Public Safety Committee on Feb. 8th, 2018

[The Vice-Chair, Conservative, Pierre Paul-Hus]

Good afternoon gentlemen.

I'd like to welcome Michael Mostyn and David Matas, from B'nai Brith Canada, and joining us by video conference, is Michael Nesbitt, law professor at the University of Calgary.

We will begin with your presentation, Mr. Nesbitt.

[Prof. Michael Nesbitt]

Thank you so much.

Let me start by thanking you all for this wonderful opportunity and for undertaking the crucial task of reviewing Bill C-59. It is truly indeed an honour and a privilege to be here today and to sit with you.

I have been asked to focus my attention today on part 3 of Bill C-59, the proposed CSE act, and that is what I intend to do. In general, there is no question to me that updating the antiquated authorities governing the CSE and putting the establishment on solid statutory footing is vitally important. As a result, I am strongly in favour of the initiative to craft a CSE act. Indeed, it is obvious to me that the result of this endeavour is a carefully crafted piece of legislation that tries hard to balance the operational needs of CSE to protect Canada's national security interests with Canada's commitment to democracy and the rule of law.

Obviously, given its size and complexity, there will also be much work to do. That simply goes with the territory. In this regard, I have had the distinct benefit of reading the briefs and testimonies of the witnesses that have already presented to this committee. While each guest has offered thoughtful commentary that I encourage you to strongly consider, my overarching sense is that none of us will foresee all the legal or operational challenges to come.

This is the reality of dealing with such a large, important, complex, and highly technical bill. Therefore, more than anything else, it will be vitally important that the current review of the CSE act is thorough and rigorous and that such rigorous review and oversight continues, particularly in the early days and years. This is not an act that should look precisely as it does now, by this summer, or when it is first reviewed, years after coming into force. It will have to be updated to keep pace with technological, operational, and legal developments.

In my mind, the best bet is to focus on robust review and oversight, such that, the issues that do arise in the coming days and years come to the attention of Parliament, to the public, and to the CSE itself, and that there is an opportunity to make the necessary corrections when the time comes.

Neither the law nor Canada's security is well served, if the CSE's legal and/or operational fault lines are kept in the shadows, and it is my sense that the CSE would agree with that sentiment. For this reason, I would start by encouraging you to adopt Professor Kent Roach's recommendation that the review contemplated in part 9 of the act take place sooner, rather than later.

The same goes for the CSE Commissioner's recommendation with regard to the need for the proposed intelligence commissioner to produce an annual report on his or her authorizations, to be tabled in both Houses yearly. Also, there is the need to ensure that any activities that implicate a reasonable expectation of privacy, and thus implicate section 8 of the charter, by necessity, are properly overseen by the intelligence commissioner.

Here, I have three things in mind. First, the CSE Commissioner has recommended that proposed section 37(3) of the CSE act be amended to require the IC approval of ministerial authorizations to extend foreign intelligence operations. Indeed, if the original operation requires IC approval, so too should any follow-up. Arguably, the IC will have more information on which to base a decision at this re-authorization stage. More to the point, it is at this later stage that we will really see whether, and how much, incidental collection of Canadian content is forming a part of the foreign intelligence collection.

This brings me to my second point fairly neatly. I encourage you to focus your legal review of the proposed CSE act on those sections that implicate the collection of incidental information not, as we commonly say, directed at Canadians. In the past, including recently in both the U.S. and Canada, we have seen that lack of oversight over just this sort of incidentally collected information can cause great legal and political controversy that I don't believe anyone is looking for.

In the context of the proposed CSE act, I would then encourage you to adopt Professor Craig Forcese's call to amend subsections 23(3) dealing with the collection of foreign intelligence, and 23(4) dealing with cybersecurity. CSE is made to seek ministerial authorization, and thus IC oversight, where its activities will contravene an act of Parliament, as it currently states, or involve the acquisition of information in which a Canadian or person in Canada has a reasonable expectation of privacy.

Our charter demands oversight where there is a reasonable expectation of privacy. Therefore, it is very hard to see how, without ministerial authorization and IC oversight, the bulk collection of information that implicates the reasonable expectation of privacy, which under the current wording could be permitted, would hold up in any court of law in Canada.

Third and finally, I believe that you have heard testimony that has expressed concern about the collection of publicly available data, without the oversight of the IC. I'd be happy to provide more detail here during the question period. For now, I will simply say that one can certainly be sympathetic to the carve-out for publicly available data. If the public can access it, surely there is no need for the CSE to get approval to do the same, or so the theory might go.

But not all publicly available information is the same, and bulk publicly accessible information in the hands of the state is a very different thing indeed from that information in the hands of an individual like you or me. For example, unlawfully obtained information, hacked passwords for example, can become public but nevertheless will also be thought of as private information—at least in the eyes of those who hold those passwords. Moreover, discrete pieces of public information may seem harmless on their own, but when harnessed together by the state to produce big data analytics that can also be publicly purchased and then collected as one piece of information, the amalgam of public information can offer very private insights into the lives of individuals. Of course, all of this adds to the thinking, which is already present with respect to some publicly available information, that in the right context public information can itself implicate a reasonable expectation of privacy and thus implicate section 7 of the charter once again.

Put another way, just because it was accessed publicly, does not mean it doesn't implicate the privacy protections of our charter. This will, of course, have ripple effects for how that information can be used and shared. With IC oversight, for example, such private “public” information might be shared with the RCMP for prosecutorial purposes. Without IC oversight, information collected in violation of the charter will not likely be able to be used in support of such prosecutions.

In short, unless CSE's collection of public information is brought under the purview of the IC, there is real reason to fear that we have both a security and a liberty concern here.

Thank you very much for your time.

[The Vice-Chair, Conservative, Pierre Paul-Hus]

Thank you, Mr. Nesbitt.

Mr. Mostyn, you have 10 minutes. Please go ahead.

[Michael Mostyn, Chief Executive Officer, National Office, B'nai Brith Canada]

Thank you. I will be sharing my time with Mr. Matas.

We thank the committee for inviting us to appear. I will provide some introductory remarks. My colleague David Matas, our senior legal counsel, will elaborate on some of our key points on the proposed legislation.

B'nai Brith Canada is this country's oldest national Jewish organization, founded in 1875, with a long history of defending the human rights of Canadian Jewry and others across the country. We advocate for the interests of the grassroots Jewish community in Canada and for their rights such as freedom of conscience and religion.

B'nai Brith Canada testified before this committee in 2015 and, most recently, in February 2017, on what was then Bill C-51. Our testimony today will develop the same points we had previously expressed, and we will focus on specific areas that touch on our work, particularly part 7.

Our latest audit of anti-Semitic incidents in Canada contains a key truth: Jews are consistently targeted by hate and bias-related crimes in Canada at a rate higher than that of any other identifiable group. Statistics Canada recently released its report on 2016 police-reported hate crimes, and once again Jews were targeted more than any other group in the country. But police-reported hate crimes are only the tip of the iceberg. We require better tools—data and analysis—to gain greater insights into all hate crimes and to do a better job of countering them.

Bill C-59 includes proposals to change the Criminal Code aimed at improving the efficiency and effectiveness of the terrorist entity listing regime. We endorse those proposals providing for a staggered ministerial review of listed entities and granting the minister the authority to amend the names, including aliases, of listed entities.

In the past, B'nai Brith has been supportive of measures to empower security officials to criminalize advocacy and promotion of terrorism, and seize terrorist propaganda. We supported these measures to deny those intent on inspiring, radicalizing, or recruiting Canadians to commit acts of terror and who exploit the legal leeway to be clever but dangerous with their words. Bill C-59 seeks to change the law's articulation of this offence from “advocates or promotes” to “counselling” the commission of a terrorism offence. This is a weakening of the law that we believe is unhelpful. We have noted the assurances provided by the Minister of Public Safety and Emergency Preparedness, but we are still uncertain that such a change, which in our view weakens the law, is needed.

The change of advocacy and promotion to “counselling” also impacts on the definition of “terrorism propaganda”. Bill C-59 would remove the advocacy and promotion of terrorism offences in general from the definition. This is also a weakening of the law.

We accept that the right to freedom of expression is an important consideration, but the right of potential victims to be free from terrorism and the threat of terrorism must be a greater priority.

The importance of a clear articulation of the penalties for advocacy and promotion of terrorism should include the glorification of terrorism, something that should be of concern to all of us.

These are specific points I wanted to raise. There are others that, while not specifically part of the proposed amendments to Bill C-59, are intimately associated and are of interest and concern to B'nai Brith Canada. There are further points here. I'd like to highlight some.

The continuing manifestation of anti-Semitism, hate crimes, and hate speech in Canada affects not only the Jewish community. B'nai Brith Canada sees these worrying trends as national security issues. Organizations such as ours working with law enforcement agencies at the federal, provincial, and municipal levels must address these issues collaboratively.

The government's framework to counter youth radicalization is also extremely important. We endorse the work of the Canada Centre for Community Engagement and Prevention of Violence. We look forward to a stronger dialogue with them.

How can we collaborate in the more effective monitoring of groups engaged in hate speech or incitement directed at children, including those using coded messages that are nonetheless threatening, even where these might fall short of actual crimes? This is very much the focus in countering radicalization at an early stage, where civil society can have better dialogue with law enforcement.

How can we ensure that government agencies shun questionable organizations and groups, particularly those that receive government grants and nonetheless are operating in ways inimical to the fundamental rights and freedoms of Canadian society? We would welcome a channel of dialogue for this purpose.

Lastly, how can we better engage in dialogue with the Canada Revenue Agency to ensure diligent follow-up to complaints regarding organizations engaged in or supporting those expressing hate speech at odds with their charitable status?

There are other points, as I mentioned, in our paper. I'm sure we can answer those in questions.

I'd like to cede the floor to my colleague David Matas.

[David Matas, Senior Legal Counsel, B'nai Brith Canada]

Thank you very much, and thanks for allowing us to be here.

I want to restrict my remarks to one particular component of the bill, the proposal to remove from the Criminal Code the offence of advocating or promoting a terrorist offence, and to replace it with the offence of counselling a terrorist offence. We are sympathetic to the expressed government motivation that led to the introduction of this change. Nonetheless, we believe the proposal is problematic.

Public Safety Minister Ralph Goodale expressed concern that there were no prosecutions under the existing law. He introduced the change, so he said, in order to introduce a more familiar offence for which prosecution would be easier. We, too, of course, are concerned by the absence of prosecutions under the existing law. However, it is far from obvious that changing the offences of advocacy and promotion to the offence of counselling will resolve this problem.

For one, we note, as you've already seen in the submission of the International Civil Liberty Monitoring Group, that there is the view that the offence of counselling is superfluous now because that offence already exists in the Criminal Code. If that submission is right, and the offence is already there, then shifting the offence of advocacy and promotion of terrorism to counselling of terrorism will do nothing to solve the problem of inactive prosecution. Saying the same thing twice does nothing to spur prosecutions. If incitement to commit a terrorist offence was not prosecuted under the present counselling law, there's no reason why it would be prosecuted under a repetition of that law.

The alternative, of course, is that the proposed counselling offence does add something new, that it is not just a re-enactment of the already-existing offence. However, if that is the case, then the advantage of familiarity with an existing standard that the minister touted does not exist. If this counselling offence is different from already-existing counselling offences, then the new law will suffer from the same teething problems that the existing advocacy and promotion law have arguably suffered.

The rationale of the minister for the need to enact a familiar offence to make the law work is further undermined by the fact that advocacy and promotion are not new and different offences. The offence of advocacy exists for both genocide and sexual activity with a person under the age of 18. The offence of promotion exists both for genocide and hatred. In my written materials, I go through a number of cases in the Supreme Court of Canada that look at, define, and circumscribe these offences of advocacy and promotion. Therefore, we already have plenty of legal guidance about the meaning of the concepts of advocacy and promotion.

The notion that prosecutors have stayed their hands because they're uncertain about the meaning of the current law or worried about its overbreadth is not supported by an examination of the Criminal Code and the jurisprudence.

The minister has identified a real problem: a failure of prosecutions under the existing law despite the multiplicity of apparent violations. The solution he proposes, we suggest, does not directly address the problem. The solution, we suggest, lies elsewhere. The prosecution of incitement to terrorism within crown investigation and prosecution offices needs to be given a higher priority. There need to be more resources, more expertise, more training. There needs to be more international co-operation, more experience-sharing, more learning from others, including Israel, who have had to grapple with this problem.

We would encourage Canada to sign and ratify the Council of Europe Convention on the Prevention of Terrorism, which incorporates the specific obligation to prohibit public provocation of terrorism. Ratifying the treaty would not only allow for closer collaboration between Canada and other terror-combatting states, it would also make directly relevant to Canada the jurisprudence in other countries and the European Court of Human Rights, which interpret the relevant treaty provisions.

The government could publish advisory guidelines on its understanding of the meaning of the advocacy or promotion of terrorism. The guidelines would not bind prosecutors but could help dispel uncertainty. One suggestion already indicated by my colleague, Michael Mostyn, is that the guidelines should state that glorification of terrorism should be included in advocacy or promotion of terrorism.

We welcome the fact that the government and the committee are giving the combat against incitement to terrorism the attention it deserves. It remains, nonetheless, for us all to choose the best course to follow in combatting this scourge.

Thank you.

[The Vice-Chair, Conservative, Pierre Paul-Hus]

Thank you gentlemen.

We now move into questions and comments. Starting us off is Mr. Fragiskatos for seven minutes.

[Peter Fragiskatos, Liberal, London North Centre, ON]

Thank you.

Thank you very much to all witnesses for being here today.

I want to begin with B'nai Brith if I could.

You mentioned in your comments the recent StatsCan report that has been compiled on hate crimes. We've heard a number of witnesses speak about specifically national security, conceptions of national security, and how they define threats to this country. The conclusion that I've come to is that this is a matter of perspective. Daesh is certainly a clear threat to Canada and other democracies, but it is not the only threat.

From your perspective, Mr. Mostyn, could you speak to the threat of far-right groups who take an anti-Semitic view, and what that means for the Jewish community in Canada? I think that matter of perspective can get us a long way to understanding exactly what is the nature of the threats confronting Canada. I don't think we can pick one or two or even three.

[Michael Mostyn]

Thank you very much for the question. I think it's a very important question. It points to how interrelated some of these hatreds are, and that are actually a pathway towards radicalization, and terrorism in certain cases. As you mentioned, there is something of a resurgence within the extreme right, the neo-Nazi movement. A Canadian, Monika Schaefer, is sitting in jail in Germany for the promotion of Holocaust denial. She's a dual citizen and a former candidate for a political party here in Canada.

The one thing that seems to connect the extreme right anti-Semitism and the extreme left anti-Semitism unfortunately seems to be the hatred of Jews. They're very explicit about that hatred. It's interesting, because when you're talking about the pathway an individual might go down, whether it's for a Criminal Code offence of hate speech or further down towards actually engaging in an act of terrorism, promotion and incitement to terror begin with the vilification of a target group. It starts in broad and general terms, and then incessantly dehumanizes that target group until eventually that pathway has gone so that an individual has accepted the ideology and is willing to act out on that ideology. That, we know, is the pathway down to radicalization. That's why B'nai Brith has been speaking out so strongly about hate speech. We don't want it to get to that pathway where individuals—particularly those, like the youth, who are most vulnerable—get those messages, dehumanize certain groups, and then act upon that.

Again, that's why we're focusing on the promotion of terrorism here. This is something we don't want to see in our country. It is a real threat. Unfortunately, in the world today it's a growing threat.

[David Matas]

One further comment I would make is that the Jewish community, unfortunately, of course has been the target of terrorist offences from a variety of different groups, but it also historically has been a victim of violation of the right to freedom of expression through religious intolerance. As a result, we have a lived experience of the violation of both of these rights, the loss of which we feel keenly. In our own minds and through our own experience, we've had to grapple with the need to balance these rights off against each other, which leads us to come to the conclusions we do.

[Peter Fragiskatos, Liberal, London North Centre, ON]

Thank you very much to both of you for that.

I want to pick up on something that was mentioned toward the end of your comments. That's the critique of the change in Bill C-51, the speech crime provision, and the change to a counselling offence. It's interesting, because one of the criticisms of Bill C-51 was that under the speech crime provision as written, it was conceivable, for example, for a Canadian journalist to be convicted under that bill for writing in favour of some of the actions taken by anti-apartheid activists against the infrastructure of the racist South African state in the 1980s. That's if Bill C-51 had been in place, obviously, during that time.

With the counselling offence, this is much more common in existing criminal law. It still would allow for individuals who are involved in encouraging terrorism to face legal consequences. I wonder if you could comment from this perspective. I mean, do you see that point about the dangers of Bill C-51 and how that might impact upon freedom of expression?

[David Matas]

I would say that any law has to be interpreted purposively and with the limitations imposed by the Charter of Rights and Freedoms. As I said, advocacy and promotion have both been canvassed extensively by all courts, including at the Supreme Court of Canada in a variety of cases. The Keegstra, Mugesera, and Sharpe cases have dealt with these concepts at the Supreme Court of Canada. B'nai Brith intervened in a couple of them. I myself intervened in the Sharpe case through another NGO at the time.

It's possible to think about any law that can be abused or misinterpreted or misapplied, but what we're looking at is what the law is intended to get at. There are some real problems there. One of the examples that the court gave, in one of these cases, is that in one of Shakespeare's plays, there's the statement, “Let's kill all the lawyers”.

[Peter Fragiskatos, Liberal, London North Centre, ON]

Let's not.

[David Matas]

I mean, we're both lawyers. Obviously, we don't like that.

[Voices]

Oh, oh!

[Peter Fragiskatos, Liberal, London North Centre, ON]

I'm not even a lawyer, but I know some of my colleagues are. Julie is.

[David Matas]

We concede that it doesn't fall within these laws.

In looking at the law, we shouldn't look at it in such a way that it makes the law look absurd because that can undercut almost any law.

[Peter Fragiskatos, Liberal, London North Centre, ON]

Thank you, Mr. Matas.

I will go to Professor Nesbitt. I know you have been critical of CSIS having disruption powers. You've expressed concern on that front.

Should CSIS have any disruptive powers? Should its officials not have an opportunity to get in the way of potential attacks before they strike Canada and compromise our security? I'm trying to understand where you see an intelligence service such as CSIS fitting in and what powers it ought to have under its mandate to protect Canadian security.

[The Vice-Chair, Conservative, Pierre Paul-Hus]

I have to cut you off there, unfortunately. You're out of time, Mr. Fragiskatos.

Mr. Motz, it is now your turn, and you have 14 minutes.

[Glen Motz, Conservative, Medicine Hat—Cardston—Warner, AB]

Thank you, Mr. Chair.

I will ask my first set of questions to our guests who are here in the committee room with us today.

We heard from the Centre for Israel and Jewish Affairs that the proposed change with respect to the promotion and advocacy of terrorism effectively makes the change to the Criminal Code somewhat redundant. Yet, we need to ensure that those promoting lone wolf attacks are stopped from promoting violence and hate.

Are the changes that are proposed from advocating or promoting terrorism to “counselling” it a fundamental shift from that? You spoke about it earlier, sir. Is there anything more you want to add on that?

[David Matas]

Right now I think the government has identified a real problem; there are no prosecutions. I don't think the problem is the wording in the law. In fact, the wording in the law we have now I think is preferable to the wording the government proposes. I think there's a different way of dealing with this problem. I don't see the problem being solved by changing the law to more restrictive wording, because I don't see the problem existing in the wording in the law. In fact, it sends a counterintuitive message that we're stepping back from directly addressing this problem. We have to think of ways of moving forward rather than stepping back.

[Glen Motz, Conservative, Medicine Hat—Cardston—Warner, AB]

For the sake of time I'm not going to pursue it, but I'm really interested to know what you think those solutions might be, for another day.

[David Matas]

I did try to indicate at least some of them in my brief: education, training, signing the convention guidelines, and working with other countries. I would say we are dealing with terrorism—not just incitement, but terrorism generally—as a relatively new phenomenon. As a result, it requires a form of expertise that the police authorities' prosecution and investigation haven't traditionally had. I don't see the development of that experience and the ability to use the law being affected by changing the law. I think it has to lie elsewhere.

[Glen Motz, Conservative, Medicine Hat—Cardston—Warner, AB]

Okay.

[Michael Mostyn]

If I could just add to that, we need to ensure that conceptually there is no narrowing, so that our security agencies can properly deal with the threats of terrorism today and the threats of terrorism that exist tomorrow.

On the Justice Canada website right now, in a description of Bill C-51 discussing the criminalization of the advocacy or promotion of terrorism offences in general, it states that:

It is directed at prohibiting the active encouragement of the commission of terrorism offences and not mere expressions of opinion about the acceptability of terrorism.

A sentence later states:

It extended the concept of counselling to cases where no specific terrorism offence is being counselled, but it is evident nonetheless that terrorism offences are being counselled.

I think we need to be careful about narrowing it as if that were handcuffing our security apparatus from dealing with the threats of terrorism into the future.

[Glen Motz, Conservative, Medicine Hat—Cardston—Warner, AB]

For me to properly understand, you're suggesting that the language in the former Bill C-51 might actually serve national security interests better than the proposed language in Bill C-59. Is that correct?