I thank my colleagues and OpenMedia for sharing their time. I appear on behalf of the Canadian Civil Liberties Association. We are an independent national non-governmental organization which for 50 years has effectively protected civil liberties in this country. You have our detailed submissions, and in the interests of time I will restrict my comments to four minutes and two points.
Let me state at the outset that the CCLA understands that the government requires effective tools to protect Canada and its people from terrorist threats and acts. What we do not understand is why this bill is needed, given the existing robust, and in some cases exceptional, tools at our disposal and the success rate of law enforcement and courts, most recently demonstrated with the VIA Rail terrorist convictions. It has not been shown that Bill C-51 provides any necessary new tools, and we are concerned that it will increase powers without any commensurate increase in accountability mechanisms. My two points are as follows.
First, I am going to turn to the security of Canada information sharing act, which I will refer to as SCISA. SCISA expansively allows for unprecedented sharing of information across at least 17 state agencies with foreign governments and foreign and domestic private actors without enforceable privacy safeguards and without clearly limiting the information to terrorist activities or threats. This is overbroad. The legislative objective of SCISA to keep Canada safe from terrorist threat is beyond dispute, but the drafting of SCISA is not. Without enforceable safeguards, information sharing will result in error. The surnames of Arar, Almalki, Nureddin, Elmaati, Abdelrazik, Benatta, and Almrei are serious, terrible reminders of the devastation wreaked by misuse and mistake in information sharing. Failure to properly share information also resulted in the failure to prevent the Air India tragedy when flight 182 was bombed, killing all 329 people aboard.
SCISA does not heed any of the recommendations of the Arar commission for integrated review of the integrated operation of agencies, nor for statutory gateways to facilitate such review, nor does it benefit from the lessons and in-depth study of the Air India commission. Existing mechanisms for national security agencies are simply inadequate in the context of SCISA. The reference to the caveats in the guidelines is undermined by subsequent provisions which allow for further sharing of information with any person for any purpose, and also by civil immunity for information mistakenly shared in good faith. In the national security context, information sharing requires proper legal safeguards of necessity, proportionality, and minimal impairment, and requires written agreements and caveats with respect to reliability, use, dissemination, storage, retention, and destruction. All of this is wholly absent in SCISA.
Next, I will talk about the CSIS Act amendments, and I have three brief points.
First, the amendments transform CSIS from the recipient, collector, and analyst of intelligence into an agency with powers to act. There is no explanation for this radical transformation at odds with the findings of the McDonald commission, which heralded distinction between intelligence and law enforcement.
Furthermore, there is no limit on what CSIS' disruption powers will be, other than the outer limits of bodily harm, obstruction of justice, and violation of sexual integrity, thereby indicating a very large sphere within which CSIS can operate. These new powers will blur the lines between intelligence and law enforcement and may further increase tension between the mandates and practices of CSIS and the RCMP, which can undermine security. Blurring the lines between intelligence and evidence may in fact undermine terrorist prosecutions.
We are also concerned by the judicial warrant that would enable CSIS to contravene the Canadian Charter of Rights and Freedoms. This is a shocking prospect to the CCLA, given that Canada is a country committed to constitutional paramountcy in rule of law, not to mention independence of the judiciary. Furthermore, the process would be conducted ex parte and in camera.
In conjunction with Bill C-44, Bill C-51 permits CSIS to act at home and abroad without regard to foreign domestic law and international law. In our view, this contravenes Canada's binding legal obligation and is a dangerous signal to send to foreign governments and agencies.
We close in respectfully reminding the committee that, across the board, safeguards and accountability mechanisms are not meant to be impediments to national security; rather, they ensure that we do not, however unintentionally, violate or impair constitutional rights of innocent law-abiding people in Canada, that we do not waste or misdirect precious national security resources, that we do not tarnish, harm, or ruin the lives of innocent individuals, and in turn that our national security actions are efficacious.
As the Supreme Court stated in Suresh, it would be a pyrrhic victory if we defeated terrorism at the cost of sacrificing our commitment to the values that lie at the heart of our constitutional order.