Thanks very much, and thanks for inviting me here this evening.
I come before you as someone who has regularly appeared before this committee over the last seven or eight years, generally supporting the government's security laws. Most recently, you'll recall, I appeared here in the fall in support of Bill C-44. Each time, however, I have proposed amendments designed to minimize negative repercussions, including repercussions producing unnecessary litigation. The details matter, and it is, of course, the details we are here to discuss.
I'll start with a few words on preventive detention by police, from section 83.3 of the Criminal Code, as modified now by Bill C-51. In the past, I have spent considerable time looking at equivalent laws in other countries. Kent Roach and I draw on these laws and, most notably, those of Australia to recommend a series of specific safeguards on the preventive detention power. Kent mentioned that we have a brief list of our recommended changes, which I have here in front of me. I wish, however, to focus most of my comments on the CSIS Act amendments.
The government says that CSIS needs the new powers so that, for example, CSIS can warn families that a child is radicalizing. No one, in good faith, can object to this, but the bill reaches much further. Indeed, the only outer limit is no bodily harm, no obstruction of justice, and no violation of sexual integrity, along with a more open-ended and subjective admonishment that the service act reasonably and proportionally. There is, in other words, a mismatch between the government's justifications and the actual text of the law.
We underscore both the security and legal consequences of such a proposal. On the security side, we run a considerable risk that new CSIS operations may end up overlapping, affecting, and perhaps even tainting a subsequent RCMP criminal investigation into terrorist activity. A criminal trial may be mired in doubts about whether the CSIS operation contributed to or was otherwise associated with the crime at issue. Will our most successful anti-terror tool—criminal law—in which crown prosecutors have had a stellar record in achieving convictions, be degraded by CSIS operations that muddy waters?
Any veteran of the Air India matter must be preoccupied by this possibility, but even if the government thinks that CSIS-RCMP operational conflicts are worth the risk, we can meet its stated security objective without opening the door so wide to possible mistakes by a covert agency. For instance, amend the bill to remove any reference to the charter being contravened by CSIS. The current proposal is a breathtaking rupture with fundamental precepts of our democratic system. For the first time, judges are being asked to bless in advance a violation of our charter rights in a secret hearing not subject to appeal and with only the government side represented.
There is no analogy to search warrants. Those are designed to ensure compliance with the charter. What the government proposes is a constitutional breach warrant. It is a radical idea, one that may reflect careless drafting more than considered intent. It deserves sober second thought by Parliament.
Moreover, with a simple line or two, this committee could add new and reasonable limits on CSIS powers, including, for instance, an emphatic bar on detention. We cannot risk a parallel system of detention by a covert agency able to act against people who have committed no crime. At present, whatever the government's claims to the contrary, there is no prohibition in the bill on such a system.
In the final analysis, we are dependent on good judgment by the service. I do not doubt CSIS' integrity. I do doubt its infallibility. Good law assists in exercising good judgment, as does robust review. That brings me to SIRC.
We need to reinvest in our national security accountability system. SIRC's constraints and design mean that it is incapable of reviewing all of CSIS' activities or even CSIS' conduct under all its existing warrants. A partial approach to review will be spread even thinner as CSIS' powers expand.
More than this, SIRC and other review bodies are unnecessarily hamstrung by legal limitations that stovepipe their functions to specific agencies and prevent them from following the trail when government agencies collaborate, an increasingly common practice that Bill C-51 will unquestionably increase.
As Professor Roach mentioned, the Arar commission recommended that statutory gateways be created, allowing SIRC to share secret information and conduct joint investigations with Canada's two other existing, independent national security review bodies. The government has not acted on this report. A few paragraphs of legislative language would go a long way to curing this problem. I underscore and double-underline these are concerns that SIRC itself has voiced. That message about limited power should not be lost.
As a supplement, not a replacement, we also support a special security committee of parliamentarians. It can perform a valuable, pinnacle review—a review, not command and control oversight—by examining the entire security and intelligence landscape. Someone needs to see the forest, not just the individual trees. Our allies have made parliamentary review work with expert SIRC-like review. We look in particular to the Australian example. The existence of such a committee would also contribute to a meaningful and informed parliamentary review of the effects of this far-reaching legislation after, as Professor Roach has suggested, a few years of its operation.
Let me end with a final point. In its present guise, Bill C-51 violates a principle that we believe should be embedded in national security law. Any law that grants powers, especially secret, difficult-to-review power, should be designed to limit poor judgment, not be a law whose reasonable application depends on excellent judgment. Whatever the truth as to whether these powers are constitutional or necessary, their introduction is, in our view, irresponsible without a redoubled investment in our outmatched and outdated accountability system. Anyone who has worked on accountability in the security sector knows that there was a core maxim in this area: trust but verify. We do not believe this standard will be met.
It is within your competence to pass a law that protects our security and liberty and does so without the sort of incoherence that risks actually undermining our security. Such amendments to Bill C-51 require good will and a willingness to consider suggestions made in the earnest hope of a good law that protects our country and our rights.
We thank you for your interest and for your important work.