Mr. Speaker, I rise today to speak to deletions to Bill C-44, the so-called protection of Canada from terrorist act. While we all agree that Canadians must be protected and that reforms to the way CSIS operates are certainly necessary, I question whether the bill would move us any closer to safety from terrorists.
The way the bill is being rushed through the House of Commons, it looks like the Conservatives are trying to ensure that we parliamentarians do not have the chance to finally read it. After the Conservatives imposed time allocation on the bill at second reading, the committee heard from witnesses for one meeting, two hours, and not a single opposition amendment was accepted.
The Privacy Commissioner had serious concerns. He wrote to the committee that he would, “welcome the opportunity to speak” to the committee. He was not invited. Again, we see the Conservatives' contempt for expert advice, even from their Privacy Commissioner.
It is possible to find a balance between our safety and our freedoms, our security and our rights. However, the government seems to want to weaken our privacy laws without achieving any security objectives.
Further, as our intelligence operations increasingly involve working with other countries, the bill would potentially undermine the possibility of any meaningfully safe co-operation. In the words of the Canadian Bar Association:
—Bill C-44 would undermine established practices that balance national security against fundamental rights, and potentially call into question Canada's compliance with its international law obligations.
In committee, the minister himself proudly stated, “I think this is the most constitutional bill we have introduced”. That probably speaks less favourably to the government's record than the minister quite intended. It is quite ironic.
Apart from quite serious democratic issues, my concerns also relate to the provisions in the bill amending the way the CSIS Act would treat human sources and the bizarre wording regarding activities beyond Canada's borders. The bill would redefine the privilege given to human sources, but according to legal experts, Bill C-44 would actually lessen the protection given to sources. I am also concerned the bill would seriously interfere with the proper administration of justice in Canada.
Although the stated purpose of these amendments is supposedly “is to ensure that the identity of human sources is kept confidential”, the new wording would limit this protection to only apply “in a proceeding before a court”.
According to the Canadian Bar Association:
—disclosure of information relating to confidential human sources appears to be limited to disclosure of information during the course of judicial proceedings. The proposed amendments to section 18 do not include any general prohibition against disclosure of information outside the judicial proceedings, such as found in section 18(1) [of the Act]. Accordingly, if a confidential human source provides information about a matter that does not result in a judicial hearing, the CSIS Act would no longer prohibit disclosure of either the information or the identity of the source.
Human sources risk their lives for our safety. The bill would reduce their protection unless the matter was before the courts.
The second major issue is a serious constitutional one. The place where we need to be most careful when granting confidentiality is in the justice system. The charter guarantees that every person be granted “a fair and public hearing”. The wording of the definition of “human sources” is so vague that it may become even more difficult to convict any terrorists at trial.
The definition in clause 2 does not require that the promise of confidentiality be explicit or written for a source to effectively veto proceedings. May I remind members that the Supreme Court ruled just last year that a promise of confidentiality may even be “implied”.
In the context of police informants the court wrote:
An implicit promise of informer privilege may arise even if the police did not intend to confer the status or consider the person an informer, so long as the police conduct in all the circumstances could have created reasonable expectations of confidentiality.
Expert witness Professor Kent Roach testified before committee. He said:
—I have a concern that virtually every human source CSIS talks to under the proposed legislation would then have the benefit of the privilege and a veto on any identifying information being disclosed, whether it's to defend a search warrant in a terrorist investigation or to be called as a witness in a terrorism prosecution.
He went on to say that these ambiguous promises could “hinder or even thwart subsequent prosecutions”.
There is absolutely no evidence to suggest that CSIS informants are not given enough protection. This is a solution in search of a problem. It would actually open informants to new vulnerabilities and handcuff our justice system in the fight against terror.
I also want to address the wording of clause 8 and highlight some of the serious consequences that could arise.
I am a former police officer and I am not naive. I know that for the sake of protecting Canadians, we sometimes do need to investigate outside of Canada. However, it is absurd and belligerent to require that the Federal Court grant warrants for actions in another country, “Without regard to any other law, including that of any foreign state”.
Even if we ignore the highly questionable notion that our courts have the jurisdiction to authorize activities outside of Canada, this language is highly problematic. The wording is so bold and so broad that it opens up serious questions. Does it apply to international law? What are the limits? When is a warrant even needed here? Did anybody think about how this would look, how it would affect our international co-operation and, especially, how it could invite other countries to violate and disregard our laws?
I am shocked but not totally surprised by this anti-democratic piece of legislation from a government whose party has shown itself to be repeatedly anti-democratic here at home.
Our intelligence regime certainly does need changes. CSIS could definitely use an update. We seek more effective measures to prevent terror and we desperately need to overhaul our barely existing oversight program. If we take a look at evidence and listen to the experts—what a novel thought—there is no reason why we need to give up the search for balance between a strong legal system and national security.
We can have oversight and safety, rights and protection. The amendments the Green Party proposed in committee, which were rejected out of hand, could have helped to do that.