Public Safety Committee on March 10th, 2015

[Peter MacKay, Conservative, Central Nova, NS]

We're not going to do that, and of course the privilege rests not solely with me but with the entire government.

[Randall Garrison, NDP, Esquimalt—Juan de Fuca, BC]

Thank you very much. I still believe we would benefit from having that information before us.

I want to turn to Mr. Blaney, who said he would welcome the opportunity to clarify things today. I have two questions about the new powers given to CSIS in this bill. The minister has said many times in public and in the House that the new disruptive powers of CSIS would require a warrant from a judge. I would like him to clarify, because according to my reading of the bill, as well as that of many others, it does not say that. It says that disruptive activities may be conducted and will require a warrant only in certain circumstances. I'd like him to clarify that part.

The second thing he said was that very often this amounts to judicial oversight. Since the warrant being sought is for activities conducted in secret and not for those leading to a criminal charge, how will the judge ever see what happened with that warrant again? How would that warrant ever end up back before the courts so they could exercise oversight? I don't see any provision there, once the warrant is granted, that would allow a judge to examine what had happened with that warrant.

I have to say, just briefly, that when Mr. Blaney says that the NDP is attacking police and CSIS members, we're not. We're saying that occasionally agencies make errors and they end up before the courts. We have the Mosley case, which clearly said that CSIS had, in some cases, made errors that constituted a violation of the law.

My question is very specific. Does disruptive activity always require a warrant, and how will that warrant ever get back in front of a judge?

[Steven Blaney, Conservative, Lévis—Bellechasse, QC]

Thank you for your question. You certainly heard me again this morning clearly say that a warrant is required every time there is a legal consideration. I'll just refer to what I said earlier this morning.

My remarks were as follows: “With this new mandate, Bill C-51 sets rigorous limits and establishes a warrant mechanism...If the measures proposed might contravene a right guaranteed by the charter or another Canadian law, a Federal Court judge would have to authorize them in advance.”

Simply put, a warrant is indeed required under Bill C-51 every time the Canadian Charter of Rights and Freedoms is concerned.

I hope I provided a clear answer to your first question.

[Randall Garrison, NDP, Esquimalt—Juan de Fuca, BC]

No, you haven't clarified that because you just proved my point. You said it's required only if there's going to be breaking of the law of the charter. Other disruptive activities then are clearly authorized without a warrant.

[Steven Blaney, Conservative, Lévis—Bellechasse, QC]

Yes, dear colleague, some activities will not require a warrant. However, threat reduction activities must follow a rigorous process depending on their impact. As the Minister of Public Safety, I will be able to—just like my successors—authorize warrants at some point. To do so, I will rely on the opinion of the Department of Public Safety.

Let me give you an example of a case where a warrant would not be required. For instance, CSIS officers could engage in conversation with the parents of a child who is being radicalized. In that case, a warrant would not be required.

[The Chair, Conservative, Daryl Kramp]

Thank you very much. The time is up.

We will go to Mr. Norlock, please, sir.

[Rick Norlock, Conservative, Northumberland—Quinte West, ON]

Thank you very much, Mr. Chair, and through you, to the witnesses, thank you for appearing today.

My first question will be for Minister MacKay.

Could you explain the gap in the legislation you're trying to fill? I'm referring mainly to the promotion and takedown thresholds with regard to Internet sites. We've heard some folks say that this portion of the legislation is an attack on our freedom of speech. I don't believe it is. I do not believe that promoting the commission of terrorist acts is acceptable.

Could you explain the legislation and how it is different from the current hate speech laws that are focused on certain groups?

[Peter MacKay, Conservative, Central Nova, NS]

Thank you very much for the question, Mr. Norlock.

As you'll be aware, there are current sections of the Criminal Code, and you've alluded to them, where certain types of material, certain statements, and certain speech are deemed to run up against other charter rights. What we're attempting to do here, through the criminal law, is to balance out those freedom of speech and privacy provisions versus material, words, that can be in fact very harmful. The examples of hate propaganda advocating genocide and of course the area of child pornography, pornography, are well understood.

With respect to the advocating for or the promotion of terrorism, we believe that the current Criminal Code as drafted is insufficient in allowing us to protect the public from the very real and I would say corrosive effects of terrorism and the promotion of same. What we are doing through this legislation is enabling our criminal justice system to respond appropriately to ensure that that material, when deemed to fall into that category, is subject to removal. To meet that test, we know that there is a requirement to make application before a judge to weigh that material appropriately against other rights, and then make a determination. The wording is drafted in a way that any offences that would be laid, any charges that would be laid, take into consideration things such as recklessness, which is another legal standard to be applied, and the proposed offence is not focused, as I said in my remarks, on what has been somewhat controversial in other countries, and that is the subject of glorification.

The standard to be applied here is the promotion or the advocacy, the encouraging, the efforts to actually draw a person into committing acts of terrorism. These terms of “advocate” or “promote”, some have said are quite vague. There was case law in this area already. There was existing jurisprudence that is instructive in that regard. There are a number of Canadian cases that I could cite for you. Keegstra in 1990 is a well-known Supreme Court case that goes into the area of promotion and speaks of active support or instigation. A 2001 Supreme Court case of the Queen and Sharpe, involving possession of child pornography talks about advocating. This bill, Bill C-51, reflects the Supreme Court's definition that already exists when it comes to terms such as “advocacy” and “promotion” for offences. It's the idea of counselling or inciting and that material then to be viewed leads to that type of encouraging or incitement of terrorism.

[Rick Norlock, Conservative, Northumberland—Quinte West, ON]

Thank you very much.

My next question will be for Minister Blaney.

[The Chair, Conservative, Daryl Kramp]

Mr. Blaney wished to comment on that, I believe.

[Steven Blaney, Conservative, Lévis—Bellechasse, QC]

Mr. Norlock, I want to salute the measures that Minister MacKay just explained, because as you know, our government has tabled a counterterrorism strategy that has four pillars: prevent, detect, deny, and respond.

The fact is that as a government, as a society, we will be able to shut down those websites that are promoting hatred and violence. It's a tool helping us with the first pillar dealing with the prevention of radicalization, because as we know, and we've heard it, the Holocaust did not begin in the gas chamber; it began with words, so we have to be careful. That's why I feel this measure is so important.

I am also committed as the Minister of Public Safety to work with my partners such as Minister Bernard Cazeneuve of France, and our European and American partners, so that websites that could be hosted in another country could also be shut down if they are promoting hatred, extremist ideology, and violence.

I believe this measure in Bill C-51 is helping the four pillars of our counterterrorism strategy.

[Rick Norlock, Conservative, Northumberland—Quinte West, ON]

For my next question, Commissioner Paulson can comment. On Friday we heard Commissioner Paulson, who came before the committee, and we viewed the tape, of course, of the murderer of Corporal Nathan Cirillo. During the question and answer period, he indicated that he was able to receive passport information and that in this particular case the information sharing was sufficient.

Could you tell us through which mechanism that would have occurred and some of the gaps that this legislation closes with regard to information sharing?

[Commr Bob Paulson, Commissioner, Royal Canadian Mounted Police]

Mr. Chair, going back to Friday, I would want to claim the discussion on that was around Mr. Garrison's suggestion that the collection of evidence that would have led to this imaginary charge that I put forward in my comments around had Mr. Zehaf-Bibeau not been killed, we would have charged him, was in the post-event collection of information and not in the real exchange of information. Once the act took place, of course, everybody was happy to share information and the information was flowing rather well. I think that, hopefully, clarifies.

[The Chair, Conservative, Daryl Kramp]

Mr. Easter.

[Wayne Easter, Liberal, Malpeque, PE]

Thank you, Mr. Chair, and thank you, Ministers and officials, for coming.

Minister Blaney, before I get to the more substantive issue, I have a minor but important issue. You mentioned the appeals process for the no-fly list. Most of us as members of Parliament have had some experience with trying to get people off the no-fly list. You talked about the appeals.

In the legislation, it says, “If the Minister does not make a decision in respect of the application within 90 days”—then there's a little wording—“the Minister is deemed to have decided not to remove the applicant's name from the list.”

That's really not much of an appeals process, Minister. You do not even have to respond. I think you need to consider an amendment in that regard and go the other way, that the minister must respond within 90 days.

To the more substantive issue, you said in your remarks that you're dramatically increasing judicial oversight and review. In response to Mr. Garrison's remarks, you said a warrant is required every time there's legal authorization. I submit that a judicial submission to carry out a certain act is not, in any sense of the word, oversight. It's authorization before the action happens.

Maybe you could explain that process. Where's the oversight after the warrant is granted?

[Steven Blaney, Conservative, Lévis—Bellechasse, QC]

I thank you for your question. Once again, I think it's another opportunity to clarify oversight versus review.

We would be, in terms of threat diminishment, the only country that is involving this warrant issued by a judge when conducting activities that could have an impact on the rights of Canadians or their privacy. The fact that the judge is involved.... In the warrant, the activity that would be conducted will be described. The judge could even ask for a third party to bring some different views. We are actually the only country.... All the others are strictly keeping only—what could I say?—administrative oversight. So this is oversight.

Then, as you know, we have a review mechanism, but once again, we have a warrant. There's a judge who has to be consulted and who has to authorize. The judge can also modify the mandate if he has any concerns. He can refuse or modify. He can ask a third party. He can also ask for third party reviews.

[Wayne Easter, Liberal, Malpeque, PE]

Minister, that is not oversight, and your colleague, Minister MacKay, knows that's not oversight.

He and I sat on a committee together. We did a lot of travelling together. I will admit, Minister MacKay, that at the time you were probably one of the most enthusiastic people for parliamentary oversight similar to our Five Eyes partners.

Minister Blaney, you can say that no other country provides the judicial warrants, but your explanation confirms what I claim, that it's only authorization to do a, b, c, or d. You also know that Judge Mosley's decision indicated that CSIS was not quite as upfront with Judge Mosley as they had indicated, and he corrected them on that. He came out quite angrily about their having gone further than they were authorized to do. These things happen. It makes the point that judicial authorization is not oversight. It's not adequate. Canadians want to see oversight.

I have to ask Minister MacKay, who sat on that committee with me in 2004, which ended up with Bill C-81.... We went to the U.K., Washington, etc. We called for that. Why were you so supportive then, Minister? Now you think with all these additional powers for CSIS, the RCMP, the Criminal Code, etc., that we don't need oversight in this country for all of our national security agencies. We need it. We need it more than we ever did before.

[Peter MacKay, Conservative, Central Nova, NS]

Let me begin by stating, Mr. Easter, I well recall being part of that committee as an opposition member. You, of course, were a member of the government and didn't take the opportunity to act on those recommendations.

[Wayne Easter, Liberal, Malpeque, PE]

Yes, we did. We introduced Bill C-81.

[Peter MacKay, Conservative, Central Nova, NS]

In fact, you were in government for, I believe, 14 years and as a government never enacted those oversight recommendations that you so enthusiastically embrace today.

[Wayne Easter, Liberal, Malpeque, PE]

In 2004....

[Peter MacKay, Conservative, Central Nova, NS]

However, in 2004 you were a member of the government, so you had a mandate to do something about it, and you didn't. You failed.

The truth of the matter is, looking at those examples around the world today, the real oversight comes.... I think you as a former solicitor general would be quick to agree that the real oversight comes from those with expertise in the area of security—I think you would agree with that—those who have had experience in the field, those who have had legal experience, training, or judicial experience.

I would suggest to you that when you examine some of those examples, including in the U.K.... I was recently in London, and you're seeing now their parliamentary oversight committee coming under a fair degree of criticism, because they've been subject to political interference, scandal in fact, that has undermined that parliamentary committee's objectivity, perhaps, and the ability to do the actual job that was asked of them.

I also note, on the area of expertise, that you, yourself, were quoted in the paper, in the context of this examination of the bill, as saying, “We’re not the experts, we’re there to listen and learn”.

I think, on balance, if we want to have true oversight, we need not only to have a mandate but also to have people in those oversight positions, such as SIRC, that have the ability to ask the proper questions, to delve into the detail that's necessary, and are able to report—

[Wayne Easter, Liberal, Malpeque, PE]

Former politicians on SIRC, Minister? Come on; former politicians on SIRC?

[The Chair, Conservative, Daryl Kramp]

Mr. Easter, we're over time.

[Wayne Easter, Liberal, Malpeque, PE]

Yes, we need expertise. You have it—