Evidence of meeting #92 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 c-59.

A video is available from Parliament.

On the agenda

MPs speaking

Also speaking

Zamir Khan  Parent, No Fly List Kids
Ihsaan Gardee  Executive Director, National Council of Canadian Muslims
Faisal Bhabha  Legal Adviser, National Council of Canadian Muslims
Khalid Elgazzar  Lawyer, No Fly List Kids
Shimon Fogel  Chief Executive Officer, Centre for Israel and Jewish Affairs
Kent Roach  Professor, Faculty of Law, University of Toronto, As an Individual

10:30 a.m.

NDP

Matthew Dubé NDP Beloeil—Chambly, QC

Great. Thank you.

The last question I have about review and oversight is the issue of Global Affairs Canada being omitted from the investigative complaints component of the new body. Is that something that should be fixed?

10:30 a.m.

Prof. Kent Roach

Yes, absolutely, and that goes back to the Arar commission report, which really shed a lot of light on the very important role of what is now Global Affairs Canada when we're talking about security activities that are, inherently today, transnational.

10:30 a.m.

NDP

Matthew Dubé NDP Beloeil—Chambly, QC

Great, thank you.

Mr. Fogel, we were talking about the rise in hate crimes and anti-Semitism in particular, which top some of these sad lists and rankings. When we look at the issue of radicalization, which while not necessarily part of the bill in a substantive way is a related issue in terms of how we tackle some of these issues, it was part of the debate on Bill C-51 as well.

Given that radicalization is not just one group, it's obviously many hate groups, and many of these groups are sadly targeting your community and others, I want to get your thoughts on the direction in which the government is going with its counter-radicalization efforts and just hear more generally your thoughts on that issue.

10:30 a.m.

Chief Executive Officer, Centre for Israel and Jewish Affairs

Shimon Fogel

Counter-radicalization is a very tough nut to crack, because by definition you're targeting groups that are almost inherently suspicious of and resistant to efforts of outreach by any agents or elements of government. Just the very issue of building up a level of trust is something that impedes the process of proactive counter- or anti-radicalization processes.

It is in some way related to this legislation, in that, as I mentioned earlier, the distinction of how you categorize the counselling or the promotion of hatred and radicalization is an important element there, because it would be a mistake for us to think of one-on-one dynamics, that there's somebody fomenting radicalization and that individual has a specific target. Very often it's a wide net that is cast out, and the individual seeks to reel in whoever is caught in the net, so we have to be sensitive to that point.

I'm still of the view that the most effective effort is proactively putting in place the tone and environment within specific communities that will allow them to take ownership of the process of creating space between those who would aim to radicalize elements or segments of the community and those who are offering a meaningful alternative.

10:30 a.m.

Liberal

The Chair Liberal John McKay

Thank you, Mr. Fogel.

Mr. Dubé, you certainly exercised your last 30 seconds.

Mr. Fragiskatos, you have seven minutes.

10:30 a.m.

Liberal

Peter Fragiskatos Liberal London North Centre, ON

Thank you very much, Mr. Chair.

Mr. Roach, the first question is going to you.

We're talking about security matters here, and when you look at Bill C-59 and see the repeal of investigative hearings, which you're very much in favour of, I think some Canadians might sit back and read about that in an article, or hear political parties that are not in favour of it, and feel less safe.

Can you speak about investigative hearings in general terms? You called them an “unwieldy concept” in a piece with Craig Forcese, for Policy Options. An ineffective approach is basically what it comes down to, but can you expand on that?

10:35 a.m.

Prof. Kent Roach

Sure. Investigative hearings were one of the more draconian provisions in the first Anti-terrorism Act. I also testified against investigative hearings there, so I've been consistent on that. They were upheld by the Supreme Court as constitutional in 2004, but subject to a presumption that they be held in open court and that the rules of evidence apply.

My concern is that because of the requirements of the charter and the Criminal Code, anything that a person is required or forced to say in an investigative hearing is not usable in a terrorism prosecution.

You're right that the public might be anxious, but that's, frankly, a lack of knowledge. It goes back to needing to be smarter about our security powers and needing to have security powers that are usable. If you have something like an investigative hearing, which essentially has not been used and, if used, could render a terrorism prosecution, if not impossible, at least more difficult—and they're already extremely difficult—then that's something we should get rid of.

On the no-fly list, one of my recommendations would be maybe the new parliamentary committee needs to look at the costs and benefits of the no-fly list, because I'm aware that much of this requires access to classified information that neither you nor I have. Maybe Canada can be a world leader and say, “Look, we don't need this, because we want everyone on a plane to be safe”. I don't know that it's the case now, but that's the sort of thing....

We have to trust the public that, yes, we're scared about terrorism because it is in the news every day for legitimate reasons, but that means we have to be smarter, not simply going as far as the charter allows.

10:35 a.m.

Liberal

Peter Fragiskatos Liberal London North Centre, ON

Thank you very much.

In your presentation, you mentioned in passing some concerns about the process through which terrorist groups are listed, and you spoke about the U.K. experience. I know elsewhere you have expressed concerns around fairness and issues that might arise that cause problems for organizations that feel they have been wrongly listed. I wonder if you can expand on that.

10:35 a.m.

Prof. Kent Roach

Yes, I mean that the proposal taken from section 10 of the U.K. Terrorism Act 2000 is simply to allow a group that thinks it is wrongly listed to be able to challenge that without the very act of challenge being the subject of a charge of, say, financing a terrorist group.

More generally, listing is something we haven't really relied upon because most of the terrorism prosecutions we've had have not been affiliated with al Qaeda or Daesh central, but have been a bunch of guys, and a bunch of guys—under our Criminal Code—can themselves be proven beyond a reasonable doubt in appropriate cases to be their own terrorist group.

Again, the threat environment rapidly changes. This is why we need ongoing reviews of these laws. This is why I recommended moving up the six-year review of this act to at least a four-year review, because we need to figure out what terrorism tools we need, including new terrorism tools, and maybe what old terrorism tools are unnecessary, in part because of the changing threat environment.

10:35 a.m.

Liberal

Peter Fragiskatos Liberal London North Centre, ON

Thank you very much.

As you know—this is a bit beyond Bill C-59 but does fit into the discussion because we are talking about security—in late September, Minister Goodale issued a ministerial directive on information obtained by torture. For the purposes of the record, the new rules ban the use of information that was probably obtained through torture, except when it's necessary to save lives or to prevent against major personal injuries.

For example, last week I asked Professor Forcese if it would be more effective to enact that directive and the principles on which it is based in legislation—

10:40 a.m.

Prof. Kent Roach

No.

10:40 a.m.

Liberal

Peter Fragiskatos Liberal London North Centre, ON

—rather than keeping it as a directive, because, for obvious reasons, any future government would have a much more difficult time changing legislation as opposed to a directive.

I wonder if you have any thoughts on that.

10:40 a.m.

Prof. Kent Roach

I agree with my colleague that I would favour putting that in legislation.

I would just add that part of our concerns about Bill C-51 is that there is a need not only to be fair but to be seen to be fair so that very important and legitimate national security activities are not delegitimized by, perhaps, erroneous claims of involvement with complicity of torture.

I think the transparency with the new ministerial directive, if that was taken as the next step into legislation, would actually be good. With the review agency here and measures like that, Canada can start becoming an international leader on these issues.

I think we, frankly, have to realize that perceptions—rightly or wrongly—of unfairness, of profiling, of false positives, are some of the things that seem to be motivating people who are regrettably turning to violence.

10:40 a.m.

Liberal

The Chair Liberal John McKay

Thank you, Mr. Fragiskatos.

Mr. Motz has the final five minutes of 2017.

10:40 a.m.

Conservative

Glen Motz Conservative Medicine Hat—Cardston—Warner, AB

Thank you, Mr. Chair. I feel so privileged.

I thank both witnesses for being here and for your testimony.

I'm intrigued by your testimony, specifically about the language. I want both of you to weigh in on this if you could, please.

Changing “counselling” of terrorism to the “promotion” of terrorism, how does that change the context of Bill C-59 and what CSIS and other agencies need to do? Are we still going to be as effective with that term change?

Mr. Fogel, could you go first, please?

10:40 a.m.

Chief Executive Officer, Centre for Israel and Jewish Affairs

Shimon Fogel

Mindful of the time, I'll be very brief.

It is, I think, the reverse. “Counselling” is the new language that's introduced in Bill C-59.

For me, it's less about the language that's used as it is about establishing who it's directed toward. Bill C-59 requires a direct link between someone who is promoting or counselling terrorist activity and the one who's going to act upon it, without recognizing that an individual promoting it may have the intention of creating a certain environment that will be attractive to as yet unknown or unidentified individuals, so you can't establish that direct chain.

If we were to tweak it in a way that makes it more consistent with other legislation but doesn't require that direct link on specific acts, I think it would strengthen the legislation.

10:40 a.m.

Conservative

Glen Motz Conservative Medicine Hat—Cardston—Warner, AB

Mr. Roach, go ahead.

10:40 a.m.

Prof. Kent Roach

I think the important thing is to get rid of terrorism offences in general, which was a very problematic part of C-51. I think Mr. Fogel may have a point that perhaps it should read, “every person who counsels any terrorism offence is guilty of an indictable offence”.

I also think we should make clear that “terrorism offence” meets the definition in section 2 of the Criminal Code in order to avoid the problem that we have in C-51 of undefined offences. Again, the benefit of “counselling” is that there's literally 100 years of experience in the jurisprudence about what counselling is. I think that traditional criminal law has a lot of resources for us to reach for in dealing with these new and real threats of terrorism.

10:40 a.m.

Conservative

Glen Motz Conservative Medicine Hat—Cardston—Warner, AB

In the minute or minute and a half that I have left, although you may not both be in the same position to answer the question....

Mr. Roach, you mentioned several times the need to not jeopardize Canada's ability to prosecute those who should be prosecuted. I'm going to go out on a limb here. The returning ISIS terrorists, should they face criminal proceedings?

10:45 a.m.

Prof. Kent Roach

I think with all criminal proceedings, there's a public interest component. I think we have to rely upon security officials to make informed decisions about, first, whether there's sufficient evidence and, second, whether it is in the public interest to prosecute.

I don't think that kind of “cut and dried” rule that everyone who comes back.... It might, frankly, be a misallocation of resources in some cases. In other cases, it may be very warranted. Again, I go back to the intelligence, to evidence consultation, and to the need, as the Air India commission urged, to strengthen our ability to do terrorism prosecutions when necessary, not in every case. Life isn't that simple.

10:45 a.m.

Liberal

The Chair Liberal John McKay

Thank you.

You have half a minute, Mr. Fogel.

10:45 a.m.

Chief Executive Officer, Centre for Israel and Jewish Affairs

Shimon Fogel

It's my Christmas gift to you.

December 12th, 2017 / 10:45 a.m.

Conservative

Glen Motz Conservative Medicine Hat—Cardston—Warner, AB

Actually, I'll take the half minute to ask one other....

If you were to change one thing in Bill C-59, Mr. Fogel, that you think is absolutely critical for public safety and balancing the need for rights and privacy, what would it be?

10:45 a.m.

Chief Executive Officer, Centre for Israel and Jewish Affairs

Shimon Fogel

It would be my first point about the language and counselling as I expressed in my testimony, ensuring that there is an ability to not limit it to a very specific dialogue, instruction, or relationship between a promoter and a recipient, but rather to recognize that the promoter of it has a larger responsibility and onus.

10:45 a.m.

Liberal

The Chair Liberal John McKay

Thank you, Mr. Motz.

Thank you to the witnesses. I want to thank both of you for your contribution to this very important study.

I think I would be remiss if I didn't, on behalf of the committee, thank all of the people who have made this committee work: our clerk, our analysts, and the people who make all the technology work...most of the time.

For those of you who celebrate Christmas, merry Christmas. For those of you who don't, happy holidays, and for all of you, happy new year.

Thank you very much. The meeting is adjourned.