Philip Toone

[Protection of Canada from Terrorists Act, December 8th, 2014]

Mr. Speaker, that is a very valid question. I think there are an awful lot of improvements we could have made to the bill. His suggestion is certainly one that I think we should have taken much more seriously at the committee. Regrettably, although amendments were brought forward, none were retained by the current government. I think we should have taken a lot more time to review this bill.

I would remind the members that the Arar commission also made a series of recommendations, including recommendations to improve parliamentary oversight and to improve SIRC with a new agency, INSRCC. None of those proposals has been retained by the current government. We have not heard from the government how it plans to implement any of the recommendations from the Arar commission in any meaningful sense.

I wish the government would just allow the bill to go back to committee at this point and start over, because, frankly, the government botched it and we need to have another go at it.

[Protection of Canada from Terrorists Act, December 8th, 2014]

Mr. Speaker, today, I have the honour to rise to speak to Bill C-44.

The bill would amend the Canadian Security Intelligence Service Act and other acts. It is a troubling bill, one that I do not believe I can support.

I will start by citing a recent article in The Globe and Mail, October 27. In that article, it states:

In recent rulings from several courts, Canadian judges had prevented CSIS from getting new powers through legal decisions, saying that these could only be conferred by Parliament.

For example, the Supreme Court last year declined to give CSIS informants a “class privilege” intended to better shield their identities in court proceedings. And, last year, Federal Court Judge Richard Mosley reined in a telecommunications-intercept power--known in CSIS lexicon as a...domestic interception of foreign telecommunications” warrant.

CSIS officials have said the Federal Court ruling created a “black hole” obstructing their pursuit of “homegrown” terrorism suspects migrating to foreign war zones.

C-44 allows CSIS to better shield informants’ identities.

It would also allow CSIS--with a judge’s approval--to capture conversations involving Canadian suspects taking place abroad.

I will end with the final part, which states:

“Without regard to any other law, including that of a foreign state, a judge may in a warrant …. authorize activities outside Canada to enable the Service to investigate a threat to the security of Canada,” the legislation reads.

It is a very clear exposé of what this bill intends to do, so I encourage people to read that article. It shows exactly where we are going.

Let us go through a short history of why this bill is being presented in the House.

Back in the day when CSIS was created, it was assumed that because its enabling legislation made threats to Canadian security abroad, there may be an implicit right to do some of the things that this bill pretends to deal with. We will remember that CSIS was created after a barn burning ceremony in Quebec where the RCMP was found to have overextended its rights and obligations, and investigated Canadian citizens without legal warrant and legal cause. The Keable Commission in Quebec then was struck and the McDonald Commission, its parallel commission, was struck by our Parliament. After that, CSIS was born.

It has been a work in progress ever since. The government argues that we have not modified the legislation in 30 years. Perhaps a review is warranted. Certainly the Canadian public is becoming more conscious of security threats and having a more exhaustive debate on this subject is probably warranted. The problem is that we do not have an exhaustive debate; we have an express debate. We have a very fast debate and we do not have a lot of input from the experts.

If we look at the short history of why this is being brought forward, we can bring forward the question of the Supreme Court decision in 2007, where CSIS was seeking surveillance assistance from our allied spy services, which we have mentioned a few times in the House as the “Five Eyes”, the allied security services in Canada, New Zealand, Australia, United Kingdom and United States.

There was a further court case in 2008 by Federal Court Justice Blanchard, which specifically stated that the CSIS Act did not contain extraterritorial provisions with respect to covert surveillance. There starts the slippery slide toward the new legal status quo where we do not believe CSIS has the overseas powers that it may need to do its job. However, the problem is that we may have gone too far. I will get back to that in a moment.

We further went on in 2013, where Federal Court Justice Mosley, as was referred to in The Globe and Mail article, not only suggested that CSIS had overstepped its bounds with extraterritorial powers, but if it continued, it would be illegal and he would take steps.

There was reason to bring the bill forward, and I do not discount that. Unfortunately, the government seems to not want to hear from the experts. One of those experts is the Canadian Bar Association, which is surely one of the better organizations to get an interpretation regarding current bills.

I will start with the statement that representatives of the Bar Association tabled with the committee, but were not able to present as they did not have time. Nor was the committee open to extending the time to give the representatives the chance to actually testify.

The Canadian Bar Association made it very clear that, in its opinion, section 18 of the proposed act would actually reduce the protection that Canadian citizens had. In fact, if a confidential human source provided information about a matter that did not result in a judicial hearing, the CSIS Act would no longer prohibit disclosure of either the information or the identity of the source. The proposed section 18 of the CSIS Act would protect disclosure from sources, but only if they were disclosed in judicial proceedings. However, the current article 18 of the act will actually protect those same informants regardless whether proceedings are in play or not.

Therefore, the question is this. Why in the world are we removing a protection that allows people to speak to CSIS without fear of their name being disclosed? The confidentiality may very well help, but in the case of the proposed legislation, we would actually reduce the confidentiality.

I remind people in the House of the Plame Affair back in the day of the Bush administration in the United States when the identity of a CIA worker was fully disclosed. I wonder if this amendment is not trying to replicate that disaster.

I would also point out a question that has been brought up many times in our courts. With the changing attitude toward international terrorism and international threats to public security, for good or for bad, we created the security certificate proceedings, and within that we created the special advocate regime. The special advocate, again for good or for bad, is an advocate for a person who is accused, such as Charkaoui or Harkat, which are recent cases that have made it to the Supreme Court. Individuals are detained by security certificate and they are named a special advocate who is well trained and well versed in security matters.

I really wish the representatives of the Canadian Bar Association had a chance to speak to the committee, because their presentations and concerns are well-founded and certainly worth listening to. However, I will point out, as did the Canadian Bar Association, that in Charkaoui, the Supreme Court accepted that the national security concerns could justify procedural modifications, including limits on the open-court principle, but indicated that those concerns could not be permitted to erode the essence of section 7 of the charter, and that meaningful and substantial protection would be required to satisfy section 7.

If members will recall, section 7 is the section that provides some protections, and I will read it into the record. It has been said but I will say it again:

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

The problem with the bill as it stands now is that it seems to be going in a direction where we would removing people's fundamental rights as protected under section 7 of the charter. These matters would almost certainly be challenged in the courts.

I do not have a lot of time to bring other matters forward regarding the bill, but the only protection we seem to have is with the Security Intelligence Review Committee, SIRC, which has been challenged on many occasions as being simply a part-time committee. It is not a committee of the House, but a committee appointed by the Prime Minister. Currently, two of the five seats are vacant. There is only an interim chair of the committee who has not had the opportunity to call meetings of the committee nearly as frequently as there should be.

I would like to have brought more issues forward, but I will leave it at that for now. I am open to questions if members have more concerns that they would like to raise.

[Protection of Canada from Terrorists Act, December 8th, 2014]

Mr. Speaker, I would like to thank the hon. member for his very interesting and and telling speech.

I would like to ask the member a question regarding the process. Indeed, there was very little time in committee, as he quite rightly mentioned in his presentation, to discuss the terms of this bill. We have heard from many experts in the field that a legal challenge is highly likely, meaning there will be an awful lot of wasted time and energy in front of the courts challenging the terms of this bill, likely meaning we will have wasted a lot of taxpayer money defending the undefendable.

Would it not have been a more judicious use of our time and energy in the House to put the bill through more exhaustive discussions instead of forcing individuals to spend their hard-earned money in front of the courts, perhaps having to ultimately bring it to the Supreme Court, a truly supreme waste of resources?

[Protection of Canada from Terrorists Act, December 8th, 2014]

Mr. Speaker, I thank my colleague for his interesting intervention today. It speaks to the quality of the research he has done on this bill.

It should alarm a lot of Canadians that we seem to yet again be going down a road with a bill that could likely be challenged in the courts. It is a bill that we yet again have spent insufficient time drafting in this House, and it is likely to fail in front of our tribunals. Quite frankly, I wonder why the government seems to want to support our esteemed lawyer friends instead of the Canadian public in its pursuit of rights and freedoms.

Be that as it may, I am interested in the member's discussion on SIRC and the recommendation that a new oversight committee should be established that may be more forceful and have more of a role to play than the current oversight committee, which we know as SIRC. I wonder if he could elaborate.

[Drug-Free Prisons Act, December 8th, 2014]

Mr. Speaker, I listened carefully to the speech given by my colleague from Québec. She raised some interesting points about how the bill contains some rather unrealistic measures. Since the Reagan years and the 1980s, it does not seem as though the zero tolerance policy has been working.

Today, there are almost 2,000 offenders in our prisons—2,400 if we count those who are on the waiting list to attend a substance abuse program. That is why I believe that the government is not investing enough in programs to help offenders overcome their addictions. Approximately four out of five offenders arrive at a federal institution with a past history of substance abuse. There is therefore a great need, and services are insufficient to meet it.

Would the member care to comment on that?

[Yukon and Nunavut Regulatory Improvement Act, December 4th, 2014]

Mr. Speaker, I believe the member brings a fair point to this place.

If this House is going to take its responsibilities seriously, I would encourage all members to start reading the rulings of the Supreme Court that have, over time, become ever more forceful as to what the duty to consult and to accommodate looks like.

I believe the Supreme Court is showing a degree of frustration with this place because we simply are not taking that responsibility seriously. I believe the first nations are living through that frustration. We can see it in their testimony and we can see it in the disagreements that they have with the legislation brought to this place.

We need to take this duty to consult much more seriously. Unfortunately, an ideological government is badly placed to be able to take that role seriously. I think first nations would be much better off with a change in government, and I am looking forward to 2015.

[Yukon and Nunavut Regulatory Improvement Act, December 4th, 2014]

Mr. Speaker, first, I do not think that the bill has no support. It is clear that if the government brought it forward, at the least the government must support this bill, so I will give him that.

If there was a misunderstanding as to that, either I misspoke or he misheard. Either way, the limited support that this bill has will certainly please those it was drafted for. However, regrettably, the first nations have not been properly consulted, as is clear in the testimony. This House has a duty, an obligation to address those concerns, and in this bill, that duty has simply not been reflected.

The member may have a point that some people have been sufficiently addressed and may actually benefit from this bill, and more power to them. Unfortunately, the Supreme Court has made the legal obligations clear and has stressed them on so many occasions on so many challenges that were brought to its attention. I do not understand why the government has not taken the time to reflect on those decisions of the Supreme Court and wonder if this bill is not going to go down that same path and go down in flames.

[Yukon and Nunavut Regulatory Improvement Act, December 4th, 2014]

Mr. Speaker, I thank my colleague for his question.

This bill has triggered a debate that should have been held in Yukon long before it reached the House. The government should have taken the time to hold consultations. Unfortunately, this is not the first time the government has chosen this approach. The government has invoked closure 84 times to limit the time we have to debate bills in the House. That is what it is doing on the ground too: limiting consultation with the first nations and people.

This government has made it very hard to achieve consensus or gain the support of community groups and organizations. Social acceptance is just not in the picture. That is a big problem.

We cannot continue to have a government that disregards its duty to help people and protect our rights. This government is very ideological and does whatever it wants. Unfortunately, that means that, sooner or later, many of these laws will be challenged in the courts and overturned. Then we will have to start all over again. What a waste.

I would sure like to know why the government wants to hand so much money over to lawyers.

[Yukon and Nunavut Regulatory Improvement Act, December 4th, 2014]

Mr. Speaker, that is a reasonable question. That question has been brought to the Supreme Court and other court levels on many occasions. It is certainly an evolving process, but the evolving process is pointing in the direction that we need to be much more forceful and forthcoming in our consultation in order to determine the degree of accommodation that must be had.

I would like to point out that the Council of Yukon First Nations was very clear in its testimony at the Senate. When it came to consultation, Ruth Massie, Chief of the Council of Yukon First Nations, said that Bill S-6 proposed amendments that were not discussed by the Council of Yukon First Nations. It might have been consulted on some aspects, but it was clearly not consulted on others. Therefore, it is pretty hard to determine the level of accommodation if the consultation never happened in the first place.

[Yukon and Nunavut Regulatory Improvement Act, December 4th, 2014]

Mr. Speaker, I will take your good counsel on this matter.

To further debate on this bill, it is very important that the government understand that environmental protection is a fundamental obligation of this House. We need to ensure that our environment is going to be there for future generations. We all want to benefit from its wealth, from the bounty it brings us, but we need to do it in full consultation and full agreement with the people who live on those lands.

The current government has had extreme difficulty in being able to bring forward legislation that brings this consultation process to the fore. We need to recall previous bills that this side of the House certainly had a lot of difficulty with, such as Bill C-38, which gutted environmental protections in this country. We see with this bill that we are again going in the same direction.

Environmental protection is an obligation; it is a duty on our part. We want to ensure that resources remain. We want to ensure that people can continue to benefit from the wealth that this land brings us. It is not simply a theoretical question. In my riding, when we speak to environmental protection, we are talking about the fundamental industries that make my riding economically viable: the forestry industry, the fishing industry, the mining industry. We need those environmental protections so that future generations can exploit those resources and, unfortunately, Bill C-38 scrapped those.

With Bill S-6, we have a situation where those who live in Yukon have challenged this legislation insofar as they have not been consulted adequately. In fact, there have been threats of legal action against this bill. I sometimes wonder if the current government is not simply here to ensure that lawyers have as much work as possible challenging its bills before the courts. Let us remember that the Supreme Court, over and over again, has identified that the duty to consult is not a duty to be trifled with.

My colleague recently mentioned that the courts, in June of this year, came up with even stronger language. The court has made it clear that the government not only has a duty to consult but has a duty to accommodate. The duty increases with the responsibility and the rights of first nations on their land. In the case of this bill, we have a number of first nations representatives who have told us precisely why they do not agree with this bill.

A few representatives of first nations have been very clear. I will start with Mary Jane Jim, councillor from the Champagne and Aishihik First Nations. She has already testified and has said very clearly that in her opinion there are concerns regarding Bill S-6. They are subject to the matters raised during the five-year review. It is her view that the Yukon environmental assessments have been operating effectively and efficiently since 2003, but that Bill S-6 would amend this process so that the proposed Bill S-6 would breach the Crown's duty to consult and accommodate with respect to the proposed changes to YESAA.

Mary Jane Jim goes on to point out that:

The CYFN and Yukon First Nations assert that the federal government would breach its constitutional duty to uphold the honour of the Crown when it proceeded unilaterally with amendments to the YESAA. These are matters that were not discussed or raised during the five-year review or, in the case of the amendment that would create exemptions for project renewals and changes, contradict agreements reached during the five-year review.

This is the opinion of one person, a representative of first nations. I am going to bring more testimony that was brought to the fore already, to the other House.

Let us be clear. The representatives of first nations are dissatisfied with this bill. This bill does not go far enough in consulting first nations, nor does it go far enough in protecting the environment. It was done in a secretive way. There are a number of organizations that feel that the five-year review process was not respected and they were not allowed the input not only that they were expecting but also that we are duty-bound to supply.

The Nunavut Water Board, for instance, has a number of concerns. It has already brought forward possible amendments; one of them being the question of anticipated duration, which Mary Jane Jim, the councillor from the first nations, has already brought forward in the testimony I just cited. The question of the anticipated duration of appurtenant undertaking is a very ambiguous statement.

The question from the board's perspective is that there is an absence of regulatory definition of what is an anticipated duration, what it means, and it seems to create confusion regarding enforcement. What is an anticipated duration of any project? One would have a hard time defining that from the get-go.

The difficulty is that, if there had been an adequate process of consultation, maybe these issues would have been addressed in the first place.

The problem, again, with the current government is that it is in a terrible hurry to adopt legislation, it does not take the time to consult, and it comes up with legislation that is often flawed, forcing many organizations to bring legislation to tribunals and, ultimately, possibly even the Supreme Court—a very costly, time-consuming undertaking—when in fact it would have been simpler and much more effective if the consultation had been done properly in the first place.

I would like to comment on an issue that the member for Hochelaga also brought forward, that there seems to be a strong sense, a strong flavour of paternalism in the way we deal with first nations, in the way we deal with our territories. When we do not have adequate consultation, the solutions are made in Ottawa and imposed upon people in the north.

Why would we not take the time to bring their concerns forward and have them properly addressed and accommodated for?

The consultation process is not simply a theory where we put up a website and wait for comments to come in. There is an obligation to bring those concerns forward, to address them, and to accommodate them to the extent we are legally obligated, and more. The obligation here is to respect first nations' rights and respect our environment in the long term.

Unfortunately, we seem to making legislation that brings the possibility of exploiting our natural resources at the first possible occasion and in the quickest way to make a buck. However, that is not a long-term view. That is a view that can only bring us forward for a few months, for a few years, but in the long run, we all end up losers in that process.

We should really be looking at why we put in the YESAA in the first place. The Yukon Environmental and Socio-economic Assessment Board has a reason to exist and it was done through partnership. We brought this legislation forward in partnership with our first nations. We brought it forward in partnership with those who live in the Yukon.

Unfortunately, in this particular case, we have decided that it is much more efficient—and it is certainly not my view, but it seems to be the view of the current government—to just bring down legislation as fast as possible, to use the language of the parliamentary secretary, to “knuckle under”, if we do not allow the process to just be steamrolled forward.

I do not see this as a confrontation. “Knuckle under” sounds awfully violent to me. In fact, we should be looking at a process that is conciliatory, a process that is understanding of people's concerns and that takes the time that it takes to bring legislation that upholds our rights and obligations.

There should not be a massive hurry to exploit our resources. They are not going anywhere. We need to be doing this carefully. We need to be doing this properly. We can only extract a resource once. We cannot extract it over and over again. Let us do it properly, let us do it right, and let us do in full respect of our first nations.

When it comes to what we should be doing, we should have a broad public consultation process, not a process that seems to breach the five-year review that we are legally obligated to bring forward. The YESAA should be operating effectively and efficiently, but at this point it does not seem that the amendments that are being brought forward by this bill would support the process that was put in, in the first place.

When it comes to our NDP leader from Yukon, Ms Liz Hanson, she made a very good point at the Yukon legislature, I thought, where we need a relationship built upon dialogue and respect.

She pointed out that 11 years ago, devolution gave the Yukon government province-like powers for land and resource management, that this was an important step in Yukon's history and that it was crucial to Yukon's ability to determine its own future, one that was grounded in respectful relationships among Yukon first nation governments and the Yukon government.

With the proposed changes that the YESAA brought forward, there was a made in Yukon solution for a made in Yukon economy. It was a made in Yukon proposal that was adopted by those who lived in Yukon. Today we have a relationship that does not seem to be based on dialogue and respect. It seems that we are trying to barrel it through.

There was an editorial in Yukon News in June, 2014, around the same time the Supreme Court came down with the ruling that amplified our duties and obligations to first nations. I would like to quote this editorial from Yukon News on June 13. It said:

A long list of people deserve raspberries for this needlessly shady behaviour. At the top of the naughty list are Senator Daniel Lang and [the member for Yukon], who are supposed to ensure that the interests of Yukoners are represented in Ottawa. Instead, they’ve kept the public out of the loop, other than [the member for Yukon] uttering vague generalities about the forthcoming changes without offering any meaningful specifics.

The newspaper goes on to say “shame on them”.

I have difficulty with a process that does not seem to have widespread support and that does not seem to reflect the obligation of consultation.

Let us go back to some discussions that were brought forward by the leader of the Council of Yukon First Nations. Ruth Massie, Grand Chief, who pointed out, “The Council of Yukon First Nations reiterates that the five-year review has not been completed”. Are we respecting our terms, agreements and the obligations? According to the Council of Yukon First Nations, the answer to that is a clear no.

There are three issues that the Yukon first nations say remain outstanding. It is worth mentioning what they are.

The first is:

Future Review: It is expected that the YESAA process will require adjustments to deal with future circumstances and ensure effectiveness and efficiency. Some provisions have not been operational. Therefore, it would be prudent for the parties to commit to undertake another review of the YESAA process in the future.

We need to have continuous reviews and input to ensure our legislation stands up. We need adequate funding for Yukon first nations. This is something we have heard frequently in the House. The government seems to impose obligations on first nations, especially lately. It seems to be imposing obligations that are very onerous. They are obligations that we do not even impose upon ourselves, yet we do not give the first nations the capacity to meet them effectively.

Going back to the testimony that was brought forward by the Council of Yukon First Nations, it says:

If the YESAA process is to operate effectively and efficiently, Yukon First Nations must have the resources to fulfill their duties and participate fully in the assessment of projects within their respective traditional territories. Due to the significant increase in the number, scale and complexity of projects proposed in certain areas of the Yukon Territory, this issue has been raised repeatedly by the Council of Yukon First Nations.

The third point that the Council of Yukon First Nations wish to underline and address as a strong objection to the bill is the engagement with affected Yukon first nations. It said:

The CYFN has proposed that a territorial or federal decision body must engage with the Yukon First Nation when it is considering recommendations from the executive committee or a designated office with respect to projects that may affect its Aboriginal treaty rights, titles and interests. This engagement must take place prior to the issuance of a decision document.

This is probably the one that is of greatest concern to me. I do not understand, knowing what the Supreme Court has said over and over again about our duty to consult and to accommodate, how it is possible that first nations are coming back and saying, yet again, that we should be consulting with them before we impose a decision upon them.

I thought that was made clear by the Supreme Court of Canada. I thought the government actually listened to the laws of this land. We are certainly very busy legislating in this place, but we do not seem to be taking the time to read in this place.

I would really enjoy hearing from government members as to why first nations of our country continuously repeat that they are not being heard. The consultation process is clearly inadequate. From the readings I make of the Supreme Court of Canada rulings, it agrees with first nations on this point. They simply are not being heard as far as our obligations toward them is concerned. First nations have the right to be heard and they have the right to expect that we will accommodate them. Unfortunately, we seem to be steamrolling decisions that do not accommodate them, making it possible for companies to come in and exploit the resources regardless of local concerns.

It is a poison chalice when companies come in and try to exploit a resource without adequate consultation and without adequate local support. Ultimately, the process becomes flawed and those companies must expend enormous resources to backpedal in order to compensate for the lack of work that was done by the government with its legislation. We should not be imposing that kind of burden on our resource companies. We should help them to adequately, properly and respectfully exploit our resources so that long-term benefits can be had by all.

There is no reason why we all cannot benefit from our resources, but unfortunately the Conservative government insists that it knows better than anyone else and steamrolls legislation through at all costs and with all speed. The fact that today two motions were brought to this place regarding time allocation speaks to the fact that the government just simply does not want to take the time to listen.

Bill S-6 proposes amendments that were not even discussed with the Council of Yukon First Nations. This is reason for deep concern. How is it possible that the Council of Yukon First Nations was not consulted regarding the modifications? The Conservatives say that they consulted hundreds of people in Yukon regarding this legislation, and I am happy they have.

However, the Conservatives seem to have side-stepped consultation when it comes to representatives of first nations. I do not understand their reasoning for this. If the Council of Yukon First Nations is saying that it is not being heard, then I suspect this bill is probably yet another one that will be brought before the courts because of its inadequate consultation process. Ultimately, bad consultation means bad legislation. We are not going to have the proper safeguards in place and we are not going to see the benefits being shared as they should.

We should stop being paternalistic in this place. Yukon has the right to govern itself. We have had that discussion in the House. There seems to be agreement in principle that Yukon should have much more autonomy than it has now. Unfortunately, with Bill S-6, we seem to be turning the clock back to a process where the House will decide for first nations and for Yukoners what is best for them. I do not agree with that process.

It is important that we take time to reflect on this legislation. I would like to hear from the parliamentary secretary. I would like to hear from all members of the House. I would especially like to hear any comments that the member for Yukon might have regarding the legislation.