Public Safety Committee on March 31st, 2015

[Wayne Easter, Liberal, Malpeque, PE]

I'll turn to the officials again on this one. We had this under Bill C-44, I believe.

The part in the bill that Ms. May would take out with her amendment states:

(4) Without regard to any other law, including that of any foreign state

That was in a previous bill. It's now in this one. It is something that we do not see, that I'm aware of, with any of our Five Eyes partners. It certainly is giving the impression to those who we consider allies that we have no regard for their law. How do you explain that, and why is that necessary there?

That's for whoever wants to answer. Don't fight over it.

[Michael Duffy]

The provision, Mr. Chair, is in fact the same wording that appears in Bill C-44, and so it's tracked in this particular piece of legislation.

As the member indicated, if the threat diminishment power is to be of use when it is done outside Canada, it would really negate the power if that were subject to the laws of the foreign jurisdiction allowing the service to do what it is they propose to do. So the issue wouldn't only arise in relation to Five Eyes partners. It could arise in relation to other jurisdictions that may actually have a hand in the very activity that the service is seeking to diminish as a threat to the security of Canada, and that is seen as an illogical result that you would have to basically get the consent or do something in accordance with the laws of that jurisdiction.

Whether or not other countries have that type of provision in their legislation, that really reflects the nature of the legislation they have. It is a rather—if I can describe it this way—indelicate thing to say in legislation, and that may be precisely why it doesn't appear in legislation. States do not like to say that on the face of a statute, but because the issue was raised in other litigation involving Federal Court warrants, and it was addressed in Bill C-44, it would have been an anomaly if, in this particular power to take threat diminishment measures, it was restricted to doing what was permissible according to foreign law, quite apart from the fact that, as was indicated, it would be extremely difficult for CSIS as well as the Federal Court judge to know fully what the foreign law on a point was.

[Wayne Easter, Liberal, Malpeque, PE]

Thank you, Mr. Duffy.

[The Chair, Conservative, Daryl Kramp]

Thank you very much.

(Amendment negatived)

Now, Green Party number 46.

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

Thank you, Mr. Chair.

This is an attempt, as suggested by Professors Forcese and Roach, that following Criminal Code subsection 25.4 for police and those who are affected by CSIS's activities that are now kinetic and under warrant, that within a year of taking that action, the person who's impacted should be notified that these steps were taken. They're not party to any of the hearings. They don't know this may have affected their lives. Obviously we need some balance in notifying people after the fact, and that's why my amendment is rather long.

I won't be able to read it into the record, but it is important to note that while this amendment would require the director notify someone no later than one year after taking such a measure, the minister would be allowed to notify the director that in this case there's an ongoing investigation or it could hinder something, or it's a security issue, and to not tell the person. But if the person has been exonerated, nothing was found, but their charter rights were violated under a warrant under subsection 21(1), let them know about it after the fact.

[The Chair, Conservative, Daryl Kramp]

Thank you very much, Ms. May.

Yes, Mr. Falk.

[Ted Falk, Conservative, Provencher, MB]

The amendment would require CSIS to inform individuals affected by measures taken under threat reduction warrants of the measures taken against them within a year. The amendment would also permit the minister to delay notification for a range of security reasons.

However, I don't think the amendment is consistent with the intent of this legislation. The bill authorizes CSIS to take covert measures to disrupt threats to the security of Canada. Notification of persons affected would defeat the purpose of this measure. It would also damage long-term investigations and could risk revealing sensitive tradecraft.

So I would not support it.

[The Chair, Conservative, Daryl Kramp]

Thank you.

(Amendment negatived [See Minutes of Proceedings])

We will now go to Green Party amendment 47.

Ms. May.

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

Thank you, Mr. Chair.

Now, we've heard a lot around the table tonight of the excellent testimony from former Supreme Court Justice John Major who, of course, did yeoman's service on the Air India inquiry. In his evidence, although by video, I'm sure all of us remember with crystal clarity how often he said the bill would be deficient if a national security adviser were not created.

Now, I'm aware that in my position I can't create, by an amendment, a national security adviser. But what this amendment does is say that within a year of the first measure taken by CSIS, where it ceases to be what it was always intended to be—an intelligence-gathering operation only—and takes one of its kinetic measures, that at the one-year mark from that moment, the RCMP, CSIS, CSEC, the Canada Border Services Agency, and any other security agency would gather to discuss expansion of the role of the national security adviser to the creation of this role, as recommended by the Air India inquiry.

In other words, it sets up a moment where the key decision-makers decide to put in place this pinnacle of observation of all security activities.

Thank you.

[The Chair, Conservative, Daryl Kramp]

Okay. Is there any further comment?

Yes, go ahead Ms. James.

[Roxanne James, Conservative, Scarborough Centre, ON]

Thank you, Mr. Chair.

I want to confirm that we are in fact on Green Party amendment 47.

[The Chair, Conservative, Daryl Kramp]

Yes.

[Roxanne James, Conservative, Scarborough Centre, ON]

With regard to this, first, I don't think it's necessary. We already have in Canada a system of robust coordination and oversight over our law enforcement and security agencies.

Although it's not deemed to be out of scope with regard to this bill, I think it's certainly out of scope with what the intentions of Bill C-51 were in order to fill the existing gaps in legislation clearly identified by our security agencies. Therefore, I'm not going to be supporting this amendment.

[The Chair, Conservative, Daryl Kramp]

Thank you.

Mr. Easter, go ahead.

[Wayne Easter, Liberal, Malpeque, PE]

Yes, Mr. Chair, Justice Major certainly did make that point and made it quite well during committee hearings.

I would have to take issue with what the parliamentary secretary said in that we have robust oversight: we have anything but. By the conclusion of this bill we would have anything but robust oversight over all our national security agencies, and witnesses after witness has said they need robust oversight.

I know you've ruled that out of order, Mr. Chair. I don't know whether you'll allow it, but I do have the Conservative Party of Canada 2006 election platform here where it actually committed to—

[The Chair, Conservative, Daryl Kramp]

Mr. Easter, Mr. Easter.

[Wayne Easter, Liberal, Malpeque, PE]

Are you not going to allow that?

[The Chair, Conservative, Daryl Kramp]

No.

[Wayne Easter, Liberal, Malpeque, PE]

It's a commitment they didn't keep—

[The Chair, Conservative, Daryl Kramp]

Mr. Easter.

[Wayne Easter, Liberal, Malpeque, PE]

It's right here. I carry it around.

[The Chair, Conservative, Daryl Kramp]

Mr. Easter, do you have further comment on the...?

[Wayne Easter, Liberal, Malpeque, PE]

I'll just say that this amendment does go a step to at least giving us some ability to have oversight that could make a difference in the interest of Canadians; on the one hand, to ensure that the law is utilized fully, and on the other, to ensure that there's not overreach in civil liberties.

I will certainly be supporting this amendment.

[The Chair, Conservative, Daryl Kramp]

Thank you very kindly.

(Amendment negatived [See Minutes of Proceedings])

(Clause 44 agreed to)

Colleagues, we can group clauses 45 to 48 if we're comfortable with that.

(Clauses 45 to 48 inclusive agreed to)

Now, colleagues, we have a proposed new clause, 48.1, and this is amendment 48 from the Green Party.

You have the floor, Ms. May.

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

Thank you, Mr. Chair.

This would provide amendments on page 54 of the bill, adding in at an appropriate point in the flow of procedures that, when warrants are being issued, there would be an opportunity for the creation of special advocates. This would, of course, allow for a fuller examination of the issues and also the portion of the amendment that deals with first nations—and it's very modest language, at the end of proposed new subsection 27.2 (1)—

In appointing a person from the list, the judge must take into consideration whether the person, or the person included in a class of persons, to whom the warrant is proposed to be directed is a First Nation member.

—to then consider a first nations advocate.

I was very struck by the testimony of Professor Palmater who felt there would be occasions when the special status in treaty rights would require this. In the time I seem to be allowed here, I can't adequately describe the amendment, but it is to create special advocates.