Honourable senators, I rise today to speak on Bill C-59, An Act respecting national security matters.

Senators, this is a broad piece of legislation that touches on many aspects of our national security. In my view, the legislation falls into three components: those components of the legislation that are supportable; those components that may be repairable if amended; and those components that are fundamentally flawed and cannot be supported.

Some components of the legislation fall into the first category. For instance, I agree there have been gaps in Canada’s cybersecurity legislation that this bill looks to address. I also believe most Canadians would support measures to address the wrongful placement of Canadians on the no-fly list.

Unfortunately, however, other components of the legislation fall either into the second or third categories. In this regard I’m quite concerned with the philosophy that underlies this legislation.

The bill is clearly premised on the belief that some components of Canada’s current national security legislation go too far in empowering our security agencies when it comes to the protection of our national security and the prevention of terrorism.

It is this premise with which I fundamentally disagree.

For one, it erroneously implies that Canadian civil liberties have been compromised under existing legislation; and two, it implies the current threat environment permits us to relax our guard.

This approach constitutes a grave error, in my view. To illustrate this, I will refer to a few key components of the bill.

The bill proposes to eliminate the offence of advocating and promoting terrorism. It has been argued by the government this provision is too broad and, as a result, the offence of advocating or promoting terrorism should be eliminated and replaced with a more specific offence of counselling to commit a terrorist offence.

The flaws in this proposal were identified very eloquently by my colleague Senator Frum when she spoke to this bill.

Witnesses appearing before the House committee made it quite clear that removing these provisions from the bill will make it more difficult for the Crown to bring charges against those who openly advocate for terrorism.

(1440)

The advocacy of terrorism commonly occurs in social media, where its core purpose is to radicalize vulnerable youth and to create an environment where acts of terrorism are committed.

Even so, the government argues that the current law is overly broad and that the provisions are therefore unconstitutional. There is, of course, no court case to support this assertion, but the government nevertheless anticipates that this could be the outcome should the law ever be challenged. In essence, the government is not arguing that individual rights are being compromised; they are anticipating that they will be compromised.

We should also be clear that they are anticipating a potential threat to the civil liberties of an individual who’s advocating for terrorism and that, in effect, these liberties should trump the rights of young Canadians who are being endangered by such advocacy.

It is clear that some senators opposite hold the same position. However, in my view, this position is not only wrong in terms of the problem it is focusing on, it is also not a position that is universally supported even when one looks at the constitutional argument alone.

David Matas, who acted as counsel before the Supreme Court in the case of Keegstra and as an intervener in the case of Sharpe, told the House of Commons committee studying the bill that there are abundant legal guidelines about the concepts of advocacy and promotion and that the current provision in the law when it comes to terrorism is, in fact, constitutional.

I am not an expert on constitutional law, but I do believe when someone as eminent as Mr. Matas is saying that there is at least a debate about whether a provision in the law is constitutional, then there is an obligation to consider how the law might be made to work more effectively.

I would argue this is precisely what we should do when the Senate committee considers this bill. We need to hear from witnesses who argue that this provision is constitutional and, if necessary, consider language that might address the alleged constitutional risks that the government is raising. In general, I believe that too many provisions in this legislation place the emphasis in the wrong place. I believe that the emphasis is in the wrong place quite simply because many in the current government do not believe that the current terrorist threat is a real threat.

The current legislation is, after all, a response to the previous government’s legislation which was labelled as “overreach” by those now in power. It is therefore not surprising that the principal focus of the bill we have before us now is about weakening rather than strengthening Canada’s national security legislation. This is evident in several respects.

First, the bill simply does not address certain key and emerging terrorist threats. If one looks at the threat many European countries are facing from precisely this phenomenon, this may be one of the most serious security challenges our nation faces today. Parliamentarians have been informed by witnesses from our intelligence services that at least 60 — and likely many more — foreign fighters have now returned to Canada after fighting with ISIS abroad. These security experts have also told us that the task of simply monitoring one of these terrorist suspects can tie down dozens of CSIS officers. If we consider there are hundreds of potential terrorist suspects, both former foreign fighters and home grown threats, then the resources required to address this problem become truly massive.

What does Bill C-59 have to say about this? What provisions are there in the legislation to strengthen our ability to prosecute these individuals? Where are the provisions that make it a criminal offence to fight with a listed terrorist organization against the Canadian Armed Forces? Not only are there no such provisions in this legislation, this bill will actually make it more difficult for our security agencies to address these threats.

For one, the legislation would make it more difficult to obtain a recognizance with conditions against individuals assessed as likely to commit a terrorist act. The bill proposes to raise the threshold for using this provision by requiring that such a recognizance order be “necessary to prevent” the terrorist activity instead of simply being “likely to prevent” it.

Senators opposite argue that since these provisions have never been used, they can therefore be discarded. In my view, this is completely the wrong approach. The provisions exist to prevent a terrorist act from taking place in the first place. Surely it is not better to repeal such provisions and instead hope a major terrorist attack does not occur. Yet that is precisely what the current government is proposing. Even from just a civil liberties perspective, such an approach is deeply flawed.

In France, new legislation and measures were introduced after the attacks in Paris in the fall of 2015 that killed more than 100 people. Under French law now, severe restrictions can be placed on an individual’s freedom of movement when that individual is believed to be associating with potential terrorist elements. Individuals are subject to having their homes searched regularly by the police. They can be detained for up to four hours while such searches are carried out. Places of worship can be ordered closed if preachers are found not even to have advocated terrorism but simply to glorify it. Public servants can be dismissed from their positions for holding radical opinions.

Have senators opposite stopped to consider that by getting rid of some of the current preventive provisions in the law today, we may be inadvertently inviting more stringent and punitive legal provisions in future law should we be unable to prevent a major terrorist attack today?

I have similar concerns in relation to the measures in Bill C-59 to raise the bar for CSIS to engage in threat reduction measures. Prior to the passage of Bill C-51 under the previous government, CSIS officers were not even permitted to speak to individuals for the purpose of diminishing a potential threat. They could not, for example, approach the parents of a radicalized youth and encourage them to intervene with their own child to prevent them from potentially joining a terrorist group.

That authority did not exist for CSIS officers, colleagues, but Bill C-51 closed a serious gap in Canada’s legislative framework and permitted CSIS to engage in threat disruption activities. These might encompass simply speaking with individuals to disrupt potential terrorist threats. I think that’s only logical. Or they might involve more active measures that may be pursued, perhaps in the course of an investigation. Active measures that contravene the Charter of Rights and Freedoms or may otherwise be contrary to Canadian law require a judicial warrant.

Bill C-59 now before us proposes to put in place new impediments in the exercise of these authorities. The legislation proposed to add provisions requiring any measures to not be simply Charter compliant but to also be found by a judge to be “reasonable and proportionate.” Even when warrants are not required, a national security justification regime will assess potential impacts and evaluate whether other federal departments have been consulted about their ability to reduce the threat instead of CSIS.

The list of prohibited threat reduction measures will be expanded to prohibit the detention of any individual, any serious damage to property and any act defined as “degrading.” It is not clear how these terms will be defined or how their interpretation might differ depending on the judge hearing a submission. Accompanying new restrictions will be new reporting requirements, which are certain to increase the workloads of already overtasked CSIS officers.

One can perhaps argue about the merits of some of these specific provisions, but what is clear from an overall perspective is that the bureaucratic burdens and processes will increase exponentially.

Chief Paul Martin of the Durham Regional Police Service, speaking for the Canadian Association of Chiefs of Police, stated:

. . . my colleagues, some more learned than I, who have been involved in this field for some time, [have noted] that this discussion has been ongoing for more than 15 years in terms of how we can improve the speed, flow, and direction of this information so that we can share it in a quicker fashion.

He referenced the Aaron Driver terrorist incident, which he said “made it very obvious to the policing field how fast information moves, and how fast it has to move in order to detect, deter, and ultimately deal with a threat nationally.”

Colleagues we must ask, are the new legislated bureaucratic processes that we are putting in place enabling our security services to respond in a more nimble fashion? The government argues that raising the bar on threat diminishment powers in this way mirrors similar restrictions that exist for police under section 25.1 of the Criminal Code. However, there seems to be little recognition of the special requirements that exist when it comes to protecting national security.

I would argue that terrorist threats of the type that occurred in London in the summer of 2005 or that occurred in Paris in the fall of 2015 or that occurred on 9/11 fall into an entirely different category. Those attacks killed hundreds and, in the case of 9/11, thousands of people. It is for that reason that exceptional authorities and mechanisms are required to combat these threats. They may be rarely used, but they must nevertheless be available to security forces. This is well understood in our liberal democracies. It is very worrying to me that our current government does not seem to understand this principle.

(1450)

Colleagues, I fear there are many areas where this bill falls short of protecting Canadians. Some of these shortcomings can perhaps be addressed at committee or here in the chamber, but I fear many flaws are fundamental to the bill itself. For that reason, I simply cannot support this legislation. Thank you, colleagues.