Public Safety Committee on April 24th, 2018

[The Chair, Liberal, John McKay]

It's a comment not a question.

[Sven Spengemann, Liberal, Mississauga—Lakeshore, ON]

It's a rhetorical question, but if anybody else is interested in taking this on, the fundamental question is this. Is the judiciary the right institution to make those decisions?

[The Chair, Liberal, John McKay]

You're asking for their opinion and that's beyond their scope.

[Sven Spengemann, Liberal, Mississauga—Lakeshore, ON]

Fair enough.

[Glen Motz, Conservative, Medicine Hat—Cardston—Warner, AB]

I would add to my friend's comment that maybe Parliament is the proper place to have the debate on this issue, as opposed to being tied up in a regulation that somebody else makes that's not debatable.

[The Chair, Liberal, John McKay]

I think this has been a thorough canvas....

I guess it hasn't been thorough enough.

Mr. Dubé.

[Matthew Dubé, NDP, Beloeil—Chambly, QC]

If we're envisioning it being taken on at the judiciary, then that's a legal question, not a regulatory one. That is an acknowledgement that it would require legislative changes.

Look at the situation with cellphones at the border. The access to information and ethics committee studied that issue. One consensus there is the notion of the suitcase. You have a reasonable expectation of giving up your privacy at the border, but that has changed in the advent of cellphones. As Ms. May and I pointed out yesterday in debating the definition of “publicly available information”, right now the courts are trying to sort out that notion. There have been several cases of people being asked to unlock their cellphones at the border.

I think this is relevant to the issue before us, this amendment, because at the end of the day, the solution to that issue is legislation, just as it would be with this bill. I don't want the minister deciding through regulation whether or not CBSA...and the same issue on the other side. I don't want the president—he has anyway but that's another discussion—signing executive orders that allow the searching of cellphones. That kind of purview should be in the hands of lawmakers and parliamentarians, and not decided through regulation.

I would say to Mr. Spengemann's point that, despite the expertise around ministers, it has been known to happen in the history of this country and other places that they don't always listen to those people around them. At the end of the day, they have political considerations to account for as well.

This is too much of a slippery slope and I think there are a multitude of examples that illustrate that.

[Luc Berthold, Conservative, Mégantic—L'Érable, QC]

Thank you very much, Mr. Chair. I have a quick comment.

Isn't this why we are here, in committee? We study bills precisely to make good decisions and not to let another institution make them in our place. I'm a little surprised that we are proposing to allow judges to rule on this issue. It's up to us, parliamentarians, to make the right decisions right away and to ensure that we maintain our legislative autonomy.

If I've understood correctly, hypothetically, we would refer this situation to a judge who would eventually ask Parliament to rule on a piece of legislation. Obviously, this argument doesn't hold water.

[Blaine Calkins, Conservative, Red Deer—Lacombe, AB]

The proposed paragraph that's being proposed to be removed says, “amending the definition of any term defined” in the three proposed sections of the legislation where a definition actually occurs. It doesn't put any limitations on amending a definition so it stays within the scope or diminishes the scope. It could imply amending a definition to broaden the scope.

I'm concerned that this flies in the face of the democratic process, in which a regulation seems to now confer more power than the law that gives birth to that regulation. I'm not sure that this proposed paragraph, without passing the amendment, is in good practice, or technically in order.

I don't know how we would get that legal clarification. I don't propose that we ask the witnesses that are here any more. Perhaps the committee does not have the resources it needs to become fully versed on the implications of not passing this amendment.

[The Chair, Liberal, John McKay]

The proposed paragraph is in order. Part of it has to do with the fact that this is referral after first reading. Therefore, there's no defining principle. In that respect, it's in order. As to whether this is judicially in order is another issue altogether and beyond my competence.

[Glen Motz, Conservative, Medicine Hat—Cardston—Warner, AB]

As I understand it, it is the courts' role to interpret or enforce the laws. It's Parliament's role to enact legislation. The minister is a parliamentarian. He's not a separate entity. That would be a statement I would make.

[The Chair, Liberal, John McKay]

Is there any further debate?

I remind colleagues that if NDP-44 is adopted, CPC-22 cannot be moved, and the corollary is that if NDP-44 is defeated so is CPC-22.

We'll have a recorded vote.

(Amendment negatived: nays 5; yeas 4)

(Clause 76 as amended agreed to on division)

There are no amendments to clauses 77 to 81. May I group them for the purposes of voting?

[Some hon. members]

Agreed.

[The Chair, Liberal, John McKay]

(Clauses 77 to 81 inclusive agreed to on division)

(On clause 82)

We're now on clause 82. We now move to LIB-35.

Mr. Spengemann.

[Sven Spengemann, Liberal, Mississauga—Lakeshore, ON]

Mr. Chair, thank you very much.

I may be proven otherwise, but this is probably the least controversial and least partisan amendment of the entire exercise.

Proposed subsection 82(1) is a provision that states that a reference to the former department, CSE, i.e., CSE under the National Defence Act, is deemed to be a reference to the new department, i.e. CSE under the CSE act, under all the following circumstances and it sets out some half-dozen or so incidents. This list is under-inclusive, because it could exclude, for example, orders in council and other delegated legislation.

LIB-35 adds a provision that, unless the context requires otherwise, every reference to the former department is deemed to be a reference to the new department.

Thank you, Mr. Chair.

[The Chair, Liberal, John McKay]

Is there any debate, intensive or otherwise, on this?

(Amendment agreed to [See Mintues of Proceedings])

(Clause 82 as amended agreed to on division.

[The Chair, Liberal, John McKay]

We have no amendments to clauses 83 to 88. May I group them for the purposes of voting?

Seeing no objection to that, I'm going to proceed.

(Clauses 83 to 88 inclusive agreed to on division)

Clause 89 was dealt with during amendment NDP-4 so that's no longer in play. Therefore, there are no amendments to clauses 89, 90, and 91.

(Clauses 89 to 91 inclusive agreed to on division)

(On clause 92)

On clause 92, the first amendment is LIB-36.

[Michel Picard, Liberal, Montarville, QC]

Thank you, Mr. Chair.

This amendment amends the preamble. Essentially, it emphasizes respect for rights and freedoms and includes a commitment by Canada to encourage the international community to do the same. This is similar to LIB-16 in particular, which says that Canada must be a leader in countering torture. This also shows that Canada also wants to be a leader on rights and freedoms and wants to influence or have a positive impact on other countries around the world.

[The Chair, Liberal, John McKay]

Thank you, Mr. Picard.

(Amendment agreed to [See Minutes of Proceedings])

(Clause 92 as amended agreed to)

(Clauses 93 and 94 agreed to on division)

The next amendment is NDP-45.

We will hear from you, Mr. Dubé, but before you commence, it's quarter to 12. We have an hour and 15 minutes left. I'm in the hands of the committee as to whether we want to suspend for any further or just keep going.

We should just keep on going? Mr. Calkins is ready to rock and roll here.

[Glen Motz, Conservative, Medicine Hat—Cardston—Warner, AB]

We're on our descent.

[The Chair, Liberal, John McKay]

I see. We're all hoping to land Bill C-59.

Mr. Dubé, go ahead, please.

[Matthew Dubé, NDP, Beloeil—Chambly, QC]

Thank you, Chair.

This amendment seeks to drop the word “lawful” from what's called “lawful advocacy” in the CSIS Act, the reason being that when there are “on the fly” determinations being made, we feel that “advocacy” protects more rights, as opposed to having CSIS make the determination of whether the advocacy is lawful.

Moreover, it also protects groups that may have certain individuals associating themselves with said groups and comporting themselves in an unlawful way. It would not have the group be targeted that way for what is lawful advocacy with perhaps individuals committing unlawful behaviour.

By removing the word “lawful” and keeping it as “advocacy”, there is a more robust rights protection. This was a recommendation by the Canadian Civil Liberties Association.

[The Chair, Liberal, John McKay]

I can only imagine that Ms. May might have an opinion about that, but we're not going to ask her.

Is there any debate?

[Pam Damoff, Liberal, Oakville North—Burlington, ON]

I'm just wondering if the officials could weigh in on the impact of removing “lawful”, and, I believe, adding the term “artistic expression”. Is that right?

[Cherie Henderson]

It is. It's adding the term “artistic expression” and also “by an individual or a group whose intent is to threaten the security”.

The definition of threats to the security of Canada has withstood a long history with the service. It has been in our act since its inception, and it has been well recognized and it's well understood. One of our concerns would be that if we did remove the word “lawful”, it could create a bit of ambiguity.

Also, as we know, intent is a concept in criminal law for prosecution. The purpose of CSIS is to investigate a suspected threat to determine the intent. If we had to know what the intent was before we started the investigation, we might be a bit too late in getting where we need to be to protect the national security interests of Canada.

Also, all of our activities are subject to review to ensure that we are in compliance with everything that we engage on, so it ensures that we engage appropriately in all of our investigative activities and that we've reached the appropriate threshold to suspect that there is an activity that could be detrimental to national security before we begin.