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.

Motions in amendment

[Matthew Kellway, NDP, Beaches—East York, ON]

Mr. Speaker, I certainly agree. It is true of everything that we do in the House. It is worth taking the time to get it right. However, continuing the theme of contradictions with the government, on this of all issues one would have thought it would have taken the time to get it right and to ensure there was ample study and expertise allowed to inform the bill.

On that same issue of contradiction, the government says that this is an incredibly important issue and yet over the last three years, it has cut almost $700 million from security agencies in Canada. Those cuts will continue into next year with respect to CSIS in particular, another $25 million or so.

The government purports to have great concern for the security and safety of Canadians and yet the process for this bill betrays its other interests. The way it budgets for security agencies also suggests that, indeed, it is not a priority for the government.

[The Acting Speaker, Barry Devolin]

It is my duty, pursuant to Standing Order 38, to inform the House that the question to be raised tonight at the time of adjournment is as follows: the hon. member for Drummond, The Environment.

[Philip Toone, NDP, Gaspésie—Îles-de-la-Madeleine, QC]

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.

[Wayne Easter, Liberal, Malpeque, PE]

Mr. Speaker, I think the member's remarks show clearly why more time needed to be taken at committee, because the member does raise some very valid points.

I want to put into the record what Wesley Wark had to say in his testimony. Wesley Wark is a professor at the Graduate School of Public and International Affairs at the University of Ottawa and is a quite well-known expert on these matters.

The member said there is certainly reason to bring the bill forward, but I think, as he indicated in his speech, there is so much more that we could have done. As Wesley pointed out before committee:

Bill C-44 does not add any new provisions to the CSIS Act to ensure proper consultation between the service and its minister, the Minister of Public Safety, and the two departments most likely to be impacted by expanded CSIS overseas operations—the Department of Foreign Affairs, Trade and Development and the Department of National Defence. Both of these departments engage in their own overseas intelligence and information collection through dedicated branches.

Does the member believe that we should have looked into that area and ensured that there is more information exchanged between government branches?

[Philip Toone, NDP, Gaspésie—Îles-de-la-Madeleine, QC]

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.

[Annick Papillon, NDP, Québec, QC]

Mr. Speaker, do we all agree that the protection of civil liberties and public safety are two fundamental Canadian values that are not a suggestion or something on which we can compromise? They are both necessary.

Too often, the current government asks us to choose between civil liberties and stronger public security. Too often, we are being asked to choose between economic development and the environment. We should not have to make those choices. We should be able to accommodate both values that we cherish and with which we work to progress.

What does my colleague think about that? Is it not time to stop pitting these values against each other? Could we not simply establish that both of these values must be present when bills are introduced and worked on in the House?

[Philip Toone, NDP, Gaspésie—Îles-de-la-Madeleine, QC]

Mr. Speaker, I thank the member for Québec for her question. I think she is absolutely right. This is not about balance. This is about two rights, two obligations that need to be respected.

Bills have to pass the test and justify themselves as laws in a free and democratic society. Unfortunately, I do not think that the bill before us passes that test. It should have been debated more thoroughly and improved in committee.

It is unfortunate that the government is in such a hurry to pass a bill that does not respect the rights and freedoms of Canadians or of parliamentarians, who have to ensure that all bills stand up to scrutiny.

As we all know, governments are supposed to ensure that their bills are constitutional. Unfortunately, in this case, perhaps the government's lawyers provided bad advice or made a mistake. Frankly, this bill does not deserve our support.

I hope that the Conservative Party members will take the time to read this bill closely so they can see how harmful it is in terms of taking rights away from Canadians, who do not deserve this.

[Annick Papillon, NDP, Québec, QC]

Mr. Speaker, I am pleased to rise today to speak to Bill C-44, an act to amend the Canadian Security Intelligence Service Act, concerning the much talked-about CSIS.

This bill makes three important changes regarding the Canadian Security Intelligence Service. First of all, it clarifies CSIS's legal authority to conduct security intelligence operations outside our borders in order to address threats to Canadian security. Second, it confirms the jurisdiction of the Federal Court to issue warrants that have effect outside Canada. Finally, it ensures greater protection during legal proceedings for human sources that provide information to CSIS.

Before looking at the specific provisions in Bill C-44, it is important to put the bill into context. The Conservatives had already planned to introduce Bill C-44 before the events that took place in Saint-Jean-sur-Richelieu on October 20 and of course before the events that we all remember and that took place here in Ottawa on October 22.

As we have done in the wake of other tragic incidents, we need to carefully examine legislation and security procedures to ensure that they are adequate, while making sure that our civil liberties are protected.

The government claims this bill is intended to modernize the Canadian Security Intelligence Service, pointing to the fact the CSIS Act has not been amended since CSIS was created. In 1984, Parliament passed legislation to create a civilian security intelligence service. This legislation not only gave rise to the Canadian Security Intelligence Service, it also gave CSIS the mandate to gather intelligence on threats to Canada's security. CSIS provides that intelligence to the government so that it may put in place the necessary measures. Now, 30 years after its creation, CSIS is not the same organization it was in 1984. As it celebrates its 30th anniversary, the Canadian Security Intelligence Service is concerned about its rapid expansion and the increase in missions abroad.

The government says that C-44 will allow CSIS to act abroad to improve the effectiveness of its investigations into threats to Canada's security. For many years, it was assumed that CSIS’s security intelligence mandate was not limited to operations in Canadian territory, because the enabling legislation makes reference to threats to the security of Canada that originate from both inside and outside the country.

In fact, CSIS has been conducting intelligence operations abroad by using a loophole in the CSIS Act regarding what constitutes Canadian soil and a section of the Act which allows CSIS to provide technical assistance to the Department of Foreign Affairs and the Department of National Defence.

Another important part of this bill deals with protection for our sources and informants abroad. We would have appreciated receiving more detailed information to determine how this protection will be provided. Legal experts have expressed their concerns about the fact that it will be more difficult form this point forward to examine CSIS evidence in criminal cases in particular. This could create an obstacle to the successful prosecution of those involved in national security threats. The ability of an accused to confront their accuser and to test the evidence in a court is a fundamental part of Canadian criminal law.

It is not appropriate or constitutional to considerably expand the powers of a civilian intelligence agency without having a debate, here in the House, and considering the advice of the many experts who are concerned about the changes that will be made by Bill C-44.

The recommendations of the 2006 Maher Arar commission of inquiry called for new accountability measures for Canada's intelligence agencies. However, eight years later, these have yet to be implemented.

At their annual meeting, the Privacy Commissioner of Canada and the Information Commissioner of Canada called on the federal government to ensure that effective oversight was included in any legislative measure that would grant new powers to intelligence and law enforcement agencies.

Mr. Daniel Therrien, the Privacy Commissioner, said that it was understandable that the government would want to consider boosting the powers of law enforcement and national security agencies to address potential gaps, but that any new tools should be accompanied by a beefed-up role for the watchdogs who keep an eye on spies and police.

This is why it is very important, before increasing powers for CSIS, to create oversight mechanisms. At this point, there is no mechanism in place to act as watchdog and provide oversight for our intelligence agencies. Claiming that there is, as the government is doing, is simply dishonest.

In the 2012 budget, the Conservatives abolished the position of Inspector General of CSIS. He took care of internal oversight by ensuring that all the work of the agency was in conformity with the law. To find the balance between national security, civil liberties, and individual rights and freedoms in Canada, the government should be bringing in accompanying legislation that provides that parliamentary oversight. On the one hand, it would ensure that the agencies are doing their jobs, and on the other, it would ensure they are not going too far and violating the civil liberties of Canadians.

The Conservatives are cutting funding for public safety agencies by a significant amount over three consecutive years, for a total of $687.9 million by 2015. The CSIS budget is being cut by $24.5 million in 2015, while the position of CSIS Inspector General was abolished in the 2012 budget.

We are concerned about the impact the cuts will have on the government’s ability to exercise adequate oversight over these agencies. If the Conservatives want to ensure that Canadians are protected, they should review the resources available to public safety agencies, such as CSIS, after three consecutive years of budget cuts.

Protecting civil liberties and public safety are both core Canadian values. As I mentioned earlier, these are two essential obligations. They are not suggestions or compromises. New Democrats want legislation that improves public safety and strengthens our civil liberties. We also want a real debate. The government rejected all of the amendments the NDP proposed to improve Bill C-44 and did not provide any real reason.

In conclusion, I want to share a quote from the Information Commissioner of Canada and the Privacy Commissioner of Canada, who addressed the tragic events that took place in Quebec and in Ottawa. They called on us:

To adopt an evidence-based approach as to the need for any new legislative proposal granting additional powers for intelligence and law enforcement agencies; to engage Canadians in an open and transparent dialogue on whether new measures are required, and if so, on their nature, scope, and impact on rights and freedoms; to ensure that effective oversight be included in any legislation establishing additional powers for intelligence and law enforcement agencies.

We have talked a lot today about public safety. As I said, there are a number of Canadian values that we must honour in this Parliament.

I urge the government to consider these values and to ensure that civil liberties will be respected as much as public safety. We cannot make compromises.

Unfortunately, I am disappointed that the amendments proposed by experts who work in the area and who are familiar with the situation were not incorporated into the bill.

[Marjolaine Boutin-Sweet, NDP, Hochelaga, QC]

Mr. Speaker, my colleague said that this bill is about civil liberties and national security, two very important issues.

However, to my utter dismay, I learned earlier that committee had only four hours to hear witnesses, including two hours for the minister and the department. That left only two hours for other witnesses.

Does my colleague feel that is sufficient for such a sweeping bill?

[Annick Papillon, NDP, Québec, QC]

Mr. Speaker, that is an excellent question from the hon. member for Hochelaga.

We have no time, in committee or in the House, to debate and find common ground for everyone here and for Canadians. I find it regrettable that the government uses so many gag orders. It is a game to them. Debate is cut short and bills move from one stage to the next. It is really unfortunate because we are unable to delve into the details.

The impact of cuts to public safety organizations can be felt in each of our ridings. I am disappointed that we cannot look at the details and talk about specific examples. Again, there are experts on the ground who know what the needs are. We need to listen to them so that we know which priorities cannot be compromised. Budget cuts are one thing, but we cannot skimp on the essentials.

[Sadia Groguhé, NDP, Saint-Lambert, QC]

Mr. Speaker, I would like to thank the hon. member for her speech.

She spoke about public safety as well as rights and protection of civil liberties. On October 28, the Prime Minister said this:

Canadians do not have effective rights unless we can ensure their security...

Would the hon. member like to comment on the Prime Minister's remarks?

[Annick Papillon, NDP, Québec, QC]

Mr. Speaker, we have a Prime Minister who focuses far too much on security.

We talk constantly about public safety here in the House of Commons. Granted, it is an issue, but it is not the only one. I would like it if we could talk more about economic development, about our small and medium-sized businesses and our great tourism industry, which unfortunately is being cut by the Conservatives. Tourism benefits every one of our ridings. I would like these matters to be debated in the House and more bills to be introduced on this issue.

Public safety is important but we talk for too much about it. We should be talking about the environment, economic development and other issues, rather than being obsessed with public safety. I read in the Hill Times that terrorism and security are two of the three issues that Canadians are starting to become tired of. I would suggest that we discuss it in small doses.

[Hélène LeBlanc, NDP, LaSalle—Émard, QC]

Mr. Speaker, I would like to thank my colleague for her speech, her eloquence and her passion.

One has to be passionate to be the Member of Parliament for Québec, so I congratulate her on defending her points of view loud and clear. During the incident last October, I was in my riding. That was of great concern to my constituents, who wondered where we were and what was going on. We cannot deny that security is important, whether it be on Parliament Hill or somewhere else in Canada. However, as our national anthem says, we need to keep our land not only strong, but free.

Could my colleague tell us whether Bill C-44 has reached that balance?

[Annick Papillon, NDP, Québec, QC]

Mr. Speaker, that is, in fact, the problem with this bill.

At this point, as it is currently worded, as all the NDP amendments have been rejected, the problem with this bill is that it does not balance civil liberties with strengthening national security. Things could get seriously out of hand and that worries me. This is why I am encouraging this government to take another look at these amendments and give them some consideration.

[Jasbir Sandhu, NDP, Surrey North, BC]

Mr. Speaker, it is always an honour to speak in the House on behalf of my constituents from Surrey North. This is an important bill that we are debating today. Bill C-44 amends the Canadian Security Intelligence Service Act and other acts.

I remember getting up in the House during second reading of the bill. I actually supported it at second reading, along with other members. We were hoping that the government would allocate proper debate on the bill in committee and allow for very detailed scrutiny of some of the changes being proposed. It is a very serious matter. When we are dealing with public safety and civil liberties, we need to ensure that all angles are looked at so that any bills or laws passed in the House take into consideration those two core Canadian values of public safety and civil liberties.

What did we see from the government? I was hoping it would entertain some of the expert testimony. We had four hours on the bill at committee. Two of those hours were taken by the members of the staff and two hours were allocated for so-called scrutiny. That is not acceptable to Canadians. They expect us to scrutinize and to look through bills for any holes, to ensure that we thoroughly go through important bills that increase the powers of our spy agencies. That was not done.

We had two hours. There were a number of amendments introduced at committee stage. I have seen this movie before where we come up with some insight and some amendments that would improve a bill and the Conservatives somehow do not want to see any changes, whether from the NDP, the Liberals, or anyone else. I have seen this over the last three and a half years. Surely, of the thousands of amendments we have offered as suggestions to improve bills, the Conservatives would accept some. No, not even one has been accepted. If it is really straightforward, they may entertain it, but they do not want to see any suggestions by the opposition to improve any of the bills.

In this case, the government did not accept any of the amendments we had proposed. Basically, Bill C-44 is making significant changes to expand the powers of CSIS, but instead of giving the bill the careful study it deserved, it was rammed through in four hours. That is not enough time. Giving CSIS new powers without providing adequate oversight presents real dangers; rather than clarifying things, this will only lead to more legal problems and may ultimately be struck down by the courts.

We have seen this movie before too. There are many bills passed by the government that have been struck down by the Supreme Court. It seems to be a regular occurrence where things are rushed through the House without proper oversight or debate. Whether it is in the House or committee, we are forced to rush. We have had over 84 closures on a number of bills that have been rammed through the House. Closure basically shuts down debate. That is not what Canadians expect us to do; they expect us to debate in the House.