Bill C-22 (Historical)

An Act to establish the National Security and Intelligence Committee of Parliamentarians and to make consequential amendments to certain Acts

This enactment establishes the National Security and Intelligence Committee of Parliamentarians and sets out its composition and mandate. In addition, it establishes the Committee’s Secretariat, the role of which is to assist the Committee in fulfilling its mandate. It also makes consequential amendments to certain Acts.

[Pam Damoff, Liberal, Oakville North—Burlington, ON]

That's one of the downfalls of being chair, isn't it?

Thanks, everyone, for coming today.

Senator Segal, you dealt with Bill C-22 mostly, so I'm going to leave that for when we deal with that bill, if that's okay.

I'm going to concentrate mostly on the people from the Munk School. In particular, on counter-radicalization, you mentioned the Kanishka project. I was looking at some of the things it specifically mentions, and there are a couple that aren't included in the green paper or what I had necessarily thought about under the national security framework: “Perception and emotion” and “Collective dynamics and resilience”, how events can “shape thought and action regarding national security”, “how majorities and minorities view these issues”, how terrorist acts can cause “damage to the social fabric”. Some of these things we are not really looking at.

When we are talking about counter-radicalization, are these things that we should be looking at? If so, do you have any suggestions about that?

The question is for either or both of you.

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

Thank you, Mr. Chair.

Mr. Segal, I don't want to litigate Bill C-22 too much, because we will have dedicated hearings for that, but since you are here, and some points were raised, I do have a few concerns. I just want to hear you out on that, and perhaps I'm misunderstanding. But I know in the Arar commission, Justice O'Connor specifically talked about the importance of having a broad integrated expert oversight, and every expert we've heard from has said that the expert oversight and parliamentary oversight go hand in hand.

You can correct me if I'm wrong, but I seem to understand that you're almost thinking that a robust parliamentary oversight should act alone almost. Am I misunderstanding that?

[Marco Mendicino, Liberal, Eglinton—Lawrence, ON]

So you think that if Bill C-22 passes and therefore SIRC and—

[Hugh Segal]

Let me first of all say, part of why I'm taking that view is because it's precisely the view that was taken unanimously by the Senate anti-terrorism committee in making recommendations to the previous government about the kind of oversight agency that should be established and what its terms of reference should be.

I believed it then and I believe it now that Bill C-22 is a pretty strong approximation of what those recommendations were. For me to desert that now would be a little disingenuous.

[Marco Mendicino, Liberal, Eglinton—Lawrence, ON]

I suppose what I'm getting at is that I see some tension between the two submissions, namely that the committee of parliamentarians needs the time to develop the public's confidence, and in that transitional period, we wouldn't want there to be a lacuna of experience, which is currently being filled by SIRC, however imperfect you may think it may be. Are you taking the position that SIRC should shut down the moment we pass C-22 and there's this new committee of parliamentarians, or do you accept that there needs to be in essence a period during which there is some overlap? That's the first question.

The second question is this. I think you stand in relative distinction in advocating for this model, because most of the other experts who have written about this do talk about drawing on the experiences of existing civilian oversight. Indeed, we've heard from some who are advocating for a super-SIRC where we have dedicated, full-time subject matter experts. One of the reasons for that is a concern, which I think is not completely without merit, that these parliamentarians who will sit on this committee have other responsibilities. I would ask you to address both of those questions, if you could.

[Hugh Segal, Chair, NATO Association of Canada, Massey College]

Chairman, members of the committee, thank you for the opportunity to share my perspective with you. I am going to focus primarily on Bill C-22, the parliamentary oversight proposition, because I think it's central to the premise of accountability for our national security and intelligence services.

I think the Government of Canada is to be congratulated for circulating the green paper and discussion paper on the balance between national security and individual freedom, and seeking public input on the choices that are ahead. The new legislation creating a committee of parliamentarians on national security, closely modelled on the U.K. committee of parliamentarians, is also a constructive and overdue initiative.

As Ms. Cheung pointed out, Canada has been the only major NATO partner without a legislative oversight structure for national security and intelligence operations. This is an unacceptable anomaly, an unpardonable gap in the vital linkage between the democratic institutions of the country and the agencies committed to protecting national security, which also means they're committed to protecting democracy.

While ministerial oversight has been clearly established by the enabling legislation for organizations such as the RCMP, CSIS, CBSA, Communications Security Establishment, and some retroactive but limited oversight was provided by SIRC and the Inspector General at CSE, their capacity to provide forward-looking oversight, as opposed to dealing retroactively with complaints, was severely limited.

The model suggested in C-22, namely a committee of parliamentarians, chosen by order in council, as opposed to a parliamentary committee elected by the various parties in the House and the Senate, is the right choice and mirrors the initial form of oversight chosen by the United Kingdom in the Thatcher-Major era. Moving to where the U.K. committee of parliamentarians is now, after decades of operation and a proven track record on trust and discretion, would be a serious mistake and a threat to our national security operations.

For the oversight by parliamentarians to work well, and for the agencies being overseen to, along with Canadians as a whole, benefit from the dynamic of oversight, a relationship of trust between the overseers and operating agencies must be established. A five-year automatic review of existing legislation and C-22 will allow the nature and structure of the committee of parliamentarians to be revised and updated, based on real experience with challenges met and addressed in the Canadian context.

In my judgment, the committee, as now proposed, is too small. It should be no fewer than 12 parliamentarians, with eight from the House of Commons and four from the upper chamber. The new mix of independent senators being appointed affords the government a refreshing opportunity to have senators with previous experience in military, police, security, anti-terrorist, foreign affairs, defence, and civil liberties work considered by the government for service on the committee of parliamentarians.

The preamble of C-22 should specify that the oversight mission of the committee of parliamentarians is to be carried out in a fashion that does not favour partisan advantage or preference. Rather, it should promote the protection of Canadian civil liberties, essential freedoms and privacy, consistent with the Constitution and Charter of Rights and Freedoms, increasing the national security and safety of the residents of Canada.

It would be preferable for all security agencies to fall under the oversight of the same committee of parliamentarians. Separate civilian oversight for the RCMP, or none to speak of for CBSA, is not appropriate and it's unacceptable.

A larger committee of parliamentarians, with the freedom to appoint the head of the research, monitoring, and oversight operational structure underpinning its work, makes the most sense. Members of the structure serving the committee should not be appointed by the Clerk of the Privy Council, or any of the operational deputies in the relevant line departments. The organization serving the committee should be answerable to the committee, with fixed terms of service, appropriate security clearance protocols, and measured experience.

The clerk of the committee should have the rank and status of a senior deputy minister, with an order in council appointment of no less than five years, renewable by mutual consent. The operations of Canada's military intelligence should also be under the oversight of the committee of parliamentarians. The operational and committee support structure for the committee, and its meeting place in camera or otherwise, should be away from Parliament Hill in an appropriately secure facility, not adjacent to CSIS, the RCMP, CBSA, or DND.

Its enabling legislation should protect them from ATI requests, except as they might relate to expenditures, costs, travel, and normative operational administration.

Matters for review, testimony heard in camera, negotiations on agenda with the appearing agencies, reporting relationships between operational agencies and committee and/or its operational support unit should, by statute, be exempt from ATI inquiries.

The committee chair, already designated by the government, should have a Senate vice-chair of the committee. Unlike the requirement in the legislation with respect to the House of Commons, Senate members of the committee or a Senate vice-chair, who should also be designated by the government, need not be members of a partisan group in the upper chamber. Any federal body established in this area by statute—for example, on anti-terrorist missions such as deradicalization and community outreach—should be under the oversight of this committee of parliamentarians.

I'd be delighted to take any questions on this or other matters before the committee.

Thank you very much.

[Prof. Carmen Cheung, Professor, Munk School of Global Affairs, University of Toronto, As an Individual]

Thank you very much, Chair.

Good afternoon. It is a privilege to be here before the committee again. Thank you very much for the opportunity, and thanks again to Professor Levi for generously sharing his time.

I'd like to build a bit on his remarks and on the importance of learning from comparative experience, so let me start with something this committee already knows, which is that we cannot talk about Canada's national security framework without addressing the urgent need to update our framework for national security accountability. The international experience shows that Canada is, quite frankly, lagging behind our closest allies when it comes to comprehensive national security oversight and review.

This committee is currently studying Bill C-22, which would create a national security and intelligence committee of parliamentarians. Political accountability is critical, and the move towards formalizing legislative review is a very welcome development; but as you will have heard from others, a modernized system of national security accountability requires more. Canada's system of independent expert review exists as a patchwork, in contrast to the consolidated model of integrated review that we see in countries like Australia.

The judiciary can play an important role in both oversight and review across a range of national security activities, from authorizing warrants for intelligence activities that might implicate constitutional rights to adjudicating claims arising from government actions. However, unlike in the United States, our courts play little role in authorizing foreign surveillance that might infringe on guarantees against unreasonable search and seizure. These are just a few examples.

This is of course not to say that there is a perfect model for accountability or even a best model. If anything, the value in comparative approaches is in seeing both what works and what does not work. We need not look any further than the recommendations from the Arar inquiry, or last year's extraordinary open letter calling for immediate reform to national security accountability, a letter that was signed by former prime ministers, senior security officials, and former Supreme Court justices. We need not look any further than to our own experts to know that the current system must be improved.

This national consultation we're taking part in represents an important moment of opportunity towards creating an integrated and comprehensive accountability framework, one that can evaluate whether national security policy and practices are effective, legal, and rights-respecting. International comparisons can help us build this framework.

Done right, a robust system of accountability enhances public trust. Also important for public trust is some measure of transparency in how government goes about protecting our national security. This is made complicated by the fact that national security activities will necessarily require some secrecy. Yet I would say that the experience has shown that government sometimes tends towards reflexive secrecy. The commissioners in both the Arar and the Air India inquiries concluded that the government over-claimed secrecy during the course of those two proceedings. Chief Justice McLachlin noted, in the 2014 Harkat decision, that government tends “to exaggerate claims of national security confidentiality”.

Excessive and unnecessary secrecy is problematic for several reasons. First, as Justice O'Connor noted in his report on the Arar inquiry, when government over-claims the need for secrecy, it “promotes public suspicion and cynicism about legitimate claims...of national security confidentiality”.

Second, Canadians should be able to understand and judge for themselves the nature of the security threats facing the country and the appropriateness of our responses to those threats. Excessive secrecy makes this sort of assessment difficult for ordinary Canadians.

Third, secrecy becomes normalized. We see this in new legislation allowing the use of secret evidence in closed courts, and judicial reviews of passport denials and no-fly listings. When processes are secret it's hard to know or hard to believe that they are fundamentally fair. The open court principle is foundational to the common law, and secrecy in the courts should be exceptional. In a democratic society we should always be looking for ways to make proceedings more transparent, not less.

So how do we balance fairness and transparency with the very real need to keep national security information from falling into the wrong hands? In the case of judicial proceedings, at least, we can learn from the criminal justice experience on how to protect sensitive sources and information in an open court, on which mechanisms are best for determining where the appropriate balance lies between confidentiality and disclosure, on how to go about gathering intelligence that can be presented in a court of law. The constitutional demands for a criminal proceeding may be different from those in administrative or civil cases; however, the presumption in favour of transparency and openness should not be.

Thank you again for this opportunity and we look forward to your questions.

[Ron Atkey]

They will relate primarily to ministerial veto and powers of the Prime Minister to redact and withhold information. I read the parliamentary debates on Bill C-22 and most of them are within that framework. I don't think we should use the time today when I'm going to do it next week.

[John Brassard, Conservative, Barrie—Innisfil, ON]

One of the issues you also spoke about was Bill C-22. While I completely understand we're dealing with a national security framework, you did mention Bill C-22 and you talked about some amendments you would like to see to it. What are some of those amendments?

[Marco Mendicino, Liberal, Eglinton—Lawrence, ON]

May I pause for a moment, because what I want to do is take it to the language itself. What clause 9 of Bill C-22 proposes is that the committee of parliamentarians take “...reasonable steps to cooperate with each other to avoid any unnecessary duplication of work by the Committee and that review body in relation to the fulfilment of their respective mandates.”

It seems to me that, as drafted, what we don't want is redundancy, but we do want co-operation and collaboration.

To be as tailored as you can be in your answer, how do you see that co-operation being mapped out?

[Marco Mendicino, Liberal, Eglinton—Lawrence, ON]

Let me take you to the secondary, as I'd like to probe a little bit, and that is how you see cooperation between the committee of parliamentarians working with existing civilian oversight, like SIRC. There is a section under Bill C-22 which calls for cooperation between the committee of parliamentarians and other oversight and review bodies.

Drawing on your experience, what are the statutory gateways that could essentially road map the kind of co-operation you envision?

[The Honourable Ron Atkey, Adjunct Professor, Osgoode Hall Law School, York University, As an Individual]

Thank you, Mr. Chairman, and thank you for scheduling us in the first panel, so we'll be finished well in advance of the start of the baseball game. We'll see it, and we'll come back and report the score to you.

Thank you for this kind invitation to appear before you on the important subject of Canada's national security framework. Let me say how pleased I am that this consultation process is finally proceeding. I guess it was a year ago that an election was held. One might have thought, given the strong positions taken by opposition parties in the last Parliament on Bill C-51 and companion legislation, that the consultation process would start earlier, but I also understand the exigencies of the machinery of government.

I regret to say there was not a careful, measured debate on Bill C-51 in 2015, as the then-government rushed through Bill C-51, perhaps echoing public demand for swift and firm security action in response to the 2014 attacks in Ottawa and Saint-Jean-sur-Richelieu.

Let's be grateful that this much-needed conversation can now begin. Of course, we are all assisted by the recent release of two important documents. First, on August 25, 2016, the Minister of Public Safety released his “Public Report On The Terrorist Threat To Canada”, noting that the principal terrorist threat to Canada remains that posed by violent extremist groups at home or abroad who could be inspired to carry out an attack within Canada.

The second was an important background document released last month, on September 8, a national security green paper entitled “Our Security, Our Rights”, which is an objective discussion on most of the hot-button issues such as accountability, disruption, information-sharing, the no-fly list, interdiction measures, and investigative techniques.

This 66-page document, plus endnotes, is by no means bedtime reading, and it has been difficult for me to get my students to plow their way through it, but I am going to, before the end of the term, I assure you. It walks the delicate line between being an advocacy piece for enhanced security measures and the need to protect fundamental charter rights and freedoms. For those Canadians who want a shorter document, there is relief, because the actual green paper is only 21 pages.

I offer my sincere congratulations to Minister Goodale for finally getting this process under way. How long it will take remains to be seen. There are some provisions in the Anti-terrorism Act that are clearly unconstitutional and need immediate legislative fix, such as the power given to federal judges granting a disruption warrant that can ignore the Canadian Charter of Rights and Freedoms, or the lack of due process on the administrative side in the administration of the no-fly list. These should not have to be litigated in the courts. They can be easily dealt with by Parliament in this session.

I note that the green paper proposes a mandatory review of the Anti-terrorism Act after three years, but I can't help but observe that this will provide the government with an excuse to do nothing following the current consultation, until the end of 2018 or perhaps after the next election.

The period 2018-19 will be the lead-up to the next general election—hardly a time, in my experience, for constructive, non-partisan debate and enactment of meaningful legislation, if 2015 is any guide to the process.

The first of two items I want to deal with is accountability. Now, to be very fair, last June this government introduced Bill C-22, the national security and intelligence committee of parliamentarians act, which was long overdue. This will provide, for the first time, a select group of Canadian parliamentarians with access to the national security tent. I hope the bill is passed this year, although not without some constructive amendments that may come forward. I may be suggesting some of these to you when I appear as a witness before you next week in Ottawa.

The point I want to make is that Bill C-22 is only a small part of the jigsaw puzzle of national security. Its anticipated achievement as a new structure in our system should not be used as an excuse for delaying necessary reforms to our national security framework generally.

Let me share with you my experience over the past 40 years. During that time, I was an opposition MP; a minister of immigration during troubled times in 1979-80; the first chair of the Security Intelligence Review Committee, from 1985 to 1989; amicus to the Arar commission; and a special advocate under the Immigration and Refugee Protection Act. I have taught national security law for eight years as my retirement project. So I know a little about the subject, and I have some views.

Regarding accountability, I've changed my views. When I first became the CSIS watchdog in 1985, along with four distinguished colleagues following consultations with the opposition parties, I accepted the conventional wisdom that reviewing the complex security operations at CSIS was too difficult and time-consuming for busy MPs, who could not be trusted to maintain security confidentiality in the political atmosphere of the House.

Over time that situation has changed. Whether it was Parliament's responding properly to the horrible events of 9/11 with controversial provisions regarding what was then the Anti-terrorism Act, or the heavy-handed response of Parliament with the passage of Bill C-51 to the 2014 attacks in Ottawa and Saint-Jean-sur-Richelieu, which became law in June 2015 after much partisan debate, one thing has become clear: a way has to be found to bring elected MPs inside the national security tent.

The debate in Parliament and before committee on Bill C-51, which I closely followed, suffered from an absence of an understanding of the objectives and techniques of preserving national security for Canadians while protecting rights and freedoms under the charter. If Canadians are going to be asked to support the toughening of our national security framework, sometimes at the expense of individual rights and freedoms, they need assurances that changes going forward will be carefully scrutinized in camera by a select group of elected representatives. This committee of parliamentarians will be the first point of reference for an overview when something goes terribly wrong, which it's bound to under the circumstances.

That is not to say that the committee of parliamentarians should be a substitute for the independent review bodies like SIRC, or the CSEC commissioner, or the CRCC reviewing RCMP activities. In fact, the committee's work will be complementary to the expert review bodies. It is my view that the jurisdiction of these expert review bodies should be extended to cover other federal agencies such as CBSA or Transport Canada—that's my list—and that steps should be taken to allow these review bodies to share classified information with each other or to conduct joint reviews of national security and intelligence activities.

A lot of the work on the possible changes to the framework for national security accountability in Canada was undertaken by Justice O'Connor and his staff a decade ago as part of the mandate of the Arar commission. Unfortunately, many of his recommendations appear to have been ignored to date. I hope the release of the green paper currently guiding you in your discussions and debate on Canada's national security framework will rekindle some interest in the O'Connor recommendations, many of which remain valid today.

I'm going to conclude by commenting on something that's not in the green paper, and that is the national security adviser to the Prime Minister. Currently this office is within the Privy Council. It does not appear to have a high profile or any operational responsibilities. Given the communication problems that exist between the 17 agencies or departments involved in national security and intelligence activities, the complexity of sharing arrangements contemplated by the Security of Information Sharing Act under Bill C-51, and the practical efficiency of joint operations on a broader base than it is currently, why not give the responsibility to someone with clout at the centre, the national security adviser to the Prime Minister? Of course, the mandate would have to change under this proposal, and so would the manner of appointment. Similar to the Auditor General or the Privacy Commissioner, this person should be appointed by Parliament on the recommendation of the Governor in Council. Presumably the committee of parliamentarians established by Bill C-22 would play a major role in the nomination and approval process, and the national security adviser would be required to table an annual report in Parliament subject to the usual redactions regarding security matters.

Some commentators may regard this proposal as plumping for a national security czar for Canada, but the concept has worked in the U.S. to ensure, since 9/11, more inter-agency co-operation, and the avoidance of institutional stovepipes in the unwillingness to share important security information in an organized and secure framework.

That concludes my remarks. I want to thank you for letting me share these ideas with you, and I look forward to your questions.

[Marco Mendicino, Liberal, Eglinton—Lawrence, ON]

Thanks for your remarks.

While I don't want to just resort to saying that the proof we are listening is that we are here and I am taking copious notes, not just from what you said but from everybody else who has been up at the mike, I do want to address what I think is your second ask, namely oversight.

As somebody who appears to be studying the issue very closely, as a member of OpenMedia, you will have seen Bill C-22, which would create, for the first time ever, a committee of parliamentarians charged with oversight of the national security file. Hopefully, that is demonstrative of some progress and advancement in at least one of the areas you are concerned with.

[Larry Miller, Conservative, Bruce—Grey—Owen Sound, ON]

Thank you, Mr. Chair.

Thank you, Ms. Vonn and Mr. Whitaker, for being here.

It's pretty obvious, the disdain and dislike that both of you have for Bill C-51, but I stand by the comment that no legislation is perfect but no legislation is all bad, either. Even Bill C-22 was mentioned by a previous witness here, who made some criticism of it. That's fair enough.

What I'm trying to get my head around is that a number of so-called experts in the law enforcement field have made comments that if some parts of Bill C-51 had been in place prior to October 22, two years ago, Private Vincent and Corporal Cirillo might still be alive. Also, some of those same ones have stated that the would-be terrorist in Strathroy just a few months ago wouldn't have ended up being apprehended and stopped.

I see, Mr. Whitaker, that you shrugged your shoulders on that, as if it doesn't matter. If that's not the case, that's fine, but what I need to know is in your worlds, both of you, where and when should it not be that law enforcement powers have the right to infringe on an individual's rights if that individual has a distinct, deliberate plan to basically commit domestic terrorism or otherwise?

[Professor Reg Whitaker, Professor, Department of Political Science, University of Victoria and Distinguished Research Professor (Emeritus), York University, As an Individual]

I would certainly like to add my voice to applauding the initiative of opening up national security to wider public participation as with these committee hearings. It's certainly a contrast to the way in which Bill C-51 was carried through the last Parliament. A better-educated public is crucial to democratic decision-making, as is the enhanced role of Parliament as we see put forward in Bill C-22.

However, public consultation can be diffuse and unfocused, while the key agencies of government have their own sharply focused agendas, which are relentlessly pressed on governments of any political stripe. I see already evidence in the green paper and in Bill C-22 of this process at work. The agencies are acting as a kind of heavy anchor pulling in one direction, while counter-pressures from outside are much weaker.

I'm not saying there's anything inherently nefarious in this kind of bureaucratic behaviour. I'm assuming that the bureaucrats are trying to do the job they're assigned to the best of their abilities, but on the issue of the powers that they are granted and the protections in terms of privilege and secrecy for their operations, there is a clear public interest in limiting the agencies' capacity to act without accountability to the public and to Parliament, and as well, in limiting the scope of their powers to conform to the rule of law.

The agencies certainly have legitimate concerns about reforms. I think there have been some unrealistic concepts of accountability and oversight that have been put out there, such as the idea that there should be oversight of ongoing operations in real time, whether by a parliamentary committee or whatever, which would be unworkable and undesirable. However, the provision of extraordinary and unreasonable powers, even though the agencies have no apparent intention of actually using them at this time but might prefer to keep them in the back drawer, as it were, just in case, should not be tolerated, nor should excessive limitations on external oversight review just to make the bureaucrats' lives a little easier.

In the interest of time, I want to focus my remarks on one section of Bill C-51, what I consider to be the very worst part of what I would say is a very bad piece of legislation, generally badly conceived, badly drafted, and potentially pernicious in effect. I'm referring to the threat reduction or disruption powers awarded CSIS and the special warrants CSIS might seek for judicial authorization to break the law and violate charter rights. I will also try to touch on the closely related issue of the secret intelligence public evidence problem.

What is wrong with CSIS threat reduction powers? Well, I think, everything, literally. As someone who has co-authored a history of the security service from its late 19th century origins to its present post-9/11 era, from the RCMP to its present incarnation as CSIS, I would say unequivocally that threat reduction in Bill C-51 is dangerous to civil liberties and the rule of law, certainly, but it also threatens to undermine security and effective counter-terrorist law enforcement.

CSIS is a security intelligence agency empowered to collect intelligence on threats to security and advise governments. The RCMP, of course, is the law enforcement agency on national security matters. The security service was taken away from the RCMP in 1984 after the McDonald commission for good reason: the illegal activities in the 1970s, mainly in Quebec against Quebec separatists but also against various left-wing organizations in the rest of the country.

Violations of laws without accountability, no clear lines between violent versus legitimate political groups, the question of control by elected governments, and so on, was precisely what the McDonald commission reacted against, and CSIS was created apart from the RCMP, with no law enforcement powers and a mandate spelling out what it was authorized to do and what it was not authorized to do. All those things flowed from McDonald and we're seeing it threatened with a return back to that era, that scandal-filled era again.

I'll just skip over some of the credits and try to focus on each of the problems with this.

First of all, the special warrants allow law-breaking and charter violations, short only of murder, torture, and rape, to be authorized by a judge. They are not surveillance warrants, which are in effect judicial certifications that these acts are within the law and abide by the charter. Instead, they ask judges to enable law-breaking and unconstitutional acts. This is a radical revision of the role of the judiciary from protectors of the law and constitution to enablers of violations. This is a shocking assault on the rule of law and the independence of the judiciary, now turned into a tool of the executive. I expect most judges, if not all, would be quite appalled by this prospect.

The next point is that the warrant application is entirely secret, with no specified follow-up for the judge granting the warrant to determine if it has been carried out as promised, or what the results are. No reporting is required of warrants granted or turned down—no accountability of any kind.

The decision to seek a warrant—and this is an important point—is at the discretion of CSIS. If they decide that a disruption activity does not require a warrant, there appears to be no fallback accountability as to whether that decision is justified. That is unacceptable.

These threat reduction measures could involve detention, if you read this very carefully—not arrest but detention—and they could involve extraordinary rendition on the international stage. Of course, in the latter case, we could see the potential for somebody who is a Canadian perhaps being rendered to a country where torture is routinely practised.

All of these issues that I've been talking about are problems regarding the rule of law and the rights of citizens, and so on. However, it's also very important to realize that CSIS threat reduction efforts could impede rather than facilitate counterterrorism. This recreates the potential for conflict turf wars with the RCMP, as were tragically shown by the Air India commission. It opens up the possibility that CSIS, protecting its sources as a security and intelligence organization, could imperil convictions in court, and there's the distinct possibility that these activities could contaminate the evidentiary trail.

This brings us to the intelligence evidence conflict that the Air India commission addressed, in which the government did not take up any of the recommendations of the commission to deal with this problem. I can't go into this at any length, and certainly it's a topic best undertaken by lawyers, except to note that threat reduction or disruption activities can be useful, certainly. I'm not making the point that they should never be used. They can be very useful in counterterrorism, so long as they are undertaken with the goal always in mind of securing criminal convictions and putting dangerous terrorists behind bars.

The RCMP already does this, both in its criminal and national security investigations, if you look, for example, at the Toronto 18 case. CSIS does disruption as well, under pre-Bill C-51 law, and that's fine. I don't have any problem with that, so long as it does not interfere with the criminal law process and is rather supportive of the criminal law process.

A general point that I would like to make is that unlike the old Cold War era, the era of terrorism is one in which, given that the terrorist threat is against civilians, ordinary people, the priority must always be given to law enforcement and criminal convictions. CSIS has a role to play, but the notion that they have this role of slowly building a long-term picture of these networks like the old KGB in the Cold War has to be subordinated to law enforcement. The threat reduction powers and special warrants radically undermine this.

The last thing I want to say is that CSIS says it has not applied for any of these special warrants, and that presumably everything it has carried out, we can assume, has not required that kind of special warrant power, like the powers of preventive detention and investigative hearings in the 2001 Anti-terrorism Act, which were so controversial that time limits were put on them. They were actually allowed to lapse at one point and then were reinstituted by the former government, yet in all that process, they've never been used.

Are we seeing a repeat of the same kind of phenomenon?

In both cases, if they have never been used, why exactly are they needed? In the case of the threat reduction powers, perhaps CSIS had these foisted on them unwillingly by the government. In that case, then, we really ought to get rid of them. Or it may be another example of the unending pressure on governments to keep up powers that they might need “just in case”. That's a very bad case for keeping a bad law on the books to be potentially abused by less responsible people in the future.