Proceedings of the Standing Senate Committee on
National Security and Defence
Issue 16 - Evidence - Meeting of April 20, 2015
OTTAWA, Monday, April 20, 2015
The Standing Senate Committee on National Security and Defence met this day at 1 p.m. to examine the subject matter of Bill C-51, An Act to enact the Security of Canada Information Sharing Act and the Secure Air Travel Act, to amend the Criminal Code, the Canadian Security Intelligence Service Act and the Immigration and Refugee Protection Act, and to make related and consequential amendments to other Acts.
Senator Daniel Lang (Chair) in the chair.
[English]
The Chair: Before we welcome our witnesses, I would like to begin by introducing the people around the table. My name is Dan Lang, senator for Yukon. On my immediate left is the new clerk of the committee, Adam Thompson. Welcome.
I would like to go around the table and invite each senator to introduce themselves and state the region they represent, starting with our deputy chair.
Senator Mitchell: Grant Mitchell, Alberta.
[Translation]
Senator Dagenais: Jean-Guy Dagenais from Quebec.
[English]
Senator Beyak: Senator Lynn Beyak, Ontario.
Senator Stewart Olsen: Carolyn Stewart Olsen, New Brunswick.
Senator Kenny: Colin Kenny, Ontario.
Senator Runciman: Bob Runciman, Ontario.
Senator Campbell: Larry Campbell, British Columbia.
Senator Jaffer: Mobina Jaffer, British Columbia.
Senator White: Vernon White, Ontario.
Senator Baker: George Baker, Newfoundland and Labrador.
The Chair: Thank you, colleagues.
The Senate has referred to this committee Bill C-51, An Act to enact the Security of Canada Information Sharing Act and the Secure Air Travel Act, to amend the Criminal Code, the Canadian Security Intelligence Service Act and the Immigration and Refugee Protection Act, and to make related and consequential amendments to other Acts.
The issue of terrorism is foremost in the minds of Canadians. We have witnessed increased reports of terrorist actions not just at home but around the world. The security agencies around the world are reviewing their mandates, and governments are seeking to ensure these bodies have the appropriate powers to combat acts or threats of terrorism within our democratic systems of government. France, the United Kingdom, Germany, Belgium, Australia, amongst others, and of course Canada are all examining what more can be done.
Locally, we have identified 684 instances of terrorism financing since 2009. Last October, we learned that we have 145 Canadian jihadists abroad supporting ISIS, 80 plus who have returned and 93 who wanted to go but were disrupted and are being monitored. These numbers are significant, and we do know that law enforcement agencies are being stretched to the maximum.
Our criminal prosecutions also appear to be lagging behind our colleagues in France and the United Kingdom.
Joining us today as we consider Bill C-51 are Michel Coulombe, Director, Canadian Security Intelligence Service; Mike Cabana, Deputy Commissioner, Federal Policing, Royal Canadian Mounted Police; and Greta Bossenmaier, Chief, Communications Security Establishment.
Mr. Coulombe and Mr. Cabana, welcome back to the committee.
Ms. Bossenmaier, as this is your first appearance before the committee as Chief of the CSE, we offer a special welcome to you, and congratulations on your appointment.
I understand that you each have an opening statement. I invite Mr. Coulombe to begin, followed by Mr. Cabana and Ms. Bossenmaier.
Michel Coulombe, Director, Canadian Security Intelligence Service: Thank you, Mr. Chair.
Senators, I am pleased to be here today with my colleagues to discuss Bill C-51.
[Translation]
I have appeared before you several times in recent months but had not previously had the opportunity to make opening remarks. I am very pleased to do so today.
I would like to provide additional information on threats to Canada's national security and the role of CSIS in addressing those threats. To be clear, when I speak about threats to the security of Canada, I do so in the context of the definition found in the CSIS Act. This definition has stood the test of time, and remains relevant despite the change in Canada's threat environment since CSIS was created. It would not change with Bill C-51.
[English]
When the CSIS Act was passed in 1984, the primary security concern was espionage. It is a serious issue, yes, but it did not and does not represent an exigent threat to life. The presence of a foreign spy in Canada posed a long-term threat to national security but not an immediate danger to public safety. For CSIS, collecting intelligence on the threat and making government aware was then a sufficient response. This seems wholly insufficient in today's threat environment. A watching brief will not suffice in the face of ever-more direct threats to Canadians' security and way of life.
In recent years, the terrorist threat to Canada and its allies has amplified. Canada is not immune to violent terrorist attacks. This has long been apparent to those of us in the national security community. Most recently, we have observed a steady increase in the number of terrorist travellers, including those who have travelled, returned from travel or aspire to do so.
Based on service assessments, the terrorist threat to Canada's national security interests has never been as direct or immediate. Quite frankly, the scope of the threat, the speed of change, and the ease with which people engaged in threat-related activity connect means we no longer have the luxury of time to contemplate our response.
In addition to complex plots involving multiple threat actors over a prolonged period, we must also be alert to rapidly escalating threats posed by individuals determined and able to act with little or no warning or support. As has been stated, identifying lone actors, investigating them and predicting their behaviour is tremendously difficult.
As a final point on the threat environment, I would note that while terrorism is the current focus, our mandate requires that we do not lose sight of other threats such as espionage, proliferation and cyberthreats.
The CSIS Act must be viewed as a product of its time and in the context of the events leading to the creation of CSIS as an intelligence agency independent from the RCMP. You are, of course, aware of the recommendations of the McDonald commission and that CSIS was specifically created as a civilian agency to ensure that its operation could be rigorously reviewed and controlled. Today, both CSIS and the threat environment have evolved.
[Translation]
The proposed amendments to the CSIS Act incorporate those lessons learned and respond to recommendations from the Security Intelligence Review Committee, SIRC, and the Special Senate Committee on Anti-terrorism.
[English]
CSIS's mandate to investigate threats to the security of Canada allows it to have early awareness of developing threats. Despite this, CSIS has no legislative authority to act on this information, even when doing so could save lives and defuse or remove that threat.
[Translation]
Some observers have suggested that CSIS is seeking a threat diminishment mandate because it is unwilling to disclose information to the RCMP for law enforcement action, and that this will create conflict with the RCMP. This characterization, simply put, is wrong and does not do justice to our relationship with the RCMP, nor is it the rationale for seeking the proposed threat disruption mandate for the service.
The crux of the rationale for creating this new mandate for CSIS is this: leveraging CSIS's expertise, capabilities and early awareness of threats creates new flexibility for the Government of Canada, bolstering its capacity to actively protect Canada and its citizens from harm.
[English]
Providing a threat disruption authority to CSIS will not, in any way, take away any authorities from the RCMP. Furthermore, both CSIS and the RCMP are committed to de-confliction and coordination wherever necessary and appropriate, as is our current practice.
In the few minutes I have remaining, I would like to quickly address a few of the other misperceptions surrounding this bill.
I want to be clear. This bill will not make CSIS a secret police force. CSIS is not a law enforcement agency, and this bill will not change that nor confer any law enforcement powers to the service. A threat reduction mandate doesn't equate to becoming law enforcement.
Nothing in this bill gives us power of arrest. Nothing in this bill gives us the mandate to collect evidence to bring people in front of the court, and nothing in this bill gives us the mandate to enforce any law, including the Criminal Code.
This bill provides clarity to what is required of CSIS in order to take a threat disruption measure. First, before taking any measure to reduce a threat, the service must have reasonable grounds to believe that the activity constitutes a threat. This is a higher threshold than is required to investigate the activity, which has always been "reasonable grounds to suspect." The service would also request judicial authorization on a case-by-case basis for any threat disruption activities that will contravene a right or a freedom protected by the Charter or that will otherwise be contrary to Canadian law. The regime allows a judge to determine if a measure is reasonable and proportionate in the circumstances, having regard to the nature of the threat, the natures of the measures and the reasonable availability of other means to reduce that threat. In addition, the judge can include any terms or conditions deemed advisable in the public interest.
The bill does not change anything for the service in relation to environmental and other activist groups. As I noted when I began, the definition of "threats to the security of Canada" in the CSIS Act will not change. That definition in the CSIS Act clearly excludes lawful advocacy, protest and dissent, and SIRC has repeatedly confirmed that the service has not overreached in this regard.
[Translation]
The proposed amendments to the CSIS Act are responsive, measured, and, in my view, essential. The new authorities, similar to those exercised by many of our foreign partners, will be accompanied by robust safeguards. This new mandate will include a rigorous judicial authorization process, guided by ministerial direction, reviewed by SIRC, and conducted within a clearly defined risk assessment framework.
[English]
The men and women of CSIS are and have always been committed not only to fulfilling our mandate of keeping Canada and Canadians safe but also to doing so in a way consistent with the law and Canadian values.
I appreciate the opportunity to provide these remarks and I look forward to answering your questions.
The Chair: Thank you, Mr. Coulombe.
Mr. Cabana, please.
Mike Cabana, Deputy Commissioner, Federal Policing, Royal Canadian Mounted Police: Good afternoon, Mr. Chair and honourable members of the committee.
[Translation]
Thank you for the invitation to speak on Bill C-51 from an RCMP perspective. This bill is an important step in positioning Canada's security and intelligence community to better combat the range of national security threats.
[English]
If passed, the bill will enhance key prevention tools at the disposal of the RCMP and domestic law enforcement agencies. I will focus my comments today on these specific measures and clarify their application from the RCMP's point of view.
To place the RCMP in context, it has a broad range of national security-related mandates and responsibilities ranging from national security criminal investigations to critical incident management and protective policing. As Canada's national police force, the RCMP also has a legislated mandate to both prevent and investigate criminal activity to ensure public safety.
The RCMP recognizes that the most effective approach to countering terrorism involves preventing an individual from becoming radicalized to violence in the first place. Through the RCMP's Terrorism Prevention Program, we're helping to provide law enforcement and communities across Canada with the skills and tools they need to identify and intervene with individuals at risk before they mobilize to violence.
Unfortunately, we will never be able to prevent all terrorist activities. When necessary, the RCMP makes use of its long-standing ability to access a wide number of tools and laws at our disposal to disrupt threats as they materialize at various stages. We also work closely with our domestic and foreign partners to address threats to Canada at home and abroad. While disruption measures are sometimes necessary to protect public safety, they can never, nor should they, replace the pursuit of criminal charges, the ability to make arrests and bring forward prosecutions.
In this effort, the RCMP and our partners have had significant success in combatting terrorism since the introduction of the Anti-terrorism Act in 2001. To date, 19 individuals have been convicted and criminal charges have been brought against an additional 17 for various terrorism-related activities. This is a testament to the fact that the criminal justice system remains the most effective means of countering terrorism by adhering to the rule of law through a transparent process.
However, since the introduction of the Anti-terrorism Act in 2001, there has been a considerable shift in the threat environment. While we continue to face threats from highly orchestrated terrorist plots, which tend to develop over a long period of time, we are also now facing an increasingly complex environment characterized by individually driven plots that can materialize quickly and in unforeseeable ways. We know all too well that Canada and Canadians are not immune to this threat.
This new environment presents a significant challenge for law enforcement. It necessitates a capability to contain imminent threats while continuing with an investigation. National security investigations are complex, lengthy and resource-intensive, generally spanning multiple jurisdictions. The key objective in addressing the current threat environment is to mitigate the risk of violence and protect public safety. We do this in the context of collecting sufficient evidence to proceed with criminal charges which may lead to a successful prosecution.
The RCMP is doing everything in its power to manage the current threat environment. For instance, we are facilitating information sharing through the RCMP's National Security Joint Operations Centre, an example of unprecedented interdepartmental collaboration. We have also increased our training, intervention and outreach efforts and reallocated hundreds — in fact, now in excess of 600 — of resources from across the country to the RCMP-led Integrated National Security Enforcement Teams — INSETs — and our National Security Enforcement Sections.
Even with all of these efforts, we still face challenges in countering and managing the threat posed by terrorism. For example, there is no single path to radicalization to violence and, as illustrated by the attacks of last October, there is often little advance warning that someone intends to act violently. In the context of high-risk travellers, some individuals make travel plans without notifying family or friends, and law enforcement only becomes aware after they have left Canada. Fundamentally, there is no linear threat trajectory. Each case presents a unique circumstance, and every enforcement action must be considered carefully to prevent the threat from shifting or escalating.
Within this context, the large-scale redeployment of RCMP personnel to counterterrorism files, while necessary, is negatively impacting our capacity to manage other risks, such as those posed by serious and organized crime and espionage. As a result, the RCMP recognizes that it needs to find a longer term solution to be able to respond to the breadth of its federal policing mandate.
The proposed changes outlined in Bill C-51 to the Criminal Code would strengthen the existing recognizance with conditions and terrorism peace bonds. These are important preventative measures that can be applied with the consent of the Attorney General. The recognizance with conditions provisions will allow the police to arrest an individual without a warrant when doing so will prevent an imminent act of terrorism. Putting restrictions on their movements or activities can help the police to manage a threat while the investigation is being pursued.
I must emphasize that these tools will be used in a limited number of circumstances within the context of an active criminal investigation. Lowering thresholds and extending periods of detention will make these tools more effective in a preventive capacity to disrupt terrorist activity, be it planning a terrorist attack or attempting to travel for terrorism purposes. The current threshold makes it impractical to use them as preventative tools as it is essentially the same as the threshold to lay criminal charges. And, as outlined, to be in a position to lay charges takes time to investigate and collect the necessary evidence to proceed. There are situations where we do not have the luxury of time. To ensure the safety of our communities, Canadians and citizens of other countries, law enforcement must have the ability to take immediate action.
The new advocacy and promotion of terrorism offence will make it easier for law enforcement to address the material that is being used to radicalize Canadians to violence. Through Bill C-51, the courts will have the ability to seize, forfeit and request a removal of terrorist propaganda material in Canada. This will allow law enforcement, in collaboration with the Attorney General, to direct Canadian service providers to remove material that is contributing to the radicalization of Canadians.
Unfortunately with these new measures being proposed through Bill C-51, we will never be in a position to mitigate all potential terrorist threats. Rest assured, the RCMP will continue to mobilize as necessary and work in collaboration with our partners at all levels of government and civil society. One of our key partners has been and will continue to be CSIS. Going forward, particularly with its new mandate to reduce threats, it will be essential to enhance de-confliction processes to maintain separate and distinct investigations in parallel.
[Translation]
In closing, I would like to reiterate that it is my goal, and the goal of the RCMP, to be fully transparent with you on exactly how these new measures will assist the RCMP's mandate and the efforts we will be making to ensure that the full range of rights of Canadians are fully protected.
Thank you for your attention.
[English]
Greta Bossenmaier, Chief, Communications Security Establishment: Good afternoon Mr. Chair and honourable senators. Thank you for inviting me here today alongside my colleagues from the RCMP and CSIS as you undertake your study of Bill C-51.
As the chair mentioned, this is my first time appearing before your committee in my new role as Chief of the Communications Security Establishment. I am pleased to have the opportunity to share with you some insights I have gleaned to date, including these as they relate to Bill C-51. I realize our time together is short, so I will keep my comments brief.
[Translation]
Mr. Chair, I am pleased to serve as the Chief of the Communications Security Establishment. In this role, I support the Minister and Associate Minister of National Defence.
As Canada's National cryptologic agency, CSE is a unique institution within the Government of Canada and one of Canada's key security and intelligence organizations. For almost 70 years, CSE has played a vital role in helping to protect the security of Canada and all Canadians.
[English]
CSE has a three-part mandate as stipulated in Part V.1 of the National Defence Act. Specifically, Mr. Chair, CSE is mandated to collect foreign intelligence in accordance with the Government of Canada's intelligence priorities. We also provide advice and support in the defence of electronic systems of importance to the Government of Canada, often referred to as "cyber protection." Finally, CSE is mandated to provide support to federal law enforcement and security agencies in executing their lawful authorities.
Bill C-51 does not alter CSE's mandate or authorities. CSE is, however, one of the departments and agencies listed under the proposed security of Canada information sharing act. CSE will continue to ensure that any information we may share or receive from our federal partners is done in full compliance with the law and respecting the privacy of Canadians. We have established policies, practices and protocols to guide this sharing of information, reflecting Canadian law, the Charter and relevant privacy protections.
[Translation]
I would also like to elaborate on CSE's assistance mandate. Under our assistance provision, federal law enforcement and security agencies, such as RCMP and CSIS, may request our technical support and assistance in accordance with their own legislative mandate. In effect, when rendering this assistance, we are acting under the legal authority of the requesting agency, and are subject to any associated restrictions or conditions. This provision does not change under this proposed legislation.
The National Defence Act is also clear in defining the measures that CSE must take to protect the privacy of Canadians. It states explicitly that CSE's foreign intelligence and cyber defence activities shall not be directed at Canadians or any person in Canada, and that these activities will be subject to measures to protect the privacy of Canadians and the use and retention of intercepted information. The National Defence Act also establishes the office and duties of the CSE Commissioner and provides the legal bases for his extensive review authority.
[English]
Mr. Chair, since arriving at CSE, I've been impressed by the dedication, commitment and professionalism of its employees. This dedication is reflected in part in the clear commitment to respecting and protecting the privacy of Canadians. I have already observed first-hand this commitment throughout the organization to respect CSE's legal framework, including the privacy of Canadians. This culture of compliance has been affirmed by the independent commissioner of CSE. I can assure the committee that I take very seriously my responsibilities to ensure that the organization complies with the law and protects the privacy of Canadians.
Thank you for inviting me here today.
The Chair: Colleagues, before we begin with questions I would like to direct a general question to Mr. Coulombe. Six months ago at this committee, it was revealed that there were well over 300 Canadians either directly or indirectly involved in terrorist activities in this country in large part in respect of the Middle East. Could you update us on the nature of the radical Islamic jihadist threat that Canadians are facing?
Also, could you tell us if one of your agencies has developed a threat projection over the next 7 to 15 years? If things continue the way they are, what threats will Canadians face given the current radical Islamic jihadist movement?
Mr. Coulombe: I'll start with the last part of your question. It's extremely difficult to project what it will look like 10 years from now. What I can say, though, is that the phenomenon will still be with us 10 years from now. We're still dealing with threats following the wars in Afghanistan and Bosnia, and we'll have to deal with and manage that threat for a long time.
In terms of an update, the last time I was here I was reluctant to give you numbers, but I can say that they are increasing. Maybe to correct the record, you mentioned at the beginning at the time 145 people in Iraq and Syria. It's 145 known Canadians around the world, with about one third in Iraq and Syria and some in Afghanistan, Pakistan, Yemen, Libya and elsewhere. That overall number is slowly increasing, with the sharpest increase in Iraq and Syria. In fact, over the last three or four months, we have probably seen an increase of 50 per cent in the number of people who have left for Iraq and Syria.
Senator Mitchell: Thanks to each of you for provocative, in a good way, presentations. It's clear that you don't have enough resources. You've been almost explicit about it and I know that you really can't be, but we'll see what happens tomorrow.
My first question is to Mr. Coulombe. Given that you probably do disruptive activities from time to time already — you might want to address that — what kind of disruptive activity would Bill C-51 allow you to do that you wouldn't already be able to do? I'd like to get beyond this idea that you'd be able to talk to parents, because that's the vanilla-type example that's used. Could you be more explicit about that?
Mr. Coulombe: I will address the part that we probably already do disruptive or threat reduction activities. In fact, we don't, because we don't have the mandate. What happens in our collection mandate, yes, sometimes as a by-product, it can have a secondary effect. If we're talking to somebody, it could have the result of diminishing the level of activities, for example. But that's not why we're doing an interview. Our mandate at the moment is to collect, and that's strictly what we do, again sometimes with the side effect of diminishing the threat. That's important to understand.
In terms of giving you examples of what we could do in the future, aside from the vanilla type — I will go into the chocolate part — it can go from asking people who are cooperating with the service to intervene to try to dissuade somebody who is planning or thinking of travelling. But it could go into disrupting a financial transaction done through the Internet, disabling mobile device use in support of terrorist activities, and tampering with equipment that would be used in support of terrorist activities. Those would be the types for which we would need judicial authorization. There is a vast array of activities we could take in order to fulfill that threat reduction mandate.
Senator Mitchell: My next question I would address to Ms. Bossenmaier. It could be addressed by all three of you, but it comes out of your presentation. You mentioned that it's a very serious concern that people have under the implications of the sharing of information act. You have ways to limit the use of that information, but can you reassure us or give us fundamental reassurance that under these changes we won't get another Arar situation, where information goes to another country or another department and then that department or that nation can do with it what it wants? How do we avoid that? How can we reassure Canadians? That's a fundamental problem.
Ms. Bossenmaier: Thank you for the question, senator. My colleagues as well might want to address it.
The first thing I would note from a CSE perspective, as I noted in my opening remarks, is that this bill does not actually alter CSE's mandate or authorities. I put that out to begin with.
In terms of information sharing, I'd touch on a couple of points. First of all, all of CSE's activities are able to be reviewed by the independent commissioner of CSE. He has a robust review mechanism over our activities, full access to our data, our systems and our people, up to the point that he actually has the ability to subpoena people. So there is robust oversight in terms of our activities, and he has never found us not to be in compliance with the law.
As well, I spoke a bit in my opening remarks, senator, about the overall procedures and practices we have in terms of protecting privacy. Since I have been at the agency for approximately two months now, I have been impressed almost from day one in terms of the type of rigour that's applied to protecting the privacy of Canadians. That starts with the training of our employees through executive oversight, to systems checks, to compliance measures, just an overall robust measure in terms of protecting privacy and abiding by the law.
Again, my colleagues might have other items to add.
Mr. Coulombe: I think it's important, first of all — and it was mentioned previously — that a privacy impact assessment will be done and sent to the Office of the Privacy Commissioner. Also, especially sections 5 and 6 of the new information act are extremely important. First of all, they clearly state that any regulation or act at the moment that prohibits or restricts the disclosure of information is not changed by this act. This act is just to clarify explicitly the fact that you can share national security. If you're subject to an act that restricts or prohibits, this doesn't change.
It also says — and I will take the example of the service — that if you decide to share information with the service, you can only share information that falls within the mandate of the service. Quite often, people will read the definition found in the act in section 2 and say that it's a very broad definition of national security and, because of that, the service will now be receiving information about all kinds of activities.
That's reading section 2 in isolation of what section 5 says, that you can only share information with the service if that information falls within the existing mandate of the service. As I said in my opening remarks, the definition of "threats to the security of Canada" for the service is not changed by Bill C-51.
In addition, if you look at section 6 of the information act, it clearly states that further disclosure or use, again, is not changed by this act. If you are subject to an act or regulation that prohibits or restricts the use or further disclosure, that still applies.
Senator Runciman: I have a couple of quick questions for Deputy Cabana. In your opening comments, you mentioned 19 convictions plus 17 other charges, I think it was. Of those 19 convictions, are we talking about the Toronto 18? Is that part of that?
Mr. Cabana: That would be part of that, yes, senator.
Senator Runciman: So outside of that, one conviction.
If you compare that with what's happened with respect to some of our allies over the past number of years in terms of terrorism and financing charges, we sort of pale in comparison. I am wondering if you could speak to that issue. Why we haven't seen more charges laid? I don't know if this is a question perhaps more appropriate for the next panel, the prosecution services. I'm not sure. Maybe you can speak to why that has been the case and how this legislation may assist the RCMP in terms of laying more charges and getting to grips with more of these challenges.
Mr. Cabana: Thank you very much for your question, senator. Maybe I'll put a little bit of context around some of the statistics you're referring to. I'm not questioning whether some of the other jurisdictions may have had better success. Maybe that's a reflection of the level of activity in their respective countries. That's pure speculation on my part.
What's getting missed in these statistics is the fact that not only the RCMP, but law enforcement in Canada, when we approach a file or an investigation related to terrorism, we look at all the tools available to us. The outcome of an investigation may not necessarily lead to terrorism-related charges. It may lead to a pure criminal charge that results in the individual being incarcerated. Those statistics are not being captured, that I'm aware of. When we assess the viability of an investigation and when we develop our investigative strategy, we look at all available avenues.
Senator Runciman: This committee has been told, I believe, that there are approximately 80 individuals who have returned after travel abroad for terrorism-related purposes. I don't believe any of them have been charged. We have the infamous jihadi brides. How many of those folks are dealing with 810 orders? What kind of monitoring is going on there and what activity, if any, is occurring?
Mr. Cabana: Unfortunately, I don't have the statistics with me, but I would challenge the notion that not one of them has been charged. Some of those individuals have been charged. Some have actually travelled again and are currently under charges. So there have been some charges.
You've likely seen in the media as of late an increase in the use of the 810 provisions. But the difficulty in leveraging those tools, as they currently stand, is the proximity. They're in close proximity in terms of evidentiary threshold or requirement in order to be able to use the tool. To put a peace bond in place currently, there's not much of a difference. If we can put a peace bond in place, most of the time we're pretty close to being able to lay a charge.
Senator Runciman: Just looking at an article this past weekend in the Montreal Journal — I don't want to misquote the name of the publication and I can't find it here, but I know it was a Montreal paper — with respect to terrorism money and the lack of charges. I don't know this individual lawyer who is quoted in the article saying it's becoming embarrassing for Canada at an international level that we have a bad reputation throughout the world concerning charges of terrorism financing.
FINTRAC has passed on numerous — they say 683 — tips of alleged cases of terrorism financing, but again there seems to be a very stark lack of activity in terms of moving on these. I am wondering if you want to respond to those comments.
Mr. Cabana: The comments may be accurate. The difficulty in terms of terrorist financing is the ability or inability from Canada to be able to confirm, in an admissible manner, the end use for the funds that are being transferred overseas. Most of those activities take place in a location where our ability to secure the necessary evidence is limited.
Senator Runciman: Is this legislation going to enhance your ability to deal with these issues?
Mr. Cabana: Unfortunately, no, senator, I don't believe it will. I question Canada's ability to legislate anything that would engage some of those foreign jurisdictions to any kind of obligation on their part.
The Chair: If I can follow up on the 80 on that particular subject, has that number substantially increased since six months ago, with Canadians returning that have been involved in terrorist activity?
Second, I don't understand why we have laid very few, if any, charges to these individuals who have obviously broken the law; we know they've broken the law. With the changes in this bill, will we now see more charges being laid and these people being put into the judicial system and taken out of harm's way?
Mr. Cabana: Senator, this is speculation on my part. I believe, yes, you will see increases in our ability to leverage the tools. So I think it goes to reason that more charges and more peace bonds will be being applied for.
The Chair: You didn't answer my first question. Are there more numbers coming back to Canada?
Mr. Cabana: Well, yes, there are more numbers. I don't have the number with me but, yes, as you can see in the media, there are individuals travelling fairly regularly, so the number changes on a daily or weekly basis, if not more than that.
The Chair: I would like to pursue that in a different venue.
Senator Stewart Olsen: I'm going to ask more of an informational question, if you don't mind. Can you tell us why the bill explicitly gives CSIS the authority to operate outside of Canada? Did you not have this power before and why is it necessary to state that in this bill?
Mr. Coulombe: Actually, it was our interpretation of the CSIS Act that we always had the mandate to operate overseas. But, again, just so that it would be explicitly stated in the CSIS Act, it's actually Bill C-44 that is bringing that explicit authority.
If Bill C-44 goes through, then Bill C-51, when we apply it, does say we can do threat reduction activities outside the country, just like our mandate to collect information can also be done outside the country. But it's Bill C-44 that gives us explicitly something that was always there.
Senator Stewart Olsen: Thank you very much for your very clear outline of the danger that's present for us and that Canadians should be well aware of.
This is a question for Ms. Bossenmaier about the privacy of Canadians. How confident are you that the privacy of Canadians will be protected under this bill and under any new requests that come your way? Are you confident about the sharing of information with 17 different agencies?
Ms. Bossenmaier: Again, I would reiterate that this bill does not alter CSE's current mandate or authorities.
In terms of privacy, our legislated mandate has clear provisions and limitations on our activities in terms of protecting the privacy of Canadians. As I noted earlier, we are operating within all the Canadian laws, including the Privacy Act and the Canadian Charter of Rights and Freedoms.
By law, CSE is prohibited from targeting people in Canada or Canadians anywhere in terms of our foreign intelligence and cyberdefence activities. As I mentioned, we have been reviewed by the independent CSE commissioner since 1996 who has found that we have never acted unlawfully and in previous reports has noted CSE's culture of lawful compliance.
In terms of being on the list of 17 entities, as I noted, yes, we are listed as one of the federal entities that could receive information. Again, it would have to be strictly related to our mandate of foreign intelligence or cyberprotection, so a very limited mandate.
We can currently receive and collect that information, but this would be breaking down some of the barriers that may exist for other departments to be able to share that with us. Again, it would be very strict in terms of our mandate of foreign intelligence and cyberdefence.
Senator Kenny: Deputy Commissioner Cabana, I have a couple of questions for you. Could you describe to the committee the costs, financially and otherwise, of moving 600 staff away from organized crime and similar activities and putting them to work in the INSETs? The annual cost of a constable is somewhere in the range of $180,000. Commissioner Zaccardelli back in the day estimated it was around $200,000. That's salaries, equipment, overtime and the whole package.
I am interested in how difficult it is to move people into a new area working at INSET, how long it will take before they're effective and how the backfill works in organized crime, or is that just left open?
If you got $100 million extra in tomorrow's budget, that would give you room for 500 more constables. How long would it take before they were effective and useful in either organized crime or at an INSET?
Mr. Cabana: Thank you for the question, senator. Good question. Unfortunately, I'm not sure how informative my answer will be because this is not something that I believe we've actually costed.
The individuals that we've redirected to national security priorities, it's not a situation for the most part where we've actually relocated people. They just work in the same area but for a different purpose. So the cost associated to that, you can take the math. I think the numbers you have are probably fairly accurate.
But this is not an unprecedented situation for the RCMP in the sense that that's what we do. So we continually prioritize our resources and direct them to the highest priorities.
If you go back just a few years, most of you will likely remember the migrant vessels that landed on our shores. At that time we directed significant resources to that particular priority.
Now it's national security/terrorism that we focus on. I agree with you, there are costs, but I'm not quite sure exactly what they are.
In terms of how long it takes for them to become effective, I guess it all depends on your definition of "effective." We understand that a significant number of those individuals have had limited expertise or experience in the national security realm. We understand the recommendations that stem from the O'Connor commission and the Iacobucci commission, so we're very attuned to the need to make sure there is close supervision by individuals that have the requisite level of expertise, and we shifted our focus in terms of providing adequate training as quickly as possible to ensure they have the basic knowledge to operate within the national security arena.
Over and above that, the governance framework around our national security work is centralized here in Ottawa, so every step of the investigative process is closely managed and supervised by individuals here who have a high level of expertise within national security.
Those are some of the steps we have put in place to try to mitigate the fact that some individuals may or may not have as much experience in the national security area.
Senator Kenny: If you could increase the throughput of Depot by 500, how long would it take before they would be useful in an INSET?
Mr. Cabana: I'm afraid I can't answer that. It would take some time.
Senator Kenny: My second question is to ask Deputy Commissioner Cabana if he could give us examples of when the police would be arresting someone without a warrant. Could you walk us through the process of making the decision, how you would go about it and just how it would work?
Mr. Cabana: That's a broad question because there are many circumstances where this may happen. I can actually recall one particular incident — I think it dates back to June of last year — where an individual under investigation proceeded to the airport to leave Canada and our police officers were of the belief that the individual was set to travel for terrorism purposes. They did not have a warrant, and our members proceeded with arresting the individual. So providing that members have reasonable and probable grounds to believe, members can currently arrest individuals.
Senator Kenny: And hold them without a warrant?
Mr. Cabana: Nobody in Canada can be held without a warrant forever. So there are provisions under the law for individuals who are arrested without a warrant to be brought in front of a judge as soon as possible but certainly within the first 24 hours.
Senator Beyak: Thank you all for your excellent presentations. They were very clear and informative and I think very reassuring for Canadians watching at home. It's a concern for all of us, this fight against terrorism, and we want to give you as many tools as we can.
There is a concern from some of my constituents that there are two sets of justice: one for ordinary Canadians and a bit of a softer approach for people like the jihadi brides. Is that an accurate observation? Can you give me a little detail as to what led you to not lay charges against them when they seemed to be supporting a terrorist organization? Was it their age, their country of origin or other details that you can share with us that have not been reported?
Mr. Cabana: I assume, senator, that question is directed at me. I will also make another assumption, that we are referring to the three teenagers from Toronto.
Senator Beyak: Yes.
Mr. Cabana: The decision whether or not to proceed with charges is not one that is made lightly. It involves significant consultation with representatives from PPSC. A number of factors are considered in making that determination. Ultimately, at the end of day, the decision on whether or not to proceed with charges is the Attorney General's decision.
Senator Beyak: Thank you very much.
[Translation]
Senator Dagenais: Thank you to all the witnesses. My question is for Mr. Cabana.
Bill C-51 will make it an offence to glorify terrorist acts, and considering how easy it is to do so on the Internet, this aspect of the bill is one that I find essential.
I would like to ask you about your investigation methods and what you will look for before charging someone under the provisions of the new act.
Do you have an idea of how many charges you could have laid under C-51 had it been in effect over the course of the past year?
Mr. Cabana: Thank you for the question. It is a good one, but I unfortunately cannot answer it. We simply did not keep track of how many investigations could have led to charges being laid under Bill C-51.
As for methods, we use a good number of them. We do not have a one-size-fits-all approach to all investigations. We proceed case-by-case, and in certain circumstances, according to the information we get, whether from the family, the community or from confidential sources. Likewise, both the RCMP and CSIS have staff that keeps an eye on social media to determine what kinds of materials or information is shared publicly on certain sites.
[English]
Senator White: Thanks to each of you for being here.
Mr. Coulombe, you talk about disruption. I understand a number of other countries utilize disruption, including Scandinavian countries, I think U.K. and some others that we partner with pretty regularly. Those countries would argue that they have police services even more closely engaged with them than we probably have with CSIS and the fact that some of those actually have joined units at least.
Can you explain to the Canadian public — you explained how you would do it — why it is necessary in this country for you to have such a capacity or ability?
Mr. Coulombe: There are a number of reasons. We've talked about the speed, the velocity at which today it goes from aspiration to conception to execution of a terrorist attack. I've said that sometimes we just don't have the luxury of time to decide on a response. You may not meet a threshold where, for example, the RCMP could intervene. I was talking about, for example, if we are going to be asking a human source to try to dissuade someone from travelling, if we have that relationship with that person, then it just makes sense that we have that mandate then to act instead of having to pass that human source to the RCMP. Time goes by, and at the speed things are evolving, the person could be on the plane on their way out.
There is the pre-criminal world where we could intervene. Again, the thing I have to stress is the conflict in consultation with the RCMP that we already do in our collection mandate to make sure that we don't jeopardize a criminal investigation, to make sure that we don't duplicate efforts, but also to make sure that there are no gaps, that there is not an area one of us is not looking at. The same principle will be applied on the threat reduction mandate, and it's not just with the RCMP. It's also with partners like CBSA and others.
Mike was talking about the joint operations centre to deal with high-risk travellers with a number of partners. It's good case management, sitting together and deciding on each case what the best course of action is and who should have the lead on that file.
Senator White: Thank you very much for that. In fact, in Canada we have 198, give or take, police agencies spread across this country. The RCMP is not the police service of jurisdiction in the two largest provinces and provide instead a federal role and national security role, of course. Certainly most would argue that the lack of the ability to disrupt could jeopardize Canadians' lives.
Mr. Coulombe: Yes.
Senator Ngo: To follow up on Senator White, did you say that CSIS sharing information about terrorist threats is within your mandate? If so, who determines when and if the information is shared? Someone also suggested that CSIS keeps the file of a suspect a little bit too long. Do you agree with that?
Mr. Coulombe: Sorry, that we what?
Senator Ngo: That you are keeping files of the suspects too long before sharing.
Mr. Coulombe: For example, with the RCMP?
Senator Ngo: Yes.
Mr. Coulombe: Honestly, I would totally disagree with that. You have to look at how the relationship and the service with the RCMP are today and not how it was 20 years ago. Not a day that goes by where, among our regional offices and the different divisions and headquarters, there are not dozens of meetings between our officers and RCMP officers.
When I was director general in Montreal — and I know this is still the case — there was a monthly meeting between us and the RCMP going through the different CT files. We are not police officers. We're not experts in terms of when it meets the criminal threshold. That's why we consult with the RCMP all the time in terms of when that information should be passed to the RCMP.
Again, I totally disagree with this notion that we keep files to ourselves and that we decide on our own when it should be passed to the RCMP and that it's normally done too late.
Senator Ngo: Then who determines if and when the information is shared?
Mr. Coulombe: Again, through consultation now with the RCMP in looking at the files, we decide that — and with time, the service has developed certain knowledge. Again, we are not experts. There is certain knowledge as to when we should get the RCMP involved.
On the counterterrorism file, we talk with the RCMP every day, we share with them, they are aware of what we do, the targets we have and when it is time for them to engage. It's important to understand when the RCMP does engage, it doesn't necessarily mean we disengage. Mike talked in his opening remarks about parallel investigations. We are not here to supplement what they do, but we can run parallel investigations.
Senator Day: Thank you very much for being here. I'm just learning my way through this piece of legislation. It takes a while to understand the nuances, and so my questions are somewhat general at this stage. As time goes on, we will get into some of the more specific points.
My first question is for the director. Mr. Coulombe, you seem to settle all of our unease and the public's unease with one paragraph in your presentation:
The proposed amendments to the CSIS Act are responsive, measured, and, in my view, essential.
We're dealing with Bill C-51 totally, and the amendments to the CSIS Act are Part 4, clauses 40 to 51 or so, just a small portion of the five different parts of this act. When you say "essential," are you talking only about the amendments to the CSIS Act, or should it be expanded to the other four parts?
Mr. Coulombe: I'm certainly also talking about the information sharing part, which for us is essential.
Senator Day: Yes, which is the first part, Part 1.
Mr. Coulombe: Yes. And although it has an indirect impact on the service, I certainly believe that the other three changes to the Criminal Code in terms of air safety and also Division 9, I believe, are also required changes.
Senator Day: Thank you. That's helpful in understanding your comments.
You also talk about the new authority similar to those exercised by many of our foreign partners. You're satisfied that the new authorities that appear in the various sections of this act — not just the CSIS Act amendments but others, such as sharing of information, et cetera — are similar to those exercised by many of your foreign partners?
Mr. Coulombe: In that case, yes, but I'm more particularly talking about threat reduction activities.
Senator Day: Thank you for that. I understand a little better the meaning of your presentation.
My second question goes to the deputy commissioner in relation to your presentation as well. I wonder if you could expand on where you were talking about in excess of 600 members being moved from one area of responsibility to the Integrated National Security Enforcement Teams and national security enforcement. We appreciate that. I'm sure you're looking at those that were involved in areas where funding might have been illegally sought after to support terrorist activities. You're not removing people from that particular area.
You can comment on that if you wish, but my primary area of inquiry is where you say:
As a result, the RCMP recognizes that it needs to find a longer term solution to be able to respond to the breadth of its federal policing mandate.
We recognize there are quite a few RCMP members involved in contract policing as well.
Can you speculate a bit on how you are going to deal with finding a longer term solution? We recognize as well that you need more funding to hire more members, but that will presumably come in due course. What are you thinking now in terms of management?
Mr. Cabana: Thank you very much, Senator Day, for the question.
This is a reality that we've been challenged with. We started looking at this going back at least a year ago where we saw the trend. With the service, we've been having discussions in terms of the significance of the trend and how to position ourselves.
Internally to the RCMP, we are trying to be as judicious as we can in selecting members to supplement current investigators that are part of INSET or our national security investigation team. So we want to make sure that we're not being counterproductive by removing them from an area that is actually supportive of the priority itself. The reality is that we have so many members, and at the end of the day, there is an impact to some of our other mandates in some areas.
That's what I meant when I said we need to look at a longer term solution. This is not sustainable. In terms of whether we are managing the current crisis and the trend, we are. We are assigning the necessary level of resourcing to it, but it has a cost and an impact to other areas. I can't tell you what our solution is because we do not have one right now.
We are looking at options and assessing how we prioritize our file. This is something we do consistently, almost on a daily basis. We are looking at how we can make adjustments to make sure we have a balanced approach in terms of meeting our various mandates. One thing we will continue to do is prioritize the higher risk files which currently, for the most part, are national security in nature.
Senator Day: Would this adjustment include looking at the assets you are using now in contract policing? Would it include increasing the number of members and new inductees going through Depot?
Mr. Cabana: I can tell you that currently — not to a large extent — we do have members that originate or come from contract policing that are providing assistance to some of our team. Like I said, they are not in huge numbers, but we do have some.
In terms of increasing our numbers in Regina, we're making adjustments to our troop intake on a fairly constant basis, but currently we don't have the ability to start hiring large numbers and bringing them through Depot.
Senator Day: From a finance point of view?
Mr. Cabana: From a finance standpoint.
Senator Baker: Mr. Cabana, if you were investigating me, say for a drug offence, you'd conduct an investigation and then lay a charge. But if you're investigating anybody under those terrorism provisions, you would conduct your investigation and can't lay a charge. You have to send it to an office in Ottawa to be reviewed for any Charter violation, taking days, perhaps weeks or a month or so before a charge can be laid. Would you support a recommendation from this committee that the police in Canada be allowed to lay charges just like they do for any other common offence under the Criminal Code?
The first part of this bill gives a limitation period of one year to lay a summary offence charge. If you were investigating a fisheries violation, it's two years; an environmental violation, two years; a politician, ten years, five years after you became aware of the fact. The first section of this bill says only one year, and beyond the year a charge can't be laid.
You may not want to answer these questions, and that's your choice, but would you support a recommendation by this committee to allow the authorities a longer period of time to lay a charge instead of having that small period of time of just one year in a very complicated area of terrorism?
Those are my two questions.
Mr. Cabana: I'm afraid this is not a yes or no question, senator.
In short, the RCMP is in the business of applying the laws that Parliament sees fit to develop and put in place, and that's what we will continue to do.
In terms of context, I want to make sure there is no misconception here. First of all, there are a number of jurisdictions in Canada where criminal or drug trafficking charges require pre-charge approval.
Secondly, the relationship we have with PPSC in terms of the development of our cases is an even closer relationship than we have with CSIS. They are engaged from the start of our investigation in providing advice. And yes, there is a process currently where the file is sent to Ottawa for approval, but the discussions have taken place well in advance of this process kicking in.
Senator Baker: Second question, the limitation period.
Mr. Cabana: Well, it's up to Parliament to decide what kind of limitation they want to put on the applicability of these provisions.
Senator Jaffer: To all three of you, I am very concerned, as many people are in the Canadian Muslim community, of how this legislation will be applied. The chair addressed Muslim jihadis, and there is no doubt that the community feels very threatened. I want to know what you are putting in place.
One thing I've been hearing from many community members is the information sharing. Now this information will be shared with 17 groups, including the food agency, including the transport and public health agencies. There is a comfort level that CSIS knows how to gather intelligence and protect it. How are you going to share this information with all these groups and make sure there are no breaches?
Mr. Coulombe: Again, I think it's important to understand that this bill, in terms of information sharing, is there to facilitate. It doesn't change in terms of how we already interact with other departments in terms of information sharing, and I'm talking about CSIS.
For us it's essential because, at the moment, we have to rely on us asking another department if they have information, but it's difficult to ask something that you're not aware of. As section 5 says, they can, on their own, decide to share information with us if it falls within our mandate.
We have protocols when we share information. We place caveats on it in terms of how it can be used: "You have to inform us." Nothing changes with this. The controls that are already in place will be there with Bill C-51. It doesn't change anything in terms of the flow of information. It just makes it explicit that in the context of national security, there is an expectation that if your act, the regulation under which you operate, permits you, you will actually share.
Mr. Cabana: Maybe I can give the RCMP component of this.
The information-sharing provisions that are found in the bill currently do not change much in terms of our current practices. We have well-established operating procedures that have been developed over many years based on recommendations from a number of commissions. We share in accordance with the current legal framework, including the Privacy Act and based on consistent use. That's not going to change.
In terms of your questions about the concerns of the Muslim community, I can tell you it's not lost on us. We understand their concern. We actually work very closely with key individuals within the community, but at the end of the day we do not target communities. We do not target individuals based on their faith or origin. We work based on evidence.
We fully understand the community's concerns, and hopefully over a period of time we'll be able to clearly demonstrate that the community itself is not the target of the RCMP. I don't want to speak for my colleague, but I am pretty sure it's safe to say the service —
Mr. Coulombe: Exactly the same point. We do not target any communities. We target individuals based on their activities. If their activities fit the definition of "threats to the security of Canada" that you find in the CSIS Act, we will investigate.
The Chair: Colleagues, I would like to follow up on one question with Deputy Commissioner Cabana.
Six months ago, as I said in the opening statement, the public was made aware that there were over 300 Canadians indirectly or directly involved in terrorism activity. This is six months later.
When I put the question earlier, I was told that that has increased, but we were not told to what numbers. It's time, quite frankly, that the public be made aware and apprised of how many Canadians are actively involved directly or indirectly in terrorism in this country, whether they are in or outside of this country.
Mr. Cabana, would you be prepared to table with this committee the number of high-risk travellers that have returned to this country in the last six months, those wishing to leave this country to be involved in terrorist activity outside this country, and an update on the current numbers that are seen to be actively involved in terrorism out of the country? Canadians want to know that answer, and I would appreciate if it could be tabled to this committee.
Mr. Cabana: Senator, I will definitely endeavour to do that, understanding that the moment I provide a number, it is in all likelihood obsolete because the number changes continuously.
The Chair: That's fine. It's six months, and I know we're not looking for an update every day. The Canadian public deserves to know what threat this country faces. The way can quantify it is by the number of people actively, indirectly or directly, involved in terrorism.
It is concerning and we know that the terrorism threat has increased substantially since six months ago. We're looking forward to that response, and sooner than later would be appreciated by this committee.
Thank you for coming. We appreciate your forthrightness when responding to our questions.
Colleagues, I would like to thank our witnesses for appearing here and answering our questions. I want to welcome two witnesses from the Public Prosecution Service of Canada, George Dolhai, Deputy Director of Public Prosecutions, and Ursula Hendel, Senior Counsel and National Terrorism Prosecutions Coordinator.
The Public Prosecution Service of Canada is on the front line for enforcing the laws passed by Parliament. As we heard earlier, you work closely with the RCMP, as well as with CSIS in some cases, in determining how, when and if the laws will be enforced.
Mr. Dolhai and Ms. Hendel, welcome back to the committee. I understand that Mr. Dolhai has an opening statement, and I invite you to begin.
George Dolhai, Deputy Director of Public Prosecutions, Public Prosecution Service of Canada: Last fall, Ms. Hendel and I had the pleasure of appearing before your committee in respect of national security questions in general, and terrorism in particular. As you are aware, the Public Prosecution Service of Canada doesn't develop legislative policy. We're an operational department.
The investigation and prosecution of terrorism offences, as you heard from the previous panel and as has been our experience, brings together the efforts of law enforcement, intelligence agencies and prosecution services.
[Translation]
As for Criminal Code provisions regarding terrorism, we share jurisdiction with provincial criminal prosecution services. We coordinate our approach with them when we have to decide which one of us will lead the prosecution in a given case, the guiding principle being the public good.
[English]
At the regional and headquarters levels, we engage in ongoing communication with investigative bodies, such as the RCMP, to ensure that we're aware of their operational priorities. We continue to allocate and reallocate our prosecutorial resources accordingly in order to ensure that we can respond to those operational requirements.
We assign experienced counsel in each region to deal with any aspect of the advisory role during the course of an investigation, or to conduct the prosecution. Our Crowns provide timely advice to police agencies conducting terrorism investigations. We also provide training to law enforcement officers. We have senior counsel, such as Ms. Hendel, in our headquarters that ensure assigned prosecutors get the support they need in the regions on the front lines, including providing specialized tools and training.
I often consult with our senior general counsel, the most senior litigators in the country. We consider their group to be a national resource that I will call upon to undertake advisory work or prosecutions, regardless of where they're situated, given their experience. All of this allows for a coordinated effort in relation to these cases.
Beyond providing advice to the police, we must make assessments as to whether to provide the Attorney General's consent in relation to recognizances with conditions, peace bonds or the initiation of terrorism offence prosecutions. These decisions are the product of very intense and ongoing consultation and communication between us, investigators or assigned prosecutors at our headquarters. The ultimate decision to consent to a recognizance with conditions, a peace bond or a terrorism offence prosecution has been delegated to me as a deputy director.
My role as a deputy director in considering consent is not to determine whether I would issue the process that is being sought with the peace bond, recognizance or the laying of charges, but whether there is sufficient evidence available that a judge could — not that the judge would — find that the statutory requirements or threshold has been met.
As Deputy Commissioner Cabana alluded to, Ms. Hendel, I and other senior counsel at headquarters have an ongoing relationship in relation to the investigations and advice that our Crowns are providing. Generally, unless it's something that comes up literally at the last minute, Ms. Hendel and I are very well versed in the evidence that has been gathered, having received briefings directly from our most experienced counsel.
When I receive a request, senator, what you referred to as something coming to Ottawa, at the same time, something goes to the RCMP at headquarters. By the time that happens, we have a very good sense of what the evidence is and whether the thresholds have been met. At that point, it's not a situation where we are reading about it or learning about it at the first instance.
[Translation]
In conclusion, the Public Prosecution Service of Canada highly prioritizes terrorism-related prosecutions. I am proud of the expertise and commitment shown by our prosecutors in those cases. We now look forward to your questions. Thank you.
[English]
Senator Runciman: Mr. Dolhai, you mentioned your responsibilities and that you serve as the Attorney General's delegate for terrorism prosecutions and signing off on peace bond requests. I'm speaking to a specific issue that Canadians are very concerned about, obviously, and reacted strongly to and that is the death of Warrant Officer Patrice Vincent. Apparently, there was a peace bond application with respect to that particular individual involved in the warrant officer's death.
Could you elaborate in any way, shape or form with respect to what the process was there? You talked about meeting the threshold. Did this peace bond request actually get before a court, and what was the involvement of your office in that process?
Mr. Dolhai: With respect to the tragic events surrounding his death, there was not a request for a peace bond. There was ongoing discussion between the investigators in Montreal and our senior Crowns to see whether or not there would be sufficient evidence to proceed with, among other things, a recognizance with conditions or a peace bond.
That's an ongoing process that our Crowns and the investigators locally were involved with. They concluded that, in fact, there was insufficient evidence to meet the statutory threshold.
I was consulted throughout that process as well, so I was aware of the nature of the evidence and the assessment by the senior prosecutors in the regional office, as well as the investigators.
Senator Runciman: With the changes in Bill C-51, if you were faced with that same sort of situation, what would your reaction be?
Mr. Dolhai: I would assess the nature of the evidence. We are, as I indicated, a very operational department, so we are focused right now on assisting the police and following through on the prosecutions based upon what the law is today.
Senator Runciman: I understand that. I'm saying you're being given more latitude in terms of interpreting a threat.
Mr. Dolhai: The threshold is definitely lower.
Senator Runciman: Absolutely, so I would hope that had this legislation been in place, you and the investigators would have responded differently.
I referenced earlier an article in Le Journal de Montréal this weekend. One of the elements they commented on was the Public Prosecution Service of Canada did a deal with Tamil Tigers' supporters to ensure that no one faced prosecution on terrorism financing and the Tamil Tigers.
We know that we've spent a lot of money on FINTRAC since 2009 to track terrorist financing. I think you were in the audience. You heard me quote some of the comments out of that article that it is becoming an embarrassing situation for Canada at an international level and very few charges, if any, have been laid. Would you like to take the opportunity to respond to those comments in that article?
Mr. Dolhai: Senator, the question of financing of terrorism offences is an important one. It's one that we work closely with police on. We have had convictions in Canada in relation to financing offences. One was in relation to the LTTE in British Columbia. Mr. Thambithurai pled guilty and was convicted.
As Deputy Commissioner Cabana indicated, it's a question of obtaining the evidence. As Crown prosecutors, our role is to provide advice to the police. It's not just passive, where we sit and say, "I don't think you have enough." It is very much an iterative process where the investigators, our Crowns and headquarters, including myself, are constantly reassessing whether there is sufficient evidence to go forward in relation to a charge, including a financing-of-terrorism charge.
I have indicated that Thambithurai was one. There were also financing charges in relation to Mr. Khawaja.
Senator Runciman: Two since 2009.
Mr. Dolhai: That's right.
Senator Runciman: Well, $250 million, 683 tips through the RCMP, CSIS and other police forces and two prosecutions, I think that's a legitimate concern. If there is any advice that you could offer the committee that we could pursue further, it would be appreciated.
Thank you.
The Chair: Maybe we should pursue this aspect, because I think it is of concern.
Is Bill C-51 going to allow your office, the intelligence agency and law enforcement agencies more latitude in bringing due process with respect to terrorist financing and judicial proceedings?
Mr. Dolhai: With respect to terrorism financing, the legislation does not address that specifically. It creates other offences and deals with lowering the threshold for a peace bond or a recognizance with conditions, but it does not specifically address terrorism financing. With respect to that, the police would have to use the tools that currently exist for them in relation to the code.
I recognize that it is a tremendous challenge for the police, and it is one of those areas where we have worked with the police. We also work with them in relation to these questions on proceeds of crime generally, and again it's a question of gathering the necessary evidence so that we can go forward with a case. If we have the evidence, we will go ahead with it. In fact, the police will, no doubt, have the same assessment as us if the evidence occurs.
The Chair: Just to clarify for the record what Senator Runciman brought forward to the committee, is it true that your office made an agreement with the Tamil organization not to proceed with any charges?
Ursula Hendel, Senior Counsel and National Terrorism Prosecutions Coordinator, Public Prosecution Service of Canada: No, I wouldn't say that's true.
The Chair: Well, then, what's true?
Ms. Hendel: Well, it depends which case is being referred to, but I'm unaware of any case where we made an agreement with somebody not to proceed with charges where charges were otherwise warranted.
Mr. Dolhai: In the instance with the Tamil Tigers, senator, there was sufficient evidence to proceed with restraint and a seizure and forfeiture of property that was in fact forfeited pursuant to the terrorism provisions in the code. They don't require a charge to be laid. They require, on a balance of probabilities, which is lower than the ordinary criminal standard, that the court be satisfied that the property had been used in some way with respect to terrorism. In that case, there was property that was forfeited, including, among other things, bank accounts.
Senator Mitchell: I'd like to pursue this a little bit further as well but in a slightly different direction.
There is still concern, because we had testimony that there have been 2,000 prosecutions in the U.K. and not very many here, comparatively. There are suggestions by some that if anybody is fighting for ISIS and they come back, they should not be allowed back in.
Is the problem really trying to get adequate evidence for what somebody did once they left? How do you do that? How do you get evidence that they actually fought for ISIS or that they did something that broke terrorism laws? Is that the problem? Is that one of the reasons why it is so difficult to prosecute?
Mr. Dolhai: It is an issue. It's definitely an issue, but we have successfully prosecuted persons who were going overseas. They hadn't left yet. Mr. Hersi was an example, and he, in fact, was counselling the undercover officer that he should go too to commit the same sort of activity in support of a foreign terrorist organization.
We have those prosecutions, and we have currently before the courts a number of those prosecutions that focus on those who are going overseas or have gone overseas. In the modern day, there is, for example, as senators all know, the issue with respect to things that people post on the Internet. That raises particular evidentiary issues, but we look at that evidence to the extent we can establish it as evidence. That is part of what we proceed with. We have had, I believe, five travellers, persons who have either gone overseas or were attempting to go overseas, in relation to whom there have been convictions — Mr. Khawaja, Mr. Hersi.
Ms. Hendel: Jamal James of the Toronto 18 was the third, and then we have warrants outstanding for two others. The five that Mr. Dolhai referred to are individuals who were charged prior to the coming into force of the four new offences that specifically address leaving or attempting to leave Canada. Charges since then.
The Chair: Who are the other two, for the record?
Ms. Hendel: Mr. Yar and Mr. Imam from Winnipeg.
Mr. Dolhai: We currently have charges outstanding, pursuant to the new provisions, that address specifically those who are seeking to leave in order to assist a terrorist entity with its activity or specifically to commit terrorist activity as well. We have made use of the new provisions. In fact, just today, there were new charges laid in relation to travelling.
The Chair: Just for the record, how many charges have been laid in that particular area that you just outlined?
Ms. Hendel: If you give us a moment, we have all the stats here. We can do the math. Your question is in relation to the charges for travelling?
The Chair: Yes.
Ms. Hendel: I can add that. Just to correct the record, I know the number 19 was mentioned earlier in the testimony. That relates to the number of convictions obtained. Actually, 45 people have been charged in Canada. So 19 is the number who have had their cases concluded in the courts to the stage of being convicted. If you give us a moment, we can add up the travel-related charges in particular and tell you.
The number of people charged is not the same as the number of charges because in these cases, generally speaking, there will be more than one charge per person.
The Chair: How many individuals?
Ms. Hendel: You want to know how many individuals have been charged with leaving or attempting to leave Canada?
Mr. Dolhai: I can give you information as well with respect to the general landscape post-2001 in terms of prosecutions. We have 19 persons who have been charged with terrorism offences, 17 who have been convicted and sentenced and 2 who were found guilty in Toronto in relation to a project known as Project Smooth. That case recently terminated with a finding of guilt and will be going to the sentencing stage.
We have seven instances with respect to peace bond applications, and two of those resulted in consent by the individuals to quite onerous conditions, including electronic monitoring of bracelets. That occurred after the events of October.
We have one acquittal with respect to the cases that have been prosecuted, and that came in Project Samosa. The Crown has stayed two charges, and one was withdrawn in OSage. We have currently two outstanding peace bond applications, and we have pending arrest or trial. When I say "pending arrest," it is because the individuals have left Canada and not come back yet. We have 17 of those. Of those 17, 7 are persons who are wanted on arrest warrants overseas and who go into the system, in the event that they travel through another country, so that they can be apprehended.
Ms. Hendel: My math might be off by one because I did it on a scratch pad, but I count 16 individuals charged with offences that relate to leaving or attempting to leave Canada in order to participate in terrorist activity or the activities of a terrorist group overseas.
Senator Mitchell: Some analysis suggests changes to the use of special advocates as a result of this act. Really, what I'm looking for is clarification. That's a problem, of course, because the special advocate stands in for somebody who is accused of something and cannot be there because the process may be secret. If you could clarify, are there significant, substantive changes to the use of special advocates? What are those changes, if any, or what is the status of the use of special advocates in relation to security certificates and other administrative immigration hearings?
Mr. Dolhai: Senator, I wouldn't be able to comment on the immigration aspect because we don't act for the Crown in relation to immigration.
With respect to prosecutions, special advocates can arise in one of two ways. To date, we've had them arise primarily in relation to appearances before the Federal Court when, under section 38 of the Canada Evidence Act, the Federal Court judge is faced with a situation where disclosure needs to be made pursuant to the Stinchcombe test for disclosure, and the Federal Court judge needs to balance the interests of the individual and the state interest or the prosecution interest versus the interest in preventing harm to Canada. We had that happen, for example, in Khawaja. I believe we had five applications to the Federal Court.
What we have done since Khawaja is dealt with many of these issues before the trial judge because, under the system in Khawaja, it goes to the Federal Court judge. That judge sees all of the information and then determines how much can go into the trial, and the trial judge deals with the cards that have been dealt, essentially, in terms of what she or he can see.
What we have done in a number of cases, most recently in the Smooth case but in other instances as well — OSage was another instance with respect to the adults — is that the trial judge has seen some of the sensitive information. In Smooth, the trial judge actually saw all of the sensitive information that was at issue in relation to a challenge to the wiretaps called a Garofoli proceeding and was able, in looking at all of the information, to say, "This is clearly irrelevant to this application," so it doesn't go to the Federal Court at all. This has some relevance but can be summarized sufficiently to allow the accused to be able to know the case against them. That's what happened there.
So in Smooth, for example, there was no referral to the Federal Court for the Canada Evidence Act ruling. It was very helpful to be able to do that entirely in front of the trial judge.
If there had been dispute and relevant information the trial judge didn't think he — in this case Justice Code — could summarize, then it would have gone to the Federal Court. But it would've gone to the Federal Court with an indication from the trial judge as to how important this information was as far as disclosure in that trial. Hopefully, it would have been a relatively small amount of information.
As it turned out, no such application was necessary, so it assisted in reaching a verdict in a timely fashion. In that case, for example, I believe that between the time of charges and the guilty verdict, we were approximately two years, which, given the nature of the evidence and all that goes with it — the disclosure processes, et cetera — is a good time in terms of being able to bring the matter to a conclusion.
Senator Kenny: The chair comes back to this question of charges and convictions on a regular basis. I think I'm right in saying he is doing it because he wants metrics. A lot of money is being expended and a lot of time is going into it. The question on our minds is how are we doing? How do we measure how we are doing? Are there other metrics that occur to you that would give us some indication of whether the money is being well spent and whether people's time is adequately directed?
Jump in any time, chair, but I think I'm heading at what you're after.
If you don't have the answer yourself, give us some names of people who might have a perspective that could give us some information about metrics or indices that would show all this is worth it. Are we achieving the goals we want? Should we be happy by chasing convictions, or are we better off disrupting people and resolving things in a less formal way?
Mr. Dolhai: Senator, obviously I come at this question from a prosecutor's perspective and our role in relation to criminal investigations and prosecutions. As you heard from the previous panel, and no doubt have heard a number of times, there are a number of ways to deal with the challenges.
In our law, thresholds are required to be met before you can take the criminal route. There are others that may be more appropriate to an immigration route, and there may be others that are significant and appropriate for removal of assets as occurred in the LTTE/WTM case with the bank accounts. Again, there are a number of tools there.
Is it worth it? I think that's a question for either a criminologist or a sociologist. Even in relation to something like the relationship between convictions and sentences and additional crimes, whether for terrorism or otherwise, is not really the place that we come from in terms of the study; it is a criminological question.
We are governed by the directions from the court. We stress at the time of sentencing that the primary goal in relation to an offence like terrorism is deterrence. Normally one has specific deterrence, which is trying to stop the person who did it; general deterrence, which is stopping others who may get it in their head to do it; and rehabilitation. The Supreme Court and courts of appeal have made it abundantly clear that in this realm it's deterrence that trumps all other interests. It is not that other interests like rehabilitation are not taken into account, but we are talking about a situation where deterrence is a singularly important element to it.
I don't know if I have been of assistance because the question is one that, for a prosecutor like me, is a bit outside of my realm.
Senator Kenny: We get lots of perspectives around here and that's the business we're in. When you talk about deterrence, are there any metrics associated with deterrence?
Mr. Dolhai: One could look at re-offence for the individual. One could try to assess how the deterrence operates generally among those who might be thinking about this. However, that's a difficult exercise not just in relation to terrorism but even in other cases that we deal with as well, like drugs. Where you have a much larger population of people who have gone down that road or maybe attracted to it, it's a difficult matter to tell. Among other things, you need a real good picture of what your population is in the first place. In looking at deterrence and how it works, other than the individual who is before the court and has gotten a sentence that reflects the seriousness of the offence, for others I would imagine — and I am now out of my field — that one would need to know how big is the pie before we can tell if we are making advances on it.
Senator Kenny: I interrupted Ms. Hendel.
Ms. Hendel: I think your question is obviously a very important. However, for us humble prosecutors, how to best reduce risk of terrorist activity, if we have any expertise at all, it's in the rules of evidence and how to get cases before courts and how to argue cases before courts. I don't really have anything to contribute.
Senator Kenny: I'm a little surprised at the response because prosecutors have a great deal of discretion in our system. As they exercise that discretion, they must bring values to it and I'm curious as to how to adapt those values. If you don't have an answer, you don't have an answer. However, I'm happy to see even a bit of blue sky here because the question of "how many convictions today" is getting a bit nauseous.
Mr. Dolhai: It is an important question, as Ms. Hendel has indicated, but a difficult one to answer.
You talked about values. From a prosecutor's perspective, we have a test that requires us to look at the evidence for a reasonable prospect of conviction. Only if we meet that test is it in the public interest to proceed. We have a number of criteria or values, if you like, that we need to consider in terms of whether prosecution makes sense.
Our desk book tells us, as do the judges and the case law, that the more serious the offence, the more the public interest requires prosecution. By their nature, terrorism offences are generally very serious. Therefore, public interest would normally require a prosecution.
As a prosecutor, if we were going ahead with these cases and were coming to a decision on the merits, although the Crown doesn't win or lose, we are still advocates. We have assessed the evidence and think it points to a certain place, and we make that advocacy in a fair way before the court.
However, again as a prosecutor, if we were going through that and there were findings of guilt and the sentences were not in line with the guidance around general deterrence and what helps to deter as far as the criminal law establishes, then that would be one of the metrics where I would be concerned about our effectiveness.
Thankfully our courts have treated these offences very seriously. We have had life sentences on a number of occasions.
The Chair: I want to follow up on this as it is an issue that I continue to raise because it is important from the public interest point of view. It's interesting to note that six months ago we began our hearings. A number of charges have been laid over the last number of months that were not there previously, yet there was full knowledge within the bureaucracy and the law enforcement agencies that there were vast numbers of individuals involved, either directly or indirectly, in terrorism activities. I have a concern that right now that we have, as has been projected, 80 Canadians — and all indications are there are more — who are back in Canada and have been involved in terrorism activities directly or indirectly.
In respect to your department to be able to bring forward proceedings in these cases if we're going to deal with them according to the law, because what they have done is unlawful, are you going to be able to deal with this as these numbers obviously increase?
Mr. Dolhai: Well, senator, I agree that there are valid questions to be asked around this in terms of the events after October. There has been realignment, as Deputy Commissioner Cabana indicated, with respect to the police. We have realigned as well. We have put even more of senior people on this. They have been specifically chosen because of their extreme and in-depth expertise in relation to criminal law and national security once they have developed that. We have a very good group with respect to that experience.
If we have the evidence, yes, we'll go ahead with it. We have the capability right now to deal with anything that the police bring to us in terms of potential cases.
Senator White: Thank you for your attendance here today.
I wonder if either of you could walk us through any jihadi bride cases that you have dealt with in the last 8 or 10 months and what recommendations for or against charges would have been brought from your office to the RCMP.
Mr. Dolhai: The difficulty, senator, is that those discussions between our Crowns, Ms. Hendel, the police and me are privileged; and it's not our privilege to waive.
Senator White: The question changes now. Could you acknowledge that you did not support charging any of those cases? That's not privilege because that's an opinion not being shared with them; it's being shared with us.
Mr. Dolhai: In every instance, we have been in a situation where we have been working with the police to try to get the evidence necessary. As I indicated, we don't generally have disagreements with the police around whether there is enough evidence to proceed with a prosecution. Generally if there is not enough, they will come to the table and indicate along with us that in their assessment and for these reasons there is not enough. If there is enough, generally there will be agreement with the Crown.
Bear in mind that they're involved on an ongoing basis. As you know, senator, it's not just a situation where a call comes out of the blue. People are working on this an ongoing basis. It may be short time frame, depending on what we're dealing with, or it could be a longer one if, for example, wiretaps are involved. A lot of active assessment goes on throughout that time, so we're generally on the same page with the police.
Ms. Hendel: Maybe I could attempt to answer that question in a different way.
In general terms, we make our assessments on the basis of the evidence. So it's not about whether the people brought before us are male or female, for example, if that is one of the things that concerns you. In fact, this morning a female was charged. It's entirely on the basis of evidence in relation to the elements of the offences.
Participating in the activities of a terrorist group in general terms, for example, means more than membership; and terrorist financing means more than sending money overseas. We need to be able to prove that the money was intended to benefit the activities of terrorist groups. There are specific elements within the Criminal Code. I think the deputy commissioner referred to this in his testimony.
We look at what we know and what we're able to prove. We map that against the offences in the Criminal Code. If there is sufficient evidence on each element of the offence to rise to the level of a reasonable prospect for conviction, then generally we'll agree and we'll see some charges. If there is not there's not. It has nothing to do with extraneous considerations about the individual circumstances of the suspects.
Senator White: Ms. Hendel, you said "more than membership." Explain what "more than membership" means.
Ms. Hendel: Being a member of a terrorist group is not contained in the Criminal Code; it's not an offence to belong to a terrorist group. To be subject to charges, you have to commit one of a whole host of offences in the code. The one that's very common is participating in the activities of a terrorist group. There is a specific offence if you leave or attempt to leave for that purpose as well. You have to be participating in the activities of a terrorist group. We have to prove that there is a terrorist group of some sort in whose activities you are participating or you intend to participate, as an example.
It is the same with terrorist financing, and I want to keep this conversation general. I don't want you to get the mistaken impression that I'm trying to subliminally refer to any particular case. The evidence needs to demonstrate that the individual is engaged in activity that is either terrorist activity or is connected to the activities of a group that is engaged in a terrorist activity. We need to have evidence of that.
[Translation]
Senator Dagenais: My question is for Mr. Dolhai. Do you think that law enforcement agencies in this country have sufficient knowledge or information to quickly build a case so that you may intervene? Or do you often find yourself asking police services for additional information? Will Bill C-51 accelerate the process in any significant way?
Mr. Dolhai: It depends. In the case of police, and more specifically their knowledge of the law, that depends on the person. The RCMP, like other police services such as the SQ or the OPP, has officers who have extensive knowledge of the law. It is particularly the case for officers who work in the INSET team, which includes RCMP officers, municipal and provincial police officers and a representative from CSIS.
[English]
Senator Ngo: My question is brief and precise. Under Bill C-51, will someone who publishes or disseminates statements glorifying terrorism made by another person be charged under the proposed new offence?
Ms. Hendel: Unfortunately I don't think my answer is going to be as succinct as your question. It will depend on whether the person's conduct falls within the definition of the offence. The offence requires that the individual — I'll get the exact wording in front of me — advocate or promote the commission of a terrorism offence. Yes, there is definitely a mental element.
Whether somebody's conduct fits this definition is something we have to assess based on the specific evidence presented to us by the police, so it's a really difficult question to answer in the abstract.
Mr. Dolhai: One can draw inferences from circumstantial evidence in the conduct of the individual and other things they have said. One can look beyond the material to determine whether they are promoting or advocating the commission of a terrorism offence. That could include situations where they are reckless as to whether or not it occurs. They have to knowingly do it, but they can be reckless as to whether it occurs.
Senator Beyak: Thank you very much for your presentations.
In our fight against terrorism I believe that we all have the best of intentions, but there is a perception amongst the Canadians watching that the rights of 35 million Canadians are not being looked at and are not taking precedence over the rights of terrorists in the prosecutions that are occurring. In my previous question to the commissioner, he presented the evidence and said that the Attorney General's office made the final decision not to prosecute.
In the case of jihadi brides and teenagers, could you tell us why you would make such a decision, what evidence was lacking and how you might re-evaluate your criteria for future cases? Terrorism is such a serious issue. There is discomfort amongst Canadians about their rights and the rights of terrorists.
Ms. Hendel: I tried to answer Senator White's question. I think we really can't talk about individual cases for a number of reasons, including privilege, but also because if we talk about an individual case and we reveal what evidence is missing in an individual case, we've essentially demonstrated what we think could potentially be scenarios where people might engage in troubling behaviour that might not run afoul of the law. It's important that we don't discuss individual cases.
We can certainly try to discuss generally what conduct is prohibited in the code and the evidence that we can introduce in court that would speak to each and every element of those offences, but beyond that I'm not sure there is much more we can say.
Senator Beyak: Could you re-evaluate your criteria in some way for terrorism? You mentioned criteria that you use in these cases. Canadians aren't satisfied with that answer.
Mr. Dolhai: The criteria, senators, are criteria that apply to all crimes, and Parliament made the choice to put terrorism in as a crime. So the criteria for the assessment of the public interest are what apply to all crimes.
As I said at the beginning, where it's a very serious offence, one starts from the notion that generally the public interest requires a prosecution. That's the point at which we begin to apply the criteria that are in there to assure there's nothing specifically that would cause us to find there is not — but it is not a question of weighing competing rights of individuals. Our focus is again on the question of evidence and what is admissible.
Senator Day: I'm referring to the bill, clauses 57, 58 and 59. Clause 59 is the general provision subject to section 83 of the act:
. . . the Minister shall, within a period set by the judge
(a) provide the special advocate with a copy of the information and other evidence. . . .
That was provided under certificate or a warrant.
I appreciate that this is under the Immigration and Refugee Protection Act, but I am wondering if Ms. Hendel could help me in terms of the exemption to providing that information to the special advocate that appears in clause 57 which amends or creates a section 83 that basically says the minister can apply not to provide that information to the special advocate.
We have supported the concept of special advocate to balance the important national security secrecy requirement and balance the importance of fairness and natural justice for the individual. It looks now like we're starting to take away from the special advocate some of the information that he or she could previously have relied on. Can you help me with respect to why it was deemed necessary to create this exemption?
Ms. Hendel: Thank you for the question. I really have mentioned once already my lack of expertise in general but certainly in relation to the immigration and refugee regime and the Immigration and Refugee Protection Act. I have zero qualifications to comment.
The criminal regime is quite different. The criminal regime is predicated on an individual getting a fair trial and being in a position to make full answer in defence. Entirely different considerations apply, so I can't even begin to speculate why that would be considered important.
Senator Day: Is there a similar type of provision under the CSIS legislation, for example, that you're aware of? I haven't found it in looking through here, but I thought maybe you could help us.
Ms. Hendel: Again, in relation to the CSIS Act I can tell you what happens in a criminal trial, and that's really all.
Senator Day: The Criminal Code, then.
Ms. Hendel: Yes.
Senator Day: Do you have this kind of provision where the minister can apply for an exemption?
Ms. Hendel: No. The closest thing we have in relation to national security information is a ministerial certificate. But I haven't seen one, and I think it would be difficult to continue a prosecution if material and relevant evidence that was deemed essential to make full answer in defence were withheld from a defendant.
Senator Stewart Olsen: You mentioned in your presentation that you have two outstanding peace warrant applications. Can you give me a timeline of how long they've been outstanding? Bear in mind that the presentation by CSIS was that a lot depends on how quickly we can move in order to deter or prevent. What's the length of time? How long have these been outstanding and how quickly can you move?
Mr. Dolhai: We can move relatively quickly in the sense of the preparation of the information and the affidavit that goes with it, setting out the grounds.
Senator Stewart Olsen: What you do you mean by "relatively"? Just a ballpark.
Mr. Dolhai: It will depend on the situation. We will respond as quickly as is required by the police, and they should expect that of us. For example, if they're working on something and we get a piece of information or a draft affidavit, we're going to try to turn that around that day, as soon as possible, because they're the ones who will be swearing the affidavit. We're the ones to assist them. We don't want them waiting on us, so it is as quickly as possible to get it into the system.
Then it depends on the scheduling for the hearing, and we will push hard, as we have in a number of cases, for as early a date as possible given the nature of these offences.
Senator Stewart Olsen: Thank you. That's somewhat reassuring, but two outstanding peace warrants is a bit of a concern.
Mr. Dolhai: I understand.
The Chair: Colleagues, we've come to the end of our time. I would like to thank our witnesses for appearing. We appreciate you coming before us.
Joining us now to discuss this important bill is retired Supreme Court Justice Mr. John Major.
Justice Major, welcome back to our committee. We are very pleased to have you. We appreciate the time you have taken to join us today, and we're looking forward to your very learned comments. I understand you have an opening statement. Please begin.
Hon. John Charles Major, former Justice of the Supreme Court of Canada, as an individual: It's probably too generous to call this an opening statement. It's just a review of what I have said on previous appearances.
I have no objection to the aims of Bill C-51. However, it is legislation that increases the powers of government agencies, and in particular CSIS. All the protection under Bill C-51 arises at the front end, such as obtaining warrants, permitting CSIS to act in various ways that you are familiar with, but there is insufficient control, in fact virtually no control, at the back end. By that I mean that if CSIS obtains a warrant, how do we know they acted within the powers granted under the warrant?
CSIS has been theoretically governed through oversight by SIRC. I think the Senate is aware that SIRC has not been particularly efficient, by lack of members and lack of finances, to do much of a supervision or efficiency job.
The lack of compulsory sharing of information between agencies is something that is lacking, and I came to the conclusion that the necessity of that arose in Air India. The recommendation in Air India was, among other things, for a national security adviser, which the government of the day misinterpreted either willfully or innocently to mean a department. It is clear from the recommendation that it was meant to be a senior government official, probably from the Justice Department, who could act as a referee, to use a general term, between CSIS and the RCMP.
There is a long history. I was a younger lawyer when the McDonald commission recommended CSIS being formed. I attended, on behalf of the tax department, at that lengthy commission, so I'm familiar with the background of CSIS. There may be a place where who should be in charge of national security is no longer a debate. We've decided on a separate agency, CSIS. But my concern, and the concern I have expressed a number of times, is not the purpose of the bill, which I support, but the oversight of agencies that are going to implement it.
That's all I have to say.
The Chair: Thank you, Mr. Major.
Senator Mitchell: Thank you, Justice Major, for all the time you spend with our committee. You have been very helpful.
One of the answers to your concern that was given to us, I believe by one of the two ministers, was that judges will follow up. They have the right to follow up on warrants. Has it been your experience, in your long career in the judiciary, that that is the case, or is it an onerous expectation?
Mr. Major: The question is, who is going to inform the judge? How does it get before the judge? Theoretically, if a CSIS officer is acting outside of the authority of the warrant, it may not come to the attention of a judge.
Senator Mitchell: Right. Thank you.
Have you given any thought to a broader form of parliamentary oversight in addition to a more administrative oversight?
Mr. Major: Parliamentary oversight, in my limited experience, appears to be pretty diffuse. By that I mean, who in Parliament has the responsibility and the oversight? Parliamentarians are also politicians. They have a lot of things, other than oversight of an agency, to be concerned with. I just don't think it's the kind of thing parliamentarians can do.
Senator Runciman: I was going to ask you about parliamentary oversight because I noticed your comments about that. As you know, it has been suggested and promoted by a number of members of the house, but in any event, that's not something you feel is appropriate.
You've called for this after-the-fact review of capacity, capability. Are there any instances under the existing CSIS Act that you're familiar with where SIRC has the authority to question other agencies and departments and require them to produce documents when they are linked to a CSIS operation? I'm thinking specifically of 39(2)(b), which seems to suggest a broader mandate than the general power that you can also find in the CSIS Act. Do you have any views on that?
Mr. Major: I don't, really. It's not clear enough to me. I just don't understand, as a general proposition, the reluctance of the government to make this a better act than it presently is. We come to the sharing of information by agencies, and I can only be helpful to the extent that I can tell you the absence of sharing led directly to the Air India tragedy.
Senator Runciman: The absence of sharing information, right?
Mr. Major: Yes.
Senator Runciman: You have long been a supporter of the need for a mechanism to improve interagency coordination; I know that.
Senator Stewart Olsen asked an earlier witnesses about concerns that had been raised by a number of people, including a couple of academics who appeared before the committee during our last sitting, about the possibility of reporters being charged under the provisions of this act with promoting terrorism. The wording is "knowingly advocate." Do you think that's an over-the-top concern? Do you think it has any validity at all?
Mr. Major: My first reaction is yes, it is over the top. I think we are all prepared to initially give good faith to the operation of the various agencies. But human nature being what it is, if CSIS is closing in on something that they feel is very important — and in fact may be very important — the temptation to go just beyond what is authorized in order to secure what they are looking for is sometimes more than humans can refrain from doing. I don't lay awake at night thinking of the abuse that CSIS is planning. I'm just concerned that in their enthusiasm for doing the right thing, for breaking a terrorist ring or whatever it is, they may go too far.
Senator Runciman: With the oversight suggestion you made, a national security adviser, do any of our allies have a comparable approach to oversight that you are aware of?
Mr. Major: I'm not aware.
Senator Runciman: What do you base this on? What is the origin of this? Is it your experience on Air India, essentially?
Mr. Major: Yes, it's my experience on Air India and the recommendation that came out of Air India. The reason for it is that the theory, before this bill was proposed, was that for a number of reasons it was decided to form CSIS to gather intelligence. Once they gathered intelligence, if it pointed to the commission of a crime, they were to turn it over to the RCMP. At what point in time does the information require them to turn it over to the RCMP?
We saw on more than one occasion — and by the way it works both ways — where they were reluctant to give up the file to the RCMP. They felt that they were on the edge of solving the problem, and for personal reasons, ambition or whatever it is, CSIS felt that the file should remain with them. That was not discussed with anybody. They had nobody to run that by.
If you reverse it — I don't want to make CSIS the scapegoat — the RCMP was meant to come into the situation to investigate the crime. They were not to be involved in the gathering of intelligence as it related to terrorist activities, but on occasion the RCMP would get involved in work that probably properly belonged to CSIS. They were, for the same reasons, reluctant to turn the file over to CSIS at an early stage.
It's not hard to understand that this happens, and our notion in Air India was a national security adviser would be completely independent and in a position to look at an application by the RCMP, CSIS or any other agency and for that adviser to consider what information CSIS, the RCMP or anyone else had and if it was appropriate at that stage to turn it over or at least share it with other agencies.
[Translation]
Senator Dagenais: We have obviously been hearing a lot of commentary about Bill C-51, and I am always taken aback when I hear talk of gaps in oversight or abuse of power by intelligence services or police services.
I will even say there is a sense of mistrust towards the agencies who would work under this bill. Who would you say we should trust, if not the agencies that are sworn to protect us?
[English]
Mr. Major: I understand what you're saying, but it's not mistrust. You have to realize that CSIS is not something abstract. It's composed of individuals. I, for one, believe that they start acting in good faith. I don't think they plan to do something outside their authority. But I've been around this business for over 50 years, and I have seen the best-intentioned police officers and other people in authority, with all the goodwill in the world, get themselves down a path they shouldn't have gone down. You can find, without looking very hard, where police officers have done it. From the experience of Air India, CSIS could be criticized.
It's not a matter of distrust. It's a matter of well-meaning officers and agencies wanting to do a good job but acting beyond their limits. Why the government is not more concerned about that remains a question.
[Translation]
Senator Dagenais: Oversight committees are made up of human beings who can also make mistakes. We know that police officers and CSIS agents have found themselves in hot water even though they had only the best intentions. We cannot forget that oversight committees, which we will surely have, are made up of human beings who can make mistakes.
[English]
Mr. Major: I agree with that, but we're dealing with probabilities and a system that's not going to be perfect. The oversight, whether it's a committee or individual, can certainly make mistakes, but we try to have a number that precludes more mistakes. They are not going to be infallible, the oversight, but they are one more check.
If CSIS — and I don't know why I keep picking on CSIS — or any agency is aware of the fact that there is an efficient oversight committee or individual, it's a deterrent. It's just one more thing that will curb their enthusiasm of pursuing beyond what they are authorized to do.
It's not perfect. It's not going to eliminate all misbehaviour, if that's the right word, or excessive jurisdiction.
Senator Beyak: I read your whole Air India report before your last presentation, and I recall a section on glorification and why it was important for us to come down very hard on the glorification of terrorism. Would you be able to elaborate a bit for the committee and for those watching at home?
Mr. Major: Could you repeat that question? I'm not sure I got the gist of it.
Senator Beyak: I read your Air India report, and it seemed to me there was a section in it where you raised concerns about the promotion and glorification of terrorism and why it was, obviously, not a good thing, but you had some recommendations on how we can handle that.
Mr. Major: What I was referring to there was that the ringleaders of the Air India disaster were living in Surrey, B.C. I think the largest Sikh population in Canada is in Surrey. Well-known supporters of that movement — that movement, as you know, originated in India, where Sikhs were looking for their own homeland. After being crushed by the Indian government, the control centre, if that's the right word, moved to Surrey.
Even after the Air India disaster, you will remember it ebbed into the background for a while. Known or suspected members of the Sikh radicals would be featured on floats at which our politicians attended. I'm not sure they put their mind to what they were attending, but the fact is they were standing shoulder to shoulder with people who were terrorists. It was an observation that the audience wouldn't appreciate just what was happening, but to see a member of Parliament shoulder to shoulder with the terrorists was not a very good idea in our view.
Senator Beyak: Are there lessons we could learn from that today?
Mr. Major: I think so.
The Chair: Justice, I want to pursue this particular question. I visited a temple last week in Toronto. On the various walls in the temple I saw large photographs of many of the individuals involved with the Air India tragedy that you investigated.
Perhaps you could expand a bit further on Senator Beyak's question. Exactly what role can government play in respect to ensuring that this type of glorification is minimized at least to some degree?
Mr. Major: That's a difficult question in a democracy, how far you should legitimately interfere with people's choice of company. I can't, I guess, give you a good answer.
The victims of the Air India tragedy, the fact that they might be immortalized I have no problem with, as I'm sure you don't. They were innocent people tragically murdered.
Independent leaders from another country such as India and the radical Sikh organization in Canada have a terrific influence. They virtually terrorize communities. They do it in subtle ways, and I'm not sure how that could be policed.
In Air India — I keep going back to that — CSIS and the RCMP were in constant conflict. The RCMP claimed that CSIS, to use the expression, "burned" certain witnesses by interfering with the RCMP investigation. There were a number of those instances where each, I concede, might have been trying to act in good faith, but in the end result it was bad.
I keep coming back to the old theme that if you had somebody — and I think it should be somebody rather than a committee — that provided oversight, when the RCMP or CSIS or any one of the organizations involved in this exercise felt they lacked information that other organizations had, they could go to an individual and put their case. That individual could hear from the other agency why it was not appropriate to disclose what they had at the moment. It just seems to me that the sharing of information to the people entitled to it would be such a useful step in being efficient in trying to meet what is a terrible challenge of terrorists today.
Senator Jaffer: The clarification I wanted to make is that — and I'm sure it was a slip by the chair — it's a gurdwara you would have gone to, not a temple. I'm sure it was a slip.
I have a question for you, Justice Major, and it's something I'm struggling with. It's not directly related to your inquiry but to the very prominent position you held in the Supreme Court of Canada. It's to do with warrants. The bill sets out the following:
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.
The difficulty I have with this is that it sort of changes the roles of judges. The judge can give permission to breach a Charter right. That's how I read it. I have great difficulty putting judges in that position. I would appreciate a comment from you about the warrants.
Mr. Major: I think everybody has a little trouble with that section. I think the justification is that when you are dealing with the terrible behaviour of ISIS and jihadist radicals, extreme measures may have to be taken. That section, as I read it, anticipates the agency going before a judge and saying, "We have to commit a breaking and entry to get certain documents," and the reason for that, they outline in an affidavit, is evidence supporting that the breach of the law is a reasonable operation in order for the objective they are trying to obtain.
It's a very delicate situation. I know that the kind of breaches that are going to be or anticipated to be permitted are limited to non-violent crimes and more serious crimes. Nonetheless, the point you make is correct, that the constitutional rights of individuals will be breached by such a warrant. So it becomes important that the evidence is complete as to why this should happen, but, more importantly, it should be followed up in some way that the authority given under the warrant was not breached, was not extended by the operation of the officers involved.
Senator Jaffer: When these breaches are being discussed, do you think that a special advocate should be present?
Mr. Major: That would be a safety valve. There comes a time when you can only have so many safety valves, and you're dealing with a very serious question. I would have no objection to an advocate being present. It might be reassuring. I think, however, we need protection at the back end, after the warrant has been implemented. We need something, as the matter goes on, to ensure that it doesn't exceed what the warrant permitted, and the warrant permits something quite unusual.
Senator Campbell: Thank you for coming today, justice.
For some reason I have the sense that if you go and get a warrant, somebody rights are going to be violated. If I, as a police officer, went and got a warrant for wiretapping or to search and enter, I was violating privacy. It would seem to me that the very basis is that you get that warrant so that there is judicial oversight to ensure that when you do a breach, there is somebody looking at that to ensure that you have the evidence that supports that breach. Am I wrong on that?
Mr. Major: You're not wrong, but you stopped too soon. For instance, if you, as a police officer, wanted a wiretap, you would go before a judge with the reasons why you want to wiretap, why you can infringe on the privacy of that person, and you would be granted the wiretap. The oversight on that comes when the matter goes to court. You attempt to put your wiretap evidence in, and the judge looks at the warrant and says, "You were entitled to wiretap the residence. You had no authority to wiretap the business office. The evidence you have comes from the business office, so we're not allowing it." That's where the oversight comes in in the type of question you raise. If it never gets before a court —
Senator Campbell: If it gets before a court and I, as a police officer, followed all the results and only wiretapped the house, which I had the warrant for, the oversight is still there. But I still am infringing.
Mr. Major: You're infringing, but the purpose behind that, as they say, is in the public interest. In protecting the public and preventing crime, it's necessary to breach the privacy of the individual because the evidence against that individual toward the commission of a crime or having committed a crime is sufficient to infringe on his right to privacy.
Senator Campbell: Thank you very much, sir.
Senator Baker: Justice, your point is that there is nothing at the back end. Are you referring to two things here? For example, when a warrant is issued under 487 up to 492 and the 186 warrant that you just mentioned, the wiretap, there is a requirement for a report to a justice. That is one accountability, a report to a justice. Beyond that, you are saying that there should be an overview at the back end as well to make sure that things were carried on within the jurisdiction of the warrant and within the rules of law. Are you talking about both here, that there should be a report to a justice, as is required under standard warrant provisions, plus the addition of a security adviser?
Mr. Major: No, not in all cases. You go before the judge, as you point out, with the evidence. Probably, in the majority of cases, the need for the back-end oversight won't arise. There will be nothing to trigger that kind of oversight. The terms of the warrant will be carried out in accordance with the warrant and the matter will proceed.
What I'm suggesting is that there should be some method of oversight in cases where that need arises. I would expect it wouldn't be that frequent because I don't live with the notion that officers and CSIS are going to deliberately exceed the powers under the warrant. I'm simply saying that it would be good practice to have some method so that where that occurs, if it does occur, there's some way of adjusting it.
Senator Baker: Some people have mentioned that there's no report to a justice in any of these provisions. However, I was just looking at the bill and noticed on page 22 that it says that any search warrants issued under the transportation section, the airlines section, the general terrorism provisions will now be added to that section. It says:
(3) Sections 487 to 492 of the Criminal Code apply in respect of any offence committed or suspected to have been committed under this Act.
It's under the heading "Search warrants." Section 487 to 492 includes a report to a justice.
Mr. Major: After the event?
Senator Baker: Yes, but you're right that in the second part of the bill regarding CSIS there is no such provision. Section 487(1)(e) would apply, a report to a justice, or 489.1(b) would apply, which is also a report to a justice. That's one thing that the committee could consider adding to the bill.
Let me ask you what exactly you have in mind for a security adviser oversight, given the facts that have transpired with SIRC. As you well know, there is a matter before the Supreme Court of Canada regarding SIRC and a report that they made in 2013 in which they said there was a new warrant power for CSIS under a decision made by a Federal Court judge in 2009. Of course, they were wrong. They produce a report. They have 14 people working in the office who are experts in the field. I imagine a lot of them are lawyers like we have in the Senate here. We have lawyers everywhere. We have former police officers, and so on. I'm sure they have people who know the law in the SIRC office, yet they were wrong. The Federal Court judge said they misunderstood what was happening. and now we have this huge problem on our hands of all these warrants over four years — about a thousand of them. You don't know what to do with the results of the warrants.
We already have these experts in SIRC. They have 14 of them. What are you suggesting to cut down on the inefficiencies or the errors that could be made by oversight?
Mr. Major: Let me back up just a minute. Why wouldn't the provisions you read with respect to the transportation be adopted as a general blanket for all the other provisions?
Senator Baker: Good idea.
Mr. Major: That would give me some rest on this carping that I keep doing.
On the other question, I think probably the confusion in SIRC is you have too many members. If you have 13 or 12 — put 12 lawyers together in a room and you're going to get a lot of opinions. I would be in favour of an individual having to make those decisions.
The Chair: I'd like to follow up on Senator Baker's question, but you go ahead with the RCMP.
Senator Baker: We've been talking about all of the terrorism provisions. When the terrorism act was brought in, there was a special safeguard that with all warrants, all actions, and all prosecutions, the RCMP takes the CSIS information and the RCMP would then have to vet the material with the Public Prosecution Service of Canada, who at that time was the Attorney General of Canada. They would have to vet it and then they would have to make a decision on making a charge. That's different from all the Criminal Code provisions that normally apply to Canadians. The RCMP is allowed to lay a charge.
What are your thoughts on giving the RCMP the authority to lay the charge like they do on murder and drug investigations? Like every other Canadian, then it's up to the court to examine the constitutionality of the actions of the police and it's up to the Public Prosecution Service of Canada to decide whether to continue the prosecution. A lot of people would say that's the Canadian way of doing things. Police lay the charge and the prosecution service decides whether to continue with the prosecution. What are your thoughts?
Mr. Major: I have no trouble with that, but my difficulty is before you get there. My difficulty is in the activities of CSIS — and I keep picking on CSIS — before it gets into the hands of the RCMP. Before the charge is laid, what has CSIS done? Have they turned it over early enough? Once it's turned over, I'm with you.
The Chair: I want to pursue the question of the warrants and the question of trying to ensure that the circle is completed in respect to the effect of the warrant and the reporting back to a judge. Right now, my understanding is the judge can require that a report be given back to him or her at the end of the investigation for the warrant. Is that not correct? The judge could ask for that.
Mr. Major: I think the answer to your question is this: If all judges were of similar ambition and would ask for a report, that might be one thing. But once a judge signs a warrant — they sign a number of warrants. They sign a number of orders, and it usually takes something unusual for them to follow up on their own initiative to see what happened. They're satisfied they've got the proper information before them and they sign it. But once they sign it, my experience is that they generally put that out of mind until somebody comes back.
The Chair: To pursue this a bit further, the concept has been put forward during earlier testimony that perhaps the Governor General, through regulation, should require any CSIS officer to provide in their request for a warrant a commitment to follow up in a certain time period to ensure that they inform the judge whether they have fulfilled that warrant properly. Would that meet your objective?
Mr. Major: That would certainly be a very significant step forward.
The Chair: Justice Major, we once again want to thank you very much for taking time out of your busy schedule. We certainly appreciate your advice. I thank you for coming here today.
Mr. Major: Thank you, and good luck.
The Chair: Joining us on our final panel are two representatives for the Canadian Bar Association: Eric Gottardi, Chair, Criminal Justice Section by video conference; and Peter Edelmann, Executive Member, Immigration Law Section by video conference as well. From the Canadian Civil Liberties Association, we have with us Ms. Sukanya Pillay, General Counsel and Executive Director. And from the Criminal Lawyers' Association, we have Mr. Michael Spratt, Member and Criminal Defence Counsel; and Mr. Leo Russomanno, Member and Criminal Defence Counsel.
Ms. Pillay, I note that you have been before this committee before and I am pleased to welcome you back.
Mr. Gottardi, Mr. Edelmann, Mr. Spratt and Mr. Russomanno, welcome to the committee.
I understand each of the associations have an opening statement. Ms. Pillay, I invite you to begin.
Sukanya Pillay, General Counsel and Executive Director, Canadian Civil Liberties Association: Thank you, Senator Lang, and thank you, committee members, for this opportunity to appear before you today. It's very important to the CCLA that you have invited us here. I have had people writing to me from across the country asking me to express CCLA's serious concerns to this committee, and it is my honour to be able to do so. We have provided detailed written submissions to the committee that I understand are being translated. I will highlight three of our most pressing concerns and am happy to answer any other questions that you may have.
As you know, for over 50 years CCLA has fought to protect rights, freedom and justice in this country. Bill C-51 creates new laws and amends existing laws to create new powers and crimes. One of these new laws is the security of Canada information sharing act, which I will refer to as SCISA. We do not question that government needs to share information to protect against the terrorist threat. Proper information sharing as an effective and indispensable counterterror tool has been recognized by the Arar commission, the Air India commission and by the international community, particularly after 9/11 and UN Security Council Resolution 1373.
But such information collected and shared must be subject to critical legal safeguards, including targeted surveillance and collection, with limits on dissemination, use, retention, with destruction protocols and with caveats reduced to writing. SCISA does not provide these legal safeguards. It increases the scale and scope of information sharing far beyond that related to terrorist activities through the exceptionally broad language of "activity that undermines the security of Canada."
SCISA and the recent amendment to section 6 refer to existing legal safeguards, but as the Arar commission and Air India commission revealed, existing legal safeguards have been tragically inadequate. SCISA exacerbates these failures of accountability and completely disregards the recommendations of the Arar commission regarding integrated review.
We also point out that it is not helpful to say that the Privacy Commissioner and the Auditor General will cure these accountability deficits. I know the Privacy Commissioner has already submitted his concerns to you, and we are concerned that the necessary review of information sharing among 17 agencies and also to foreign governments and to domestic and foreign actors requires proper review and oversight. Such an absence of accountability exposes Canadians to serious risks and is incompatible with the accountability requirements of a free and democratic country.
Mass surveillance and information sharing will not result in efficacious security, but it will result in mistakes, where every individual is not viewed as an individual with constitutionally protected privacy rights but rather as a suspect.
Second, I would like to talk about the proposed amendments to the CSIS Act. We are concerned by amendments that confer broad new powers upon CSIS, transforming it from a recipient agency collecting intelligence into an agency that can act at home and abroad to disrupt threats. While we recognize and respect the value and importance of SIRC, we recognize that they, by their own findings, are constrained in their resources with respect to the review of current existing intelligence-gathering operations. Further, the warrant provision, read as drafted, allows CSIS to act in a manner that would contravene the Charter or any other Canadian law if authorized by judicial warrant and to do so on an ex parte and in camera basis with no adversarial process built in.
In our view, this is incompatible with Canada's commitment to constitutional supremacy and rule of law. Contrary to what some witnesses have said, warrants are not meant to allow laws to be broken — period. Rather, warrants ensure compliance with the law and legal safeguards.
Coupled with Bill C-44, Bill C-51 provides a green light for CSIS to act in contravention of foreign domestic laws and international law and in our view sends a problematic signal to foreign allies and agencies and undermines the international framework that is essential in global counterterror efforts.
Lastly, I want to address the proposed amendments to the IRPA that would permit the minister to withhold relevant evidence from special advocates in security certificate cases. We are very concerned by this. For us, it represents a regression from the understanding of the scope of protection contained in section 7 of the Charter.
Special advocates are top-security-cleared lawyers entrusted with national security secret information. We respectfully remind the committee that as the Supreme Court of Canada stated in its unanimous decision in Charkaoui, which led to Parliament's creation of the special advocate scheme, the whole point of the principle of fundamental justice is that a person whose liberty is in jeopardy must know the case to be met. The court went on to say that the national security context cannot be used to erode the essence of the section 7 protection, which is meant to provide meaningful and substantial protection.
The danger in the "war on terrorism" lies not only in the actual damage the terrorists can do to us but what we can do to our own legal and political institutions by way of shock, anger, anticipation, opportunism or overreaction.
That is a quote from the Supreme Court of Canada in the Air India case, which also reminded us in Suresh, decided in the months after 9/1, that it would be a pyrrhic victory if we defeated terrorism at the cost of sacrificing our commitment to values that lie at the heart of our constitutional order.
The Chair: Thank you.
We will hear now from the Canadian Bar Association.
Eric V. Gottardi, Chair, Criminal Justice Section, Canadian Bar Association: Thank you, Mr. Chair, Mr. Clerk and committee members. I will address you for three minutes and Mr. Edelmann will address you for three minutes.
We're grateful for the opportunity to appear before this committee once again. As you know, the Canadian Bar Association is a national association of over 36,000 law students, lawyers, notaries and academics. Our mandate focuses on seeking improvements in the law and the administration of justice.
I'm the Chair of the National Criminal Justice Section of the CBA and Mr. Edelmann, my colleague, is involved in the Immigration Law Section with the Canadian Bar Association.
In the written submission that we provided to the committee, we have made 23 specific recommendations with a view to trying to improve or fix aspects of the bill. In putting together this written submission, we have relied upon expertise from our members in the fields of criminal law, privacy, charities, immigration, Aboriginal and environmental law. All members contributed to aspects of the submission you see before you today.
Obviously we can't comment on all 23 recommendations. I only wish to address two points, one of which arises out of the evidence that you received from prior witnesses, the first being the Minister of Public Safety on March 30 before this committee. The issue focuses on that of judicial warrants, how they work and what they are. There seems to be some confusion about that, and I want to try to clear that up.
The CBA is saying that the "Charter violation warrants," as I will call them, contemplated in Bill C-51 are very different than other Criminal Code warrants. You see, search warrants issued by Canadian judges every day actually protect Canadians' Charter rights. Section 8 of the Charter includes qualifying language by including the word "unreasonable." Canadians do not have an absolute right to complete freedom from police search, only unreasonable police search. As such, when the Supreme Court of Canada held that judicial preauthorization was required, they were actually protecting Charter rights. It's the warrant itself under section 8 that renders constitutional what is otherwise unconstitutional. The proposed Charter violation warrants are completely different.
It was also suggested that section 25(1) of the Criminal Code, the provisions that allow police officers to break the law, is also an example of a so-called precedent for the Charter breach warrants, and that's a misunderstanding of the code. That section provides for a violation of Parliament's laws, their Criminal Code, their criminal prohibitions, not of the ultimate law of the land.
Finally, in the evidence of Department of Justice lawyer Michael Duffy at clause by clause, the government advanced a new rationale for these Charter violation warrants, arguing that the intention was not to violate the Charter. First of all, if that's the intention, the CBA totally supports that position. We would simply ask that any reference to the Charter be removed from section 12.1(3). However, if, as that witness went on to suggest, the warrant is somehow some kind of section 1 analysis to be undertaken by the judge, that indicates a fundamental misunderstanding of our Constitution and how section 1 actually works.
[Translation]
Peter Edelmann, Executive Member, Immigration Law Section, Canadian Bar Association: I thank you for the opportunity to appear before your committee. I do not need to repeat my colleague's comments. As you know, we submitted a very detailed written brief. I would like to take up two of the fundamental points found in our recommendations in terms of the bill and statutes in general when it comes to national security.
[English]
The first is precise drafting of legislative restrictions. Although not everyone can be privy to the detailed functioning of the national security apparatus, all can see and understand the legal framework within which that apparatus operates.
The second is comprehensive and effective oversight of the national security apparatus as a whole. A number of individuals have commented on the need for effective oversight. We won't repeat those comments here but would simply point out that effective oversight should be welcomed rather than feared by our national security apparatus.
The SCISA is a good example of a third problem in the nature of the discussion around these proposed amendments. It was not until the clause-by-clause analysis before the house committee that the intended scope of these provisions became clear. Our concerns that these sections went far beyond any concerns for terrorism were confirmed by government officials. I recommend to members of this committee that they carefully look at the comments made by officials with respect to SCISA.
The intention of SCISA is not limited to information sharing about terrorism, much less the jihadi terrorism that has been the focus of many witnesses heard before the house and before this committee. The officials made clear that the intention was information sharing from any and all sections of the Government of Canada with the 17 listed agencies within the broad scope of the definition that has been given of "national security." For example, it is difficult to imagine any activity of the Canada Border Services Agency that would not be covered by the language in the definition, which includes the detection, prevention or investigation of interference with capabilities in relation to things such as public safety or border operations. CBSA has extensive powers and focuses in those areas and would now be able to receive information from any part of the Government of Canada in pursuit of its operations. CBSA is also one of the few enforcement agencies in Canada that has no independent oversight whatsoever. Unlike the RCMP or CSIS, the CBSA answers only to the minister.
In the national security context, imprecise drafting and lack of oversight are fatal to the trust and cooperation that are by far the most valuable tools that our national security agencies have. We welcome the opportunity to work with you to assist in crafting effective legislation.
The Chair: Thank you.
I will now call on the Criminal Lawyer' Association.
Michael Spratt, Member and Criminal Defence Counsel, Criminal Lawyers' Association: Mr. Russomanno and I appear before you today representing the Criminal Lawyers' Association. We're a non-profit organization comprised of over 1,200 criminal lawyers, and we support legislation that's necessary, modest fair and constitutional.
I would like to start by thanking this committee for inviting us to make submissions on this bill. It's a pleasure to appear before a truly independent body that, with sober second thought, can review legislation.
Bill C-51 is in need of review, in our opinion. The CLA adopts the position of the CBA, the CCLA, Professors Forcese and Roach, and the myriad of other groups who have been critical of this bill. Indeed, I was most disheartened to hear the testimony of the minister when he dismissed in some very strong terms the criticisms levelled by the CBA.
We are deeply concerned about, among other things, the liberal information-sharing amendments to the Criminal Code, peace bonds, preventative detention and the appalling lack of oversight contained in this bill. But today I want to focus on warrants — on clause 42, proposed sections 12.1 and 21.1 — that allow the judiciary to authorize the state to breach the Charter, a back-door notwithstanding clause.
Our members deal with judicial authorizations every day. We know how this process works and we know how its flaws can be magnified under this legislation. We know that judicial warrants prevent — not authorize — Charter violations. For example, a warrant to search is what makes a search reasonable and thus not an illegal violation of the Charter. Empowering judges to authorize violation of the Charter is a perversion of the basic principles of our system. As Professor Forcese told you quite bluntly: It's a radical ideal that contorts the basic constitutional understandings and roles of the court.
Now, you have been told different by Minister Blaney, who says, "This is nothing new under the sky" and that judges issue warrants all the time. The minister is dead wrong. He's either misinformed or skewing his analysis. This is not "nothing new under the sky"; it's novel, profound and disturbing.
You also heard from Senior Assistant Deputy Minister Donald Piragoff, who disagreed with the plain reading of the legislation. He said:
If I could just add to that, in the same vein, there's been a criticism that the bill would actually permit a violation of the Charter and engage the judge in a violation of the Charter. That's not possible because even judges are subject to the Constitution. Judges have to abide by the Charter just like everyone else.
He says that it's wrong to say that this would allow violations of the Charter because everyone, even judges, are subject to the Constitution.
But that's precisely what this bill does. The plain wording makes it clear, and the rationale offered by the senior assistant deputy minister contradicts this bill and, indeed, the government's position. Mr. Blaney is asking judges to bless, in advance, a violation of the Charter of Rights in a secret hearing that isn't subject to appeal, with only the government's side represented and different from the Criminal Code, with no notice, reporting provisions and little prospect that any violations or problems in that process will come to light.
Before I turn it over to Mr. Russomanno, I would like to dispel the notion advocated by Mr. Blaney that this is simply a further codification of powers already in the Criminal Code of Canada, under section 25.1. That's just a strained and misleading justification. In the Criminal Code, under section 25.1, police power is limited to criminal law and criminal investigations. Section 25.1 doesn't authorize a violation of the Constitution and doesn't permit unconstitutional searches or illegal detentions. Importantly, the police power in that section is vastly more transparent than this is, requiring reporting, notification and ultimately disclosure, in most cases. None of that applies to Bill C-51. It's misleading and ill-conceived to strain that analogy.
I will turn it over to Mr. Russomanno, who will provide details about the scope and the extent of problems we have currently seen with CSIS and how they could play out in our courts.
Leo Russomanno, Member and Criminal Defence Counsel, Criminal Lawyers' Association: Thank you for inviting me to your committee. It's always nice to come here and dialogue with parliamentarians.
There are important aspects of this bill we want to talk about, but this committee is faced with an embarrassment of riches in terms of opinions from experts such as Professors Forcese and Roach. The CBA paper was also very helpful for our purposes, as was the Civil Liberties Association.
Mr. Spratt and I are trying to bring some practical experience to the table, having litigated CSIS Act warrants in the past in an Ottawa criminal investigation, as well as security certificate cases that have involved CSIS muddying the waters with regard to being a policing organization, essentially, and dealing with some issues with their duty of candor.
We, as an organization, are concerned with the potential expansion of the scope of CSIS's powers to include policing. We are concerned with the government handing over the "keys to the tank," as it were, to CSIS with expanded powers, with very limited oversight. We are concerned that this ex parte proceeding, which is necessarily a part of the warrant process, does not provide any meaningful constraints. When we talk about CSIS as a policing agency, although the text of the bill may say otherwise, the fact that CSIS is able to potentially detain or carry out rendition of individuals is certainly cause for concern.
There are examples in our recent history that unsurprisingly suggest that CSIS, as an intelligence organization, has a limited ability to understand the transparent role that a policing agency might otherwise have. Police forces are familiar with their obligations to disclose information — to be candid with the court. There are some recent examples, particularly in the Harkat case, the Jaser case and the Federal Court case mentioned with the previous witness, Justice Major, in which CSIS has failed in its duty of candor to the court. That's a concern because it's an ex parte proceeding and we rely on that duty of full, frank and fair disclosure.
I'm happy to answer any questions in respect to the practical application of CSIS being more involved in criminal investigations. We believe that would lead to more complexity in proceedings. We believe these powers to detain and possibly carry out rendition are also troubling, as well as the lack of transparency that one often sees with CSIS as an agency as a whole.
The Chair: Thank you.
Senator Runciman.
Senator Runciman: Thank you all for being here today; it's much appreciated.
We heard a comment earlier today — I think it was from the CSIS director — that in the anti-terrorism world, success is measured in terms of prevention rather than success. Relating that to the fact that you folks are primarily involved in the traditional criminal process, I wonder if that colours your views with respect to this legislation, because I don't think you would challenge the need for successful terrorism investigations and prosecutions. Given the nature of the new domestic threat, I would hope that all of you would agree it requires a greater preventive focus rather than where your expertise primarily lies, and that's in the traditional criminal process. I would like your reaction to that.
Mr. Spratt: I can't disagree that in the current climate those are all important things. However, from the criminal side, we have seen prosecutions fail, evidence excluded and indeed some very egregious behaviour on behalf of CSIS. In the Jaser case, Justice Code found that CSIS gave misleading information to the judge. One only needs to look at the SIRC report and Justice Mosley's decision to find out what can happen when there isn't full disclosure leading to authorizations that may not have been granted, or the Majid decision from Toronto where CSIS found child pornography as a result of a warrantless, unconstitutional search, something that would be available under this legislation. If you look at what happened at the criminal proceedings, that evidence was excluded, the charges were stayed and there were criticisms of CSIS.
Mr. Russomanno: I can follow up on that.
Senator Runciman: We don't have a lot of time. Maybe you will have an opportunity.
I wanted to follow up and get a sense of where you are coming from on these issues. I am inferring, perhaps incorrectly, that a lot of the concerns your organizations have — and we're hearing rumours about what might happen tomorrow with respect to the budget and the possibility of more monies being directed toward security and potentially oversight. If oversight is enhanced to address many of the concerns that you've expressed, would that allay most of your concerns?
Mr. Russomanno: That depends on the kind of oversight. I'm generally an optimistic person, but I'm not holding out too much hope, senator.
Senator Runciman: Well, from your appearances before our committees, I don't hold out much concern for support, either.
Mr. Russomanno: Then let me say this: As someone who believes in limiting government power, you may accuse me of being Conservative, which I'm not.
Senator Runciman: Don't worry about that.
Mr. Russomanno: I believe that if you're going to drastically expand state power to limit individuals' freedoms, you should have evidence to back it up, and I thought that was a Conservative ideal.
The Chair: Senator, if you could get to your question and if you could respond, then we won't get into a debate.
Senator Runciman: The CBA raised the privacy issues. You've expressed concern about information sharing among the federal departments and the damaging potential, as you see it. The bigger picture is what is inherently wrong with the different branches of government talking with each other and sharing information on defined grounds. There are areas within the current Privacy Act that essentially contemplate exactly the same thing that Bill C-51 is proposing. I'm having difficulty with your argument in that sense.
Mr. Edelmann: With respect to both of the senator's questions, the first on oversight, for us it's not just a question of adding more resources in the budget. It's that when you are talking about fundamental changes to the structure of the national security apparatus, the oversight should be integrated into the legal structure itself.
With what we're talking about now in terms of the oversight agencies, I recommend that you read the analysis of this by Professors Forcese and Roach around the silos that the oversight agencies currently find themselves in. This proposal breaks down the silos for the agencies but maintains them for the oversight. So even with more resources, the oversight is not done in a comprehensive way.
With respect to information sharing, I would suggest the problem here is that the discussion has been around information sharing for purposes of terrorism. What became clear in the clause by clause is that the intention of this information sharing act is much broader. I would suggest that this committee, and the committees of the house, ought to separate the information sharing act out of this bill so that it can be properly studied to understand what exactly the Canada Border Services Agency is going to do with this information, the Canada Revenue Agency and the other 17 listed agencies whose mandates have little or nothing to do with terrorism.
Ultimately, our criticism was that the definitions are not particularly restrictive, and that was confirmed by government officials. The intention of this is not terrorism; it is the broad mandate of all 17 agencies as it intersects with a very broad definition of national security which, when you look at agencies like the CBSA, covers pretty much everything they do.
Senator Mitchell: Thanks to each of you. I think you're a testament as to how excellent, trained legal minds can identify and isolate issues clearly. You did a lot in a very short period of time, and you will note in a moment that I don't have one of those minds, but I admire them
My question is to clarify further. One of the things specifically mentioned by Mr. Gottardi is the issue of the difference between a warrant under the Criminal Code, which somehow avoids contravening the Charter because of a provision in the Charter, and the warrants contemplated under this act. Anybody can answer this. How is it that that provision applies in the first case but wouldn't apply in the second case, these newly contemplated warrants? Is there a way to make that occur so the warrant is not a warrant to break the law but it is consistent with the Charter? Or is that impossible?
Mr. Gottardi: When you're talking about Criminal Code warrants, you're mainly talking about search and seizure warrants for the most part. Under section 8, you have the built-in qualifier and the jurisprudential starting point that warrantless searches are unreasonable and if they were to go ahead, there would be a Charter breach.
The prior issuance of a judicial authorization, a warrant, renders what would have been unconstitutional as constitutional. So the warrant mechanism effects a change.
In the warrant that's contemplated in relation to the measures in the CSIS part of the bill, if you were to accept the understanding of how the warrant is supposed to work as described by Mr. Duffy, it's really not a warrant at all because he talks about the judge employing section 1 of the Charter — a section 1 analysis to decide whether or not the Charter breaching measure is going to be termed a "reasonable limit" under the Charter. But if it's a reasonable limit, then it's not a Charter breach. So the judicial opinion is just that. It's kind of like a section 1 comfort letter. It's not really a warrant that the government is seeking; it's a judicial opinion that the measures they seek to undertake aren't unconstitutional. That's fundamentally different from what a warrant is and what a warrant does under our Criminal Code and Constitution. It's something completely novel to our law and I think clearly unconstitutional.
Ms. Pillay: I would agree with what our colleague at the CBA has just said. I would add that the judicial warrant to comply with section 8 ensures all the checks and balances are in place so that what we have is reasonable search and seizure, not unreasonable. We are concerned about the other Charter protections engaged by the broader powers now contemplated for CSIS. So if we are looking at arbitrary protection or due process rights, it's inconceivable to us that it could be legal for there to be warrants in those cases.
Senator Mitchell: I have a lot of questions about oversight. Senator Runciman touched on the idea that if we had a better oversight, we would solve a lot of problems in the bill.
Ms. Pillay, you mentioned something that caught my interest. You talked about the era of integrated review or this context of integrated review. Could you elaborate on that?
Ms. Pillay: I am happy to, and thank you for the question.
This was set out clearly by Justice Dennis O'Connor in the Arar commission report when he said that in today's threat environment, which is relevant in 2015, our agencies are working in an increasingly integrated fashion. What we do not have is integrated review of how those agencies operate. So he suggested something, sort of like a super SIRC, if you will, which would allow for those legislative gateways into the silos that our colleagues have referred to.
Senator Mitchell: Is this the specific problem of SIRC not being able to pursue the ultimate destination of some information past the boundaries of CSIS, say into CSEC, CBSA or into another country?
Ms. Pillay: Yes, and it also goes beyond SIRC. The super SIRC was an analogy, but there must be some sort of body that can review where all this information is going. As you know from my last appearance before you, we are very concerned about agencies like CBSA that have no review process in place. So we are concerned about this.
Senator Mitchell: Thank you very much.
Senator White: Ms. Pillay, I'm trying to get my head around the disruption comments you made. What would you see as appropriate action by CSIS if they felt there was a need to disrupt an act that was about to occur?
Ms. Pillay: One the questions we have been asking at the CCLA from the outset is why these new disruption powers are necessary. To answer your question succinctly, I would say that right now, given what we know and the laws in place, we would look to the RCMP to be fulfilling these functions. We are concerned about bringing CSIS into this new realm, and we are also concerned about it blurring the lines between intelligence and evidence. As Justice Major and my other colleagues have said, this might undermine successful terrorism prosecutions in the future.
Senator White: If you look at other countries that have the ability for their similar agencies to disrupt, some of the Scandinavia countries, the U.K. and others, they have had it for a while now and have shown to support it overall by their actions, but more importantly, when you look at the RCMP and their behaviour and actions in Canada, they don't police in Ontario or Quebec as a front-line jurisdictional police service. So it's easy to say, with the size of this country and the hundreds of cities and towns and 198 police agencies, that the RCMP, if they were one agency policing the whole country, it would probably be correct to say that disruption could be handed off that easily. But it just does not fit with the ability or even the capacity of the RCMP to pick something up in a moment's notice at a call in Ottawa or Smiths Falls or Cornwall and actually be able to handle the call for service. I'm trying to figure out whether or not you think, in that case only, the need for CSIS to be able to disrupt might actually save lives.
Ms. Pillay: I appreciate the question. In my mind it is not an answer to address a problem by creating a whole new problem, and that's what the CSIS amendments do. If we do not have adequate RCMP forces to assist in disruption activities, it is not an answer to say, "Let's just put CSIS there." This has to be thought through very clearly, how our CSIS officers are trained.
While I do not doubt the intentions of CSIS and the good work it does, we have a litany of cases in which CSIS has made errors. To increase the powers without addressing the systemic failures that contributed to those errors is, in my view, dangerous.
To respond to your first question, I do not want to pretend that I am an expert on what other agencies have done, but I have given thought to that. I would direct you to Professor Forcese's most recent blog on what other foreign agencies are doing and have done, the powers of other foreign agencies when it comes to collecting evidence, which should be distinguished, in any consideration of this, from disruption powers. I would refer you to that blog. I think it was dated April 16.
[Translation]
Senator Dagenais: My question is for Mr. Spratt and Mr. Russomanno. Why is it acceptable to stiffen minimum sentences in the case of assaults against women and children, and in case of sexual offenders, but unacceptable, as you suggest, to do the same in the case of those who commit terrorism-related crimes? Could you elaborate?
[English]
Mr. Spratt: I was actually quite pleased and surprised you brought up some of the other testimony that I've given.
In my reading, there are no minimum sentences in this bill, which might be a first for this government, but what has been the theme of our testimony —
[Translation]
Senator Dagenais: I am drawing a parallel.
[English]
Mr. Spratt: What has been a theme of our testimony is that evidence should be based —
[Translation]
Senator Dagenais: You are a lawyer. I am sure you understand me.
[English]
Mr. Spratt: The parallel between those submissions and this submission is this: The Charter and the Constitution should be the guiding light behind any legislation, and to have judges issue warrants for police officers to violate the Charter — we're not just talking about searches, but we could be talking about mobility rights, denying access into the country, detentions that are arbitrary, mass arrests. These are all possibilities. To co-opt the judiciary to provide illusory front-end but ultimately secret, ex parte, unreviewable, not "disclosable" and ultimately in criminal proceedings probably useless authorization for this type of activity runs contrary to the very principles that we should be seeking to defend when we advance legislation such as this.
So our testimony has been completely consistent. What appears not to be consistent is what the minister has told you and what the officials from the Department of Justice have told you. There appears to be some conflict there.
Mr. Russomanno: What we are primarily against is unconstitutional legislation. We want to avoid having to spend time litigating this in court, having this go through the process where within a few years the Supreme Court or a lower appellate court will inevitably find it to be unconstitutional. I don't want to say "unanimous," because I'm cautious, but there seems to be a wide scope of opinion amongst legal scholars that this particular provision is highly offensive and almost guaranteed to be unconstitutional. That's our concern.
[Translation]
Senator Dagenais: I understand that there can be consensus among lawyers, but there is also consensus amongst Canadians at large regarding the enforcement of laws that protect citizens. We often hear talk of the Charter of Rights and Freedoms, but we should also talk about duties and responsibilities. The government has the responsibility to protect its citizens. I am simply making a comment.
[English]
Senator Beyak: Thank you for your presentations.
New provisions in Bill C-51 are lowering the burden of proof for recognizance with conditions and preventive arrests. They expire July 15, 2018, and I wonder what your thoughts are on that section and if you agree with the sunsetting in 2018.
Ms. Pillay: We have no issue with the sunsetting. We think that's very important.
But we're very concerned about the lowering of thresholds, lowering from "likely" to "may." We think this broadens it. The CCLA has spoken out before about recognizance with conditions and preventive detention and our concerns around this in general. I'd be happy to elaborate if you would like.
Senator Beyak: If anyone has thoughts I'd appreciate it, because it seems to be contentious out in the general public.
Ms. Pillay: I will say one thing before I hand it over to my colleagues, because I'm sure they have thoughts on this. Recognizance with conditions in the anti-terror context is concerning. We have asked but have not been given an answer as to why either individual in the October tragedies was not detained. We do not know the answer to that.
What we do know the answer to is that in the national security context, surveillance is an important tool, and if someone comes under suspicion, it is beneficial to survey that person. Cutting off their Internet access, cutting off their ability to interact with other people, might actually undermine the ability to gather surveillance. One of the senators brought up some of the international perspectives, in the U.K., in some of the parliamentary committees that looked at control orders, and this is one of the results that was found. The issue is that they are not always necessarily useful, but they can actually be detrimental.
I want to add that the CCLA, and I think all of us, but speaking for the CCLA, we certainly agree and understand and support the government in its duty — and it's a duty — to keep Canada and Canadians safe. They have shown that with the 19 convictions, with the VIA Rail and the Toronto 18 successful prosecutions and convictions. So the question we have asked is why these new powers are necessary. We have not received a satisfactory answer to that.
The Chair: Having had these hearings since October, there has been a general concern raised time and again at the hearings in respect to the number of individual Canadians who are involved either directly or indirectly in terrorism, and it's almost impossible, it seems, to be able to apprehend them in one manner or another.
We do have some convictions, but when compared to any other jurisdiction, whether it be the United Kingdom or otherwise, our actual proceedings are very minimal. That was told to us at the last hearing by Commissioner Paulson, who said they had to look at the thresholds so they could take certain actions to prevent harm to Canadians. I just put on that the record.
Senator Baker: I congratulate the committee for inviting these witnesses here today, because they have experience in litigation, especially Mr. Russomanno and Mr. Spratt. Mr. Russomanno is involved in a lot of cases involving terrorism that we can read in our case law.
I noted that the last two witnesses, Mr. Spratt and the previous witness before the committee, referred to the case of Jaser, which was decided six months ago. For anyone who is interested and wants to read it, it's an Ontario judgment, 6424, that you can obtain, and it's the famous Michael Code who gave it.
My question is to Mr. Russomanno, who has experience in this field. Before I do, just an observation: I have noticed that there has been no comment so far on the new 12.2 in this bill. Now, in normal circumstances, police officers, if they're exercising a warrant for covert activities, are restricted in that they cannot interfere with the bodily integrity of any person. This bill, under a new 12.2, says that CSIS cannot kill somebody, number 1, cannot sexually assault the person, number 2, and cannot inflict bodily harm as defined by section 2 of the code, which is not transient harm in nature. I'm surprised that no one has actually referenced this difference between what a police officer can do and what the CSIS officials can do.
My question, though, to Mr. Russomanno. We have all of these warrants out there, and the government, in their good sense, introduced Bill C-44 to correct a problem that we have in foreign nations in the execution of warrants. That's why the government introduced Bill C-44, so that CSIS could act in foreign nations. But we've got this huge problem that since 2009 we have this massive number of warrants, about a thousand I've seen evidence on that SIRC has disclosed, enough to fill this room, evidence — and could you clarify this for our committee — that may not ever be able to be used in evidence in any criminal prosecution. How does that work, Mr. Russomanno, in that CSIS is a third party and the RCMP would be bringing the charge? Is it correct that we've got this huge problem on our hands in Canada with all of this evidence collected to date by CSIS?
Mr. Russomanno: I will go beyond yes or no.
There may be a problem in that, as the law stands now, CSIS is viewed as a third party. So if a counsel for someone charged with a terrorism offence seeks to have disclosure of a CSIS Act warrant, they would have to bring a third party records application.
Senator Baker: O'Connor.
Mr. Russomanno: Yes, under O'Connor, as was done by John Norris and Bruce Davis in the most recent case, the VIA Rail case in Toronto. That adds certain complexity to the proceedings and lengthens the proceedings perhaps.
Where a CSIS Act warrant is used by a traditional policing agency, such as the RCMP, to obtain their own Part 6 or wiretap authorizations, then the constitutionality of those subsequent Part 6 warrants depends on the constitutionality of the original CSIS Act warrant. So in that case and in a case that I was involved in here in Ottawa, the original CSIS Act warrant can be challenged in Superior Court with your criminal trial judge. You can seek leave to cross-examine that CSIS agent.
Senator Baker: A CSIS warrant, a secret warrant?
Mr. Russomanno: It's a secret warrant that then the Crown and the police would disclose with redactions. Very often, as occurred in our case, as well as in the Toronto case, the Crown might say, "We're choosing not to rely on paragraphs X, Y and Z. They're redacted anyway, so we don't have to get into the business of litigating whether those should be unredacted." But it does add a potential layer of complexity to the proceedings. The CSIS affiant would be required to provide full, frank and fair disclosure in the information to obtain the warrant, just as any police affiant would. This is what I identified in my opening statement; there is a culture within CSIS that is, unsurprisingly, one that is directed toward secrecy and intelligence gathering, rather than evidence and the disclosure that this necessarily entails in a criminal proceeding.
So, yes, there are ways in which you can challenge a CSIS Act warrant in a criminal case. When the criminal warrant or the police warrant under the Criminal Code relies on the CSIS Act warrant, then you necessarily have standing to challenge the CSIS Act warrant.
Senator Baker: So we have a problem.
Mr. Russomanno: Let me just add that there is a layer of complexity in addition to that with national security evidence. Where the government wants to have otherwise relevant information kept from the defendant's view, they have to bring an application under section 38 of the Canada Evidence Act, and those proceedings, the Supreme Court has ruled, are within the jurisdiction of the Federal Court. So it's actually a parallel proceeding where you would have to get an amicus to be able to go beneath those redactions, which I, as counsel, would not be allowed to see. That's a whole separate proceeding that takes place and has to occur prior to the criminal trial taking place.
It has been our experience — my experience certainly — where a trial is put on hold or the criminal proceedings are put on hold because the government is making certain claims with respect to national security. So you have to go off to Federal Court. Before you can proceed in criminal court, you have to go before a Federal Court judge and argue whether those redactions should be lifted or not. Ultimately, if the judge orders that they be lifted, then the state might have an important decision to make as to whether they stay these proceedings rather than disclose this sensitive national security information.
This is like an onion of sorts, with layers to peel back, but this is a potential problem with national security investigations.
Senator Jaffer: When I listen here, I have this very uneasy feeling that there is an assumption that everybody that the security services are pursuing is a terrorist or has done something wrong. The issue was raised that CBSA has no oversight. We all know that, just two months ago, Benatta's case was settled because he had suffered unlawful treatment after 9/11 because of what the federal government did. He spent five years in prison. I will use his words.
People need to understand a terrible injustice was done to me. I was labelled a terrorist because I happened to be Muslim. . . . That is racial profiling at the worst. These Canadian officials ruined my life without a second thought, and that is really hard to bear.
The Canadian government settled with him two months ago because an injustice was done. Not everyone that the security forces deal with is a terrorist. They are innocent people who get caught, and that's why we have rules.
My concern is the sharing of information with 17 agencies, and then there is a provision if it's shared in good faith and if there is a breach. For example, an Arar will never now be compensated if this bill goes through because the federal government has taken care of an Arar situation. I would like some of you to comment because there is an underlying assumption here that CSIS only goes after terrorists. There are innocent people who get caught too.
Mr. Spratt: I think an important point to add to that question is something we see in criminal law all the time. For each warrant that is struck down in court, that's the tip of the iceberg. There are hundreds of warrants that we're not aware of because charges aren't laid.
That problem is compounded in this bill. We have mass information sharing. You have sort of oversight on the back end that is inadequate and at the front end, on the back of this massive information sharing, new powers. You have a real lack of oversight and an increased secrecy.
To link your question to what Senator Baker was saying, I would be very shocked to see any RCMP warrant or any criminal charges proceed to completion on the back of Charter breaches perpetrated by CSIS.
So when you combine the lack of front-end oversight with liberal information sharing and the secrecy involved, we might not know even that there is a problem until some government 50 years in the future is apologizing for what happened tomorrow.
Ms. Pillay: I would like to add that we address many of those comments in our detailed written submissions, but I also want to add that I agree with your concerns. The CCLA hears frequently from different groups around the country. In 2012, we held a conference called the Social Cost of National Security, where we had people telling us, not only from Muslim communities but also from Sikh and other communities where people identify themselves as visible minorities, that they feel that they have somehow come under suspicion. So our concern with the SCISA, which is what I said in my oral comments and elaborate on in the written comments, is that this mass sharing of information beyond terrorist activities as defined in section 2 of SCISA allows for all of these agencies to have information on people inside of Canada, to form profiles on them, and it can create a distrust that is exactly what we do not want when we want to work with communities to fight such things as radicalization and other existing threats.
Senator Day: There has been reference to the written submission of the Canadian Bar Association with the 22 different recommendations. That hasn't been circulated — it has been received?
The Chair: That was circulated last week.
Senator Day: That's the same document that you referred to as being helpful. I understand that document, then.
The written submissions from the other witnesses we have not seen, but we will in due course.
The Chair: It will be circulated as soon as it's translated.
Senator Day: Our rule here is that they have to be in both official languages.
You made reference two or three times today to us having studied this matter for the last six months. Generally speaking you're right, but it's important for the record to reflect that what we're engaged in now is a pre-study on Bill C-51 and that the evidence we're gathering here now is for Bill C-51, not for Bill C-44. It is not for the general study but for the purpose of studying Bill C-51.
The Chair: I want to thank you for clarifying that for the record. They're interrelated and it is fortuitous for the committee that we're doing our terrorism study. We've done Bill C-44 and are now going into Bill C-51. It serves us well in respect to the overall study.
I want to thank our witnesses for appearing. We appreciate the time and effort you put into your submissions. They were very well thought out.
We will reconvene at 1 p.m. on Thursday to continue our study of Bill C-51. I am going to try to see if we can get a new location for Thursday at Centre Block so we can accommodate the house proceedings, but you'll be notified in due course.
Thank you for coming.
(The committee adjourned.)