Public Safety Committee on March 12th, 2015

[The Chair, Conservative, Daryl Kramp]

All that the chair would do, just as in previous conversations before this committee, is to ask members to keep things relevant. In this particular case, it is relevant to the testimony we've heard and where you are going with that, so it is in order.

I would encourage all members to try to stay within the framework of the meetings of acceptability for all.

Thank you.

Yes, you have a point of order, Ms. James.

[Roxanne James, Conservative, Scarborough Centre, ON]

I just want to make sure that interruption does not take away time from Mr. Norlock's full seven minutes.

[The Chair, Conservative, Daryl Kramp]

That has already been noted. Thank you.

Carry on, Mr. Norlock.

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

How much time do I have, Mr. Chair?

[The Chair, Conservative, Daryl Kramp]

You have three and a half minutes, sir.

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

Thank you.

Just to finish off before asking my questions, the arrestee must be taken before a provincial court judge, as I mentioned, within 24 hours, at which point the judge can extend the detention for up to 48 hours. The Attorney General must then consent, and then a judge must agree within 24 hours. The hearing will be within 48 hours of that detention. At these hearings the crown will have to demonstrate that the case is progressing toward a criminal charge.

So we have a peace officer with evidentiary threshold; the Attorney General, represented by crown prosecutors; the judicial oversight. Keep in mind that we're trying to save lives in an emergency situation. That sounds like a fair process to me.

Is there any degree of checks and balances that would satisfy you? Are you simply fundamentally opposed to taking terrorists off the street?

Let me just quote one thing before you answer that. Mr. John Russell, a prior vice-president of the Civil Liberties Association, has stated:

...the government's proposed definition of “terrorist activity” is simply too broad. As it stands, proposed item 83.01.(1)(b)(ii)(E) of this definition would count as “terrorist activity” any unlawful politically motivated act that threatened to significantly disrupt an essential service.

He goes on to say:

...it would potentially brand as terrorists doctors, teachers, and nurses who threaten to strike or withhold services in the face of provincial orders deeming their work an essential service. It could also brand as terrorist the actions of first nations individuals who blockade an airport or a highway.

Are you fundamentally opposed to taking terrorists off the streets?

[Carmen Cheung]

Thank you for your question, Mr. Norlock.

With respect to that question, no we are not fundamentally opposed to taking terrorists off the streets. We believe that it's necessary to have effective measures for countering terrorism. Our concern with preventative detention is that it may not be the most effective measure for countering terrorism, given that the example Mr. Norlock has cited, somebody who might want to travel to commit a terrorist offence, is already in our Criminal Code as a terrorism offence. If law enforcement has that information, then it certainly has that information to actually lay a criminal charge, and no preventative arrest is necessary.

I think even others who see limited roles for preventative arrest will acknowledge that preventative arrest has enormous potential for abuse. To that end, I understand that Professors Roach and Forcese, for example, whom I think you'll hear from later today, are suggesting that there be limits to the circumstances under which preventative arrest can happen.

With respect to the characterization that this is simply a weekend in jail, this is not what Bill C-51 contemplates. As your minister—

[The Chair, Conservative, Daryl Kramp]

Be brief, please.

[Carmen Cheung]

Sure.

As I think you heard from the ministers two days ago, what this bill contemplates is up to seven days in detention.

[The Chair, Conservative, Daryl Kramp]

Thank you very much.

Now, Ms. Leslie, please.

[Megan Leslie, NDP, Halifax, NS]

Thank you very much, Mr. Chair.

Thank you very much to our witnesses.

I'm the environment critic for the NDP, so I really want to focus on section 2 and the specific exclusion for lawful activity. However, before I get to that, I do want to ask a quick question of Greenpeace, because you're an international organization. You're Greenpeace Canada, but you know what's going on with your colleagues around the world.

How do the laws proposed in Bill C-51 compare to what Greenpeace faces in other countries?

[Joanna Kerr]

Thank you very much for the question.

Certainly, if we compare this law to those of the European countries, there are protections for both lawful and unlawful protest as an essential part of democratic change. As I laid out at the beginning of the remarks, some of these critical changes that have been brought about vis-à-vis human rights, social justice, and the environment wouldn't have been made possible without the right to protest.

[Megan Leslie, NDP, Halifax, NS]

In drilling down a little bit—I know, Ms. Kerr, that you didn't have a lot of time to get into that aspect of your brief—as I look at section 2 and this exclusion for lawful protest, your examples are incredible and inspiring. But I think about more banal examples, such as when the Raging Grannies came to my office. They didn't have a permit to be on the sidewalk outside of my office, but they were singing about GMO seeds, and then they came in and we had tea.

During the Idle No More movement in Halifax, people descended upon the Micmac Mall in Dartmouth and started a spontaneous round dance. It was nothing but goodness and light. People came out of stores, and they danced and they sang. But they didn't have a permit.

I agree with Professor Forcese's analysis of the problems this creates.

Ms. Cheung, maybe I'll start with you. Could you talk first about what impact will this have on groups that are seeking to combat climate change, groups that are concerned about environmental rights?

[Carmen Cheung]

As the committee will hear in more detail today, the concern is that this law makes no exemption for.... Unlike the definition of terrorist activity in the current Anti-terrorism Act, the bill now only provides exemption for lawful protest. I think that, as our colleagues at Greenpeace and as Professors Roach and Forcese have indicated, this is just far too broad. It captures all sorts of peaceful, non-violent protects that may simply be running afoul of a municipal bylaw: they may not have a proper permit—that sort of thing.

We have heard discussion about, for example, this not being what this law is meant to target; that it's not really meant to go after the Raging Grannies or kids who are protesting without a permit. But I think this approach—and this is something we set out in our brief—really threatens to politicize what ought to be an objective assessment of security. It makes quite subjective what constitutes a true security threat vis-à-vis what isn't a true security threat.

For the politically active, this is quite concerning, because whether their conduct were to be considered as something that undermines the security of Canada might simply turn on whether their cause is politically popular or not. In our view, that's quite dangerous for freedom of expression and for the right to dissent. We take the view that the better approach would be to adopt the definition contained in the Criminal Code, which explicitly exempts from the definition of terrorist activity all advocacy, all protest, all dissent, and stoppage of work.

[Megan Leslie, NDP, Halifax, NS]

And that's what we're trying to get at here, isn't it—terrorist activity?

[Carmen Cheung]

Exactly.

[Megan Leslie, NDP, Halifax, NS]

Okay.

Mr. Stewart or Ms. Kerr, what impact do you think this could have on citizens' efforts to protect the environment and engage on environmental issues?

[Joanna Kerr]

Well, this is our great fear, that so many of our supporters, seeing the potential conflation of peaceful protest and terrorism...and that even though this wasn't the intention of the bill, many legal experts are interpreting it as such, that it will put a real chill on individuals' and communities' activism, in a context in which there actually is quite a huge deficit of trust between many citizens and their government and some government institutions.... The extent to which it will harness, will contract, will constrain the right of people to carry out legitimate protests against very serious concerns around clean rivers and air and an end to catastrophic climate change....

[Megan Leslie, NDP, Halifax, NS]

Thank you for bringing up the word “chill”, because it's really important for me. As it is there is a chill in the environmental movement around protest and speaking out. But I also think about things such as, in Halifax, our having an “Occupy” in Victoria Park. I went down right before folks were being arrested to talk to them about what their legal rights were, how to not resist arrest—those kinds of basic legal facts. There was no chill there, but folks really had no idea what their rights were.

So it is about the chill, but I think it's also about...those folks could be spied on without their even knowing, just because they didn't have a permit to be in Victoria Park. That's what we're talking about here, isn't it?

[Joanna Kerr]

Do you want to jump in there, Keith?

[Keith Stewart, Head, Energy Campaign, Greenpeace Canada]

Given the context right now, there is a great deal of conflict over what to do about climate change. Given that this is one of the defining issues of this century, there should be. The attempt to put a chill on those types of protests, when people who have protested against pipelines have already been spied upon, as you will hear.... We've already had statements from government ministers that very much equate this movement with being anti-Canadian, and also from the RCMP that it's the “anti-Canada petroleum movement”, which I had never heard of before.

We shouldn't be trying to limit democratic discussion, even when it is intense. That is part of being in a democracy; that is our right as Canadians. There are laws to deal with such things as illegal protests; we don't need to conflate those types of protests with terrorism. This is why your British colleagues say to separate policing of peaceful protest from anti-terrorism. That is what should be done.

[The Chair, Conservative, Daryl Kramp]

Thank you very much, Mr. Stewart.

We're over our time, so we will now go to Mr. Payne, please, for seven minutes.

[LaVar Payne, Conservative, Medicine Hat, AB]

Thank you, Mr. Chair, and I thank the witnesses for coming to talk about this very important bill.

I will be sharing my time with Ms. James and I'd like to let her go ahead of me, before I finish up.

[Roxanne James, Conservative, Scarborough Centre, ON]

Thank you, LaVar.

And thank you, Mr. Chair, and thanks to our witnesses.

I just want to correct some of the misconceptions I've heard so far in this committee. I'll start with information sharing.

There seems to be an implied belief that someone who is protesting lawfully, or perhaps unlawfully because they don't necessarily have a municipal permit, would somehow come under the scrutiny of being spied on. That is absolutely not the case.

The aspect of this bill has five different parts. The first one is information sharing. It has absolutely nothing to do with law enforcement, the RCMP, or CSIS. It's the ability for agencies to be able to share information from one branch of the government to another.

It's also a two-pronged approach, if you read the bill. On page 3, it specifically states:

For greater certainty, it does not include lawful advocacy, protest, dissent and artistic expression.

Now, some of the concerns I've heard have been about cases in which it's unlawful or there is no municipal permit. If you look clearly at the bill, the fact of the matter is that the same proposed section talks about the purpose of the Information Sharing Act. It has to do with “activity that undermines the security of Canada”, including activities that undermine “the sovereignty, security, territorial integrity of Canada or the lives or the security of the people of Canada”. So, unless your unlawful protest is somehow going to include blowing up infrastructure, I think you're misinterpreting this proposed section in the bill.

The second thing I want to clarify before I pass it over to my colleague, Mr. Payne, has to do with preventative arrest, detention, and the extension of the 24-hour period to up to seven days. It seems to have been implied that someone is going to be simply thrown in jail and that the police officer or the investigator who initiated that is somehow going to leave on vacation.

That's simply not the case. They actually must have the consent of the Attorney General; it has to go before a judge; the judge has to review all of the evidence that would warrant someone's being detained for 24 hours; then there is a review period every 48 hours after that, up to the maximum of seven days.

In that period, the person who has brought this before the judge to seek this type of detention has to prove that there is an ongoing investigation, that they are accumulating information, and give the reasons for there being a delay. This is all necessary. This has clearly been identified by our security and national security agencies. In fact, at Tuesday's meeting we heard that these types of measures are absolutely critical to the RCMP to carry out their investigations.

I just wanted to clear up those two things that I've heard so far as misconceptions of the bill.

I now will pass my remaining time over to Mr. Payne.

[LaVar Payne, Conservative, Medicine Hat, AB]

Thank you, Ms. James.

Certainly Ms. James touched on some of the areas that I want to touch on, but I guess what I want to say is that this information sharing power enables for national security purposes. It doesn't compel any government or any one arm to share with another one if they don't want to. Also, for your information, I don't need to repeat it twice, but it's subject to the Privacy Commissioner's review. There is another pillar there that certainly protects individuals.

Anyway, the purpose of the act is sharing for national security threats, so it makes me wonder if your organization is a national security threat. I see that your organization is protesting pipelines and forestry projects, but I didn't hear anything to indicate to me that you were planning to bomb any Canadian infrastructure or sabotage electrical grids, so I wonder if you consider yourself to be a national security threat and if you understand the definition: that it won't apply to you as long as you don't commit any of these terrorist activities. That seems to be fairly clear to me.

I think Minister Blaney was also clear on Tuesday that lawful and unlawful protest will not meet the threshold for information sharing. I'm sure you are aware that there are two tests to make sure that the information sharing can take place. First, I'll point out that the information is not the collection of new information; it is the sharing of current information and has nothing to do with the arrest or prosecution. Even if your protest is interfering with critical infrastructure, that is only one test. A very important and pertinent second test is whether or not the protest is undermining “the sovereignty, security or territorial integrity of Canada or the lives or the security of the people of Canada”.