfully assess the efficacy and legality of Canada’s national security activities.
They all said there should be more insight, more work to be done in relation to this, and that legislation without oversight is very serious and very troubling.
Honourable senators, I hope you will agree with me that we need to do more work in this area before we pass this legislation.
Hon. Wilfred P. Moore:
Honourable senators, I rise today to speak to Bill C-51 as well, the anti-terrorism act, 2015.
We know that terrorism is a threat, both here at home and abroad. As we saw on October 22 here on Parliament Hill and earlier that week in Quebec, acts of terror can destroy lives and families.
Protecting Canadians is of the utmost importance. We need to be vigilant, we need to be aware, and we need to play an active role in countering these threats because the consequences are devastating.
We must also recognize the delicate balance our response to terrorism requires, the balance between human rights, privacy and security.
The Special Senate Committee on Anti-terrorism said this about that balance:
The fight against terrorism requires striking a delicate balance. On the one hand, terrorism represents a unique and potentially devastating threat to national security, and the public must be protected through vigilant intelligence gathering and proactive law enforcement. On the other hand, Canada has a strong history of commitment to human rights and the rule of law, as evidenced by the Canadian Bill of Rights, the common law and the Civil Code, and the Canadian constitution, including the Canadian Charter of Rights and Freedoms, and the ratification of various international human rights agreements. Attempting to safeguard civil liberties and freedom while also keeping people safe from the threat of terrorism is not an easy feat.
I remember when the government of the day brought in sweeping changes to our security infrastructure following 9/11. I remember the concerns Canadians had about being safe on our soil but also their concerns about safeguarding their privacy and freedom. They want to be secure in the most possible way, but not at the cost of their liberty. They don’t want government and law enforcement agencies looking over their shoulders, not because they have something to hide but because that is what it means to be a citizen in this free and mature democratic country.
Honourable senators, I believe we struck the right balance following 9/11 for the most part, but now the government is going too far. The balance has been broken, and the scales are moving drastically way from liberty and freedom. This should concern every one of us because we are changing the very nature of our country, changing the very foundation of what made us who we are and made us a country for others to look up to.
Further, the government has proposed significant new powers to our national security agencies, but what hasn’t come with these new powers is significant new resources.
We have heard that CSIS and the RCMP are already stretching their budgets. The RCMP and CSIS have had their budgets cut over the last number of years. CSIS’s annual expenditures dropped from $540 million to $496 million between 2012 and 2013. The RCMP’s budget has been cut by 15 per cent over the last four years.
CSIS even admitted this is a challenge. Regarding their ability to meet surveillance demands, CSIS Deputy Director Jeff Yaworski told the Senate National Defence Committee last fall: “I would be foolhardy to say we have all the bases covered.” Resources are simply lacking, honourable senators.
I will not go through all that is wrong in this bill, but I will focus on three areas of concern.
First — and others have spoken to this — legal experts have said that the provisions in the bill are likely unconstitutional. I know this sounds familiar, like history is repeating itself.
This government has repeatedly brought forward bills that have been struck down in the Supreme Court of Canada. This bill will likely be no exception, and that will come at a great cost to the taxpayer.
As the Canadian Bar Association has stated:
Bill C-51 proposes several Criminal Code amendments that generally suffer from overly broad language, uncertainty and vagueness. These weaknesses would make the proposals vulnerable to constitutional challenge . . . .
They point to the fact that the act would allow judges to authorize warrants to the Canadian Security Intelligence Service which contravene the Charter. As the Canadian Bar Association pointed out, in our current process:
Judicial warrants for search and seizure are intended to prevent, not authorize, Charter violations. This is because the Charter protection against search and seizure is qualified: it only protects against “unreasonable” search and seizures. A judge authorizing a search does not authorize a breach of the Charter, but authorizes the search to prevent what would otherwise be a breach of the section 8 protection from unreasonable search and seizure.
This would not be the case under Bill C-51. The Canadian Bar Association goes on to say:
. . . sections 12.3 and 21.1 could authorize any conduct that violates the Charter in the name of reducing a threat to the security of Canada, as long as it does not obstruct justice, cause bodily harm, or violate sexual integrity.
This is not judicial oversight, and as one group has put it:
This fundamentally misunderstands the role of judges in our democratic system and the nature of constitutionally-entrenched rights. A judge’s role is to prevent Charter infringements and to adjudicate alleged breaches by another branch of government in open court, not to authorize them . . .
To make matters worse, this judicial proceeding would happen in secret, where only the government is represented. A special advocate will not be present to act on behalf of society at large or the accused.
As Senator Mitchell pointed out at second reading, this may hamper criminal prosecutions of suspected terrorists. The information gleaned from those types of warrants would not be admissible in court because they violated their Charter rights.
Honourable senators, another worrisome aspect of this bill is the changes that allow for preventive arrest and detention. The new law would allow police to detain people for longer, from three to seven days, without charge, and this provision would become permanent. The provision would no longer “sunset” and have to be renewed by Parliament. Also, it would vastly lower the threshold for detention. I think Senator Day mentioned that. “Reasonable grounds” would no longer be the threshold to detain someone. Instead, the detention would be based on the suspicion that something may happen and an arrest is likely to stop it. This grants a lot more discretion to law enforcement than we have ever seen in Canada in the past. Fundamentally, this changes our judicial system and practices.
Senators, the second major area of concern that I have is with regard to information sharing and its privacy impacts. Information sharing between departments is important and we do have to break down the silos that permeate throughout government, but this bill would allow the sharing of all personal information between 17 government departments and lower the threshold for shareable information. They would be able to share “relevant,” not “necessary” or “proportional” information under the very broad terms “activities that undermine the security of Canada.” This is a wide net that this government is casting. What does the “activities that undermine the security of Canada” even mean? There are groups that legitimately protest that could get caught up in this.
The Privacy Commissioner summed it up this way:
. . . the 17 federal departments in question would be in a position to receive information about any or all Canadians’ interactions with government. This information could then be analysed along with information they had previously collected or obtained through other sources, including foreign governments. . . . As a result . . . 17 government institutions involved in national security would have virtually limitless powers to monitor and, with the assistance of Big Data analytics, to profile ordinary Canadians . . .
Honourable senators, this is very extraordinary power. Not only would they share information amongst the 17 departments, but experts also pointed out this information can be shared “in accordance with the law . . . to any person, for any purpose.” Legal experts, as has been mentioned before, Kent Roach and Craig Forcese noted that “in accordance with the law” is vague and imprecise and could lead to the disclosing of information to anyone for any reason, which is absolutely astonishing.
Information could also be shared with over 100 other government agencies that these departments have relationships with. Further, the language in this bill also permits sharing of information with close to 300 international organizations or governments that Canada has a sharing relationship with. All of this would happen with little to no oversight.
As the Privacy Commissioner noted, “14 of the 17 agencies listed in Schedule 3 that will receive information for national security purposes are not subject to dedicated independent review or oversight.” That’s what was spoken to before with regard to the Segal bill. This cries out, and I don’t know why we’re not dealing with it and putting it in place.
When it comes to the Security Intelligence Review Committee’s powers to oversee CSIS, they are very limited. SIRC only reviews what CSIS does and the information it receives. It doesn’t have the authority to follow the information sent to other agencies.
Honourable senators, the final issue I would like to highlight is the lack of overall oversight of our security establishment. I’ve spoken about this in the past as have other senators. We need parliamentary oversight. This is crucial, but it is not in this bill.
Every year the government asks us to pass billion-dollar budgets for national security and intelligence agencies but provides scant information. We also, from time to time, have been asked to pass sweeping legislation, such as Bill C-51, Bill C-44 and, from a few years ago, Bill S-7, but have little idea about what the real threat is. Parliamentarians don’t have access to high-level confidential information about threats to Canada and the institutions and policies that govern our security institutions. We are effectively blind, but we are tasked to make the decisions that affect the lives of many Canadians and could change the very fabric of our country. We also place too much power in the hands of a few select ministers, and we have no recourse to hold them to account.
Due to this, we are an outlier internationally. The majority of our NATO allies and all of our partners in the Five Eyes alliance — Australia, New Zealand, the U.K. and the U.S. — have better oversight on national security than we do. We just heard last week about the U.S. Congress — elected officials — putting the brakes on their National Security Agency and their collection of metadata.
All of these other countries have this oversight, and I don’t know why we as a mature democracy don’t have that. They all allow for certain vetted legislators to access information on the potential threat posed and evaluate the government’s policies, decisions, capabilities and resources to counteract them.
I will remind senators of a crucial recommendation from the Special Senate Committee on Anti-terrorism, which passed unanimously in this chamber in 2011:
That, consistent with the practices in the United Kingdom, Australia, France, the Netherlands, and the United States, the federal government constitute, through legislation, a committee composed of members from both chambers of Parliament, to execute Parliamentary oversight over the expenditures, administration and policy of federal departments and agencies in relation to national security, in order to ensure that they are effectively serving national security interests, are respecting the Canadian Charter of Rights and Freedoms, and are fiscally responsible and properly organized and managed.
Why didn’t the government listen to this recommendation? Why isn’t this chamber amending Bill C-51 to follow through on this previous decision? We all decided upon it, it’s the right thing to do, and we haven’t done it and I don’t know why.
Honourable senators, we are in an era of enormous complexity and uncertainty with the changing geopolitical landscape, emerging threats and technological change. The need for robust oversight has never been greater, and the need for an approach that balances the rights of Canadians and our collective security is of great importance. Bill C-51 fails in these areas. Therefore, I will not be supporting this bill, and I will be supporting the amendments.
Hon. Jim Munson:
Thank you, Your Honour. My dissertation tonight is about Bill C-51 casting a shadow on the work of journalism in this country, and I’ll get to that a little later in my speech.
The best possible protection against terrorists — anyone who values life wants assurance of this. Most of us likely still feel the impact of the violent events last October, when a gunman shot and killed a Canadian soldier and then stormed into Parliament to continue his rampage. We all felt the horrific presence of terrorism that day. When the violence stopped, we along with millions of Canadians became a single population united in the pledge that “this can never happen again.”
Bill C-51’s stated purpose is to deliver better protection against terrorism to Canadians. All of us would support this intention, but stating an intention is not the same as fulfilling one.
Since Bill C-51 was introduced in January, public outcry about its vague language, content and the expected outcomes of its application has spread. In April, more than 100 individuals and interest groups signed a letter urging Prime Minister Harper to scrap the bill. From its failure to strike a balance between “protecting Canadians and safeguarding our cherished rights and freedoms” to the incredibly hasty consultations preceding its drafting, the letter hits all the points that we, as parliamentarians, have to reflect on in the interests of those we serve.
From journalists, lawyers, environmentalists, human rights advocates and social policy experts to civilian libertarians, artists and youth, the signatories represent a range of interests and values. They are united around the conviction that Bill C-51 is dangerous.
Debates are covered in the news. Protests are on the streets. Messages are constantly popping up on social media. Public response to and questions about this bill are contributions to the legislative process.
There is value in every perspective, and we have a responsibility, senators, to respect the messages and the messengers. Having been a reporter for most of my working life, I can easily identify with the concerns of those engaged in bringing the news to Canadians. As they gather with other protesters seeking to stop this bill’s passage, they have to feel the threat to their journalistic standards if Bill C-51 becomes law.
Three years ago I joined others here in participating in an inquiry launched by Senator Cowan. The inquiry was to draw attention to the thirtieth anniversary of the Canadian Charter of Rights and Freedoms. The topic I chose to talk about was freedom of expression — its importance to journalists, its importance to people around the world and its importance to democracy.
Having covered stories in countries where freedom of expression is not a value but, rather, grounds for imprisonment, I take to heart the difference between an informed population and a population that is kept in the dark regarding the workings of their governments. You have no doubt heard me describe those tense and terrible and horrible days surrounding the massacre of students in Tiananmen Square. Today, June 4, 26 years later, it is the anniversary of that tragedy.
Civil liberties didn’t exist then, don’t exist today in that country. Authoritarianism is the order of the day. I think the Beijing government would rather love this bill, but they don’t need one in China. They don’t need one because Big Brother is always listening; and with this bill, Bill C-51, everybody will be listening.
In undemocratic, corrupt countries throughout the world, journalists are killed and made to suffer for seeking and exposing truths about their leaders and governments. A precursor to democracy and the end of the status quo, freedom of expression is a threat to the rulers of these countries. For citizens who are poor and lacking a voice in how their countries are run, it is an aspiration.
In Canada, we take freedom of expression for granted. We shouldn’t. The history of other countries — and indeed our own history — tells us that it has been a difficult struggle, with lives ruined along the way. As citizens of a country where human rights and fundamental freedoms are guaranteed, Canadian journalists are protected. They can be confident and passionately investigative.
If Bill C-51 becomes law, journalists will no longer operate under the same assumptions. None of us will be able to count on guarantees for rights and freedoms as we do today.
Section 16 of the bill includes amendments to the Criminal Code regarding the promotion of terrorism and terrorist propaganda. As the Canadian Bar Association points out in its submission on Bill C-51, references such as “terrorism offences in general” cast the net too broadly. With language such as this setting the parameters of what is and isn’t a crime, Canadians will certainly be at a loss.
It is so unclear, that it could well capture innocent speech made for innocent purposes. The line between lawful and unlawful is unclear.
Honourable senators, advocacy, protests and public debate on issues need to happen in a democratic society. Often rules and bylaws alone determine whether such activities are lawful. When those rules and bylaws are ill-defined, this prediction from the Canadian Journalists for Free Expression could prove to be accurate:
Some political legitimate discussion, whether in newspapers, on social media sites, or in the privacy of your email inbox, could be criminalized.
Others are watching us, honourable senators; other countries and especially European countries are watching us. I think this is important as part of this debate.
The Organization for Security and Co-operation in Europe, the OSCE, is the largest security-oriented intergovernmental organization in the world. It has compared Bill C-51 unfavourably with international standards for restricting freedom of expression. Unlike what this bill proposes, only direct and intentional incitement of terrorism should lead to restrictions on freedom of expression.
People can be reckless. People can inadvertently promote threats to security. What should matter are intentions. In other countries, intent matters. If Bill C-51 is passed, reasonable grounds for restricting freedom of expression and seizing material will plummet to a dangerously low standard. It is not an exaggeration to expect the moral integrity of our citizens on terrorism to become undervalued and the discretion of the administrators and the enforcers our laws to achieve greater clout.
Among several warnings, the OSCE states the following:
This is potentially of particular concern to the media, which has a professional responsibility to report on terrorism and to ensure that the public are informed about terrorist threats and activities.
Another component of Bill C-51 that is problematic for Canada, generally, and for journalists in particular, is its provision for the creation of the security of Canada information sharing act. Craig Forcese and Kent Roach are experts in national security and the law. Since the introduction of this bill, they have been publishing a series of opinion pieces for national and international news sources.
In a piece published March 11 in The New York Times, they identify one of the key hazards associated with Bill C-51 and its proposals for information sharing. Here is what they say:
Taking a breathtakingly broad view of national security —
— the bill —
— facilitates information-sharing among federal institutions, with no robust limits on how the information may then be used (or misused).
The changes proposed in Bill C-51 represent a drastic departure from Canada’s long held respect for privacy issues and other important concerns. The writers acknowledge this and effectively illustrate how out of national character this plan for sharing is. They say:
This is a remarkable development for a country that in 2007 agreed —
— we forget our own history —
— to pay millions to compensate a Canadian citizen who suffered foreign torture as a result of inaccurate intelligence-sharing.
Somehow we have forgotten that, Madam Speaker. This should be part of our DNA now. It should be part of the way that we’re thinking. This is just simply not right.
There are already significant amounts of sensitive health, tax, financial and other information circulating among government departments as it is. Privacy breaches occur all too often.
With the passage of Bill C-51, the government will be circulating more information, more frequently, in the name of national security. The Canadian public might never know when or why they are being investigated. There will certainly be an impact from treating privacy as secondary to security. Undermining the country’s privacy laws will weaken them. There will also be more wrongful accusations involving terror threats. With reason, people will lose confidence in the government and become distrustful and suspicious.
For journalists who depend on speaking with sources to develop their stories, these and other outcomes will make their work more difficult. It is not only journalists who will find themselves at a disadvantage. Those of us who turn to the news media for information about our world, including risks and incidents of terrorism, will as well.
Whenever freedom of expression and privacy are in jeopardy, the capacity of journalists to fulfill their responsibility to their audiences and readers is likewise in jeopardy. In addition to the particular sections I have mentioned, there are several others in the bill that undermine tenets of our federal laws.
If they are worrisome to journalists, then they should be worrisome to us all. The work of journalists, after all, is for everyone. In principle, journalism is about bringing issues to light, striving to uncover the truth and bring about solutions. These are the individuals that are holding the pen. Differences of opinion and beliefs abound within the field of journalism. That is good. We benefit from learning different sides of the same issues.
Honourable senators, as the Canadian Bar Association concludes:
For Bill C-51 to be a meaningful success, Canadians must not only feel safer, but must in fact be safer — and this reality must be accompanied by the well founded and secure belief that Canada remains a democracy that leads the way internationally in scrupulously protecting privacy rights and civil liberties.
Honourable senators, I oppose this bill. What sets me apart from the thousands of Canadians urging us to scrap this bill is that I’m standing in this room, where the fate of this bill will be decided soon. I’m speaking with colleagues with the hope that my words will help tip the balance of the vote we must make in favour of recognizing Bill C-51 as a mistake.
We can go back to the drawing boards and draft a new piece of legislation with the same important purpose, reducing the threat of terrorist acts in Canada. Honourable senators, please — please join me in listening to what Canadians are saying and conclude that we cannot possibly realize this purpose at the expense of our rights and fundamental freedoms.
Senator Cordy: Hear, hear.
Senator Munson: Honourable senators, at the end of the day, this bill contravenes our cherished Charter of Rights and Freedoms.
Hon. James S. Cowan (Leader of the Opposition):
Thank you, Your Honour. Honourable colleagues, I rise to join in the third reading debate on Bill C-51, the government’s anti-terrorism act, 2015.
This bill has been presented to us and, more importantly, to Canadians as a necessary response to the events of October of last year.
All of us here recall those events: first, when Warrant Officer Patrice Vincent was killed in Saint-Jean-sur-Richelieu and subsequently when, just a few days later, Michael Zehaf-Bibeau fatally shot Corporal Nathan Cirillo at the National War Memorial and then was able to enter this building, where he was quickly shot by Staff Sergeant Vickers.
That was, without question, a terrible time for our nation. Once again, we felt our vulnerability to terrorism.
I say “once again,” colleagues, because we all remember July 23, 1985, when 329 passengers and crew of Air India Flight 182 were killed — murdered — by a bomb placed on a flight at the Vancouver Airport. Most of the victims were Canadian. To this day, the Air India bombing remains the worst terrorist attack in Canada’s history.
And of course 9/11 is seared in our collective consciousness. Each of us knows exactly where we were when we learned of the planes striking the World Trade Centre in New York City. All of us watched in horror as the events of that terrible day unfolded.
I wasn’t in the Senate then, but I will never forget how proud I was after 9/11 at the way parliamentarians came together to meet this challenge — and Canadians came together to meet this challenge, as well. Parliamentarians, some of whom are in this chamber today, wrestled with the challenge to protect Canadians from terrorism while ensuring that our values, our fundamental rights and freedoms, were upheld and remained intact.
Bill C-36 was the response of the government of Prime Minister Chrétien. It was examined in what was then a rare pre-study by a special Senate committee set up specifically for that task. Let me read a paragraph from the pre-study report, which was adopted unanimously by the committee:
The terrible events of September 11, 2001 have made it clear to all Canadians that securing the freedoms that define us as a nation must now also depend upon actively resisting terrorism. The challenge is to find the right balance: ensuring that our law enforcement and security agencies have the tools necessary to protect us and to prevent terrorism before it strikes while not undermining the freedoms that our government ultimately is mandated to protect. Acts of terrorism must not force us to relinquish our fundamental principles and basic democratic safeguards.
Those powerful words remain equally true today.
In light of this history, colleagues, you will understand my surprise when Senator Runciman introduced Bill C-51 to this chamber at second reading saying:
Our laws governing national security matters were created at a time when the most significant security threat was espionage. Times have changed, and new solutions are needed. This is why Bill C-51 has been introduced.
Colleagues, with respect, that is simply not a fair representation. It is as though this government would like to pretend that the Chrétien government and Parliament simply ignored the terrorist threat, which is simply not true. Indeed, members of this chamber took a prominent role in crafting that response. Senator Andreychuk, our former Speaker Senator Kinsella, Senator Joyal, Senator Jaffer, among others, all can speak to the very serious, very focused work they did on the special committee working to assess and fine-tune Bill C-36. Senator Eggleton was the Minister of Defence. He appeared before the special committee and I’m sure could speak of the hard work his government did in finding this critical balance.
Has the nature of the threat evolved? Of course it has. But it’s wrong to suggest that we’re trying to move our laws from the 1950s to the 21st century. That does an injustice to a succession of Canadian governments and to parliamentarians. It ignores the good work done by our security and intelligence agencies in thwarting terrorist plots over the years, including those that have been in the news recently — all work done pursuant to our laws. And frankly, it shows disrespect to the memory of the hundreds of victims of terrorism who perished in the Air India attack to suggest that October 2015 was the “wake-up call.”
Do our laws need fine-tuning, updating to meet the evolving nature of the terrorist threat? Absolutely. Do the events of last fall justify a complete overhaul of our laws, such as has been proposed? Perhaps. But in my view, the government has failed to make a persuasive case for that. To the contrary, many witnesses and many knowledgeable, experienced Canadians have expressed the view that there are not fundamental problems with our laws, but rather how they are applied and the resources the government allocates to their implementation.
There has also been a suggestion that the nature of the threat today is such that if our fundamental rights and freedoms need to be sacrificed, so be it. Indeed, it’s more than a suggestion — it’s written in the bill, as others have warned and I will discuss shortly.
Let me read to you a paragraph from the decision of the Supreme Court of Canada in Suresh v. Canada (Minister of Citizenship and Immigration). This was issued January 11, 2002, just a few short months after 9/11. In the shadow of those events that shook the world, the court wrote — and I point out that this was a decision of the court, so worded to give it the full weight of the highest court. This is what the court said:
The issues engage concerns and values fundamental to Canada and indeed the world. On the one hand stands the manifest evil of terrorism and the random and arbitrary taking of innocent lives, rippling out in an ever-widening spiral of loss and fear. Governments, expressing the will of the governed, need the legal tools to effectively meet this challenge.
On the other hand stands the need to ensure that those legal tools do not undermine values that are fundamental to our democratic society — liberty, the rule of law, and the principles of fundamental justice — values that lie at the heart of the Canadian constitutional order and the international instruments that Canada has signed. In the end, it would be a Pyrrhic victory if terrorism were defeated at the cost of sacrificing our commitment to those values. Parliament’s challenge is to draft laws that effectively combat terrorism and conform to the requirements of our Constitution and our international commitments.
Colleagues, we would do well to reflect on those words as we study Bill C-51.
Prime Minister Harper has said that there is no liberty without security. I agree. I am sure everyone in this room agrees. But equally, a government’s job — our job as parliamentarians — is to secure our liberty and not to sacrifice it in the name of security.
That was the challenge of our predecessors and colleagues who worked together to strike the right balance after 9/11. That was the challenge of the Major commission, the commission of inquiry into Air India Flight 182, that produced over 60 recommendations in its final June 2010 report, far too many of which have still not been implemented, five years after they were presented to the government.
That, colleagues, is our challenge with Bill C-51.
More and more Canadians are looking at Bill C-51 — we know this from our email traffic — and they’re asking whether we really need to give such unprecedented powers — and they are unprecedented — to our security and intelligence community. What is the evidence that the powers proposed in Bill C-51 would have prevented the acts of last October? They want to know what Canada will look like when all of this is done.
Colleagues, these are valid questions in a democracy, but there have been no good answers from the government.
Indeed, in the case of the October 22 shootings at the National War Memorial and on Parliament Hill, Prime Minister Harper himself acknowledged that it’s “difficult to speculate how a case like that would be handled in the future under these laws because . . . . Bibeau was not on the police radar.” Public Safety and Justice officials who briefed reporters on Bill C-51 when it was tabled declined to explain how it would have prevented the attacks in Ottawa and Saint-Jean-sur-Richelieu.
Instead of answering the many questions raised by Canadians and seeking to build consensus, instead of truly listening to Canadians as they express their very real fears about the impact of this bill, the government simply chose to dismiss the concerns, often suggesting archly that “law-abiding citizens” need not fear these new powers.
Colleagues, that is dismissive, accusatory and frankly condescending, and it has no place in these discussions. It reminds me of the government’s earlier assertions that you either stand with it or the child pornographers. We are discussing a bill that the Privacy Commissioner has confirmed will in fact have enormous impact on the rights of all Canadians, including law-abiding, ordinary Canadians. He published an op-ed in The Globe and Mail in which he wrote:
All Canadians — not just terrorism suspects — will be caught in this web. Bill C-51 opens the door to collecting, analyzing and potentially keeping forever the personal information of all Canadians in order to find the virtual needle in the haystack.
How did we get to this?
Colleagues, it’s interesting to contrast the way in which the Trudeau government and the Parliament of the day grappled with the big question of which rights and freedoms to enshrine in the Charter and the way the current government and Parliament is addressing the big question of balancing protection of those rights and freedoms with security.
From its inception, the Charter was viewed as the “people’s package,” and Canadians turned up in unprecedented numbers to participate and express their views. Colleagues, their voices were heard. Senator Joyal co-chaired a special parliamentary committee that heard from 914 individuals and 294 groups in public, nationally televised hearings.
Colleagues, that is how our great democracy was built and strengthened. Not by dividing, but by unifying. Not by dismissing Canadians’ input, but by welcoming it. Not by suppressing criticism, but by encouraging serious, engaged debate. That was leadership at its best.
Canada, like other democracies around the world, is today confronting a grave challenge from terrorism. We know that the rights and freedoms that make our democracy great also make us vulnerable to terrorism and our citizens to potential radicalization. Freedom of expression is the cornerstone of democracy, and that means that dangerous ideas can sometimes enter the discourse.
Our country was built on principles of openness and tolerance of differences, of equality, regardless of ethnic or national origin or religious beliefs. Colleagues, the rights and freedoms enshrined in the Charter are not just words written on a piece of paper. They represent who we are and what Canadians want Canada to be, now and into the future. Just as the Charter was written by all Canadians, so must all Canadians be part of the discussion of how to uphold those rights and freedoms in the face of challenges posed by terrorism.
Unfortunately, rather than facing these challenges as one nation — including and engaging Canadians, beginning right here in Parliament — the Harper government has instead decided to impose its own views on Canadians, ignoring all contrary opinions.
Sixty business leaders wrote a long, open letter to Prime Minister Harper asking him to “scrap this reckless, dangerous and ineffective legislation.” The signatories included the heads of many of Canada’s high-tech companies.
More than 100 academics, including many law professors from across the country, wrote an open letter to parliamentarians expressing their “deep concern that Bill C-51 . . . . is a dangerous piece of legislation in terms of its potential impacts on the rule of law, on constitutionally and internationally protected rights, and on the health of Canada’s democracy.”
They continued by noting “with concern” that the bill may turn out to be ineffective in countering terrorism by virtue of what is omitted from the bill, but also that Bill C-51 could actually be counterproductive in that it could easily get in the way of effective policing, intelligence-gathering and prosecutorial activity.
They made a point of adding that the signatories were not “extremists,” nor were they dismissive of the very real threats to Canadians’ security that the government and Parliament have a duty to protect.
Colleagues, what have we come to that citizens, professors at many of this country’s leading universities, feel that they must defend themselves as not being extremists in presenting their views on an important bill like Bill C-51?
Two law professors, who are not among the 100, were so disturbed by the provisions in Bill C-51 that they set up websites where they posted detailed legal analyses of the bill’s provisions and proposed amendments. These were Professor Craig Forcese of the University of Ottawa and Professor Kent Roach of the University of Toronto, both teaching in their respective law faculties.
On February 19, an extraordinary open letter appeared in The Globe and Mail, signed by four former prime ministers, Jean Chrétien, Joe Clark, Paul Martin and John Turner, and endorsed by 18 other prominent Canadians who’ve served as Supreme Court of Canada justices, ministers of Justice and Public Safety, solicitors general of Canada, members of the Security and Intelligence Review Committee and commissioners responsible for overseeing the RCMP and upholding privacy law.
That op-ed began with the words:
The four of us most certainly know the enormity of the responsibility of keeping Canada safe, something always front of mind for a prime minister.
Of course, colleagues, Prime Minister Chrétien was in that position on 9/11, when the planes hit the World Trade Center. Prime Minister Martin was in that position on July 7, 2005, when the London subway was bombed. One the other signatories to the letter was former Supreme Court Justice John Major, who headed the commission of inquiry into the Air India bombing.
The focus of their letter was their shared view that:
. . . the lack of a robust and integrated accountability regime for Canada’s national security agencies makes it difficult to meaningfully assess the efficacy and legality of Canada’s national security activities. This poses serious problems for public safety and for human rights.
Serious problems for human rights, yes, but also for public safety, colleagues. In other words, proceeding as proposed in Bill C-51 will actually undermine public safety, not secure it.
Of course, it isn’t only prominent Canadians who oppose the bill. An online petition by Leadnow has received over 100,000 signatures. I encourage honourable senators to read their petition. It is serious, thoughtful and focused on specific issues and proposes several well-considered amendments.
There is also a website called stopc51.ca, again with a petition. We have all received many letters and emails. I believe tens of thousands have been sent to parliamentarians.
Colleagues, not long after the letter from the four prime ministers appeared, I asked the Leader of the Government in the Senate if he could provide a list of similarly eminent Canadians who support the bill. His reply: Stephen Harper.
Colleagues, that answer spoke volumes. This is where we are as a nation, after almost 10 years of self-styled Harper government. All of the voices of all of the Canadians you can line up, from former prime ministers through Supreme Court justices through professors and business leaders down to people in the street, are rejected, ignored, dismissed out of hand. The only voice that matters is that of one man, Stephen Harper.
There is no attempt to gain social licence on this or any other national issue. Colleagues, that is not leadership.
The battle against radicalization and terrorism will not be won by our police or security agencies alone. It can only be won by all of us joining together in common cause — families, teachers and community and religious leaders. If ever we needed our government to unite and not divide us, it is for this challenge.
The concerns being raised by our fellow citizens about this legislation are real, and they are serious. Our critic on this bill, Senator Mitchell, has done an excellent job detailing a number of them, and I know others will join in the debate as well. I will use just a few minutes to highlight very briefly just a few issues of special concern to so many.
I mentioned The Globe and Mail op-ed written by Daniel Therrien, the Privacy Commissioner of Canada. He reiterated his concerns when he appeared before our National Security and Defence Committee. This is what he said:
As Privacy Commissioner of Canada, I am of the view that part 1 of Bill C-51, which contemplates information-sharing for national security purposes between all government departments and 17 specified agencies, is excessive and lacks balance. While I appreciate that information-sharing as contemplated by the bill may sometimes lead to the identification of new threats, I believe this end is accomplished at much too great a cost to privacy.
Please recall, colleagues, that Mr. Therrien is no wide-eyed innocent when it comes to the terrorist threat or the needs of our security and intelligence community in meeting this threat. His career, before he was appointed to the position of Privacy Commissioner, was spent largely serving as legal adviser to federal departments in policing and law enforcement and security and intelligence. Indeed, you will recall that when Prime Minister Harper nominated him for the position of Privacy Commissioner, many of us were worried that he would weigh too much on the side of the security and intelligence community and not enough on the side of the privacy rights of Canadians.
So colleagues, when Mr. Therrien says that Bill C-51 is excessive and lacks balance, we need to pay attention. He confirmed to your committee that under the bill the Canada Revenue Agency could share Canadians’ tax information with 17 national security agencies and departments and do so without any warrant, any oversight or any review.
He explained that this would not be confined to the personal tax information of people who are identified as posing a national security threat. Rather, in his words:
. . . massive amounts of information could be shared with the 17 receiving institutions with a view to detecting new threats, so information about people who are not necessarily threats but with a view to identifying new threats.
Some might call these fishing expeditions, colleagues.
Let me be clear: I am not at all suggesting any inappropriate intentions on the part of any of these government officials. I am confident that they have only the very best of intentions, namely to keep Canadians safe, but the best of intentions can take anyone too far.
I don’t propose to get too far into the drafting of the bill, but let me highlight one example: “activity that undermines the security of Canada” is defined to include “covert foreign-influenced activities.” Now, reading that, most of us would assume that it covers actions by foreign spies acting in Canada, something most of us would agree should be covered by the section. But colleagues, under this government, we have seen allegations of “covert foreign-influenced activities” that go far beyond espionage.
We all recall that the highly controversial CRA audits of charities were sparked by an inquiry launched in this chamber by Senator Eaton, in which she alleged:
There is political manipulation. There is influence peddling. There are millions of dollars crossing borders masquerading as charitable foundations into bank accounts of sometimes phantom charities that do nothing more than act as a fiscal clearing house.
These allegations, which I hesitate to emphasize, were never substantiated and would appear dangerously close to alleging “covert foreign-influenced activities.” Will the tools in Bill C-51 be used to deal with those alleged threats? Certainly, our committee heard strong concerns expressed by members of Aboriginal communities and by environmental organizations who genuinely fear that these tools will be deployed against them simply if their members exercise their legitimate democratic right of civil disobedience.
John Bennett, Executive Director of Sierra Club Canada, testified before our committee. He told the committee that the Sierra Club has a 100-year history of non-violence and commitment to democratic solutions to environmental issues. He said that under Bill C-51, the Sierra Club could easily find itself engulfed in secret investigations and interference in its lawful operations. He told the committee about an RCMP criminal threat assessment report obtained by the media that mentioned the Sierra Club. He said:
The RCMP prepared this report in secret. No attempt was made to contact Sierra Club or demonstrate any connection between our activities and any illegal activities or violent actions. . . .
We asked the RCMP for assurances that Sierra Club will not be swept up in a Bill C-51-empowered investigation based on this report, and received a stony silence. So I take that to mean that we could be.
What are we becoming as a country, colleagues, when legitimate groups exercising a fundamental democratic right are at risk of bringing the force of the state down upon themselves — and in secret, without their knowledge, and no right of recourse or appeal? And by the way, we learned a few weeks ago that the Sierra Club is one of the organizations being audited by the CRA for possibly “excessive political activity.” According to media reports, auditors were set to arrive at the organization’s Ottawa office on May 11.
Once again, I ask the question: What will Canada look like when all this is implemented? A thriving democracy, with a lively exchange of ideas on the full range of current issues? Or a fearful nation where dissent is regarded with suspicion, and honest criticism risks making oneself a target?
As honourable senators know, my colleagues and I hold open caucuses from time to time, focusing with experts and members of the public on various public policy issues. We held an excellent open caucus recently on security and human rights. The discussion, as you might expect, quickly turned to Bill C-51. One invited speaker, Mr. Ziyaad Mia, an adjunct professor at Osgoode Hall Law School, spoke very powerfully about the impact of the bill. He described it as creating a new ethos in Canada, one marked by greater surveillance, greater secrecy and diminished rights and freedoms.
Is that really what we want to create, colleagues? Is that to be our legacy to future generations?
This brings me to what are perhaps the most controversial provisions in the bill, namely the new powers that would be granted to CSIS. The most controversial of these controversial provisions unquestionably is the new proposed subsection 12.1(3). That subsection reads:
(3) The Service shall not take measures to reduce a threat to the security of Canada if those measures will contravene a right or freedom guaranteed by the Canadian Charter of Rights and Freedoms or will be contrary to other Canadian law, unless the Service is authorized to take them by a warrant issued under section 21.1.
Senator Carignan and Senator Runciman have tried valiantly to argue that this section does not allow violations by CSIS of rights and freedoms guaranteed by the Charter. They say that the section does not authorize violations of the Charter but rather asks a court to ensure through the warrant that CSIS’ actions will conform to the Charter.
Colleagues, their argument simply does not hold up. As legislators, we must understand the basic rules of statutory construction. This one is not difficult.
The subsection begins by saying that CSIS “shall not take measures . . . [that] will contravene a right or freedom guaranteed by the Canadian Charter of Rights and Freedoms.” The section should have stopped there, because the kicker is the next phrase: “unless the Service is authorized to take them by a warrant . . . .”
What do we mean by the word “them,” colleagues? “Them” refers back to “measures . . . [that] will contravene a right or freedom guaranteed by the Canadian Charter of Rights and Freedoms.” In other words, this subsection anticipates a court issuing a so-called warrant to CSIS to take measures that will contravene a right or freedom guaranteed under the Charter. Let me repeat: The section anticipates a court granting a warrant for CSIS to take measures that “will” — not “may,” but “will” — “contravene a right or freedom guaranteed by the Canadian Charter of Rights and Freedoms.”
The use of “will” instead of “may” has been the subject of controversy. Legal scholars have pointed out this means that CSIS only needs to go to a judge for a warrant if it knows, clearly and absolutely, that the proposed measures will contravene the Charter. If a Charter breach is a possibility or a probability, no warrant is needed, even if, as things turn out subsequently, the measures do contravene the Charter. Under Bill C-51, that is allowed, and no judicial authority is required.
Of course, the hearing before the judge is held in secret, with no one there to argue against the application. There is no special advocate to represent the public interest in having the Charter upheld. There is no one required to be present to challenge the assertions of CSIS that the warrant is required.
That’s an absurdity. It’s a complete contradiction of Canadian principles and values to include this provision in the legislation, to ask our federal court judges to, in effect, serve as a fig leaf to mask the illegality and patent unconstitutionality of our secret service.
Senator Tardif expressed it well at second reading when she said:
. . . no other democracy in the world would allow a judge, in a secret hearing, to allow for a warrant for their intelligence agencies to violate the Constitution.
Colleagues, the only limitations are that the measures in question cannot cause death or bodily harm, violate the “sexual integrity” of an individual, or “willfully attempt . . . to obstruct, pervert or defeat the course of justice.” But frankly, colleagues, what does that means when one is being asked to violate the Charter?
Legal experts have said that this likely could authorize CSIS to engage in rendition, sending Canadians abroad to be tortured.
In 2001, Parliament in Bill C-36 put limits around the use by the RCMP of so-called “preventative arrest” — limits that are loosened in Bill C-51 and have been the subject of debate, but still exist. Those limits will continue to apply to the RCMP, but under this section, CSIS could apparently hold someone in preventative detention with no such restrictions. In their case, it would not be called “preventative arrest” but rather a disruptive activity.
Colleagues, why bother placing any restrictions on the RCMP’s use of preventative arrest if we are going to give a blank cheque to CSIS to engage in the same activity under a different name?
Let me remind you of the words of the Supreme Court in January 2002:
. . . it would be a Pyrrhic victory if terrorism were defeated at the cost of sacrificing our commitment to —
— the Charter —
The Harper government has gone even further. With this provision, it is tossing out the protections of the Charter altogether.
The Charter, of course, includes the “notwithstanding” clause. But this provision of Bill C-51 goes beyond even that. First, of course, the safeguard in the “notwithstanding” clause was that it must be explicitly invoked — a government must be prepared to stand up, openly, and acknowledge to Canadians what it is doing. That of course is not the case here. It is as if the government were hiding its actions deep in a closet, hoping no one will notice.
Even then, this provision would authorize contraventions of the Charter beyond those that would be allowed under the notwithstanding clause. That clause was limited to allow a government to opt out, if you will, of only certain rights and freedoms. Bill C-51 has no such limitations.
Those are just a few of the many problems raised by this bill. For example, I have not addressed the problems of the proposed amendments to the Criminal Code. These have received international attention, colleagues — and not in a positive way. The Organization for Security and Co-operation in Europe’s Representative on Freedom of the Media commissioned an analysis of some of these provisions. The report raised a number of concerns with provisions that restrict the freedom of expression, concluding that their analysis leads “inevitably” to the conclusion that the provision in question “is very unlikely to withstand a constitutional challenge”.
Colleagues, the Canada that would result if we pass this bill unamended is a Canada vastly different from the one we know. It will be one whose government and Parliament have given up on the commitment to values of liberty, the rule of law and fundamental justice, where the fundamental rights and freedoms that Canadians set out in the Charter — the “people’s package” — are no longer sacrosanct, given up in the name of security.
Let me be clear: I know that CSIS and the whole of our national security community are well-intentioned. We have a first-rate public service, and that includes the security and intelligence agencies.
But, colleagues, mistakes happen, as we saw in the Maher Arar situation. Paul Cavalluzzo is a highly respected lawyer who served as commission counsel to the Arar inquiry under Justice Dennis O’Connor. He also was appointed by the Harper government to be a special advocate. He testified before our National Security and Defence committee, saying, “I can attest to the fact that national security agencies, whether police or intelligence, make honest mistakes.” The risk is compounded because “these agencies deal in intelligence — not evidence but intelligence.” Mr. Cavalluzzo referred to the fact that “Some people have, perhaps facetiously, referred to intelligence as glorified rumours.”
But, colleagues, we have all seen instances where intelligence got it wrong, with terrible consequences that flowed from that. That is the risk in relying on intelligence as opposed to evidence.
These risks of human errors, of problems of intelligence versus evidence, of the secrecy within which these agencies must by definition operate, and given the unprecedented powers that we are entrusting to these agents, all of this cries out for effective oversight. Colleagues, right now, there is no oversight of any of these bodies.
SIRC, the Security Intelligence Review Committee, is a review agency for CSIS. It is not empowered or equipped to do oversight. For colleagues who may not be familiar with the term, “review” is after the fact, usually in response to a complaint. “Oversight” is ongoing, while actions are actually taking place.
There used to be some oversight of CSIS in the Office of the Inspector General, but the Harper government eliminated that office in one of its omnibus budget bills, Bill C-38 in 2012. There is the Civilian Review and Complaints Commission for the RCMP, which is limited to review of actions by the RCMP. There is the Communications Security Establishment Commissioner, whose office, once again, is limited to review.
Right now, there is no oversight body for any of our security and intelligence agencies. Indeed, there are not even any independent review agencies set up for 14 of the 17 agencies that will be covered by powers under Bill C-51.
The review bodies that do exist now are limited in what they can do. Notably, they’re not allowed to cooperate and share information with each other — a problem that will be exacerbated by Bill C-51, which explicitly authorizes the 17 agencies to cooperate and share information. This was to address the very real problem of silos — a problem that has been cited in the intelligence failures that allowed the Air India bombing to succeed so terribly.
As was repeatedly pointed out to our National Security and Defence Committee, the review agencies must have explicit authority to cooperate and share with each other for even the limited review we have to be successful. Given the oaths of secrecy that are taken, explicit authority is needed, and there is nothing in Bill C-51 that would address that.
But above all this, colleagues, is the fact that we are giving unprecedented powers to our intelligence agencies to engage in disruptive activities, infringe upon the privacy rights of Canadians and even violate fundamental rights and freedoms of Canadians under the Charter, all of which is to be exercised in secret.
Colleagues, we cannot responsibly give these powers without establishing a full, robust and integrated oversight regime. This is critical for basic democratic accountability — a principle that the Harper government claims to hold high — and it is essential if Canadians are to have any confidence in how these powers are being exercised.
I believe, along with our former colleagues Senator Hugh Segal and Senator Roméo Dallaire, as well as many of our current colleagues, that we have reached a point where nothing short of parliamentary oversight will suffice. The G7, NATO, the Five Eyes as we call them — Canada, the U.S., the U.K., Australia and New Zealand — all of these countries have parliamentary oversight capability, or the congressional equivalent — all except Canada. We are the outlier. Why are the parliamentarians in those countries trusted by their governments with the nation’s national security interests but Canadian parliamentarians are not?
The Harper government has rejected calls for parliamentary, or any, oversight of our security agencies, calling it duplication and needless red tape. But how can it duplicate powers that don’t exist? Bill C-377 is an example of duplication and needless red tape. Parliamentary oversight of our security and intelligence agencies is essential to protect Canadians and Canadians’ rights and freedoms. This isn’t red tape; this is a red line that we should all defend.
Colleagues, there is no oversight in Bill C-51 — no oversight whatsoever by any independent agency. Even the review mechanisms in place are lacking, and nothing in this bill would address the very severe gaps in authority.
Colleagues, the government has put forward a bill that is alarming in its potential to violate the basic rights and freedoms of Canadians. The Privacy Commissioner, with a long background in security and intelligence, has told us this bill goes too far. It fails to achieve the balance Canadians expect and deserve, namely, legislation that protects both their safety and their privacy. And with the proposed powers in the amendments to the CSIS Act, it would fail — it doesn’t even purport — to protect both Canadians’ security and their rights and freedoms under the Charter.
Colleagues, if we pass this bill unamended, we will knowingly be doing exactly what our colleagues refused to do after 9/11: We will have allowed fear of terrorism to lead us to relinquish our fundamental principles and basic democratic safeguards. The Supreme Court of Canada stated, rightly, that our responsibility to Canadians — our responsibility to Canadians — is to draft laws that effectively combat terrorism and uphold our Constitution. If we pass Bill C-51, we will have failed in that responsibility.
Some Hon. Senators: Hear, hear.