Thank you, Mr. Chair.
Members of the committee, I'm honoured to be invited to appear before you regarding this important bill, which has certainly captured the attention of so many Canadians from across the country and internationally
My interest and background concerning this subject is set forth in my short form resumé that is attached to my speaking notes in both official languages. In the interests of time, I'm going to omit that information from my opening statement, although you should feel free to ask any questions.
Given that the government and one opposition party have already indicated support in principle for this bill, I want to indicate that I am not here to destroy the bill. Rather, I want to assist in proposing some practical amendments that would improve it and perhaps save its constitutional legitimacy and integrity. Like so many others in Canada, I accept, based on known evidence, that the current terrorist threat to Canada's security is real and that enhanced measures are necessary for major agencies such as CSIS, RCMP, CBSA, and Transport Canada to combat this threat through lawful means.
In the few minutes I have today, I want to deal with five important matters. First, is constitutionality and the independence of the judiciary. Second, I'm going to touch on freedom of expression; third, on the issue of fairness; fourth, on effective review by SIRC and others; and fifth, on parliamentary overview, which is something you should consider.
Constitutionality and the independence of the judiciary go right to the major flaw in the bill. Part 4 authorizes the Federal Court to issue a warrant to CSIS to take measures that may contravene a right or freedom guaranteed by the Canadian Charter of Rights and Freedoms. This provision, in my view, is clearly unconstitutional and will be struck down by the courts.
The existing charter already has a built-in limitations clause authorizing reasonable limits where necessary in a free and democratic society, and proportionality applies to those limits based on almost 33 years of charter jurisprudence. If Parliament wants to invoke the notwithstanding clause, it is free to do so under this Constitution, although no federal Parliament has had the courage or need to do so since the charter was proclaimed in 1982.
I ask you, why provoke an avoidable constitutional challenge? Canadian judges are fiercely independent and are not agents of the government who can be mandated to authorize measures at all costs to protect against terrorist threats. Federal court judges have carefully authorized or rejected wiretap applications since 1984, under existing section 21 of the CSIS Act. I have seen or reviewed some of those applications and judicial decisions. The process of judicial control of wiretap warrants applications works today.
Why, in drafting new parallel provisions in proposed sections 12.1 and 21.1 of Bill C-51 respecting additional measures, do you need to instruct the judges to totally ignore the charter and to allow CSIS to violate constitutional obligations in order to take these additional measures beyond wiretaps? This notion of Parliament authorizing a charter breach, short of using the notwithstanding clause, is clearly unconstitutional and is not consistent with our constitutional tradition and the way in which section 1 of the charter operates.
You can avoid this constitutional mess by redrafting proposed section 21.1 of Bill C-51 to provide that any warrant that permits CSIS to take measures thereunder will not contravene a right or freedom guaranteed by the Canadian Charter of Rights and Freedoms.
I have a bit to say on freedom of expression, but in the interests of time I'm going to jump over that and urge that you consult the documents tabled and positions represented before you by my colleagues, Craig Forcese, from the University of Ottawa law school, and Kent Roach, from the University of Toronto. They have dealt with this in detail, and I don't have the time to go through it today.
Similarly the provision of fairness, which is guaranteed by section 7 of the charter, states:
Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
This, ladies and gentlemen, is the provision and constitutional requirement of fairness. It's embodied in the special advocates, and I happen to be a special advocate, so I know a bit about that role. I think there is a role for special advocates to provide fairness in a number of the warrant proceedings, a number of the no-fly list proceedings, and you should actively consider that.
I do want to jump right into some of the issues that I know are before you and which I know something about, and that's the question of effective review by SIRC and others.
Now, I have publicly defended the structure of SIRC, which was established in 1984 as the CSIS watchdog. I had the honour to be the first chair. It was effective at the beginning, even though there were growing pains as CSIS broke off from the RCMP and struggled initially to incorporate women and outsiders. The SIRC structure has worked where the only body being reviewed was CSIS and the monitoring of CSIS's extraordinary powers was manageable. That was 1984. Things have changed over 30 years.
First, the CSIS budget, personnel, and powers have grown exponentially while the watchdog budget remains pretty much the same. It is unfair to dramatically expand CSIS powers to conduct disruptive or international activities to fight terrorism at home and abroad while leaving the watchdog frozen in time. Failure of the government to address this issue in the context of Bill C-51 is irresponsible. The public has a right to be concerned whether SIRC can do the job going forward.
Second, this debate on Bill C-51 has caused the public to reflect unfavourably on the scattered and uneven nature of review concerning a variety of federal agencies involved in security matters. There have been concerns about the extent of independent review of the RCMP and CSEC, and the absence of independent review of such important agencies as CBSA, Transport Canada, DFAIT, CIC, and 20-odd other federal agencies, not to mention provincial and municipal police forces involved in security intelligence work.
Whether we need to adopt a federal security czar to supervise, monitor, and coordinate security agencies, as is done in the U.S., or to develop a super-SIRC with expanded powers of review and accompanying budget, or to have statutory gateways to achieve accountability, as recommended by the O'Connor report in 2006, this is an issue that cannot be left aside as Parliament gallops ahead on Bill C-51.
This is not a question of oversight, which has become misused as a term. Responsibility for the planning and conduct of anti-terrorist activities in accordance with the law remains, in the first instance, subject to ministerial approval and approval of warrants by judges based on court applications submitted by appropriate agencies under the detailed requirements of the relevant legislation. This is oversight. Review bodies do not approve operations in advance, but they do ensure accountability after the event, to ensure that hopefully all agencies exercising security functions are effective and operate within the law. They engage the public through exhaustive annual reports tabled in Parliament with a minimum of redactions, redactions that are necessary for protecting individuals or methods of operation.
Let me conclude by talking about parliamentary overview. What are the responsibilities of Parliament other than to ensure that Bill C-51 is improved to allow the legislation to go forward and to assist government agencies to deal effectively with the terrorist threat while protecting fundamental rights and freedoms under the charter?
Members, I have been both a parliamentarian and a watchdog, a professional watchdog. The answer to whether Parliament or a specialized agency should have the power to review our security agencies is easy for me. Canadians should have both. Under our system of government, Parliament is the ultimate watchdog and is directly accountable to the people. The party having the most number of seats at each general election usually is called on to form the government, but Parliament itself remains the watchdog.
There is nothing inconsistent in having specialized security-cleared watchdogs created by Parliament covering the effectiveness and legality of various agencies involved in security work and having a committee of security-cleared parliamentarians charged to oversee the whole system—that is, to take a prompt overview of the situation when problems occur, which they inevitably will in this business, and to delegate the investigative responsibility to the appropriate specialized watchdog.
Indeed, there are three bills currently before Parliament calling for a committee of parliamentarians on national security. The one I like the best is Bill S-220, introduced by former Conservative Senator Hugh Segal. It calls for a committee of nine—three from the Senate, six from the House—to be appointed by the government but after consultation with opposition parties and approval of the appointment by a resolution of their respective houses.
There are provisions for appropriate security and confidentiality of each member of those committees, and the mandate would be to review the legislative regulatory policy and administrative framework for the intelligence and national security in Canada.