Hon. Mobina S. B. Jaffer:
Honourable senators, I rise today to speak on Bill C-59, An Act respecting national security matters.
Before I begin, I would like to thank Senator Gold for his informative speech as the bill’s sponsor. His speech summarized the changes that Bill C-59 will be making to our national security system. I believe that the goals and objectives of this bill, as Senator Gold outlined, are important.
When Bill C-51, the Anti-terrorism Act, was passed in 2015, many people spoke out against how it undermined the balance between our security and our rights. Instead of keeping us safe, many parts of the Anti-terrorism Act made many Canadians fear the national security agencies that should be protecting us, especially since they were given the power to violate our fundamental rights with little accountability.
For minority communities, this fear was amplified. After Bill C-51 was passed, I received countless calls and emails from Canadians who were worried that CSIS would unfairly label them as extremists and target them. It is not hard to see why.
Between CSIS’s disruption powers and what many call Charter breach warrants, and the lack of accountability mechanisms for these new powers, many believed that CSIS could now act with near impunity. Something needs to be done, and Bill C-59 shows that our government is trying to right this wrong.
Honourable senators, as we study this bill, we have to ask ourselves, does the text of the bill match its spirit and goals? As senators in the chamber of sober second thought, this is one of the most important questions that we can ask.
If a bill has loopholes that undermine its purpose or has provisions that go against its spirit, we senators have the power to bring it back to its intended purpose.
The reason I am speaking today is that I do not believe that Bill C-59 completely matches its goal of undoing the harm done by the Anti-terrorism Act. Instead, the current form of the bill leaves serious loopholes that leave our rights vulnerable.
While I would like to cover each of the problems that I have found in Bill C-59, I cannot do this in the 15 minutes that I have today. The bill is 160 pages long, and I am certain that many of you will be speaking on issues that you found of concern in this bill. Instead, I will use my time to speak about two parts of Bill C-59 which I believe are particularly problematic.
The first of these issues deals with a part of CSIS’s disruption powers that is commonly known as Charter breach warrants. Simply put, under the Anti-terrorism Act, if CSIS wishes to use its disruption powers in a way that could violate a Canadian’s Charter rights, they need to apply for a warrant to do so. The fact that these kinds of warrants exist is already worrisome, especially since these warrants are given to CSIS through closed proceedings. This means that a CSIS agent could be given the power to violate our rights and we would never know about it. In fact, we would not even have a special advocate at the proceedings to argue for the protection of our rights. While many of us have called for Bill C-59 to limit these Charter breach warrants, both CSIS and the government have insisted that they are necessary to preserve our national security.
The second major problem with Bill C-59 can be found in its definition of “publicly available information” and “publicly available datasets” that the Communications Security Establishment and the Canadian Security Intelligence Service will be able to gather and retain. At first glance, this provision may seem harmless. However, what is considered “publicly available” may surprise you.
For example, if hacked information is put online, that information is considered publicly available. If you have an account on any website and the website is hacked, any information that goes online is considered publicly available and can be gathered and retained. In other words, online banking information, your credit card information from online shopping or your emails could all be at risk. Any information that can be purchased or subscribed to by the public also falls under this category. In other words, the massive amounts of information that companies like Facebook sells, like facial imagery, posts, photos, videos, relationships and location data, could very easily qualify under this definition.
Worse yet, websites like Facebook often allow apps to collect information about users and their friends. Unlike Facebook, there is little stopping these apps from selling that information without consequences, and thus making that information publicly available.
Finally, if information was public at any point in time, it can be retained. In other words, if you accidentally post something and erase it soon after, the CSE or CSIS could retain it.
This overly broad definition worries me, and I am far from the only person to be concerned about it. When Bill C-59 went to the committee stage in the other place, the Privacy Commissioner submitted a letter where this was listed second among all his concerns about the legal standards created by the bill. In fact, Commissioner Therrien even created two recommendations on the subject, which I would like to share today so that we can consider it as this bill goes on to the committee stage.
First, Commissioner Therrien recommended that measures related to the gathering of publicly available information should be limited to what is reasonable and proportional, and that they consider potential effects on the privacy of Canadians. Second, he recommended that the definition of “publicly available information” should be changed to specify information that was legally obtained. Neither of these changes were adopted in the other place. Instead, they only changed the definition of “publicly available” to prevent the CSE from gathering information where Canadians have a “reasonable expectation of privacy.” While this may seem like a good change at first glance, this change has two massive loopholes.
First, what we consider to be a “reasonable expectation of privacy” is just as vague as the definition for “publicly available.” In fact, Canadians surrender their “reasonable expectation of privacy” almost constantly without realizing it. When you agree to give information to sites such as Facebook in the long term and services that almost no one reads, you are surrendering your “reasonable expectation of privacy.” If you send something through a courier service, you are surrendering your “reasonable expectation of privacy” to that service. If you send an email through a work account, you have surrendered your “reasonable expectation of privacy” to them.
Simply put, a “reasonable expectation of privacy” is hardly a protection for Canadians at all. Worse yet, this change does nothing to change the definition for CSIS, which can still gather publicly available data sets, since it only affects the CSE. In fact, this is even more worrisome, since CSIS’s mandate allows it to target Canadians, unlike the CSE.
Even with these changes, “publicly available information and data sets” is just as big a problem as ever.
With the way Charter breach warrants are being handled and the new power to access “publicly available information and data sets,” I see a worrisome trend in Bill C-59. While this bill should solve the problems found in the Anti-terrorism Act and protect the rights of Canadians, large loopholes still leave Canadians vulnerable to having their rights violated.
This brings me back to the question I asked when I began my speech: Does the text of Bill C-59 match? Currently, I believe the answer to that question is no. I do not believe that loopholes that jeopardize Canadians’ Charter rights were part of the government’s goal when they drafted Bill C-59.To quote Prime Minister Trudeau, the goal is to “repeal the problematic elements of Bill C-51, and introduce new legislation that better balances our collective security with our rights and freedoms.” However, the answer to that question does not have to remain as a “no.”
Honourable senators, it is for this reason that I urge you to consider these problematic sections of Bill C-59 when it goes to committee.
Honourable senators, when I first came to the Senate, in 2001, I was sworn in one week after 9/11. At that time, we were studying the Anti-terrorism Bill. I can tell you that it was not a pleasant experience, as the first Muslim senator, to have just arrived and to have an anti-terrorism bill studied, with a lot of fingers pointing to the Muslim community.
Whenever I go to a mosque, people come to me and ask, “What shall I do? CSIS is knocking at my door. I am not an extremist.” I always tell them, “Answer the questions, and you will be fine.” However, the fear that is created in the community is not healthy. I remind senators that we are here to ensure that the Charter of Rights and Freedoms is protected for all Canadians — and I mean all Canadians. That is our first job as senators.
We are also here to protect the rights of minorities. I can tell you that, with the terrorist bills, minorities live in fear of CSIS. Many tell me they no longer feel safe in our great country. Our job as senators is to ensure that the Charter of Rights and Freedoms is not breached.
Honourable senators, I humbly ask that when we are studying Bill C-59, we ensure that everyone in our community feels safe. Thank you very much.