Good evening, Mr. Chair, Mr. Clerk, and committee members.
We are grateful for the opportunity to appear before this committee this evening. As you know, the CBA is a national association of over 36,000 lawyers, law students, notaries, and academics. I am pleased that our president, Michele Hollins could join us here tonight.
An important aspect of CBA's mandate is seeking improvements in the law and the administration of justice. That is the perspective that brings us here before you today. Personally, I am chair of the national criminal justice section, a section that is represented equally by defence lawyers and crown prosecutors. With me is Peter Edelmann, an executive member of the immigration law section. With over 36,000 members, we can offer legal expertise in many areas of law relevant to your study of Bill C-51. In fact, experts in criminal, privacy, charities, immigration, aboriginal, and environmental law all contributed to the CBA written brief that you should have before you today.
We offer this range of legal advice to the committee because we want to help improve the bill. It is difficult to overstate how important this bill is, and we believe the committee should take the time required for careful, not cursory, study, hearing from all groups with a serious interest in the legislation. We've taken a common-sense approach to our review of Bill C-51. Creating new laws of questionable constitutionality, laws that outlaw acts already caught under existing laws, or laws that overlap with existing laws only leads to uncertainty in the law, more court cases, and costs to the taxpayers.
Let me be equally clear about something else. Keeping Canadians safe is something that the CBA supports without reservation. As such, we support the stated objective of Bill C-51, and we have offered 23 specific recommendations in our written submission in order to help fix this bill. As I said, I don't have time to cover all those recommendations. I only wish to focus on two points in my opening remarks, before handing it over to Mr. Edelmann.
The first has to do with the creation of the promotion offence. The CBA opposes the creation of an advocating or promoting terrorism offence in the Criminal Code. This provision is largely redundant. It is illegal to counsel anyone to commit a terrorist offence or engage in hate speech. The definition of terrorism is broad and covers preparatory acts or supporting activity. This offence may, as others have already testified to, be counterproductive and self-defeating by driving discussion of terrorism and radicalization further underground, making it harder for the police to detect. Finally, this provision is corrosive of our concept of free expression in a democratic society. Let's be clear; it makes thoughts given expression in words illegal. Freedom of expression protects even those thoughts and opinions that might be repulsive to the majority of Canadians. Is our Canadian democracy really so fragile that we must outlaw recklessly made statements? I think Canadians are made of sterner stuff.
The most concerning aspect of the bill that I want to touch on is the proposed transformation of CSIS from a simple intelligence-gathering agency to essentially a law enforcement body. CSIS operates in the shadows, with much of its work kept highly confidential for national security reasons. Its activities are generally not revealed publicly or subject to judicial review. In these circumstances, expanding the CSIS mandate to include policing powers raises the risk of state abuses of that power. Indeed, this has happened before. These powers are not, as one witness said, ahistorical. Prior to the 1980s, both security intelligence and law enforcement were handled by the RCMP. Eventually it came to light that throughout the 1970s the RCMP engaged in what was colloquially known as “dirty tricks”, illegal activities in the name of protecting Canada from subversive groups such as the FLQ in Quebec.. Unchecked, the RCMP used radical means to acquire security intelligence and promote national security, including burglary, arson, and kidnapping.
The McDonald commission was established in 1977 to look into RCMP abuses. The result of the McDonald commission was the dissolution of the RCMP Security Service and the creation of CSIS, a new civil intelligence service with a limited mandate to engage in intelligence gathering and analysis. A careful line was then drawn between national security activities and activities that cross the line into operational policing. The idea was that abuses of state power are less likely to occur if the two roles are separated.
Bill C-51 threatens to disrupt this balance and blur the lines by essentially giving CSIS operational powers, many of which will overlap with RCMP powers. As the saying goes, those who fail to learn from history are doomed to repeat it.
As counsel who was involved on one of the teams working on the Air India trial, we saw first-hand some of the problems that arose when you didn't have complete cooperation between CSIS and the RCMP. Imagine now in light of the solid verdict in the Via Rail trial, if CSIS hadn't handed over the information they had to the RCMP so that could be operationalized. If they had wanted to keep their hands on it and not share it, we might not have a prosecution in that case.
These are the kinds of concerns that we have about CSIS and the operation of their mandate. It's covered in detail in our recommendations in our written submission.