Public Safety Committee on Oct. 20th, 2016

[Dianne Lynn Watts, Conservative, South Surrey—White Rock, BC]

Let me just get this right.

Do people contact you? Do families contact you, in terms of...?

[Lamine Foura]

Yes.

[Dianne Lynn Watts, Conservative, South Surrey—White Rock, BC]

So, over a period of, say, a year, how many parents would contact you and say, “I have an issue with my child”?

[Lamine Foura]

In one year, 100 people contacted us, officially or unofficially. In addition, some imams work with us on networks, and sometimes, an imam refers a case to us. We thought about creating a hotline, but we realized people are afraid of anything official. They're much more inclined to confide if there's a bond of trust.

We tried to build networks that included different people.

Certain people tend to turn toward the mosque or a more secular association. Others contact me as part of my radio program. After the show, someone might call me. It's a parent who wants to talk to me about his son. We find this strategy much more effective. When it's official, people tend to get worried about the procedure they must follow to make a call. They end up wondering if they are calling a second police station, or whether someone will help them.

In some cases, we thought things were beyond the prevention stage. So we called the authorities, and lawyers, so they would look after the matter. They answered that it was okay, that there was nothing to worry about, that it was a good thing to have informed them, and that the matter was taken care of.

I'd like to come back to the question of information management. What is that? For the moment, we trust the RCMP and the people who work with us. If this bond of trust is broken, it will set things back 10 years. It's important for the people in the community. We need people to believe security is their problem too, and that we're not against them. We don't want to push someone who isn't causing problems into causing some so they'll be arrested. That should be the main underlying philosophy of our laws, and of any bills introduced in the future.

[The Chair, Liberal, Rob Oliphant]

Thank you.

We've almost hit the five-minute mark.

[Dianne Lynn Watts, Conservative, South Surrey—White Rock, BC]

In dealing with a youth who is engaging in that behaviour, would you use the same or a different process of engagement with someone who is born in Canada or someone whose country of origin is different?

[Lamine Foura]

Let's consider the example of Daesh, which makes no distinction between the two. There's a youth culture that's being built with the extension of the Internet, even for people born abroad. The important thing is that the workers involved with radicalization be trained well, so they don't fall into cultural biases.

We have to consider an interpretation of behaviour that might be tied to a cultural element. Beyond the issue of whether the person is born here or abroad, the dynamic is about knowing why the young person is more vulnerable than others. We must determine whether this question is tied to the person's confidence in authority—the person's feeling of belonging to the country—or whether it's a psychological problem, because that type of situation exists too. Consequently, these questions need to be dealt with on a case-by-case basis.

[Dianne Lynn Watts, Conservative, South Surrey—White Rock, BC]

Thank you.

[The Chair, Liberal, Rob Oliphant]

I thank all the witnesses. This is very interesting.

We will now take a break for a few minutes, to help the new witnesses get settled.

[The Chair, Liberal, Rob Oliphant]

Thank you, everyone. We will begin a second round of questions.

I thank the witnesses for being here with us.

We will start by hearing from the representatives of the International Civil Liberties Monitoring Group.

[Roch Tassé, Acting National Coordinator, International Civil Liberties Monitoring Group]

I'd like to begin by thanking the members of the committee for inviting us to share our perspectives on the national security framework.

The International Civil Liberties Monitoring Group is a coalition of 43 civil society organizations in Canada. Among other organizations, it includes the major unions, NGOs, human rights organizations and churches. Our coalition was created in 2002 specifically to monitor anti-terrorism laws and measures in order to determine their repercussions on the rights and freedoms of Canadians.

Since its creation in 2002, our coalition has appeared many times before the Standing Committee on Public Safety and National Security. We were also heard by the O'Connor and Iacobucci commissions. Furthermore, we have intervened in numerous cases before the Supreme Court, on issues ranging from security certificates to no-fly lists.

I was going to speak about several challenges today, but given the time considerations, we will focus only on two aspects: a request to repeal the provisions introduced by Bill C-51, and agency oversight and complaint mechanisms.

We're fortunate to have Paul Cavalluzzo with us today to represent us. He was lead commission counsel with the O'Connor Commission, which, in 2006, tabled a report containing recommendations for a review mechanism.

I will immediately give the floor to Mr. Cavalluzzo, so we can delve into the heart of the subject.

Thank you.

[Paul Cavalluzzo, Representative, International Civil Liberties Monitoring Group]

Thank you.

In the presentation I'm going to make today, I want to talk about the relationship between parliamentary review by the committee that will be created by Bill C-22, and independent review, which will be done, hopefully, by an expert body that is independent of government. I have prepared a presentation, which I understand will be given to you after it has been translated.

Now, having been commission counsel to the Arar inquiry and a special advocate for a number of years, I can attest to the fact that national security agencies and police agencies working in national security make mistakes. I don't say that they do it maliciously. They do it innocently, but they do make mistakes because they are human beings. Indeed, in Mr. Arar's case, what happened to him was that he was sent to Syria for a year of torture as a result of inaccurate information given to the FBI and the CIA by our Canadian agency, the RCMP.

His case is not an anomaly. Many Canadians have been caught up in the response of our agencies to terrorism.

One of the main problems that the agencies are facing is that they're dealing in intelligence. They're not dealing in evidence. Intelligence has been described as “glorified rumours”. Intelligence comes from human sources, foreign agencies, and whatever, and it is often not reliable.

The other problem we have with our agencies is that they're not totally forthcoming with our adjudicative bodies when they do make mistakes. Indeed, last year and in the last few years, the Federal Court of Canada has been severely critical of CSIS because it felt that CSIS had not been forthcoming in respect of its mistakes.

The other aspect, which is very important in terms of why we need effective oversight and review, is that most of the activities of these national security agencies, like CSIS, are conducted in secret. They are conducted in secret. Indeed, even the court proceedings respecting the activities of CSIS are conducted in secret.

At the same time as their activities are conducted in secret, both CSIS and other national security agencies have unbelievably intrusive powers, which can intrude upon the rights and freedoms of Canadians. When we look at that total package, we have to say to ourselves that obviously we want to protect ourselves in respect of national security, but at the same time, we want to protect our fundamental freedoms, which are guaranteed in the Charter of Rights. How do we do that?

These are very important questions. Probably one of the most difficult questions in our legal system today is about balancing national security along with our fundamental freedoms, and I think the answer to that is effective oversight by a parliamentary committee and independent review by an expert body. Let me take you through that.

First of all, at the outset, let me say that I'm very pleased that the government is intending to create a committee of parliamentarians to oversee the activities of our national security agencies. I have a number of problems with Bill C-22, which I will share with you at the end of my presentation. I understand you're going to be dealing with it next week, and I have some comments on Bill C-22, but certainly, parliamentary oversight by this committee is a step in the right direction to strengthen our national security system, both national security agencies and national security reviews.

The question is, is it enough? My firm answer, having dealt with national security issues for the last 10 years and in dealing with top secret evidence and national security agencies, is that we need something more, and this something more has to complement the parliamentary overview of this committee or whatever committee there will be in respect of dealing with our national security agencies. On the one hand, we have oversight, which is done by a parliamentary committee, and on the other hand, we have review, which is done by an independent expert body.

Let me tell you the differences between that, because Commissioner O'Connor in the Arar report dealt with those concepts dealing with oversight. It's a good step, as I said before, to have parliamentary oversight by a committee. Most liberal democracies have that, and it's good that we're going in that direction.

What is oversight? Oversight deals with efficacy issues, such as how the national agencies are running and what policy system should be applicable to our national security agencies. It's a blue-sky review or analysis. As parliamentarians, you don't have the time to get on the ground to deal with the review issues.

What is review? Review looks at the national security agency, after the fact, on the basis of propriety against standards of lawfulness, policies, and other kinds of standards. It's what SIRC does. As you know, SIRC is the review body of CSIS.

On the one hand, we have parliamentary oversight dealing with systemic issues and policy issues, and on the other hand, we have review.

You may ask yourself, now that we're going to have parliamentary oversight with this committee of parliamentarians, we have SIRC, and we have the CSC commissioner. don't we have the best of both worlds? The answer to that is clearly not.

Over 10 years ago, Commissioner O'Connor, in the Arar report, said that our review system is inadequate. Now, with Bill C-51, the problems with review are even more glaring.

I will give you three examples of why the review system is not sufficient and adequate today.

First, our review system is siloed. It only has jurisdiction over one agency. It doesn't have jurisdiction over all of the agencies. All of our national security agencies operate jointly. You just can't have a review body over CSIS when it's working with the CBSA, RCMP, and so on. That siloed jurisdiction is totally inadequate.

Second, national security agencies have been given more and broader powers by Bill C-51, and our review agencies have to be given more powers and resources that deal with these expanded powers.

The third example is about personal information. Bill C-51 gives over 100 Canadian agencies the power to send personal information to 17 Canadian agencies, such as CSIS. Of these 17, 14 of these agencies receiving this information do not even have a review mechanism. There's a number of reasons why the system is fraught with difficulty and why we need a broader review mechanism that has authority over all of the national security agencies.

In the last minute or so that I have, I'll deal with the problems with Bill C-22.

The main problem is that the government can interfere with the mandate of the committee. The committee is given authority to do a national security review, unless the minister says it would be injurious to national security.

It's the same thing with respect to access to information. The committee can ask for information from a minister or an agency, but it can be refused on the basis that it's injurious to national security. The problem with that, as the Supreme Court of Canada said in the Harkat case, is that governments constantly over-claim national security confidentiality assertions not only in this country, but in the United States, the U.K., and elsewhere.

The decisions made by the minister under Bill C-22 to refuse information and to refuse this committee to investigate is not reviewable by a court, which is a power I have never seen in this country.

You'll see in my paper a number of difficulties with Bill C-22, which is going in the right direction, but it's not quite there yet.

Thank you.

[The Chair, Liberal, Rob Oliphant]

Thank you.

We just may hold those thoughts and come back to you in our formal review of Bill C-22. I know you wanted to do more, I could feel it, but you'll have another opportunity, I'm sure, either in person, or somehow, for our review.

Ms. Ataogul.

[Sibel Ataogul, President, Association des juristes progressistes]

I will be addressing you in French, but, as you can see, I can certainly answer your questions in English.

I am here on behalf of the Association des juristes progressistes, or AJP. It's an association of lawyers, law professors, law students and other women and men who work in the legal field. Founded in 2010, it has several hundred members, and intervenes on a number of issues of current interest, and on recent laws and regulations.

In my own practice, I do a lot of work in the realm of constitutional law, and on the constitutional validity of laws. For example, I challenged a provision of the Labour Code that limited farm workers' freedom of association, a provision of the Highway Safety Code that limited the right to demonstrate, and by-law P-6 enacted by the City of Montreal. At the moment, I am challenging the pit bull by-law—this always makes people smile—but I think that principles related to the validity of laws are of great concern, especially at the AJP.

Our association stated a position when Bill C-51was enacted. We came out against the measures in the bill for a number of reasons. One significant reason was that, in our humble opinion, most of the measures in the bill probably violate the Canadian Charter of Rights and Freedoms. That's why I'm here today to speak primarily about these measures. We intend to tell it like it is. A bill has been introduced to repeal certain provisions of Bill C-51, and consultations were promised during the election campaign. You will recall that the Liberal Party of Canada voted in favour of the bill, saying it would review the legislation later. We feel the time has truly come to do just that. Hence this presentation, which is the result of my colleagues' work. I won't spend much time on the subject being studied by the Committee; instead, I will focus on C-51.

I want to address two aspects. The first is the green paper, which was released to the public. The AJP has done a lot of legal education on the subject, and considerable public awareness work. What disappointed us about the green paper, and what disappoints us about these consultations, is that the green paper seems to present the current framework, including C-51, as something eminently necessary and/or positive. Naturally, we don't expect you to present the contrary view, but since this is a consultation, we believe the public should be able to comment with all the information in its possession.

It would have been interesting to note the controversies that the bill has sparked within the legal community, since most legal experts believe the law likely contains human rights violations. A constitutional challenge of these provisions, spearheaded by my distinguished colleague Mr. Cavalluzzo, is under way before the Ontario courts. We believe the public is entitled to this background.

As for the merits of the question, it's obvious we have a great deal to say, but I will limit myself to certain aspects of the provisions amending various acts, and will tell you why we think those provisions should be repealed.

The first consideration is the new crime of advocating or promoting terrorism. Specifically, anyone who knowingly communicates statements, while knowing that a terrorism offence will be committed or being reckless as to whether such an offence may be committed, is guilty of an indictable offence.

In our opinion, this provision serves no purpose, as there are already roughly 15 provisions governing all the terrorism offences, including terrorist or hate propaganda. The provision poses enormous problems with regard to freedom of expression. It is not just about people who have opinions different from that of the government of the day—we believe, of course, that this was the case at the time the law was enacted. It also applies to people with neutral positions, like journalists, professors and analysts. Such people might have an opinion about a conflict, but refrain from expressing it because that might cause someone, somewhere, to engage in some act. We believe the provision infringes freedom of expression, and that its usefulness has in no way been demonstrated.

On the contrary, this type of provision has an immense chilling effect.

Before my remarks, much was said about prevention initiatives, and about what is done to determine who is making such statements. You have created a provision for that purpose. I use the word "you", but I'm speaking in general terms, because I haven't heard anyone say they'd like to repeal this provision, other than something about a private member's bill.

You're ensuring that these discussions don't take place. Someone who might have thoughts of this kind, who needs support, and needs to talk with people from his community who would then ask him if he's really thought about what he's said, would refrain from talking about it, for fear of being charged under this provision. As a result, the discussions occur in somewhat more secret places. I think the provision is ineffective. In my view, it violates freedom of expression, and we will see what the court decides in that regard.

Furthermore, statements made in private benefit from no exception either, whereas other provisions do contain such an exception. I'm referring to discussions that take place in venues where one wants people to talk. One of the witnesses referred to a community where one wants people to discuss these ideas freely. Let me be very candid: as a lawyer, I would not advise my clients to have such discussions, due to the provision you've enacted.

Very briefly, I'd like to address the new powers granted to CSIS.

Mr. Cavalluzzo said that truly effective oversight power is needed, and I obviously agree, but first of all, we need to call on the Liberal government. It's the Liberal government that removed information-gathering powers from the RCMP, in the wake of the McDonald Commission.

You noted that granting these powers to CSIS was a step back. We're told that a judge can be seen beforehand. With respect, this does not account for our legal system, in which judges need to make decisions based on evidence. In this instance, a judge is being asked to guess whether a given measure could reduce a threat. So a judge who is not necessarily an expert in the field would have to determine whether a given measure would help prevent a threat, and after that, CSIS could act. Naturally, there is no way to present the judge with all the unforeseeable and spontaneous situations that can arise and justify granting a warrant. All kinds of things can happen in the course of a proceeding. Will it be necessary to go back before the judge each time?

We have a hard time understanding why this provision is needed, especially since, under the previous system, CSIS did not have these powers, and was already committing mistakes in good faith, according to my colleague Mr. Cavalluzzo.

I would now like to discuss a third point: preventive detention.

The Association des juristes progressistes believes the preventive detention scheme is already quite dubious under the Anti-terrorism Act, 2001. Indeed, the scheme permits preventive arrests if there are reasonable grounds to believe that a terrorist act will be committed. Even in such a case, a warrant must be obtained, whereas the provision proposed in Bill C-51 states that a peace officer can lay an information or arrest someone without a warrant, if he or she has reasonable grounds to believe that a terrorist act may be carried out.

I will cite the example given by the Canadian Centre for Policy Alternatives, which others have spoken about. It's the example of young Muslim adults having a lively conversation in the street. We don't know what they're talking about because we don't understand their language, but we wonder whether they might commit a terrorist act and whether they can be arrested preventively.

We believe this kind of provision goes very far and constitutes a major lowering of the thresholds for arrest and detention. For these reasons, it will probably be found contrary to section 7 of the Canadian Charter of Rights and Freedoms.

In the current context, where terrorism is the major concern and connections are made with the Muslim community, we believe it could lead to political profiling.

I was hoping to address other elements, but I will conclude my remarks with some comments on the no-fly list.

In our view, this list was already very problematic. Essentially, Bill C-51 codified the power of the Minister of Public Safety and Emergency Preparedness to put Canadians on such a list. And in order to be removed from the list, one must apply to the Federal Court. I don't need to talk to you at length about access to justice, but I can certainly say a few words if you wish. It's not enough to show that the Minister was wrong; it must be shown that he acted unreasonably. It's a positively Kafkaesque scheme.

It's also interesting that people who are not entitled to fly can still go into schools and shopping centres, and to take the bus and the subway. When seen from this perspective, I think a no-fly list is absolutely useless. We have a lot of trouble understanding how it could be necessary.

I will conclude by telling you about certain reports on the subject from the United States. According to these reports, certain people's names were put on the no-fly list so they could be asked questions, and told that their name might be withdrawn if their answers were satisfactory. I am not saying that's the intention in Canada—far from it—but I think the risk is grave.

Obviously, we feel this violates the right to liberty. It's not the same thing as being arrested, but we believe it could violate the right to liberty, and section 7 of the Canadian Charter of Rights and Freedoms.

Those are just a few examples of the problems caused by the provisions of Bill C-51; there is more.

Thank you very much.

[The Chair, Liberal, Rob Oliphant]

Thank you very much.

I just want to mention three things. First, if any of you have written submissions that you didn't get to present orally, we're happy to receive them. They will come to the committee and the committee will consider them.

Second, I want you as a committee to confirm that you'd be okay to go until about 4:10 or 4:15 so we have a full round of questioning. I notice it takes about eight minutes to get seven minutes of questioning in with our members, so, if you're willing, we'll go to about 4:10 or 4:15, so we get a full round in.

The last thing is that, as chair, I should have said as we began the meeting that we are not from the government. This is a parliamentary committee. The government issues through the Minister of Public Safety and Emergency Preparedness a green paper. Part of our work is also to examine, as parliamentarians, the green paper. However, our consultation is not on the green paper, but it uses it. We are quite free to go further than that in our recommendations to Parliament regarding the national security framework.

We will begin now with Mr. Di Iorio.

[Nicola Di Iorio, Liberal, Saint-Léonard—Saint-Michel, QC]

Thank you, Mr. Chair.

I'd like to thank the three witnesses for travelling here. I greatly appreciated their presentations, which were most instructive, and very helpful.

I will ask the three witnesses a question that preoccupies me enormously and that I consider the starting point.

We have had to intervene in a whole host of areas since our election to Parliament. One thing we're doing is to try to look into best practices.

I'm a member of the Liberal Party, and part of a Liberal caucus that forms the majority and therefore forms the government. As the chair noted, we are taking part in a decision that will have consequences for the public. Moreover, we like to draw inspiration from things that are being done well, and to know which experiences have been negative.

In your presentations, you referred to certain experiences in other countries. I would like your guidance. Are there one or more countries that could serve as inspiration in certain areas? Perhaps not contemporary examples, but something that has happened in history. What can we glean from the international experience?

I would love it if all three of you could answer.

[Sibel Ataogul]

We can certainly look to our neighbours in the United States to observe the experiences that were not—

[Nicola Di Iorio, Liberal, Saint-Léonard—Saint-Michel, QC]

I'm looking for positive experiences. I've already heard plenty of negative ones.

[Sibel Ataogul]

Okay, let's talk about positive experiences.

Terrorism prevention is a very specific field. It's not my specialty, but I think the public is able to see that in countries where poverty and isolation are eradicated, a social safety net and social solidarity are put in place, and immigrants are integrated rather than being excluded because they dress differently, and not pigeonholed, things go much better. In general, there's also much less violence when there's less poverty and social exclusion. It's in countries where—

[Nicola Di Iorio, Liberal, Saint-Léonard—Saint-Michel, QC]

Okay.

I'm going to have to interrupt you because my time is limited.

I'd like you to give us concrete, real-life examples. I understand the general terms to which you refer. However, on a very practical level, I am asking you to give us concrete cases and concrete situations on this topic.

[Sibel Ataogul]

Canada is in a better position than France with regard to terrorist attacks.

France is in a constant state of emergency. The country has very repressive laws that do not seem to work. I am speaking here as a member of the general public, who has no expertise in this regard. However, when one looks at the situation from the outside, France seems heavily involved in repressive action, and yet it doesn't seem to work. The United States is doing the same thing, and it doesn't seem to work. Yet when you look at other countries, like the Scandinavian countries, there seems to be less repression and less terrorism.

[Nicola Di Iorio, Liberal, Saint-Léonard—Saint-Michel, QC]

Mr. Tassé or Mr. Cavalluzzo, do you have anything to mention in this regard?

[Paul Cavalluzzo]

Certainly, looking to the United States would be useful in terms of oversight. Of course they have a different system of government. But the congressional committees on national security, both the Senate and the House of Representatives, are very effective in oversight. Importantly, they have a great deal of access to top secret information, much more access than Bill C-22 is going to give the Canadian committee.

I think that in Canada, we should be proud. We have reached certain levels, the Arar inquiry, for example, was novel, unique in the world. It was the first time there was an independent review of national security activity.

Our record is good, but we can improve it. We can learn from other countries. The other country we might look at with respect to their oversight is the United Kingdom. They have certain procedures with respect to top secret information that are useful to look at as well.

[Nicola Di Iorio, Liberal, Saint-Léonard—Saint-Michel, QC]

Thank you. Going back to the point you just raised about the U.S. Congress—obviously their system of government is different—what do you see that they have that we could implement here to better our system?

[Paul Cavalluzzo]

The key thing is the independence of the American congressional committees. Once again, they have the separation of powers that are much firmer than we have here. If we're going to have effective parliamentary oversight, we need this committee to be independent of the government.

Right now, under Bill C-22, as I found out in the presentation, you are going to be answering to the Prime Minister, in effect. That's a conflict of interest. The Prime Minister is responsible for the agencies you will be overseeing.

It would be better, in my view, for this new committee under Bill C-22 to report to Parliament, not to the government nor the Prime Minister.