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 House proceeded to the consideration of Bill C-44, An Act to amend the Canadian Security Intelligence Service Act and other Acts, as reported (without amendment) from the committee.

Speaker's Ruling

[The Speaker, Andrew Scheer]

There are five motions in amendment standing on the notice paper for the report stage of Bill C-44. Motions Nos. 1 to 5 will be grouped for debate and voted upon according to the voting pattern available at the table.

I will now put Motions Nos. 1 to 5 to the House.

Motions in amendment

[Bruce Hyer, Green, Thunder Bay—Superior North, ON]

moved:

Motion No. 1

That Bill C-44 be amended by deleting Clause 1.

Motion No. 2

Bill C-44 be amended by deleting Clause 8.

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

moved:

Motion No. 3

That Bill C-44 be amended by deleting Clause 10.

Motion No. 4

That Bill C-44 be amended by deleting Clause 11.

Motion No. 5

That Bill C-44 be amended by deleting Clause 12.

[Bruce Hyer, Green, Thunder Bay—Superior North, ON]

Mr. Speaker, I rise today to speak to deletions to Bill C-44, the so-called protection of Canada from terrorist act. While we all agree that Canadians must be protected and that reforms to the way CSIS operates are certainly necessary, I question whether the bill would move us any closer to safety from terrorists.

The way the bill is being rushed through the House of Commons, it looks like the Conservatives are trying to ensure that we parliamentarians do not have the chance to finally read it. After the Conservatives imposed time allocation on the bill at second reading, the committee heard from witnesses for one meeting, two hours, and not a single opposition amendment was accepted.

The Privacy Commissioner had serious concerns. He wrote to the committee that he would, “welcome the opportunity to speak” to the committee. He was not invited. Again, we see the Conservatives' contempt for expert advice, even from their Privacy Commissioner.

It is possible to find a balance between our safety and our freedoms, our security and our rights. However, the government seems to want to weaken our privacy laws without achieving any security objectives.

Further, as our intelligence operations increasingly involve working with other countries, the bill would potentially undermine the possibility of any meaningfully safe co-operation. In the words of the Canadian Bar Association:

—Bill C-44 would undermine established practices that balance national security against fundamental rights, and potentially call into question Canada's compliance with its international law obligations.

In committee, the minister himself proudly stated, “I think this is the most constitutional bill we have introduced”. That probably speaks less favourably to the government's record than the minister quite intended. It is quite ironic.

Apart from quite serious democratic issues, my concerns also relate to the provisions in the bill amending the way the CSIS Act would treat human sources and the bizarre wording regarding activities beyond Canada's borders. The bill would redefine the privilege given to human sources, but according to legal experts, Bill C-44 would actually lessen the protection given to sources. I am also concerned the bill would seriously interfere with the proper administration of justice in Canada.

Although the stated purpose of these amendments is supposedly “is to ensure that the identity of human sources is kept confidential”, the new wording would limit this protection to only apply “in a proceeding before a court”.

According to the Canadian Bar Association:

—disclosure of information relating to confidential human sources appears to be limited to disclosure of information during the course of judicial proceedings. The proposed amendments to section 18 do not include any general prohibition against disclosure of information outside the judicial proceedings, such as found in section 18(1) [of the Act]. Accordingly, if a confidential human source provides information about a matter that does not result in a judicial hearing, the CSIS Act would no longer prohibit disclosure of either the information or the identity of the source.

Human sources risk their lives for our safety. The bill would reduce their protection unless the matter was before the courts.

The second major issue is a serious constitutional one. The place where we need to be most careful when granting confidentiality is in the justice system. The charter guarantees that every person be granted “a fair and public hearing”. The wording of the definition of “human sources” is so vague that it may become even more difficult to convict any terrorists at trial.

The definition in clause 2 does not require that the promise of confidentiality be explicit or written for a source to effectively veto proceedings. May I remind members that the Supreme Court ruled just last year that a promise of confidentiality may even be “implied”.

In the context of police informants the court wrote:

An implicit promise of informer privilege may arise even if the police did not intend to confer the status or consider the person an informer, so long as the police conduct in all the circumstances could have created reasonable expectations of confidentiality.

Expert witness Professor Kent Roach testified before committee. He said:

—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.

He went on to say that these ambiguous promises could “hinder or even thwart subsequent prosecutions”.

There is absolutely no evidence to suggest that CSIS informants are not given enough protection. This is a solution in search of a problem. It would actually open informants to new vulnerabilities and handcuff our justice system in the fight against terror.

I also want to address the wording of clause 8 and highlight some of the serious consequences that could arise.

I am a former police officer and I am not naive. I know that for the sake of protecting Canadians, we sometimes do need to investigate outside of Canada. However, it is absurd and belligerent to require that the Federal Court grant warrants for actions in another country, “Without regard to any other law, including that of any foreign state”.

Even if we ignore the highly questionable notion that our courts have the jurisdiction to authorize activities outside of Canada, this language is highly problematic. The wording is so bold and so broad that it opens up serious questions. Does it apply to international law? What are the limits? When is a warrant even needed here? Did anybody think about how this would look, how it would affect our international co-operation and, especially, how it could invite other countries to violate and disregard our laws?

I am shocked but not totally surprised by this anti-democratic piece of legislation from a government whose party has shown itself to be repeatedly anti-democratic here at home.

Our intelligence regime certainly does need changes. CSIS could definitely use an update. We seek more effective measures to prevent terror and we desperately need to overhaul our barely existing oversight program. If we take a look at evidence and listen to the experts—what a novel thought—there is no reason why we need to give up the search for balance between a strong legal system and national security.

We can have oversight and safety, rights and protection. The amendments the Green Party proposed in committee, which were rejected out of hand, could have helped to do that.

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

Mr. Speaker, does the member have any comment on the amount of time the government allowed for the bill to be dealt with before debate was limited in the House and also in committee, and the impact of that on whether this really will be an effective bill?

[Bruce Hyer, Green, Thunder Bay—Superior North, ON]

Mr. Speaker, as we know, repeatedly, it is up to about 80 times now that we have had an abbreviated discussion and debate on a variety of bills in closure.

It was not quite as bad in committee as it was in the Rouge River debates. In those debates, Conservative members on committee were playing with their BlackBerrys and not even looking up when they raised their hands to oppose amendments without really listening to them. This time they did have some alleged reasons why they opposed our amendments, not terribly significant reasons, but they did verbalize some reasons.

[Wayne Easter, Liberal, Malpeque, PE]

Mr. Speaker, I listened to the member's remarks as well. I know he was at the committee.

He made mention of this quote in the legislation, and I will quote it again. It is under subclause 8(2), proposed subsection 21(3.1). It states:

Without regard to any other law, including that of any foreign state, a judge may, in a warrant issued....

That, as the member said in his speech, is extremely extraordinary language. We know for a fact, and it was stated at committee, that none of our Five Eyes partners—New Zealand, Australia, the United Kingdom, or the United States—have that kind of language, although they do the same endeavours abroad as we do.

Could the member comment further on that? Does he think maybe that could even cause us problems internationally with some of our allies, and with some countries that are not our allies, or whether there could even be a challenge under the Charter of Rights and Freedoms with that kind of clause in this bill? We issued a warning to the government.

[Bruce Hyer, Green, Thunder Bay—Superior North, ON]

Mr. Speaker, I agree with the concerns of the member for Malpeque. This is extremely worrisome.

Canada's reputation internationally has suffered and declined in a variety of ways over the last six years, but doing something like this invites other states, and other want-to-be states—can members think of one?—to ignore our laws if we are going to go ahead and legally feel, without real justification, that we can interfere with and ignore their laws.

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

Mr. Speaker, I rise with some regret today to speak to Bill C-44 at report stage. This comes from the fact that when the Minister of Public Safety and Emergency Preparedness introduced this bill, he said he wanted all-party support on a very important national security matter. On this side of the House, we took him seriously and looked forward to having a full debate and discussion about what we could best do to combat some of the serious problems we face.

Instead, when we came to debate at second reading, there was a severe time allocation motion imposed. During that debate, I asked the hon. minister, who had said that he thought committee was the proper place for the debate to occur, for assurance that in committee, there would be adequate time to consider this bill. He then pretended, I would have to say, that his parliamentary secretary and his majority on the committee would be completely independent and free to make sure there was adequate time in committee. Of course, that was not the case.

On this side, we believe that with co-operation and full debate, we might actually have been able to come to a consensus on this bill. The actions of the Conservatives show that they were really never interested in doing that. Instead, what they wished to do, which I think the House will hear a lot from the Conservatives following my speech, was try to divide Canadians for their own partisan advantage.

Why do we need full debate? I have said many times in the House that we are a diverse country, with representatives who have very different interests in their constituencies and very different points of view and backgrounds, and when we bring all of that experience together in the House, we can get better and more effective legislation and legislation that would actually accomplish what it sets out as its goals.

We waste time in the House, and later waste time and resources in the courts, if bills are defective, if they are not well designed, and if they do not take into account the question of whether they are going to ultimately be found constitutional.

As I said, New Democrats had great hopes that the minister was serious and that we would have a full debate on this bill. It has been 30 years since CSIS was established, and obviously, it is time now to look at what we could do better.

Instead, in committee, there was the same kind of severe restriction on time. There were just four hours to hear witnesses, and after the minister and his officials had taken their two hours, there were just two hours for non-government witnesses. This meant that the official opposition was only allowed to call two witnesses and the third party one witness. Then there was a large group of people who actually approached the chair of the committee and said they would like to appear before the public safety committee on this bill. Of course, that left zero time for any of those witnesses.

The witnesses the committee heard were very valuable. We heard professors Wesley Wark, Craig Forcese, and Kent Roach, who raised some very important concerns about the bill, which I will return to in a minute. However, who did the committee fail to hear from? The Information Commissioner and the Privacy Commissioner wanted to appear and talk about the impact of the expansion of CSIS powers on information and privacy law. The Canadian Bar Association wanted to appear. The Federation of Law Societies of Canada wanted to appear, and civil liberties associations, including the Canadian Civil Liberties Association and the BC Civil Liberties Association, also submitted requests to appear.

Probably the most important group of witnesses the committee could have heard and did not have time for were the commissioners who investigated incidents like the Air India bombing, the hon. Justice John Major; the Maher Arar case, Justice Dennis O'Connor; and the El Maati, Almalki, and Nurredin cases, Justice Frank Iacobucci. In all of these cases, there were recommendations from former Supreme Court judges and senior judges on how to make CSIS more effective and make sure that there was proper oversight of a body that necessarily has to do a lot of its work in secret. There could have been a chance to see if recommendations from those three inquiries could have been incorporated into this bill, but instead, no time was allowed to call them as witnesses.

Having used their majority in the committee to limit discussion and the hearing of witnesses, the committee also limited discussion of any amendments to this bill to just one two-hour session. There was one two-hour session to deal with 12 substantive amendments from the NDP and 11 substantive amendments from other members of Parliament. The government proceeded to reject all of them one by one in a fashion that so rapid, one could hardly turn the pages fast enough, let alone have a good debate.

I want to draw attention to just one of those amendments that was rejected, to give members an idea of what happened in this committee.

The NDP's first amendment was an amendment that would have required CSIS to provide its oversight body, SIRC, the security intelligence review committee, with complete and accurate information in a timely manner. That is something we would presume a government body would do. It is something that is not specifically required anywhere in the legislation. Why were we putting forth such an amendment? It was because in its last annual report, SIRC, the supervisory body, said that CSIS repeatedly failed to provide the oversight body with complete and accurate information and failed to do so in a timely manner.

What possible harm could there have been in such an amendment? Obviously, a lot of good could have been done by having the oversight body able to cite responsibility, in the legislation, for providing them with the information they request in a timely manner.

The Conservatives went on to reject 11 more amendments that focused, again, on increasing accountability, improving oversight, making sure the bill is effective, and making sure the bill is constitutional. The result is a flawed bill that we cannot support on this side of the House.

The amendments we introduced today take out a piece of the bill that I think is fairly egregious, when we are talking about CSIS. In fact, it makes the bill almost an omnibus bill. It has in it amendments to the Citizenship Act to bring forward the coming into force date of the ability of the government to remove citizenship from dual citizens convicted of serious offences. This really has nothing to do with the topic in the CSIS bill.

We have suggested that those be removed today, but I have no confidence that the government will be any more willing to consider amendments here than it was in committee.

What is the bill about? One day the minister assured us that it was one of the most significant bills we could possibly have on national security and that it was absolutely necessary. On his appearance at the committee, the minister said the bill was just clarifying what CSIS already does.

It is very hard for me to get a sense of whether the minister believes that this is important and significant legislation or housekeeping legislation, since he said both of those to the committee.

The minister also said that the courts had invited the government to bring in this piece of legislation. I think that is an interesting interpretation of the court decision. The court said that some of the things CSIS is doing lack legal authority and that if the government wished to correct this, it needed legislation. It did not in fact invite the government to present this kind of legislation.

What we see again and again in this bill is over-reach by the government, whether it is with regard to the warrants it is asking the superior courts to issue or whether it is with respect to protecting the identity of CSIS staff. We presented a very simple amendment that would have said that we recognize that staff who are, or are about to be, involved in covert operations might need to have their identities protected. However, what this bill says is that CSIS could keep all of its employees' names secret for all time. The person who is the receptionist could have his or her name kept secret. It is over-reach. It is overkill in this bill.

When it comes to the question of constitutionality, I specifically asked the minister if he would table in the committee the advice he had received that this bill was constitutional. We hear the Minister of Justice and we hear the Minister of Public Safety assuring us that they always check and get such advice. Well, if they do get such advice, I would like to see them share it with us on this side of the House.

We have seen, in other bills that have been passed through the House, when we had that assurance, that the courts eventually found that the bills were not constitutional. I think it is an important question, because it causes us to waste time in the House and waste the court's time later on.

When it comes to oversight, which is probably our major concern, we missed the opportunity in this bill to turn SIRC into something much more substantive. Right now it has a temporary chair. Two of its positions have been vacant for months. It is a part-time, non-specialist committee, yet any amendments we had to strengthen the qualifications of the members of SIRC and also to get all-party agreement on the appointments to SIRC were rejected by the government.

I know my time is drawing to a close. I just want to say, first of all, that we believe we need strong oversight for our national security agencies. We believe that we can protect national security and civil liberties at the same time. We believe that we have to provide adequate resources to do that.

What we will hear from the Minister of Public Safety in just a few moments is how the NDP is weak on national security and how we failed to support certain interventions in the Middle East. None of that has anything to do with this bill.

This bill fails on the grounds of providing the kind of oversight we need and providing an effective bill that would protect national security and civil liberties at the same time.

[Wayne Easter, Liberal, Malpeque, PE]

Mr. Speaker, I appreciate the remarks and the work of the member for Esquimalt—Juan de Fuca on the committee. He went to fairly substantial lengths in his remarks to talk about how democracy is basically failing at committee.

There were substantive amendments brought forth at committee, all of which were rejected out of hand. I want to ask the member this question with respect to one of those amendments. I think all opposition parties—the Green Party, the Liberal Party, and the NDP—agreed on an amendment to proposed subsection 3.1 that would have removed the words “Without regard to any other law, including that of any foreign state,” and commenced that subsection with “A judge...”.

I wonder if the member would talk about the implications of the government not listening to the opposition parties on a very well-thought-out and needed amendment in terms of our reputation on the international stage, as well as about the possibility of a charter challenge as a result of the government leaving that clause in.

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

Mr. Speaker, that is another example of overreach by the government. There are many that I could have talked about during my speech if I had had the time.

The government is saying that the courts should issue a warrant without respect to any law or the law of any foreign state. That is not what the courts invited it to do when it introduced this legislation. This is language that does not exist in any other place we can find. It certainly does not exist in the legislation of any of our Five Eyes partners. Of course, the risk is that when it gets to court, it would be found unconstitutional. This language is so broad and so offensive in many ways to international law that I cannot imagine the courts would look favourably upon it.

However, I must also say that I am a little confused, because I understand that the Liberal Party, despite having moved these amendments and having them rejected, is supporting this legislation.

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

Mr. Speaker, at the beginning of his speech, my colleague said that the Conservatives wanted to divide Canadians with this bill. That intrigued me. I would like him to explain what he meant.

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

Mr. Speaker, the hon. member just has to wait a few moments until the Minister of Public Safety and Emergency Preparedness gets up to speak and she will see what I mean by dividing Canadians.

The idea that the minister has set out is that if we do not support this bill, we are somehow bad Canadians and are not in favour of protecting national security, while what we set out to do with the amendments in this bill and in our debate was to make it a better bill, one that all Canadians could support and one that would be more effective in protecting our national security interests. Instead, we got back a flawed bill that we cannot support.

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

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

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

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