Bill C-51 (Historical)

Anti-terrorism Act, 2015

An Act to enact the Security of Canada Information Sharing Act and the Secure Air Travel Act, to amend the Criminal Code, the Canadian Security Intelligence Service Act and the Immigration and Refugee Protection Act and to make related and consequential amendments to other Acts

Part 1 enacts the Security of Canada Information Sharing Act, which authorizes Government of Canada institutions to disclose information to Government of Canada institutions that have jurisdiction or responsibilities in respect of activities that undermine the security of Canada. It also makes related amendments to other Acts.
Part 2 enacts the Secure Air Travel Act in order to provide a new legislative framework for identifying and responding to persons who may engage in an act that poses a threat to transportation security or who may travel by air for the purpose of committing a terrorism offence. That Act authorizes the Minister of Public Safety and Emergency Preparedness to establish a list of such persons and to direct air carriers to take a specific action to prevent the commission of such acts. In addition, that Act establishes powers and prohibitions governing the collection, use and disclosure of information in support of its administration and enforcement. That Act includes an administrative recourse process for listed persons who have been denied transportation in accordance with a direction from the Minister of Public Safety and Emergency Preparedness and provides appeal procedures for persons affected by any decision or action taken under that Act. That Act also specifies punishment for contraventions of listed provisions and authorizes the Minister of Transport to conduct inspections and issue compliance orders. Finally, this Part makes consequential amendments to the Aeronautics Act and the Canada Evidence Act.
Part 3 amends the Criminal Code to, with respect to recognizances to keep the peace relating to a terrorist activity or a terrorism offence, extend their duration, provide for new thresholds, authorize a judge to impose sureties and require a judge to consider whether it is desirable to include in a recognizance conditions regarding passports and specified geographic areas. With respect to all recognizances to keep the peace, the amendments also allow hearings to be conducted by video conference and orders to be transferred to a judge in a territorial division other than the one in which the order was made and increase the maximum sentences for breach of those recognizances.
It further amends the Criminal Code to provide for an offence of knowingly advocating or promoting the commission of terrorism offences in general. It also provides a judge with the power to order the seizure of terrorist propaganda or, if the propaganda is in electronic form, to order the deletion of the propaganda from a computer system.
Finally, it amends the Criminal Code to provide for the increased protection of witnesses, in particular of persons who play a role in respect of proceedings involving security information or criminal intelligence information, and makes consequential amendments to other Acts.
Part 4 amends the Canadian Security Intelligence Service Act to permit the Canadian Security Intelligence Service to take, within and outside Canada, measures to reduce threats to the security of Canada, including measures that are authorized by the Federal Court. It authorizes the Federal Court to make an assistance order to give effect to a warrant issued under that Act. It also creates new reporting requirements for the Service and requires the Security Intelligence Review Committee to review the Service’s performance in taking measures to reduce threats to the security of Canada.
Part 5 amends Divisions 8 and 9 of Part 1 of the Immigration and Refugee Protection Act to, among other things,
(a) define obligations related to the provision of information in proceedings under that Division 9;
(b) authorize the judge, on the request of the Minister, to exempt the Minister from providing the special advocate with certain relevant information that has not been filed with the Federal Court, if the judge is satisfied that the information does not enable the person named in a certificate to be reasonably informed of the case made by the Minister, and authorize the judge to ask the special advocate to make submissions with respect to the exemption; and
(c) allow the Minister to appeal, or to apply for judicial review of, any decision requiring the disclosure of information or other evidence if, in the Minister’s opinion, the disclosure would be injurious to national security or endanger the safety of any person.

Customs Act

[Matthew Dubé, NDP, Beloeil—Chambly, QC]

Mr. Speaker, I thank my colleague for the question.

Despite what the Liberals and the Conservatives might say, just because the NDP stands up for Canadians' rights and privacy does not mean that we do not take the government's responsibility for ensuring public safety seriously.

Let us look at the current state of affairs. Take CSIS or the RCMP for example. They already have legal mechanisms and agreements in place with their U.S. counterparts for sharing information in the context of a criminal investigation, for example. The same problem comes up every time. We saw that in the debate on Bill C-51. We are told that these changes need to be made in order to ensure Canadians' safety. However, existing legislation does that already. In the meantime, the government proposes signing agreements that would make the border more seamless and allow more information to be shared, which threatens the rights and privacy of Canadians.

This creates a situation where information is exchanged with the American government, which does not seem to take seriously its responsibility to store and use that information appropriately. This is taking place within a context of profiling regarding people's country of origin or religious beliefs, despite the fact that legal provisions are already in place.

We in the NDP might be open to another proposal. However, the fact remains that, for us, any exchange of information that happens with no accountability and no mechanism to protect the rights of Canadians is unacceptable.

The time has come for the accountability, review and oversight mechanisms used by our national security agencies to take into account any and all exchanges of information that happen freely, not only here in Canada, between government agencies, but also with other governments, including the American government.

[Matthew Dubé, NDP, Beloeil—Chambly, QC]

Mr. Speaker, first, I would like to join the minister in expressing my condolences to the family of our esteemed colleague Arnold Chan. His death was a great loss to everyone in the House, regardless of their party. We stand in solidarity with the Liberal caucus and Mr. Chan's constituents, family, and friends at this difficult time.

We are here today to talk about Bill C-21, which the government introduced in June 2016. The government is very enthusiastic about this bill. It is now September, and we are finally talking about it, so we can see how enthusiastic the government is about this bill. Perhaps the purpose of the bill is to pander to the Americans during the NAFTA negotiations. Who knows.

It is important to understand the context here. The minister, in answer to my question, and the member for Laurentides—Labelle in his comments talked about the bill as though it was a piece of stand-alone legislation, when in actual fact it is part of an information-sharing agreement between the Canadian and American governments. We can look at the measures set out in the bill, but they are part of a broader agreement and broader operational practices that are beginning to be implemented for our services at the border.

Things are very different now, and if we take a big-picture view of border issues, Canadians are clearly concerned. The same issues come up over and over. Take cellphones, for example. There is a glaring lack of protection when it comes to cellphone searches and what we call the briefcase law. People surrender a certain degree of privacy at the border. That interpretation of the law is fine if we are talking about someone seeing our unmentionables in a suitcase, but a cellphone that contains vast amounts of information about an individual is something else entirely. That is just one of the concerns we have about the border.

Things have changed now that Donald Trump is in office. In recent months, there has been discrimination at the border. Everyone knows that. The minister says that, statistically, fewer Canadians are being turned away at the border than in previous years. That is not an acceptable answer when people are being subjected to degrading treatment by U.S. border officers who ask them questions about their religious beliefs, their country of origin, and the colour of their skin.

This context is extremely important for understanding where our concerns for this bill are coming from. The minister tells us not to worry, that it is basic information that will be shared, information that is found on page 2 of one's passport. In reality, subclause 92(1) of the bill states that:

the Agency may collect, from a prescribed source, in the prescribed circumstances, within the prescribed time and in the prescribed manner...

It goes on to describe what the Agency is authorized to do. The key phrase I want to draw to the attention of the House is “the Agency may”. It is left to the discretion of border services whether to keep the information or not. At a place like customs, where discrimination is on the rise because people are judged by their destination and their origins, this is quite problematic. This could lead to increased profiling. God knows that there is too much of that already at the border.

Let me go back to the agreement that led to this bill.

The entry/exit program is only just beginning and will grow. Despite the enthusiasm that Liberals and Conservatives might have for it, we are going down a very slippery slope here. Before we continue, someone needs to put on the brakes because what we are seeing here is further integration at the border. That might seem great if all that we are considering is efficiencies, but we want to consider people's rights at the border, but that is lacking in the conversations that are happening.

Where does it end? When we talk about the context that I described with regard to cellphones and the lack of legislation as to what people's rights are when they are asked to unlock their cellphones and provide that information, and when it comes to the profiling that is happening at the border, that also applies to what new tools we have brought into place. The current U.S. President has floated the idea of using biometrics at the border. Will that end up becoming part of this kind of entry/exit agreement on top of the biographical information that would be provided? We do not have answers to these questions.

The fact of the matter is that any information that is being collected and shared will lead us down a path that we have seen before, because, quite frankly, as I said in my question to the minister, some of the most egregious human rights violations that Canada has been a part of, even if by proxy, have happened because of the sharing of information. That is something we are doing more and more in a post-Bill C-51 world, which, by the way, was a bill that the Liberals supported. That is the reality that we have to take into account when we consider increasing the amount of information we are sharing. It is not only biographical information, but also about where people are going to and coming from. While that might seem fine for someone who is not being profiled at the border, there are certainly many law-abiding Canadians who know what the experience is like, who because of where they are going to or where they are originally from; because they might be dual citizens and because of the country from where other citizenship is from; because of the colour of their skin and their religious beliefs, suddenly that basic biographical information being collected and shared with the U.S. government takes on a whole different context despite the fact they are law-abiding Canadians. That is very troubling, and even more so when I hear the minister talk about the fight against radicalization.

Certainly it goes without saying that we all agree that radicalization is an issue that needs to be tackled. Here, I would add that we are still waiting to hear more about what the government is going to do with its grassroots approach to taking on the fight against radicalization. We have not heard much about that in a little while, but that is a sidebar.

The reality is that when I hear things like that and the Conservative member who just spoke, and this bogeyman that is raised of how we are going to go after terrorism, there is a code there and we know what that leads to at the border and the treatment that people go through afterward. That is not something we want to see happen. Sure, we can have faith in our CBSA officers, the men and women who do extraordinary work despite limited resources because of successive Liberal and Conservative governments, but we are also looking at what the U.S. is going to do with that information. That is where the danger lies.

President Trump has signed an executive order explicitly stating that persons who are not U.S. citizens are now excluded from the protections offered by United States privacy legislation.

That is extremely dangerous, considering that the Canadian government is rushing to partner with the U.S. government to increase the amount of information it shares with the Americans.

Given that the President of the United States says he may consider torture acceptable and given that Canada has a ministerial directive in place allowing for information to be shared with countries that engage in torture, we are facing a big problem. I am not saying that this is exactly what the bill says, but the upshot of this bill is that we will be sharing more and more information.

It is a very slippery slope, since we keep sharing more and more information with other countries, including the United States. Even though the U.S. is an ally, the statements coming from the current administration are cause for concern and make the idea of sharing information about public safety and national security extremely troubling.

In a post-C-51 world, the accountability procedures are wholly inadequate. Let us look at the facts. An article published by the Toronto Star in August said the following:

CBSA has quietly started receiving and sharing some information with the U.S. government.

That means some information sharing was already allowed even without this bill being passed. The bill will just settle things for good.

The risk is that this may be done more covertly, without proactive transparency. At the end of the article, it says that Canada Border Services Agency plans to update the privacy assessment once the bill comes into force.

It is far from reassuring that we are talking about doing another privacy impact assessment after the bill is adopted. In that spirit, the role we have as parliamentarians is to protect Canadian safety, but also their rights, and their right to privacy more specifically. As far as this bill is concerned, we should look at how much is left up to regulation in the bill. For example, under “Regulations”, the bill states:

The Governor in Council may make regulations for the purposes of this section, including regulations

(a) prescribing the information that must be given under paragraph (1)(a);

(b) respecting the conveyances in relation to which information must be given under subsection (1);

(c) prescribing the persons or classes of persons who must give the information under subsection (1);

(d) respecting the circumstances in which the information must be given under subsection (1); and

(e) respecting the time within which and the manner in which the information must be given under subsection (1).

Those are all things that the Governor in Council can do through regulations. That essentially means, for the people listening at home, that those are things that the minister can decide to do all on his own, without a proper vote in the House of Commons on a piece of legislation. That is extremely troubling. If we go back to the debate on Bill C-23, which is the sister legislation in the context of this more integrated border with the U.S., in committee, I asked public safety officials which regulations would be changed, as that bill also opened the door to all of the regulatory changes that could potentially change the scope of the bill. That certainly concerned New Democrats. I will give the Liberals credit. They got back to us and provided a list of regulations that may change, but the list was not exhaustive.

As parliamentarians voting on a bill and trying to protect Canadians' rights in the context of sharing more of their information with the American government, especially under the current circumstances or regime, if I can use that term, it is extremely troubling that there is so much latitude allowed for regulatory changes. We certainly understand that there is a place for regulatory changes in the way that our government functions, but when it comes time to prescribe what information is shared, who is sharing it, and how they are sharing it, which is the core of the issue with this bill, that cannot be left out of the accountability process, which obviously includes debate in the House and study at committee.

When I was in Washington with the Standing Committee on Public Safety and National Security, I learned about some new tools, such as digital fingerprinting and facial recognition, that the U.S. may begin using at its border. Those things are still in development, but they are getting to the point that the U.S. government will be looking to deploy them.

The minister is trying to reassure us by saying that he is in constant contact with his American counterpart, but people at Homeland Security envision using exactly those kinds of tools in the context of this information sharing agreement. We could very well see a higher level of integration. In the statement on greater integration of border operations that came out of the meeting between the Prime Minister and President Trump in Washington, they talked about the possibility of our border officials hosting American border officials.

Forget about all of the problems that co-locating two agencies from two different countries could cause, if only in terms of collective agreements and working conditions. Let us just talk about training. The minister took the time to point out that officials would be trained to protect Canadians' privacy and would always act in accordance with the law. I am not questioning the work that is going to be done, but when we debated Bill C-23, which would allow American officials on Canadian soil, we asked Public Safety and Emergency Preparedness officials what the plan was for delivering that training while ensuring respect for the Canadian Charter of Rights and Freedoms, privacy laws, and even Bill C-23 itself, and we were not remotely satisfied with the answers.

The minister can be as reassuring as he wants, but it takes more than that. We need something tangible that truly outlines the process that will be put in place for protecting people's privacy. Even if the process is clearly spelled out to us, in an agreement like this with a bill like this, given the way in which Canadians' information will be shared with the U.S. government the minister must admit that the information will not enjoy the same protection in American hands, even if we have the best men and women working as Canadian border officers and the best legislation in place and if we are making every effort to protect people's privacy.

The minister can reassure us all he wants, but, as he so often says, the Americans can do what they want. That is reason alone to not only oppose the bill, but, as I said, to also rethink the agreement.

As I have said time and again, we are seeing a troubling tendency with the new information related to the public safety file globally, whether it is the Justice Noël decision related to illegal collection of metadata by CSIS; the Privacy Commissioner reporting last week that the RCMP has illegally obtained information from cellular phones six times in the last year; racial profiling at the Canada-U.S. border; people being asked to unlock their cell phones and provide social media passwords at the border, without clear legislation in that sense; or whether it is the fact that two years in we still have not seen any changes to Bill C-51. We finally tabled a bill in the dying days of the last sitting of the House, which does not go nearly far enough.

It is a troubling tendency we are seeing that is undermining the confidence and trust that Canadians have in their national security agencies and in the approach that successive Conservative/Liberal governments have had. There is a lack of understanding that rights and security are not a zero-sum game, and that the word “balance” implies that there is sacrificing of part of one or the other. We need to do both. Unfortunately, that is not the report card that the government can have.

We look at a bill like this, at these kinds of agreements more broadly, as we decide to share more and more information with a U.S. government that is being led by a president who has opened the door to the use of torture, and has removed privacy protections on information, not only for his own citizens but even more importantly for non-Americans. For Canadians, in that specific context the government cannot ignore it. Whether it is trying to fast-track this bill that was tabled in the House in June 2016, maybe to make nice for NAFTA negotiations, the fact is, it is about time that the government started to hit the brakes on this willy-nilly sharing of information.

I want to end on one piece. If the government is so proud of this agreement, if it really thinks it is doing the right thing, I have one question to ask. Unfortunately, I will not get to ask it, so I will ask it rhetorically. Why is it that on the first day back in the House of Commons, after a great summer of work that we all spent in our constituencies, that we are hardly going to hear any Liberal speakers? The minister has spoken, and there will maybe be a handful more speakers. However, it is mostly New Democrats and Conservatives who will be carrying the debate.

Maybe my Conservative friends can tell me what is so great about this bill, because, sadly, I do not think I am going to hear about it from the Liberals. They have certainly not made the case for it. The “just trust me” approach by the minister is not good enough when it comes to protecting Canadians' rights and privacy.

[John Oliver, Liberal, Oakville, ON]

Thank you very much for sharing your time.

Thank you for your comments and testimony today. I just wanted to say, in the last few minutes of our week-long session on this, thank you to the clerk and his staff. I was doing some research to see how many witnesses have come to speak to an act before. The Fair Elections Act had 74. Bill C-51, the Anti-terrorism Act, had 75. Bill C-2 , an act to amend the Controlled Drugs and Substances Act had 20. After that, it's lower numbers. I think we might have hit the benchmark with over 100 witnesses on this topic, which speaks to the importance of it to Canadians and the social change that's coming with it.

My comment, for the Emerys and for others who have been part of this very strong culture in trying to create change, is that the purpose of the act is to prevent young persons from accessing cannabis, to protect public health and public safety by establishing stricter product safety and product quality requirements, and to deter criminal activity by imposing serious criminal penalties.

If you read the bill, the goal is not about recreational marijuana users, by optimizing their experience and optimizing their choices. It's a very different lens. I think that's the social difference or maybe the philosophical difference. I understand and hear your frustration. I hear the background that you're coming from, but the act would address different social agendas than the one you've been speaking to.

Public Safety

[Matthew Dubé, NDP, Beloeil—Chambly, QC]

Mr. Speaker, having voted in favour of the Harper government's Bill C-51, the minister is finally presenting the promised reforms, but they are unfortunately incomplete.

The security of Canada information sharing act can have its name changed, but that is only a cosmetic change that does not protect the information shared by national security agencies.

Why has the minister not addressed one of the most controversial aspects of the former Bill C-51?

[Matthew Dubé, NDP, Beloeil—Chambly, QC]

I don't mean to cut you off, but I only have so much time. I get just one turn.

I wanted to discuss clause 2, which seeks to add paragraph 39.1(2), known as an override provision, to the Canada Evidence Act. The provision reads as follows:

(2) This section applies despite any other provision of this Act or any other Act of Parliament.

I'd actually like to hear your thoughts on the importance of the provision. When an act of terrorism, some form of violence, or another crisis occurs in any country, people feel the need for heightened security measures. I'm a bit biased, but that's what I observed during the debate on Bill C-51. The October crisis, in Quebec, comes to mind as well.

Do you think this provision is important to make sure that, in such situations, national security cannot be used as an excuse to undermine freedom of the press?

I'd like to hear all of your opinions on that, if possible.

[Rachel Blaney, NDP, North Island—Powell River, BC]

Mr. Speaker, I do not think that this is the kind of assurance that Canadians expect to hear. Let us look at the government's actual record. The Liberals voted for Bill C-51 under the previous government. They then claimed, right after they won the election, that they were preparing legislation to undo many of the bill's provisions, yet here we are, two years later, and Bill C-51 is completely untouched.

How can the Liberals be trusted with protecting the privacy and civil liberties of Canadians?

Criminal Code

[Wayne Stetski, NDP, Kootenay—Columbia, BC]

Mr. Speaker, I want to start by clarifying for the people of Kootenay—Columbia and those watching across Canada that this Bill C-51 is not Bill C-51 from the 41st Parliament, which was called the anti-terrorism bill. That bill led to widespread protests across my riding of Kootenay—Columbia. People were concerned about the potential to make peaceful protests illegal and the potential impact on their personal privacy rights. Because the NDP is going to support this Bill C-51, in the 42nd Parliament, I did not want there to be any confusion back home.

Regarding the bill before us, we are pleased to support this legislation. We believe that it would provide many overdue protections, particularly for victims of sexual assault. One of the most important provisions in this legislation would clarify the definition of consent. Some of this should be obvious. It should be common sense. In fact, I am appalled that we need to entrench this in law, but here it is. With this amendment, an unconscious person could not be considered to have given consent. There it would be now, spelled out in black and white in the Criminal Code of Canada: someone who was passed out from intoxication, from a blow to the head, or for whatever reason would not be able to consent to sexual activity. Good. While it is outrageous that any other interpretation was ever understood, at least we, as lawmakers, are now making it perfectly clear.

The bill also takes another important step on the issue of consent. A person who is passive during sexual assault, that is, does not scream, “no”, or fight or otherwise resist, cannot be considered to be automatically giving consent. This is necessary and it is overdue. Too often, an individual, unduly pressured or even physically overcome during a sexual assault, will feel fear, confusion, or even peer pressure and will be unable to enunciate his or her refusal. This amendment shifts the burden to the other person to get clear and active consent. To quote University of Ottawa associate professor of law Carissima Mathen, “Passivity is not consent. Consent has to be communicated to you in some meaningful way, not from being quiet.”

That statement is borne out by statistics in a Global News/Ipsos Reid poll. The most recent common reason women gave for not reporting a sexual assault to the police was feeling young and powerless; 56% of victims said so. Forty per cent of respondents said they stayed silent because of the shame they felt, and 29% said they blamed themselves for the assault. Others worried that reporting would bring dishonour to their families, feared retaliation from their attacker, or said they did not have faith in the criminal justice system. New definitions will help clarify the term for the courts, but they do not do enough.

Too often, victims of sexual assault find themselves isolated by the courts. They have no one to protect them from aggressive questioning by a defence attorney and no one to be their advocate. Sometimes there are poorly trained judges, as we learned last year when a judge demanded of a victim why she could not just keep her knees together while she was sexually assaulted. That horrific and shocking statement led to condemnation across the country and the resignation, rightfully, of the judge who made that statement.

Rather than treating victims with care and compassion, our justice system sometimes victimizes them all over again. The solution would be to ensure that victims have access to legal aid as they go through the court process. The current Liberal government must not choose to ignore that essential element in protecting victims.

This legislation also includes the removal of some so-called zombie laws. Those laws, which have become redundant because of other laws that cover the same subject or because they have been overturned by the courts, are an interesting collection. As a former mayor, I know that there are many municipalities with zombie bylaws that need cleaning up as well. Federally, we now no longer have to worry about the detrimental effect of crime comics on our youth. We have many other negative influences to worry about. Similarly, a law banning Canadians from offering a reward for the return of stolen property, no questions asked, seems unnecessary and even detrimental in its own right. I know I personally used that approach to get back my son's stolen mountain bike once, without even knowing it was against the law, as is the case, I am sure, for many Canadians.

One must wonder about the existing laws regarding the practice of witchcraft, sorcery, enchantment, or conjuration. In addition to the fact that it impinges on the rights of some religions, and would confuse the U.S. President who is certain that he is the target of a witch hunt, this might also hurt Harry Potter cosplayers; Dungeons and Dragons "larpers", which I do not know much about but which my staff assure me is a thing; and others for whom sorcery is an entertainment. This is a good law to be rid of.

My favourite among this group of zombie laws is the prohibition on duelling. After all, we stand in a place where the two sides of the House are separated by two sword lengths to ensure we fence only with words and not with rapiers. Still, the last public duelling in Canada took place not far from here in Perth, Ontario, in June 1833, when 23-year-old law student John Wilson shot and killed his friend Robert Lyon, age 20, during a duel over the honour of Elizabeth Hughes, a young school teacher.

Wilson successfully pleaded his case in court, had a lengthy law career, married Miss Hughes, and eventually became a member of the legislative assembly of the Province Of Canada, the precursor of the House of Commons. In case some members of the House or the public believe that duelling will now be legal, it is worth noting that our homicide laws still apply.

The bill offers some good amendments to the Criminal Code. My biggest concern with the bill is not with its content, but with what is missing.

Across Canada, the Supreme Court decision known as the Jordan ruling has allowed many indicted suspects to go free because of the length of time it has taken to bring them to trial.

Just this week, a judge in Quebec City freed a man accused of sexually assaulting his adolescent stepdaughter. Last November, an Ottawa judge freed a murder suspect under the same terms. In fact, across Canada dozens of suspects, people who have been charged with crimes ranging from first degree homicide to sexual assault, have been freed because our courts do not have the capacity or the will to ensure a speedy trial.

While eliminating zombie laws is important, the government's first priority should be to ensure that our existing criminal laws are upheld by the courts. This means more federal and provincial resources and it may mean new laws to reverse the Jordan ruling.

Another item missing from the bill is a long-promised review of damaging and disingenuous amendments introduced by the previous government. The Conservatives' belief that mandatory minimum sentences will somehow reduce crime has been ridiculed by members of the justice system, from lawyers to judges. We have seen over and over the mandatory minimums getting tossed by judges as unworkable and unconstitutional, just as the New Democratic Party's justice critic warned them would happen during debates over those amendments.

Let us look at recent news.

In 2013, a Manitoba judge heard the case of a young man who lashed out at his bullies. The judge refused to apply the mandatory minimum sentence, saying:

A four-year term would clearly place the accused in the heart of the federal penitentiary system normally reserved for hardened criminals. To say that the conditions of a federal penitentiary would be harsh for someone of the accused’s background is an understatement.

(Court of Queen's Bench, Justice John Menzies, October 2013)

In 2016, the Supreme Court of Canada threw out mandatory sentences for repeat drug dealers, concerned that the harsh penalties applied to:

the addict who is charged for sharing a small amount of drugs with a friend or spouse, and finds herself sentenced to a year in prison because of a single conviction for sharing marihuana in a social occasion nine years before.

Just this week, in British Columbia, a judge refused to apply mandatory minimum sentences in the case of a young man who was found employed at a small marijuana farm.

All these decisions took the view that judges must have the flexibility to apply their experience, their knowledge, and, their judgment on a case-by-case basis.

We are glad the government intends to review these unconstitutional sentences, and we look forward to the day that the justice minister keeps her promise. If only the Liberal justice minister would, at the same time, expunge the criminal records of those who had been convicted of carrying small amounts of marijuana in the past, we could see true justice done.

I mentioned the other Bill C-51 when I began speaking. As soon as the election was over, the Prime Minister became silent on Bill C-51 after saying his government would make changes to it. Canadians truly hope the Liberal government keeps its word and does revoke sections of that act soon. Thousands of Canadians, including many of my constituents in Kootenay—Columbia, demanded change and they expect this promised on the former Bill C-51 to be kept.

Public Safety

[Matthew Dubé, NDP, Beloeil—Chambly, QC]

Mr. Speaker, after almost two years, the Liberals have not made a single change to former Bill C-51, despite their promises and serious constitutional concerns. The no-fly list is still in effect, intelligence agencies still enjoy enormous powers, and the list goes on.

By maintaining this legislation, which they supported when it was introduced, the Liberals are allowing gross violations of Canadians’ privacy to continue.

My question is clear: will they finally repeal Bill C-51 with the bill they intend to introduce next week?

Journalistic Sources Protection Act

[Gord Johns, NDP, Courtenay—Alberni, BC]

Mr. Speaker, it is an honour to rise today on Bill S-231, an act to amend the Canada Evidence Act and the Criminal Code. I would first like to thank the member for Louis-Saint-Laurent for bringing forward this bill. He was an esteemed journalist in his past life and knows this very well.

As I was preparing my thoughts on this bill today, I was hoping to talk about a friend of mine, a local reporter on Vancouver Island, Keven Drews. Keven has been a pillar of journalism on Vancouver Island and the west coast for over 20 years. He has shown me what strong, unflinching journalism looks like. Unfortunately, Keven is fighting a brutal 10-year battle with cancer. He is in the hospital today and watching us talk about this very important bill. I am certain he would be happy to know that we are here fighting for freedom of speech and journalists.

The first time I met Keven, and it is hard to believe, I met him surfing. I was in Tofino and he was a cadet, a real, true Canadian committed to Canada and to becoming a journalist who could tell very important stories for coastal people.

As a journalist, he started the local paper, telling our stories, and moved up to become the Alberni Valley Times reporter and editor. Then he went down to Peninsula Daily News, and then over to Port Angeles, Washington, before he got sick. Then he started his own paper, the westcoaster.ca, and started telling a very important story, the west coast story, to make sure that people across our country heard our story. When Keven got sick, he was on the way up in his career, and he went to work for The Canadian Press so he could be close to the hospitals in Vancouver.

Wherever Keven was, he would stop to hear what was happening in our communities. His late father or his mother, Louise, would be with him, who are very proud of Keven, or his wife Yvette and kids Tristan and Elleree. Keven always made time to hear our important stories. His priorities were to ensure that in the stories of coastal people, stories about economic justice and social justice and environmental justice and indigenous people's rights were included. Some of the stories were difficult and painful.

Keven interviewed me many times, and I always respected his sources. I respected that he had to protect his sources so that he could get the story right. He covered really bad accidents, suicides, corruption, and scandals, really difficult stories to cover. It was the confidentiality that earned Keven the respect that he deserved, and he could cover all of these difficult issues. I acknowledge journalists across our country for the passion and caring that they have to make sure they get it right and build trust within communities.

Before I dive into the rest of my speech, I want to thank Keven. I know a lot of people have gone back to their ridings and I appreciate that, but I would ask members to join me in acknowledging this great man, who fought for journalism, people in our communities, and our country.

One of the biggest challenges for journalists and the journalism profession in general is trust, as I touched on. In a changing media landscape where clicks and views have become its currency, the public's trust in journalism has eroded. In this environment, probing investigative journalism has become all that much more important. This is the kind of journalism that we not only need to celebrate but also rigorously protect.

Along with developing trust with the public through their hard work, it is also vital for journalists to develop trust with their sources. Many of these sources need to speak with anonymity. If sources feel their communication with the journalist could compromise them, those sources will dry up. Bill S-231 aims to protect these journalists and the sources they rely upon to create the powerful, well-founded journalism we deserve here in Canada. If we want to sustain our free and independent press, the protections that this bill provides are necessary.

This bill was introduced in the House on May 3, which was fitting, as it was World Press Freedom Day. On that day, the Prime Minister released a statement, which stated:

Today, we recognize the many journalists who seek out the truth, challenge assumptions and expose injustices, often at great personal risk. They are the cornerstones of any strong and healthy democracy, informing and challenging us all to think more critically about the world around us.

I cannot agree more with the sentiment of the Prime Minister's statement last month. The government needs to move past well-meaning platitudes, though, and pass legislation that grants journalists and their sources the protections they need to pursue difficult stories.

The government needs to clear the way on these reforms. I cannot understand why it remains silent while reporters are prosecuted. If the Prime Minister wants to continue to label himself a champion of the free press, now is the time to prove that claim. The Liberals have yet to act upon Bill C-51 and the threat to free speech it poses for journalists, but support for this bill would be a great step in the right direction. To this point, it is worth noting that in 2015, Canada ranked 10th in the World Press Freedom Index, and this year we have slid to 22nd in the world. We can and need to do better.

The World Press Freedom Index cited four items that caused our rank to drop. One was the revelation that Montreal police tailed a La Presse journalist in an attempt to uncover a leak from their own source. Second, the RCMP is prosecuting a Vice media journalist who has been charged with refusing to give up his direct documents to RCMP officers and could be sentenced to up to 10 years for withholding these documents. Third, a journalist for TheIndependent.ca is being charged by the RCMP for his reporting on a protest at the Muskrat Falls hydroelectric project in Labrador. He followed protestors to bear witness to the protest, and he was prosecuted for this action. Finally, there is our lack of a shield law for journalists and their sources.

The first three examples are offensive, overreaching actions, and these cases need to be resolved. The importance of a shield law for Canada falls to us to accomplish and would help to stop injustices such as these from occurring in the future. We need to follow the examples of countries such as Australia, France, Germany, and the United Kingdom in developing a shield law.

I would like to take a moment to speak to some of these cases. In the cases of the Vice reporter and TheIndependent.ca's journalist, both filed stories that will be vital evidence for police in other cases, so it baffles me that journalists acting in the public interest and assisting the public in an invaluable way are then being prosecuted for doing that work. This is a short-sighted approach by police, as it will make journalists consider what stories they pursue in the future. It pushes directly against the rights of these individuals and their protection from self-incrimination. Journalists and the media are not accountable to the government. Strong-arm tactics such as these are the sorts of measures that break down free speech.

I am glad to stand with my colleagues from other parties to advocate for this legislation. This is not a partisan issue. This is an issue of freedom of speech and our democracy, and I think we can all see that. I hope that the government comes to see this as well and supports this bill.

Bill S-231 is a well-meaning piece of legislation. However, I still have reservations about its scope in the bill's current form. I am particularly concerned that small news outlets and freelance writers may still be forced to self-censor or risk entering into an extended legal battle, which remains something few can afford. In 2009-10, The Globe and Mail spent almost a million dollars in legal fees to protect one of its sources, and this kind of expense cannot be expected of local media outlets.

Another concern I have is the limited definition of journalist in the bill's current form. I hope that as this bill reaches the House committee, this language is scrutinized. There is a serious problem if size rather than substance limits the inclusion of publications in the scope of this bill. Bill S-231 is a strong first step, but it is clear that more can be done to reflect the enormity of the media landscape in this day and age.

One of the strongest parts of this legislation is the paradigm shift the bill would provide at the beginning of a police investigation. From the beginning of an investigation, it sets out checks and balances in the judicial process to weigh journalistic integrity against public safety. Journalist advocates provided during warrant requests could lend their expert knowledge and mediate between police forces and judges. This would make sure the onus was on the agencies to prove the need to investigate these journalists.

The bill would also amend the Criminal Code to no longer give a justice of the peace the authority to issue a search warrant relating to a journalist. Only a judge in a superior court would be able to issue a search warrant, under certain conditions that would provide maximum protection to journalists' right to the confidentiality of their sources. This is a wise change. The journalists I have mentioned have been charged with serious crimes, with the potential for significant jail time if they are convicted. Going forward, we need the experience and knowledge of our most seasoned judges in these cases from the very beginning.

This bill needs to be a true shield and not a hurdle to be navigated around. We have a duty to support journalists and freedom of speech in this country. Democracy is at its best when journalists are free to do their job without fear of reverberation. My New Democrat colleagues and I will stand by those who make our country strong with an independent free press.

Criminal Code

[Luc Thériault, Bloc, Montcalm, QC]

Madam Speaker, I am not a lawyer or an expert, and I have to say that after what I have heard from my Liberal and Conservative colleagues in this debate, I am glad that I am neither of those things.

However, one thing I am very familiar with is the Canadian Charter of Rights and Freedoms and the Oakes decision. When my friend from the Conservative Party talks about copyright and tattoos, frankly, it leaves a bit of a bad taste in my mouth. She cannot be serious. This gives the public the impression that the legislators have given up.

For years now, front-line workers have been challenging the scope of sections 2 and 7 of the charter, and my colleagues are telling us that freedom of expression could be unreasonably breached in a free and democratic society, and that this would not survive a court challenge.

I hope the voters were listening to my colleague from Rivière-du-Nord's brilliant speech. To hear my other colleagues say it, bills have to be perfect from the get-go. How many bills have been introduced here and have gone on to be improved in committee? On what grounds can my colleagues justify opposing the principle of fighting organized crime? If making a list of terrorist groups is a good idea, why is it not a good idea for organized crime too? They go on and on about the Canadian Charter of Rights and Freedoms.

Quite a few constitutional experts have said it is time to overhaul the charter because of its unintended consequences. We should talk to police officers, to people on the front lines, to people who put together the evidence needed for an open-and-shut case. We should talk to them about the Canadian Charter of Rights and Freedoms and see what they have to say about it. People have been talking about freedom of expression and freedom of association in connection with criminal organizations. Can anyone here stand up and tell me that section 1 of the charter does not support the bill my colleague from Rivière-du-Nord introduced? Can anyone seriously say that, here and now, at 6:20 in the evening? Come on.

The bill must pass the Oakes test, which is cited in many Supreme Court rulings. What is it? The Oakes test determines whether the purpose of the law is demonstrably justified “in a free and democratic society”. The test applies when the applicant has proven that a provision of the charter has been violated. It is incumbent upon the crown to establish that its limitation satisfies the requirements of the Oakes test. There must be a real and pressing purpose.

In the House, everyone has said that it is urgent that we fight criminal organizations. Everyone agrees that we must improve the Criminal Code in order to better combat organized crime and criminal associations. However, some members have said that what is being proposed is not what is needed. In my opinion, this should be referred to a committee, so the committee could study how it could be improved and evaluate the claims of those who, all too often, call on the experts.

I was a philosophy professor in another life. Appealing to the authority of experts or science amounts to sophistry. When we call on another authority too often and make it our main argument, we do not have a solid argument.

This happens too often in the House. My colleague’s bill absolutely deserves to be debated in committee, in accordance with respectable parliamentary tradition.

The Bloc Québécois’ organized crime roadmap seems to bother my colleagues. However, it was not the Liberal Party that put its imprimatur on the fight against organized crime. The Liberals instead put their imprimatur on the Canadian Charter of Rights and Freedoms. Their interpretation of freedom of expression and freedom of association is outrageous. They ask everyday men and women if they find it unreasonable to infringe on the right of association of criminal organizations by creating a list and fighting intimidation.

For the last year and a half, I have heard some of my colleagues give impassioned speeches decrying the bullying our young people are exposed to at school, and yet, they are ready to accept that members of organized crime walk around with their patch and intimidate people in their communities. Could we be a bit more consistent?

In light of the Jordan ruling and the fact that we release people because proceedings are constantly delayed, my colleague from Rivière-du-Nord claims to believe, after reviewing the matter and consulting experts, who are not the same ones consulted by the members across the floor, that we need to save time. Why kill the bill now instead of talking about it and calling witnesses in committee to tell us what they think about it?

My colleagues’ partisan position is not in keeping with the spirit of parliamentary debate. This is not what the people of Quebec and voters want. They do not want partisan debates in which we seek to defeat bills by claiming in a 10-minute speech that they do not pass legal muster, while my colleague’s arguments are worth at least as much as the arguments by my colleagues across the floor.

I will calm down, since I am speaking on behalf of my constituents. When the Conservatives, who tabled Bill C-51, talk to me about copyright and tell me that the bill before us will unreasonably violate freedom of expression and association, they are expressing a partisan position.

Incidentally, I am happy that my colleague has been able to introduce legislation; we have only had occasion to table two in the last year and a half. This is how Bloc Québécois MPs are treated in Parliament, treatment that no Western parliament reserves for representatives of the people.

Sometimes I hear people question the usefulness of the Bloc Québécois. Well, contrary to what some might think, if it were not for the Bloc Québécois, its roadmap and its efforts to fight organized crime, we would not have been able to improve the Criminal Code's provisions on fighting organized crime.

In all honesty, I think my colleague’s bill deserves to be studied in committee and deserves to be reviewed in the same way as we review all other bills that have received our support in principle, even if they are flawed.

[Ralph Goodale, Liberal, Regina—Wascana, SK]

We obviously want to have the capacity, the very effective capacity, to deal with terrorism threats and to make sure we're keeping Canadians safe. At the same time, we need to ensure that we're safeguarding the rights and freedoms of Canadians. We want to achieve both of those things simultaneously, not one at the expense of the other or with some kind of trade-off. Both of them need to be accomplished.

We will be presenting specific amendments with respect to Bill C-51. They're in the process of being prepared. I would be more than happy to have a full discussion on them when they're in the public domain.

[Tony Clement, Conservative, Parry Sound—Muskoka, ON]

I'd appreciate that.

The next question relates to the Anti-terrorism Act, Bill C-51. This was obviously a subject that the committee did look into. We heard from the Centre for Israel and Jewish Affairs, who made it clear that the offence of advocating for terrorism offences in general was important to crack down on radicalization and propaganda.

I know that there were also some contrary opinions, to be fair, but I'm asking you whether you would keep that provision in place. It's important to have the ability to disrupt terrorism networks and have those laws in place on our books.

Journalistic Sources Protection Act

[Matthew Dubé, NDP, Beloeil—Chambly, QC]

Mr. Speaker, despite the Liberals' obsession with living in the past, we need to remember that, last week, on World Press Freedom Day, Reporters Without Borders reminded us that Canada dropped 14 points in the World Press Freedom Index. I would like to remind members that this happened in the past two years. Those who do the math will figure out that we are coming up on this government's two year anniversary. Before resorting to petty partisanship, the government needs to realize that the status quo is unacceptable for democracy and journalism.

It goes without saying that Bill S-231 is a response to high profile cases, in particular, the surveillance of journalist Patrick Lagacé by the Montreal police. Contrary to what we heard in the government member's speech, the federal government is not safe, here in Ottawa, from these same traps and actions that threaten the freedom of the press and, consequently, our democracy.

Take for example, Vice reporter Ben Makuch who is currently in court trying to protect a source within the RCMP. He could go to prison for it.

He is facing prison because the RCMP is tyring to obtain information that will not help it at all in its investigation. On the contrary, all the information the RCMP needs is already in the public domain, in articles published by the journalist in question. I think this is a very striking example.

It does not stop there. The response provided by the RCMP and CSIS over the past weeks, months, and even years on the various incidents that have taken place are rather unconvincing. Consider the example of Joël-Denis Bellavance of La Presse, who was followed and spied on by the RCMP. I reiterate that the status quo is no longer working, and that is why we are pleased to support this bill. Indeed, we must move this forward.

Although the member for Louis-Saint-Laurent is sponsoring this bill in the House of Commons, I am sure he would agree that it is nice to have a private member's bill, but it is high time that this government introduced something even more robust. Much bigger reforms are needed. I am not criticizing what this bill does; on the contrary, it is a first step in the right direction. However, I think a lot of work remains to be done to bring our legislation in line with the 21st century.

As the member for Louis-Saint-Laurent pointed out, social networks and ubiquitous cell phones have changed how journalists and police officers operate, and are still changing things almost every day. We have a lot of catching up to do if we want a system that works the way we want it to.

People have explained what the bill will do, but I just want to go over that again. In a situation like what happened with the VICE reporter, that means reverse onus for protecting sources. This is very important because it does provide a way to ensure public safety if the police can prove, say, that this is the only way it can get information that would save lives. We know that option exists.

I think it is appropriate for the bill to place the onus on the police, not on journalists, who would have to prove that their sources need to be protected. I think this is essential. In addition, warrants are issued by Superior Court judges, not justices of the peace. That is a very important element that strengthens and tightens up the system a lot to make sure that journalistic sources are properly protected.

I am going to read some quotes that I found that illustrate my point. I am not sure if it is against the rules to comment on one's own absence in the House. Unfortunately, I arrived a bit late because I had other commitments. I apologize if I am repeating what my colleague from Louis-Saint-Laurent said.

I am going to read a few comments, which are quite interesting to me and illustrate the culture that is unfortunately starting to grip journalists and their desire to do their job. Being afraid to do one's job obviously has an adverse effect on the result and, accordingly, democracy.

I will start with a quote by Tom Henheffer from Canadian Journalists for Free Expression. Speaking about the case of the Vice journalist, he said:

He said, “Every civil society organization with ties to free expression in the country are supporting him and condemning the fact that the government is violating press freedom in such an aggressive way. We feel this is a serious blight on Canada's international reputation, and a major mistake on behalf of the RCMP.”

I have another interesting quote, this one from Denis Lessard, parliamentary bureau chief for La Presse in Quebec City. He may have since changed positions. I do not always follow what is happening in Quebec City because I have enough on my plate. He was talking about the police surveillance scandal in Montreal and the SQ. He said:

I have covered politics for almost 40 years, [I am not going to state my age, but let us just say that we are talking about a seasoned professional] and have often reported on politically sensitive topics. You tell yourself that it is always possible that you are being spied on by police, but you are also convinced that they would never dare go that far. Well, it seems we were wrong.

This illustrates the point I was making to show that a journalist starts to change his attitude toward police work even after 40 years of experience with sensitive topics. Let us just say that it has a dampening effect on the work that is done.

I have another quote, this one from Marie-Maude Denis from Radio-Canada:

I have always been extremely careful with regard to my confidential sources, but of course when ‘fighting’ against the police you are always outgunned, as they have access to this kind of investigative tool. The future will tell us or maybe we will never know everything they have discovered about me.

Once again, this perfectly illustrates the change in culture. Journalists would indeed like to know, but they remain in the dark. They wonder what information police departments or other national security agencies, such as CSIS, have on them. That is very worrisome.

I will deviate a little from the matter before us, specifically the bill. I just want to make a general comment. Earlier, I said that there is much work to be done. For the NDP, it goes without saying that the reforms are a good example of that. Our position is that Bill C-51 should be rescinded. We heard groups of journalists express concerns about certain provisions on criminalization and terrorist propaganda. These are very important concerns for the journalists covering these stories or those that infiltrate terrorist cells in order to report facts of public interest. Mainly, we are talking about journalists working for smaller media outlets that have neither the financial nor the legal resources that larger organizations have to give their employees greater and more robust legal protection during court proceedings. That is a very important consideration to bear in mind.

I want to end with a problem that we have with the bill and that we hope to fix in committee. We do not agree with the amendment adopted by the Senate regarding the definition of a journalist. After talking to some journalist groups working in the field and on this issue, we believe that the definition is too narrow and could cause problems for bloggers or journalists who work in non-traditional media.

The member for Louis-Saint-Laurent acknowledged it once again in his remarks. Social media and the Internet, among other things, are changing the field of journalism significantly. We therefore believe that judges should be given the discretion to decide whether someone is a journalist and works in the field of journalism. That would give judges enough discretion to ensure the integrity of what the bill is proposing, while also making sure that journalists working in new media or non-traditional media are not unfairly punished.

That is what we are going to propose in committee. That being said, this bill is an excellent step in the right direction. As the public safety critic, I am very pleased to recommend that my colleagues support the bill, just as I intend to do.

Of course, I would like to thank Senator Carignan and the member for Louis-Saint-Laurent for their efforts. The bill could not have been introduced at a better time, as May 3 was World Press Freedom Day. This is an issue that we should all be concerned about.

As politicians, we have all had our run-ins with journalists, but I believe that our democracy will always be better served by freedom of expression and freedom of the press, and the NDP will join all those who are working toward those goals.

[Nathaniel Erskine-Smith, Liberal, Beaches—East York, ON]

With respect to harmonization and a question from my colleague Mr. Saini, with respect to the adequacy review, you listed a number of considerations: PIPEDA, the Privacy Act, Bill C-51, provincial privacy laws. Has your department identified any areas of concern?

[Krista Campbell]

It think it's one of the most important things that businesses are focusing on right now, and there's interest in knowing exactly what will be coming.

The EU has indicated that they will be looking to review Canada. They have not launched any kind of formal process at this point. We have begun reaching out at my level, at the working level, with European Commission officials to start a discussion around timing and scope of the review. We've had discussions with them about how they've gone about their recent reviews with other countries; what did and didn't work well in terms of providing information; and where there are best practices or good standards they thought were very useful.

We have face-to-face meetings with European officials next week. Then we hope to exchange some preliminary information on what Canada's privacy regime looks like. It'll be broader than just PIPEDA, but we'll give them a good primer on PIPEDA; the Privacy Act; changes that would have been made under Bill C-51; and Security Of Canada Information Sharing Act, SCISA; as well as some information about the fact that, because we're a federation, we have a unique set of requirements that include both provincial privacy laws as well as federal laws. Then we'll work from there on what they think they want to discuss with us more formally once they trigger the review. As I said, it hasn't been formally triggered yet. We definitely are starting the work on planning for what the scope and timing would look like.