Thank you very much, Chair. I'd like to thank the committee for inviting me to appear here today.
The terrible terrorist attacks last month confirmed Parliament's wisdom in 2013 in enacting four new terrorist offences that can apply to foreign terrorist fighters. Unfortunately however, Bill C-44 may have the unintended effect of making it more difficult to apply these valuable new offences to potential foreign terrorist fighters. That will be my primary focus in my submissions.
My second focus will be that the “innocence at stake” exception to the new CSIS human source privilege is required by the charter, but it is unconstitutionally under-inclusive as applied to non-criminal proceedings where section 7 charter rights are in play.
Finally, I will suggest that while it is correct that Bill C-44 gives CSIS new powers to conduct investigations outside of Canada and that this responds to the threat environment that we live in, there is a concern that we need new and integrated review mechanisms as well as better ministerial and parliamentary oversight of CSIS foreign activities.
To move to my first point, Bill C-44 would overturn the Supreme Court's recent decision in Harkat as well as reject the recommendations of the commission of inquiry into the bombing of Air India that CSIS informants not be given the same privilege as police informants. Both the Supreme Court and the Air India commission stress the danger that because of its intelligence-gathering mandate, CSIS may make premature promises of anonymity to informants, which could hinder or even thwart subsequent prosecutions.
Clause 2 of Bill C-44 would give CSIS human sources a veto on disclosure of any identifying information once they have received “a promise of confidentiality” from CSIS. The courts have most recently, in 2013, in the context of police informer privilege, said that these promises of confidentiality may even be implicit. I have a concern that virtually every human source CSIS talks to under the proposed legislation would then have the benefit of the privilege and a veto on any identifying information being disclosed, whether it's to defend a search warrant in a terrorist investigation or to be called as a witness in a terrorism prosecution.
These are not hypothetical concerns, and I should mention that I spent four years as director of research and legal studies on the Air India commission studying this question. In 1987 the prosecution of Talwinder Singh Parmar, the alleged mastermind of the Air India bombing, collapsed when an informer refused to allow his name to be disclosed. Now, that informer was in a very difficult position, and the crown attorney at the time said in open court that if he were in that informer's position, he would make the same decision because of fear for his life—as you have heard from earlier witnesses. But the fact is, that prosecution fell apart because of the informer privilege and the informer's ability to veto disclosing any identifying information.
This legislation would have given the two informants in the Toronto terrorism prosecution a veto on whether they would be called as witnesses or on disclosing any identifying information about them. As you heard yesterday, CSIS is not in the business of collecting evidence, and it was for this reason that the Air India commission warned it would have an incentive to promise anonymity and confidentiality when necessary to fulfill CSIS' intelligence mandate.
This is not an issue of CSIS deliberately abusing the privilege, but simply because of its functions, it will have an incentive to promise confidentiality. And then later on down the stream, perhaps months or even years later, the police and prosecutors may have a very difficult time dealing with the consequence of this near absolute privilege that would be bestowed on all CSIS human sources under Bill C-44.
The Air India commission was acutely aware that there is a dilemma. Sometimes it is more important to have intelligence than prosecution, but its solution was that this dilemma should not be resolved unilaterally by CSIS or, indeed, by the RCMP, but that decisions should be made in the public interest on the basis of all available information, by the Prime Minister's national security advisor.
The second point is simply that the “innocence at stake” exception in paragraph 18.1(4)(b), as required by the charter, would apply in criminal prosecutions. But the Supreme Court, in Charkaoui, has made it very clear that section 7 also applies in the non-criminal context, and in particular the security certificate context. It would be my submission that you should consider expanding the “innocence at stake” exception to allow judges to order disclosure that would pierce the privilege whenever it is required under section 7 of the charter.
Similarly, I realize that a policy decision to extend the privilege may have been made, but I would also propose that when you go into clause by clause, you should look at the section 2 language of the promise of confidentiality. That language should at least be limited so that it is only an explicit promise made by CSIS of anonymity that would trigger this broad privilege that, as I suggested, could hinder subsequent police investigations and prosecutions.
Finally, my last point is that I agree that, given the threat environment, CSIS needs to be able to conduct its investigations outside of Canada. But I do have some concerns about the “without regard to any law including that of any foreign state” language. I have concerns that this may override the restrictions that the National Defence Act places on CSEC or signals intelligence agency. I also think there is a need for an integrated review, or at least statutory gateways, as recommended by the Arar commission and as Professor Forcese in his submission advocated to you, and indeed has proposed some language to that effect.
I would also add that there is a need to ensure both ministerial and parliamentary oversight as CSIS uses its new powers to act abroad.
Thank you very much.