Public Safety Committee on March 31st, 2015

[The Chair, Conservative, Daryl Kramp]

It does.

[Wayne Easter, Liberal, Malpeque, PE]

That creates a problem for me.

[The Chair, Conservative, Daryl Kramp]

Fine, thank you very much.

(Amendment negatived [See Minutes of Proceedings)

[The Chair, Conservative, Daryl Kramp]

We will now go to amendment NDP-2. The chair will also note that if this amendment were adopted, then amendments LIB-1 and G-1 could not be moved, as they would be in line conflict as well.

With that clarification we now go to amendment NDP-2.

Mr. Garrison.

[Randall Garrison, NDP, Esquimalt—Juan de Fuca, BC]

This is an amendment that we tried to write in the most simple and straightforward manner, but as legal drafting is a technical exercise, it's probably difficult for people who have not looked at the act itself to realize that all this does is drop the word “lawful”:

For greater certainty, it does not include advocacy, protest, dissent, artistic expression or any other activity considered to be civil disobedience.

We're just removing the word “lawful”, and I'm happy to see that one of the changes the government has agreed to in amendment G-2 is identical to this change. This was a very large concern among technical witnesses, the legal community, and many community witnesses we had as well as for some of the law enforcement witnesses we had, who said the danger in casting such a broad net was that we would bring too many people into the purview of national security investigations and therefore run the risk of missing those who present the real threat to Canada.

So, again, it's a simple removal of the word “lawful”, and since the government has presented the same in its amendment G-2, I'm looking forward to the government supporting this amendment.

[The Chair, Conservative, Daryl Kramp]

Thank you very much,

Mr. Easter.

[Wayne Easter, Liberal, Malpeque, PE]

Mr. Chairman, one of the problems here is that we may be hampered by parliamentary procedure. Randall's arguments are valid, that the word “lawful” is of concern to a great many people out there. We have a very similar amendment on the amendment paper as well, as does the government.

I'm trying to determine which one I want to support to do the job, Mr. Chair. Is it possible to ask a question of the government regarding its amendment or do we have to wait until we get there? Paragraph (b) of their amendment G-1 proposes an addition to proposed section 6. I really want to know why that is there. Maybe it makes a further point that isn't in either the NDP amendment or the Liberal amendment. Is that possible to do?

[The Chair, Conservative, Daryl Kramp]

No, it's not. The chair understands your concern—

[Wayne Easter, Liberal, Malpeque, PE]

You're absolutely no help, Mr. Chair.

[The Chair, Conservative, Daryl Kramp]

The chair would love to be helpful; however, we cannot ask a question of the government on a motion that has not yet been presented.

You still have the floor, though, sir.

[Wayne Easter, Liberal, Malpeque, PE]

Concern over the word “lawful” was raised by witness after witness as well as by civil society, people who did not have the opportunity to come before this committee. I think that is one of the points in the bill picked out by people who never had the opportunity to come before this committee. They're concerned that the word “lawful” is there, I think jeopardizing the ability of people to demonstrate, to show dissent, or to be involved in activist activity against policy they do not like.

I will certainly support one of these resolutions to get “lawful” out of there, and I would remind the committee that the word “lawful” was originally in the bill of 2001 and was taken out.

Thank you, Mr. Chair.

[The Chair, Conservative, Daryl Kramp]

Thank you, Mr. Easter.

Mr. Falk.

[Ted Falk, Conservative, Provencher, MB]

Thank you, Mr. Chairman.

I wouldn't have an issue with taking the word “lawful” out. Where I do have issue is the trailer at the end that has been added by the NDP where it says, “any other activity considered to be civil disobedience.”

I think there are activities that would fall under the umbrella of civil disobedience that could be criminal or terrorist in nature. To add a qualifier in the bill of “civil disobedience”, I think, is too broad. So I won't be able to support it.

[The Chair, Conservative, Daryl Kramp]

Thank you very much.

(Amendment negatived)

We will now go to Liberal amendment number 1.

Mr. Easter.

[Wayne Easter, Liberal, Malpeque, PE]

Yes, Mr. Chair.

Basically, as I said in the previous discussion on the NDP amendment, the word “lawful” needs to be taken out. It's as simple as that. We do add in this amendment any of the activities referred to in paragraphs (a) to (d) of the definition of threats to the security of Canada in section 2 of the Canadian Security Intelligence Service Act.

What we're trying to do is to narrow the focus of what can be considered an activity that's a threat to the security of Canada, and in the process, taking the word “lawful“ out so that regular advocacy, protest, and dissent can take place in the country.

[The Chair, Conservative, Daryl Kramp]

Thank you, Mr. Easter.

Mr. Falk.

[Ted Falk, Conservative, Provencher, MB]

In looking at this amendment, this is a good amendment. However, it's not the best amendment. There's a better amendment coming that I will be supporting, so again, I won't support this.

[The Chair, Conservative, Daryl Kramp]

Yes, Ms. James.

[Roxanne James, Conservative, Scarborough Centre, ON]

Further to that, because the Liberal amendment includes a reference back to the CSIS Act, once again, this goes back to the first amendment that would narrow the scope of the proposed security of information act and the reasons why that act is comprehensive.

Again, I'm not supporting this either.

[The Chair, Conservative, Daryl Kramp]

Fine. Thank you very much.

In other words, close but not quite, Mr. Easter.

(Amendment negatived [See Minutes of Proceedings])

The Chair has some information for the committee. We now have an additional witness, so I would just ask you to add her to your list. Our witness is Ms. Amy Johnson with policy and strategic partnerships at CSIS. That is added to your list, colleagues.

We will now go to government amendment number 1. I would ask for your attention, as there are other amendments that will be affected by this as well. I will give them to you. If government amendment 1 is adopted, PV-2, NDP-6, PV-7, and L-2 could not be moved as they would all be in line conflict.

Does everybody have that? I just want to make sure that we're all comfortable.

Speaking to the government amendment, Ms. James.

[Roxanne James, Conservative, Scarborough Centre, ON]

Thank you, Mr. Chair.

I'd like to move this amendment. There are two parts to it, both dealing with clause 2.

The first one has to do with removing the word “lawful” from the greater certainty clause. We've had a lot of discussion on this. From the start, when this bill was first tabled—and I've done a number of panels on this—we've always been very clear that the implied intent of this was not with regard to whether there was a municipal permit or a bylaw that may or may not be in breach or not applicable, or applied in a protest. Instead, in the greater certainty clause we were dealing with legitimate protest advocacy, dissent, and artistic expression. We've been very clear on this from the start.

Even this morning, with the first amendment, we heard from the opposition that they felt that the proposed information sharing act tied into what is to be the basis of CSIS activity, which is clearly not the case. We've certainly had that confirmed by the officials who are here. We believe, as we've always said, that advocacy, protest, dissent, and artistic expression are essential components of democracy. We support those. Many politicians in this room right now have probably been involved in some sort of advocacy. Maybe that's why they decided to choose this as their path.

We just want to make it very clear that this was not the intent of the greater certainty clause. Definitely, this bill is dealing with terrorism. It has nothing to do with legitimate protest, dissent, artistic expression, and so on.

We have removed the word “lawful” just to make sure—even though we knew it was implied—that this is stated explicitly, so as to avoid any further confusion, misinformation, whether intentional or unintentional if someone thought that that's what it meant. We're removing the word “lawful”. Hopefully, we can have agreement on that from around the table.

The second part has to do with page 5 of the bill, which is clause 6. There were some concerns from witnesses that this was very broad because it had a reference to “any person, for any purpose”. If you actually read this paragraph, it says:

For greater certainty, nothing in this Act prevents a head, or their delegate, who receives information under subsection 5(1) from, in accordance with the law, using that information, or further disclosing it to any person, for any purpose.

There was some misinterpretation of this. Hopefully, it was just because they didn't understand it, but essentially that clause means that outside of this act, any other laws that were in existence are still applicable. That was kind of the original wording of clause, but because there was some confusion about it, we have come back with a second part of this amendment, which hopefully clarifies this and spells it out perhaps in better English or more explicitly. The amendment we're proposing reads:

For greater certainty, the use and further disclosure, other than under this Act, of information that is disclosed under subsection 5(1) is neither authorized nor prohibited by this Act, but must be done in accordance with the law, including any legal requirements, restrictions and prohibitions.

We have just tightened up that paragraph hopefully to ease some of the concerns that were out there. Certainly, the intention of that is still the same. We're not changing the scope or what the act is doing in this particular clause, but we're trying to put it in perhaps better English, so that more people can fully understand what we're saying in this particular clause.

Those are the two amendments that the government has put forward.

[The Chair, Conservative, Daryl Kramp]

Mr. Garrison.

[Randall Garrison, NDP, Esquimalt—Juan de Fuca, BC]

Thank you very much, Mr. Chair. We certainly welcome the removal of the word “lawful” as a qualifier on things that would be covered in this bill.

I have a question for the officials, perhaps from Justice Canada. There are two things in the government amendment. It's unfortunate that they have been combined, but there are two different things in this amendment. One is the removal of the word “lawful”, and the other deals with the sharing of information, but both of those are what are called “for greater certainty” clauses.

I'm looking for assistance from one of the officials to explain to us the legal impact of a “for greater certainty clause”, because it seems to me that it's simply a modifier or a general instruction about the interpretation of a clause, but that the main clause stands.

The reason I raise this question is that we've talked about that definition by which information will be shared as being too broad, and that it becomes, in Bill C-51, the basis of the law.

I'd like to know how much the “for greater certainty” restricts that general clause, and since that's used in both of these, could someone give us some assistance on that?

[The Chair, Conservative, Daryl Kramp]

Ms. Beecher.

[Sophie Beecher]

When a provision begins with “for greater certainty”, it announces that the intention is not to modify anything in law or indicates that the act does not affect or does not.... It essentially states what is already the case. Usually these clauses are included for transparency and clarity so that someone reading the act doesn't misinterpret it. In this case, clause 6 is about use of information received by virtue of the act or further disclosure. We are saying here that for greater certainty this act does not address use or further disclosure of information. That use or further disclosure may be undertaken by the recipients, as they currently do, when they receive information in accordance with the law, meaning either their departmental mandates or limitations or prohibitions in the law, including under the Privacy Act, and in accordance with the charter.