Public Safety Committee on Feb. 13th, 2017

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

Okay. Thank you.

[The Chair, Liberal, Rob Oliphant]

I'm afraid that's all the time we have for this panel. We'll thank our witnesses and take a very quick turnaround so we can make sure to get in a full hour for the second panel.

Thank you very much.

[Voices]

Thank you.

[The Chair, Liberal, Rob Oliphant]

Thank you to our witnesses. We have Amnesty International's Béatrice Vaugrante with us via teleconference.

Welcome and thank you for being here.

We also have Alex Neve, the secretary general. Thank you.

We're going to begin with Amnesty International because we can see Béatrice. It's 10 minutes, and after that we'll have Professor Leuprecht. I don't know how you're going to split your 10 minutes.

[Alex Neve, Secretary General, Amnesty International Canada]

We will go back and forth, but seamlessly, and thank you for letting us go first. I assure you, Mr. Chair, you would not want to lose Béatrice Vaugrante.

Since the September 11 terrorist attacks in the United States, a misleading debate has taken hold about the relationship between national security and human rights. The debate assumes an inescapable trade-off between the two goals, that more security requires weaker human rights protection and that stronger regard for human rights will inevitably leave us more insecure.

That could not be further from the truth.

Governments have a vital obligation. Part of their responsibility is to uphold human rights, to prevent terrorist attacks, and hold accountable individuals who commit such acts. It is also essential that laws and actions taken to counter terrorism comply with international human rights. These two responsibilities do not compete with each other; they are one and the same.

The current view of Canada's national security framework offers a valuable opportunity to reject this false dichotomy and affirm that the strongest approach to upholding national security is one grounded in full regard for human rights.

The timing and the necessity of your deliberations on this review are imperative. It is indeed both opportune and urgent. It is opportune because an opening such as the present one, a wide-ranging review of our national security framework, comes along infrequently. It's an opportunity that should not be squandered.

It is opportune as well because a range of lessons have been learned in Canada over the past 15 years through individual cases, court rulings, and UN recommendations that highlight the human cost of national security practices that violate rights and point to the needed reforms.

The urgency is threefold.

First, as we highlight in our submission—you've heard from many others as well—numerous Canadian security laws, policies, and practices contravene our country's international human rights obligations. Those shortcomings must be addressed.

Second, Amnesty International continues to document extensive, serious, and, in many cases, mounting human rights violations associated with national security practices around the world. In that context, it is so crucial that Canada set a different course and example.

Third, of course, the urgency has increased dramatically with the election of U.S. President Donald Trump. President Trump has made it clear that he does not agree with, for instance, the ban on torture when it comes to national security operations. Faced with that prospect of disregard for human rights by our closest national security partner, it is absolutely crucial that our own national security framework be strengthened as never before in its clear regard for human rights.

Amnesty International has recommended a human rights-based approach to national security for Canada with three main elements.

I'm now going to turn to my colleague Béatrice Vaugrante, who will speak about the first two elements, and then I'll come back to the third.

[The Chair, Liberal, Rob Oliphant]

Go ahead.

[Béatrice Vaugrante, Executive Director, Francophone Section, Amnesty International Canada]

Thank you very much, Mr. Chair. I will deliver my remarks in French.

Human rights are a foundational pillar. When governments adopted the Universal Declaration of Human Rights in 1948, they noted that the “recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world”. That means that human rights are also the foundation of security.

As governments have elaborated binding treaties pertaining to human rights, the relationship between security and human rights has been at the very core. Some rights, such as freedom of expression, are defined so as the recognize the inherent limitations of imperatives such as national security, narrowly defined and carefully circumscribed. Other rights, such as liberty and security of the person, have no inherent limitations but can be suspended for a short period when a government faces a “public emergency threatening the life of the nation”.

Finally, there are a number of rights, including the prohibition against torture and ill treatment and the right to freedom, which cannot be abrogated under any circumstance. This approach illustrates that governments have always been attuned to the interconnected relationship between rights and security.

As a result, Amnesty International's first recommendation is that Canada recognize regard for human rights as a foundational pillar of Canada's national security framework. A foundational pillar risks being empty rhetoric unless backed up by effective safeguards.

Our second recommendation is therefore that Canada adopt four essential safeguards. First, there is no specific reference to, let alone requirement to ensure compliance with, human rights under the Charter of Rights, the Canadian Human Rights Act or binding international standards in most Canadian national security legislation, except the Immigration and Refugee Protection Act.

The first safeguard should be that Canadian national security laws should be amended...

[The Chair, Liberal, Rob Oliphant]

Excuse me, Ms. Vaugrante. For the benefit of the interpreters, could you please speak more slowly? We will give you an extra minute.

[Béatrice Vaugrante]

Thank you very much, and my apologies to the interpreters.

All Canadian national security laws should include a provision requiring legislation to be interpreted and applied consistent with the Charter of Rights, the Canadian Human Rights Act, and binding international human rights standards.

Additionally, there should be specific and binding reference to the rights most frequently at stake: the right to life; the ban on torture and ill-treatment; the prohibition of discrimination; safeguards against unlawful arrest, arbitrary detention and unfair trials; freedoms of expression, association and assembly; freedom of religion; privacy rights; and the protection against refoulement.

Next, a clear lesson highlighted in the Maher Arar inquiry was the inadequacy of national security review and oversight bodies and processes in Canada. Commissioner Dennis O'Connor proposed a comprehensive new model of integrated review that would subject all agencies to robust review, by bodies that possess the necessary powers and operate in an integrated manner. Unfortunately, ten years later, that recommendation has not been taken up.

Bill C-22 would establish a national security committee of parliamentarians, but that proposal is not enough.

This leads to our second safeguard. Building on Bill C-22, Canada's model of national security review and oversights must be reformed to ensure all agencies are subject to robust, real-time review by expert and independent bodies which are able to cooperate with each other in an integrated manner.

Third, national security measures that encroach on rights should be exceptional and not permanent. However, national security measures adopted by governments are rarely temporary. Most national security provisions are part of Canadian law, including some that violate or undermine human rights provisions. Regular review helps safeguard against that possibility.

As the third safeguard therefore, Parliament should ensure regular reviews of national security laws, at least every three years.

Our final proposed safeguard is accounting for national security-related human rights violations from the past. The compensation and official apology provided to Maher Arar and Benamar Benatta are rare instances of redress being provided to individuals who have experienced serious violations.

Mr. Almalki, Mr. Abou-Elmaati and Mr. Nureddin have not been compensated for human rights violations documented in a 2008 judicial inquiry report from former Supreme Court of Canada Justice Frank Iacobucci. Omar Khadr has had no redress for charter violations upheld in unanimous 2008 and 2010 Supreme Court of Canada judgments. Other cases remain similarly unresolved.

Our fourth guarantee is therefore to appoint a judge or other independent expert to quickly review and resolve, consistent with international human rights principles, all pending legal cases involving claims for redress related to human rights violations arising in the context of national security operations.

My colleague Alex Neve will conclude our remarks.

Thank you.

[The Chair, Liberal, Rob Oliphant]

You have another minute and a half or so.

[Alex Neve]

Recommendation one is the recognition of human rights as a foundational pillar. Recommendation two is the adoption of a number of effective safeguards to deliver human rights in our national security framework. The third recommendation is, of course, for a number of specific reforms that need to take place in order to ensure compliance with our international human rights obligations.

I do not have time to go through all of those. I would just like to point to nine reforms that we think need to happen.

The first is to reform Canadian law to ensure compliance with the absolute ban on deportations to torture.

Second, repeal security certificate and other security-related immigration proceedings that do not live up to international fair trial standards.

Third, withdraw or reform ministerial directions on intelligence sharing and torture, which presently allow intelligence to be shared with other governments even if it may lead to torture and which similarly allow intelligence to be received even if it may have been obtained under torture.

Fourth, amend terrorism-related definitions to protect protest and free expression rights, as the exceptions currently protecting those rights in a variety of terrorism-related offences in several different statutes are inconsistent.

Fifth, reform the CSIS threat reduction warrants to conform to human rights obligations. There should be no consideration of activities by CSIS, or by any Canadian agency, that violate the charter or international human rights obligations.

Sixth, repeal the offence of promoting the commission of acts of terrorism in general, as it is vague, overreaching, and in violation of free expression rights. Existing criminal offences that deal with counselling, aiding and abetting, and other similar offences are sufficient.

Seventh, reform the information-sharing regime to better protect human rights, including strict safeguards to ensure the relevancy and accuracy of the information that is shared.

Eighth, update the proposed no-fly list appeal provisions to meet requirements of fairness.

Ninth, abolish recognizance with conditions provisions allowing detention without charge. Bill C-51's expansion of the length of time and the lowering of the threshold for such detentions falls below international norms with respect to arbitrary arrest and detention.

Thank you very much, Mr. Chair.

[The Chair, Liberal, Rob Oliphant]

Thank you very much.

I should add that I was not criticizing the interpreters. I just wanted to listen to it in French, and I needed it a little slower, but they also needed oxygen at one point.

We will begin with Mr. Leuprecht.

Professor Leuprecht, please go ahead.

[Dr. Christian Leuprecht, Professor, Department of Political Science, Royal Military College of Canada, As an Individual]

The challenge here, of course, is that the state on the one hand has an obligation to keep people safe and to maintain order, and on the other hand to safeguard our core and fundamental values of freedom, equality, and justice. We want to find the effective balance, as I think the previous speakers emphasized. We want to make sure that we always review our legislation and our framework, which I think is what the committee is doing here.

I think that's a very helpful thing to do. Ultimately we won't be able to enjoy these values if we can't provide for a safe, secure, orderly environment where people can enjoy them. Why do people want to come to Canada? It's because we are a safe, secure, orderly society where people can then live out their values.

We live in a globalized world where the institutions we have, and much of the legislation we have, were designed in the 19th and 20th centuries and are ill adapted to the movement and the flows we see in the 21st century. The challenge is how to craft new institutions of governance to try to get a handle on the flows that we see, both legal flows and illegal or illicit flows.

Part of the way we've worked at this is to push the borders out—that is, to stop thinking about borders as these lines in the sand and to start thinking about what borders look like in a world where, for instance, data or financial capital moves with relative freedom across the world.

I'm just coming from an hour in the Senate, where we were talking about terrorist financing. I think it's important that we make sure that we have discussion based on evidence rather than on various propositions. In this conversation there are always lots of propositions and relatively little evidence to support them.

We've having 85 reviews across the federal government, and I've always thought it important that we have a conversation about the national security framework. We're having all these isolated reviews about cyber, about the defence policy review, and about Bill C-51. I think this is an important, cohesive discussion to have.

I have concerns about the problem of what some people call “securitization”. Since 9/11 we've become very good at securitizing various problems. There's no more expensive way to deal with an issue than to securitize it, in part because every dollar we spend on security is money that we don't have to spend on prosperity, social harmony, and whatnot, so how do we pull back on that?

I think the most important contribution, which the committee is already making, is to make sure that we have a more informed discussion about these issues, because I think they're poorly understood.

In the case of the threat mitigation mandate, people didn't understand that CSIS couldn't technically talk to parents if they thought their kid was up to nothing good. There's good evidence that the mandate is working.

With regard to the intelligence-to-evidence problem, even among lawyers who think they know the issue quite well and have appeared before the committee, it's still not well understood.

Then there's the no-fly list. Most Canadians don't understand that when Canadians get refused, the main reason is not the passenger protect program but the fact that the majority of flights in this country pass over U.S. territory. Names get drawn against other lists. They think it's the Canadian government, when it's really not the Canadian government that's at fault here.

Here are a bunch of quick thoughts around some of these issues.

I think we want an effective tool kit and we want a broad tool kit, because we're dealing with a challenging threat environment and we need to innovate. When we innovate on security, however, there's always this big outcry. In other areas, such as health, education, or whatnot, we take it for granted that every now and then things change. We want to change some of the frameworks. We live in a challenging environment, so of course we want to make sure we innovate.

There are interesting conversations about zeros and ones. Do we have relatively few problems in this country because we do such a terrific job and our agencies and legislation are so effective, or is it perhaps because we don't have all that big a problem?

There's a question about resource allocation. Since October 2014 we have dedicated an inordinate amount of resources to counterterrorism, to the detriment of most other aspects of national security. It's been a field day for organized crime. You just need to read some of the threat assessments to understand that. Do we have the balance right? We will face a continued, persistent threat with regard to criminal extremism and violent criminal extremism. We need to make sure that the legislation evolves.

The strategic importance of signals intelligence is also poorly understood. I think there are innovations within the signals intelligence community that need to happen and that are not currently happening. There are the unfunded mandates that the government has implicitly created since 9/11. It is provincial and local governments that are now getting stuck with much of the counterterrorism bill. What are we going to do to make sure we support them in that?

There's continued confusion around issues of radicalization. I always compare this to the opinion pyramid and the action pyramid. These are separate problems. The opinion pyramid is people moving to thoughts that we would prefer them not to have. The action pyramid is about people moving to actions, ultimately violent extremism, that we would rather not have them take.

The problem of the opinion and of mass radicalization of people having views you'd rather not have them hold and the problem of people moving to violence are two completely separate problems. Religion or radicalization per se is not driving much of the violence that we're seeing. A number of other factors are involved, and they combine differently in different types of cases. Religion is often used to justify the violence, rather than driving the violence. If religion drove the violence, of course, we'd see a lot more of that violence.

I would encourage the government to think less about countering radical extremism, whatever it wants to say, and I would encourage the government to think more about preventing violent extremism.

With regard to cyber, we face significant threats. Loss in the global economy to nefarious organizations was estimated last year at about $1 trillion. They pose a threat. We now understand the sort of threat that cyber can pose to democratic institutions and the way organized crime and other elements consistently exploit the cyberenvironment for their benefit.

When we talk about the Canada-U.S. border, inherently much of the national security framework is about ensuring our prosperity, because we saw after 9/11 what happens when the Americans close the border. Ensuring that Canadians understand that we are their partner is key here. In that regard, of course, how we need to think about this is in terms of the Kingston Dispensation of 1938 and of the Ogdensburg Declaration of 1940, wherein we agreed we're going to work with our American partners to keep troubles away from North America and in other parts of the world and work collectively to try to provide regional and international security. This co-operation with the Americans, regardless of administrations in the U.S., remains an overriding priority.

I have five quick recommendations.

One is the GCHQ model on cyber. Of course, the U.K. is a unitary state, so it is somewhat easier to use, but we need one agency in charge of coordinating cybersecurity efforts in this country. The collective action problems are simply astounding.

The second is on the RCMP. We need a capable organization that has the capacity to do federal and national policing, and follow it. To that effect, the RCMP needs to be restructured to be a completely independent federal and national policing organization with its own recruitment, remuneration, and whatnot. We can't have an organization that supposedly is in charge of federal and national priorities that spends 85% of its resources, time, and energy doing contract policing. It is failing in the obligations it has to Canadians on its federal and national priorities.

My third recommendation is on the CBSA. There's a long-standing conversation in this town about what CBSA should be in charge of. Why do we have one organization in charge between ports of entry and another organization at ports of entry? Let's have one organization in charge of both. I would suggest that CBSA might be that organization, but of course there are people who like their budgets and who would rather not do that.

The fourth is that I think Canada needs a centre for open-source intelligence. We are missing many of the boats and many of the trains because we don't have effective access to open-source intelligence in a way that is compatible with our constitutional and legal obligations to protect the privacy of Canadians.

The fifth recommendation is to fund more research, because there's a lot of misunderstanding and a lot of elements in this country that are poorly understood, and we ultimately want to have made-in-Canada solutions for these challenges that conform to the Canadian legislative framework and to the priorities and expectations that Canadians have.

I have a number of other things that I could talk about, but I'll leave it at that for now.

[The Chair, Liberal, Rob Oliphant]

That's perfect. Thank you very much.

We will begin with Mr. Picard, for seven minutes.

[Michel Picard, Liberal, Montarville, QC]

Thank you, Mr. Chair.

Thank you all for your constructive comments, recommendations, and suggestions. Your remarks are most relevant.

I will get straight to the issue of prevention, beginning with Professor Leuprecht. I also invite the Amnesty International Canada spokesperson to comment because there is a question related to the charter that will certainly be of interest to him.

We were talking about disruption measures by CSIS, and police powers that are associated with disruption measures. I'm not sure I understand the exact link between a disruption measure and a police measure per se, even though CSIS confirms that it has used such measures roughly twenty times.

You talked about these measures nearly two years ago, Mr. Leuprecht. Can you tell us about your assessment of them and about the CSIS's ability to disrupt developing operations?

[Dr. Christian Leuprecht]

I think the objective is to use disruption activities, to intervene, and to do prevention rather than incarcerate people. You already noted that the RCMP is overloaded by their obligations and our expectations. As you know, it is also facing considerable challenges with regard to institutional culture. That being the case, what other institutions could help us prepare for those potential operations?

Yes, that concerns me to some extent. The responsibility for security intelligence was deliberately assigned to an institution other than the RCMP, which enables...

to give them enforcement measures.

It concerns me to some extent, but in the current context, I'm not sure that the RCMP has the ability and the necessary attention to take on these responsibilities. If we don't task CSIS with this role, who then?

[Michel Picard, Liberal, Montarville, QC]

Excuse me for interrupting.

You talk about enforcement measures that apply to the RCMP rather than disruptive measures that apply to CSIS. What's the difference? What do you make of that?

[Dr. Christian Leuprecht]

The challenge that people have with the disruption matter and the threat mitigation mandate is that it gives a quasi-enforcement measure back to CSIS. Until now, we have deliberately relied exclusively on the RCMP to engage on the enforcement side.

That's the challenge, and those are the reservations that people have. I think these reservations are well founded, but as I explained, someone needs to engage in disruption. In the current environment, I'm just not sure that the RCMP is ideally or optimally prepared to do that in all these cases.

This is a fallback position for me. It is not an optimal outcome, but I see it as a necessary solution until we can actually get the RCMP not to be distracted by all sorts of other things.

[Michel Picard, Liberal, Montarville, QC]

Before my next question, I would like to know if there is any comment from the Amnesty International Canada representatives.

As there is not, I will move on to a subject raised by Amnesty International Canada and by you, Mr. Leuprecht.

[The Chair, Liberal, Rob Oliphant]

Just hold for one minute. I was listening in French. Apparently we don't have English. Is it working now?

[Michel Picard, Liberal, Montarville, QC]

I can switch if you want me to.

[The Chair, Liberal, Rob Oliphant]

No, no.

You may continue in French.

[Michel Picard, Liberal, Montarville, QC]

As to the passenger protect program and the no fly list, the people who complain obviously want their name removed from the list. In addition to those whose names are meant to be on the list, there are also those who have the same name. Completely removing names from the list could therefore be problematic. As to people's ability to defend themselves, there is a transparency issue with the disclosure of information and a representativeness issue. Perhaps we could discuss this further.

The government should no doubt consider what its transparency limit is and how much information it can share, specifically as regards disclosure.

[Alex Neve]

Absolutely. Our concerns are about the fairness, openness, and transparency of the appeal process.

We welcome the fact that in Bill C-51 the whole system has finally been legislated and that there are now clearer standards and there is an established appeal process and people know what they can access.

However, at the time that Bill C-51 was being debated, we and many others highlighted that while it was good to see an appeal procedure in the legislation, we were concerned that it fell short. We recognize that there are some balances and trade-offs, but it fell far short of what would truly give an individual a meaningful opportunity to defend themselves.

Yes, it's not a criminal trial, and perhaps the full-fledged set of due process guarantees that must be protected in a criminal trial aren't in play, but nonetheless I think everyone recognizes that what's at stake is very serious. It's just about being able to go on vacations. It's about families being able to visit each other. It's essential to livelihoods. Also, I think we heard this from earlier witnesses regarding how the refusal of flight can itself be very degrading and dehumanizing.

That's why it's so important that the appeal procedure be reformed to provide greater access to information that is being used against people and provide more of an opportunity to respond to those allegations.

[Dr. Christian Leuprecht]

I think the way people think about this is similar to a driver's licence.

In order to revoke someone's driver's licence, there is a process to be followed. I think we need to find analogies that are closer to what Canadians expect when they are deprived of certain privileges, such as driving a car.