Mr. Speaker, I would like to concentrate my remarks on the theme that has emerged today from the government side, which is that somehow or other the NDP is being misleading and there is a bunch of inexpert critics across Canada commenting on Bill C-51. I will not go the next step and say that there has been misleading coming from the ranks of the government, but that will be apparent as well in my remarks.
I would like to start with three groups of actors who were excluded from testifying before the Standing Committee on Public Safety and National Security on Bill C-51. The Conservatives did not want these people revealing their knowledge and the information that comes with it.
The special advocates who are in charge of providing representation in national security certificate proceedings wanted to appear. They were not allowed to appear, so they instead sent a written submission where they pointed out two problems with Bill C-51. One was that in the existing national security certificate proceedings, a whole set of new restrictions were being put on the access of special advocates to government information relating to the person whose interests they were supposed to be protecting in the name of fair process within the legal system.
Under the amendments to the Immigration and Refugee Protection Act proposed and that are now going forward in Bill C-51, the government will now be allowed to decide what information is relevant for the case made by the minister and then give only that to the special advocates. They are demanding rightly that this be amended, no although there is no chance it will be now, so that special advocates can receive all information and other evidence in order for them to decide what is relevant and what is not. Quite obviously, the second possibility would be for the judge to determine, but not for the government on its own to be able to do that.
The second thing they wanted heard was about this new disruption power that was being placed in the hands of CSIS, with a role being given in certain circumstances, far fewer circumstances than the government would lead people to suggest, for judges to preauthorize the issuing of warrants for disruption, some of which could preauthorize charter infringements, infringements meaning a violation of a right, that they would determine somehow was still not a violation of the charter, if we were to understand how the justice lawyers represented it finally, with more clarity than the minister was capable of, at committee.
Basically, they have made the excellent case that this needs a system of special advocates. These are going to be secret proceedings, ex parte proceedings. Judges will have no power to follow-up and see whether or not the warrant they issued had any bearing on or relationship to what was actually carried out. There are all kinds of problems with the procedural aspects of the process to suggest that people's interests, those who are going to be subject to these broad-ranging warrants that have nothing to do with the two normal things that judges are involved with, which is issuing warrants for arrest and for reasonable search and seizure, that those people would have their interests adequately protected.
This is a group of special advocates, all of whom are eminent lawyers, in the Canadian legal community, including Paul Cavalluzzo, Paul Copeland, John Norris and Lorne Waldman. Those are just four of the signatories of their submission.
The second person who was excluded from testifying before the committee was an officer of Parliament, the Privacy Commissioner, who I would like to remind everybody, is also not just there to protect privacy interests in the realm of being the Privacy Commissioner, but who comes from a background of national security law when he was with the government before being appointed. I have to be honest. I was worried about that when he was appointed, but he has turned out to be the good lawyer that everybody said he was and he has interpreted his role as being to actually comment on legislation when it is going to create serious impact on privacy rights.
Let me talk about the information sharing act. We have been on about this in the House a couple of times today. We discusses it in his written submission, because of course he again was not allowed to testify before the Bill C-51 House of Commons committee. I do not know what kind of democracy people think we are operating here, but it is not a full-fledged parliamentary democracy in any way, shape or form when an officer of Parliament cannot appear before a committee on a bill that strikes at the heart of privacy concerns.
In sum, the 17 federal departments in question would be in a position to receive information about any or all Canadians’ interactions with government.... We are moving very quickly into the world of Big Data... As a result of [the new act, Bill C-51], 17 government institutions involved in national security would have virtually limitless powers to monitor and, with the assistance of Big Data analytics, to profile ordinary Canadians, with a view to identifying security threats among them.
He is saying that is obviously a huge incursion into privacy. What we do about it is what so much of the rest of his brief is about. Of the five or six recommendations he had that would have been helpful to have testimony on in the full light of day, with media and others paying attention as well, here is one. He said:
Another obstacle to effective review is that existing review bodies are currently unable to share information amongst themselves. As we and others have stated previously, there is at present no explicit legislative authority to conduct joint reviews of national security operations, nor is there a mechanism whereby information of relevance that may be discovered by one review body could be passed to another.
He goes on to say, “A system which proposes removal of silos between government departments”, these are the 17 government departments that would be able to share information more freely under this new system, for information-sharing purposes must provide for the same removal of silos for the bodies which ensure their activities are compliant with the law”.
Finally, he is echoed by the third actor I want to mention, Commissioner Plouffe, who is the Communications Security Establishment Canada. He also did not want to appear before the committee. That included special advocates, the Privacy Commissioner and the CSEC commissioner. One of the only three review bodies that exist in our entire system was not even allowed to testify. Basically, he had the same concern as Privacy Commissioner Therrien. Despite the fact that all this information-sharing power is given to all the government departments, no parallel power is even given to the 3 agencies that oversee 3 of those 17. He said:
However, an explicit authority to co-operate and share information would strengthen review capacity and effectiveness. This authority becomes that much more important in the evolving context of ever greater co-operation between the intelligence and security agencies
Sharing of information among the existing review bodies would allow one to alert another as to what information was being shared, to follow the trail of that information and to ensure that the sharing of information complied with the law and that the privacy of Canadians was protected
No testimony at all appeared along these lines because, again, he did not appear.
He ended by saying, in what has to be a masterpiece of diplomatic speak:
I regret that an opportunity has not been seized to introduce amendments to the National Defence Act to eliminate ambiguities that were long ago identified by my predecessors.
None of this is new. We all know of these concerns and that is why four prime ministers, with a number of former justices of the Supreme Court of Canada, also wrote specifically on this point. They reminded us all that proper oversight and review is there, especially with radically expanded powers to security agencies, not just CSIS, as the information-sharing powers would go well beyond CSIS in this act, not just to protect human rights, constitutional rights, civil liberties, whatever one wants to refer to them as, but also to protect public safety. Oversight and review go to the effectiveness of the agencies. They catch problems. They ensure that agencies are not actually doing either ineffective or counterproductive or, frankly, stupid things.
I would like to draw attention as well to a document produced by Professor Forcese, who did yeoman's service, along with Professor Roach, drawing the country's attention to the multiple problems in this bill. I will simply cite an article online, published on April 16, called “Bill C-51: Catching Up On The 'Catching Up With Our Allies' Justification For New CSIS Powers”.
He basically goes through all of the countries that the government is claiming already have the disruption powers that it says it is putting into Bill C-51 in order that we can catch up, and he takes apart every one of the references. There is not a single country that can be used in support of the power that is going into Bill C-51. It is a longish document and has to be read to be understood, but it shows that the government is actively engaging in either sloppiness of the most serious sort or an active deception on this point. This document is another one that needs to be taken into account.
I would finally like to point out that one thing that came out of the hearings was that the government confirmed it was interested in including the within the disruption power the power to detain and to render people from Canadian hands to other hands. When amendments were put forward to ensure that was expressly excluded from disruption powers, the Conservatives voted it down and said that they wanted to leave it open. This is something we all have to know, that there is an agenda here on some fronts about which we should be very concerned.