Public Safety Committee on Oct. 17th, 2016

[Prof. Reg Whitaker]

I'm not saying that they haven't, and I'm not privy to all the details of the various cases that would have arisen. My concern is not that CSIS, as they develop sources and penetrate different terrorist groups, may from time to time seize the opportunity to disrupt, which is in the public interest so long as it's not law-breaking or violating charter rights.

There's no problem with that except that we should always be keeping in mind that the goal with terrorist cases is to bring criminal convictions, and that real problems can come up with CSIS secret intelligence and CSIS activities in disruption, which may impede the effectiveness of achieving that.

[Marco Mendicino, Liberal, Eglinton—Lawrence, ON]

Thank you. I want to give Ms. Vonn an opportunity to respond.

[Micheal Vonn]

As I was alluding to, we have a situation with the Air India commission's recommendations that there should be a requirement that CSIS report the information it has. Bill C-51 ignores that recommendation, gives sweeping generalized powers of data collection, and then creates for CSIS a separate arm of disruption powers outside the regular law, and outside of any need to do anything other than vaguely co-operate with the RCMP.

[Marco Mendicino, Liberal, Eglinton—Lawrence, ON]

Can I stop you there for a moment? Do you accept that those new measures were not created in a complete factual vacuum? Since the days of the McDonald commission there have been evolutions in the threats to national security, and part of that evolution has driven a revisiting of the appropriate mandate for CSIS to undertake measures within the law as it exists, but also striking the balance between protection and the safeguarding of individual liberties?

[Micheal Vonn]

Why are they autonomists? Why are they working outside the regular law instead of putting them under the umbrella of working co-operatively with the RCMP and potentially having those powers? The point is that if we're going to talk about effectiveness how do we put these things together? Instead it was decided to make them separate and to exacerbate the turf war that Professor Whitaker was talking about. It is a mystery to me why that was decided.

[Marco Mendicino, Liberal, Eglinton—Lawrence, ON]

Since the creation and the passing of Bill C-51 agreements, memoranda, have been exchanged between CSIS and the RCMP—two mandates, one vision 2.0—to enhance co-operation, and we've heard from experts who say that this co-operation is robust and it's healthy. We've also heard from some of your colleagues in the profession as well as in academia who say, as Mr. Whitaker did, that they accept that reduction measures are required in the current national security landscape.

[Micheal Vonn]

I'm not in a position to say that they aren't. Why are we operating in the realm of secrecy here when we could be working with the police inside the regular law instead of creating this extraordinary, and as far as I know, unprecedented-in-the-world process for warrants for illegal activity? It simply is not the model used in Britain as I understand it, although Britain is cited as the model we are emulating.

[Marco Mendicino, Liberal, Eglinton—Lawrence, ON]

Mr. Chair, how much time do I have?

[The Chair, Liberal, Rob Oliphant]

You have half a minute. I'll be a little tighter on this round than I was on the last round.

[Marco Mendicino, Liberal, Eglinton—Lawrence, ON]

Thank you, Mr. Chair, I appreciate your indulgence.

Do you have any comments with regard to the warrant provisions in particular? How those provisions potentially could be enhanced or improved?

[Micheal Vonn]

It's a complete legal mystery to me how those are intended to function. The government says it will operate like section 1 of the charter where in an ex parte application CSIS will show up and make a claim for why somebody's charter rights should be violated and the law should be broken. No one is there to make the counter-argument or to speak to the activity in any way. It is not a section 1 analysis.

[The Chair, Liberal, Rob Oliphant]

Thank you.

Mr. Miller.

[Larry Miller, Conservative, Bruce—Grey—Owen Sound, ON]

Thank you, Mr. Chair.

Thank you, Ms. Vonn and Mr. Whitaker, for being here.

It's pretty obvious, the disdain and dislike that both of you have for Bill C-51, but I stand by the comment that no legislation is perfect but no legislation is all bad, either. Even Bill C-22 was mentioned by a previous witness here, who made some criticism of it. That's fair enough.

What I'm trying to get my head around is that a number of so-called experts in the law enforcement field have made comments that if some parts of Bill C-51 had been in place prior to October 22, two years ago, Private Vincent and Corporal Cirillo might still be alive. Also, some of those same ones have stated that the would-be terrorist in Strathroy just a few months ago wouldn't have ended up being apprehended and stopped.

I see, Mr. Whitaker, that you shrugged your shoulders on that, as if it doesn't matter. If that's not the case, that's fine, but what I need to know is in your worlds, both of you, where and when should it not be that law enforcement powers have the right to infringe on an individual's rights if that individual has a distinct, deliberate plan to basically commit domestic terrorism or otherwise?

[Prof. Reg Whitaker]

Perhaps I can just say a couple of things. You pointed to a problem. There is a problem, clearly, with peace bonds. I think that's clear, especially given the recent case in Ontario—which was, frankly, a bit ridiculous—that somebody had been put under a peace bond and yet had clearly broken the terms of it and all the rest of it, and then was only apprehended just in the nick of time from carrying out some serious damage.

It's not to say there aren't a whole lot of things that can't be looked at. Indeed, there may be individual rights that are...and I certainly wouldn't be suggesting that.

Again, to come back, I raised the question of the preventive arrest or preventive detention and investigative hearing powers that came up in 2001, which were lapsed for a while and then were brought back. They've been on the books, off and on, since 2001, yet they've never been used.

[Larry Miller, Conservative, Bruce—Grey—Owen Sound, ON]

Mr. Whitaker, is it the fault of legislators that they haven't been used?

[Prof. Reg Whitaker]

No.

[Larry Miller, Conservative, Bruce—Grey—Owen Sound, ON]

Okay. What is the main reason?

[Prof. Reg Whitaker]

Personally, I don't have a problem. The BCCLA may not agree with this, but I don't have a problem, in Bill C-51, where they actually expanded that somewhat, and the time, and also lowered the bar a bit. I don't have a particular problem with that because it in fact involves habeas corpus and legal representation at all stages, and so on, for the individuals. But I'm still puzzled by why it's never been used.

[Larry Miller, Conservative, Bruce—Grey—Owen Sound, ON]

Okay, fair enough.

I'm going to run out of time, so I'd like Ms. Vonn to comment here.

[Micheal Vonn]

I appreciate the opportunity to comment.

If, as you've perceived, there's a disdain for Bill C-51 from our association, I would not want that in any way to translate to there being a disdain for national security. Indeed, we consider national security very seriously.

[Larry Miller, Conservative, Bruce—Grey—Owen Sound, ON]

I wasn't implying that, Ms. Vonn. I know you do.

[Micheal Vonn]

The question is, what is the exact problems and what are the appropriate tools to address them? What I had hoped to do, in concentrating in such a focused manner on the information sharing act, was to point out what CSIS had identified as the problem, what they thought was the correct catchment for addressing it, and how Bill C-51 is none of those things. Again, to be very specific—and it must be grounded in specificity—it's to say, what exactly was the information that was unable to be appropriately shared or acquired, and what would be the mechanism of achieving it, as opposed to allowing an act that simply allows for wholesale importing of whole bulk datasets of personal information that are not to any benefit in the national security realm? That's the distinction I'm looking at.

[Larry Miller, Conservative, Bruce—Grey—Owen Sound, ON]

I agree with you on that. I certainly do not condone law agencies or any organization not following the law or breaking the law in any way.

Having said that, a lot of Canadians have said to me and I think a lot would think in this day and age of the different world that we live in since 9/11, and the last five to 10 years has really sped up the process, if I could use that term, in that I think people in general today.... For example, I'm a very private person. I don't want my personal rights or privacy invaded in any form. However, in this different world we live in, if I'm not doing anything wrong, I don't have anything to worry about.

That's why I ask the question about under what terms or situations law agencies should have the power to step in and do what they did to stop Mr. Driver in Strathroy and other would-be terrorists, whether they are infringing on their rights or not.

[Micheal Vonn]

If I could pick up on the idea that if you're not doing anything wrong you have nothing to worry about, in fact, in the national security context, that it is absolutely untrue. The purposes of acquiring the bulk datasets that the U.K. and Canada seem very keen on acquiring are for data analytics and profiling. Profiling is exactly the sort of scenario in which you find yourself enmeshed in a national security net and you have done nothing wrong. You simply meet the profile.

We need to appropriately understand what is happening with those datasets. We have had no means of doing that so we can constrain the cases in which we are impinging on the security of individuals in the name of national security. We have mislearned all of the lessons of Arar and Iacobucci and every other inquiry that has looked at that.

[The Chair, Liberal, Rob Oliphant]

I need to end there.

Go ahead, Mr. Dubé.