Proceedings of the Standing Senate Committee on
National Security and Defence
Issue 16 - Evidence - Meeting of April 27, 2015
OTTAWA, Monday, April 27, 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: Welcome to the Standing Senate Committee on National Security and Defence for Monday, April 27, 2015. Before we begin, I would like to introduce the people around the table. My name is Daniel Lang, Senator for Yukon. On my immediate left is the clerk of the committee, Adam Thompson. I'd like to 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: Senator Jean-Guy Dagenais from Quebec.
[English]
Senator Stewart Olsen: Carolyn Stewart Olsen, New Brunswick.
Senator Kenny: Colin Kenny, Ontario.
Senator Runciman: Bob Runciman, Ontario, Thousand Islands and Rideau Lakes.
Senator Day: Joseph Day, New Brunswick.
Senator Beyak: Lynn Beyak, Dryden and Northwestern Ontario.
Senator Jaffer: Mobina Jaffer, British Columbia.
The Chair: Before we welcome our witness, I would be remiss if I did not take a minute to salute our former colleague, the Honourable Pierre Claude Nolin, Speaker of the Senate, who passed away last Thursday evening. Senator Nolin served as a member of this Senate committee for many years, guiding our studies, deliberations and recommendations in immeasurable ways. He always championed the women and men in our military and our reserves. He actively supported Canada's participation in NATO and served as a senior parliamentary leader within that organization.
On matters of core principle, "P.C.," as we called him, would never hesitate to ask tough questions of ministers and government officials. He also went against the majority position. For example, he proudly supported the right of RCMP members to be represented by a union, a view now affirmed by the Supreme Court of Canada.
Senator Nolin was a mentor to many of us and was someone whose guidance I regularly sought with regard to this committee and to my role as a senator.
On behalf of all senators of this committee, I wish to express our deepest condolences to the family of Speaker Nolin, especially his wife, children and grandchildren, and his wonderful staff, Ann Charron and Jules Pleau, who have been a great part of his success.
Returning to the subject of our hearings, 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.
Joining us today as we consider Bill C-51 is the National Security Advisor to the Prime Minister, Mr. Richard Fadden. Prior to his present role, Mr. Fadden served as Director of CSIS and more recently as Deputy Minister of the Department of National Defence.
Mr. Fadden, welcome back to the committee. Congratulations on your new appointment as National Security Advisor.
Richard Fadden, National Security Advisor to the Prime Minister, Privy Council Office: Good afternoon and thank you for the invitation to speak on Bill C-51.
I am, in fact, happy to appear before you for the first time in my new role as the National Security Advisor. As you know, I advise the PM on security and intelligence issues as well as foreign and defence policy. In addition, while I do not have an operational role, an important part of my function includes the coordination of the national security community. As such, and if asked, I will point to the past testimony of my colleagues in the departments and agencies for detailed explanations on their programs and keep my comments focused on the big picture, as it were.
[Translation]
You will have heard before that, while terrorism has long existed, Canadian national security efforts were primarily focused on counter-espionage during the latter half of the last century. To be sure, espionage, foreign interference, and other emerging national security threats, such as those in the cyber domain, continue to pose a very real, and in some cases, growing threat. What's more, we are increasingly and of necessity taking a broad view of national security, considering Canadian interests in the face of events and trends around the world, such as those recently seen in Eastern Europe, Iraq and Syria as well as other parts of the Middle East and Africa.
Our priorities, however, changed dramatically following the attacks on the twin towers in New York. We have since then faced a concerted effort on the part of al Qaeda and other affiliated terrorist groups, to attack the West or Western interests. al Qaeda has succeeded in attacking several of our allies, as with the train bombings in Madrid in 2004 and the coordinated suicide attacks in London in 2005. Al Qaeda has more than once publicly identified Canada as one of its primary targets. And while it has not been successful in hitting us, it has inspired such attempts. In 2006, Canadian law enforcement and intelligence agencies worked together to prevent the Toronto 18 from launching al Qaeda-inspired attacks in Canada.
[English]
Western efforts to thwart al Qaeda have been to a significant degree successful. Al Qaeda's capacity to launch attacks has been systematically diminished. However, the global terrorist threat persists. It has evolved and become more of a challenge to deal with.
The prolonged civil war in Syria and ongoing instability in Iraq have enabled new terrorist groups to form and thrive, the most prominent of them being the Islamic State in Iraq and the Levant, ISIL, which is a much more savage and indiscriminate purveyor of violence.
Most concerning, however, is ISIL's recruitment of westerners, specifically our youth, through the use of social media and other means. This has included high-quality propaganda, using videos, Twitter, Facebook and other communication aggregators.
ISIL has encouraged recruits to denounce their homelands and to travel to Syria to join its jihad and self-proclaimed caliphate. We have witnessed the dramatic growth of the foreign fighter terrorist traveller phenomenon. Canadians and other westerners who have travelled to Syria to fight with ISIL pose a stark threat. They can more easily blend into Western society, travel freely and potentially return home to further radicalize others, or worse, launch domestic attacks.
In fact, ISIL and others like them have encouraged followers to launch terrorist attacks at home. Last October, this theoretical threat became a reality in Canada, right here on Parliament Hill, the heart of Canadian democracy. Our allies have also been hit. Australians faced a hostage taking in December, and last year in Paris the satirical weekly newspaper Charlie Hebdo was targeted.
Canada has excellent law enforcement and intelligence agencies, and the RCMP and CSIS are second to none. To date, they largely have been able to adjust to this mounting and evolving threat. Would-be terrorist travellers have been prevented from leaving to join ISIL. Arrests have been made. Just last month, two men were convicted of plotting multiple VIA Rail attacks. Last week two Montreal students were in court to be charged with several terrorism-related offences, including possession of an explosive substance and attempting to leave Canada to engage in terrorist activity. Earlier this year, six young men from Ottawa were charged with terrorism-related offences. It is troubling to see that such events have become a regular staple of the daily news, but this news does reflect the effectiveness of our intelligence and law enforcement agencies.
But for every success you read about in the papers, there are many more threats that continue to develop and that our national security apparatus works to diffuse. Despite concerted efforts, radicalized Canadians and others are slipping through the cracks. Just last January, as was widely reported, six youths from Montreal left for Syria. Our allies are facing similar challenges.
The efficiency and speed with which threat actors can communicate to plan, to disseminate propaganda or terrorist know-how, as well as to radicalize others has never been greater. Terrorists have learned over the years how to protect their communications, thereby making discovery of their plans more difficult. Attack plotting can be actualized with little or no warning. As the Director of CSIS said last week at this committee, "the terrorist threat to Canada's national security interests has never been as direct or immediate."
[Translation]
As the threat evolves, so must the government's approach. That is why Canada continues to refine its laws and counter-terrorism tools, while adhering to the core values we all hold dear as Canadians, and as expressed in the Charter of Rights and Freedoms.
On this point, you will have noticed additional funding that the budget has recommended Parliament provide to the Security Intelligence Review Committee to augment its capacity, and to help ensure that intelligence activities remain lawful and consistent with government policy.
[English]
Bill C-51 is an important step forward. If enacted, it will enhance key prevention tools at the disposal of law enforcement and intelligence agencies. For example, it will give CSIS a new mandate to diminish threats to the security of Canada, where necessary, with a court-authorized warrant. Specifically, it would allow CSIS to take important pre-emptive action in response to early indicators of radicalization to violence or other terrorist activities. This complements the RCMP's mandate for threat disruption by giving the government a broader range of options to address threats which have not met the criminal law threshold but threaten us nonetheless.
A number of commentators have remarked that giving CSIS the above mandate will duplicate existing police powers. I do not think this is the case because by the nature of their respective mandates, CSIS very often become aware of potential threats before they are criminalized, and being able to act as early as possible in dealing with threats is always preferable.
As another example, this bill provides legislative measures to address barriers to information sharing for national security purposes, as called for in the December 2010 Air India Inquiry Action Plan. This will enable organizations to share information that is relevant to our national security without compelling that sharing. It's important to note that this bill does not create new authorities to collect information.
And we're not alone. These legislative enhancements are similar to authorities already available to our closest allies, including the United Kingdom and Australia.
In closing, I'd like to emphasize that the rights of Canadians, including the rights to privacy, were at the forefront of all of our policy deliberations, which in turn informed the proposals of the government now before you. It is a delicate balance that must be achieved, but as I noted earlier, our enemies have continued to refine their methods and adapt and so must we.
[Translation]
Thank you for the opportunity to provide these remarks, and I look forward to answering your questions.
[English]
The Chair: Thank you very much, Mr. Fadden.
I will start with the deputy chair, Senator Mitchell, and then we will go to Senator Runciman.
Senator Mitchell: Thank you, Mr. Fadden. Thank you for being here for the first time in your new role. You've had some immense roles before and this one will measure up, I'm sure.
I'm very interested in the theme that has come out over and over again in our meetings, and that is oversight. You have said clearly that you don't have an operational role as National Security Advisor, which suggests you may have a coordinated role but you don't have line authority to impose. Yet there are those who think that a national security advisor does more. They actually provide oversight as opposed to review. There are those that think there should be an independent national security adviser who could oversee the entire intelligence operation of the government.
I wonder if you could clarify my first observation and, secondly, give us insight as to why it is we don't have and whether or not we actually need an oversight function that's independent of the PMO and the PCO.
Mr. Fadden: Well, to address my own role first, I do have a coordinating and not an operational role. But to be candid, as an agent of the Prime Minister in these matters, I think it's possible for the NSA to have some influence. We worry not just about operational effectiveness but also about the balance of which I spoke earlier.
In terms of oversight, I'd like to clarify. We use the words "oversight" and "review" interchangeably a little in this country. The word "oversight" comes from the United States governance system, which implies some ex ante authority on the part of the legislative authorities in dealing with national security matters, whereas "review" is post facto. My understanding of our system of government is that, broadly speaking, Parliament is not given ex ante authority to review the work of the executive government. Whether this is desirable or not is, as the Americans say, somewhat above my pay grade. Other Commonwealth countries with similar systems of government to ours have tried them, some in a very restricted way, others without.
I would remind you that under our system of government, all of the agencies here represented have a minister of the Crown. Under our system, they are accountable to that minister, who is accountable to you. I find it interesting that in this debate about oversight and review, we tend to ignore the responsibility of ministers. I must say, when I was Director of CSIS, I never considered my minister to be a rubber stamp. So I would say with SIRC, with the CSEC commissioner, with ministers and a somewhat more developed role for the Federal Court, there's a fair bit of review being done already.
As to the broader question of parliamentary oversight, you'll forgive me if I don't dance too enthusiastically in that area.
Senator Mitchell: Well, I will forgive you, but I'm compelled to pursue it a little bit because it's implied in your presentation, where you list a number of the new powers that, for example, CSIS and the RCMP will have. You mention as a defence of those new powers that, in fact, they are powers that are already available to our closest allies, "including the United Kingdom and Australia." Both the United Kingdom and Australia have ministers who are accountable. They also have parliamentary oversight.
Can I push you further into why it is you would go so far as to use them as a precedent, but then back off in saying that parliamentary oversight might be of some value?
Mr. Fadden: Well, I think all of our Commonwealth partners have slightly different variations of the Westminster system. The internal controls on the security and intelligence agencies in Australia and the United Kingdom are slightly different from here. All I was trying to suggest is that most of the measures, if not all of them that are being suggested here, are already in place elsewhere. It's difficult for me being an official to comment a great deal more about the need for parliamentary review or oversight.
Having said that, I am here. My colleagues have been here. Your colleagues on the Finance Committee can call estimates. You can call SIRC members. You can call the Commissioner of the CSE. So there is some measure of parliamentary overview. I would just suggest that it's not totally absent. It's just not the same, say, as in the United States or elsewhere.
I'm going to try to stop there.
Senator Mitchell: I won't push you further.
You mentioned a point, an important one, about CSIS being able to do preventive measures, for example, disruptive techniques. There is also the idea of rehabilitation and de-radicalization in the pre-criminal space. CSIS wouldn't be doing that. Would that lie with the community or the police forces?
Mr. Fadden: I think that's broadly correct. I think CSIS might do it incidentally, but I think it would be Public Safety or other departments that deal with people more generally, such as Heritage or Immigration for new Canadians.
I would also argue there is a role for provinces and municipalities. For example, the City of Montreal has developed quite a sophisticated counter radicalization program, as have a number of other cities. At one level, the key here, I think, is to find the organization or the level of government that is closest to the individuals who are likely to be radicalized. I guess I would argue that's not always the federal level. There has to be a mix in the stew to try to get at those who are most inclined that way.
The Chair: I want to echo the witness's observations about parliamentary procedure. These types of hearings are where part of that public conversation can take place and inform Canadians of exactly what organizations, such as the one Mr. Fadden is involved with, are doing, how they're doing it and ensuring they're doing the job we want them to do.
Senator Runciman: Mr. Fadden, welcome. It's great to have you here, and hopefully we might have you back when we actually get the bill before the Senate because we could devote a whole session to your testimony.
In your opening comments, you mentioned the attack on the French magazine. I know that last week France had another incident that could have been another terrible tragedy, but fortunately it was stopped because of the individual shooting himself in the leg, I guess. The French Prime Minister has said there is an unprecedented terror threat to that country. He talked about 1,573 people being identified as of last week as having links to terror networks in France alone.
What are we doing in terms of that kind of identification process in Canada? Is something happening along those lines? Can you even talk about a number, or would it be inappropriate for you to do so?
Mr. Fadden: Yes, we do try to get a grip on those who are inclined this way. I think the Director of CSIS, when he was before you either last week or the week before, gave a number. I think it's something in the area of 150 people who we think have left Canada to go do jihad in Syria or other parts, and some smaller proportion of them have come back to Canada. Those would be the people that CSIS is worried about as having been directly involved in some form of violent radicalization. I think the Mounties have a slightly different list, although they overlap extensively.
So, yes, we do try to keep track and we do this through a variety of means. Sometimes parents or friends make us aware. Sometimes it's communications through social media and occasionally, as I said in my opening remarks, we find out that people have left the country and appear in Syria. In this fight against terrorism, we also try as effectively as we can to cooperate with any number of countries, including France.
It is surprising how, in order to get to parts of the world where people wish to do jihad or something similar, they go through other countries. So we pick each other up to the extent we can.
Senator Runciman: I wanted to ask you a question related to an element of the bill that has probably generated the greatest degree of controversy, and it's Part 4 to the amendments of the CSIS Act, clause 42 of the bill, the threat reduction powers granted to CSIS.
I think I mentioned to witnesses previously that there are a number of activities that would be a violation of the Charter without a warrant, but they're not violations with a warrant. We talked about phone taps and that sort of thing. The issue was addressed by the Supreme Court last year in the Spencer decision, which surprisingly two professors last week professed to know nothing about. That dealt with access to subscriber information from an Internet service provider.
So the judicial authorization for threat disruption is the same thing; it's not a Charter violation if you have a warrant. That was confirmed by the ADM of Justice and Mr. Plouffe, who provides oversight to CSE. But opponents to the bill, and we see it in the news and the media all the time, persistently claim that the bill would allow Charter violations. I wonder if you would like to take this opportunity to respond to that.
Mr. Fadden: I think, by definition, if the service follows the procedures set out in the act and obtains a judicial warrant, they are operating under colour of the law, under the protection of the law.
The other thing I would flag is this is not unique to this area. There has been a similar power given to the police for a long time under the Criminal Code. Designated police officers can go to a court and ask for the authority to engage in minor criminal activities. Well, by definition, those minor criminal activities often involve a violation, at least, of the principles of the Charter.
We would argue, I would argue, that as long as you follow the rules set out in the act, you're given protection.
I'd also note that the Supreme Court has been very clear, for example, that the power of expression, which is often at issue, does not attract full protection when violence is concerned.
So if you put all this in a pot, I think what this act is trying to do, in an up-front sort of way, is saying there are some circumstances where the service needs to be able to do a variety of things that on the face of the Constitution and the law they couldn't do and they are now being authorized to do.
I would be willing to wager a fair bit of money that after they do this a couple of times, the courts and a number of our legal colleagues will be busy working their way through the limits of this.
We believe very firmly that what this bill does is legalize those kinds of activities as long as the Federal Court agrees.
Senator Runciman: I was going to ask a question with respect to your career and positions directly related to national security issues, and of course Bill C-51 deals with that. The chair may have to cut you off, but could you speak to what you see are legitimate operational reasons for the changes provided in all five parts of Bill C-51?
Mr. Fadden: Let me start, senator, with threat diminishment activities.
Under the law as currently interpreted, CSIS can only collect information. So if I were, if you'll forgive me, collecting information on Senator Kenny because I thought he was going to violate the law, under the current rules I could not try to dissuade him from doing anything. It's a very strict interpretation based on what happened some decades ago. I couldn't go to his family or friends and try to convince him that this is a not good idea.
Even at that simple level, the interpretation of the current CSIS Act says all you can do is collect information. You can't talk to someone's parents, their imam or their friends. Just at that level of the spectrum, I think this will be a very useful tool.
The legislation relating to the sharing of information, as you've noted, one of my previous jobs was as Director of CSIS. One of the things that honestly — and perhaps figuratively sometimes and directly sometimes, as my wife would tell you — kept me awake at night was the thought that if something terrible happened and we found out two days later that the Government of Canada had information that could have prevented this, I could not have explained that to my minister. I don't think I could have explained it to you.
So the sharing of information act is not doing anything more than explaining to public servants, broadly defined, that if you have information that may help the national security agencies to deal with these threats, if your statute does not prohibit you from doing it, you may share the information. There are a series of criteria that allow this to happen.
I think this is very necessary because, as you'll all know from having had people from various departments and agencies in front of you, all of these agencies develop their own culture, their ways of doing things, and it's not that easy to share all the time. I think, aside from anything else, the sharing of information act is meant to send a signal to the public service that, absent a prohibition, which this act does not change except for those three or four examples, we encourage you to share information for national security purposes.
The recognizance and peace bond changes — I think I'm about to be told to stop — are a recognition of the request from a number of police authorities that they just want the threshold lowered a little bit. I would note that higher or lower threshold, you still have the judiciary as an intimate part of these changes.
Part of the message the bill is implicitly sending is we're not talking here about the criminal law standards of beyond a reasonable belief, because nobody is going to jail. We're just saying that we think there's a risk and we are slightly restricting your liberty in order to forestall what the police must reasonably believe to be a threat to terrorism.
I think I'll stop there, if I may.
Senator Stewart Olsen: Thank you, Mr. Fadden, for probably one of the best presentations I've heard on this bill. You've answered most of my questions. The only thing that perhaps people may feel a little uneasy about is the disruption.
You've already given us examples of what disruption actually means. If you could elaborate on that a little bit, and if you have something to continue in answer to Senator Runciman's question, please take my time and go ahead with that.
Mr. Fadden: Going back to threat disruption or threat reduction, the main reason we think this is very valuable is that when Parliament created CSIS, it gave it a mandate and a lower threshold to look into threats to the security of Canada than the police have. So they are often aware, quite a bit before the police, that something potentially is going awry.
If Parliament passes this legislation, this will be the first time they can actually do something about it, except in those circumstances where you're moving towards the centre of the spectrum and things are becoming criminal, in which case CSIS engages the RCMP and they can disrupt themselves.
I think it's really important, this "where you are on the temporal spectrum" issue. Both agencies are very busy, and the police cannot become involved, by the nature of their work, if they cannot see something concrete in terms of criminal activity; otherwise we're living in a police state.
CSIS is able, because of the slightly lower threshold, to look at things. If you give CSIS this authority, we're hopeful that in many cases, without going to Federal Court — because you'll be able to just convince people not to do this. Simple things like talking to someone's parents, making it known that somebody's being investigated. Under the current rules, CSIS cannot make it known that they're investigating someone because that's not acquiring information. Simply making it clear to a 23-year-old that somebody is beaming in on them, if you will forgive my English, might be enough to dissuade them; it may not, in which case you keep moving towards the RCMP end of the spectrum and then they start engaging their powers.
It's also very useful in other areas, for example, weapons of mass destruction. A number of countries around the planet try very hard to get dual-purpose technology, and they try in Canada. It is conceivable that there may be circumstances where the service and/or the police may be aware of this. If they can find the wherewithal to change the technology, alter it, destroy it on its way across the country, that sort of thing is very useful. If you can't do that, it basically means you have technology moving across the country and ending up elsewhere, where somebody else has to deal with the problem.
On the threat disruption, the other thing that I think is important to remember is that both the general construct of the CSIS Act and what is being proposed here to Parliament requires that people apply their minds to the fact that there is a threat to national security. A number of people in the media and elsewhere have been reported as saying they will be able to go out and the Girl Guides will be hit next. Well, there has to be an actual threat to national security. It's defined in the CSIS Act and it's defined again in the legislation before you.
This is taken very seriously. SIRC looks at this regularly. If you have to go before the Federal Court — I can speak from experience — they take it very seriously. So it seems more frightening than it really is.
Now, over time, people will use these powers. There will be checks from the courts. You and your fellows in the other house will have a view. The central message in my introductory remarks is that the nature of the threat has really changed. The powers that CSIS had in 1984 were fine then, when we were mostly worried about espionage. It's not the same kettle of fish today. They are becoming very adept at working their way through and in our societies, and the government believes — I believe — that some of these measures will help us resist them.
[Translation]
Senator Dagenais: Mr. Fadden, thank you for your presentation. So that we better understand your role, could you give us an idea of what you do when it comes to daily or weekly cooperation with the national security agencies?
Mr. Fadden: Once a week, I call a meeting of the chiefs of all the agencies that regularly deal with questions of national security. That way, we can coordinate our activities and bring each other up to date with regard to the major events of the week or the day. Every morning, I receive a communication on what is going on in the area of national security. If necessary, I communicate with the agency directors.
There also some standing committees where chiefs of agencies meet to discuss issues of policy, on the one hand, and operational issues, on the other. Supporting these committees, which I generally chair, there are committees of assistant deputy ministers who manage operational issues and who ensure that border services are on the same wavelength as the RCMP. We encourage information sharing and ensure that the centre where I work is aware of what people are doing. If we believe that an issue is particularly sensitive, we ensure that the minister responsible for the agency is informed, or we inform the Prime Minister.
Senator Dagenais: Mr. Fadden, you are undoubtedly aware that 683 cases of funding of terrorist incidents were reported by our agencies. Do you not find it troubling that the information gathered did not lead to any criminal charges being laid by the Attorney General or the Royal Canadian Mounted Police?
Mr. Fadden: I am always disappointed when there is a possibility of charges, but it is difficult for me to express a particular opinion on the decisions of the Attorney General or the Royal Canadian Mounted Police. As much as possible, if we can help them, we try to do so by coordinating the operations of the various agencies.
[English]
Senator Beyak: Thank you, Mr. Fadden, very much. I share Senator Stewart Olsen's praise for a very reassuring and informative presentation for those that are watching at home and following this issue closely. It was excellent. Thank you.
My question goes back several years, to when you were the CSIS director. You told then Public Safety Minister Toews that there were problems concerning foreign governors and other interests targeting prominent Canadian politicians of all stripes with influence peddling at the provincial level, federal level. Is that still a concern and is it worse today because of radicalization and the terror threat?
Mr. Fadden: It's very hard to answer if it's worse. I would argue that, broadly speaking, those concerns remain. I would be less than candid if I didn't say that terrorism is taking up far more of our time than it ever has. I think, in the absence of fairly obvious cases, it would be difficult for me to comment on whether it's materially worse or better or the same. But I'm certainly conscious of the fact that, as I said then, it went on then, it went on in other countries and I suspect it's going on now. Degree and seriousness is harder for me to comment on.
Senator Beyak: Is there anything in this bill that will make it easier to pinpoint those kinds of activities?
Mr. Fadden: That's a good question, Mr. Chairman. I think one of the areas would be the sharing of information. There's long been a view on the part of many, and I want to be clear on this, without creating 1984, where every bit of information is put in one big computer — because that's not the case — sharing information held by various and sundry departments would enable us to get at more problems than exist today, and I suspect it will help in that case as well.
Senator Ngo: Thank you, Mr. Fadden. Several previous witnesses have suggested that we need an expanded review of our security agencies by allowing SIRC and the Commissioner of CSEC to share operational information, to conduct joint reviews and to work closer together in terms of the following information. Do you have any comment on the need to ensure that our review agencies are given additional legislative or regulatory power to conduct the review work they feel necessary, given the expanded scope of CSIS?
Mr. Fadden: Let me start by staying that despite what some people are saying, there is already some cooperation between the SIRC and the CSEC commissioner. Two or three of the CSEC commissioner's annual reports have said:
. . . I believe a certain amount of collaboration among review bodies is possible under existing legislation. . . . I may refer questions to SIRC that concern CSIS.
This is the CSEC commissioner. The SIRC has said the same in slightly different ways.
Whether or not we need a bit of legislation which says you've got to talk, you have to share everything, is not for me to say. However, in administrative law, unless there is a clear prohibition, you can argue that when you are operating in closely related fields that it is necessarily incidental to your work that you should do some measure of sharing.
I'm not trying to be unhelpful, but it's a bit above my pay grade to say whether or not we need legislation. I think there is collaboration now between the commissioners and whatnot. The government is recommending to Parliament that the capacity of SIRC be increased. I think they are proposing that the budget be almost doubled. I think it would be important to wait a couple of years to see how this develops. Then the government and parliamentarians can decide if you need specific legislation.
Senator Kenny: Welcome, Mr. Fadden.
Mr. Justice Major has appeared before this committee twice this year. Both times he's made the case that he feels that the communications between CSIS and the RCMP are insufficient or inadequate. He specifically suggested that someone with your title be charged with ensuring that this communication functions. He goes on to say the consequences of this not happening are what happened with Air India.
From what you have been saying to us, are you saying that you are carrying out Mr. Justice Major's wishes now, or is this something that is beyond the ambit of your position?
Mr. Fadden: First, I would argue — and I would say this to Mr. Major if he were sitting here — that things have improved considerably since his work. There was certainly a time when communication between the service and the RCMP was not all that it could be. In part, there was a family feud at the time that CSIS was created. I think it is way better than it used to be. Is it perfect? No, it is not.
I think a chunk of what Mr. Major is talking about is accomplished by people in my position but also by the various committees that I mentioned in response to the question by Senator Dagenais.
I think it's fair to say I have virtually no power; I have a fair bit of influence on the national security front. The other thing I do have is if I think there's a real problem, I have access to the Prime Minister and ministers. So I think Mr. Major was thinking of something with a bit more oomph in it in the sense that he wanted it to be based in statute and be given specific powers. Again, that's a matter for government and Parliament to decide, but I think both my predecessors and I have sort of evolved to something fairly close to what Mr. Major was suggesting.
I certainly never found, when acting on behalf of the community, reluctance when problems are brought to people's attention for people to correct them. On the rare occasions where it happened or it happened to my predecessor, it has been brought to the attention of our political masters, which it seems to me is not a bad way of resolving the issue.
Senator Kenny: Thank you.
I'd also like to revert to disruption or threat reduction, which seems to be a popular topic today. Specifically, it's of concern to people because of some of the words included in proposed clause 42 of the legislation. Under proposed section 12.2, the words "cause, intentionally or by criminal negligence, death or bodily harm to an individual," and then "willfully attempt in any manner to obstruct, pervert or defeat the course of justice," and then "violate the sexual integrity of an individual." When those are what are prohibited, people read it and say, "Wow, there's a lot of stuff left in between." What "stuff" is left in between?
You have talked about the most benign example. You've talked about telling a young person that they are being investigated or telling their parents. Surely you're aware this has been going on for years in CSIS. They go to mosques. They talk to people; they've talked to parents long before this legislation was contemplated.
To say to this committee that the courts are going to resolve this over time is a bit troublesome. It's sort of saying two or three years from now these broad gaps that you're pointing to in the legislation — or at least I'm pointing to in the legislation — are going to get filled in by the courts deciding what the law should be. Shouldn't the law say what people can and cannot do? What are the things that they can do, given the three exceptions I've talked about?
Mr. Fadden: Well, first let me point out that the law is very clear that any measure undertaken has to be reasonable and proportional to the circumstances, to the nature of the threat and to the reasonable availability of other means to reduce the threat. If you're dealing within a bureaucracy, dealing with a minister of the Crown who has to approve this dealing with the Federal Court, there is a considerable limitation, I think, on what would be permissible.
I didn't mean to suggest that in the end the courts would end up with a definitive list of what is or is not permissible. I think that will evolve over time. I don't think it is possible to put in legislation a list of possible measures that would be realistic, because I think circumstances change too quickly. So the drafters have taken a different approach and said there are a number of things you definitely cannot do and for the rest we expect you to be reasonable. We expect that what you are trying to do will be proportional to the threat. That is the view that the government took. Speaking as somebody with a bit of operational experience, I would argue that you'll probably end up with something that is pretty reasonable in the end.
If something is really very serious, I think the service would end up involving the police, and then you have all of the common law and the protection of the Criminal Code and everything else come into play.
I appreciate that's not a view that's universally shared, but I would argue that it's impossible to create a list of what is permissible and impermissible. The range of possibilities is simply too large. I would note the couple of countries of which I am aware who have done something similar have not done that either.
Senator Kenny: But the test is being held against people who are terrorists and who are committing the most atrocious things that we can imagine in life. The very fact that these people are about to do horrible, life-ending things to other people really means that according to this, there is a fair amount of leeway because the test is against such terrible things.
Mr. Fadden: I think that's fair in some circumstances, but I would go back to what I said earlier and say that if the service is successful in implementing this properly, it will catch potential threats to the security of Canada very early in the process, before there is a risk that Parliament will be blown up or that Place Ville Marie will be blown up.
I appreciate your view of the seriousness of the potential end product of the terrorist activities, but underlying all of this is the very firm belief that the service will do this very early in the process when they can, before we have too much of the sort of thing that you are talking about to worry with.
Is this absolute perfection? You're not going to get me to say that, but I argue that this is a reasonable compromise given everything else if you also look at it in the context of Canadian law generally.
Senator Day: I join my colleagues in welcoming you. You have touched on a lot of areas that I wanted to get into, but I think there's a couple that we could have some clarification on.
Let me start by asking you how a member of the public could find out what your mandate is. It's not legislated. Is it listed somewhere so we could go read that and see what your mandate is?
Mr. Fadden: No. As a matter of fact, Mr. Chairman, I recently found out that it was actually fairly difficult to do that. I wasn't aware of that. It's not a statutory appointment; it's established under the prerogative, so there's no real definition.
I think there's probably a little bit of a definition in the RPP and the DPR of the Privy Council Office. Beyond that I confess I don't know, but I don't it's very broadly available, I'll grant you.
The Chair: So if I was to apply for your job, I really wouldn't know how.
Mr. Fadden: You would talk to a person called Harper, I think.
Senator Day: Thank you for the follow on. That's very helpful.
Now, you made a comment when you were talking about the powers. You said, "Well, let's just see how this works for a couple of years." Would you be in agreement to a review like what was built in after 2001?
Mr. Fadden: Speaking as an official, I think that reviewing a large broad brush of legislation is not a bad thing, but it's a policy decision to be taken by you and by government.
I think the key there, though, is to look at the specific piece of legislation you're contemplating and give it long enough to effectively implement itself before you make the review.
It's hard for me to comment on this in particular because it really is a policy issue. I know it has been a very successful device with some legislation, and in other cases without that kind of device Parliament has taken up the legislation and looked at it again.
Senator Day: My final question relates to a point you've already touched on with Senator Runciman, but I think it's worth going back to this. The question was prompted by your opening remarks. You said that is why Canada continues to refine its laws and counterterrorism tools while adhering to the core values we all hold dear as Canadians and as expressed in the Charter. Then we go to the new subsection 12.1(3), which actually allows CSIS to breach the Charter if the judge so authorizes in a warrant.
Is that going a little far? I mean, you did talk about the Criminal Code allowing for a warrant, but that wasn't the Charter that was allowed to be breached under the warrants under the Criminal Code prior to this.
Mr. Fadden: I would argue that the Constitution itself says that the various rights in it are subject to what is reasonable in a free and democratic society, and I think this is a manifestation of that.
With respect, I would disagree. The rights in the Criminal Code that are affected, it allows the police to break the law and destroy property for example — that's a right in the Constitution — or possibly for someone to be hurt slightly. That's a right that's protected by the Constitution. It's probably a question, senator, you could better direct to the Deputy Attorney General, but my understanding is that if Parliament enacts this legislation, it is doing so in keeping, broadly speaking, with approaches that have been taken already in legislation and with the broader principle that the Constitution is not absolute. In a free and democratic society, Parliament can make some small adjustments.
But as I say, I'm not here as a lawyer, so please take what I say with a fairly large bushel of salt.
Senator Day: As a follow-up to that, the Canadian Bar Association, through one of the witnesses we had, said this is like a blanket notwithstanding clause.
Mr. Fadden: I don't think that's the case.
Senator Day: You don't agree with that.
Mr. Fadden: I can only remember what the Attorney General of Canada and Minister of Justice said when he testified in the other place. He said that his officials and he had carefully reviewed this legislation. They were convinced it was constitutional and they would vigorously defend it against any attack. As the chief law officer of the Crown, I cannot disagree with him.
Senator Day: Thank you very much. I appreciate you being here.
Senator Jaffer: Mr. Fadden, I found your introductory remarks very interesting. You spoke about radicalization of young people, and I couldn't agree more with you. That is the concern we all have, and we have to reach out to those young people who are being radicalized. Here the chair especially has been concerned about numbers and how we reach them. I'm not a normal member of this committee, but what is frustrating me is we talk about radicalization, but nothing in this bill deals with radicalization or reaches out to those young people and those threats. Yet, your whole presentation was on this. That is not addressed in this bill.
Mr. Fadden: Well, senator, I share your view that the radicalization of young people is one of the major problems we face today. I have two comments.
One, if any one of us could find a way of dealing with this in a clear and unambiguous way, we would be very rich. A great deal of research has been undertaken here and abroad about how to deal with radicalization, and I don't think there is one way of doing it.
Taking that to my second point, I'm not sure it's the kind of issue that is best addressed in legislation. Violent radicalization is prohibited by law. I'm not sure what kind of legislative construct we could develop that would be really helpful in the fight against juvenile radicalization.
I would argue that since there seems to be a societal consensus that this is a bad thing, we need to, in government and in civil society, all levels of government, develop practical programs as opposed to developing a legislative model. I say this not to be disagreeable. I do have some difficulty imagining what that statute would look like.
Senator Jaffer: In your previous role as the CSIS head, I would have been embarrassed to remind you that one of the things for you, whether it's in Canada or outside, is to collect intelligence. But there is a particular community in our midst, and now a fairly large community, that feels their rights are being threatened, that they are being watched and at the airport suddenly they get random checks. The work of intelligence services is being diminished if a large part of a community feels they're not going to be part of intelligence gathering because they are under threat.
You're talking about a construct. We need to reach out to people who are feeling threatened because of a few people. Let me make it clear. Those who are being radicalized are not necessarily born Muslims but are attracted to this, and I'm really concerned that this bill is not balanced.
Mr. Fadden: Well, senator, it's not for me to agree or disagree with you. All I can say is that those of us who have worked on it have tried very hard to come up with a reasonable balance in the law. I think on the streets, though, whether it's viewed as balanced or not, it will be important as to what the CSIS officers do, the RCMP officers do and the immigration officers do.
In all my years in national security I have not met anyone who thought that everybody, for example, in the Muslim community is bad. In fact, I think many people now bend over backwards not to give that impression because it's not true.
I think this will enable the service and Mounties and others to use a surgical approach to try and find out who is planning something that's prohibited by law, as opposed to a broadsword approach of just trying to find out about things from everybody, anywhere, any time.
When I was Director of CSIS, we had instances where when we knocked on the door and asked people about some of the things you were talking about, people were ecstatic to see the CSIS officer and they delighted to find out about it. In other cases the door was slammed in their face because people considered it to be a terrible invasion of their privacy and an expression of the kind of prejudice that you're talking about.
I don't know how to deal with this except by having good operational policies, good training and having people talk about it, which is something I would argue as a private citizen I don't think we do enough of all the time. We seem to have people on both extremes of the debate. And I don't mean a big, national debate, I just mean in communities, people sitting down and talking about it.
Other countries have tried very consciously to pull this together as part of their counter-radicalization programs. As I said in my opening remarks, some cities are now doing this. I would argue school boards should start doing this.
I think I'll stop there.
Senator Jaffer: Why are we not doing it?
Mr. Fadden: I think it would be incorrect to say that we're not doing it in absolute terms. The RCMP has quite a good outreach program. It varies from province to province because they're contract police depending upon the province. I think CSIS is doing a little bit of it, and in fact there's some discussion within the government of how we can pull everybody together and try and make this work a little bit better.
I honestly believe that part of the problem is people do not see an easy solution. They're a little bit afraid of trying to come up with concrete ways of dealing with it. I may be underselling the capacity of some of my colleagues or even the ministers for whom I work, but I think that's part of the problem. We've gotten to the point where, as opposed to people wanting to talk about some of these things, people are getting scared. You look at all of the things that are happening around the world, some of which I referred to in my testimony, and I think it's important for the operational agencies to try and find this balance every single day. It will be different in Montreal than it is in Calgary or B.C. or Nova Scotia. I think we're trying. I will confess to you that I think we could do better.
The Chair: Colleagues, I'd like to ask a couple of questions. We're coming to a conclusion here.
First of all, I'd like to go back to the question of warrants raised by a number of members here. One of the criticisms we've heard of Bill C-51 is that when a warrant is issued, the judge doesn't necessarily know what the end result of the request for that warrant came to be. It would seem to me that that's a very legitimate criticism of the bill. I do know that the judge can order that they report back once the conclusion of the warrant has been utilized. What would be your opinion of the concept that, by policy or by regulation, the CSIS officer be required in his or her application for a warrant to include in that warrant at all times when and how they're going to report back to the judge so that the loop is closed?
Mr. Fadden: I'm not sure there's an easy answer to that, Mr. Chairman. It's not usually the function of the judiciary to inquire into the application of its orders. That's true of the criminal courts, and it's true of the national security bench of the Federal Court.
You're right when you say that a particular judge in a particular case can ask for a report, but it seems to me that if we start doing this, we're fundamentally changing the role of the judge. As Parliament has envisaged the role of the Federal Court in the current CSIS Act, and I think as it is contemplated here, it's to consider all of the argumentation, pro and con, and decide whether a particular activity is lawful.
It really goes beyond what I would characterize as the traditional judicial function to have whatever agency go back to report to the judge on, as we say in French, le qui, que, quoi, donc, où of executing the mandate.
Now, I'm expressing a policy view, because if the government wanted to do this, it would not be unconstitutional or anything, but I think it would be outside the regular role of the judiciary.
The other thing, too, a lot of reporting goes on about what the service does and it's reviewed by the SIRC. This would be just one more additional requirement. It's for others to decide whether it's a good or bad idea, but to my mind it's outside the regular role of the judiciary.
The Chair: I'd like to go to one other area of concern, and that is the idea of this extreme Islamic jihadist doctrine being perpetrated across the world, not just in Canada. We do know about Bill C-51 in respect to the government being able to review the Internet and at least try to arrest some of this doctrine from going through the Internet. As you know, we've been studying terrorism. The Internet has been one area of concern, but another area of concern in some quarters has been the fact that it has been said that millions of dollars are coming into this country with various interests out of Saudi Arabia, out of Qatar and other places, in respect to the extreme Islamic jihadist interpretation of the Quran through Wahhabism and Salafism interpretations.
I'd like to hear from you in a general sense, as the National Security Advisor, is this causing concern for you? How can we as a government or as the public help the vast majority of the Muslim community withstand this type of indoctrination?
Mr. Fadden: It's a very difficult issue. I think it's fair to say, without commenting on a particular country of origin, that there are monies coming from these countries that are advocating this kind of approach to life. We have in some respects the same problem here as the revenue agency has in determining whether or not a particular activity is a charity or not. A lot of this money, I believe, comes into Canada characterized as being for charitable purposes, educational purposes, whatever purpose, and finding out where it all goes in the end and for what purpose is, in fact, quite difficult. A lot of these funds, I think, are directed to religious institutions or quasi-religious institutions. It's very difficult in this country to start poking about, if you'll forgive my English, religious institutions because of the respect we have for freedom of religion.
I think it is a problem. I think it's one that we're becoming increasingly aware of. It's one that we share with a number of our other Western allies and, insofar as I've been able to make out, nobody has found a systemic solution. What I think has occurred on a number of cases, you can find out about a specific case and you can do something about it; the problem is finding out about the specific case.
To develop a filter, if I can put it that way, for funds coming into Canada, it's above my pay grade, but it would be something that Canadians would find difficult because regulating money coming in and out of the country, I think we do that to a certain point, but as to its purpose, it would be very difficult.
I'm not being as clear as I'd like because I don't think there's an easy solution to the issue you raise. I do think it's an issue. We in the bureaucracy have talked about it and we're aware of it, and we've talked to some of our close allies as to what we can do about it.
In fact, in my previous job, I actually raised with representatives from some of the countries who might be involved in this and suggested to them this was not helpful. The difficulty in most cases is that the monies are not coming from governments. They're coming from fairly wealthy institutions or individuals within some of these countries. It makes it doubly difficult to track. It doesn't mean you're not right in raising it. I just don't have an easy solution.
The Chair: Thank you, sir.
Colleagues, we have come to the end of our time. I would like to thank Mr. Fadden for spending time with us. We certainly appreciate your directness and imparting what information you have.
Joining us by video conference for our next panel is J.M. Berger, Nonresident Fellow at the Brookings Institution in Washington, D.C.; and Haras Rafiq, Managing Director, Quilliam Foundation in the United Kingdom. Welcome.
I understand that you each have an opening statement. Mr. Berger, I would invite you to begin, followed by Mr. Rafiq.
J.M. Berger, Nonresident Fellow, Brookings Institution: Thank you for having me. I've been asked to discuss the role of terrorist media and propaganda, and I will give a brief overview of that.
There are three primary functions for terrorist media. The first is recruitment. With the case of ISIS in recent history, this takes place on what we call a peer-to-peer basis, meaning one individual reaches out to another individual, the first individual being involved in a terrorist group seeking to recruit the second.
The second is propaganda. This involves putting out a message that is generally radicalizing that represents the group's political views and advances an image of the group.
The third is manipulation and provocation. The third element often gets short shrift when we talk about terrorist media. The object of terrorism is to manipulate political bodies and political publics into taking actions that the terrorist group desires. That may not always be the action that was explicitly discussed in the piece of terrorist media.
The scope of terrorist social media has grown rapidly over the last couple years, primarily driven by ISIS, which has an extremely organized presence on social media. For a study I did for the Brookings Institution, we set out to try and measure the size of that social network on Twitter. As of last fall, we found about 40,000 accounts that were actively promoting ISIS in one way or another on Twitter.
That has changed since then. Twitter has undertaken a program of suspensions, mostly based on user reporting, and those suspensions are having some effect on the network. The current size of the network I would roughly estimate is between 20,000 and 30,000 accounts, probably on the lower end of that spectrum. About 10,000 of those accounts are in a constant state of churn, being suspended by Twitter and the users opening new accounts after they are suspended and then are suspended again.
ISIS has been taking countermeasures to try and get around these suspensions. Some of them are fairly effective, some of them are not so effective, but they are pushing back. Some of the benefits that the initial wave of suspensions created have been set back a bit. Overall, the environment under which ISIS is under pressure on Twitter has resulted in a diminishment of its effectiveness.
Twitter is a focus of these discussions frequently because it is one of the easier platforms to measure. You can collect a great deal of data about users in a timely way and analyze social networks in a way that is much easier than other networks.
ISIS does have a presence on other social networks, as do other extremists, everything from Facebook to Instagram to Tumblr to YouTube. Each of these has its own particular characteristics and qualities, but they're more difficult to measure. It's easier to talk about this in the Twitter context, but that doesn't mean Twitter is the primary or sole owner of this issue.
A number of concerns come out of this in terms of approaching the problem of the use of social media and online media by terrorists who recruit, radicalize and provoke. There's a mix of public sector and private sector concerns. A social network such as Twitter or Facebook is, in some ways, a peer-to-peer communications device. It's like picking up the telephone. You can call a friend, talk to a friend. In the case of social media, you can talk to a group of friends at one time.
At the same time, there's an element of broadcasting to it, and that is where the public debate tends to become more acrimonious. In addition to simply using this as a communications tool among individuals, you can also broadcast a message to large numbers of individuals.
In the United States, the law currently applies to social media companies as if they were telephone companies. The peer-to-peer kind of usage is what currently dictates liability and the government role in regulating social media. However, those laws were written for telephones. They were written for one-to-one communications, primarily. They were designed to relieve the telephone company of responsibility if somebody picks up a phone and calls a contract killer and orders a hit.
The laws, as they exist, are not really current. There are a lot of issues for companies that are extremely complex. Companies may have some liability for allowing terrorist content on their platforms. At the same time, platforms like Twitter or Facebook are open to the public and have hundreds of millions of users each. It's extremely difficult to police these networks.
The companies also feel some obligation to free speech. They feel that their platforms are there to empower communication. They see the good that can come of empowering speech on these platforms, and they also see complications in how we crack down on this. If you want to take ISIS supporters off of Twitter, we have already seen the journalists and analysts, people who are working against ISIS as researchers, get caught up in that and have their accounts suspended. A lot of these issues are making it complicated to craft a coherent response that expands the public sector and private sector concerns about this.
In terms of the bill at hand, there are a couple of points we can talk about that may help inform what should be done about this on a government level. The first is that, certainly, there is a limit on free speech as far as promoting violence, and typically that has been interpreted very narrowly and very specifically. The bill, as it's written, discusses promoting and advocating terrorism, which is a much broader issue and it gets complicated because of the political dimension of terrorism. One person's terrorist is another person's freedom fighter, as Twitter's executives have said, and while that is to some extent a simplification — nobody thinks that ISIS isn't terrorist — there are going to be groups that fall into a grey area when we start to open this box.
The second is organizational activity versus private activity. ISIS is good at blurring the lines on this. There are thousands of users supporting ISIS who are organized under a loose hierarchy and perform specific tasks to help the network promote its propaganda. The easiest one to wrap your head around is that there are about 2,000 accounts that when a piece of ISIS media comes out start tweeting it repeatedly in very short succession to get the hashtag to trend to try to get it out in front of as many people as possible. These people are working as part of the ISIS organization, whereas other people who may post extremely similar content might be working as individuals. They might be somebody who just sees this and says, "This is cool; I want other people to see it," for whatever reason, and it's very difficult to distinguish between those things. You can do it with analysis, but analysis is not a 100 per cent game. You can't do a social network analysis that will give you a perfect solution to this.
I want to close with some thoughts on the U.S. experience in the wake of September 11 as it applies to adding new government powers. The first is, fundamentally, I think elements of this bill are pointed toward the criminalization of speech. I think that's a grave step for a democracy to take. It needs to be carefully considered and calibrated if it's going to be done. It's a serious step. It's not a casual decision.
Secondly, I think there's a question about whether the law, as it's written, distinguishes between expressing an opinion and working for the ISIS agenda. It's not clear to me whether somebody saying "I think ISIS is good" is going to be subject to legislation in this case, or whether they have to be doing it as part of the ISIS organization and promoting a specific agenda or promoting a specific violent aspect of ISIS. For instance, ISIS recently released a video recruiting doctors. It's not advocating violence but it is supporting a terrorist organization. It's not clear to me where something like that would fall within this spectrum.
Third, you should remember that anything that we do as a response to ISIS — and it seems to me that this is certainly coming up in response to ISIS — will have application to other groups, whether they are other terrorist groups, domestic or foreign. When you create a precedent, it's going to apply to something other than the original problem it was pointed to, and I think it's worth remembering that.
Finally, I would just say in terms of the American example, after September 11, we passed sweeping powers through government to fight terrorism, including the Patriot Act, and expanded surveillance activities by the NSA. I think 10, 15 years later, we're looking back at those things and experiencing buyer's remorse. You need to think about how these powers will linger after the immediate problem is solved or addressed — it's not likely to be solved any time soon — and what the view of the public and the view of government will be down the road. It's easier to create these powers than it is to rescind them, it seems to me.
Thank you.
The Chair: Thank you, sir.
We will move to Mr. Rafiq. Please proceed.
Haras Rafiq, Managing Director, Quilliam Foundation: Thank you, Mr. Chair, and the esteemed members of the committee. I want to talk about some of the experiences we've got here in the U.K. I was part of the government task force that came up with preventing violent extremism in 2005-06. I want to talk about the different parts of combatting violent extremism, the sharp end and the soft end, look at where this bill fits in, look at the radicalization processes and make general comments on some aspects of the bill.
I heard 15 or 20 minutes ago a little bit about radicalization. This bill, make no bones about it, in my 11 years of working in this field as a practitioner, a government adviser and now the Managing Director of Quilliam, an established think tank in this area, will not combat radicalization. I don't think this bill is designed to combat radicalization.
There are two very clear parts of the combatting violent extremism strategy. The first part is when somebody has been identified as showing support, sympathy, empathy or direct support for groups such as ISIL, al Qaeda, Boko Haram, et cetera, there needs to be some form of disruption, interruption and some sort of intervention as well. This particular bill only provides the first two but does not provide any form of intervention.
The other part of combatting violent extremism is how Canada as a society prevents people from going down the pathways of becoming radicalized Islamist extremists in the first place. President Obama made a wonderful speech a few months ago where he actually said there was an extremist ideology at play, but he refused to name that extremist ideology. I certainly want to name that extremism ideology: It is Islamism as a political ideology underpinned by Wahhabist/Salafist theology. If you don't take the lead in identifying this ideology, other people will, and this will create more polarization in our societies and communities.
The problem here is how we then stop people from being radicalized. How do we build the resilience? Really, that's what the larger part of combatting violent extremism has to be all about. If we look at some of the pathways, and there are by no means one-size-fits-all in terms of recruitment, and certainly the online mechanism, as my fellow panellist talked about, is the case of moving the recruitment process from the mosques and the street corners, as we saw in the 1990s and post 9/11, onto the more online space using social media. The pathways are still very similar. There has to be some form of general grievance, partial grievance or perceived grievance, which has to be manipulated by charismatic recruiters, online and offline, that will look at the ideological, intellectual, social, emotional and spiritual aspects of the narrative and conditions of these grievances and then try to provide these people, through a lens, some solutions.
These solutions more than often fit into believing in a utopian Islamist caliphate, struggling to build this caliphate and buying into this caliphate as a cure for the grievances that the individuals face, and then underpinned by the Salafist theology that says: "Not only does God want you to do this, you can only be a Muslim if you do this and God will reward you for doing this."
Then, of course, we have mental health issues and revenge as well.
This bill just focuses on the hard end, the end where people are buying into the solutions, activities, sympathy and support, and then trying to disrupt and intervene in that area.
We will never, ever eradicate radicalization and build resilience in our communities unless we have hand-in-hand with this bill ideological assessment, rehabilitation and de-radicalization. That is something that's missing severely from the strategy that I'm seeing coming out of Canada, North America and parts of Western Europe as well.
Going back to the bill itself, I think there are some interesting parts and aspects of the bill that I think are quite encouraging, for example, in Part 1, information sharing between the public institutions. One of the biggest problems we've found over the last 10 or 11 years is that each government department, different government agencies and different governments around the world don't share information as much as they should. We do find that in some cases, one government agency may be talking to the very people that are fuelling radicalization and extremism whilst another government agency may be looking to try to build up a case to arrest them, charge them and go through a due process.
I think there are some issues around civil liberties. I think there are some issues around freedom of speech, as my fellow panellist mentioned. One thing we have to be careful of is that we don't try to ask Internet companies to try and do things we wouldn't do in the real world. We have a very esteemed tradition of free speech, to be able to be radical, if you like. It's being radical in many ways that earned women the right to vote and allowed civil rights in some parts of the U.S. for people of ethnic minorities.
I think we have to be careful that we don't get into the realm of thought police. I think there are some aspects of the bill that can actually start to encroach on that particular area.
We have to make sure that this particular bill, or any legislation that we use, doesn't give fodder to people who would use it as a tool for adding to grievances and for manipulation and radicalizing individuals and youngsters around the world, especially Canada in this instance.
Already there are people trying to use this particular bill to actually try to build amongst Muslim communities — and I say "communities" rather than the "community" because there's more than one particular type of Muslim community, even in Canada and around the world. Already, people are trying to use this as a tool to say, "Well, the West doesn't want you. Canada doesn't want you. Nobody understands you. You're being vilified. Come and join our global Muslim ummah gang and we will afford you all the things you really deserve as an individual and can only get by joining our group or our gang."
I think we need to be careful that this bill doesn't get us in the realm of making arrests and then having secret trials. My understanding of the bill in talking to some police officers from Canada over the last few weeks, their fear is that there may not be many or sufficient numbers convictions, therefore adding fodder to the whole process of this bill encroaching on social liberties and giving more fodder to Islamist recruiters.
Finally, before taking questions with my colleague, I want to say that Canada and the rest of the world cannot legislate our way out of this problem. Legislation is important. Of course, new bills are required, new legislation is required to combat the new threat that we face that is evolving at a very rapid pace, but we must have that hand in hand with all of the other things that we must do collectively within our Western societies to prevent radicalization and to give our youngsters the best chance, once they may go down these pathways, of coming back and becoming fulfilling and positive, contributing members of our society.
Senator Runciman: Thank you, Mr. Rafiq and Mr. Berger, for appearing before the committee today.
Mr. Rafiq, you talked about combating radicalization and a number of initiatives that you felt could potentially be productive. I missed it if you mentioned it, and I know you've talked about this and I saw it on your website, the importance of integration as a tool in countering Islamism. Could you talk a bit about that? Also, what research has your organization done in terms of how successful those integration efforts have been in places like the U.K. and France, for example?
Mr. Rafiq: I mentioned the grievances that the charismatic recruiters will use. One of the problems we're seeing now, which we never saw in my generation — I turned 50 last week and was born in the United Kingdom. When I was younger, I went to school and lived in an area where we were only 5 per cent of the population, and we were never, ever monitored and measured by our faith. Faith-based identity politics did not exist when I was younger.
But unfortunately now we are seeing people who are living in what I would call ghettoes. There are people who will go to school where there will be predominantly 99 per cent Muslim Asian background. If they go to university, predominantly Asian Muslim background, go into work, et cetera, living and working with family businesses and having customers that are predominantly Muslim or Asian and they don't have a clue how to actually integrate with the wider society.
Then when they see that the wider society is fearful of certain particular people within our communities that may be and are causing problems for the wider community, they don't actually understand why they're being singled out. I don't believe that they are being singled out, but I think the perception is they're being singled out, and that perception in some cases is created.
I think integration is very important, but there is one thing I want to put to one side. Some people believe that lack of integration and lack of education are key drivers towards radicalization. A study done by the Henry Jackson Society in the U.K. of convicted Islamist terrorists shows that 47 per cent of convicted Islamist terrorists in the U.K. went and had higher and further education, and nearly half the Muslims were integrated at one stage or another.
So, yes, I think integration can be and is a problem for some, but it's not the only part. The kind of work we've done is we've tried to move away from interfaith. People talk about interfaith. If I can be candid, I have been in interfaith forums for the last 11 or 12 years, and to me interfaith sometimes can seem to be where a number of people sit around a table and say how wonderful we all are and afterwards nothing happens.
What we try to do, and where we are seeing the best results, is when we move that from interfaith to inter-culture. Get people from different religious backgrounds and different ethnic backgrounds doing things together, working together, use music, the arts, football, all of the different things we have as a resource and get people within our communities, both Muslim and non-Muslim, doing things together. It's very difficult to hate the other if you actually know the other and are doing something with the other.
Senator Runciman: You talked about ghettoes, and I'm not sure you gave us an answer in how to deal with that. It's not just in the Muslim community. If you want to describe communities living together essentially in large, metropolitan areas, we can reference Chinatown in Toronto. There are various communities. We don't have the problems coming out of those communities that we do with some of the Muslim communities in certain countries.
We've had significant populations in the U.K., France and other European countries over quite a number of years now. If you're talking about integration, obviously whatever initiatives are under way are not having the impact we would all hope they would have.
You talked about schools as well. I suspect you've heard of project "Trojan Horse" in the United Kingdom?
Mr. Rafiq: Absolutely.
Senator Runciman: Regarding the use of schools as radicalizing agents. We've heard some allegations made about learning centres in Canada.
Trying to tie this all into your good suggestions to the committee and to the government, how do we address these kinds of specific challenges?
Mr. Rafiq: First of all, we tackle the ideology head on. You mentioned that there aren't these problems in other communities where there are people from ethnic minorities. You're right. There is an Islamist ideology at play that tells people that it is their duty to belong to this global Muslim ummah and fight the other, hate the other, decapitate the other, go out and join other groups like ISIL because it's their religious and political duty. This is an ideology that's at play.
When people have these grievances, when people are not integrated to some stage, there are a number of different facets to this ideology. At the base of it is the preparation of something called al-walla' wa-l-bara', which is loyalty and enmity for the sake of God. This is a Salafi form of indoctrination that says that if somebody practising is Islam differently from you, or even non-Muslims, you have to fight them. If you can't fight them, you have to debate them.
Senator Runciman: How do you fight them? We all agree, but how do you fight them?
Mr. Rafiq: This is what they say. They say that you have to fight anyone who is not a Muslim, and if you can't fight, you debate them, and if you can't, you hate them.
Senator Runciman: We understand that. I'm talking about the problem of radicalization in schools as an example. How do we cope with that? How we deal with that as a country, as a government? You're stepping on toes again, as you suggested, and we are offending more people by trying to intrude into those kinds of areas. How does any government approach those very sensitive issues?
Mr. Rafiq: The first thing is don't treat it as a religious issue, and I'll tell you why. Islamism is a totalitarian, fascist political ideology. Treat Islamism in the same way as we would treat fascism; treat it in the same way that we would treat racism.
In our schools, we know how to behave if somebody is being racist, sexist or homophobic. Schools are a great place for primary prevention.
Senator Runciman: They have to be complaint-based, then. You're not talking about CSIS having people in the learning centres and those sorts of things. You're talking about if a student in a public school has a complaint against a teacher, they'll go to their parents and the parents will go to officials. But we're not seeing that sort of response occurring in the learning centres or in these areas.
It ties again into integration, getting the community more involved in trying to fight this. We can't do it on our own. We have to look to the community itself to play a more proactive role.
Mr. Rafiq: We are certainly getting it here in the U.K. We certainly are getting lots more reports. I was called into school four years ago, where a group of 9-year-olds — 50 per cent Muslim, 50 per cent non-Muslim — had been getting messages that they have to go out and beat up non-Muslims. They didn't know why. They just knew that they had to go and beat up the kuffar. That's what they called them. We were called in to mentor these youngsters' critical thinking.
In the U.K. right now, a new CTS bill has just been passed. That means it's now mandatory and statutory for all schools to act in primary prevention care, in the same way that they would do if somebody was being racist. It has to be done now. There is a bit missing. The government hasn't actually told them how to do it. That, I guess, is our role and other people's role. But it's starting. People in the U.K. are starting to realize that this is a problem within our mainstream society.
Senator Runciman: Does that include private schools?
The Chair: Senator Runciman, I'm going to go to Senator Mitchell and then Senator Dagenais.
Senator Mitchell: Thanks to both of you. These have been excellent presentations. I know Senator Runciman focused on Mr. Rafiq. My question will address something that both of you alluded to, and I'm looking for solutions. I think the phrase that Mr. Berger used was that you have to be very careful with the criminalization of free speech, and Mr. Rafiq backed that up by talking about the danger of thought police. That is an issue in the controversy and the debate around the bill, about the broadening of terminology such as "terrorism," in general, and the advocacy and promotion of "likely terrorist act" rather than "certain" or some certainty in it.
I know this is a difficult question. What kind of wording, though, is used in your respective legislation to avoid the criminalization of free speech or the creation of thought police in this context?
Mr. Berger: In the United States, we don't have anything comparable to this. What we do have is a statute that deals with providing material support to terrorism. What that involves is providing a service, up to and including yourself as a member or fighter of a terrorist group, to a listed, designated terrorist organization.
We have had one case in which that statute was applied to speech. I think it was done so unnecessarily. The case was an individual named Tarek Mehanna, who was based in Boston. He had lied to the FBI as part of an investigation. He had been asked about another colleague of his who was a terrorist group member. He lied to the FBI, and there was a basis to prosecute him there.
Instead, the government chose, for whatever reason, to add to that promotion of terrorism as part of the material support charge. For instance, Mehanna and some of his friends had translated al Qaeda and Iraq videos and re-posted to the Internet translated jihadist videos.
I don't think it was necessary to take that approach in this case. Overall, I think taking part in an organized activity at the direction of a terrorist organization is probably an adequate threshold for criminal investigation and criminal activity.
Mr. Rafiq: I would agree with quite of lot of what Mr. Berger said. In the U.K. we have the Terrorism Act of 2006, which says very clearly that anyone who is preparing or showing material support for either carrying out a terrorist act or joining a proscribed terrorist entity has broken the 2006 Terrorism Act.
On top of that, we have incitement to hatred. Nobody has been prosecuted under the incitement to hatred bill yet. We have a number of organizations that have been proscribed, but proscribing alone doesn't work. Those pop up in a different name, just as they do, as Mr. Berger mentioned, on Twitter and other social media spaces. We don't have everything right in the U.K. either, but we work on proscribed organizations and showing material support for either a proscribed entity or for terrorist activity.
Senator Mitchell: My next question is a very sensitive one. It's difficult to actually frame it. It's for Mr. Rafiq, in particular, and I would like Mr. Berger's opinion too.
You have been very explicit about specifying an ideology: Salafism. My question would be captured in two ways. One is that, on the other hand, you're saying you have to be very careful about isolating groups and that that can create revenge or an isolated feeling that leads to radicalization.
The other question is the prevalence of the ideology's impact. The way I would capture that — perhaps it's a bit convoluted — is to say: Are you saying that all Salafists, for example, are radicals, or are you saying that all radicals are Salafists, or are you saying either of those two things? They are different sized groups in each of the three cases.
Mr. Rafiq: First of all, not everybody who is a Salafi will actually be a terrorist. That's the starting point. But every single person who has been an Islamist terrorist has been a Salafist in terms of their theology. The reason for that is that in the experience that we have in both de-radicalization and in actually analyzing the pathways to radicalization, people who are born in a Salafist household within the West, usually by the time they reach their mid-twenties, will find their place in society. They will either live opposed to society — they will hold views that perhaps you and I and the rest of the people here would not particularly agree with, but they have the right to hold those views. They would possibly live in isolation. They would possibly dress in a particular way. They would refuse to vote. They would refuse to partake in many things. But they're not necessarily going to be violent or terrorists.
Then there are those who will actually leave the faith; and then there are those who will be a mixture of the two — one at home, one outside.
The problem we have and the problem we've seen is that the overwhelming majority of people in the U.K. and around most of the West that we've measured, the people who become Islamist terrorists are people who convert to Islamism as a political ideology. What is Islamism? Islamism is to enforce a particular version of sharia law on somebody else; and jihadism is to do that by force, by setting up an Islamic state; and the theological justification for Salafism is people who converted to this from either other strands of Islam or from other faiths altogether.
By no means are the overwhelming majority of Muslims both Islamist or Salafist; they just seem to be the noisiest.
Mr. Berger: In 2013, I published a study on White supremacist use of Twitter. One of the things we found as part of that study is that the bulk of the material these guys were talking about and tweeting about online pertained to conservative politics in the United States — to the Tea Party and the Republican Party. This did not ignite a debate about whether we should tackle the problem of ideological racism from the perspective of these guys being conservatives. I think it is useful to keep that in mind when we're talking about this in a religious and ideological sense.
My perception, particularly of ISIS — and there's a range of extremist groups we can talk about — what we see is a millenarian group, which means it's out to build a kind of utopian, perfect society that comes at the end of history; and that it's an identity group, built on the exclusion of people who do not share its particular identity, which happens to be Muslim.
So we don't talk about the Ku Klux Klan as a problem that has to be approached from the level of people being White. We talk about it as a subset of this. It's related to mainstream issues, racism in society and civil liberties, but it is not necessarily the most useful frame to talk about it in.
I think as narrowly as we can define the group, we can be more specific about what its group dynamics are, how they interact and how they recruit. When you look at millenarian groups, all of these historical groups over thousands of years that have believed that the world was about to end and a thousand-year reign of peace under a particular ideology was going to arise, there is a lot more commonality between what ISIS does and what those groups do than there is between what ISIS does and what other Muslims do or even Islamist groups. I lean toward a more narrow interpretation of this.
Senator Mitchell: That is interesting. I have many more questions but I know we're short of time.
[Translation]
Senator Dagenais: I have two questions for Mr. Rafiq. First of all, can you please give us examples of what you know about foreign funding in Great Britain to support jihadist activities and groups such as the Muslim Brotherhood?
[English]
Mr. Rafiq: One of the things we have noticed for decades now is that especially Islamist organizations such as the Muslim Brotherhood have been receiving funding from countries in the Middle East, such as Saudi Arabia, Kuwait, Qatar, et cetera. Something we are seeing more so now is that countries such as Saudi Arabia and Kuwait have stopped their direct funding of a lot of these organizations, not because they have had a form of spiritual epiphany, but because they realize these groups are threatening their own legitimacy in their own countries.
Some of the foreign funding that we're seeing from countries has decreased, but if you look at the individuals from some of these countries, especially countries such as Qatar, we're still seeing a significant amount of funding coming in and being routed through various NGOs and charities, not so much for the Islamist organizations but more for the theological Salafist groups.
Groups such as ISIS, who have in the past been supported through a proxy sectarian war by some of these Middle Eastern countries, aren't directly being supported — certainly there isn't evidence now — by a lot of these Middle Eastern countries. It's more their own revenue generation and individuals who happen to be in the Middle East and around the world.
[Translation]
Senator Dagenais: Because of the importance of these activities, such as funding, among others, what actions are taken when this becomes known?
[English]
Mr. Rafiq: The reality is that there aren't sufficient laws in place. I'm not saying there aren't sufficient activities in place. Often, this money comes in through NGOs and charities. There are often charities being examined for being charities that will spread this particular type of ideology and that will have had funding from countries around the world, but our Charity Commission seems to be quite toothless here in the U.K. I don't know what it is like in the U.S., but here we don't seem to have enough adequate processes in place to try and prevent that from happening.
If anything, I think that we are now seeing just as much money being spread through various other forms and other mechanisms through NGOs as we saw in the past, not necessarily for ISIL, but for other organizations where sometimes people mistakenly think that non-violent extremists are the people best suited to combat the violent ones. The problem with that is that the non-violent ones will never, ever take people back to a place where they will disavow the whole ideology or theology.
Senator Beyak: Thank you, gentlemen.
Mr. Rafiq, I appreciated your description of Islamism. That really clarified for a lot of people the political side to what people call a religion.
I noticed in your work that you said the declaration of the caliphate by ISIS with Abu Bakr al-Baghdadi as its leader will place Islamists in a quandary. What do you mean by that? How do you define "Islamists" — more than you already did for Senator Mitchell? And can you expand upon your views about the caliphate's ability to increase recruitment?
Mr. Rafiq: That was an article that I wrote shortly after ISIL declared its Islamic State. That was on the basis that for decades now various different Islamist organizations have been preaching the doctrine of the utopian Islamist caliphate. There have been groups such as Hizb ut-Tahrir, the Muslim Brotherhood, Jamaat-e-Islami, and the list goes on and on. I'm not saying we should ban these groups. I am saying they have been spreading this doctrine unchallenged.
When Abu Bakr al-Baghdadi announced this particular caliphate and the so-called Islamic State, there were a number of people who believed in that concept and who had that particular doctrine rammed down their throat for decades wondering what it is they should be doing. Should they be leaving the U.K., France and Canada to join this caliphate now that it's been declared? I believe that some people did. We have the case recently of the three girls in London, in Bethnal Green, where the father of one of the girls, who was genuinely remorseful and wanted her back, was crying. He had her teddy bear and was pleading for her to come back. What we didn't know until later is there is video footage of him taking her as a 13 year old — she went when she was 15 — to Islamist marches where she was being indoctrinated into this utopian Islamist caliphate.
So that article was looking at that time into what other Islamist organizations were going to do. We have seen what a number of them have done. ISIL didn't exist in a vacuum; it came from al Qaeda and from other groups.
What we are seeing now is that the Islamist narrative is still there, but there are disputes about who should be the caliphate and what tactics should be used to ultimately get to that utopian Islamist caliphate.
With all of these Islamist caliphates, it's clear that they want to do three things. First of all, they want set up a utopian Islamist caliphate and govern by their narrow version of sharia law. Their narrow version of sharia law allows for the stoning of apostates, for the stoning and killing of adulterers and for killing other people who are not the same as them.
Secondly, they want to spread that caliphate around the world because they believe in the revival of the lost glory days of the Islamic caliphate and they believe in spreading God's rule, in inverted commas, around the world. The only difference is my caliphate is better than your caliphate or how do we actually get there?
Senator Beyak: Thank you very much. Excellent.
Senator Jaffer: Thank you to both of you for your presentations, which I'm sure all of us found very useful.
My challenge, and I'm asking both of you this question, is that I am a British subject. I have spent a lot of my time in Britain as a young person. I still have lots of relatives in England and know very much about the programs and the integration that exists in the U.K. at the moment. Unfortunately, those same programs do not exist in my country here, and so there is a real challenge of people feeling not connected. Even young people who are not going to go to Syria or go to work with ISIS feel unconnected.
We have things like reciting the citizenship oath. You can't recite the oath until you remove your hijab, or there are several incidents where public officials told Muslims to go back to where they came from.
You both have mentioned this. The problem I have with this bill is it's not balanced. It is talking about threats, but it is not talking about a substantial group of people who are being sort of pointed at. A number of Muslims who live in this country feel very vulnerable at the moment, and I'd like both your comments on this.
Mr. Berger: A rule of thumb I bring to these conversations is we should do the right thing because it's the right thing and not because it's countering violent extremism. On the question of integration and on the question of civil liberties for Muslims, we should do the right thing because it's the right thing. We should create an environment that's welcoming to people of different faiths and people of different cultural and racial backgrounds. It's great if that has an effect on violent extremism.
If we do these things as a result of our fears of violent extremism, it undercuts the whole point of it. It says to people, "Well, we're scared of you, so we're going to try and pacify you." I think it's a great conversation to have, I'm fully for it, but I think it's separate from the conversation about how to stop these violent movements.
Your comments on the size of this movement are relevant. I have what I call the "Berger rule of radicalization," which is that on average about 15 per cent of any population are jerks and less than 1 per cent are violent jerks. You're always going to have a small contingent of people who are willing to take up violence in the name of their identity and in the name of something they believe in. We need to scale our responses to that.
What's difficult right now is we're living in an age where technology allows individual people to have a disproportionate impact. One person with a gun can create a tremendous amount of chaos and a tremendous amount of fear and media coverage. In the case of Boston, where I live, we had two guys with bombs that were built using information that was downloaded from the Internet who were able to send the city into chaos for a week.
Part of what we're adjusting to is the fact that this tiny minority of people can do more damage than they used to. Ultimately, that's why we talk about this problem. These movements are committed to using mass casualty events to accomplish their agenda. They have the ability to leverage very few resources and very small numbers to create very large headlines and potentially very large death tolls.
Mr. Rafiq: I think that's a very good question. I echo again what Mr. Berger said. He's absolutely right; it doesn't take a lot of people, it doesn't take a lot of resources to actually create mass terrorism in the global village we live in now. Two people undertook the Charlie Hebdo attacks out of millions of Muslims who live in France.
One of the things that I think is very important that we must do is to try to stop thinking of this as just a Canadian Muslim problem or a British Muslim problem or a Western Muslim problem. For the last 10 years, I've been seeing this as being referred to as a British Muslim problem or a Western Muslim problem. You're absolutely right that one of the things that does is it creates polarization. It makes one particular group of people, who happen in this case to be Muslim, feel under threat and another group of people, the larger part that is non-Muslim, feel even more under threat.
A very small number of Muslims are Islamists and Salafists. They will say that the West is at war with Islam. Well, the far right will say the same argument, rotated by 180 degrees, and say that Islam is at war with the West. This polarization, if we're not careful, is going to get worse and actually help to drive more young Muslims into the hands of Islamist recruiters.
I think it's very important that we get Bill C-51 right. It's important that we don't see the Muslim communities in Canada purely through the lens of extremism, radicalization and terrorism, and work on the other parts of society because it's the right thing to do. Those are things like social cohesion, integration, getting people into jobs and getting them an education.
I'm not quite sure what sort of schemes you have there in Canada, but when there's more time, I'm certainly happy to talk offline with you or anybody else about these things. However, I think we must stop turning this into purely a Canadian Muslim problem.
The Chair: We are coming to the end of our time. I'd just like to ask a follow-up question to Senator Jaffer's question. It's to you, Mr. Rafiq. It has to do with the U.K. prevent program. I'd like to hear your comments on that because that was implemented a number of years ago and I gather it's going through a number of changes. Perhaps we could conclude on that.
Mr. Rafiq: In the U.K., Preventing Violent Extremism was a program we came up with in 2006. In those days, the number of people who were actually sympathetic or empathetic or supporters of Islamist terrorism were very small. Preventing Violent Extremism was designed to prevent people from becoming extremists in the first place.
What about in around 2007-08 was we started focusing more on the sharp end, just focusing on what we do with people once they are radicalized: counter-radicalize them or de-radicalize them? For the last five or six years the U.K. actually hasn't had a policy or a published government strategy for preventing extremism in the first place.
We've had lack of consistency, lack of direction, different government departments not knowing what they're doing. We're having the same political debates in the U.K. now that we had 10 or 11 years ago when I was first involved, but I think there is some light at the end of the tunnel.
One of the things our current Home Secretary did say before Parliament was dissolved was that she and the Labour Party both agreed that they were going to get involved in looking at the softer end of prevention and looking at how they can repackage and market that to the wider public, because it hasn't been marketed well and it hasn't been done properly.
The Chair: Colleagues, I see we're coming to the end of our time. I appreciate the time our witnesses have taken out of their busy schedules. I'd like to thank you both for appearing.
Joining us now to discuss Bill C-51 are Mr. John Bennett, Executive Director of the Sierra Club; Dr. Pamela D. Palmater, Associate Professor and Chair in Indigenous Governance, Ryerson University; and Mr. Marc-André O'Rourke, Executive Director of the National Airlines Council of Canada.
I understand that you each have an opening statement. I would invite Mr. O'Rourke to begin, followed by Mr. Bennett and Dr. Palmater.
Marc-André O'Rourke, Executive Director, National Airlines Council of Canada: Thank you, Mr. Chair, and thank you to the committee for the invitation to appear this afternoon to share the views of the National Airlines Council of Canada with respect to Bill C-51 but more specifically on Part 2 of the bill, the proposed secure air travel act.
My name is Marc-André O'Rourke. I'm the executive director of the council. The NACC represents Canada's four major passenger airlines: Air Canada, Air Transat, Jazz and WestJet. We advocate for safe, sustainable, secure and competitive air travel to ensure that Canadians have the best and the most cost-competitive flying experience, both in Canada and abroad.
Collectively, our member airlines carry over 50 million passengers per year and directly employ over 46,000 people. The NACC member airlines have an unconditional commitment to provide their passengers with the highest level of safety and security. We recognize that safe and secure travel is a critical priority for all Canadians, and it's vital to our national security at large.
Bill C-51, and the proposed secure air travel act, is directly related to Canada's Passenger Protect Program, which is a key initiative assuring the security of air travel in Canada. Under the Passenger Protect Program, airlines screen travellers against the established specified persons list. Should a passenger's name match a name on this list, the airline will verify the traveller's identity and then inform Transport Canada of the potential match. Upon notification, Transport Canada will then direct the airline whether to deny boarding or to allow the passenger to travel.
Today, only an individual who is believed to pose a threat to aviation security can be put on the specified persons list. Bill C-51 expands the existing Passenger Protect Program so that individuals may also be included on the list if there are grounds to believe that the individual is travelling for the purpose of committing a terrorism offence.
Since I appeared before the House of Commons Standing Committee on Public Safety and National Security in late March, Bill C-51 has been amended to clarify proposed section 9 of the secure air travel act, which deals with the potential direction that the minister can give to airlines. We'd like to thank the government for addressing our concerns in this regard.
Currently, it's the front-line agents of our member airlines that are responsible for delivering the Government of Canada's decision, the emergency direction, to the individual being denied permission to travel under the program. In expanding the Passenger Protect Program's mandate, it's anticipated that the specified persons list may be expanded, thus increasing the frequency with which front-line airline agents will be faced with the prospect or potential of delivering to the person standing in front of them a no-fly decision. As you can imagine, that can be a difficult, delicate and potentially risky situation, given that the individuals before them have been deemed too dangerous to fly.
We continue to encourage the government to revisit the process for issuing this emergency direction to ensure the safety of the airline agent and the public in general. The NACC recommends that, where possible, the emergency direction should be delivered by a policing organization or government official. We'd also like to see increased police presence and support when the notification is delivered to the passenger.
Aviation security is intrinsically linked to public safety and national security. The National Airlines Council of Canada and our members support the need to update the Passenger Protect Program in light of the evolving nature of security threats, and we continue to support the program under the new secure air travel act.
Thank you for your time. It would be my pleasure to answer questions.
The Chair: Thank you.
Mr. Bennett.
John Bennett, Executive Director, Sierra Club of Canada: Mr. Chair and members of the committee, on behalf of the Sierra Club of Canada Foundation and our members and supporters, I would like to thank you for the opportunity to comment.
First, I'd like to acknowledge the terrible incidents that took place last fall here in Ottawa and in Quebec and share our deepest sympathies for the families. We are very much aware of the threats and support all appropriate measures to protect Canadians. However, we are concerned about Bill C-51 because it casts too broad a net and will very likely undermine the freedoms it is supposed to protect.
The Sierra Club Canada was founded back in 1892, making us probably the oldest conservation organization in North America. We've been active in Canada for over 50 years, and we have a number of chapters and groups across the country. We are a volunteer-led, democratic organization. Our members elect the board of directors in annual elections, and our volunteers work along with staff to preserve and protect our natural environment.
Although we employ a wide range of tactics to draw attention to important issues, it's a clear policy of Sierra Club Canada Foundation to only engage in legal activities. To my knowledge, no one has broken the law in the name of the club in the last hundred years.
Personally, I have more than 30 years of involvement in the environmental movement with international, national, provincial and local experience. Although I've worked on many issues, the focal point of my career has been energy issues, and that's taken me right across Canada. I have relationships and friendships with environmental activists and supporters right across the country.
As a Greenpeace campaigner, I have personally taken part in actions of civil disobedience in order to draw attention to important issues. In fact, my first action was designed to draw attention to the lack of security at nuclear facilities, and as a result of that action, those facilities are now much better protected.
I know the Canadian environmental movement very well. I know of no person or organization that presents a threat to the security of Canadians. There are times, however, where youthful expressions of frustration could be misconstrued and involve us in Bill C-51. It's also a concern that, because of the necessity to report if you're part of a discussion that could be considered terrorism, people could actually use that to discredit our movement. Someone could come to one of our meetings, which are practically all open to the public, get up and say something, and we're all now involved in Bill C-51.
Organizations like Sierra Club, with its 100 years of non-violence and commitment to democratic solutions, could easily find itself engulfed in secret investigations and interference in its lawful operations. I would suggest that this would not only be wrong but also a waste of important resources that should be applied to the real problem.
I'm sure you're going to ask me why I'm concerned, if Sierra Club of Canada Foundation is a law-abiding organization. Well, because it has already happened.
I call your attention to The Globe and Mail article of February 17, 2015 entitled "'Anti-petroleum' movement a growing security threat to Canada, RCMP say." It quotes from an RCMP document entitled "Critical Infrastructure Intelligence Assessment: Criminal Threats to the Canadian Petroleum Industry." Sierra Club is mentioned twice in the document, the first time in paragraph 4 on page 2. Because, like Prime Minister Harper, we believe climate change is the most serious threat to Canada and because, and I'm quoting here:
Research and analysis done in support of ongoing RCMP criminal investigations shows those involved in the anti-Canadian petroleum movement have an interest in drawing public attention to, and building recognition of, the perceived environmental threat from the continued use of fossil fuels.
What's wrong with that? Why are we being investigated as criminals because of that? Well, it goes on to tell us why. This ". . . has led to significant, and often negative, media coverage surrounding the Canadian petroleum industry."
So now we've been named in a criminal intelligence report because we've been advocating to take action on climate change, and that puts us within the scope of Bill C-51.
I know you think I must be joking. I wish I was. And we laughed this off at first. I was actually more concerned that the RCMP denies that climate change is happening and doesn't understand that there are actually challenges to policing as a result of climate change. We saw in Alberta, with the flood two years ago, the RCMP got in trouble for seizing weapons because they didn't have a method to deal with the problem caused by what could very likely be a climate change event. That's the kind of things RCMP should be thinking about in terms of climate change, not what I'm saying to the press.
This is a rambling document. It was mostly produced by reading things off people's websites and copying newspaper articles, but it's in a document entitled "Criminal Threats." The author makes no effort in the report to say that the Sierra Club has not taken part in any unlawful activity and certainly does not advocate it. Nor does the author offer any evidence for including us in the report, other than we have advocated for climate action like dozens of other organizations and many governments.
The RCMP prepared this report in secret. No attempt was made to contact Sierra Club or demonstrate any connection between our activities and any illegal activities or violent actions. I would suggest our name was used as a generic term for "environmental organization." And that's what concerns us.
We asked the RCMP for assurances that Sierra Club will not be swept up in a Bill C-51-empowered investigation based on this report, and received a stony silence. So I take that to mean that we could be.
In a free country where there are no secret police with the power to secretly disrupt operations of an organization or detain people without charge, this police report would just be a nuisance. We've had other reports like this in the past, and we have treated them like that. But in a country that empowers agencies like CSIS to secretly investigate and disrupt the operations of law-abiding organizations, it's a grave threat.
In the McCarthy-like world created by Bill C-51, one can reasonably envision Sierra Club Canada becoming the subject of a secret investigation just because we were mentioned in this report "Critical Infrastructure Intelligence Assessment: Criminal Threats to the Canadian Petroleum Industry." It could surely be used to help convince a judge to grant a warrant allowing secret investigators to infiltrate and/or manipulate our organization, breach our confidential database or use us as a tool to investigate others. We have identified this possibility and asked the RCMP to correct it, and as I said, they haven't changed it.
Environmental groups are not the only ones who question the petroleum industry in Canada. I'm sure most of you belong to organizations or have supported causes at one time or another. Do you think your records should be open to secret manipulation? We have a right to free speech and to associate as long as we act within the law. The state has no business interfering with those rights.
So, senators, the question for you is: Do you want to pass a law that could make criminals out of involved citizens like me?
Thank you very much.
The Chair: Thank you.
Dr. Palmater.
Pamela D. Palmater, Associate Professor and Chair in Indigenous Governance, Ryerson University, as an individual: Thank you. My name is Pam Palmater. I come from the sovereign nation of the Mi'kmaw in the East. I would first like to acknowledge the traditional territory on which we are sitting, that of the Algonquin Nation, which is one of the many sovereign nations with which Canada is allied and committed to maintaining peace in this territory. It is the only reason why we get to sit here today. These treaties and other agreements are constitutionally protected and form part of the foundation of Canada practically, politically, militarily and legally. Bill C-51 goes to the heart of this relationship.
Canada has already predetermined, through its ministers and others, that First Nations are "insurgents" and "national threats to security." This is one of the reasons why I'm bringing testimony today. In addition to the submissions I made in the house, which I've attached as appendices to what I'm going to be saying today, I'm going to focus on the nature of these treaties and exactly what's at stake with Bill C-51.
These treaties were not just about mutual respect, respecting our right to govern ourselves and our own laws. They were also about mutual benefit, but most importantly and for this committee today, they were about mutual protection. These treaties were about military alliances and legal obligations to protect one another and defend these territories. The two central tenets of the majority of these treaties was that there would be peace in this territory, defending our lands, protecting First Nations and settlers, and that we had a military and political alliance against all other aggressors. That's not a responsibility held unilaterally by Canada. It's a constitutionally protected joint responsibility and it is violated by this bill.
First Nations have fought in Canada's wars because of these treaties. First Nations have helped protect this territory and our borders from other nations because of these treaties. National defence, public safety and national security have been, first and foremost, a responsibility of First Nations in this territory since time immemorial and that has never ceased. The treaties confirm this.
Specific treaty provisions like the Treaty of 1752 with the Mi'kmaw Nation was specifically about the duty to protect one another, military alliance, and the Crown was to provide ammunition to the Mi'kmaw on an annual basis to this end.
The Treaty of Niagara was the same thing: military alliance, mutual protection and the provision of ammunition. Treaty No. 6 for the Cree was all about peace in this territory, military alliance, and $1,500 a year would be spent on ammunition to provide the First Nations for the defence of these territories. We're not just talking about hunting and fishing with treaties; we're talking about military alliances.
We agreed, nation to nation, that this territory would be a peaceful one. We agreed to keep each other safe, and despite the many aggressions by Canada against our people, we have kept the peace. Despite scalping laws, rape, torture and murder in residential schools, forced sterilizations, we have kept the peace.
Canada has turned the national police — the RCMP — and the army against First Nations. We have kept the peace. There are no greater allies that Canada can have in the war on terror than First Nations in this country. First Nations have shown that they will hurt themselves before Canadian citizens.
We are not the enemy, yet Minister Valcourt has publicly stated that our leaders are threats to national security. The Department of National Defence has called us insurgents and has a manual on how to deal with our dangerous activity.
This bill is too broad. It violates our basic human rights, Aboriginal and treaty rights and civil liberties. The Supreme Court of Canada said in Nolet that no valid legislative objective, even one of public safety, can sanitize Charter violations. And this bill contemplates Charter violations before we even know what the alleged crime is.
There are no stronger allies to Canada than First Nations, and we've given our lives to prove that. Yet Canada, with this bill, has failed to consult with us on our core Aboriginal treaty and inherent right to jointly manage national defence. To that end, I have several recommendations in addition to my previous submission.
One, the bill is fatally flawed and must go back to the drawing board for proper consultation with First Nations.
Two, there must be an independent body to report on the extensive level of surveillance against First Nations in this country and our treatment as terrorists as opposed to treaty partners.
Three, there must be a First Nations special advocate or an amicus of the court to make sure that Aboriginal treaty and Charter rights are upheld during secret court processes for warrant applications and wiretaps.
Four, there must be a joint national study on racism and discrimination in the justice system that has been identified by previous commissions — the royal commission, Donald Marshall commission, Ipperwash inquiry and the Manitoba justice commission — that deals with the infection of racism in the entire justice system that can and will impact Bill C-51 should it be passed.
Five, the ministries of public safety and national defence must include a like First Nation body to ensure joint decision making and consultation on all matters of public safety, emergency preparedness and national defence. The First Nation representative should be appointed by themselves, and a First Nation representative should be included on any oversight body in relation to intelligence services.
Specifically to the next draft of Bill C-51, there needs to be a preamble which acknowledges the treaties and First Nations' sovereignty and specifically acknowledges our joint constitutionally protected mandate of national defence in this country, provisions which detail decision making and reporting with First Nations on all of the issues covered in Bill C-51, very specific clarifications that anti-terror does not mean anti-First Nation and anti-First Nation governance and activities.
There must be an assurance that no information about individuals or First Nation communities be given to third parties, the private sector or foreign governments any more from this point forward; specify that sharing of information relates to anti-terror only and not this unknowable, mystical generic threat to national security.
Those departments specified for sharing information must have specific exclusions: Indian Affairs, Health Canada, Fisheries and Oceans, the environmental agency, NRCan and CRA must all be excluded from information sharing, as those are the ones primarily involved with First Nations.
All offences must be specified. There can be no general offence of anything that can't possibly be known.
There must be specific attention to curtailing any sweeping electronic surveillance.
Any new laws must contain a mental fault element.
And there must be a maximum use and reference to current laws versus duplicating or expanding unknowable laws.
Thank you.
Senator Mitchell: Thank you very much to all three of you. Very compelling presentations and I really appreciate them.
My first question is to Mr. O'Rourke. When you say front-line workers, for example, would that be the ticket agent where I go to check my bag? So that person, he or she, might well be the first person who will tell a restricted traveller that could be going somewhere to be violent, ergo, is perhaps violent, that they can't get on that plane?
Mr. O'Rourke: The check-in counter, exactly. That's where the interaction would happen with the passenger.
Senator Mitchell: This is a particularly new problem because this bill contemplates not allowing people to fly out of the country for violent purposes.
Mr. O'Rourke: It's new in that we may see more of these.
The Chair: You're already doing it.
Mr. O'Rourke: It is happening, yes. This does happen.
Senator Mitchell: But it's making you very uncomfortable.
Mr. O'Rourke: It can be, yes.
Senator Mitchell: My next question would probably go to Ms. Palmater and Mr. Bennett. The bill originally had "unlawful advocacy," and I believe that's been taken out. But I also believe that it still leaves a gap, and that is to say that you can do something unlawful that is perfectly non-terrorist. In fact, the gap really is absolutely, perfectly acceptable civil disobedience within a democratic society, which is a hallmark of a democratic society, provided that you're prepared to take the consequences within the rule of law for having done that. Could you comment on that?
Ms. Palmater: I'm glad you asked that question. It's a really good one.
The fact that they are intending — it hasn't been passed yet, I understand — to take out the "unlawful" part does not address the whole other range of activities contemplating the disruption of the economy, for example, where a First Nation makes a very targeted strategy in partnership with others to make sure a pipeline doesn't go through by legal means, by civil disobedient means, by the exercise of their international rights — all of those things that might not fall under protest, might not fall under dissent, because often times "protest" is very narrowly defined.
There's a problem with wording, and Justice Canada lawyers will know this very well. It's poor wording. It doesn't encapsulate all the ways in which we are already criminalized. Look at the number of people who are already over-imprisoned, who are charged, who are arrested, who are assaulted, and Bill C-51 hasn't even passed yet.
My submission to the house was very specific about those things, not just the extent of the surveillance, but look at the number of people who are considered criminals for what they do now. Minister Valcourt has already said that we are threats to national security, and DND has considered that our activities in advocating for our rights are a level of insurgency, so this is before Bill C-51 even passes.
Unless there is very specific language specifically addressing the activities of First Nations, we will be captured under this.
Senator Mitchell: The implications of the treaty struck me some years ago when somebody said that a treaty means nobody was defeated. It was an agreement nation to nation not to fight anymore. It's a powerful concept.
I have another question that I will use as an example, and it will apply to the Aboriginal case as well. Mr. Bennett, one of the things you're talking about is the pervasiveness of the ability to get information. I was just thinking of a situation, and you might want to comment on this, where the department of revenue could do a search of all the donors to the Sierra Club and say that because somebody from the Sierra Club unfurled a banner on the top of some government building — which they didn't — we should look at who is supporting this kind of organization. Is that how you see the implication?
Mr. Bennett: I think of it that way, too, but also when these protests and demonstrations are being organized, often some hothead will stand up and say, "We should go blow that up or we should do something violent," and everybody else says, "Don't do that." But under this law, as soon as someone starts talking about doing that, we're now all part of the conspiracy. It could be misconstrued. It could be that a provocateur is sent in to do that. If you're an oil company and you don't want us to protest and you want us to be discredited, why not send in a few young people to infiltrate the action and do or say things that will bring us under suspicion, and then we could end up under this big huge net?
It's just too wide. It's using a bulldozer to catch ants.
Senator Runciman: Mr. O'Rourke, I have more than a little sympathy for the situation of front-line airline staff. As Senator Mitchell said, you have to confront someone who could be extremely dangerous and tell them they can't get on a plane.
When we look at the airlines and look back at Air India, the shoe bomber, the underwear bomber and of course 9/ 11, the folks you represent certainly play very critical roles in terms of how we prevent this activity from occurring in the future.
Under the current Passenger Protect Program, you talked about contacting DOT, the Department of Transport, if someone pops up. Do you have real-time contact with the police? How does that process work? If you don't, I wonder why not.
Mr. O'Rourke: What I know is if there is a match, the first step is to check the passenger's documents and then notify Transport Canada.
Once you hear from Transport Canada, if the ultimate direction is to deny a boarding, I think it would vary depending on which airport, if there is police presence there and if it is accessible. I don't think there is a standard. That's what we would like, to maybe take this time to revisit that, maybe implement, where possible, to have a police presence or even the police give the actual notice.
Senator Runciman: I don't believe that you're suggesting amendments to the bill. That could be done through policy or regulation.
Mr. O'Rourke: Absolutely, yes.
Senator Runciman: I agree with you, and perhaps it's something the committee may wish to comment on in terms of a potential observation. I think this is a very critical role. To leave it in the hands of the folks you represent is problematic, to say the least. It seems like an essential feature for me, and I suspect most Canadians would share that view.
Is your organization involved with the CBSA, Canada Border Services Agency, with what they call a pre-arrival screening program? These are passengers on flights headed to Canada, so that we're able to stop them from boarding, prior to getting on the plane and getting to our country.
Mr. O'Rourke: I don't know if we're talking about the same program, but we're always in consultation with CBSA on different programs they're establishing. An interactive passenger information program is being developed. That may be what you're referring to.
There are programs where the government requires airlines to provide information on passengers before they arrive in Canada. We work closely with CBSA on those programs.
Senator Runciman: The process now is that someone comes up with a ticket and you put it into the computer, and it pops up that this person is on the no-fly list. Is that how that works?
Mr. O'Rourke: Yes.
Senator Runciman: I thought there was an individual who was part of the Toronto 18 who recently left the country. He had his passport removed. I believe it was on a no-fly list, and everyone is scratching their head about how that individual — I gather they got it through false papers. Is that still a weakness in the process, as far as your organization is concerned? I assume security officials —
Mr. O'Rourke: I'm not familiar with that particular incident. I don't think that's a major concern, no. Under the present system, at the check-in, the airlines check against the list.
Senator Runciman: If they had counterfeit documents, that's what I'm talking about.
Mr. O'Rourke: No, exactly. If you're using another name and the documents appear legitimate.
Senator Runciman: What I'm leading to here is perhaps the need for facial recognition technology, which is used certainly in places like Israel, so that you're not going to depend on a pop-up on your screen, that that individual is going to be clearly recognized, even if he or she has counterfeit documents.
Mr. O'Rourke: Absolutely.
[Translation]
Senator Dagenais: My question is for Mr. Bennett. The minister, CSIS, and all other individuals with authority or who are affected by Bill C-51 have confirmed that this bill does not in any way target environmental groups. We're talking here about serious investigations that target individuals who represent a threat to our country's security and to Canadians, and these investigations seek to fight against, among others, jihadists and other terrorists. Why do you continue to say that this bill presents a threat for organizations such as yours and for your members?
[English]
Mr. Bennett: Senator, I urge you to read the RCMP report on criminal threats to the petroleum industry. I believe the act refers to threats to Canadian economic infrastructure. The petroleum industry would be part of that infrastructure, and the RCMP has identified Sierra Club, Greenpeace and Tides Foundation as part of that criminal threat. I'm not making this up. It's part of the report. Get a copy of the report. I will be grad to send one over when we're done.
It clearly lays out that because we've advocated for taking action on climate change, we're considered as some kind of nebulous link to a threat to infrastructure. It's right there in black and white. It's a criminal threat, and that would bring us under Bill C-51.
I also remind the senator that ministers of this government have accused environmental groups of being money launderers, which is something that is also connected to terrorism a lot. We've been accused of taking inappropriate payments from foundations from other countries, by government ministers, neither of which is true, by the way.
So when you put it in context, you have to look at how the bill could be applied, not how the ministers of the day say they intend to apply it. You're passing a law not just for the next six months; you're passing a law forever. It could be applied in any way a government wants to apply it, and someone could make a mistake. I really believe that we would end up involved in this act because of a policing mistake, but I think that mistake can happen and go unnoticed while a lot of damage is done.
[Translation]
Senator Dagenais: Mr. Bennett, you know that there were ethics committees at the RCMP, the Canadian Security Intelligence Service and Sûreté du Québec, at the time. Police forces and all these people are subject to scrutiny by very serious surveillance committees.
You mentioned the RCMP and CSIS. Have you filed complaints with either of the surveillance committees, because you felt targeted, whether before or after this bill was tabled? Have you already filed complaints against these organizations?
[English]
Mr. Bennett: We have complained to the RCMP. I've written to both the commissioner and the director of criminal investigations. I've asked them to clarify whether this investigation could lead us into the Bill C-51 net, and they have not said it wouldn't. They've been given the opportunity to say so, but they haven't said that.
[Translation]
Senator Dagenais: You complained to those committees, but you say that you did not receive a response. Were you treated well? Did they at least receive your complaints? Were they examined?
[English]
Mr. Bennett: I received a nice letter from the director of criminal investigations which tried to suggest that it was perfectly all right to mention us in a criminal intelligence report because of events that happened in New Brunswick that we had nothing to do with.
No, I think we were treated politely but not seriously. Remember, this law is a wide net. Two or three years from now, someone pulling up a report that says Sierra Club is mentioned in this criminal threats report, they can use that to get a secret warrant. Whether they will or won't is a different question.
[Translation]
Senator Dagenais: You complained to those oversight committees, and I understand that they gave you a response, but it might not have been the answer you wanted to hear. Does that allow you to say that you were not taken seriously?
[English]
Mr. Bennett: Well, yes, because I made specific offers to talk to them, especially about climate change and the implications for policing around climate change, and that was totally ignored. When I asked them to clarify whether or not this could be used to include us in Bill C-51, they didn't respond to that.
The Chair: Before we go to Senator Jaffer, I'll just follow up on that.
I think the question from Senator Dagenais is whether you filed with the responsible oversight body, not strictly with somebody in the force itself. Is that correct?
Mr. Bennett: This has only happened in the last few months. We haven't gotten that far down the road. Usually when you complain, you complain first to the director of the police and work your way up.
The Chair: Are you finished, Senator Dagenais?
[Translation]
Senator Dagenais: It is Mr. Bennett's answer.
[English]
Senator Jaffer: I have questions for each of you, and I'll start with Ms. Palmater.
We're all aware of Ms. Blackstock's — I would go so far as to call it harassment. Even without this bill, what has it been like for you and your organization when it comes to issues you're working on? What challenges do you already face?
Ms. Palmater: That's a really good question and it was the subject of my submission to the house. What we're talking about, without anything in this bill being passed yet, we're already overrepresented in prison. Even though the Supreme Court of Canada in Gladue said you have to stop imprisoning First Nations people, we're being imprisoned more, not less.
When the Supreme Court of Canada in Marshall said we had a recognized treaty right to fish and sell it, DFO and the RCMP came in, rammed our boats, beat us with clubs, maced us, arrested us and put us in jail.
I only have to talk about Listuguj. Especially in Quebec, it's been highly problematic. They've invaded Listuguj twice. In Oka, Ipperwash, an unarmed land defender was murdered. Gustafsen Lake, one of the largest attacks by the RCMP on a civilian population; Esgenoopetitj. You've got Elsipogtog, Caledonia. It goes on and on in terms of the way the military has been used against First Nations people. And the justice system itself, we're more likely to be arrested, imprisoned and those kinds of things.
Senator Jaffer: I'm going to have to stop you there because I have two more questions.
Mr. O'Rourke, Public Safety officials told this committee that there are rarely, if ever, confrontations with passengers listed on the specified persons list. Has this been the airline's experience to date, and do you anticipate an increase in the possibility of these types of confrontations occurring?
Mr. O'Rourke: We do anticipate a potential increase given the fact that there may be more people on the list. To be fair, I think things have run relatively smoothly to date — fingers crossed — with the notifications. I don't have much information on how often it happens. I think it's rare. That's what I understand. I think, relatively speaking, things are going as well as they can now, but it is an area that we can improve on.
Senator Jaffer: Mr. Bennett, when I was listening to you, I have to tell you that I really was disturbed. I come from B.C., where your organization's work is very well known and, I believe, respected. I certainly respect what you do.
We are facing some great challenges with the Enbridge pipeline, for example, so I'm now starting to worry when you organize protests against the Enbridge pipeline. It could be seen as hurting our economic well-being, and this bill can have some terrible effects on protests. I'd like you to comment on that.
Mr. Bennett: Exactly. As I said earlier, if there are opportunities for provocateurs to show up at meetings and say things that actually get us in trouble, it could result in donors and supporters not wanting to do that because their name could end up on a list somewhere in some investigation. We don't know what's going to happen.
Fundamentally, we have a different view of how economics should work, so that can be construed by those who have the opposite view of being a threat to infrastructure. We really feel that there's a possibility. We don't think that we're the intended target, but we certainly could become the victims of it should there be a decision by government or a police force to do that.
We know that police forces take very subjective decisions. I would suggest that what happened to the Mi'kmaw in New Brunswick two years ago would not have happened if I had been the leader of that demonstration and sat there for four or five months totally peacefully. I don't think there would have been an armed incursion with policemen with machine guns and dogs, but because it was a First Nations protest, that was how the police entered. I'm convinced that a peaceful protest was turned into a violent one because of the police action, not because of what was happening with the protesters themselves, and that could be much worse with secret investigations and undercover operations.
[Translation]
Senator Dagenais: Ms. Palmater, correct me if I am wrong; you referred to the infamous Oka crisis of the 1990s, or something like that. We are not at all talking about the same situation. There was a sort of guerilla conflict between your community and the town of Oka regarding a golf course. We need to be careful. I was a police officer with the Sûreté du Québec. I was there when the Sûreté du Québec intervened. Let us remember that a police officer died in the process, because we were trying to protect your community as much as the town of Oka. I would ask you to be careful.
The Sûreté du Québec was present for a year in Akwesasne to maintain order and protect the community, because there were people from the Mohawk community who were in the drug trade and had killed each other. I hope you have all of the details of that matter. You have to be careful when you accuse police officers of abusing their powers. I was there, and I saw it with my own eyes.
[English]
Ms. Palmater: Every single commission that has ever been done in this country, every single study, every single United Nations report on Canada's activities towards indigenous peoples, have all confirmed as fact — not accusation, but fact — the blatant, overt and systemic racism and disproportionate application of the law in a negative way against First Nations people. You can read any of those reports, any time, and they will confirm that.
Saying that there are some Mohawks who run drugs is like saying all Canadians are serial killers, just because some Canadians have been serial killers. What that does is propagate more racism against First Nations people, as if we're all criminals in addition to terrorists, and that's not acceptable.
[Translation]
Senator Dagenais: I do not want to have a debate with you. At the time, police officers from the Sûreté du Québec were asked to protect your communities. The Sûreté du Québec was there, because you did not have a police force to protect you anymore. You know, the United Nations are another matter, but sometimes they should come see how things are on the ground.
[English]
The Chair: Colleagues, we are at the end of the time for the panel.
I want to thank you very much for attending.
(The committee adjourned.)