Evidence of meeting #42 for Public Safety and National Security in the 41st Parliament, 2nd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was chair.
A recording is available from Parliament.
Liberal
Conservative
The Chair Conservative Daryl Kramp
Thank you very much. I appreciate your concern, Mr. Easter.
(Amendment negatived [See Minutes of Proceedings])
Mr. Easter, you can try again on amendment LIB-4.
Liberal
Wayne Easter Liberal Malpeque, PE
Mr. Chair, LIB-4 is simple as well. It's to provide clear and unambiguous language with respect to what will trigger the seeking of a warrant for activity to be conducted in a foreign country that may be in violation of the laws of that country.
I think it's important to keep in mind that some of the language in this bill is language that we do not see in any of our Five Eyes partners in relation to security agencies.
It's basically just to clear up the language.
Conservative
Roxanne James Conservative Scarborough Centre, ON
I will not be supporting this amendment. I think that by adding proposed paragraph 21(1.1)(b), “that could be inconsistent with the rules of international law...”, you're forcing CSIS to actually be aware of and make a judgment against 170 other states, other countries, countries that in some cases—obviously in many cases—are not governed by the same principles, human rights, and so on that we have in Canada.
I think we also heard from a witness who specifically talked about tracking individuals overseas and the chance that they would cross borders, which would also be a serious problem if we were to adopt this amendment because it would require CSIS to determine whether it would be inconsistent in that particular country as well.
I'm not going to support it. I think the legislation is very clear in this respect. I don't see the necessity for it, and I think it would be overly cumbersome for CSIS to have to prove that something is consistent with other countries....
NDP
Randall Garrison NDP Esquimalt—Juan de Fuca, BC
Mr. Chair, this is very similar to NDP-9. In fact, if the government defeats this, we will not be moving NDP-9 because they're essentially identical in their intent.
I completely support Mr. Easter's arguments.
I find it strange that both the minister and the parliamentary secretary have raised this question that somehow in dictatorships there is some process you'd have to go through to get warrants, and of course, the point of most dictatorships is that there is no such process. So I don't think you have to unnecessarily worry about CSIS having to comply with the law of dictatorships on intercepting communications or those kinds of things, because those kinds of protections don't exist. I find it a peculiar objection.
On the other hand, CSIS does have to know the laws of the countries in which it's operating in order to be effective. I would be very concerned if we were arguing that CSIS can simply ignore international law and ignore the laws of all those states.
We'll be supporting Mr. Easter's amendment, and as I said, if this is defeated, we will not be moving NDP-9.
Conservative
Roxanne James Conservative Scarborough Centre, ON
I'm not sure whether I mentioned it, but CSIS already requires a warrant. Regardless of whether the laws of another country are inconsistent to what activities they want to partake....
They already have to get a warrant, so regardless of whether you agree with it or not, it's really not essential for the bill. They already require a warrant.
(Amendment negatived [See Minutes of Proceedings])
Conservative
The Chair Conservative Daryl Kramp
We're on amendment NDP-8.
Mr. Garrison, I'm presuming you're moving this.
Conservative
The Chair Conservative Daryl Kramp
If so, amendment LIB-5 and amendments PV-5 and PV-5a are identical amendments and will not be dealt with.
NDP
Randall Garrison NDP Esquimalt—Juan de Fuca, BC
This amendment would delete the wording about this being without regard to the law of another state or international law, and I think that comes to the heart of the disagreement around the table here. While CSIS has to operate clandestinely, it's not required to operate illegally, and this implies that, even in friendly nations where we often conduct espionage activities or might be required to obtain information, we could violate the laws of the United States, the laws of France, the laws of our allies.
This amendment simply deletes the whole of that wording. I think that's why you've seen the same amendment submitted by the Green Party as well as the Liberal Party.
This seems unnecessary and seems to be creating a dangerous situation whereby we encourage people to ignore the laws of our allies.
Conservative
Roxanne James Conservative Scarborough Centre, ON
I'm not jumping ahead, but you mentioned amendment NDP-9. The amendment you're proposing here is actually removing the whole issue. It states: “Without regard to any other law, including that of any foreign state...”. Again, the test is here in Canada, with our law, Canadian laws. By removing that—and I know that you're going to either go forward with amendment NDP-9 or withdraw it—you would need to, in your amendment NDP-9, spell out what's required, which we will not be supporting.
That's obviously and fundamentally a difference between this side and that side. We believe that the real test of whether CSIS' kind of work should be done is here in Canada, based on our Canadian laws, which are in most cases way above and way stricter, with better human rights and so on than in most of the countries where the warrants would be used.
Conservative
Diane Ablonczy Conservative Calgary Nose Hill, AB
I thought the whole point of this bill, or at least one of the points, was to clarify a question that the Federal Court raised about this, because the Federal Court basically.... I'm trying to find the decision. Maybe other people know. The Federal Court basically said that it was not sure if it could issue warrants for CSIS activities overseas, which I think we all agree are necessary because security risks are highly mobile.
The court said that it was just not sure if it had the jurisdiction to do that, so I thought the whole point of the bill was to clarify that, yes indeed, it has jurisdiction to authorize our intelligence services to pursue sources in other countries. Also, some of these countries may not share Canadian values and Canadian human rights norms, so we're saying that it's our law, which I think we all agree is probably the gold standard in protecting people and in being concerned about rights, that will be the operative law.
If we pass this amendment, we would be obviating one of the key points of having the bill to begin with, which is to clarify for the courts what their jurisdiction is in issuing warrants.
Am I wrong about that?
Conservative
Liberal
Wayne Easter Liberal Malpeque, PE
Well, in terms of the warrant issue, you are correct. The court has determined that there need to be warrants issued for the activities in which CSIS involves itself abroad, but with the wording here, basically what we're proposing is to get rid of the wording “Without regard to any other law, including that of any foreign state...”. We've looked, and we've had the Library of Parliament look, and none of our Five Eyes partners has similar wording or similar legislation that would legitimize that illegal activity in another country.
The director of CSIS, when he was before the committee, confirmed that, saying, “I'm not aware of any other countries, partners, that would have the same type of legislation.”
The British Columbia Civil Liberties Association stated this for the committee:
We believe that asking Canadian courts to authorize violations of foreign law simply invites reciprocal conduct by foreign courts and erodes Canada’s reputation for respecting the rule of law.... Nor is it clear whether such warrants can completely shield CSIS from accountability here in Canada if illegal actions undertaken by a foreign agency working in coordination with CSIS results in the violation of a Canadian's rights abroad—
It's wording that is basically saying that we are going to violate the laws abroad, and other countries don't have that.
NDP
Randall Garrison NDP Esquimalt—Juan de Fuca, BC
Mr. Chair, in response to Ms. Ablonczy, whom I do take very seriously on this issue, we're not amending to take out the warrants. Again, we're simply amending the bill to take out a piece of overreach that I don't believe is necessary for those warrants to operate. The warrants will still be there and the requirement for CSIS to get a warrant and the Canadian standards will still be there. I simply don't believe it's necessary to have the wording without regard to any other law of a foreign state or international law. That creates problems down the road for Canada's international reputation, as Mr. Easter has just pointed out. Again, I did ask the same question when the officials were here, if this were seen as necessary by any of our partners who have such warrants, and it's not. None of them use this, so I believe it's a case of overreach once again in the bill.
Conservative
Roxanne James Conservative Scarborough Centre, ON
I know the NDP and the Liberals like to compare Canada to our Five Eye partners and like-minded countries, but they do it selectively. In this particular case, they're saying no other country that we're compared to has a similar text in their acts, but I just wonder if any of those other countries has had recent court decisions that have called into question the authority of CSIS to be able to operate overseas.
The reason we're here, as Ms. Ablonczy indicated, is we need to clearly specify that they have that ability. We want to make sure that Canadian law takes the highest precedence, and that warrants are issued here in Canada. With regard to comparing us to other countries, it's unfortunate they do it selectively, because when we voted on standing up with our allies and air strikes against ISIL, they didn't consider that same argument. So again Canada is Canada. We're a unique country. We don't necessarily need to be compared to every other country, but we're also in a unique situation here. We're not immune to terrorism. This bill is extremely crucial at this point in Canadian history. We need to get these changes in, and I firmly believe that this text before us puts Canadian human rights, Canadian courts, the judiciary, and the Charter of Rights and Freedoms ahead of some other foreign state. It is absolutely essential and will ensure that the courts will not have the same decisions in the future.