Public Safety committee  I think with all criminal proceedings, there's a public interest component. I think we have to rely upon security officials to make informed decisions about, first, whether there's sufficient evidence and, second, whether it is in the public interest to prosecute. I don't think that kind of “cut and dried” rule that everyone who comes back....

Public Safety committee  No.

Public Safety committee  I agree with my colleague that I would favour putting that in legislation. I would just add that part of our concerns about Bill C-51 is that there is a need not only to be fair but to be seen to be fair so that very important and legitimate national security activities are not delegitimized by, perhaps, erroneous claims of involvement with complicity of torture.

Public Safety committee  I think the important thing is to get rid of terrorism offences in general, which was a very problematic part of C-51. I think Mr. Fogel may have a point that perhaps it should read, “every person who counsels any terrorism offence is guilty of an indictable offence”. I also think we should make clear that “terrorism offence” meets the definition in section 2 of the Criminal Code in order to avoid the problem that we have in C-51 of undefined offences.

Public Safety committee  Sure. Investigative hearings were one of the more draconian provisions in the first Anti-terrorism Act. I also testified against investigative hearings there, so I've been consistent on that. They were upheld by the Supreme Court as constitutional in 2004, but subject to a presumption that they be held in open court and that the rules of evidence apply.

Public Safety committee  Yes, I mean that the proposal taken from section 10 of the U.K. Terrorism Act 2000 is simply to allow a group that thinks it is wrongly listed to be able to challenge that without the very act of challenge being the subject of a charge of, say, financing a terrorist group. More generally, listing is something we haven't really relied upon because most of the terrorism prosecutions we've had have not been affiliated with al Qaeda or Daesh central, but have been a bunch of guys, and a bunch of guys—under our Criminal Code—can themselves be proven beyond a reasonable doubt in appropriate cases to be their own terrorist group.

Public Safety committee  Yes, although having a quasi-judicial official review ministerial authorizations is a gain. The general trend, as we see in Britain, is to move away from simple ministerial authorizations. It is checks and balances, but we need to get the new committee of parliamentarians in. No slight to your committee, but the vast majority of these reports, frankly, you and I have never seen.

Public Safety committee  Yes, absolutely, and that goes back to the Arar commission report, which really shed a lot of light on the very important role of what is now Global Affairs Canada when we're talking about security activities that are, inherently today, transnational.

Public Safety committee  Professor Forcese has addressed the intelligence commissioner, but I do think that follows from the U.K. We shouldn't follow the U.K. blindly, but certainly U.K. terrorism legislation has had a huge impact on Canadian legislation. I think that's a good step. I agree with Professor Carvin, though, and Professor Forcese, that we should have that intelligence commissioner issuing reports about what he or she does.

Public Safety committee  Certainly, perhaps, removing the renewal might help the independence. I certainly realize that we're using retired judges more and more, but like with the review agency, I would actually urge Parliament to be a little more creative and perhaps expansive about the terms of appointments.

Public Safety committee  That's a very good question, and it's a tough question because the danger of oversight is that if you approve something in generalities, you might feel committed to something that happens, even if it was unanticipated. I tend to think of these things more in terms of review and that where the oversight comes in our parliamentary system is with the minister.

Public Safety committee  Mr. MacKenzie, could I also address the Miranda point?

Public Safety committee  This is exactly where I was coming from on the CSIS informer point. If you don't read someone their paragraph 10(b) rights under the charter, you're going to make it more difficult to prosecute them. One of my concerns about that, and one of my concerns about the CSIS informer privilege, is that we may actually be making it more difficult to prosecute people.

Public Safety committee  I agree with what Mr. Fogel said. I think the issue is not so much stronger security powers, but smarter security powers. I think the review process contributes to this, but I would also say that the ongoing “intelligence to evidence” consultation that the government is conducting is very important.

Public Safety committee  Necessity is, as the Privacy Commissioner said, a very well-regarded and internationally accepted standard, so I would start with that. If the sending agency is insufficiently attuned to possible security implications, then someone should make sure that they know about that and are in a position to administer whatever standard it is, whether it is necessity or whether it is relevance.