Honourable senators, I rise to speak at the second reading of Bill C-59, An Act respecting national security matters.

My views on this bill, and on national security in general, are in part shaped by my time living in the U.S. in the days and years following 9/11 and subsequent visits to Afghanistan.

Although yesterday marked the fourth anniversary of the attack on Parliament Hill, Canada has been spared, by and large, the horror of frequent or large-scale incidents of terrorism, more by virtue of our rank in the world’s nations rather than because of our preparedness.

Of course, we will never know about all the close calls because our security forces, in cooperation with our allies, did their job, and because citizens who saw something said something.

Bill C-59 attempts to make some of the security imperatives spelled out in its predecessor bill, Bill C-51, more Charter-proof, and that is helpful.

Oversight and accountability of our intelligence agencies is important, but so is the ability to respond to threats as they unfold in real life and in real time. So we must allow our agencies some latitude if they are to be operationally effective.

Informed and timely oversight, I believe, actually allows our security agencies to function more effectively because when the rules are clear, people know what to do and what not to do. But, as we all know, more and overlapping levels of regulation or more bureaucratic hoops seldom ensure transparency but will more likely hamper operational effectiveness.

This bill calls for an intelligence commissioner to oversee the Communications Security Establishment and would have a mandate to approve foreign intelligence and cybersecurity authorizations issued by the Minister of National Defence. But how workable is the structure? For example, is a part-time position the most appropriate tenure? What about staffing and research components? Is it necessary for the intelligence commissioner to be a retired Superior Court judge? Can we ensure that the individuals in the commissioner’s office have expertise on the range of related terrorism issues which are often grey areas in law?

Of course, we need to assess the legalities of operations, but we must also determine whether they are reasonable or necessary, and that requires political accountability. And who is ultimately responsible — the judge or the minister — for a failure to act or for actions outside the law?

Some of these same questions arise when we consider the creation of the new review board, NSIRA — the national security and intelligence review agency — which would replace the existing SIRC — Security Intelligence Review Committee — and the Office of the Communications Security Establishment Commissioner. They would be able to review the activities of CSIS, CSE, CBSA, FINTRAC and the RCMP when their actions relate to national security.

NSIRA can direct a department to review its actions and ensure that they are compliant with the law and ministerial direction.

Although I support the basic operational structure of NSIRA, I think it will be necessary for one or more Senate committees to evaluate how, through the interpretation of this bill, NSIRA will define “timely oversight.”

As I have already noted, formal review does not automatically mean transparency. It is easy to camouflage important information or problems deep in a 500-page report delivered on a Friday afternoon, and it is always tempting to blame the other guy or push off responsibility to other departments. So it is really important that we assess the range of intelligence-gathering activities allowed and the ability to share information amongst separate agencies and with allies in a timely way.

I realize it is difficult to predict all the potential and various scenarios that could unfold in this country, but hearing the testimony of subject experts will help us meet our responsibility as senators.

Allow me a few words on the intelligence-gathering process — another key part of this bill. Our national security agencies actively gather, share and store information. Some put personal privacy above all else. Others want governments to be more aggressive in preventing violence and acts of terror and are willing to forfeit a little privacy for the sake of our collective safety.

I will defend a constitutional right to privacy, but we all have a right to be protected from acts of terror.

As security expert Scott Newark testified in the other place:

. . . they are rights that exist in the context of a civil society. That has ramifications . . . of what citizens are entitled to expect of their government. I don’t want government intruding on my privacy, but, at the same time, if government has the capability of accessing relevant information and acting on someone who is a threat to me and my family, I expect, under my civil right, that . . . government will do what it needs to do to extend that protection.

In other words, all of us have a right to be protected.

Our national security policies must be viewed in the context of today’s reality: the horrors of 9/11 have faded, and our technological reality is also very different. BlackBerrys were a new thing back then. Today, we willingly give up personal data so that we can do online banking or get a head start on Christmas shopping on Amazon, with deals offered to us based on previous purchases.

So let’s not impose a double standard on our security services with expectations that they must be perfect in all cases in respecting the privacy of others when we, through our own actions, make ourselves vulnerable.

More importantly, if a terrorist recruits online, there too should be consequences, and our security officials need the ability to act in preventive ways.

This bill, I fear, makes it a little more difficult to make a preemptive arrest to stop a crime or a terrorist act, but it needs study.

Bill C-59 will give CSE its own statutes, and its functions will be defined in law rather than left to ministerial discretion.

As I understand it, CSE can be proactive, not just reactive or defensive. CSE is responsible for protecting cybercritical infrastructure, which is the most consequential threat to our national security today. But, again, their mandate is limited, so we must explore the scope, definition, language and its intent.

There is a related concern highlighted by Pierre Paul-Hus, Vice-Chair of the House of Commons National Security Committee, regarding the definitions of terrorist propaganda and the evidentiary threshold.

In the old bill, the Criminal Code’s section 83.22(1) applied to:

Every person who . . . knowingly advocates or promotes the commission of terrorism offences in general . . .

Bill C-59 would introduce a more stringent test by changing the wording to:

Every person who counsels another person to commit a terrorism offence . . . .

Some argue that using the expression “another person” means that the offence must target someone specifically rather than the broader target of terrorist networks. This concern has been raised by many security experts, and my personal preference would be for a broader net.

Regarding the definition of “terrorist propaganda” in subsection 83.222, will it now, as some fear, significantly reduce the ability of law enforcement to take down terrorist propaganda?

Colleagues, we are all aware that the issues of national security are controversial. We all come to the table with a world view shaped by our own experiences, but it’s our job to engage in debate around these sensitive issues — for example, the extent to which police and our security forces are allowed to know who is coming and going and whether they can detain or debrief people of interest abroad.

In this chamber, and in the country at large, we all reacted differently to the $10 million payout to Omar Khadr and to the ethical predicament we have found ourselves in by allowing the flow of queue jumpers coming across the border in apparent defiance of the safe third country law. For some they are illegals, whereas for others they are asylum seekers.

Then there is the current issue of the return of foreign fighters. What should their fate be after their despicable and heinous behaviour that put our soldiers at risk?

And what about Huawei, the giant Chinese telecom that offers next-generation mobile networks? There are media reports that CSE is already working in labs built by Huawei, leaving us all vulnerable to state-sponsored cyberattacks.

Colleagues, this is a complex bill to be studied carefully and examined within the context of today’s reality. It’s a different time and place, but threats to national security exist and must be met.

And if, through the process of debate and committee scrutiny, the Senate recommends amendments, we must hope that the government, on this crucial matter of national security, is genuinely open to advice and open to improvement.

Let’s work together to move this bill to committee as soon as possible.

Thank you.