Thank you very much for inviting me to appear before the committee.
My colleague Craig Forcese has already addressed you and has focused on parts 2, 3, and 4 of the bill. I will focus on the other parts of Bill C-59.
Part 1 providing for a government-wide super-SIRC has been widely praised. In my view, it implements the important principle, if not the precise details, that animated the Arar commission's report; namely, that review should expand with the state's national security activities and that review strengthens rather than weakens security.
Improvements can still be made. I recommend that the new and very much welcome super-SIRC be somewhat supersized. In my view, it should contain a minimum of five members and up to eight members. Amnesty International has endorsed this recommendation, and you've heard some very interesting proposals about strengthening the new super-SIRC both from Professor Wark and Mr. Fogel.
We should think about having more diversity in appointments and not simply focusing on the consultation with leaders of political parties, which is very much a holdover from the original 1984 Cold War era CSIS Act. We could also include people with expertise in privacy, as you heard from the Privacy Commissioner. I think it is also important that there be representation where possible from communities that may be disproportionately affected by national security activities.
The mandate of the new review agency needs to be better defined. On my reading, the reference to “department” or “corporation”, which is incorporated in the new act, does not include the RCMP. This should be very clearly spelled out. It should be clear that the new committee can review the national security activities of the RCMP, hear complaints about the national security activities of the RCMP, and have full access to classified information that the RCMP has on the same basis that it will have access to classified information that CSIS, CSE, and other agencies involved in national security have.
Moving to part 5, I remain of the view that the SCISA part of Bill C-59 remains the weakest part of the bill. I would advocate that the definition of threats to national security in section 2 of the CSIS Act be the default trigger for information sharing, subject to carefully tailored and justified additions in cases where that may be inadequate. The novel Bill C-51 definition of activities that undermine the security of Canada was grossly overbroad. Even after the amendments in this bill, it would remain overbroad.
When I talk about overbreadth, and I know that some members of this committee have read the Air India commission report, I refer to overbreadth not only from a civil liberties perspective but frankly from a security perspective. If everything is a security threat, effectively nothing is a security threat. I think we really should tighten the definition with respect to information sharing.
On the subject of Air India—and here I'm going just a touch beyond Bill C-59—I must again reiterate my objections to the CSIS human source privilege that was enacted in the Protection of Canada from Terrorists Act. If it is not repealed, at least I would recommend that, as an urgent matter, there be a study of whether CSIS's practice of granting anonymity to witnesses is hindering terrorism prosecutions.
The Privacy Commissioner has made a strong case to you that the standard for receiving agencies under SCISA should be raised to “necessity”. I agree. I would also not be troubled by having that same standard with respect to sending agencies. The Privacy Commissioner raised the issue that sending agencies may not have experience with security, but they also maybe don't have the same incentive that receiving agencies may have to keep, perhaps unnecessarily, the information that they receive.
In this regard, a critical feature of the new review agency is that it will be able to examine the legally privileged material that is the basis on which receiving agencies will make decisions, perhaps wrongly, to retain any information.
Moving to part 6, the committee is well aware of the problems of a no-fly list. The reforms in C-59 strike me as minimal. Four months is a long time to be a wrongfully listed person, even if the default has been changed. Special advocates should have a role in appeals, and Bill C-51's restriction on the information that these security-cleared advocates can see in security certificate cases should also be repealed. More fundamentally, however, perhaps the new committee that has access to classified information should review whether the costs of the no-fly list, both financial and human—in terms of false positives—are actually worth its benefits.
Moving to part 7 of the bill, I note that the CCLA submitted to you that the reference to terrorism offences in the counselling offence is not defined. That's not my reading. I would read the reference to terrorism offences as referring to the definition of terrorism offences contained in section 2 of the Criminal Code, but this is a matter that needs to be clarified.
The changes to the preventive arrest provisions are difficult to evaluate, but I would favour further amendments to clarify limits on questioning of people who may be detained for up to seven days. I would also advocate that there be some response to the Driver case in Manitoba, which held that at least one part of the peace bond provisions relating to treatment programs violated the charter. I would also recommend that we look at something like section 10 of the U.K. Terrorism Act, 2000, which would allow people to challenge listing as terrorist groups without that very act of challenge being the basis for a terrorism offence.
I applaud the government for repealing investigative hearings, a technique that has never been successfully used and, if used, could hinder terrorism prosecutions.
Finally, this is important and complex legislation that was made necessary by Bill C-51. I would propose that given the comprehensive, if not radical, nature of C-51 and the important proactives of this bill, that the review of this bill be commenced within the fourth year of its enactment, not the sixth year as contemplated in part 9. I would also propose that the review be undertaken by a special joint committee of the Commons and the Senate, which could include one to two members of the new National Security and Intelligence Committee of Parliamentarians.
In addition to my previously submitted brief, which I hope you have and has been translated, those are my submissions.
Thank you very much. I look forward to your questions.