Let me start by saying there are two experts in law, Kent Roach from Toronto and Craig Forcese from Ottawa, who have done a series of backgrounders on C-51 for the public, trying to let the public know what is actually in the bill. I think that's an important part of the function of Parliament.
We've had a lot of pointing to a poll that was done, which shows 80% support for the bill. But I would submit, as both Kent Roach and Craig Forcese have, that that poll was done before people had any idea of what was in the bill. I have no doubt that 80% of Canadians think we should do our best to combat terrorism, but I also have no doubt that among those 80%, at the time the poll was done, very few had any idea of what was in this bill.
One of the things that we need to look at is the new offence that that bill proposes of advocating or promoting terrorism offences in general. Here I think we have argued many times that existing legislation already makes promotion of specific terrorism offences illegal. I would like to hear evidence from legal experts on exactly what is changed by adding a new criminal offence of advocating or promoting terrorism offences in general.
We've asked many times for either the Minister of Justice, the Minister of Public Safety, or the Prime Minister to explain to us what is added to what's already illegal with this, in general, offence of promoting terrorism. We haven't had any answer. We've tried repeatedly to get someone to talk about that.
One of the reasons we need more witnesses here is so that we can call in those legal experts who can tell us what the content of the existing law is, and what issues would be raised by adding such a new offence to the Criminal Code. I know that Mr. Roach and Mr. Forcese believe that the scope of this offence is unclear, and I would like to have them before us to explain to us the consequences of having an offence with an unclear meaning. I know they believe it's very sweeping in its criminalization of advocacy and promotion of terrorist offences in general.
That concern leads back to something I talked about in my speech at second reading. I was one of the few opposition members who was actually able to deliver a speech before the government cut off debate. The problem that we have in combatting terrorism is that many law enforcement officials have described finding terrorists as looking for a needle in a haystack. I think that we need to hear testimony on this new broad offence because it raises the danger of adding the last thing we need, which is, adding more hay to that haystack. If you draw more people into these investigations, in general, you risk missing the real terrorist threats. You risk them slipping through, because you are so busy with this huge volume of people whom you've trapped in proceedings under this general offence.
The new offence appears to be even broader than some other offences that it seems to be related to. I think the government may have had in mind offences in the Criminal Code for advocating underage sex , or genocide, or the promotion of hatred. I really feel that, as a member of Parliament, I need people who have the legal expertise, people like Kent Roach and Craig Forcese, before the committee to explain to us the impacts of this change we are about to make.
From my point of view, the offence, at best, is ambiguous. If it's ambiguous, we risk lots of charter litigation about this, and wasting lots of time and money in court. We have legal experts in front of us who might be able to tell us, first of all, whether this is actually needed, and second, if it is needed, whether there is a way of writing this offence that would avoid the unnecessary time we would spend in court trying to deal with the poor wording or the poor definition of the scope of the intended offence.
That's just one of the major issues on which I would like to hear testimony, and I believe other members of this committee would benefit.
I would remind people that when time allocation was imposed at second reading, the Prime Minister, the Minister of Justice, and the Minister of Public Safety all said that they wanted to have debate in committee.
We're not looking to block the bill by full debate; we're looking to have full consideration of whether this bill meets the test of responding to terrorism in effective ways, at the same time as it protects our basic rights and freedoms.
A second area on which I think we do need some expert testimony and some reminding of what happened in the past is the new powers that the bill proposes to grant to CSIS. I would like to hear testimony on the idea that, as the bill says, CSIS can “take measures within or outside Canada, to reduce“ terrorism threats or threats to the security of Canada.
We heard quite often from the government that this proposed disruptive activity would require a warrant from the courts and that therefore this constitutes oversight of CSIS in exercising these new powers. I think we would benefit from hearing from such witnesses as former Supreme Court justices who have expressed a willingness to appear before this committee. I do not believe that this issuance of a warrant will constitute oversight.
Here's the key difference which I think we need to hear testimony from legal experts on: When the RCMP gets a warrant for something like a wiretap, it does that in the context of a criminal investigation. In a criminal investigation the results of that wiretap would then end up back before the courts. The courts then have the ability at that time to look at what was done with the warrant, to see if the warrant complied fully with the law, and whether the activities undertaken by the warrant were those specified in the warrant.
We have some unfortunate examples before us, including the case that ended up before Judge Mosley in the Federal Court. The judge said in the application for a warrant that CSIS lacked candour in providing information to the judge in asking for that warrant. Judge Mosley also expressed concern that activities undertaken under the warrant were other than those suggested to the Federal Court.
This is very serious both in terms of the respect by CSIS for the courts and the court process, but also for a bill like this where activities potentially disrupt things that may not be a threat to Canada in a direct sense in the sense of terrorism.
The problem again, which I would like to hear testimony about, is the scope of the disruptive activities. This bill appears to say that CSIS can undertake disruptive activities to deal with threats, not just terrorism, but to the economic and fiscal stability of Canada and to critical infrastructure. That makes the scope of these activities that we're looking at very broad. Whether or not this would withstand scrutiny under the charter I'm not sure. I would like to hear testimony from legal experts on that point.
The other question I raised in my speech at second reading, and on which I believe we do need testimony, is whether once a warrant is issued there is any further oversight. The problem that I see here is that the context of CSIS is different from that of the RCMP.
Disruptive activities for which a warrant would be asked are not criminal offences, so the warrant will never end up back in front of the court. The court will never have the opportunity to judge the results of what happened with that warrant, and whether the activities carried out under that warrant complied with the warrant itself or complied with the charter.
It's a very different context when we talk about the use of warrants in criminal proceedings by the RCMP and disruptive activities by CSIS. I believe we need to hear some very specific testimony on that.
This question of oversight takes place in a climate where the government chose to eliminate the inspector general of CSIS. One of the people we would very much like to have an opportunity to have before the committee is Eva Plunkett, the former inspector general of CSIS.
Again, I don't expect most people in the public to understand the importance of the former office of inspector general of CSIS. At the time it was eliminated in 2012, the government said it was to save money and prevent duplication. That actually misunderstood the function of the inspector general of CSIS.
The inspector general was an independent officer within the CSIS organization whose responsibility was oversight of activities in real time, not review like SIRC, which is looking at activities after they have taken place, or on the basis of complaints, but actually to monitor the ongoing activities of CSIS.
The inspector general then prepared confidential reports for the minister about whether CSIS was fully compliant with the law in any of its activities. That does two things. One, it protects the very important principle: parliamentary government and the minister having clear control of the activities which take place in his or her name as the minister. Two, it establishes the internal function that an internal inspector performs in any organization similar to the internal affairs of any police department. It ensures that members, in conducting their activities, keep their eye on the ball and keep to the highest standards knowing there is an office that is able and will check on their activities as they are taking place.
I'm very concerned and I know Mr. Forcese and Mr. Roach are very concerned about what will happen with this grant of new disruptive powers.
What the government seems to be thinking is that this is merely an expansion of what you might call the conventional role of judges in issuing things like search warrants or wiretap warrants.
Some of the stuff I have read on this and I would like to hear testimony on is that the purpose of those warrants in criminal law is to prevent charter violations. The way we judge charter violations in Canada is based on whether there is a violation of the basic right and is that reasonable and is it a reasonable violation that's proportionate?
Is it reasonable to sometimes restrict rights? It's part of the very fundamental concept of our Charter of Rights and Freedoms that it is sometimes reasonable to do so, but the second test under that, which the Supreme Court has used and established as part of our law, is that the violation must be proportionate. In other words, it has to show that it's both necessary to do so and related to the original purpose.
That is, again, what I would like to hear from constitutional lawyers and those with expertise.
The government seems to say in this bill that, at best, a special advocate will be invited to defend the public interest in cases where we're talking about judges issuing these kinds of warrants for disruptive activities.
From the very beginning, New Democrats have expressed concerns about the special advocate system because a special advocate is only an individual who is drawn into court to represent the public interest. It's not the person who would be the subject of the activities for obvious reasons.
Given the fact that's the case, we get into very difficult legal ground in our legal system with disruptive activities conducted in secret. The person who is the subject of those will have no right to even know that they are even taking place, no right to respond in any legal forum. A special advocate is supposed to fill that role without being able, of course, for obvious reasons—that's why this doesn't work with CSIS; the activities have to be secret, and I'm not implying there should be no CSIS activities—to consult with the subjects of that activity.
Perhaps we should have one of the existing special advocates in our system before this committee to talk to us about how that works in the existing context of security certificates and immigration refugee law so we could judge whether this is an appropriate way to deal with this question of disruptive activities.
Again I want to emphasize that disruptive activities are extremely important, because they potentially affect public confidence in our law enforcement and security agencies. As anyone who has worked closely with the police, as I have as a former police board member and in my professional career as a researcher in policing, knows and as any such person will be willing to tell the committee, the work of police and security agencies depends fundamentally on the confidence of the public. Disruptive activities by their very nature risk at best reducing and sometimes destroying that public confidence in the activities of law enforcement and security agencies.
A third area in which I think we need to hear very serious testimony is the area that was raised by the parliamentary secretary in her opening remarks: the sharing of information. What both the Minister of Public Safety and the parliamentary secretary did this morning I'm going to try to state simply as fact, not attributing motive; what they did was talk about the sharing of information about terrorism.
All of us of course would pass the nod test; it's the reason they are using that example. If we have information about a terrorist act, it should be shared. I believe it is already the case and I would like to hear testimony from experts on information sharing. They could tell us whether in fact there are barriers to information sharing concerning the most serious violent acts.
The problem in the bill as I see it—and I'm no expert on privacy law, so I would like to hear from witnesses such as the Privacy Commissioner to tell us in fact the scope of information that is proposed in this bill—is that it seems to be extraordinarily broad in scope. It seems to me to come very close to authorizing all government departments to share all information about a very broad list of things. It's not just violent terrorist acts—and this is where our concerns come in—but such phrases as “threats to the financial stability of Canada” or “threats to infrastructure”.
We've had very strong reaction after a 44-page RCMP document was made public that created a whole category of people or class of people called “anti-petroleum activists”, which I think was a term created by the RCMP memo. What we risk here again is that large net. The 44-page RCMP memo, which I have here with me and which I have read—the government accuses us of not reading things—and have read through carefully, mixes people about whom I think we should be genuinely concerned together with those who are legitimately in dissent.
We had a very interesting question asked in the House of Commons by the member for Burnaby—Douglas about the Mayor of Burnaby, whom I know quite well, who has taken a very strong stance against the Kinder Morgan pipeline and was very supportive of citizens of Burnaby who were in technical violation of a court injunction in their attempts to stop Kinder Morgan from drilling on protected parkland in Burnaby.
The government says there's an exemption in this law for “lawful” dissent. That's a change, and it's an important change in our law. The previous anti-terrorism definitions do not contain the word “lawful” in that exemption. In other words, they exempt dissent; they exempt artistic expression. Now, in this law, we have the addition of the word “lawful”. Would that capture the Mayor of Burnaby, in his support for his citizens who were in technical violation of a court injunction and authorize the sharing of all their personal information as a result of that?
I don't think it's an exaggeration. I think it's a legitimate concern. I think we need to hear testimony on this.
One of the problems about information is that once it's shared, you can't get it back. Clause 6 of this bill says that once information is shared among government departments, it can then be used for any legal purpose. Again I would like to hear from privacy law experts and information experts, because to me, what this appears to do is tear down one of the basic principles of our existing privacy law. That principle is that when the government chooses to collect information, it is bound to use that information only for the purpose for which it was collected, with certain narrow exemptions.
I think all of us and the public would look favourably on changes, if they're needed, to allow sharing of information about terrorist acts. But if it's the broader categories we're talking about of these nebulous threats to security—financial stability and infrastructure—then there's a great deal more of concern about what is before us in this bill.
There's a broader question here: is existing legislation adequate for meeting terrorism? If I were going to take the same tack as the parliamentary secretary this morning, I would be reading you a long list of arrests that have been made under existing legislation for terrorism. I think there's a legitimate argument for us to look at in this committee about whether the tools the government has at its disposal to combat terrorism are in fact adequate to the task. This is the purpose of study in committee; it is our responsibility as members of Parliament to look at questions such as these.
When I look at the budgets for the RCMP and CSIS, which have been cut each year since 2012, the question I think we need to ask when we have officials before us is whether there is a question of not having the resources that would be necessary to use the tools that are available in the struggle against terrorism.
Also, there were two pieces of testimony before the Senate Standing Committee on National Security and Defence last October, one on October 20 by the director of operations of CSIS. The subject before that committee—and I was able to read the minutes and evidence several times of that committee—was responding to terrorism.
In particular, they were asking CSIS about the list of people who were a threat to go abroad to contribute to terrorist activity. At the time, there were various numbers depending on the day or week, of somewhere around 90 people who were on that list. What the CSIS director of operations very clearly said before that Senate committee was that they have to prioritize their activities and do not have enough resources to monitor all 90 of these people.
That is a concern that we have on this side. If the government has tools for monitoring, which they do, and don't have enough resources to actually do the monitoring—