Proceedings of the Standing Senate Committee on
National Security and Defence

Issue 15 - Evidence - Meeting of March 30, 2015


OTTAWA, Monday, March 30, 2015

The Standing Senate Committee on National Security and Defence met this day at 4:45 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, March 30, 2015. Before we welcome our witnesses, I would like to begin by introducing the people around the table. My name is Dan Lang, senator for Yukon. On my immediate left is the acting clerk for the committee, Cathy Piccinin.

I would like the senators to introduce themselves and state the region they represent.

Senator Mitchell: Grant Mitchell, Alberta.

[Translation]

Senator Dagenais: Senator Jean-Guy Dagenais from Quebec.

[English]

Senator Stewart Olsen: Carolyn Stewart Olsen from New Brunswick.

Senator Enverga: Tobias Enverga from Ontario.

Senator Kenny: Colin Kenny, Ontario.

Senator Day: Joseph Day from the Town of Hampton, New Brunswick.

Senator Jaffer: Mobina Jaffer, senator from British Columbia.

Senator White: Vern White, Ontario.

Senator Beyak: Senator Lynn Beyak, Ontario.

Senator Runciman: Bob Runciman from Ontario, Thousand Islands and Rideau Lakes.

The Chair: A special welcome to Senator Jaffer and Senator Runciman. Senator Runciman is sponsor for Bill C-51 in the Senate. He will lead off questioning later on in the proceedings.

The Senate has referred to this committee 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.

With us to lead off the Senate pre-study of Bill C-51 is the Honourable Steven Blaney, Minister of Public Safety and Emergency Preparedness; and the Honourable Peter MacKay, Minister of Justice and Attorney General of Canada. Accompanying the ministers are Mr. François Guimont, Deputy Minister of Public Safety Canada; Mr. Michel Coulombe, Director, Canadian Security Intelligence Service; and Mr. Bob Paulson, Commissioner, Royal Canadian Mounted Police. From the Department of Justice we have Donald Piragoff, Senior Assistant Deputy Minister, Policy Sector; and Doug Breithaupt, Director and General Counsel, Criminal Law Policy Section, Policy Sector.

Ministers, welcome to the committee. We appreciate you being here as we commence our pre-study. We hope you will address some of the concerns that have been raised by the bill.

Minister Blaney, as you have been the lead on Bill C-51, we invite you to proceed with your statement, followed by Minister MacKay.

[Translation]

Hon. Steven Blaney, P.C., M.P., Minister of Public Safety and Emergency Preparedness: Thank you very much, Mr. Chairman. First of all, I would like to thank the members of the committee for the warm and personal welcome, and to apologize for Minister MacKay and my tardiness, caused by a vote in the House on the extension of the mission in the Middle East.

I come here today with a sense of accomplishment to present the results of a tremendous amount of work carried out over the last few months.

I would also like to thank you for this preliminary study of the bill, which demonstrates the seriousness with which you consider it, and the importance of carrying out a complete and comprehensive study within a reasonable time, so that we can ensure that our enforcement and intelligence agencies have the necessary tools with which to fight against the terrorist threat that we are facing.

I would also like to thank my colleague, Peter MacKay, Minister of Justice and Attorney General of Canada, with whom we have worked very closely in order to develop this bill.

With me today are my deputy minister, Mr. François Guimont, Mr. Michel Coulombe, director of the Canadian Security Intelligence Service, as well as Commissioner Bob Paulson of the Royal Canadian Mounted Police.

[English]

The first duty of this government, and my responsibility as Minister of Public Safety, is to keep Canadians safe. That is why we introduced the Anti-terrorism Act, 2015, to ensure that our national security agencies have the tools they need to protect Canadians against the evolving threat of jihadi terrorists. There are five elements on which I would like to make emphasis and let Minister MacKay explain the very important measures we are suggesting you consider in this pre-study.

As you know, this is part of an ongoing engagement of our government to tackle the terrorist threat. I was here not so long ago to tell you about the protection of Canadians from terrorists with clarifying the role of CSIS, and I thank you for your recommendation and study on that. As you know, this is part of our ongoing strategy to target terrorism, our counterterrorism strategy that has four pillars to prevent, detect, deny and respond.

Today is another step to deal with the imminent threat we have faced and witnessed either in Saint-Jean-sur- Richelieu or here in Ottawa. We know our allies have been confronted in Paris, whether at Charlie Hebdo or Hyper Cacher or in Sydney at Christmas or even in Copenhagen.

The first element of that bill goes to words that radicalize, lead to violence and terrorism and are a vector of radicalization. I leave it to Minister MacKay, but that's why we feel it is so important that within the government that the left hand knows what the right hand is doing.

Let me tell you what a former Supreme Court member has said, Justice John Major:

There is little doubt that you can find it in our report on Air India that the lack of sharing of information between the RCMP and CSIS was a major cause of the terrorists succeeding in blowing up that airplane. Had there been a free flow of information between CSIS and the RCMP, there's a high probability the plot would have been uncovered.

So no wonder the Air India Commission recommended that we provide information sharing between our federal agencies. To many Canadians, and actually to many witnesses, it came as a surprise that we are not yet doing it, but that's what we want to do.

[Translation]

We also want to grant our federal institutions the clear and explicit power, this ability to disclose information to designated federal institutions when this information relates to their mandate and their responsibilities in matters of national security.

[English]

Our national security agencies are focused on stopping violence, and that's why all departments need to be able to share information in a way that is done according to our Constitution, to our Charter of Rights and Freedoms and also to our privacy law. That's why we expect that any department that we enter into an information-sharing agreement with will proceed as they ought to do according to the law, by a privacy impact assessment in accordance with the Privacy Commissioner's recommendation and guidance. That's the first element of this bill, which we feel is very important.

Of course, there is the argument that every time we talk about security, our freedoms are threatened. Canadians understand that their freedom and security go hand in hand. Canadians expect us to protect both, and there are safeguards in this legislation to do exactly so.

This is actually what Robert Morrison, a former RCMP member who had a distinguished career of 35 years in the RCMP and is also an expert in information sharing, said:

Bill C-51 will ensure accurate, timely, reliable information sharing while protecting the privacy of our citizens.

I think maybe some critics have just taken snippets of the bill and not reviewed the entire bill. I see it as a necessity. I don't know how many people have said to me in the past month or two, "Do you mean we don't share information? We don't do that? I don't understand.'' Well, are willing to fix that.

The fundamental fact is that our police and national security agencies are working to protect our rights and freedoms. It is jihadi terrorists who endanger our security and will take away our freedom.

[Translation]

The second step we wish to take is very simple. Following the 2001 attacks, we established a list of passengers who could represent a threat to the safety of air traffic. As we speak, we cannot put the name of a person who wishes to travel with the intent of committing a terrorist act on the list. We therefore wish to broaden this list of high risk travellers who could represent a threat by participating in terrorist activities.

This is why we are proposing to reform the Passenger Protect Program through the Secure Air Travel Act. We are taking steps in the face of the growing number of people who fly in order to take part in terrorist activities abroad.

[English]

We will do this by expanding the mandate of the Passenger Protect Program to include those travelling by air to engage in terrorist activity.

[Translation]

We will therefore broaden the mandate of the Passenger Protect Program in order to include people who wish to travel by air in order to participate in terrorist activities.

[English]

Let me quote Marc-André O'Rourke of the National Airlines Council of Canada. We "understand the need to update Canada's passenger protect program in light of the evolving nature of security threats, and we continue to support the program under the'' Anti-terrorism Act. So sharing information, protecting terrorists from boarding — so far so good.

Third, another important change we are proposing relates to the mandate of CSIS.

[Translation]

Over the last 30 years, the Canadian Security Intelligence Service has acquired further expertise in collecting intelligence and providing advice to the government on security threats. However, under its current mandate, it can only collect intelligence; it cannot minimize the threat, unlike our allies.

For example, CSIS can only question a person with a goal to gathering intelligence but not dissuade the person from carrying out a terrorist activity. We cannot allow ourselves to underutilize this ability when a terrorist threat is developing.

This is why we want to ensure that our intelligence officers can intervene upstream in a radicalization process, for example, by turning to the parents whose child may be becoming radicalized. Currently, they cannot do so. This is a threat reduction activity.

[English]

With its new mandate, CSIS could employ an array of techniques in order to disrupt plans or alter behaviour and any and all threat diminution measures would take place in a framework of robust safeguards and rigorous review.

Let's be clear: Whenever CSIS collects intelligence and whenever they would have to reduce a threat, they would have to seek ministerial approval and a court warrant whenever an intrusive operational technique is necessary.

Let me reemphasize again this afternoon that we would be the only country to require a warrant for threat disruption activity that would infringe the rights of Canadians. I have not seen any example of all our allies doing so.

Some, including the Canadian Bar Association, have said that by empowering CSIS to obtain warrants from the Federal Court for the purpose of collecting information and disrupting threats, the Anti-terrorism Act brings, and I quote, "the entire Charter into jeopardy, undermines the rule of law and goes against the fundamental role of judges as the protectors of Canada's constitutional rights.'' I feel really safe standing by the Minister of Justice, but this quote, I'm sorry, I find it rich. Maybe the Minister of Justice could comment on that, but from my perspective, I think it undermines the credibility of this organization because, in my view, this is not accurate. The fact is that it is already the role of judges to issue warrants, and they have been doing it for years.

I learned an English expression, which is to call a spade a spade, and I think in that case that saying applies. Judges issue warrants. There is nothing new under the sky. Indeed, there is no better authority to review these matters, and I trust in our justice system. Judges in Canada already approve or reject applications from police and national security authorities.

I would recommend section 25(1) of the Criminal Code, which gives many powers to existing police officers, powers that are much more intrusive than the ones suggested in Bill C-51. Once again, this has been a long-standing practice in Canada, and I would politely refer anyone making a statement to section 25 of the Criminal Code if they have any doubts about it.

CSIS will only be able to undertake this activity of a judge from the Federal Court believes it is necessary to keep Canadians safe and has specifically approved it. Of course, the judge can refuse the mandate and he can also modify it.

[Translation]

There are people who have taken the time to read the bill, clause by clause, in all its details, and they have found that there are several measures that reduce and limit its powers. In fact, there are people who have deemed that the anti- terrorism bill increases judicial powers and oversight mechanisms. I am thinking, for example, of the sister of Warrant Officer Patrice Vincent, who was killed on October 20, and I quote:

For those who have concerns, there is something else I have noted. Nothing has changed in terms of what happens after the investigation, once a police force submits certain information. The judge must ensure that the recommended measures are proportional to what the individual is accused of (page 49). We can see that there are watchdogs everywhere. Nothing is easy or automatic. If a situation is encountered, the minister has to be asked for permission and then a judge has to be asked for a warrant. An order is always required (page 50). The judge must assess the threat before issuing a warrant (page 53).

And she continues with this:

Nothing is easy. A case has to be prepared and presented. I find the process is still very cumbersome in this regard, but I am prepared to accept it.

She is prepared to accept the legal mechanisms of review and oversight, because the ultimate goal is to protect citizens.

Mr. Chair, the bill proposes other significant measures. I was able to present a few to you. I will now give the floor to my colleague, but I would first like to give you a final quotation.

[English]

Let me quote something from the BC Civil Liberties Association. It says:

This is truly a blank cheque, for there is nothing which falls outside that description. One's reading matter, record library, video collection, writings, teaching, et cetera, suddenly become suitable objects of surveillance, as does how one spends one's leisure time and with whom.

Was this in the context of this debate we're having now? No. It was in 1983 during debate on the creation of CSIS. Each and every time a government brings forward national security legislation, some groups are fear-mongering. We trust that this legislation is what Canadians need to stay in a free, democratic, open country with robust safeguards.

I would invite my respected colleague to further explain to you some of the very good measures that are also included in Bill C-51.

[Translation]

Hon. Peter MacKay, P.C., M.P., Minister of Justice and Attorney General of Canada: Honourable senators, I appreciate the opportunity to meet with you. I am honoured to be here today with my colleague the Honorable Steven Blaney and our colleagues from the department.

[English]

We appreciate, as Mr. Blaney has said, this committee's undertaking to begin pre-study of this important bill, a bill that was properly described by my colleague as intended to deter, to detect and to prevent terrorism here in Canada.

This is my fifty-fourth appearance before a parliamentary committee as a minister. I think there are few legislative initiatives that compare in their importance when it comes to public safety.

I will focus my remarks on Part 3 of the bill, which falls under my purview as Minister of Justice and Attorney General, and on reforms that are truly directed at strengthening our Criminal Code and our criminal law in this regard in the fight against terrorism.

You will note, honourable senators, that there has been an indication from the government of amendments, and perhaps some have followed the testimony of experts at the House of Commons with respect to the last two weeks of testimony.

Terrorism poses a serious threat in this country. It's undeniable. This is not an alarmist or a partisan statement. It is not rooted in rhetoric but in realism. One only has to turn on the nightly news or talk to front-line security providers to understand just how serious this threat remains.

The proposed Criminal Code reforms fall into four categories: strengthening terrorism recognizance with conditions and peace bond powers; creating a new offence for advocacy or promotion of commission of terrorism offences in general; authorizing courts to order the seizure or forfeiture of terrorist propaganda material, as well as its removal from computer systems located in Canada; and, fourthly, protecting witnesses, including those involved in national security proceedings and prosecutions.

With regard to the first part, recognizance with conditions and peace bonds, the proposed changes here would, generally speaking, lower the thresholds. The thresholds provide for a more targeted condition, such as the surrender of passports or applying geographic area limitations. Of course, there are other conditions that in a judge's discretion could attach, things such as not associating with certain individuals and not being in possession of weapons or explosives, for example.

In all of these cases, for the recognizance with conditions, there is a provision for increasing the period of preventative detention from three days to the possible total of up to seven days, with periodic judicial review generally every 48 hours following the first 24-hour period of police detention. Making these preventative measures easier to obtain, including the lowering of the thresholds, would enable the police and prosecution to move forward with the application where the evidence available would not meet the current thresholds, even though it would otherwise indicate a threat.

Canada is not alone in enhancing preventative detention in this area in terms of terrorist threat. The United Kingdom allows for preventative detention of suspected terrorists prior to charge for up to 14 days, so double what we find in this bill, which also requires independent review on grounds similar to those found in this bill.

They also have in the U.K. a tool similar to our terrorism peace bond called a terrorism prevention and investigative measure. This allows for the imposition of conditions on individuals where satisfied on a balance of probabilities that the person is or has been involved in terrorism-related activity. Australia, I note, also has preventative detention at the federal level, and while there are state prevention detentions which allow up to 14 days, Australia also imposes control orders similar to our peace bonds, which impose conditions on individuals where there is evidence that they may commit a terrorism offence.

Secondly, with the new advocacy or promotion offence included in this bill, Bill C-51 would create a new Criminal Code offence of advocating or promoting the commission of terrorism offences in general. The proposed offence will fill a gap in the criminal law by making it a crime for a person to knowingly promote or advocate the commission of terrorism offences in general, while knowing that any of those offences will be committed or being reckless as to whether or not any of the terrorism offences may be committed as a result of such a communication.

The current criminal law only applies to counselling of the commission of a specific terrorism offence, such as telling people to go bomb a train station. However, the current law would not necessarily apply to somebody who actively encourages others to commit terrorism offences more generally.

For example, when remarks are made in a terrorism context to carry out attacks on Canada, because no specific type of terrorism offence is singled out by this example, the proposed offence in this bill would close that gap.

Some have suggested that the existing crime of instructing terrorism activity under section 83.22 sufficiently covers this behaviour intended to be covered by the new offence. It does not. The instructing offence requires that the person would be able to command or order someone to do something. In addition, "terrorist activity'' is a much narrower description in scope than "terrorism offences'' in general and would exclude, for example, all of the new terrorist travel offences brought in by Bill S-7, the Combatting Terrorism Act brought in in 2013. Thus, it is much narrower than the proposed offence.

It is also important to note that there was a close relationship between the proposed advocacy offence and the existing offence of counselling the commission of a crime. In short, counselling has been interpreted by the Supreme Court in the Queen v. Hamilton, a 2005 case, to mean active encouragement, the same interpretation that the Supreme Court has given to the phrase "advocates or promotes.'' These references are found in the R. v. Keegstra, a 1990 case, and the R v. Sharpe, from 2001. This phrase, in turn, is the exact language used in these new proposed offences.

To those that say this new offence impacts on freedom of speech, I would respectfully disagree. I would note that the criminal law already puts limits on speech when the speech is deemed to be sufficiently harmful, for example the hate propaganda offence or advocating for the promotion of genocide, which has no statutory defence. Clearly, there are certain lines of communication that cross that line of free speech and cause harm and hate, and venture into certain activities in the community.

Thirdly, colleagues, the seizure and forfeiture of terrorist propaganda, the third area of reform, relates to two new warrants of seizure: forfeiture or detention for terrorist propaganda. Terrorist propaganda material is material that counsels the commission of a terrorism offence or that advocates or promotes the commission of terrorism offences in general.

[Translation]

These proposed amendments would allow a judge to order the seizure of documents of printed terrorist propaganda or propaganda broadcast in the form of sound recordings. It would also allow a judge to order the suppression of terrorist propaganda which is broadcast in an electronic form and is accessible to the public through Canadian Internet service providers. These changes are similar to current Criminal Code provisions that allow for the seizure and confiscation or suppression of materials that constitute hate propaganda that is deemed to be of a criminal nature.

As concerns protection measures, I would like to point out that it is a requirement to obtain the Attorney General's consent before any proceedings can be instituted to obtain either of these warrants, which would guarantee that issues of public interest would be taken into consideration, particularly as concerns the protection of freedom of expression.

[English]

Finally, a number of important changes are being proposed to better protect those involved in national security proceedings and prosecutions. In particular, these changes would provide the courts with greater discretion to make orders for testimonial accommodation; protect the names of federal prosecutors and law enforcement personnel who obtain authorization to wiretap; and ensure that the acts of intimidation in the context of national security proceedings are more effectively punished.

As my colleague Mr. Blaney has indicated already, for many of the activities that would in the normal context of behaviour be deemed an infringement of a person's constitutional rights — things such as wiretap, entry of building, obtaining certain types of evidence — judges already routinely, on a daily basis, authorize this type of activity.

Similarly with respect to some of these provisions of the Criminal Code, we are drawing upon examples that already exist in terms of criminal behaviour. The removal of materials when it comes to hate propaganda or child pornography, for example, is already authorized in the Criminal Code.

So, chair, with regard to the question of constitutionality in Bill C-51, this bill would not have been introduced to Parliament had we not believed in the constitutionality of this. If I had concluded after consultation with experts in the Department of Justice that it was inconsistent with the purposes and the provisions of the Charter, the bill would simply not have been introduced.

That does not mean, however, that there won't be Charter challenges. As with many new bills, it is often the subject of legal testing before the courts by counsel for accused.

In my opinion, these legislative proposals presented here are reasonable and appropriate responses to the threat of terrorism in Canada and are accompanied by a number of safeguards: judicial oversight, involvement and discretion, the requirement for Attorney General consent for the use of many of the tools, and the high mens rea requirements.

Let me conclude: It has also been important to note that the recognizance with conditions remains important and subject to a sunset clause as well as annual reporting to Parliament. The tenor of the times leads me to believe — and my colleague as well — that in addition to being constitutional it is incumbent upon our government to do everything in our power to keep Canadians safe. That is the ambitious but optimistic goal of Bill C-51.

As you know, there have been a number of successful terrorism investigations and prosecutions since the Anti- terrorism Act of 2001. Most recently, there were convictions in relation to a planned attack on VIA Rail in Toronto, Ontario. Our men and women from our military intelligence and law enforcement and prosecution services are to be commended for keeping Canadians safe from the real and evolving threat of terrorism in Canada. I'm particularly proud, and you will allow me to have this place of pride within the Public Prosecution Service of Canada for their successful prosecution of this challenging case. Let it be a deterrent, general and specific, that this threatening behaviour will not be tolerated in our country.

As parliamentarians, it is our role to ensure that the tools we have at our disposal are made available to the front lines in this fight and that they are as robust as they can be. That's what Bill C-51 intends to provide.

As the government, we continue to also take part in the outreach. This Friday I met with our cross-cultural round table to discuss prevention, reoccurring radicalization and recruitment efforts and sought input on this legislation with representatives from around the country in many different communities.

I would like to close my remarks with a relevant quote from one of the House of Commons witnesses last week, Professor Salim Mansur, who said:

Bill C-51 is directed against Islamist jihadists and to prevent or pre-empt them from their stated goal to carry out terrorist threats against the West, including Canada. The threats are real, not hypothetical, and they have multiplied ever since 9/11 brought Islamic terrorism into the North America.

This is a professor from Western University. This bill recognizes this chilling reality and attempts to meet it head on.

I thank you and I look forward to your questions.

The Chair: Thank you very much. We very much appreciate your coming before us and giving us an outline on the principles of the bill.

I would like to start with a question if I could, colleagues. This particular committee has undertaken a study of terrorism since October, and the seriousness of the threat cannot be understated. During the course of our hearings, we discovered there were well over 300 Canadians either directly or indirectly involved materially or otherwise in terrorism activities. We also learned well over 600 financial transactions dealing with terrorism were made public during that course of time.

Yet, at the same time very few prosecutions had been undertaken. I want to say that we very much appreciate the successful prosecution that has just been completed, which you mentioned earlier, but the number of prosecutions that have taken place compared to the U.K., France and other parts of the world were significantly less.

With the lowering of the thresholds, do you see further prosecutions taking place in respect to meeting this threat that Canada faces?

Mr. MacKay: Thank you, Mr. Chair. That's a very relevant question.

In Canada, we had roughly 19 instances where convictions have been rendered. Certain provisions — I have to be very frank with you — like the recognizance have not been used. However, I would state emphatically that their lack of use should not be interpreted as in some way indicating that they're not necessary. I would also suggest to you, in direct response to your question, that the lowering of these thresholds will in fact allow for greater can access to these provisions of peace bond and recognizance.

I also must stress that police and CSIS would have to appear before a judge, with Attorney General consent, to make that application based on evidence, that very important judicial role of viewing the evidence and allowing for those provisions to attach, for conditions to be put in place.

My final point is that this is always about prevention. This is about behaviour in the community, very often, I might add, brought to the attention of the authorities by family members or friends or colleagues of the individual demonstrating that potentially dangerous behaviour.

Those steps and that inevitable conclusion of attachment of peace bond or recognizance eligibility would be greatly enhanced by this bill, and I would suggest that could also lead to greater success in both arrests and prosecutions.

The Chair: I will turn to Senator Runciman, who is the sponsor of Bill C-51. If you proceed, then I'll go to Senator Mitchell on the third question.

Senator Runciman: I have a couple of questions, initially, for Minister MacKay about matters that have been garnering a fair amount of media attention and dealing initially with privacy. When I read interpretations of the Privacy Act, the act already permits personal information sharing in circumstances involving security and criminal investigation-related matters. That's the way I understand the act to read. I also understand that under the existing legislation, the Privacy Commissioner has the authority to receive and investigate complaints and even initiate investigations, with full access to all of the agencies involved.

I'm curious. Reading the criticisms here, it seems to me that Bill C-51 doesn't take anything away from independent review authority. I'm wondering if you can speak to that and comment on it, with respect to the fact that the existing provisions, as I see them, will still apply to Bill C-51.

Mr. MacKay: Senator, your assessment is correct. The provisions of the Privacy Act would apply to this legislation, as to all others. Complaints can be initiated externally, or the Privacy Commissioner may take it upon himself to examine certain circumstances or situations that could give rise to questions. For that reason, I agree with your statement that this safeguard, if you will, this arm's-length independent body of Parliament, has the ability to examine circumstances that could arise from the enactment of this legislation.

Senator Runciman: We're going to be hearing from the Privacy Commissioner at some point during the study, so hopefully we'll get some understanding of his concerns. At this point, I don't understand them.

Another issue that has gained extensive ink is the claim that the bill somehow compels judges to authorize breaches of the Charter by CSIS officers. It seems to me that we had this discussion around Bill C-13 and that the Supreme Court decision on Spencer said that obtaining information without court authorization is a Charter breach, but with court authorization it is Charter compliant. I wonder if you could perhaps clear the air on that as well.

Mr. MacKay: Well, I appreciate the opportunity to do so. Minister Blaney and I both mentioned this in our opening remarks. I think it's clear to Canadians, particularly those who participate in the justice system, that judges readily approve and reject applications from police and national security authorities regularly when it comes to conducting certain activities. This has been a long-standing practice within Canada, within our justice system. To be clear, CSIS will only be able to undertake certain activities if a judge, a Federal Court, believes it is necessary to keep Canadians safe. That is a long-standing practice.

Let me give a couple of examples. Right now, where judges undertake the type of activity that would be envisioned here, in closed criminal proceedings, they may impede the freedom of expression. So we have criminal proceedings in which the court is conducted in camera. These include applications for search warrants under section 487, warrants to seize certain materials, general warrants themselves. Other examples would include applications to lead evidence, and you will recall this in your time as solicitor general. Leading evidence of a complainant's prior sexual activity is very often a situation where a judge may clear a courtroom and certain evidence is heard in the absence of a jury. Similarly, a judge may exclude the public from certain cases, pursuant to section 486 of the Criminal Code. They may order individuals to deposit their passports as a result of the necessity to impede their ability to leave Canada under section 515(4)(e) of the Code. They may order — already in place today under the Criminal Code — material removed from the Internet, affecting an individual's freedom of expression. I gave the examples earlier of hate propaganda or child pornography.

Many of these provisions find their root and their expression directly in sections of the Criminal Code and powers that exist already for the enabling of certain activities that would be otherwise deemed to be unconstitutional.

Senator Mitchell: Thank you ministers, both of you, for your presentations.

About three years ago, the government began cutting RCMP budgets. It has done so significantly and, recently, the velocity of that has affected CSIS. We've heard testimony that as many as 600 RCMP officers have been moved from hundreds of files of organized crime, drug crimes, financial crimes to investigation of terrorist activities. We've heard evidence that CSIS has had to make some very difficult prioritizations. They don't have enough money.

To put it in the vernacular, when are you going to put your money where your mouth is and back up these institutions, these organizations? It's one thing to give them extra tools, but it's no good if they don't have the workers to implement them.

Mr. Blaney: I thank you for your question, senator. I would say that we began to be coherent with our approach as soon as we took power, and that's the reason why, as we speak now, the budget of both the RCMP and CSIS has been increased by one third since we took power.

I certainly want to congratulate both of the heads of the agencies that are doing very important work — actually, outstanding work — in very difficult circumstances and that have shown flexibility under this evolving threat we're facing now of those high-risk travellers and this Jihadi terrorist threat. They've shown the flexibility, but we certainly are aware that there are other needs, other important areas that have to be taken into consideration.

[Translation]

There is a wonderful expression that says you must not rob Peter to pay Paul.

[English]

So it's obvious that this reallocation of resources is putting pressure on our intelligence and police service. We've had discussions with both Commissioner Paulson and Mr. Coulombe, and we're aware of that. As you know, we've always ensured that the resources are there when needed.

As you've stated in your question, you may have the resources, but if you don't have the authority, you cannot act. Minister MacKay has just given a vivid example. Even though you have 10 police officers in an office, if they are not authorized with the consent of the Attorney General and a judge to intervene in an imminent situation, we may have all the money we need but we won't be able to intervene. That's why this bill is all about providing tools.

At an appropriate circumstance, I am sure that members will eventually be dealing with measures that will address the resources. But as we speak now, we talk of tools — tools that have been actually been asked for publicly by Commissioner Paulson and, as Minister MacKay just indicated, will help us in our fight against the jihadi terrorists.

Senator Mitchell: On your point about the one third, the one third was increased to 2012, at which point presumably you had enough resources in these institutions to do the job, but they didn't have the pressures of the terrorism investigations they have today.

My next question —

Mr. Blaney: Sorry, the budget is from 2006 until now; it's a one-third increase for both the RCMP and CSIS, including all the measures we have taken —

Senator Mitchell: But it's been reduced since 2012.

My next question is to Minister MacKay. You made a very powerful statement and it's reassuring: The government is doing everything in its power to keep people safe. I would have been further reassured if you had made the statement that it's also doing everything in its power to balance that with Canadian civil liberties. You used as a defence of some of the provisions in that portion of the act which falls under your jurisdiction, the U.K. and Australian experiences, but you stopped short of the fact that in both the U.K. and Australia they have parliamentary oversight and other forms of oversight that we don't have. It just seems to me that it's an odd oversight that you didn't get to oversight in this bill.

Why is it that on the one hand you argue to defend this bill with the Australian and U.K. experiences, but on the other hand you neglect to point out that almost all of the rough edges that Canadians fear in this bill with respect to their civil liberties would be taken off if you had put into this bill proper, renewed, new oversight, parliamentary oversight, extra SIRC powers, extra powers for perhaps a public commission over the RCMP? Why is it that you haven't done that when it would really sell this bill and take the fear of its threat to civil liberties away in most respects?

Mr. MacKay: I thank you for that question. It is obviously an area of contention. There has been a lot of discussion in the House of Commons committee on this subject.

Look, first and foremost there are a few things that I know you are well aware of. In Canada we have Charter. They don't have that in the U.K. and they don't have it in Australia. We also have a very robust check and balance, to use your description, in SIRC, but I will let my colleague, Mr. Blaney, speak to that.

I was recently in the U.K. at a global law summit. While I was there, it was very interesting because that parliamentary oversight committee that you're referring to that exists in the Westminster model was being savaged because the chair himself had been caught up in a quite disturbing scandal about cash for access. So in my view parliamentary committees are not the ideal oversight bodies when it comes to these national security matters. It's a body like SIRC that actually has expertise in the area, able to provide and to follow the type of activities in a way that should reassure Canadians and does reassure Canadians.

And there is reporting to Parliament. Let's not for a moment leave anyone with the impression that these activities are not subject to the reach of parliamentarians. We're here testifying on this bill. You have two of the most important individuals who, in their capacities as head of the RCMP and head of CSIS, are regularly called before committees such as yours.

So there is tremendous confidence, in my view, in this country that our system is actually quite superior to some of the others that I've mentioned. But I only mention them as a touchstone to demonstrate that these expanded powers of prevention and detention already exist in those jurisdictions. Those are the countries where we're working most closely and those are the countries we're most likely to be sharing information with in the future in this global struggle.

But I take your point and I do want to assure you that that contemplation very much went into this bill when it came to the balancing. It isn't just about this expansion of power; it is also very much about balancing the rights of individuals, protected in every way by the Charter of Rights and Freedoms and our Constitution.

Mr. Blaney: Senator, I would like to thank you for this excellent question. It gives the opportunity to make known to Canadians a model that is the envy of the world. With our security intelligence review, our government is actually one of the first democratic governments anywhere in the world to establish a statutory framework for its security service.

You mentioned the Australian example and we had a discussion earlier on this. You may be interested to know that they do have parliamentary oversight in Australia. But you may also be interested to know that this is only for administrative purposes and that they don't go into operational matters. However, SIRC goes into all operational matters, and in Bill C-51 there is a specific mandate for our security and intelligence review committee to look into the threat disruption activity. So by broadening the authority of CSIS, we are enlarging and giving more power to our Security Intelligence Review Committee. This is in clause 4 of the bill.

This is very important to mention, Mr. Chair, and I would invite you to take not only my word but this quote:

. . . this security intelligence review process is an example of the Canadian legal system striking a better balance between the protection of sensitive information and the procedural rights of individuals

That's the Supreme Court of Canada.

Senator Mitchell: But are you going to give them the budget to do the extra work, the $2.8 million to $5 million?

Mr. Blaney: We have always ensured they have sufficient funding. I would refer you to the quote of Mr. Doucet, the executive director, who has recently stated that he has all the resources to fulfill his mandate.

Senator Runciman: Mr. Blaney, as a parliamentarian you're familiar with the statutory review that occurs on quite a bit of legislation that comes before the House of Commons and the Senate and mandating a review normally after five years that the legislation has been in place. Is there any consideration to an amendment that would mandate a review after five years?

Mr. Blaney: I thank you for your question.

Regarding amendments, to answer your question, actually Minister MacKay has indicated that in the case of lowering thresholds, there is already a sunset clause included. Other measures such as information sharing have been long requested from many studies.

What I believe the member and the committee could look into is an amendment to really clarify the role of the bill, which is to target terrorists. We've heard these discussions about protesters. Well, this bill is not about protesters, whether they are being lawful or unlawful. This bill is targeted at terrorists who represent a threat and are willing to harm Canadians.

I've also heard things such as whether CSIS will create a prison somewhere. No, absolutely not, because they are not law enforcement. If members feel, for greater certainty, to clarify that CSIS and our intelligence officers are not police officers, that they cannot make arrests and cannot put people into prison, if the members feels they need to do so, I certainly feel this would be appropriate.

But to get back to your question, all the provisions, as you've seen, lowering thresholds or the threat disruption, many of the activities such as the powers that are suggested to be a given to the intelligence officers have already existed in our provisions for a long time, so I don't see the need at this point in time.

Senator Runciman: I only mention it because statutory reviews are relatively commonplace in legislation.

Minister MacKay, again, there have been a number of public comments about the new law advocating or promoting terrorism, a new section of the act that some people are suggesting is somehow too broad in scope. When I have looked at the section, I see a number of qualifying words in there like "knowingly'' as well as "awareness'' or "recklessness'' about the criminal consequences of the prohibited action. Could you speak to these words creating what looks to me as a higher standard of proof than normal for the Crown in any future prosecutions?

Mr. MacKay: I think that's actually quite accurate, that there is a high standard here that has to be met.

Secondly, although we contemplated it, and we looked at legislation in other jurisdictions, we did not go down the road of glorification. This legislation does not create an offence for glorification or even praise of terrorism, which is the case in the U.K.

This bill, as you suggested, has language written in that talks about active encouragement. It goes beyond simple passive words and it's not merely indirect encouragement. I should say it doesn't impinge on someone's free expression or views or opinions. This is directed at prohibiting the active encouragement or the commission of terrorism offences.

You will note, to the surprise of many, that the word "terrorism'' does not appear in the Criminal Code. It is terrorist activity or terrorism offences that we're dealing with here. So in that context, it is directed at discouraging, prohibiting the active encouragement of the commission of terrorism offences, and not just expressions about people's opinions.

There is Supreme Court precedent in this area that is instructive. Courts have held that the terms "advocating,'' "promoting'' and "counselling'' all mean essentially the same thing. With that in mind — active encouragement — this new offence is modelled on existing offences we have in the Criminal Code for counselling. That relevant jurisprudence is instructive as to how we would successfully proceed with a prosecution.

Senator White: Thanks to all of you for being here today.

Minister Blaney, the U.S., U.K., Finland and Norway, for example, allow their respective security agencies to disrupt, in one form or another, criminal and/or terrorist activities.

Mr. Blaney: That's correct.

Senator White: Bill C-51 would allow for similar actions from our own security agency. Could you briefly explain how it was determined we would move in that direction and whether or not SIRC had an influence in us moving toward the Bill C-51 change?

Mr. Blaney: The reason we feel it is important to reduce the threat is certainly the example I gave of being at an earlier stage of radicalization. The RCMP is doing an outstanding job in querying ongoing investigations, but in the area of pre-criminalization, where we can intervene at an earlier stage and potentially prevent an individual from being criminalized, it's a good reason to have the capability to intervene with those who are at the beginning of the continuum of radicalization. We are working on many initiatives on the side of prevention and preventing radicalization.

As you know, the RCMP is deeply involved in this with trainers and many outreach activities, and so is Minister MacKay. As of last Friday, he met with our cross-cultural round table.

So we are into prevention, but we need to give more tools. We looked at our allies and they are indeed using these threat disruptions. That's why we are suggesting that CSIS would use those powers.

As I have mentioned, whenever these powers could infringe on the rights of Canadians, there is judicial oversight, as there is already for collecting information or in another area for police officers. That would be how we use that.

Even the Security Intelligence Review Committee recognizes that to have threat disruption, the power for CSIS would better protect Canadians. I can assure you that those threat disruption activities will be covered by the Security Intelligence Review Committee and fully studied. In the bill, we specifically ask that every year SIRC will look into the activities related to threat disruption.

As you know, SIRC can go wherever, whenever and however how deep they want into the activities of CSIS. I would certainly say that we can be very proud of this model and look at ways how we can make it even stronger. As you know, we just appointed Mr. Holloway, who is dean of a law faculty, as a fourth member. We are looking for the appointment of the fifth member in the near future to support the team of lawyers and specialists who have the independence, expertise and continuity that has proven successful over the last 30 years.

Senator White: Thank you very much, minister.

Minister MacKay, the Air India commission recommendations talked about establishing special terrorism prosecution divisions and even maybe a suggestion toward special courts. In light of where we are today, do you see us — this may be outside the realm of Bill C-51, but I think a good continuation discussion — moving further along that continuum to special prosecution units as well as possibly courts or judges?

Mr. MacKay: That's a very good question, Senator White. In short, I would hope not. I would like to believe that we're not going to see more but fewer terrorism-related offences and activities in Canada.

We have developed, as a result of the 19 cases I alluded to earlier in which members of the Public Prosecution Service were involved directly or indirectly — my answer is partly informed by the reality that there is shared jurisdiction here between the federal and provincial governments in terms of the daily administration of justice. At the provincial level, we have prosecutors who also have to be well versed in prosecutions under the Criminal Code.

In short, I would suggest to you that at this point in time I do not see or anticipate that we would by necessity have to create an entire office or a specialist, per se, in this regard.

But this is an evolving threat. Were we to continue to see a trend in this direction, it is something we could contemplate. It would be, as you mentioned, outside the realm of this particular bill.

Senator White: Thank you, minister.

[Translation]

Senator Dagenais: My question is for Minister Blaney. Minister, every time I hear that a young boy or girl has been radicalized without our having been able to intervene, and has left the country to go and join the Islamic State, I find that worrisome, not to say very upsetting.

We know that recently, in Quebec, six young people left and their parents have no idea where they are. We also see that it is almost always through the Internet that they are exposed to these ideologies of hate and in the end convinced to become radicalized. Do you have any idea of the number of cases that could be brought before the courts if Bill C-51 passes?

Mr. Blaney: I thank you for your question, senator. It is indeed very troubling to see these young people who have become radicalized and who wish to take action. That is why the bill on antiterrorist measures provides for provisions that will allow our officers to be in a better position to intervene at an earlier stage in the radicalization process. We will therefore be in a position to reduce the radicalization phenomenon at source and avoid the criminalization of these people.

It is important because the parents may be faced with the choice of seeing their child leave and risk their lives for these extremist ideologies, or find themselves with a criminal record. We can intervene upstream of this phenomenon. In the sphere of precriminalization, some components on the criminalization of terrorism will allow us to put a stop to these activities on websites that promote terrorism.

As for these investigations, these are issues of an operational nature, and in that respect, I leave it to the police authorities, the provincial, municipal and RCMP forces to do the follow-up.

[English]

Senator Jaffer: Both ministers, thank you very much for your presentations. There is no doubt that we are facing some threats in our country, and we certainly have to protect everybody.

I am very much interested in how you started, Minister Blaney, by talking about prevent and detect. When Senator Mitchell was speaking about the balance, I heard a lot about the tools and what is being provided. I'd like you to expand on prevent and detect. For me, it is to reach out to the communities.

I'm very glad at long last that the cross-cultural round table has met. I would like to know how often it meets, what resources it has, and if both ministers meet.

Also, we are going to become safe if all people in this country feel safe. What are we doing to have that happen?

Mr. Blaney: I thank you, Senator Jaffer, for your excellent question.

As we need those tools to face the imminent threat of terrorism, there are built into our anti-terrorism measures preventing measures, such as the possibility for our intelligence officers to intervene at an earlier process.

The importance of the criminalization of promotion clause is important because by stopping the messaging, we are stopping, if I can use the expression, the brainwashing, literally, of those extremist ideologies. That's why we've been conducting a reaching-out activity.

I would invite maybe Commissioner Paulson to elaborate. Minister MacKay is well aware as he's taken part in many ongoing activities. But on the ground, if Commissioner Paulson would comment, please.

Bob Paulson, Commissioner, Royal Canadian Mounted Police: Thank you, minister.

Senator, I'll be brief and say that we have had a long history of prevention efforts and just your garden-variety criminality. Central to prevention is education and engagement of community members looking for those people in communities that are able to bring to bear their expertise in a coordinated fashion.

I could speak at length in terms of some of the things that are going on, not only in the RCMP and other police forces. Public Safety is rolling out a redirect program which is seeking to coordinate all of the various resources that are available in communities, coordinated in a way that is brought to bear.

What is most attractive to me in this proposed legislation, specifically in respect of the peace bond, is that it is not going to end up bringing specific prosecutions unless the person that is the subject of the peace bond is not complying with the rules; but it allows us a tool in the framework of prevention, when we assess these people coming into the high- risk area in a pre-criminal space where we believe, to the standards being established in this legislation, that we can use some authority to bring them into the program, to bring them into the prevention realm. It's a very attractive feature to this proposal.

Mr. Blaney: Senator Jaffer, I want to reassure you that this is a whole-of-government approach. You have seen the effort of the RCMP. We need to develop this counter-narrative to derail these speeches that are attracting and making these individuals fall into radicalization. We certainly are appreciative of the work your committee has done, the work SIRC has done, and also we are exchanging with our partners in a way to increase our efforts at preventing radicalization.

I would invite Minister MacKay to say a few words.

Mr. MacKay: In that spirit of collaboration, Minister Blaney is absolutely right. On the peace bond and reconnaissance applications, there is not a shaft of daylight between the way the Public Prosecution Service and the RCMP have to work. I may have misspoken earlier when I mentioned CSIS making these applications. They make applications for other types of warrants; it's police in this instance.

To come back to your question, this cross-cultural round table, which has been in existence now for more than a decade — it predates our government, and we have members who have been on for that entire time since it was founded, about a dozen, 15 members from across the country representing really the face of Canada and their perspectives. Some are lawyers, some with an education background, but really community leaders, the type of people you would expect to not only give you informed advice and perspective, but people who are deeply immersed in their communities and activities and have an understanding, as you have indicated, that we are living in a tumultuous time where there are young people who are more vulnerable and subject to radicalization, subject to the type of recruitment that, sadly, we've seen.

It's very difficult, I think, for many Canadians to comprehend that a young person, male or female, growing up in this country, would be drawn to the type of homicidal maniac behaviour that we've seen exhibited on the Internet — beheadings, burning people alive. Why they would ever leave the protections and the comforts of home to go off to an almost certain death, and a violent death at that. Far beyond this bill, we must immerse ourselves in a better understanding of what does motivate young people in the country to follow that path.

The commissioner has indicated that the police are doing more of that type of community policing, prevention, in some cases destigmatizing concerns that individuals might have about police and their government. That's part of it.

It's also some of the preventative programming that both the Justice Department and Public Safety are involved in in the type of outreach that isn't just aimed specifically at terrorism but aimed at deterring criminal behaviour.

Senator White will relate to this. I remember prosecuting a case in Cape Breton, and there was a gentleman there from Whitney Pier.

Senator White: Not related to me.

Mr. MacKay: Not related. We had a young man that day who was probably going off to spend a bit of time, courtesy of Her Majesty, at a correctional centre. And they had a very good baseball team in Glace Bay around that time. This older gentleman was speaking of the merits of sport, but it would also include music, dance and the arts. But he said to me that day, "Around here, growing up, it's sports or it's courts.'' I thought that expression was very succinct, and if we can do more to prevent a more attractive, productive alternative for young people, I think this goes a long way in the area of prevention that we're talking about.

The Chair: I want to make a comment as the chair. We keep referring to young persons here. There are a lot of young adults involved in this. The VIA Rail court case demonstrated that these are people in their twenties, well educated, well financed. I don't want to give the impression that we're dealing with juveniles here because we're not, in most cases.

Senator Runciman: A quick question to Minister Blaney about the secure air travel act, clause 8, that spells out you ". . . may establish a list on which is placed the given name, the surname,'' et cetera.

We have had a couple of folks who have slipped by authorities in the last little while, at least one who had his passport seized but somehow was able to leave the country and I gather is in Syria now. I'm curious, whether it's a serious matter or not, as to whether that should include a photograph or image. Does this preclude us from using facial recognition technology which would deal with situations like those individuals who, for whatever reasons, using fake ID, apparently, were able to slip through the cracks? Should that language be incorporated in that clause?

Mr. Blaney: I thank you for your question. While we heard our witness, we certainly feel there could be a need to be more specific and that we could clarify the role of the minister. The goal of this section is clearly to prevent any high- risk traveller from moving away. In terms of whether a photograph would be needed or not, I would certainly be open to your recommendation.

Senator Kenny: I have two brief questions. They are both to Mr. MacKay.

I didn't understand your example about being in the U.K. and going to the conference and finding that a member of the parliamentary committee there was involved in cash for access. I don't understand this example. What's the difference between him and Mr. Porter, who served on SIRC?

Mr. MacKay: The example I was giving was a person who was a member of the parliamentary committee, not the external oversight body. That was the individual in question who had been impugned.

Senator Kenny: Right, but if we have rotten apples in one country on a parliamentary committee and a rotten apple on an appointed committee, why are you giving us the example?

Mr. MacKay: To suggest that somehow a parliamentary committee would give better insight into the types of security breaches or activities of our security forces, I'm suggesting that in the U.K. where they have that example, it hasn't always worked to their advantage.

Senator Kenny: You and I were on a committee together. We were appointed by then Deputy Prime Minister Anne MacLellan. We visited the Five Eyes, not all of them. We didn't get to New Zealand, but we got to Australia. We looked at the U.K., and you came away quite enthusiastic about parliamentary oversight. You supported the majority opinion of the committee that Canada needed one and there was a template there for it. Why did you change your mind?

Mr. MacKay: Why didn't your government accept the report?

Senator Kenny: Well, I'm sorry; I'm a senator.

Mr. MacKay: That's true, with no affiliation, I know; formerly known as a Liberal senator.

Look, I think it's clear that the example I gave — we also have other more recent examples in our own Parliament where, for example, a confidential list of potential Supreme Court appointees was leaked by a parliamentary committee.

So for matters of national security, I am concerned about the handling of sensitive information that could literally put a person's life at risk. This is not to condemn in any way the workings of a parliamentary committee, but the handling of this type of information, if ever used for partisan purposes, if ever leaked, even in sometimes a partial way, could very much put national security interests at risk.

So my thinking has evolved on this. Experience at the Department of Foreign Affairs, the Department of Defence and now this department tells me that expert, independent, arm's-length oversight, with the ability to follow information and activities, serves the country better than a parliamentary and sometimes highly charged partisan committee.

The Chair: Colleagues, it's five past six. I'd like to thank the ministers for appearing.

Mr. MacKay: Chair, I have a very brief paper both in French and English that deals specifically with the misconceptions around the advocacy provisions of this bill that I would like to leave with this committee, with your discretion.

The Chair: We'll take it as tabled. We'll provide it to the clerk and she'll make sure we get copies of it. Thank you for coming and spending time with us.

Mr. Blaney: Thank you.

Mr. MacKay: Thank you.

(The committee adjourned.)


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