Evidence of meeting #33 for Public Safety and National Security in the 42nd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was parliamentarians.
NDP
Matthew Dubé NDP Beloeil—Chambly, QC
I have one quick comment as a sort of preview for that study.
Going back to the discussion about oversight versus review, we had a witness mention that with SIRC having their report tabled six months after an event that could have happened up to a year before, you can end up going up to 18 months after the fact. At some point it becomes ineffective when the wait has become too long. That's taking away from oversight.
Is that something you would agree with?
Ron Atkey
That's a good point. There is power under the CSIS Act for SIRC to put in a special report and not to wait the 18 months. It does require the Minister of Public Safety to agree to table it and make it public. There may be a tussle as to what's redacted and what's not redacted, but there is power within SIRC to act expeditiously—
NDP
Matthew Dubé NDP Beloeil—Chambly, QC
In order to be able to do that, it would require more resources—
Ron Atkey
—if it's an urgent matter.
It would be a brave public safety minister who would sit on something that had been flagged by SIRC as being extraordinarily important to the security of Canada or to the human rights or individual rights of Canadian citizens.
October 19th, 2016 / 2:40 p.m.
Liberal
The Chair Liberal Rob Oliphant
Thank you to you both.
It's always a good sign of a panel when the questions keep flowing one to another and the witnesses are answering. I like this.
Ms. Damoff.
Liberal
Pam Damoff Liberal Oakville North—Burlington, ON
Thank you.
Thank you to all of you for being here today. I'm going to take it in a slightly different direction.
Political protest and expanding the definition of terrorism to include interference with critical infrastructure is something that has come up during our meetings in Vancouver and Calgary. I also had an email from a very politically active grandmother in my riding about it. That email said that it's easy to envision a government saying a protest is not an act of defence but rather an attempt to intimidate the public or a segment of the public.
I'm wondering if perhaps both of you could comment on that. How do you see that the legislation needs to be amended to allow protest, but not acts of terrorism on the infrastructure?
Ron Atkey
Well, the legislation was amended by the last Parliament when the word “lawful” was removed, so the net of protest is broader.
There's no easy answer to this. Canadians have to get used to the fact that we do allow protest, advocacy, dissent, and artistic expression in our society, and it's embedded in legislation as long it's not done in concert with violence to people or property. The exception comes in when there is critical infrastructure that's about to be harmed. That's a fine distinction that's going to be drawn by a judge in individual cases. Protest is not unlimited, but it is allowed as a matter of legal rights.
I can give you an example going back to the G20 meetings in Toronto. The government of the day said they wanted to have these meetings in downtown Toronto but they didn't want any protests, even though every G10 or G20 meeting in previous years had always had protests. That's part of the culture, if you will, and I suggest to you that it's part of the culture in Canada, so there's no easy answer.
Executive Director, Canadian Journalists for Free Expression
To use the G20 as an example, that was before the ATA came to power, and you saw how incredibly repressive of protest the government was at that time, arresting protesters who had peacefully gathered in Queen's Park even though they were nowhere near the area where there was conflict in downtown Toronto.
It was passed in secret or very quickly and quietly, and allowed police to demand people's identification within 10 metres of the fence around where the G20 was happening. They interpreted that to mean they could ask anyone anywhere in the city including journalists, protesters, whoever, which was a great example of how these laws can be taken to the next extreme by law enforcement.
In terms of protest, I think there is a fairly simple answer to this. I'm not a legal scholar. Our organization's opinion on it is that there's no need for a terrorism provision around protest and threats to infrastructure. That can be dealt with in the Criminal Code under the previous laws. That handled these things fine. If someone bombs a pipeline, then you can prosecute them as a criminal. If someone through some protest actions shuts down pipelines, as what happened last week, then that can be dealt with as well without those people being charged with terrorism offences, which they absolutely could be.
Certainly what the protesters did last week in shutting down those pipelines by turning off the emergency valve was illegal, and they can be prosecuted under that. But it was also a political act of civil disobedience. It's important that they not be thrown in jail for the rest of their lives because they did so. Under this legislation, they could be charged with a much harsher penalty. It's important that we protect these things by treating these offences as criminal offences as opposed to having a broad, vaguely defined, overarching depth of crime that can be applied however a judge or the government decides to.
Liberal
Pam Damoff Liberal Oakville North—Burlington, ON
You both mentioned the no-fly list for the Secure Air Travel Act.
In testimony in 2015, the B.C. Civil Liberties Association said, “Travelers on such lists are deemed too dangerous to fly yet too harmless to arrest.”
Professor Atkey, you mentioned that we needed to move immediately on that. I'm wondering what amendment we should make in the short and the mid to long term to address the issues with the Secure Air Travel Act?
Ron Atkey
I think the no-fly list is here to stay. It's not something we invented in Canada. It's been around a lot longer in the United States, a lot longer under the United Nations auspices, under committee 1397, which had a no-fly list in 1997. The trick is to make it fair. It's easy to get on the list but maybe it's too hard to get off. It's not fair under the process in which you get on.
Both in terms of appeal rights, when you immediately find you're barred, it should be easier and done in a proper context, in which a person has a right to know if there is evidence against him either to have an in camera proceeding in which the judge would consider the matter or to have a special advocate available in the proceeding so there is some fairness to the decision.
Some people are not going to win if the government agencies have marshalled evidence that suggests they are a threat to the security of Canada, and that's the test used under our law.
Liberal
Executive Director, Canadian Journalists for Free Expression
Absolutely, I was recently on a panel with someone from the National Council of Canadian Muslims, and obviously they have a deep interest in the no-fly list, because of the names of the people who show up on it.
One of the main concerns with it is that people aren't notified when they're put on the no-fly list. They have no idea until they go to the airport and can't get on a plane. Even when they're not allowed on the flight, they're not told they're on the no-fly list. There's no way for them to know. The idea that there could be any means to appeal when you're not even told you're on the list is outrageous.
I think that Professor Atkey and I would both agree that there need to be some huge changes. It makes sense that there will be a no-fly list. It's an international thing. It's not something that Canada can simply stop on its own but there need to be means to appeal; there needs to be notification of people; they need to have the right to contest being put on the list. There have been so many cases where a five-year-old kid is on the list because they have the same name as someone. Someone down the line screwed up.
Maher Arar, as far as we know, is not on the Canadian no-fly list but because the Canadian no-fly list was shared with other countries, he is on their no-fly list, which prevents him from flying anywhere outside the country. This comes back to information sharing. We need to be very careful with what happens to people on the list because if we share that information with other countries, Canadians may be able to get off our list but they won't be able to get off other countries' list, even though they were put on ours mistakenly.
Conservative
John Brassard Conservative Barrie—Innisfil, ON
Thank you, Mr. Chair. I'm here for one day today, so I haven't had the privilege of waking up at 3:30 in the morning Calgary time like the rest of the committee members. I might have a little more energy.
Mr. Atkey, with respect to the green paper, I have sat in on this committee on at least one occasion. We heard from Mr. Wesley Wark about some of the concerns he expressed with respect to the green paper. He said among other things that it seemed to steer public conversation to a precluded decision. He spoke about concerns around accountability, the prevention of radicalization, a threat reduction with no distinction between home and aborad, and transparency on the no-fly list, which I understand the committee has been hearing concerns about right across the country. On the topic of the green paper, I was wondering if you could add some of the concerns you might have with respect to it, or some of the issues you agree with.
Ron Atkey
I might differ slightly from Professor Wark, who's a tough taskmaster. I wouldn't want to be his student. I think it's a good first step. It doesn't cover all the issues. It doesn't include, for example, national security adviser to the Prime Minister, which is an important role. More important than the green paper is the discussion paper, which is a very creative document that deals not only with the substance of the green paper, but also with hypothetical real-life examples that allow persons interested in the subject to go in and see exactly what the policy is and what the structure involves. I give the green paper and its background document an A-, at least as a useful public document for discussion.
Conservative
John Brassard Conservative Barrie—Innisfil, ON
One of the issues you also spoke about was Bill C-22. While I completely understand we're dealing with a national security framework, you did mention Bill C-22 and you talked about some amendments you would like to see to it. What are some of those amendments?
Ron Atkey
They will relate primarily to ministerial veto and powers of the Prime Minister to redact and withhold information. I read the parliamentary debates on Bill C-22 and most of them are within that framework. I don't think we should use the time today when I'm going to do it next week.
Conservative
John Brassard Conservative Barrie—Innisfil, ON
Thank you.
Mr. Henheffer, we heard from Commissioner Paulson of the RCMP, and one of the things he mentioned was that we're in a much different situation with respect to operatives, or the dark room as he referred to it. At one point, he mentioned anecdotally that it would be a quarter of the room and in the rest of the room you can get information. Now it seems like the whole room is dark, because a lot of these organizations, terrorist individuals, or otherwise are really acting in encrypted situations. How can that be addressed in your opinion, understanding the concern that you have with respect to rights?
Executive Director, Canadian Journalists for Free Expression
When it comes to encryption, the battle for that is lost. There is absolutely no way that the Canadian government can prevent outside organizations from communicating through encrypted technologies. We can go to every single Canadian company that deals in encryption and demand a backdoor key, and it will do absolutely nothing, because there are thousands of other companies around the world from outside our jurisdiction that anyone can go to.
So the idea of trying to prevent encryption, or to go after encryption, is surrounded by a massive misunderstanding. It's impossible. It is impossible for the government to get that. All we can do is make Canada, legitimate actors, and people who are lawfully using this encryption, including our law enforcement agencies, far less secure by demanding these keys and by demanding access. The only people this will actually harm are law-abiding citizens, period.
It is folly to think we will be able to get access to that dark room through encryption. It will never work, and a big part of the reason this bulk metadata and overall data collection simply doesn't work is that the bad guys who really want to prevent you from getting that information will be able to do so. They'll either go offline or they'll use encrypted technologies that our government will never be able to crack, because they're encrypted from organizations outside our jurisdiction. The only way to effectively fight this would be to put an agent, through traditional surveillance, in the room. You can't access that dark room if it's cut off from the Internet. You can access it if you have somebody there. That's the way it has to work.
Liberal
The Chair Liberal Rob Oliphant
Thank you. We have time for a three-and-a-half-minute round.
Mr. Mendocino.
Liberal
Marco Mendicino Liberal Eglinton—Lawrence, ON
Thanks, Mr. Chair.
I will come to the question that I was going to pose to Mr. Henheffer and Ms. Klein. It's just focusing on the advocacy and promotion of terrorism offences under the Criminal Code under subsection 83.22(1).
I just want to try to tease out what your concern is because it seems to me that there is a fault element within subsection 83.22(1), and that fault element is linked to how we generally define terrorism offences and terrorist activity. Within the context of those offences, there needs to be a real motivation to advocate or promote terrorist activity, which of course any journalist would not have by simply reporting on the facts.
Could you articulate and expand a little bit on why the motive element as it exists today in the code does not shield or insulate journalists from potential investigation and prosecution?
Executive Director, Canadian Journalists for Free Expression
I am not a legal scholar. I am referring to the works of other legal scholars. People like Kent Roach and Craig Forcese have analyzed this, and we've based a lot of research on their research as well.
What it comes down to is that the way this is worded all depends on how you read the law. The law could be interpreted in such a way as to remove that motive. You look at it as, well, this journalist may not have been promoting what these terrorists are saying, but someone who's reading their communications may then be inspired to attack.
Liberal
Marco Mendicino Liberal Eglinton—Lawrence, ON
Let me pause you right there. That may actually put the person who's reading your article into the crosshairs of law enforcement or even the intelligence community, but just to clarify, if law enforcement or an intelligence community is seeking an information to obtain or a production order, they do have to spell out to the authorizing judicial officer that an offence is being committed or that there are reasonable grounds to believe that an offence is being committed, and that trying to obtain evidence from the premises or the person they are attempting to search would afford evidence of that offence. That means they have to address the motive element.
That's what I'm trying to understand. Is that part of it not clear enough? Is it overbroad or vague?
Executive Director, Canadian Journalists for Free Expression
I believe so. I'll let Alice take this one.