Bill C-44 (Historical)

Protection of Canada from Terrorists Act

An Act to amend the Canadian Security Intelligence Service Act and other Acts

This enactment amends the Canadian Security Intelligence Service Act to give greater protection to the Canadian Security Intelligence Service’s human sources. Also, so as to enable the Service to more effectively investigate threats to the security of Canada, the enactment clarifies the scope of the Service’s mandate and confirms the jurisdiction of the Federal Court to issue warrants that have effect outside Canada. In addition, it makes a consequential amendment to the Access to Information Act.
The enactment also amends the Strengthening Canadian Citizenship Act to allow for the coming into force of provisions relating to the revocation of Canadian citizenship on a different day than the day on which certain other provisions of that Act come into force.

Second Reading

[Kennedy Stewart, NDP, Burnaby—Douglas, BC]

Mr. Speaker, we are having a decent debate here, but I would like to have more. It is too bad we now have time allocation on it and will also not get much discussion on it at committee. However, with the time I do have, I want to touch on a key theme, which is accountability and how it applies to this act.

Of course national security is an important issue that we all take seriously, especially after recent events. However, over the past decades it has been something that all countries have taken seriously. We have had to balance national security and what keeps us safe versus accountability to ensure things do not go too far in terms of protecting privacy and the rights of citizens.

There are two kinds of accountability. With CSIS, there is the idea of accountability to the public and to the legislature. That is one general aspect. However, there is also our accountability to the Canadian public to ensure we are doing our due diligence when we are considering these laws. Therefore, the history of the previous reviews of national security are worth looking at, because they show us how past parliamentarians have shown respect for the public in considering these issues. Professor Reg Whitaker, who is a famous expert in this area, has done a lot of work reviewing this in the past, and I will borrow from some of his work today.

In the review of this, my colleagues may come across the 1969 MacKenzie report, which was really the first major review of Canadian security that we have done in this country. It was an extensive report. However, even the generation of the report was difficult, because the government could not decide how much to keep public and how much to keep private. The 1969 MacKenzie report did not come out with much of a recommendation. However, a few months later we had very serious incidents occur in the province of Quebec—the FLQ crisis and the murder of a cabinet minister. Some had viewed the actions by what was then the RCMP security forces as a huge overreaction, because not only were the separatists in Quebec investigated but it was if they threw a giant net over anybody who might be deemed suspicious. Therefore, people who were in union or left-wing organizations were under surveillance and in some cases detained, which led to a huge scandal.

I think that still sticks with many of us today, seeing as how an overreaction by a security force can not only endanger those who are involved but can cause huge national strife. Therefore, the McDonald commission reported on that in 1977. It was set up to review what had happened in Quebec and to also look at our national security service in general. It was from the McDonald commission that we had the suggestion of the creation of CSIS.

What is interesting about this report is that it came out in 1977 but it took a full three years for the government to respond. There was not a response until 1980 because these kinds of issues require serious attention and consideration: the setting up of an entirely new security body, determining which powers stayed with the RCMP and which went with the security service, deciding how this was all supposed to be administered and funded, and those types of things. It took a full three years before there was even a response to the report. It was another four years before CSIS was officially created in 1984.

This was a major undertaking but also showed the amount of consideration past parliamentarians have shown when it comes to issues of security. It stands in stark contrast to what is happening in the House today, where we have a limit on debate on this bill and these changes, and we will also have limits at committee. It is important to note that, if we are to make any changes to this body, much more consideration and time should be given for all aspects of society to come in and explain their points of view.

What I found astounding from the questions earlier was that the members on the other side were essentially saying that the committee is totally irrelevant. They are saying we have heard everything we had to hear and we do not have to worry about committee work at all because we have already heard it. They are saying there is nothing that could possibly be said that would be of interest or that could help.

I find that arrogant. I do not think there is any other word for it. When we are dealing with something that is so important that we have to get the balance right, hearing from more than eight people would seem to be a good idea.

I will give an example from the bill. CSIS would now be empowered, if there is a warrant granted, to break the laws of other countries when it is carrying out surveillance of people of whom it might be suspicious. We can think about how that may cause trouble. This is, of course, a clause that would be written into the act. If we think about it, a security intelligence officer might go to a Canadian judge and get a warrant for surveillance of somebody in another country; and that might be fine. This person may be of particular interest, but what is concerning to me is who that person is talking to.

For instance, let us say that CSIS is carrying out surveillance on an international businessperson who is from another country and flies to Washington, D.C. That businessperson then starts to talk to different members of American organizations, perhaps the government or other business interests in Washington, and all of a sudden, we have a warrant that has been issued to a CSIS officer who can then apply that warrant in the national capital of the United States. The officer could carry out surveillance not only on this businessperson who is under suspicion but also on whoever that businessperson is talking to.

We can see how we could run into considerable difficulty there. If this is allowed to go ahead and it is not changed through our very short committee considerations, we could see how it could cause difficulty, because the United States also has security forces and they might notice this. We then have international incidents that would, of course, cause us considerable difficulty.

It may also mean that other security forces may be less inclined to co-operate with us. This is the kind of thing we should be conscious of. It is one example of how extra consideration of these powers is warranted.

What we are seeing is a bit of a rush. We hear all kinds of rhetoric from the other side about the very serious events we had here and how they prompt this legislation; but this legislation was drafted before all of those events. This has been on the government's agenda for some time. Again, we should have had ample time to have full consideration of this, but there seems to be a great disrespect for this place and for others who may want to comment on this bill by again shutting down debate in the House and within committee.

I cannot tell members how much consideration to give the balance between accountability and efficiency or effectiveness of security services, in order to get it just right. Although we are supporting this to go to committee, I would urge the committee to take some time to make sure we have the proper witnesses, not just government witnesses who will back up what it wants to do. I know that the committee has some jurisdiction to this. It is not just told by the PMO exactly what to do. I urge the committee to have witnesses who will challenge this and bring up scenarios and situations that members perhaps have not spoken or thought about, so that we get this right and do not face some kind of international incident that causes embarrassment.

[David McGuinty, Liberal, Ottawa South, ON]

Mr. Speaker, I want to commend my colleague for a very sincere and thoughtful speech. He has raised a number of important, probative questions around the bill, which seemingly the government does not want to answer. The government has had a series of questions put to it here again today. The minister, several parliamentary secretaries, and countless MPs have refused to answer.

I want to ask how risky the member thinks that is. I am reminded, very much, of what happened in the United States post 9-11, in terms of the American response to a lot of the security challenges that, at that time, Congress and Capitol Hill were facing.

There has been a lot of backtracking in the United States. There has been a lot of concern about the amount of power and authority vested in its intelligence and security agencies and collection services, for example.

Maybe the member could take a moment to explain to Canadians why it is so important for us to take the time we need to improve. Everybody in this House wants to improve what we are trying to improve today. Collectively, everyone wants to make it better.

What are some of the inherent risks in going too quickly and not hearing from some of the best minds available in the country?

[Kennedy Stewart, NDP, Burnaby—Douglas, BC]

Mr. Speaker, it has been a pleasure working with my colleague on various committees. My colleague is right. “Haste makes waste” may be the proper term here if we try to rush this through and do not properly investigate the possible ramifications. We could run into all kinds of problems.

Actually, the history of CSIS itself shows that in the past there have been considerable problems; for example, with CSIS providing evidence in court. There have been investigations of how CSIS was not providing proper information during court hearings. Again, that is where proper oversight could come into play.

If there were proper oversight, if we did not just have an oversight committee that is often packed with government cronies rather than actual folks who are dedicated to the job, then we would not have these mistakes. That is a concern, not only international embarrassment but actually serious infringements of Canadians' rights.

[Randall Garrison, NDP, Esquimalt—Juan de Fuca, BC]

Mr. Speaker, I listened with interest to my colleague's speech. He raised a really essential point about this bill: if we are expanding CSIS' powers when the organization was established because of abuses of authority, then we certainly have to be looking at increasing accountability for CSIS.

I wonder if the member has any remarks about the current system of accountability in CSIS, especially in view of the annual report this year in which SIRC said that CSIS did not provide full and complete information in a timely manner to allow it to exercise its responsibilities for oversight.

That is a key of the hon. member's speech and of the essence of this bill.

[Kennedy Stewart, NDP, Burnaby—Douglas, BC]

Mr. Speaker, I would like to thank the member for the excellent work he has done on this and other bills in his role as the public safety critic.

The key here is prudence. Why risk a large mistake? Why not have increased oversight initially? If it is found to be too onerous and there are a few problems, then perhaps it could be adjusted at that point. It is better than doing it the other way around, which is to really limit oversight, have a problem, and then correct it later.

The history of CSIS has shown that is the case. There have been problems that had to be corrected. I would say that prudence in this case would be a better response: perhaps make some accountability changes to make sure that CSIS fully discloses information to the oversight body and is compelled to do so; appoint good people who know what they are doing and who are objective; then review that oversight later to see if it is indeed too onerous.

[Ryan Leef, Conservative, Yukon, YT]

Mr. Speaker, I am proud of our government's unwavering commitment to protect Canadians from terrorism and I am proud of our government's decision to stand with our allies in an international mission to counter the threat ISIL poses to the Middle East and, by extension, to the world. I am also proud of the fact that when our government says it is committed to giving our intelligence services the tools they need to keep Canadians safe, we follow through with decisive action.

In that spirit, I am pleased to rise today in support of the protection of Canada from terrorism act. Before I begin the substantive portion of my remarks, I would like to take the time to mention a couple of the recent events that brought the terrorist threat home for many Canadians.

On October 20, Warrant Officer Patrice Vincent was killed by a jihadist just outside of Montreal. The individual responsible for this terrorist attack was known to authorities, but because of the lack of appropriate legislative tools, he was able to execute his sadistic plot. On October 22, just steps from where we stand today, Corporal Nathan Cirillo was killed by a jihadist bent on terror. These horrific terrorist attacks—and, indeed, they were terrorist attacks—underscore the need for new tools for our security agencies.

Some may say that there are already tools on the books right now and that we need not overreact. To that I would make two comments.

First, two brave Canadian heroes are dead and families are ripped apart. It is clear to me that the status quo is unacceptable.

Second, we will not overreact. We will not give up our fundamental Canadian values of respect for individual rights, but we must stop under-reacting to the threats that we are facing. The bill before us today is an important first step in doing just that.

This bill contains two separate sets of amendments. First, it proposes certain technical amendments to the Strengthening Canadian Citizenship Act to allow revocation of citizenship provisions to come into force earlier than anticipated. These provisions, which are already part of an act that received royal assent, include expanding the grounds for revocation. This includes authorizing the revocation of citizenship of dual citizens who have served as members of an armed force or an organized armed group engaged in armed conflict with Canada, as well as those who have been convicted of terrorism, treason, or spying. It includes as well a streamlined decision-making process that would authorize the Minister of Citizenship and Immigration to make decisions on revoking Canadian citizenship, depending on the grounds.

The second part of the legislation, which is what I will focus most of the rest of my remarks on today, are the amendments being proposed to the CSIS Act.

For the last 30 years, CSIS has played a vital role in ensuring a safe and secure Canada. The threats we face as a country today have changed significantly since then, but the CSIS Act, the legislation that governs CSIS, has not. With the bill before us, we are taking a critical step forward in ensuring that CSIS is well positioned to confront terrorist threats as they exist today.

It is useful to provide a bit of context about the work of CSIS and the associated sections of the CSIS Act that govern that work.

Section 12 of the CSIS Act mandates CSIS to collect and analyze intelligence on threats to the security of Canada and, in relation to those threats, to report to and advise the Government of Canada.

Section 16 of the CSIS Act authorizes CSIS to collect within Canada foreign intelligence relating to the capabilities, intentions, or activities of a foreign state or group of foreign states. This is subject to the restriction that its activities cannot be directed at Canadian citizens, permanent residents, or corporations.

Sections 13, 14, and 15 authorize CSIS to provide security assessments to the Government of Canada, provincial governments, and other Canadian and foreign institutions; to provide advice to ministers of the crown on matters related to the Citizenship Act and the Immigration and Refugee Protection Act; and to conduct investigations to perform these functions.

Clearly these are all very challenging mandates, and fulfilling them requires that CSIS use a suite of investigative techniques. These techniques can include, for example, open source research, physical surveillance, interviews, and analyzing intelligence from a variety of sources. What is particularly important to note here is the importance that human sources play in allowing CSIS to fulfill its mandate to investigate and advise on threats to Canada's security.

Other techniques used by CSIS are more intrusive in nature. These techniques may include, among other things, searches of a target's place of residence, analysis of financial records, or telecommunication intercepts.

CSIS is required to obtain warrants under the CSIS Act to pursue intrusive investigative techniques. In order to obtain a warrant, CSIS must satisfy a designated Federal Court judge that there are reasonable grounds to believe that a warrant is required to enable CSIS to investigate a threat to the security of Canada or to perform its duties and functions under section 16 of the CSIS Act.

In addition, co-operation with domestic agencies is also critical. Section 17 of the CSIS Act now authorizes CSIS, with the approval of the minister, to co-operate with any department of the Government of Canada or the government of a province or any police force in that province. Therefore, CSIS works closely with the RCMP, the Canada Border Services Agency, and other government departments and police forces across our nation.

When it comes to investigating threat-related activities occurring outside of Canada, CSIS's relationship with Communications Security Establishment Canada, or CSE, is particularly important. CSIS relies heavily on the capabilities and expertise of the CSE in order to conduct telecommunication intercepts outside of Canada. CSE's legal authority to provide assistance to CSIS stems from paragraph 273.64(1)(c) of the National Defence Act.

The CSIS Act authorizes CSIS to enter into an arrangement or otherwise co-operate with a government of a foreign state or an institution of that state with the approval of the Minister of Public Safety after consulting with the Minister of Foreign Affairs. Co-operation with foreign entities is critical to CSIS's ability to fulfill its mandate. Individuals being investigated often leave Canada to engage in a wide range of threat-related activities. No country can assess the full range of threats on its own, and CSIS must be able to work with foreign partners, subject to oversight by the Minister of Public Safety and a review by the Security Intelligence Review Committee.

Now that I have outlined some of the important work that CSIS does and how the CSIS Act allows for that work, I will speak to how this legislation would allow CSIS to move effectively and operate in the evolving threat environment.

Specifically, the bill would confirm CSIS's authority to conduct investigations outside of Canada related to threats to the security of Canada and to conduct security assessments. It would confirm that the Federal Court can issue warrants for CSIS to investigate, within or outside of Canada, threats to the security of our nation.

The bill would give the Federal Court authority to consider only relevant Canadian law when issuing warrants to authorize CSIS to undertake certain intrusive activities outside of Canada.

The bill would protect the identity of CSIS human sources from disclosure and protect the identity of any CSIS employees who may engage in covert activities in the future.

These are all measured changes that would amend the legislation governing CSIS's activities so that it would have the clear ability and authority to investigate threats to the security of Canada wherever those threats might occur.

I urge all members to support this legislation. It would give our security agencies much-needed tools to protect all Canadians and our nation.

[Dennis Bevington, NDP, Northwest Territories, NT]

Mr. Speaker, we in the NDP agree with most of what is in this bill. We look forward to getting it to committee to make some amendments.

One of the things we are most concerned about is the oversight of CSIS activities. My colleague talked about the evolution of the threat of terrorism; in fact, the largest terrorist occurrence in Canada was some 20 to 25 years ago, the Air India incident. That was a major terrorist attack on Canadians in Canada.

We have dealt with terrorism in the past. We have done certain things, and if we look at the record of CSIS during that time, we would think that civilian oversight would have served Canada well in determining how that particular large and tragic incident occurred and how things transpired between the agencies that dealt with it. Civilian oversight by Canadians would have made a difference in how we viewed that event and how we moved on from it. Would my colleague not agree?

[Ryan Leef, Conservative, Yukon, YT]

Mr. Speaker, what I would say is that Canadians and the security intelligence agencies, whether CSIS or any others involved, including Canadians affected by that tragedy, would have benefited far more from the tools that we would provide today in this legislation than they would from an oversight committee to explore how it happened. Preventing that activity would have been far more beneficial to Canadians than reviewing it and trying to find lessons learned.

This body of legislation would take lessons learned from that event and from the most recent terrorist events in North America right here in our country to ensure we are not reviewing them to see what we could do better the next time it happens.

The intention of this legislation is to give the Canadian Security Intelligence Agency the opportunity, the means, and the tools it needs to stop these events from occurring. It is not to review them, in effect, but to prevent them. That is what Canadians deserve, that is what Canadians expect, and that is what this government is going to deliver for our nation.

[David McGuinty, Liberal, Ottawa South, ON]

Mr. Speaker, I have a question that goes back to the beginning of my colleague's comments.

He made a rather incredible assertion, one I have not heard before from anyone in any party, and certainly not from the government. I want to read back his words. He said that the events last month, which occurred here in my home city of Ottawa, “occurred because of the lack of legislative tools available.” That is the first time this House, I believe, has heard that kind of assertion.

He then went on to say in his closing remarks that he was looking forward to learning from what transpired here with these unfortunate events last month, and improving the situation, which we all agree is the objective of Bill C-44.

Can the member explain to Canadians precisely how he has concluded that it was a lack of legislative tools that led to the tragedies that took place in this city a month ago?

[Ryan Leef, Conservative, Yukon, YT]

Mr. Speaker, it is well known that when law enforcement agencies and security intelligence agencies have the tools that we are going to be able to provide—whether it is intercepts, utilization of human sources, or carrying on with investigative techniques that they did not have the ability to do—these tools are going to help these agencies recognize a threat before the threat manifests itself in a very real way, as happened not only in Quebec but here in Ottawa. It only stands to reason that providing the agencies with these tools is going to help them cut off these kinds of threats before they happen.

Will they prevent absolutely everything in our country? No, that is pretty clear. The tools will not stop every single threat that we face, but I do not think anybody is proposing that we are going to eliminate absolutely every threat in the nation. What we do recognize clearly is that this legislation would provide the tools that law enforcement and security intelligence agencies are telling us they need in order to gather appropriate information in an effective manner and to share that information with one another so that they can start to act on that information in a more meaningful way to try to reduce the volume and the intensity of some of these events.

As the member across the way mentioned in his initial question, terrorist events were occurring a long way back. However, although they are not happening now with necessarily the same level of intensity in one single event, they are certainly happening more frequently than we have ever seen before. These are tragic events that need to be dealt with, and we are taking that responsibility very seriously.

[David McGuinty, Liberal, Ottawa South, ON]

Mr. Speaker, it really is a privilege to be here this afternoon to participate. This is one of those debates that cuts to the very core, the pith, of what we are doing here as parliamentarians and legislators. Bill C-44, which amends the Canadian Security Intelligence Service Act and other acts, is very profound. It speaks to the powers of the state and the rights and responsibilities of our citizenry.

Moments ago the member for Selkirk—Interlake asked a question of the NDP speaker at the time, asking if New Democrats were prepared to give more rights to terrorists than to law-abiding Canadian citizens. That is another astonishing assertion and it reminds me of the very famous passage in the brilliant play written by Robert Bolt, A Man for All Seasons, which is the story of the life of Thomas More who is being prosecuted.

The prosecutor is William Roper, who says to Thomas More, “So now you'd give the Devil benefit of law”? Sir Thomas More responds, “Yes. What would you do? Cut a great road through the law to get after the Devil”? William Roper responds to the prosecutor, “I'd cut down every law in England to do that!”, to which Sir Thomas More responds, “Oh? And when the last law was down, and the Devil turned round on you—where would you hide”? “Yes” says Thomas More, “I'd give the Devil benefit of law, for my own safety's sake”.

That is precisely what we are talking about when we discuss the balance the government continues to allude to when it comes to making sure that our intelligence and security services have the power and authority to do their jobs, while at the same time safeguarding our rights. When we play fast and loose with our rights, it is a very dangerous game.

Bill C-44 is trying to make some positive improvements to the status quo. I think everyone in the House agrees with this. However, there are series of profound and probative questions that have been put to the government that remain unanswered. These are deserving of an answer, because they do cut to the chase and speak to whether or not we would give the benefit of law to the devil.

There are questions, for example, like why the government cannot explain why legislation already in place has not been enforced. Specifically, under the provisions of the Criminal Code brought in by the government in 2013 in the Combating Terrorism Act, why have we not seen a single prosecution? I raised the question earlier to a former peace officer who has sworn an oath to uphold the rule of law, and his answer was, “You're criticizing law enforcement agencies”. I am doing nothing of the kind. I am asking why, if we know there are anywhere between 80 and 145 Canadians who have been abroad participating in terrorist activities on foreign soil, there has not been a single prosecution under the new powers brought in by the government just a short year ago?

Canadians deserve an answer from the government. The sections of the Criminal Code are 83.18, which relate to laying a charge against an individual attempting to leave Canada to participate in a terrorist activity; or 83.3, which could be used to place recognizance and conditions on those suspected of terrorist activity; and section 810, related to peace bonds and possible detention. We have not received an answer.

The government likes to speak about being a sovereign state and having its own standards—not being bound by its partnership with the Five Eyes, and not relating to the work and best practices of the United Kingdom, United States, Australia, and New Zealand. It says that it is sovereign when it comes to security issues, yet when it comes to climate change, we have hitched our wagon to President Obama. There we are not sovereign. However, let us take the Conservatives at their word that they are sovereign when it comes to questions of security laws and the enforcement of those laws. Well then, why is it that on October 15 we learned that the Conservative government has failed to implement provisions of the 2011 border security agreement with the United States on information sharing with respect to the travel of potential terrorists?

It is troubling to hear the Minister of Public Safety and Emergency Preparedness, or even worse, the Prime Minister, talk about new legislation, new powers that we need, when existing international agreements we have entered into and signed have not been complied with, including on the international movement of those suspected of being associated with terrorists entities. That question remains to be answered.

We hear repeatedly from members of the government, and in particular former peace officers, like the last speaker from the Yukon, who swear an oath to uphold the rule of law. They become peace officers by swearing an oath. We hear from them repeatedly that we need new powers, but that is not what we hear from the front-line practitioners. That is not what we have heard from CSIS. That is not what we heard from the RCMP. They are telling us that they need more resources and the capacity to do their jobs. They need to be able to follow up on the existing statutory powers that we have in order to enforce them and to bring them to bear in Canadian society. That is what they are telling the Canadian population. That is what they are telling parliamentarians.

We are supportive of sending the bill back to committee. However, we need the time in committee to make sure that we get that expertise, not from the propaganda or rhetoric of government members, but from those who are actually on the front lines involved in enforcement. They are our best asset and allies in this regard.

[Ryan Leef, Conservative, Yukon, YT]

Fourteen of us over here and zero on your side.

[David McGuinty, Liberal, Ottawa South, ON]

The member said there are 14 of them over there. Unfortunately, as former peace officers, none of them have the courage of their convictions to stand up and tell the truth in this matter, which is that front-line enforcement officers are telling us that they need more resources.

In closing, and to remind Canadians that governments do make choices, $600 million has been spent on advertising in the last eight years, and $600 million more on hiring outside lawyers by the Department of Justice when there are 2,500 lawyers on staff already. That amounts to $1 billion that could be directed more properly to the enforcement of our existing powers.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Mr. Speaker, I wonder if my colleague might provide some further thought regarding the Five Eyes and those countries that want to work with Canada.

Here we have found that Canada has fallen short in terms of having an independent parliamentary overview of some of these very important issues, such as privacy. We are the only country out of the Five Eyes that has not seen fit to include or incorporate parliamentarians as part of that oversight. Would there in fact be some value in doing that?

[David McGuinty, Liberal, Ottawa South, ON]

Mr. Speaker, I think this is one of the most glaring gaps in the bill. If the government were honest in its examination of best international practices today, it would say that the United States, United Kingdom, Australia, and New Zealand, the four foundational partners in the so-called Five Eyes partnership, have all moved forward, particularly the United States, which has made a lot of mistakes. The congressional leadership in the U.S. will tell us that they made a lot of mistakes because they over-reacted after 9/11. Since then they have tried to move the balance back to the centre.

Part of that involves, as my colleague for Vancouver Quadra has put forward in her bill, Bill C-622, the idea that we would create an all-party committee to oversee the important work of CSIS. That would be foundational to improving the status quo, which is something for the life of us on this side of the House cannot understand why the government would not be embracing.