Public Safety Committee on March 31st, 2015

[Ted Falk, Conservative, Provencher, MB]

Thank you, Mr. Chair.

I thought that maybe Ms. May would withdraw her amendment after hearing such an articulate answer from Mr. Duffy.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

He confirmed what we believed.

[Ted Falk, Conservative, Provencher, MB]

I would like to reinforce the evidence the official gave. In order for CSIS to conduct an activity that may be construed as a violation of the Charter of Rights and Freedoms, it would require, first, ministerial approval, and then judicial approval, and that judge would have to weigh whether the activity was reasonable and proportionate to the limits provided for individual rights and freedoms within our Charter of Rights and Freedoms.

I think the amendment is redundant and not necessary.

[The Chair, Conservative, Daryl Kramp]

Thank you.

Ms. Ablonczy.

[Diane Ablonczy, Conservative, Calgary Nose Hill, AB]

Mr. Chair, I think it's important to point out that the charter is not breached. The charter recognizes that there are times when courts need to make decisions about whether to enforce certain rights given the larger interests of society as a whole. That's exactly the kind of determination that will have to be made under this legislation.

The charter envisions and allows that kind of a distinction to be made by our courts. When that distinction is made, when the courts decide, it's under the charter. It is allowed by the charter. It's authorized by the charter. It's recognized by the charter, and it is charter compliant. There is no breaching of the charter. The charter is simply interpreted in such a way that CSIS is allowed by the courts to take measures or not to take measures that they propose. There should never be any talk about breaking the charter, because it's never breached.

[The Chair, Conservative, Daryl Kramp]

Thank you very much.

Is there any further discussion?

(Amendment negatived [See Minutes of Proceedings])

We're on amendment PV-41.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

I have good news, then, for the Conservative members opposite, because if that's the case and the charter is never breached, then you don't need a warrant to allow its breach, and my next amendment should meet with your approval.

Just delete, after “the Charter of Rights and Freedoms”, so that the phrase would now read:

The Service shall not take measures to reduce a threat to the security of Canada if those measures will contravene a right or freedom guaranteed by the Canadian Charter of Rights and Freedoms.

Since we have the word of the various members of this committee representing the Conservative government party that there's no intention to breach the charter through the warrant, then let's not leave the door open to constitutional breach warrants.

[The Chair, Conservative, Daryl Kramp]

Thank you.

Is there any discussion?

Mr. Payne.

[LaVar Payne, Conservative, Medicine Hat, AB]

Thank you, Chair.

I want to thank Mr. Duffy for his testimony. I'm not sure I need to say anything regarding this, other than that I don't support this amendment.

[The Chair, Conservative, Daryl Kramp]

Thank you.

Mr. Easter.

[Wayne Easter, Liberal, Malpeque, PE]

I have a question to Mr. Duffy or the other two witnesses on this.

What are the implications of taking out “or will be contrary to other Canadian law, unless the Service is authorized to take them by a warrant issued under section 21.1”? What are the implications of removing that section vis-à-vis what is felt is needed under this bill in order for CSIS to do the activities we're trying to allow it to do?

[John Davies]

I think it would have a massive negative operational impact to only allow the Service to undertake activities that are illegal. Without any recognition of the impact on the Charter and so on, it's not clear that it would be worth moving forward with the bill.

[Wayne Easter, Liberal, Malpeque, PE]

I appreciate that.

Thank you, Mr. Chair.

[The Chair, Conservative, Daryl Kramp]

We are now voting on amendment PV-41.

(Amendment negatived [See Minutes of Proceedings]))

Now we will go to amendment G-3.

Ms. James.

[Roxanne James, Conservative, Scarborough Centre, ON]

We put forward this amendment because throughout the testimony, and even sometimes in the media, I heard from some of my colleagues that somehow CSIS was being turned into a secret police and that we're moving to a police state and everything else. Of course, we've heard this before. We've heard similar comments from organizations going way back to 1983. But I just want to be clear that Bill C-51 does not give CSIS police powers. There's no ability to arrest. Under Bill C-51, CSIS will remain a civilian security intelligence agency dedicated to investigating and addressing threats to the security of Canada, including the amendments in this bill. Nonetheless, we have added this proposed subsection:

(4) For greater certainty, nothing in subsection (1) confers on the Service any law enforcement power.

We do so in order to clearly set aside any of the rhetoric we have heard about secret police and so forth. That is completely ridiculous and complete and utter nonsense, and that's why we've added this amendment to the bill.

[The Chair, Conservative, Daryl Kramp]

Is there a question on that?

Yes, Mr. Garrison.

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

Thank you very much, Mr. Chair.

Some witnesses may have said the things that the parliamentary secretary.... Most did not say those things, and most did not imply that the bill granted law enforcement powers to CSIS. In fact, the concerns are based on the positive statement in the bill that says CSIS can do anything, with only three exceptions.

So I am happy to see this amendment, which will certainly clarify the point of law enforcement powers. But it does skip over the main concern, which is about doing anything other than murder people, violate their sexual integrity, or interfere with the courts. That's a very broad grant of power. What's missing there, which was of concern to people, is the ability to detain persons or transfer persons to the custody of another.

I am moving a subamendment to add, at the end of the government's amendment, following the words “law enforcement power”, the following:

or power to detain any person or transfer any person to another state.

I have copies of that, which can be distributed in both official languages.

So if the government is serious in bringing forth this amendment and trying to clarify those extreme comments, this will very clearly state that detention, which is not arrest—it's a different thing in law—would not be a power of CSIS, and that whether inside or outside Canada, CSIS would have no power to detain someone, and after that detention, to transfer them to another person or state.

If these are indeed ridiculous claims and extreme claims, we can deal with them right now by adopting the subamendment, which would make clear that CSIS would not have those powers.

[The Chair, Conservative, Daryl Kramp]

We'll wait until the distribution is complete, and then we have Mr. Easter and then Mr. Norlock.

[Wayne Easter, Liberal, Malpeque, PE]

My question wasn't on the subamendment, Mr. Chair, so I'll pass.

[The Chair, Conservative, Daryl Kramp]

Thank you.

Mr. Norlock, are you on the subamendment?

[Rick Norlock, Conservative, Northumberland—Quinte West, ON]

Yes, it's on the subamendment, because there are underlying themes here.

I'm going to ask the officials if there's any jurisprudence with regard to detention, the constitutionality...or that detention is consistent with bodily harm or emotional or psychological harm. Is there jurisprudence that states that detention equates to those two things?

[Michael Duffy]

The concept of detention means different things in different contexts. In some cases it may give rise to treatment that would amount to bodily harm, but not necessarily. People are detained at the border for inspection purposes, but they don't necessarily find themselves subjected to bodily harm or treatment that is referred to in the act.

If I might, I would just indicate that the reference to CSIS not having law enforcement powers, as the member indicated, was intended to address the concern that certain powers associated with a law enforcement agency were not being given to CSIS. The important point that was reflected in the drafting is that CSIS as an agency cannot take it upon itself to exercise those powers. It has no power and never has had a power to detain or arrest or imprison. Nothing in this bill changes that.

When the concept of detention is used, for example, again, to repeat myself, the service has never had a power to detain. That is a peace or police officer power that is conferred either by common law or by statute. It doesn't find itself in CSIS.

The point is that in the course of CSIS operations they may, in fact, identify opportunities to take measures to interfere with a person's movement. What the act provides is that if CSIS wishes to do that, and if to do that would contravene the law, they have to obtain judicial authorization. The important point in the legislation that we tried to reflect in the drafting was that it was never up to CSIS to make that decision on its own; it would always fall to a judge to make that determination.

[Rick Norlock, Conservative, Northumberland—Quinte West, ON]

Thank you.

[The Chair, Conservative, Daryl Kramp]

Mr. Garrison.

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

I'd like to thank Mr. Duffy for that explanation, but I would submit that by the very same logic, then, there is no harm done in this subamendment saying that there is no power of detention or rendition involved in this, and that this will simply clarify it. It suits the original intention of the government's amendment to say that there are no law enforcement powers. It should be quite a simple matter, then, to add the subamendment.