Thank you, Mr. Chairman.
As chair of the Mackenzie Institute's board of governors, I am going to deliver the presentation, but our general manager, Andrew Majoran, will be able to respond to questions as well.
The board thanks the chair and the committee for the opportunity to make comments on Bill C-51. As you may know, the Mackenzie Institute is a not-for-profit organization and has worked for more than two decades to make Canadian leaders and the public more aware of the importance of security. For us, truly, security matters.
I am going to skip over our commercial parts as to our background, what we've done, where we've spoken, and in which articles we've appeared. Let me just say that our board of governors is entirely Canadian, with members who have lengthy careers in senior positions in the police, military, corrections, academia, and business. Our advisory board, which is chaired by the recently retired Major-General Lewis MacKenzie, currently has members with senior experience in the security and military sectors in Canada, the United States, Great Britain, and India. We tend to be very focused nationally, but our view is also international.
Before commenting directly on Bill C-51, we would like to make several key observations.
First, like many western societies, Canada faces historically unparalleled threats to its physical and social security from economic, ideological, and perhaps perverted religious forces. Strong challenges from any one of these sectors would be sufficient for concern and for policy action. Simultaneous challenges, even if uncoordinated, could be extremely taxing, requiring substantial, integrated, and well-coordinated government action, but as with any government action, care must be taken to ensure that the result of the action is as intended and not just an exercise in job creation or building bureaucracy.
Second, many point to a concern about the impact of governments' actions, and in particular this bill, on the rights of the citizens. This is a valid concern. As a friend of mine likes to say, rights are much like employee benefits; they are much more difficult to reduce and take away than they are to give.
Third, to those who express sincere concern about what appears to be a government invasion of citizens' privacy, one can remark that perhaps that invasion is now about to become at least more transparent. We should all remember that Echelon, an international communications and information sharing protocol and program among Canada, the U.S., the United Kingdom, New Zealand, and Australia, has been used by the respective governments to review the communication of the citizens of the other participants and then share it with the government of those citizens. This system actually allowed, for many years, plausible deniability for governments to claim that they did not spy on their own citizens.
Private business and personal communications have been given increasing scrutiny by governments over several decades. Fortunately, much of this scrutiny has prompted greater transparency in business reporting. However, the growth of the Internet and numerous commercially available apps have also allowed greater access to and intrusion upon what was once private information. The basic issue is perhaps not the intrusion on privacy, or the degree thereof, in an information age. Perhaps the greater issue is, as so well stated by others, why the intrusion is made, by whom, and on what authority. How is it done and what recourse does the individual have?
Some may question the need for more and new laws when current laws, well applied, seem to work. Those who would assault our society are being apprehended, such as the Toronto 18 or the more recent train attackers. Yet a member of the Canadian Forces was run down in a parking lot and another was shot and killed on Parliament Hill by lone-wolf attackers. New laws would not have prevented those events from happening. Both individuals who committed these heinous crimes were on one or more watch-lists and had been visited by authorities. The key point, however, is that there was little coordination between these authorities.
When Parliament was assaulted, there appears to have been no coordinated preplanning to deal with such a situation. My goodness, why should Canadian security officials consider Canada an exception to attacks when Canada has been identified as a target by overseas terror organizations?
Perhaps the greater problem is not the lack of law or the need for more laws, but the lack of integrated planning and coordination of enforcement agencies as they have applied the existing law.
For example, I know personally that several years ago a municipal jurisdiction in the Ottawa region issued an RFP for new police radio systems. One of the criteria for the bid was that the system should not use or even carry the same frequencies as those in adjacent or nearby jurisdictions. You might ask why that was. The given rationale—and it was stated to me personally—was that one jurisdiction did not want the other to eavesdrop on their communications or conversations.
Crime and terrorism, like weather, respect no borders and no jurisdictions.
Perhaps it's time to look at developing a coordination mechanism like the fusion centres that have been established by our friends to the south. Government needs to enable the effective and responsible sharing of relevant, national, and local security information across departments and agencies at the operational level and not just at the executive level. Information is still at the discretion of each department, but there need to be strict regulations on information sharing to better identify and address threats.
No system will be perfect, but a system that has various security organizations working together and sharing information on a daily basis might utilize existing capabilities rather than simply adding more laws.
The Mackenzie Institute applauds those provisions of Bill C-51 that promote and fund enhanced coordination and information sharing under appropriate guidelines, but we also share concerns relating to the possible outcomes of other aspects of the bill.
For starters, we believe that even more clarity regarding the differences between the terms “dissent” and “terrorism” should also be sought. Bill C-51 will criminalize the advocacy or promotion of terrorism offences. The government's position is that lawful advocacy, protest, dissent, and artistic expression are fine, but how is “lawful” defined and by who? The language must be clear. Reasonable opposition, even to the point of demonstration, should not be considered terrorism unless and until the demonstration becomes destructive. Even then, one needs to distinguish between a riot, which is handled by conventional means, and a terrorist attack, which requires an unconventional response.
Changes in existing legislation may be needed, but the implications of those changes must be fully thought through.
For example, the CSIS Act as it stands is a good piece of legislation, but as it now stands, it provides CSIS with little authority for direct action. With the current security environment it may be desirable to give CSIS a little more power to act in low-level interventions and threat diminishment activities, for example, to reach out and prevent someone from going down the path of radicalization. Today CSIS isn't even allowed to tell a parent that their child is about to engage in violent jihad activity or to travel offshore.
In the past, the Security Intelligence Review Committee has actually criticized CSIS for taking these steps to diminish threats, partly because doing so is not in their mandate.
This act anticipates that with judicial warrants CSIS could break the law and contravene the charter, according to one commentator who has testified before you. This latter aspect may certainly represent overreaching by both the authorizing judge and CSIS itself in terms of the charter. More balance is needed between desired action and legal reach to get it.
Others have commented on the need for greater independent non-political oversight of how the law is applied. We believe that independent expert non-partisan oversight of our national security agencies is a better model than is political intervention in the process. Australia's inspector-general represents an independent example of how this can be done.
Further, the key powers of the new legislation must be clearly subject to judicial review and legal authorization.
Another area of concern is the potential for misuse of the powers granted on a day-to-day basis under current or new laws. In examples raised in the media and heard recently and known to me personally, existing laws and the powers they convey have been misused through either sloth or poor judgment or even deliberate actions.
Those charged with the responsibility of upholding the law are hopefully not automatons, but every human has weak points, which is at least good reason why there must be a well-defined and accountable approval process for any intrusion on privacy. Even thereafter, there must be an independent, transparent, fair, and expeditious appeal procedure. Thus, while the Mackenzie Institute applauds those provisions of Bill C-51 that promote and fund enhanced coordination and information sharing under appropriate guidelines, we share the concerns of possible outcomes of other aspects of the bill.
To search personal files at home or in the office requires a valid search warrant. To demand a password for a computer at a border crossing seems to be quite a reach of the law. Suspicion is no replacement for probable cause. Curiosity is no substitute for evidence. Permitting a judge to break a law, or to ignore the charter to uphold the law or protect a society that is to be based on law, seems at best contradictory.
Any legislation will be imperfect regardless of its—
