Public Safety Committee on Feb. 8th, 2018

[Michael Mostyn]

That's correct.

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

Mr. Mostyn, in testimony on Canada's national security framework you said:

...the Jewish community is particularly vulnerable to hate propaganda throughout the world, and many of the most powerful terrorist organizations in existence today, such as Hamas, Hezbollah, and Daesh, rely upon the promotion of hatred with a particular focus on anti-Semitism to inspire acts of terror.

As we know, we don't have to look very far in time to see a place where this very much is the case, and still is the case, from the attacks on supermarkets in Paris to the endless calls for the death of Jews and the democratic state of Israel by regimes like Iran.

When we think of those real-life examples, does this bill go far enough? Does it do enough to protect Canadians in its minority communities against radical Islam terrorism?

[Michael Mostyn]

As Mr. Matas stated earlier, I don't think any law, no matter how it's worded, is going to protect Canadians.

It's how it's interpreted. At the end of the day, it's about the training and education of our law enforcement agencies. It's how they work together and how they work with their international partners. It's understanding the threats. It's understanding the new coded language of those threats, which it doesn't appear that all law enforcement agencies in Canada are familiar with. It changes. Sometimes there are religious nuances, and this needs to be understood because....

For example, many police forces across the country have guns and gangs divisions. They speak in coded languages. They don't speak in ordinary English. We need to understand that language. That is an educational exercise. That's a training exercise. It's not necessarily something that might be covered in legislation, per se.

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

I appreciate your comment that the law itself doesn't necessarily make this, but that it's the application of it that will add to national security. I appreciate those comments.

You spoke earlier, in your follow-up to my colleague's questions, of the link between hate and terrorism. If I understood you, you're suggesting that all terrorism, or terrorism generally, is rooted in hate.

[Michael Mostyn]

Terrorism has to come from a place of hate for any individual to go out and perform such heinous, murderous violence. There has to be seething hatred inside of them, and that's a pathway.

Sometimes it can happen very quickly. Sometimes it can get extended out. However, there are going to be various moments in time—trigger points, and influencers of individuals. Individuals who are more vulnerable tend to be targeted by this radicalization, but at the end of the day, yes, it's based in hatred. It's based in dehumanization of identifiable groups, absolutely.

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

This is for both of you, and for you, Professor Nesbitt, as well.

I'd like your view on the following. In part 5 of this bill, in subclause 115(4), it says:

...[any form of] advocacy, protest, dissent or artistic expression is not an activity that undermines the security of Canada...

Now, is there a risk that including this language may potentially present loopholes that the authors of the bill may not have considered at the time and that may, indeed, present a risk to the security of Canada and Canadians?

[David Matas]

That provision's already in the law, if I remember correctly.

Are you asking if it should continue to be there?

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

Yes. It's in a different form in Bill C-59 than it was in C-51, if I am correct.

[David Matas]

Yes. Right now, that's a theoretical concern. If we had an actual prosecution that was stopped by that language and we felt shouldn't have been stopped, then we would say yes. But right now, we're at a state where.... Or if the government said that it felt that this language was what was inhibiting it, then we would say yes also.

However, that's not what the government is saying. It's saying that it's concerned about the punitive sections, not the defence sections.

I should say that this is a problem that we have seen with the police and the administration of justice with regard to hate offences. Now police have a lot of hate crime units. We've seen it with sexual assault offences, and now police are becoming more sensitized to this.

I really think that what we need to do is make this work. If it's not working with the language that we have, then we can change it. However, to try to change the language before we even start making it work, in my view, sends the wrong signal.

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

Mr. Nesbitt.

[Prof. Michael Nesbitt]

I'd have to look at the precise language and compare it to the Supreme Court, but my sense is that it is just implementing Supreme Court requirements with respect to this sort of crime in particular, namely hate speech. This is making it charter compliant, and it's not doing a whole lot more than that. In fact, without this, I think there were concerns that we would not have charter compliant law.

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

Thank you.

Professor Nesbitt, in your testimony on the national security review, you suggested that there needed to be better coordination of agencies and organizations.

Is this achieved here in Bill C-59? Do you see the new NSIRA as an ideal group to conduct this centralized information collection and analysis and then to put it together in a bigger picture?

[Prof. Michael Nesbitt]

Yes, I'm quite supportive of both the new review bodies and the intelligence commissioner oversight. As I said during my testimony as well, I think this is not just my speaking as a lawyer about the promotion of liberties and rights and laws in Canada, by my speaking as someone who has worked in government and seen the benefit of having outside review to the efficacy of internal operations.

My biggest concern will not be legal but will be with respect to resourcing. If the resources are there—to get into the weeds—specifically to consider the operations of those agencies when certain matters are considered, then I think this could be very beneficial. Again, that will probably come down to—at least as far as I can tell so far—resourcing.

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

To follow up, in 2015, in an article you authored for the National Post, you wrote that “Canada cannot claim to have taken the threat of ISIL funding seriously in the way the U.S. has. Canada’s sanctions, legislation and enforcement are outdated, under-funded and limited in scope.”

Does Bill C-59 address this issue of terrorist group funding in a meaningful way?

[Prof. Michael Nesbitt]

No, actually that's one of the concerns I continue to have with respect to our national security laws. That is, when we prosecuted terrorist group funding, there's been only one example under our Special Economic Measures Act, or our sanctions, and one or two examples under our Criminal Code. So we have very few examples of Canada taking this particularly seriously, and that's despite the fact that we have ample evidence from foreign organizations, including the CIA for example, saying that Canada is at risk of being a home to terrorist financing and other sanctions-busting activities.

One of the things at some point we'll have to look at is more than just the Magnitsky act as it went through, but the Special Economic Measures Act, in particular, and how we're dealing with terrorist funding through, frankly, Foreign Affairs, under our suppression of terrorist regulations, which are crimes under their purview, and our economic sanctions against Russia, North Korea, Syria, Iraq, and others.

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

Would you suggest, then, that there might be an opportunity to strengthen Bill C-59 by adding some provisions that have to do with this specifically?

[Prof. Michael Nesbitt]

I don't know whether.... I wouldn't want to tell you folks how to do your job—

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

But that's why you're here. Sir, you're here to give us advice based on your experience on how to properly, in your opinion, address this issue of national security and public safety. We have a unique opportunity with this bill being before committee before second reading—

[Prof. Michael Nesbitt]

Sure.

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

—so it's quite by purpose to ask experts to tell us what we're missing.

[Prof. Michael Nesbitt]

I'll tell you my only concern with that. It's not at all with the question you're asking, which is do we need to do something more? Absolutely. Does it need to be legislated? Absolutely. Do we need significant oversight by the NSIRA over Foreign Affairs operations and CBSA operations here? Absolutely. Whether that should be in what is already a very long omnibus bill, that's where I'm more tentative, on whether you want to add language to this bill or a different bill. In general, I would be very supportive of seeing increased oversight of and attention to this issue.

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

Thank you, Mr. Motz.

Ms. Damoff, it is now over to you for seven minutes.

[Pam Damoff, Liberal, Oakville North—Burlington, ON]

Thank you, Mr. Chair.

Thank you to all three of our witnesses for being here today. I believe you were here when we were studying the national security framework the last time. I seem to recall being on a panel with both of you when we were looking at that, so I appreciate your coming back.

It always concerns me when our discussions on terrorist attacks focus solely on ISIS and not on the attacks on our Muslim community and by right-wing groups. That has come up. I think I mentioned the last time you were here that when there is an attack on the Muslim community, I am always struck by the fact that the first people to step up are from the Jewish community. I think it's because of that long history of hatred towards the Jewish community that you recognize the impact. Certainly in my own community, I know there's Halton Interfaith Council and tremendous co-operation, and that it is the Jewish community that is always the first to step up when there is an attack on the Muslim community.

I just want to thank you for that and make sure that our conversation is on the broader terrorism threat, not just on ISIL.

We had the Minister here—and this is directed to B'nai Brith, because you were talking about advocacy versus counselling—and law enforcement here, and I believe there were other witnesses as well, although I don't recall for sure. They agreed with what the minister said about the ability to prosecute, that advocacy did not give them the tools they needed and that counselling actually would give them the tools to go out to get those prosecutions.

I'm wondering if you saw that testimony and if you would agree with what they were saying. I will put that to both of you, just quickly.

[David Matas]

No, I do not agree, because, as I pointed out previously, the offence of counselling for a terrorist activity is already there in the Criminal Code. It's a different section. It's not section 83.221. I think it's subparagraph 83.01(1)(b)(ii), but it's there, and if all they needed was the offence of counselling to go ahead, they could have used that provision. They didn't have to get a change in the law.

The fact that they didn't do it, even though it's already there, doesn't give me much confidence, as I said, that just saying it twice, in two different parts of the Criminal Code, is going to do much. I think the problem lies elsewhere. It's basically that they're just not used to dealing with terrorism. It's not traditional expertise within the police force. They really have to develop a specialized expertise that can address it.

[Pam Damoff, Liberal, Oakville North—Burlington, ON]

Thank you.

Professor Nesbitt, do you have anything to add to that?