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.