Good morning. Thank you, Mr. Chair.
Members of the committee, thank you for the invitation. It's a pleasure to be here. I've been before many committees, including this one, in the past. The Canadian Muslim Lawyers Association has testified before committees on national security and human rights matters in the past, and we're happy to do so today.
My name is Ziyaad Mia. I'm a member of our Legal Advocacy Committee. With me is Mr. Mueed Peerbhoy. He is the vice-chair of that committee.
We want to thank Professors Roach and Forcese for their work, which I think is a contribution to the study of this bill and has been a public service that has been very helpful not only to our organization but to many others as well.
We share your concerns about national security and also about rights. We don't think they are mutually exclusive. As the Canadian Muslim Lawyers Association—some of you on the committee have seen me before—we're not opposed to taking reasonable and proactive measures to deal with threats to the security of Canada, including terrorism as well as crime in terms of the criminal law. But we think that when we do those things, they need to meet a number of criteria.
I'll give you three main criteria: the measures need to be demonstrably justified; consistent with the rule of law and the charter of rights; and if this bill in particular is about terrorism, it actually needs to make us safer.
Bill C-51 is fundamentally flawed. It does not meet these criteria. It is a Faustian bargain—a trade with the devil, if you will—whereby we are trading our rights to gain a false sense of security. We shouldn't be trading rights to get security; we should be getting both. Indeed, we'll be less safe, as you've heard from many witnesses, including Mr. Boisvert, who said they are overworked at CSIS. We'll be chasing red herrings—chasing people who shouldn't be chased, harvesting information that shouldn't be harvested—while the real terrorists and the real threats might slip through the cracks and hurt all of us. It doesn't make us safer at the end of the day.
I've sent my written submissions in to the committee. I think they're being translated, and unfortunately I can't give you a unilingual copy. You will get them at some point soon. I'm going to talk about a few things today. The written submissions go into much more detail, so I encourage you to please look at them, if you get a chance. They are available on our website as well.
The information sharing piece especially troubles me. It's quite complex. I have also taken a minute to do up a little chart for all of you in the submission, and it's available here, if you want it today, just to get a handle on how information flows. Bill C-51 raises many unanswered questions. In the submission, I think I list about 40 or 50 questions. To me as a lawyer, it constitutes a big question mark. I don't know—it's not clear, essentially. So I'll ask you to look at those, please.
Bill C-51 has been styled and marketed as a bill about terrorism. In fact, it's the “Anti-terrorism Act 2015”. But it is not a bill about anti-terrorism. This is a broad national security bill that creates a bit of a nanny state. Professor Forcese called it the largest national security bill he has seen.
I'll walk through a few of the provisions, knowing that my time is limited, and I will invite your questions for discussion.
Let me talk about the information sharing portions.
Anyone in intelligence will tell you that finding a terrorist is finding a needle in a haystack. Information sharing is so vague and broadly drafted that we are adding about 16 truckloads of hay. Those of you from the prairies—I know that if Ms. Nawaz were here.... I'll tell you, it's probably not a good idea to add more hay to that hay pile to look for that needle. We need to get at the needle and not add more hay, and SCISA is doing that. It creates a whole-of-government information sharing regime with no supervision or control, absolutely none.
This is a recipe for disaster, as we know from the Arar affair. In fact, I think Bill C-51's information sharing is actually anti-Arar. Professors Roach and Forcese say that it has Arar amnesia. It allows for information sharing and manipulation across multiple points in government and has distributed decision points across government. You know that, when people are making decisions across government, it can lead to trouble, because there is no consistency and there are no meaningful safeguards.
Bill C-51 creates the foundation for big data gathering and analysis. It is not simply the information, but the manipulation, sharing, and predictive analysis that is the issue. Ed Snowden talked about that.
The broad information sharing also extends to sharing with foreign governments, those with questionable human rights records. We could be sharing information on Canadians with governments such Egypt and Saudi Arabia.
We know the risks according to Snowden of what happens when we share information broadly and we do big data analytics.
In today's world all of you have a smart phone in your pocket and you know that if you make a horrible tweet, you can't reel it back. When we make a mistake in security information sharing and we share my information or yours with a Saudi regime and there's a mistake in it, you can't reel that back, you can't pull that back. We can fix it here, but once that information is out, you can't get it back.
We've heard from many people that we shouldn't be worried about Bill C-51 because if you're not a terrorist, what do you have to worry about? Consider what types of non-violent activity...this is the lawful protest and dissent exemption.
The criminal code doesn't include the word “lawful”, so there is an inconsistency in the law. Why does one act have “lawful” included and another doesn't? Unlawful doesn't mean criminal, terrorist activity. You and I both agree that we need to get those people who do those sorts of things and we need to prosecute.
We just celebrated this month the 50th anniversary of Dr. King's Selma march in the civil rights movement. I encourage you to look at this. They were arrested. Dr. King, Reverend Abernathy, and student leaders were all arrested. For what? Illegal activity, unlawful assembly, and illegal marching. King was a Gandhian. I'm a South African by birth and Gandhi spent a lot of time there. Gandhi was arrested for the same things. King and Gandhi were involved in illegal, unlawful activities, but they were non-violent.
The problem is that we're dragging people into the national security dragnet. Yes, if someone trespasses charge, them for trespassing, but they shouldn't be dragged into the national security dragnet. That's the problem. Then their information may end up somewhere else.
We've been told by many that there is oversight—what are you talking about? They say there is oversight in this bill because there is judicial oversight. It's either incorrect or disingenuous because section 9 of the proposed security of Canada information sharing act gives the government immunity from negligent harms done from information sharing. That breeds impunity. The future Arars won't even have the recourse he had.
Let's talk a bit about CSIS and the reduction of threats to the security of Canada. These are new unprecedented police powers. This essentially undoes everything the McDonald commission told us about. It takes us back to the pre-McDonald commission era. The whole point of having the McDonald commission was to separate intelligence and police work because of the mistakes and abuses that had happened, the illegal activities by the RCMP security service in Quebec against sovereignists and others. We will repeat those mistakes again. People may not have liked sovereignists, but they had a legal right to do what they were doing and to say what they were saying. I don't agree with it, but they have that right so they shouldn't be abused by the police. We're opening a can of worms here by doing that.
Unfortunately, it will also strengthen silos. I think, Mr. Boisvert, referred to this a bit, that CSIS will try to do things on its own. That I have a problem with because if we're trying to integrate—and I think there should be some integration and sharing of information—and if we're giving CSIS these disruption powers, what we're doing is giving them police powers. You know what institutional mindsets will say. They will say, “Why do we need to call the RCMP? We'll just finish the job ourselves”. What they should be doing is intelligence gathering, building the case, and then flipping it to the RCMP for enforcement and trial, which builds confidence. We saw the Toronto 18 and the VIA Rail trial. That was an open and public case that builds confidence and was built on evidence. That is what we need.
I'll talk a little bit about CSIS's law-breaking warrants, which is what I call them. They're open ended. Courts are said to be a protection in this case, but they're not. This happens in complete secret ex parte hearings. There is no ongoing supervision from that judge, and worse, it turns the role of the judiciary completely upside down. This is not the role of judges in our system. Security certificate judges have said that they're uncomfortable with secret processes. This takes them further and conscripts them into the illegal acts and dirty business that CSIS will engage in.
To say that judges are the oversight.... The other issue that's troubling in that case is that CSIS has a track record—I'm not making this stuff up here—of misleading courts and misleading the Security Intelligence Review Committee, whose last report says so, and breaching constitutional rights. That's all on the record, its lack of candour with the courts.
I'll wrap up, Mr. Chair. I'll quickly say the secrecy in the no-fly list is very problematic; it's a Kafkaesque approach. Mr. Inserra said the U.S. no-fly list was struck down, again for that opaque process. This is going to fail, I think, on the same grounds.
With regard to criminalizing expression, I'm 110% in support of what the Prime Minister said about Charlie Hebdo and support for free speech, but we can't criminalize speech that's not close to criminality at home. I agree, and am also offended by speech that's hateful and anti-Semitic, but it needs to be close to criminality. We live in a liberal democracy. We allow vulgar and offensive and unpatriotic speech to prevail if it's not criminal.
I will wrap up by telling you that we're recommending not moving forward with this bill. We recommend that we first fix the national security operations and put some supervision in. Look at the Arar inquiry and other inquiries that have told us to do that—