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.

[The Chair, Conservative, Daryl Kramp]

Colleagues, welcome to the Standing Committee on Public Safety and National Security meeting number 42.

Today we are doing clause-by-clause consideration of Bill C-44. You'll notice the chair had committee business right at the start, but in order to make it easier to move people in and out and off, we will have just a very brief amount of committee business in order to set a date. If the committee is comfortable, I will move the committee business to five or ten minutes at the end of the meeting.

Mr. Easter.

[Daniel Therrien]

First on the question of security and privacy, I'll just say that ultimately I think it's possible to have both, and that position informs quite a few comments that I have made, whether it's about Bill C-13 or Bill C-44. I think security is obviously very important, and legislators should act to protect the public, but it is possible to have both security and privacy and not one at the cost of the other.

As to the question of my overall resources, if I understand correctly, and whether there are enough resources to do the job, with all the tasks, obviously there are important work pressures that we're facing. My starting point on the question of whether we have sufficient resources is, of course, that I will try very much to achieve our mandate within the budgets allocated to Parliament because, of course, these moneys come from taxpayers and I want very much to be able to achieve our goals within these budgets.

That being said, there are important work pressures, and I'll just name a few. First of all, the number of complaints that are made under the Privacy Act and PIPEDA is growing continually. The government has an ambitious policy agenda, which means that we're called upon to comment on legislation, but also we're called upon to make comments to departments on the proposed procedures and policies. The rapid evolution of technologies in the private sector also, of course, creates privacy risks that we have to react to. As I've indicated to your colleague, it's important to ensure that individuals are able to exercise control over their information, which implies that we have an important public education role that is part of our role. So these are the work pressures.

At this point, I would say that I'm still assessing, frankly, whether we have enough to achieve all of these objectives, but I will try as much as possible to do that. In part, what is at play, given the work pressures, is that we have to be constantly looking for new and efficient methods to do our work. This is something that the OPC has done over the years, and we're still very much in that mode. For instance, investigations, which constitute roughly 50% of our work, are the subject of more efficient processes, for instance, that use early resolution as opposed to a full-fledged investigation into complaints. We're trying to have more efficient methods, and this is working. Productivity is up, there are more files being closed in the office than ever before, but unfortunately, the growth in complaints exceeds the growth in our productivity. That's an issue we have to tackle.

In particular, the number of complaints made under the Privacy Act is growing. Our response times to these complaints is also growing because of the phenomenon I was describing: the growth in complaints exceeds the growth in productivity. In early 2015, we will launch an audit into the activities of that branch to see whether it could be possible to be even more efficient than we are currently.

Essentially, there are important work pressures. My objective is to work within the budget that was given to me. At this point I'm not asking for additional moneys. If I come to a different view, I will let you know.

[The Chair, Conservative, Daryl Kramp]

I will read from the paragraph that applies to this, because it is open ball. It says:

There are no specific rules governing the nature of questions which may be put to witnesses appearing before committees, beyond the general requirement of relevance to the issue before the committee

Now, there is an issue of relevance, in that when the letter was directed to the committee, it was relevant to Bill C-44. It is relevant, so at this particular point, it would then be admissible and accepted, according to the paragraph that is in here.

So yes, it is in order.

[The Clerk of the Committee, Mr. Leif-Erik Aune]

The Privacy Commissioner was not invited to appear before the committee for its study of Bill C-44.

[Prof. Kent Roach]

The issue of whether CSIS has extraterritorial powers is a matter that has actually been under litigation under the act before Bill C-44. Justice Blanchard said in a decision that it didn't have extraterritorial powers. Justice Mosley—and here my interpretation is a little bit different from Professor Leuprecht's—actually said that it did have extraterritorial powers. He only drew it back when he found out they were using the Five Eyes to exercise what he had authorized as extraterritorial CSIS investigations.

When I say “new powers”, I mean this a matter of legal dispute. Leave to appeal in the Justice Mosley decision is now, I understand, being sought from the Supreme Court of Canada. It is possible the Supreme Court of Canada will hear that case, we really don't know right now.

When I say “new powers” I mean black letter law, new powers that spell it out.

But you're right that the Attorney General of Canada has argued that in the existing CSIS Act there are powers for CSIS to conduct investigations outside of Canada.

[Craig Scott, NDP, Toronto—Danforth, ON]

Is there a way to deal with the concern?

It's true that the court said that there doesn't exist a current, in common law, class privilege, and that's what now being accorded by Bill C-44.

Is your sense though that the courts were more or less content with the case-by-case qualified privilege? Is that what you think should remain?

[Dr. Christian Leuprecht, Associate Dean and Associate Professor, Department of Political Science, Royal Military College of Canada, As an Individual]

Ladies and gentlemen, I will give my presentation in English, but I can answer any of your questions in either official language.

Mr. Chair, distinguished members of the committee.

I have entitled my intervention “Peace, Order and Good Government: Parliamentary supremacy as the ultimate sovereign constitutional responsibility”.

There is a ubiquitous claim that Canada does not have a foreign intelligence service. This is a misunderstanding of Canada’s security intelligence community. Given the legislated limitations on Canadian security intelligence's areas of operations or AOR, beyond Canada—CSIS' areas of operations beyond Canada—one might say that Canada does not have a human foreign intelligence service, certainly not one of the scope of the human services operated by some of our key allies, especially in the Five Eyes—CIA, MI5, and ASIS, the Australian Secret Intelligence Service.

Canada has a foreign signals intelligence service, the Communications Security Establishment, and a good and respected one at that. Canada has compensated for AOR limitations on CSIS in several important ways.

Two of the key mechanisms had been under specific conditions. First, the exchange of certain human intelligence information on certain Canadian citizens and residents—and some other individuals with a direct bearing on Canada and Canadian interest—with allied foreign HUMINT services, in general, and with the three aforementioned Five Eyes partners, in particular. The New Zealand Security Intelligence Service, similar to CSIS, does not have a broad foreign human intelligence mandate akin to that of the U.S., U.K., and Australia.

Second, under specific conditions, the exchange of signals intelligence on certain Canadian citizens and residents—and some other individuals with a direct bearing on Canada and Canadian interest—with CSE, the Communications Security Establishment.

As reported widely in the media, including The Globe and Mail in November 2014, Justice Richard Mosley of the superior court of Canada found that CSIS had not been sufficiently open about all the surveillance alliances it planned to form. Five years ago CSIS had persuaded him to sign off on a foundational eavesdropping warrant to extend its reach outside Canada. Judge Mosley learned the full extent of the information sharing between Canadian spy agencies and foreign allies after reading the watchdogs’ public reports.

His ruling indicates he had never been told of this by Canada’s intelligence agencies during five years of secret hearings. He took the extraordinary step of reopening a case he had settled in 2009. In the November 2013 ruling he rebuked CSIS and the Communications Security Establishment for breaching their duty of candour to his court. A statement released by the court added that, despite perceptions to the contrary, “the Court considers it necessary to state that the use of ‘the assets of the Five Eyes community’ is not authorized under any warrant issued.”

The case appears to be related to concerns about one particular instance where CSIS failed to disclose to the court one specific piece of information about a certain individual. The result of Justice Mosley’s decision has been to blind CSIS once Canadians or non-Canadians with court-authorized surveillance leave the country.

The merits of Judge Mosley's decision, with respect to that particular instance of disclosure to the court aside, raises at least two fundamental issues. First, in light of at least 130 Canadian extremist travellers who have left the country as reported in testimony before this committee by the Director of CSIS, and another at least 80 returnees, this is problematic. CSIS now has trouble following extremist travellers and their activities outside of the country. This has second-order effects with respect to its ability to provide timely and accurate advice to the administrative branch of government and the political executive to which it reports, and the ability to liaise tactically with criminal intelligence and enforcement agencies, notably the RCMP and CBSA.

Second, what is and should be the purview of judicial supremacy with respect to matters of national security? The committee will already have heard plenty of testimony with respect to the former. I shall not belabour the proximate implications of this point other than to reinforce the point and concerns raised by others about the deleterious tactical, operational, and strategic consequences of this decision for CSIS, national security policy and enforcement, and Canada’s political executive ability to make informed decisions with respect to public safety and Canada’s national interest.

The second point, by contrast, has more distal implications. Canada is a democracy. Its ideological foundations are premised on those of small-L liberalism; that is, limited state intervention in people’s lives with a core value of freedom and subsidiary values of equality and justice. One of the hallmarks of this type of democracy is the rule of law and an independent and impartial judiciary. By virtue of being in this room we are all agreed on these basic principles that underlie Canada’s Westminster constitutional monarchical system.

Constitutionally, Canada balances the premise of limited state intervention with a small-C conservative ideological premise about the role of the state, in general, and about the role of the federal government, in particular. Quoting from the preamble of section 91 of the British North America Act:

It shall be lawful for the Queen, by and with the Advice and Consent of the Senate and House of Commons, to make Laws for the Peace, Order, and good Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces.

For our purposes at least two observations follow.

Insofar as security is demonstrably of national concern, it falls within the purview of the federal government. Such is the case in terms of national security intelligence and its interactions with foreign security intelligence entities.

Second, the federal government has an overarching duty to ensure the peace, order, and good government of Canada. That is, the federal government has inherent obligations for the collective security of Canadian society.

What exactly POGG denotes has been defined and circumscribed by both the Judicial Committee of the Privy Council and the Supreme Court of Canada and shall not detain us here. Suffice it to say that Canada’s Constitution imposes limits on judicial supremacy.

Unlike Americans, Canadians are not inherently skeptical and mistrusting of their government. This is readily demonstrable empirically in terms of polling.

I shall skip over this section and it can be read into the record at a later time.

[See appendix]

My point here is that people may have concerns about particular issues, but by and large, confidence in our security institutions and the federal government's handling of national security is very high.

The security sector, of course, is one form of government intervention. One might argue that it is actually the ultimate form of government intervention precisely because it empowers the government to curtail freedoms in pretty dramatic ways. Critics like to cite the case of Mahar Arar. As tragic as that case may be, a single case does not make a pattern. To the contrary, it demonstrates the learning effects in our security sector by virtue of the fact that a case like Arar’s would be highly unlikely to recur given the changes in policies now in place. Moreover, it is public knowledge that intelligence from the Arar case came from the RCMP and not from CSIS. And so to be sure, there are other cases where judges have had certain questions about CSIS evidence but none of this has called into question the professionalism and lawful conduct of the organization. Similarly, CSE’s watchdog has repeatedly affirmed the lawful and professional conduct of its activities.

So where does the skepticism arise?

It appears to be driven by a curiously denatured interpretation of the Canadian Constitution since the introduction of the Canadian Charter of Rights and Freedoms that somehow the sole and primary purpose of the Constitution is somehow to limit government intervention in the lives of citizens. The result of this interpretation would have it that privacy, civil liberties, and due process, as well as judicial supremacy, should trump any and all other considerations. As someone who has published on Canadian constitutional politics, the conventional view is that of the Constitution that actually enables government to do good in people’s lives, at least when it comes to fundamental obligations such as peace, order, and good government.

At times, that means having to balance considerations of due process with those of public safety and national interest. Confidential informants may be an anathema to lawyers, but certain dimensions of security intelligence would be difficult to carry out without such confidentiality and the trust that we have as a result from our allies.

Again, here, is a section that will be read into the record.

[See appendix]

Allies such as the U.K., France, Germany, and Spain have had to learn to live with terrorism for decades. As a result, their courts and their societies have developed greater sensitivity towards the protection of public safety. He who sacrifices freedom for security deserves neither, Benjamin Franklin famously said. But what about he who sacrifices security for freedom? Freedom and security are not a zero-sum dichotomy. To the contrary, they are complementary. You cannot enjoy one without the other. However, you cannot enjoy your freedoms if you are dead.

CSIS exists at the fulcrum of public security. Critics concerned about changes to Bill C-44 are also the ones who will be first to complain why CSIS did not do more, should an extremist traveller return to Canada and commit mischief here. Overall, they fail to account for the possibility of keeping individuals safe in spite of themselves, that sharing intelligence may allow for intervention abroad to prevent individuals from harming themselves, Canada, Canadians, and Canadian interests. I value my freedoms, but I value my life and the lives of my compatriots even more.

By the same token, with respect to changes proposed to the Strengthening Canadian Citizenship Act, I believe that the potential for revocation of citizenship imposes an important deterrent against bringing one’s citizenship into disrepute. After all, those who hold dual citizenship have made a conscious choice to divide their loyalty. As a naturalized dual citizen myself, I should know. Those who wish to protect themselves against the eventuality introduced by this amendment have the option to renounce their second citizenship. Some countries make it impossible to renounce citizenship, so the onus is on such citizens to conduct themselves in a manner so as not to run afoul of the amendment being proposed. Canada’s administrative and judicial system would necessarily be sensitive to the revocation of Canadian citizenship in circumstances where that imposes demonstrable risks for an individual’s life. Ergo, revocation is judiciable, and thus has a built-in review mechanism.

The current equilibrium needs rebalancing. Justice Mosley deemed it within his purview to constrain certain types of intelligence sharing activity, but he did so in a somewhat unusual fashion. Often judges will give Parliament time to remedy these types of deficits. Justice Mosley afforded no such opportunity to Parliament. This, in my view, is disconcerting. While Justice Mosley may have been within his right to render the decision he did, the far-reaching implications of his decision could have let past practice prevail for a limited amount of time to allow for a legislative remedy to be introduced.

[Prof. Kent Roach, Professor, Faculty of Law, University of Toronto, As an Individual]

Thank you very much, Chair. I'd like to thank the committee for inviting me to appear here today.

The terrible terrorist attacks last month confirmed Parliament's wisdom in 2013 in enacting four new terrorist offences that can apply to foreign terrorist fighters. Unfortunately however, Bill C-44 may have the unintended effect of making it more difficult to apply these valuable new offences to potential foreign terrorist fighters. That will be my primary focus in my submissions.

My second focus will be that the “innocence at stake” exception to the new CSIS human source privilege is required by the charter, but it is unconstitutionally under-inclusive as applied to non-criminal proceedings where section 7 charter rights are in play.

Finally, I will suggest that while it is correct that Bill C-44 gives CSIS new powers to conduct investigations outside of Canada and that this responds to the threat environment that we live in, there is a concern that we need new and integrated review mechanisms as well as better ministerial and parliamentary oversight of CSIS foreign activities.

To move to my first point, Bill C-44 would overturn the Supreme Court's recent decision in Harkat as well as reject the recommendations of the commission of inquiry into the bombing of Air India that CSIS informants not be given the same privilege as police informants. Both the Supreme Court and the Air India commission stress the danger that because of its intelligence-gathering mandate, CSIS may make premature promises of anonymity to informants, which could hinder or even thwart subsequent prosecutions.

Clause 2 of Bill C-44 would give CSIS human sources a veto on disclosure of any identifying information once they have received “a promise of confidentiality” from CSIS. The courts have most recently, in 2013, in the context of police informer privilege, said that these promises of confidentiality may even be implicit. I have a concern that virtually every human source CSIS talks to under the proposed legislation would then have the benefit of the privilege and a veto on any identifying information being disclosed, whether it's to defend a search warrant in a terrorist investigation or to be called as a witness in a terrorism prosecution.

These are not hypothetical concerns, and I should mention that I spent four years as director of research and legal studies on the Air India commission studying this question. In 1987 the prosecution of Talwinder Singh Parmar, the alleged mastermind of the Air India bombing, collapsed when an informer refused to allow his name to be disclosed. Now, that informer was in a very difficult position, and the crown attorney at the time said in open court that if he were in that informer's position, he would make the same decision because of fear for his life—as you have heard from earlier witnesses. But the fact is, that prosecution fell apart because of the informer privilege and the informer's ability to veto disclosing any identifying information.

This legislation would have given the two informants in the Toronto terrorism prosecution a veto on whether they would be called as witnesses or on disclosing any identifying information about them. As you heard yesterday, CSIS is not in the business of collecting evidence, and it was for this reason that the Air India commission warned it would have an incentive to promise anonymity and confidentiality when necessary to fulfill CSIS' intelligence mandate.

This is not an issue of CSIS deliberately abusing the privilege, but simply because of its functions, it will have an incentive to promise confidentiality. And then later on down the stream, perhaps months or even years later, the police and prosecutors may have a very difficult time dealing with the consequence of this near absolute privilege that would be bestowed on all CSIS human sources under Bill C-44.

The Air India commission was acutely aware that there is a dilemma. Sometimes it is more important to have intelligence than prosecution, but its solution was that this dilemma should not be resolved unilaterally by CSIS or, indeed, by the RCMP, but that decisions should be made in the public interest on the basis of all available information, by the Prime Minister's national security advisor.

The second point is simply that the “innocence at stake” exception in paragraph 18.1(4)(b), as required by the charter, would apply in criminal prosecutions. But the Supreme Court, in Charkaoui, has made it very clear that section 7 also applies in the non-criminal context, and in particular the security certificate context. It would be my submission that you should consider expanding the “innocence at stake” exception to allow judges to order disclosure that would pierce the privilege whenever it is required under section 7 of the charter.

Similarly, I realize that a policy decision to extend the privilege may have been made, but I would also propose that when you go into clause by clause, you should look at the section 2 language of the promise of confidentiality. That language should at least be limited so that it is only an explicit promise made by CSIS of anonymity that would trigger this broad privilege that, as I suggested, could hinder subsequent police investigations and prosecutions.

Finally, my last point is that I agree that, given the threat environment, CSIS needs to be able to conduct its investigations outside of Canada. But I do have some concerns about the “without regard to any law including that of any foreign state” language. I have concerns that this may override the restrictions that the National Defence Act places on CSEC or signals intelligence agency. I also think there is a need for an integrated review, or at least statutory gateways, as recommended by the Arar commission and as Professor Forcese in his submission advocated to you, and indeed has proposed some language to that effect.

I would also add that there is a need to ensure both ministerial and parliamentary oversight as CSIS uses its new powers to act abroad.

Thank you very much.

Common Sense Firearms Licensing Act

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

Mr. Speaker, I have two points. I am a former municipal police board member, and I have done a lot of international policing work.

It is very rare to come across police who believe that gun regulations are red tape. Police are very supportive of reasonable regulations. They do not want extra forms. They do not want extra time wasted. However, the police are quite often in favour of reasonable regulations.

I very much look forward to having the time in committee to hear from law enforcement officials on the question of transportation of weapons. However, I have to say, as I did earlier, that after my experience with Bill C-44, I have kind of lost my faith that we are going to have adequate time in committee.

I would ask the minister again, but I know his answer will be that it has nothing to do with him, his parliamentary secretary, or the government majority on the committee. These restrictions on time and on the number of witnesses just come out of the air.

[Wayne Easter, Liberal, Malpeque, PE]

Mr. Speaker, I have a question for my hon. friend. We sit on committee together.

The member raised a number of points in terms of some of the witnesses we would need to hear from at committee, including Canadian firearms officers, police, people who are involved with the transport of guns, et cetera.

Both the member and I are missing the debate on Bill C-44 because the government called this bill at the same time. Could the member share with Canadians his thoughts about the debate on this bill? We are having a debate here in the chamber that will likely have closure put on it at some point in time, while at committee our ability to hear the proper people we should hear from to deal with this issue is being curtailed.

One of the most important issues to deal with was raised by my leader in question period, the open-ended transportation of guns. Yes, they have to be in a locked trunk, but as the parliamentary secretary to the Minister of Agriculture said, criminals do not follow the rules. Of course they do not. There will be guns in car trunks, and most of the guns criminals use are stolen from legitimate gun owners. Is that not a problem with the new transport rules?

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

Mr. Speaker, I rise today to speak against Bill C-42, the so-called common sense firearms licensing act. While this is not the most egregious short title assigned by the Conservatives to a bill, even in this session, the bill might better be titled “the special interest firearms licensing act”.

What we have before us is a bill that only looks like common sense when viewed from the point of view of the gun lobby. New Democrats believe that public safety must always trump politics when it comes to firearms licensing and regulation.

The Conservatives, on the other hand, have been promoting the dangerous ideas of the gun lobby, a small minority of Canadians, and perhaps even a small minority among gun owners. In particular, there is the idea that any regulations at all on firearms pit the interests of law-abiding gun owners against the government and the police, and that these regulations amount to nothing more than excessive red tape. New Democrats have a different view, one that clearly puts public safety first.

The Conservatives like to pose as the only ones here who understand rural Canada, but let me say, perhaps to the shock and surprise of some, that I actually grew up on a farm. My father and his father before him were hunters of quail, pheasant, duck, deer, and moose, and all but one of these later graced our table when I was a kid. I have to say that sometimes there would not have been much on the table without the hunting that went on in my family. I learned to shoot at a young age, an age that most now might consider inappropriately young, and yes, my grandpa always kept a shotgun behind the door for scaring away the coyotes. It must have worked because I never saw any. This was in the day before those proper storage regulations. When those came in, he changed his behaviour. He did not see these as unnecessary red tape. He saw them as good advice for keeping his family safe, and the shotgun disappeared from behind the door and into a locked cabinet.

Subsequently I lived in the Northwest Territories as a young adult. I was fresh out of university, and while there I was privileged to go hunting out on the traplines with my Dene friends. By that time I was not such a fan of doing the shooting myself. It was a great life experience I had there. None of them regarded safety regulations as red tape.

Now I represent a riding that stretches from the Victoria Harbour all the way out to the head of the West Coast Trail at Fort Renfrew, so I do know something about law-abiding gun owners and something about communities where hunting is much more than just a prop to use in arguments about gun registration and licensing.

When the Conservatives abolished the gun registry, we on this side of the House warned that it would be necessary to remain vigilant on the question of gun licensing and gun regulations. We all knew that members of the gun lobby would not be happy to stop at the abolition of the registry, that with their U.S.-influenced ideological viewpoint they would keep pushing to weaken all the other measures in Canada that place restrictions on firearms in the interest of public safety.

Like his gun lobby allies, the Minister of Public Safety and Emergency Preparedness has fallen into the habit of using U.S. rhetoric in his comments on firearms. This was never clearer than on July 23, 2014, when the minister said:

To possess a firearm is a right, and it's a right that comes with responsibilities.

Here we have a minister of the Crown, one of the government's chief legal ministers, directly contradicting the Supreme Court of Canada. In 1993, the Supreme Court found, in a case called Regina v. Hasselwander, that:

Canadians, unlike Americans do not have a constitutional right to bear arms. Indeed, most Canadians prefer the peace of mind and sense of security derived from the knowledge that the possession of automatic weapons is prohibited.

Therefore, the minister is in direct contradiction of the Supreme Court in the rhetoric he is using around gun licensing. The court could not have been clearer, nor could there have been any doubt about the precedent, since the Hasselwander case was precisely about the right to possess automatic weapons.

The court later reiterated in the 2010 case of Regina v. Montague that in Canada there is no right to own firearms. In that case, the Supreme Court refused to hear an appeal against an Ontario Court of Appeal decision rejecting the existence of such a right in Canada.

Like their gun lobby colleagues, when the Conservatives are challenged on the rights question, they often switch gears and try to argue that gun ownership is somehow a property right, which I would point out is another right that is not found in the Canadian constitution.

What the minister's comments last July clearly indicate, unfortunately, is that we have a government that likes to pander to the gun lobby. At least in this case, however, I would have to say that the Conservatives do so fairly transparently and in order to generate political support from their base.

When the Conservatives made their first appointments to the Firearms Advisory Committee, the committee responsible for advising the minister on firearms regulations, the appointees were drawn entirely from representatives of the gun lobby. It took until 2012 for the Canadian Association of Chiefs of Police to prevail on the government to add three police chiefs to the nine gun advocates the government had already placed on the advisory committee.

This was only after the committee came forward with a set of extreme recommendations for the government, including such great ideas as extending the ownership licences to 10 years and, unbelievably, a proposal that the police should re-sell guns that had been seized rather than destroying them as is now the case. It is hard for me to even imagine the police running a garage sale of seized weapons. These are the kind of recommendations that came from the Firearms Advisory Committee, which was loaded with gun lobby advocates. When it comes to the specific firearms regulations adopted by the Conservatives, the influence of the gun lobby is quite apparent.

In 2011, the Department of Public Safety drafted new regulations for gun shows that would have required things that most Canadians would see as common sense. These included things like notifying the local police of gun shows to be held in their jurisdiction. That does not seem like red tape to me; that seems like common sense. It would have required the tethering of guns on display at a gun show. Cellphones are tethered at cellphone kiosks, so why not have this important public safety measure of tethering guns at a gun show.

These gun show regulations were to have been brought into force in 2012, but that did not happen. Instead, the Conservatives junked the proposed regulations altogether after complaints from the gun lobby that the new requirements were too onerous. I guess we should have seen this coming, because the Firearms Advisory Committee called for scrapping the gun show regulations in its March 2012 report.

I am worried about who was consulted, as I said in my question to the minister at the beginning of this debate. Who did he talk to? He says he talked to the hunting lobbies and to members of his caucus. He probably looked at the reports of the Firearms Advisory Committee. We see that the committee's slanted approach has influenced what the minister is already doing.

Regulations were also due to come into force in December 2012 to require that each gun manufactured in Canada have an individual serial number. It is surprising to me that it is not a requirement, as it is actually required by the international treaties to which Canada is already a party. It is something that seems like common sense when it comes to the police being able to trace guns used in crimes or in the fight to combat illegal international trade in small arms.

In November 2013, for a second time, the Conservatives quietly implemented a regulation delaying the coming into force of this requirement for serial numbers on each gun manufactured in Canada. This time they delayed it until December 2015, conveniently after the next scheduled election date.

The connection to the gun lobby is not so clear in this regulation, but I have no doubt that it exists. Why else would the Conservatives have appointed a representative of the Canadian Shooting Sports Association as a member of the Canadian delegation at international arms treaty negotiations? A representative of the sports shooting association and a member of the Firearms Advisory Committee became part of the international delegation to debate the small arms trade treaty internationally. Now, at a time when 50 other nations have signed the arms trade treaty, why has Canada failed to do so? Why are we excluding ourselves from the important discussions about how to end the illegal arms trade? The minister in his speech made reference to the important role in public safety of stopping the smuggling of illegal arms into Canada, yet we have excluded ourselves from the very process that would make that possible.

When it comes to Bill C-42, I guess we should be glad that the government abandoned the most extreme recommendations of the Firearms Advisory Committee, the ones I mentioned a minute ago of 10-year licences and the resale of seized weapons.

Now we are seeing complaints in the media from the gun lobby that Bill C-42 does not go far enough. That is why I am worried about the private member's bill that was placed on notice today, which we will see later this week, and how it will relate to this bill. The minister can say all he likes that it is a private member's bill and that it has nothing to do with him, but we will see. We will see if it has nothing to do with this legislation. When I heard the gun lobby say that Bill C-42 should have gone further, I am concerned about the contents of this new private member's bill.

Let me turn to the contents of the bill we have in front of us. It is one that is still clearly a child of the gun lobby. I should point out, as I did in my question to the minister, that there is no evidence of broad consultations throughout the community. If this is such common sense legislation, I do not understand why such a narrow group of people were the only ones consulted on this bill.

For me, despite the short title, there is nothing common sense about the two major provisions in this bill. One of those would make the gun classification process a clearly political process. The other would remove the requirement for having a permit for the transportation of firearms in any vehicle carrying them. Neither of these provisions has any public safety purpose. Instead, they respond only to the explicit complaints from the gun lobby. All of the other things that the Conservatives want to address in this bill could be accomplished without these two provisions.

Let me discuss the first change that is proposed in the way weapons are classified.

Right now, recommendations on classification are under definitions contained in law, and those recommendations are made by firearms experts in the RCMP, who both the gun lobby and the government members have referred to as “bureaucrats”. They are, in fact, the RCMP firearms experts.

The minister's signature is required on any reclassification, but there is no discretion for the minister, providing the recommendations fall within the scope of the existing legislative definitions. What Bill C-42 suggests is that the cabinet should be able to ignore the classification recommendations from the public experts and substitute its own wisdom about how weapons should be classified. The minister has already told us today that when the bill passes, he intends to use this political process to reclassify two individual types of guns. Therefore, by varying the definitions in the legislation, Bill C-42 would go even further by allowing the cabinet to grant exemptions for guns and ammunition that would otherwise have been prohibited.

Where did this perceived need for a change come from? It came from a single case of reclassification of a single weapon, the Swiss Arms PE 90, or Classic Greens, as they are sometimes called. These are military-style weapons that have been sold for nearly 20 years in Canada as semi-automatic weapons limited to firing five rounds. Before 2013, there were approximately 2,000 of these weapons in Canada, worth about $4,000 each.

So why the reclassification? What we had in Calgary in 2013 was the sudden appearance of so-called “refurbished” models of this gun, which were now operating as automatic weapons. That meant that these weapons were now easily converted to automatic weapons capable of firing a long series of shots from a single trigger pull, exactly what the “prohibited” designation was designed to keep off the streets of Canada.

When there was an immediate outcry from the gun lobby, the Conservatives were quick to grant a two-year amnesty in March of 2014. It is an amnesty for which I believe legal authority is doubtful, at best. How can the government grant an amnesty on possessing a weapon that is prohibited by law in Canada?

Now the government has presented Bill C-42 as the solution, giving the Conservative cabinet the power to decide if these dangerous weapons should be allowed in Canada.

Quite apart from the danger of ending up with automatic weapons on the street, there is another principle at stake here. When we make laws, we make them in public after public debate, and they stay in force until there is another public debate about changing them. Public debate before changing law is essential to democracy and accountability. In fact, what we would have in Bill C-42 is the creation of a process whereby Canada could in effect change our gun classification system and the classification of individual weapons through decisions made behind closed doors and without any public debate.

The other major change in Bill C-42 would remove the requirement that exists in most provinces to have a permit in any vehicle transporting restricted firearms, and the bill would go further: it would prohibit any province from reintroducing such a requirement. Currently, permits must specify a reason for transporting the firearm and specify that the travel must be from a specific point A to a specific point B. This makes it easy for police to enforce the prohibition on the illegal transportation of firearms, since a specific permit and a specific route must be provided.

Bill C-42 rolls transportation permits into the licence to own firearms. This would automatically allow the transportation of firearms between the owner's home and a list of five kinds of places: to any gun range, to any gun shop, to any gun show, to any police station, and to any border post for exiting from Canada. This change would provide a vast array of excuses for having weapons in a vehicle along a myriad set of plausible routes, and it would make the prohibition on illegal transportation of weapons virtually impossible for police to enforce.

Again I want to say that is why I am concerned about the notice the member for Dauphin—Swan River—Marquette has given about a bill to amend the Criminal Code on firearms storage and transportation. I am looking forward to having law enforcement representatives present in committee so that we can talk to them about the impact of no longer requiring permits for transporting restricted firearms to limit them to travelling from a specific place to a specific place. There is a great deal of danger here for Canadians.

We have some questions about some other provisions in this bill. Most of those questions will be about whether proposed changes, such as combining the two kinds of licences and creating a grace period after the expiry of a licence, would have negative consequences on completing timely checks as to whether owners remain authorized to own firearms after criminal or mental health incidents. We will be asking for assurances from the minister on these questions in committee. There is nothing more important to public safety than ensuring that the system works so that those who are convicted of criminal activity or those who have experienced mental health difficulties are no longer in possession of firearms. We have to look no farther than this Parliament Hill to understand the importance of those kinds of checks.

Does anything in this bill look good to New Democrats? The minister was asking me that question earlier, as a kind of heckle. Certainly measures that make prohibitions on gun ownership easier in cases of domestic violence are very welcome, as are expanded requirements for gun safety courses. In a sense, there are a couple of positives in this bill.

The minister might ask, “Why are we not trying to improve this bill in committee? Why have we said we will not support it at second reading?” I have to say I have become more than a bit cynical about this idea.

On Bill C-44 just last week, the minister assured me we could have full debate in committee on the bill expanding the powers of CSIS. He said it was up to the committee to make its own decision, as if the government does not have a majority on every committee and as if his parliamentary secretary did not move motions that restrict debate in committee. It beggars belief that he would make this argument in the House of Commons. The Conservatives said they would like all-party support on Bill C-44, and we clearly were told by the minister that the public safety committee was the place for detailed debate. However, this afternoon, while we are here in the House, the committee is getting its only afternoon with opposition witnesses, its only two hours to discuss the bill that would expand the powers of CSIS.

That is why, even though there are a couple of good things in this bill, I cannot argue that we should support sending the bill to committee to try to fix the rest of it. The experience that we have in committee again and again is limited time, limited witnesses, and the absolute refusal of the government to accept even the best-intentioned, most non-political amendments from the opposition.

Clearly public safety is not the priority for Conservatives in Bill C-42. In fact, its two main provisions seem to me to present clear threats to public safety. Making political decisions about whether or not a gun is a prohibited weapon does not bode well for public safety. Introducing this grey area in terms of transportation of weapons does not bode well for public safety.

Let me conclude by saying that I find it both sad and insensitive on the part of the government to be discussing this bill in the lead-up to December 6. This is a national day dedicated to remembering the victims of the École Polytechnique massacre 25 years ago, and a day set aside to recommitting to the fight against violence against women. As well, I do not understand why the Conservatives want to proceed so abruptly with this bill to loosen gun regulations in the aftermath of the murder of Corporal Nathan Cirillo at the National War Memorial and the attack here in Parliament. I would ask the government to put off further consideration of this bill until well into the new year, a less emotional time for victims, and to give time for the air to clear after the October 22 incident here on the Hill.

Will the government show more respect for Canadians and our democratic process by delaying this bill? I doubt it. Instead, I expect the Conservatives to press on to the tune of a dog whistle played by their gun lobby friends. Unfortunately, I think Canadians already know the answer to this question. The gun lobby rules, and this bill will press ahead. That is why, as a New Democrat, I will be proud to vote against Bill C-42.

[Wesley Wark, Professor, Graduate School of Public and International Affairs, University of Ottawa, As an Individual]

Thank you, Mr. Chair.

Ladies and gentlemen of the committee, it's a privilege to appear before you. I'm grateful for the opportunity. I'm the long-winded witness, so I'm going to read a condensed version of my statement.

Since the 9/11 attacks, the role of intelligence in Canadian national security policy has been revolutionized. Canadian intelligence has become more significant, more powerful, better resourced, more closely aligned with allied partners, and more globalized in terms of its operations and capabilities. As an important constituent of what is called the Canadian security and intelligence community, the Canadian Security Intelligence Service, CSIS, has undergone its share of revolutionary change since 2001. CSIS has become, de facto, a hybrid service, required to deal with an ever-expanding range of threats to national security and to operate both at home and abroad.

The issues that arise with regard to Bill C-44 reflect the fact that CSIS’ functions have changed enormously since the 9/11 attacks, and also, clearly, since the passage of the original CSIS Act itself, and have changed both in terms of the kinds of threats that CSIS must operate against and in terms of its geopolitical scope.

In my specific remarks on C-44 I intend to focus on what I think are its key provisions regarding CSIS overseas operations, including those targeting Canadians. C-44 would add clarifying language to section 12 of the act, indicating that in the performance of its security intelligence function it can operate both within and outside Canada. It further adds that Federal Court judges may issue warrants to allow CSIS to collect threat-related intelligence on Canadians abroad under its section 12 powers. C-44 also stipulates, in amendments to section 21 of the CSIS Act, that CSIS may apply for warrants to conduct section 16 operations, that is, the authorized collection of foreign intelligence within Canada.

To understand the key elements of Bill C-44 we need to put these in the context of a series of judgments made by the Federal Court with regard to CSIS extraterritorial warrant applications. This history begins in 2005 and follows a winding and complex path down to the present. There is not time in these hearings to adequately summarize this history, but let me note that the current stage was set by a ruling from the Federal Court of Appeal this past summer, which has been followed by an appeal by the Attorney General to the Supreme Court that remains pending.

In his application for leave to appeal, originally dated September 29, 2014, and unsealed in November of this year, the Attorney General summarized what was at stake as follows, “This case is about how the Canadian Security Intelligence Service (CSIS) may lawfully enlist the aid of foreign security agencies in monitoring the activities of that small number“ of Canadians who leave the country to engage in activities that threaten national security.

Whatever is ultimately decided by the courts with regard to the lawful enlistment by CSIS of foreign security agencies, there are other issues of principle and practice at stake. The most important such issue concerns sovereign control. To enlist the aid of foreign security partners, such as the Five Eyes countries, in intelligence sharing is one thing. To outsource intelligence collection to a foreign partner, no matter how close and trusted an ally, is another. Outsourcing means potential loss of control of an operation, loss of control of Canadian intelligence, and loss of control over outcomes. The Security Intelligence Review Committee commented on this matter by saying:

The risk to CSIS, then, is the ability of a Five Eyes partner to act independently on CSIS-originated information. This, in turn, carries the possible risk of detention or harm of a target based on information that originated with CSIS. SIRC found that while there are clear advantages to leveraging second-party assets

—that is, the Five Eyes countries—

in the execution of this new warrant power

—the so-called CSIS 30-08 warrants—

—and, indeed, this is essential for the process to be effective—there are also clear hazards, including the lack of control over the intelligence once it has been shared.

C-44 cements the evolution of CSIS into a hybrid agency that conducts both domestic security intelligence and foreign intelligence missions. Clarification of the legal standing of CSIS in these regards poses the danger of closing off discussion of the eventual need for a separate foreign intelligence service as a better solution to Canada’s intelligence needs, and a solution much more in keeping with the practices of our close Five Eyes partners.

More important than what C-44 does is the question of what it does not do. What it does not do is provide any sensible underlying definition of the kind of hybrid agency that CSIS has now become, and it does not provide any added controls, accountability measures, cooperative frameworks, or transparency measures around increased overseas operations by CSIS.

I want to conclude with a selection of some of the issues that I see arising from Bill C-44.

Bill C-44 applies legal band-aids to the conduct of section 12 and section 16 operations, only because we persist with a wholly artificial legacy distinction between security intelligence and foreign intelligence. CSIS officials used to make the distinction between security intelligence and foreign intelligence in terms of security intelligence being what Canada needed to have and foreign intelligence being a category of knowledge that it might be nice to have.

In a post-9/11 world, I would suggest that a distinction between foreign and security intelligence is meaningless for Canada, and the fact of its meaninglessness underscores the need for a more root-and-branch redrafting of the CSIS Act itself.

Having decided to appeal to the Supreme Court, the Federal Court of Appeal's ruling with regard to the Mosley judgment on CSIS' use of extraterritorial warrants, the legislative provisions of Bill C-44 may be rendered null or may require further amendments, depending on whether the Supreme Court agrees to hear the appeal and depending on the nature of its findings.

The Federal Court of Appeal's decision was available to the government long before Bill C-44 was tabled. Why the government decided go down two separate forks of the road, with partial amendments to the CSIS Act and with an appeal to the Supreme Court, when these two forks might well bring them to a collision at a future junction, remains a mystery to me.

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.

Bill C-44 does not add any statutory requirements on the part of the CSIS director to inform the minister with regard to the undertaking of sensitive overseas intelligence collection. The most recent SIRC annual report found that CSIS needed to keep the minister more fully informed about foreign operations and section 16 investigations. SIRC, in a special study of what it calls a “sensitive CSIS activity” also urged that CSIS reporting to the minister be done in a “formal and systematic manner”.

These are indications that not all is well in terms of the relationship between the service and the minister, and that ministerial accountability for CSIS may be less rigorous than it should be.

Bill C-44 does not restore the functions of the Inspector General's office, originally established in the CSIS Act in 1984, and closed down by the government as part of an omnibus budget implementation bill in 2012. The role of the Inspector General as the “eyes and ears of the Minister” might be considered all the more critical in an age of expanding CSIS overseas operations. As the former long-serving CSIS IG, Eva Plunkett stated that the abolition of the IG function was a “huge loss” for ministerial accountability.

Bill C-44 adds no new clarifying mandate or resources for the Security Intelligence Review Committee, in keeping with the statutory provisions authorising CSIS collection under section 12 abroad.

Last but not least, Bill C-44 is silent on the issue of the need for a dedicated, security-cleared parliamentary committee to ensure the ability of Parliament to properly scrutinize the activities of CSIS and related Canadian intelligence agencies in an age of globalized operations and diverse threats to national security. Such a committee of Parliament was recently proposed by Joyce Murray in her private member's Bill C-622, and has also been proposed in the Senate Bill S-220 advanced by now-retired Senators Hugh Segal and Romeo Dallaire. And Wayne Easter of this committee earlier offered the House a similar version of proposed legislation, Bill C-551. The government continues to deny the need for such a new structure, despite all-party support for just this thing in 2005.

In conclusion, Bill C-44 in my view is a poor quality band-aid. It may also be a very temporary one, depending on a future Supreme Court ruling. It is unimaginative and it fails to address the most significant legacy issues around the CSIS Act, which is now 30 years old and was created for a different threat environment, in a different technological age, and in a different climate of democratic legitimacy.

It persists with an artificial statutory distinction between security and foreign intelligence, offers insufficient clarity about CSIS powers, and offers no new measures of transparency and accountability concomitant with the new and increased role being played by CSIS.

Thank you.

[François Guimont]

Yes, and as was said earlier by the minister and others, essentially Bill C-44 is a result of court decisions, if you wish—in one case, that of Justice Mosley—so we are essentially fixing this very transparently. My colleague in CSIS was operating under a regime that we thought was understood, so we're clarifying that. That's why the word “clarifying” is always there, even in the bill, as I remember.

With respect to the protection of sources, it is also as a result of court proceedings—the Harkat decision, essentially. Again, out of the logic put forward by my colleague Monsieur Coulombe, we feel that being able to offer that protection is important for them to be effective in delivering protection to Canada.

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

Okay.

In clause 9 of Bill C-44, it makes reference to making information, which is otherwise protected by the protection of identified sources, available to SIRC. Again, we don't have anyone from SIRC here, but it seems to me that this provides an element that is more complicated than some of the other stuff that SIRC has dealt with in the past. I'm just wondering about the capacity of SIRC as the oversight body to deal with this new responsibility that I believe does add a responsibility to SIRC. I know the Minister says there's nothing about oversight here. I wonder if CSIS maybe shares that same interpretation that there is a new responsibility for SIRC included here in the bill.

[Wayne Easter, Liberal, Malpeque, PE]

I think you make a very good point, because we're really dealing with several different types of countries.

Mr. Chair, on the earlier question from Randall, I do have a Library of Parliament question we asked him here that basically states that we were talking about the wording “within or outside Canada”. I do have a Library of Parliament document here I can provide to the committee. It's only in English, but you could get it translated. It states that exact or similar wording to that found in clause 8 of Bill C-44 is not found in the relative legislation of Five Eyes nations. It names the relevant pieces. So if the committee wants that, I can table it.

The last question is on the source. On the sources protected, is there any different protection to sources outside Canada versus inside Canada? For those outside Canada, how do you perceive to protect those sources?