Public Safety Committee on March 24th, 2015

[The Chair, Conservative, Daryl Kramp]

Thanks, Mr. Morrison.

Professor Wark, you have the floor, sir. Welcome back.

[Wesley Wark, Visiting Professor, Graduate School of Public and International Affairs, University of Ottawa, As an Individual]

Thank you, Mr. Chair, and members of the committee. It's dangerous to ask an academic to speak for only 10 minutes. I'm going to read from a prepared text.

I thank you for this opportunity to address the committee on the important matter of Bill C-51. This is the second occasion in which I have testified in this House on omnibus anti-terrorism legislation. The first occasion took place nearly 14 years ago during the debate over Canada's first anti-terrorism legislation, Bill C-36.

Times have changed. We now live in a post-al Qaeda age, but the fundamental issue that we struggled with as a society in 2001 remains the same in 2015, that being how to meet security threats in such a way as to maintain a necessary balance between the powers given to security and intelligence agencies and the protection of democratic rights, including privacy rights. The 2004 national security strategy was aptly entitled to reflect this challenge of securing an open society.

Let me begin by saying that we are hobbled in our analysis of this bill by three things. One is the absence of any update by the government of its counterterrorism strategy, which was last produced in August 2014 before the recent cycle of terror attacks, including those in Canada in October 2014; in Sydney, Australia in December 2014; and in Paris in January 2015.

A second is the absence of any inquiry report into the tragic events of October 2014 that would help us understand any legal, operational, or analytical deficiencies that might have contributed to the failure to prevent those attacks.

The third deficiency is the lack of any substantial explanation for the need for the individual parts of the bill, either in the language of the bill itself, in the brief backgrounders prepared by the Department of Justice, or in statements made by the government that have referred in boilerplate language to the evolving terrorism threat and the need for new capabilities to meet it.

The evolving terrorism threat can be considered to have three dimensions, namely, the threat posed by jihadist terrorist groups engaged in insurgency campaigns abroad to seize territory and build state-like capabilities; the campaign of individual homegrown jihadists to inflict violence in the domestic sphere; and the connecting tissues between these threats, which are the foreign fighter problem and the broader issue of cyber incitement. Bill C-51 addresses two of these three strands and does so in a tactical, as opposed to a strategic, way.

I would divide the bill into three baskets. First, those elements that can genuinely advance security capacities in a reasonable and proportional way. Second, those that do not advance our security capabilities or fail to maintain the vital security rights balance. Thirdly, those parts of the bill that deserve to be put on hold for deeper reflection and not be rushed into law before the summer recess.

In the first basket of appropriate security enhancements I would place the proposed information sharing act, part 1 of the bill; the proposed changes to Canada's no fly list, part 2 of the bill; and selected components of part 3 of the bill concerning amendments to the Criminal Code with respect to peace bonds, preventative detention, and the dismantling of websites conveying terrorist propaganda.

To be sure, parts 1, 2, and 3 of the bill would greatly benefit from some detailed amendments, in particular to bring greater clarity, heighten their efficacy, reduce their over-breadth, and bolster the security rights' balance. I have respectfully suggested some key changes that could be made to the bill in the detailed brief I submitted to the committee.

The provision that I would argue should be abandoned in its present form concerns the criminalization of the promotion and advocation of terrorism. While such a criminal sanction might be emotionally satisfying, as currently presented in the bill it operates at a remove from the commission of a terrorist act and is in effect a speech crime. In addition I would argue that the operational burden on our national security agencies tasked with investigating such speech crimes is not commensurate with the likely payoff. We must understand that security and intelligence capabilities are finite and must be carefully deployed to maximum benefit.

Provisions I would put on hold for further study include parts 4 and 5 of the bill. We need to have a proper conversation about security certificates, which are the subject of part 5. In the time I have remaining, Mr. Chair, I will focus only on part 4.

Part 4 of Bill C-51 gives CSIS explicit and broad lawful authority to engage in disruption or threat diminishment operations. I think many Canadians do not understand that CSIS already conducts forms of disruption operations associated with their intelligence collection mandate and that such operations were reviewed some years ago by the Security Intelligence Review Committee.

The SIRC study summarized in its 2009-10 annual report noted that the CSIS director had testified in Parliament in May 2010 that disruption operations should principally be left to the RCMP. Whether or not the current CSIS director would disagree with his predecessor and why is not known. SIRC recommended two things: the creation of appropriate internal policy controls for CSIS disruption operations and the provision of strong ministerial directives. Whether these recommendations were accepted and acted upon is not known, but I think it would be important for this committee to satisfy itself about this matter.

I would also urge that CSIS disruption powers be focused on operations abroad against Canadians, under appropriate controls. A domestic lead on disruption or threat diminishment should be left to the RCMP where it currently resides, and where I think it belongs. The RCMP has developed important capacities in this area through its inset teams, through front-line policing, and through community engagement or outreach programs.

In conclusion, Mr. Chairman, it should surprise none of us that first drafts of complex legislation may not be perfect. It is vital that parliamentary consideration be aimed not only at improving the bill and ensuring that it balances security imperatives and rights protections, but also at ensuring to the greatest degree possible a Canadian social consensus. If these are not difficult enough goals, it is important as well to be very clear about what is missing in the bill and will need to be addressed another day if not provided for in amended legislation.

The missing pieces include the need for greater measures for intelligence and security accountability; greater mandated government transparency in regard to national security; and acknowledgement of the secret elephant in the room, which is the counterterrorism mission and capabilities of the Communications Security Establishment, whose enabling legislation passed with the Anti-terrorism Act in 2001, and which desperately requires fixing, from my perspective. It is also important to understand that Bill C-51 does not address a critical need, which is improvements to Canada's threat assessment capability. It is no good sharing a great deal of information, no good having new powers to collect new kinds of information, if you can't make sense of it through a robust threat assessment capability. Finally, of course, there's the issue of new resources to match new powers about which the government has been so far silent.

Thank you.

[The Chair, Conservative, Daryl Kramp]

Professor Wark, thank you very kindly.

I thank all of our witnesses for their testimony here today.

We will now go to our rounds of questioning. We will start with a seven-minute round.

Mr. Payne, you have the floor, sir.

[LaVar Payne, Conservative, Medicine Hat, AB]

Thank you, Chair.

Thank you to the witnesses for coming to provide your input on this very important bill.

We had a few witnesses here yesterday. I want to cite a couple of remarks from them.

Salim Mansur, a professor, said there is no freedom without security. He also said that we're in a global war and that that war has changed dramatically.

Professor Davies was here as well. He made some very important comments, noting that terrorists are real and that borders are meaningless. He said that the Internet lone wolf and other changing realities are happening and that terrorists tactics are changing very quickly. He believed that bill addresses some of these issues.

Finally, I just want to make a comment regarding what the sister of Patrice Vincent said, that silos have created a bit of a problem as well.

That's where I really want to go, Mr. Morrison. As I understand, you have a fair amount of experience. I wonder if you could touch on some of those experiences you've with information sharing and the protection of Canadians.

[Robert Morrison]

I retired from the RCMP after 35 years, most of it on the intelligence side. I was also a liaison officer, a diplomat, in Islamabad, Pakistan. When I was there I was responsible for 17 countries, including Afghanistan and other “stans”, the UAE, Saudi Arabia, Iran, Iraq. I was there to develop and work with intelligence agencies in an effort to share information. That was in 2002.

I've been a guest speaker at a Middle East law enforcement policing function on intelligence information sharing. I was a guest of the Greek government in 2003, prior to the Olympics, on intelligence sharing internationally. As the director general of the information sharing environment, I worked a fair amount with the United States and EUPOL, looking at different ways in which we could effectively share information while being safe, secure, and of course, ensuring the privacy of Canadians.

My experience is fairly worldwide, and I have been retired for only two years.

[LaVar Payne, Conservative, Medicine Hat, AB]

It sounds as though you're still not retired.

Mr. Morrison, one of the main concerns about this legislation involves information sharing: that the scope of the definition of activities that undermine the security of Canada is too broad and the language used too vague, which could lead to excessive sharing. I know you have made some comments on that matter in your opening remarks, but we still have conspiracy theories about it coming from certain witnesses and groups across the country.

Is there any clarification you could offer to this committee with respect to the purpose of the act and how you expect it should and would be used along with oversight mechanisms?

[Robert Morrison]

When I first started with the ISE, I embedded some staff members from the Office of the Privacy Commissioner to help and guide us. From reading the proposed new security of Canada information sharing act, I know that it is implied that there will be strong oversight. It is specific in that it will be done by, I believe, independent, third-party, non-partisan experts much like SIRC, to make sure and to audit all the information that is being shared. The Officer of the Auditor General is also, under the act, going to be reviewing the files to ensure that there is compliance with our privacy concerns.

I think people may just have taken snippets of the bill and not have reviewed the entire bill.

I see it as a necessity. I don't know how many people have said to me in the past month or two: “Do you mean we don't share information with everyone? We don't do that? I don't understand.”

[LaVar Payne, Conservative, Medicine Hat, AB]

Thank you.

There was a recent article about a fisherman opposed to oil tankers, film makers documenting civil disobedience, and journalists advocating an independent Quebec. It asks, what do these groups have in common? It states that each would have been charged with terrorism under the Conservatives' draconian Bill C-51—this is what has been reported—which would criminalize any action deemed to be a threat to the economic and financial security of Canada or Canada's diplomatic relations.

This sort of information, I believe, is being spread by the opposition and media. Do you believe it to be a true statement? Do you believe that CSIS and the RCMP would have the time or desire to have government agencies provide them information about protesters or that they would act upon it if there were no reasonable grounds to investigate?

[Robert Morrison]

Absolutely not. I have heard some of the testimony. I have listened to the testimony over the last several weeks. It was funny that the individual I made mention of in the airport was telling me that he was a protester against some logging companies and what not—it's a small area—and I just mentioned to him that the intent of the act was specific, that it was terrorism, not the protests that he was talking about.

[LaVar Payne, Conservative, Medicine Hat, AB]

I agree. The legislation seems very clear with respect to information sharing and the need for it to be relevant to national security, and I think that's what you are touching on.

Could you comment on the importance of having a framework in place that encourages information sharing related to national security, as distinct from the silos that have often existed?

[Robert Morrison]

The reluctance to share information is also a historical issue. That's another battle, to encourage people to share information when they should and to do so in a timely manner.

I think what you're talking about is a culture that we have to change in order to fight terrorism. We are finding that small pieces of information are so relevant, yet we don't share them at the time. It is important to develop a strategy that trains not individuals but agencies, and which has some oversight so there is accountability with the different agencies so that they share information when they should and not share it when they shouldn't.

[The Chair, Conservative, Daryl Kramp]

Thank you, Mr. Payne. Your time is up now, sir.

Thank you, Mr. Morrison. We'll let you continue at another opportunity.

We'll go now to Ms. Ashton.

You have the floor.

[Niki Ashton, NDP, Churchill, MB]

Thank you very much, and thank you to our witnesses.

Thank you, Grand Chief Phillip, for joining us today. It's an honour for our committee to hear from you. Thank you for making the trek from the the west coast to share your testimony.

Grand Chief Phillip, as you alluded to in your presentation, you have been on the front lines of first nations' fight to defend their territory and inherent rights. I feel that today is a bit of a snapshot in which we get lost in the weeds around the focus on the international, rather than looking at the very negative impact this piece of legislation will have on our domestic reality—particularly on indigenous leaders, members of indigenous communities, and others as well who are opposing this government's agenda. Do you believe that the goal of Bill C-51 is to instill fear in you and other indigenous leaders, and even to criminalize the kinds of positions you have been taking on behalf of your people?

[Grand Chief Stewart Phillip]

Thank you for the question. The short answer is yes. The longer answer is absolutely yes.

I don't think there's any doubt in our minds that the real intent of Bill C-51 is to coerce and intimidate indigenous peoples away from defending and protecting their hard-fought international rights expressed in the UN Declaration on the Rights of Indigenous Peoples, our section 35 rights in the constitution of this country, and the hard-fought battles through the Supreme Court of Canada.

This bill will criminalize pretty much everything that has brought us to this point in our history, in terms of being able to assert our rights and ensure that our interests are fully protected. As I know you have heard in previous presentations, much of our history would have been lost if this legislation had been introduced 40 years ago.

I have been involved in these issues for more than 40 years. I served as chief of our community for 14 years, and for 10 years before that I was a member of our council. This is my 16th year as president of the Union of B.C. Indian Chiefs, and I'm the chair of our tribal council. I'm 65 and I have 14 incredibly beautiful grandchildren whose future I am gravely concerned about, given the direction in which this country is moving.

[Niki Ashton, NDP, Churchill, MB]

Thank you.

Earlier we heard powerful testimony from Pam Palmater about the surveillance she has been a target of. We are also aware of other indigenous activists who have been targeted. We also know of Cindy Blackstock, a social worker who has put forward a case to the Canadian Human Rights Tribunal about the underfunding of child welfare for first nations children in our country. We know that she has been under surveillance by government departments. There is a long list of very recent examples of surveillance, including one uncovered in 2013 showing that the National Energy Board was working with CSIS and the RCMP monitoring activist groups ahead of the Northern Gateway pipeline hearings.

Grand Chief Phillip, should we all be very concerned as Canadians about what this bill would mean in terms of exacerbating the kind of surveillance of first nations people that already exists?

[Grand Chief Stewart Phillip]

Again I think the short answer is yes. The work I do is political advocacy, and Bill C-51 talks about criminalizing public expression of political advocacy work itself. Obviously our leadership is going to have concerns about what this bill represents to our rights to freedom of speech, freedom of assembly, and freedom to publicly express our world view as it relates to the environment and our traditional territories.

We're gravely concerned and, again, we're absolutely convinced this is less about jihadi terrorism in this country and more about facilitating and promoting the tripling of the output of the tar sands.

[Niki Ashton, NDP, Churchill, MB]

Thank you.

Do you think this piece of legislation is out of touch with Canada, certainly post the Tsilhqot’in case with the courts recognizing inherent title and what that will mean for first nations across the country who have been fighting for this position to be recognized.

I've heard from activists who have said that the recognition of first nations' inherent title at the court level and the first nation activism that will come from that will only be targeted by this bill. Do you think this government is out of touch with the courts and the direction that first nations will be taking from here on in?

[Grand Chief Stewart Phillip]

Yes, absolutely.

In British Columbia, the Supreme Court decision in the Tsilhqot’in case repudiates forever the notion of terra nullius, the doctrine of discovery, and indicates very clearly that our aboriginal title, rights, and interests are territorially wide in scope, as opposed to the tired arguments that have been brought forward by Canada and British Columbia in terms of small spots.

Our jurisdictional interest is territorially wide, which puts us on a collision course with major resource development projects, which are the heart and soul of the Harper government. Bill C-51 talks about threats to the financial and economic stability of the country, which puts that under the shadow of this very abstract and broad notion of what represents terrorism. Again, we're gravely concerned about this.

[The Chair, Conservative, Daryl Kramp]

Thank you, Ms. Ashton, your time is up now.

We will now go to Mr. Norlock for seven minutes, please.

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

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

Mr. Morrison, I think Canadians would surely be interested in how, internally, the RCMP and CSIS.... You've called yourself an intelligence officer and some people want to call you a spy, and I think there's a difference and you might want to explain why you think you're one or the other or both.

However, I wonder if you could tell us how on a daily or a frequent basis we Canadians can be relatively assured that you keep within the bounds of the legislation that governs your actions. How does the review body, SIRC, enter into that regime of making sure that you keep within the bounds of the exercise of your authority vis-à-vis the law and legislation?

[Robert Morrison]

In response to SIRC, for example, which is the independent review committee for CSIS and the RCMP, they have a review committee with expertise in the activities of CSIS. So when they're auditing the CSIS files, investigations, and the sharing of information, they understand what they should and shouldn't be doing. Rather than a review committee that might be made up of academics or those who might have expertise in other areas, they're picking people who are experts within that field. They understand what is lawful and what is reasonable, and when they have questions, they can conduct an audit. They can audit both the RCMP and CSIS.

You've had a lot of experts come here to talk about information sharing. I would propose exactly the same type of oversight of information sharing, with such experts on the review committee, to ensure that under the information sharing act, it stays within the same limits as the SIRC or as the RCMP, as they're accountable.

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

Part of my question was this on a daily or frequent basis. I know that police officers go on courses and that their supervisors and others tell them about recent court cases that affect the way they do their jobs, how they should do their jobs, and what they need to keep up with daily. Each agent with CSIS or officer with the RCMP would report to a superior, who would ensure that they're adhering on a daily basis to their governing legislation. Can you tell us how that functions, how that works to ensure that members of the RCMP and CSIS are kept within the bounds of the legislation governing them?

[Robert Morrison]

Certainly. As a field agent or as an individual who was working on a street-level intelligence-gathering process, they would report first to their first supervisor. Depending on what job they were doing, they would report daily to the supervisor as to what actions they'd taken. That supervisor would be accountable to another level of supervision. The levels of supervision would go up until there was an overall commander responsible for that investigation or that project they'd been working on.

Daily reports would come in. The overall officer or person in charge would review what had happened by all the different investigators who were working that day to ensure that they were compliant with the processes for whatever job they were doing, whether in information sharing or in an enforcement action with regard to a judicial request. They would be reporting daily through supervision levels.

As well, each organization would have its own internal audit process. They call it quality assurance. They might not do so daily, but they would review that to ensure that if there were any changes in legislation or any changes in processes, the supervisors would be well aware of those and they could pass that information down to the investigators.

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

Thank you very much.

In your preliminary 10-minute speech to us, you indicated that in one particular case there was a 400-kilometre stretch of border you looked at or examined and that you found some 40 instances of information sharing. I wonder if you could give us examples, because they would provide us with a clear view of what the legislation would be able to do to overcome those obstacles. If this legislation were passed, how, specifically, would it aid those agencies to make sure that each understood what the other was doing, and how could that contribute to better enforcement of the laws and regulations we have?

[Robert Morrison]

Well, one instance I gave you was the example of an individual who was involved in organized crime, a gang member. That gang member frequently crossed the border, back and forth, and the people at the border had no idea. The information sharing act will allow the organizations to share information proactively so that they will be able to say they know who that individual is. The next time they have an interaction with that individual, they'll have information based on the sharing of information from the other agency.