Public Safety Committee on March 23rd, 2015

[Hugh Segal]

It wouldn't have been my most serious excess in the bill.

My most serious excess is the provision that would allow a judge with respect to lawful interruption to set aside the Charter of Rights and Freedoms. That is a principle which I think is overdone. It's excessive, it's unconstructive, and it violates a core Canadian value. Were there an amendment on that, it would be constructive. If there were not an amendment on that, I think the courts would strike it down very soon under any circumstance.

The notion that we would give any judge the ability to, in a less than public context, set aside the Charter of Rights and Freedoms to facilitate a security agency being involved in lawful disruption strikes me as a core contradiction and deeply problematic.

[Craig Scott, NDP, Toronto—Danforth, ON]

Thank you for that.

With specific respect to that, I totally agree with Professor Leuprecht that the kinds of disruption that involve talking to parents and the community, etc., no reasonable person is going to have a problem with those. The problem is the bill is written very broadly to say the only absolute exclusions are causing death or bodily harm, some kind of affronts to sexual integrity and obstruction of justice. Everything else is potentially warrantable by a judge.

When we've asked in the House a couple of times if this potentially includes secret detention, and it's important to know that overseas activities of CSIS are included here, the government has specifically refused to say, “No, no, no, of course it doesn't include that”. This gives me cause to worry that, yes, it could go to that extent. Bodily harm does not include detention.

Is this a reasonable concern even though we might want to think that it would at the outer limits of anything ever considered by CSIS?

[The Chair, Conservative, Daryl Kramp]

I'm sorry, but as of our last witness, the question has eaten into the response time rather significantly, so we will now go to Ms. Ablonczy, please.

[Diane Ablonczy, Conservative, Calgary Nose Hill, AB]

Thank you, witnesses.

Mr. Leuprecht, my colleague asked you a question about whether Canadians need to be concerned that if they protest a pipeline or protest a bill, engage in protests, they could be shut down under the provisions of this bill.

[Dr. Christian Leuprecht]

Again, I'm no lawyer, but I think there are sufficient thresholds built in not just with regard to the security of Canada, but also for demonstrating intent with regard to committing political violence. I think this intent provision is very important. I am not concerned. I can understand some of the concerns that individuals might have, but I think we also need to look at past practice, and that both CSIS and the RCMP have way more important things to do with their lives.

I am sufficiently satisfied that the provision that is written would not give either a security intelligence or a criminal intelligence service licence or ability to interrupt or criminalize lawful protest activity.

[Diane Ablonczy, Conservative, Calgary Nose Hill, AB]

Thank you.

Ms. Vincent, we appreciate your being here. We know that you've had some very difficult weeks. Our thoughts and prayers have been with you, as you mentioned.

I'm also impressed with your technical understanding of this bill. You obviously are not here to share just your sorrow, but also, I think, a very deep understanding of what may have prevented this tragedy from occurring, which could protect others, other family members.

I wonder if you would just tell us why you think this bill would now allow the terrorist act against your family member by the perpetrator from occurring. What would be different under this bill that might have protected Mr. Vincent?

[Madam Louise Vincent]

My understanding now is exactly as Mr. Leuprecht said, that they would be doing surveillance. They would be able to talk to the parents. They would be able to stop it. They could put them in preventive prison, I think, for seven days, and that way they could make them stop.

There's another important thing. After Bill C-51 has been done, I think there's another step that needs to be done, which is to understand what's going on. We need to understand why this is happening. Bill C-51, to me, is to control what is going on and make it stop as much as possible. But at some point we'll need psychologists, sociologists. We'll need people to try to figure out what the heck is going on there, because this is not normal. There's something really wrong. Why are these young people, even young girls...? I'm so shocked. I'm a mother myself. I have three adult daughters, and it's incredible to see that. We're going to have to do that.

So Bill C-51 has to do that to stop them, to manage them, to control, and after that we're going to have to do some thinking all together to stop this.

[Diane Ablonczy, Conservative, Calgary Nose Hill, AB]

Thank you.

Mr. Segal, I want to be an equal opportunity questioner here. As you know, I have huge respect for you. I sought your advice on occasion and appreciated it. I'm glad to see that you in general feel that the bill is helpful and appropriate.

I have to say I was a little surprised by your criticisms of the bill and I'd like to give you a chance a talk about that. You talked about the bill being possibly rapidly drafted as new law. I joined this committee in September. At that time we were told that a bill to give better tools to our security agencies to protect against terrorist acts was in the works. Here we are now, six months later, on committee study of the bill. There has to be a third reading of the bill in the House, and as you know as a former senator the whole process is repeated in the Senate. We'll be fortunate to have the bill passed into law by summer. It will be almost a year, so it seems to me this is hardly a knee-jerk reaction by any means.

You also mentioned that the interruptions by the security forces could operate outside the provision and protections of the Canadian Charter of Rights and Freedoms. Isn't that what warrants always do? If you want a wiretap, for example, you have to get a warrant because it's not normally a lawful activity. It's also fair to say that the protections of the charter are not unlimited. Did you know that section 51 talks about charter protections that are subject to the limits that can be demonstrably justified and demonstrated in society? We already have activities by security that deal with charter rights and how they can be properly balanced to ensure security.

You talked about provisions that might make us resemble those we are struggling to defeat. We're struggling to defeat an entity that slaughters entire communities based on their religious affiliation, that takes women and sells them as chattels, that believes that enslavement of populations is legitimate, that indulges in crucifixions by the hundreds and thousands, and that taxes the remaining survivors to the point where they lose all of their personal property and their ability to provide even the most basic necessities of life for themselves and their families.

I'm curious as to how you believe that any provisions of this bill might in any way make us resemble the entities we're struggling to defeat. It seems to me there's such a lack of proportionality in that comment that I struggle with its relevance.

[The Chair, Conservative, Daryl Kramp]

Very briefly, Mr. Segal.

[Hugh Segal]

Very briefly, after that vicious personal attack.

[Some hon. members]

Oh, oh!

[Hugh Segal]

Let me say three things. I don't view this as a piece of legislation or that it's about ISIS or al Qaeda. It's about providing the capacity for our security agencies to do their job. It's my fundamental view that wherever that can be done within the context of the Canadian Charter of Rights and Freedoms, it strengthens our democracy and protects our democracy.

I buy the view that was advanced by Mr. Churchill during World War II when he reported on the status of the war effort—at a time when they faced a risk, if I may say so, more substantial than ours—to the entire British Parliament in a secret session because he believed that the core premise of British democracy had to be sustained so that they did not become like the enemy they were facing across the sea, namely, the Nazis.

I would argue with you, with the greatest of respect, that any time we set aside any freedom if we don't have to, any time we set aside any core constitutional protection if it's not absolutely necessary, we're going down the wrong road and we should do our best not to do that.

It is true that in Canada the Supreme Court and other courts have decided that the charter is not absolute. There are reasonable circumstances during which it has to be set aside. Having that process take place in our courts is part of what makes us a society of laws and not just people with individual views that are deployed any particular time.

I said to you the War Measures Act was the worst violation of any individual security and freedom of assembly and speech that we've ever seen. Nothing in this legislation troubles me to that extent. It's important to keep historical perspective when we go through these kinds of undertakings.

[The Chair, Conservative, Daryl Kramp]

Thank you very much, Mr. Segal.

Mr. Easter, you have the floor now, sir.

[Wayne Easter, Liberal, Malpeque, PE]

Thank you, Mr. Chair. That was an interesting discussion.

I want to thank all three witnesses for coming forward and stating their case. I'll start with you, Senator Segal.

I want to first of all congratulate you for your years in the Senate. Just as we've seen in this discussion between you and Diane, you're not fearful to say what's on your mind. I think that has done you well and did the Senate well over your time there.

You do say in your point 6 that in your general view of the law before us, despite some excesses and slightly overwrought provisions, it is a law that is helpful and appropriate, etc. Can you list any of those excesses and slightly overwrought provisions?

[Hugh Segal]

We all have a hierarchy of concerns. The one that troubles me the most is the one that allows a judge to set aside the provisions of the Charter of Rights and Freedoms. I think that's the kind of fundamental excess that can lead to other difficulties.

I'm not troubled by the agency sharing information with others, because Mr. Justice John Major in his report on the Air India tragedy talked about how, despite CSIS' efforts in detecting folks who were at the time Sikh extremists and were blowing up bombs to see if they worked, that information never got from CSIS to the RCMP fast enough. When it did get to the RCMP, the action was lethargic enough that hundreds of our fellow Canadians were blown up on an aircraft and died.

The notion of breaking down the silos, as Madam Vincent suggested, I think is absolutely essential. I think a balanced approach to the legislation where we look at some of the excesses and hope they get addressed, while letting some of the more constructive processes go forward as quickly as possible, is very much in the national interest.

[Wayne Easter, Liberal, Malpeque, PE]

Thank you.

I know you were one of the big promoters in your experience in the Senate on the need for oversight. You do mention that in your brief as well. Mr. Leuprecht also mentioned that.

I might mention to Ms. Vincent that I, too, on behalf of my party, want to pass on my regards. I know that you read out a lot of words of support and sympathy from around the world. I did attend the funeral, or the celebration of life, and it was quite an experience in terms of the coming out of the community from right across Canada, and Prime Minister Harper spoke on a very, very cold day. I just want to pass that on as well.

[Madam Louise Vincent]

Thank you.

[Wayne Easter, Liberal, Malpeque, PE]

The oversight committee relates to Warrant Officer Vincent to a certain extent, and to what happened there and how we do things in Canada.

I guess I'd say in the beginning that for the life of me, I can't understand the resistance from the government side to oversight. The Minister of Justice in fact didn't say very kind things about the British Intelligence and Security Committee of Parliament when he was here, and yet he sat on an all-party committee of both the House and the Senate that recommended oversight similar to the British.

When we think of oversight we just think of what they do in security, but I have here the report into the death of fusilier Lee Rigby, which is something I didn't realize that the oversight committee did. Before the court case was anywhere over, that committee of parliamentarians was looking into the actions of what happened there. I'll just read this one statement:

The Committee is conscious that it is the only body that can investigate intelligence matters on behalf of Parliament and the public. The responsibility is considerable and we therefore have sought in every instance to ensure that we are able to disclose as many of the facts as possible.

The important point there in terms of a shooting or death is that they can meet with security agencies, look at classified information, and try to determine what went wrong internally. They can't make that public, but they can certainly recommend some changes so that security agencies can do better in the future.

I say all that to raise the question, how important is it that we have oversight similar to other Five Eyes countries from your folks' perspective?

I'll start with you, Mr. Leuprecht.

[Dr. Christian Leuprecht]

It's inherently important, I think, in a way, to reassure Canadians that the systems we have in place are working as they should.

I might also submit that we need to perhaps have a bit more of a nuanced conversation about the type of review and the type of oversight that is appropriate for different agencies. With regard to CSIS and CSE, I think we need a much more robust review mechanism, because of the activities in which they are engaged, as opposed to intelligence agencies—we don't often think of them as intelligence agencies—such as the RCMP, CBSA, and the Department of Foreign Affairs. They of course are also engaged in intelligence collection, but not in a context that is as...perhaps has the potential for constitutional or legal violations in the same way that CSE and CSIS are.

I think we need to have a discussion or conversation about CSIS and CSE that is separate from the discussion of what I would say are the core five members of national security, that is separate from the discussion of the 15 or so security agencies that look after national security, and that is different from the discussion that we need to have with the Department of National Defence.

[The Chair, Conservative, Daryl Kramp]

Thank you very much, Mr. Leuprecht. The time has now expired.

On behalf of the entire committee, the chair certainly would like to thank our witnesses for appearing today. I can assure you that your thoughts and your testimony before us today are not only welcome, but will be warmly received and certainly given sincere consideration. Thank you very, very kindly.

To our colleagues on committee, I'll see you bright and early tomorrow morning for the restart of this committee for the next session.

The meeting is adjourned.