Craig Scott

[Privilege, May 8th, 2015]

Mr. Speaker, I rise today on a question of privilege. I was blocked from accessing Centre Block, and thus the House of Commons, by an officer of the RCMP. This physical obstruction impeded me from performing my parliamentary duties, which I believe constitutes a prima facie breach of my privileges as a member. I am rising at the first opportunity.

I remind the House that Erskine May’s Treatise on The Law, Privileges, Proceedings and Usage of Parliament, defines “privilege” in the following way on page 75:

Parliamentary privilege is the sum of the peculiar rights enjoyed by each House collectively…and by Members of each House individually, without which they could not discharge their functions....

I will fairly briefly describe what happened, then the argument on procedure will be limited, as I will adopt other argument that has appeared before the House.

Today, on May 8, at approximately 10:35 a.m., I arrived on Parliament Hill on foot by the O'Connor entrance from Wellington. I proceeded up past the lawn along the sidewalk that runs north, east of the West Block. At the top, at about the midpoint of where the sidewalk curves along the balustrade overlooking the lawn, a cluster of people were stationary in front of an RCMP officer just in front of a barrier running alongside the driveway. At this point, I was directly below the MPs' entrance to the House of Commons and obviously very close to it. My trajectory was to be, and later became, the same as it always is for me and other MPs arriving on foot: to proceed straight north from that point in the sidewalk and enter the Centre Block via the West Block entrance and thereafter the lobby and the chamber where today proceedings in which I wanted to participate were under way.

At that point, I walked through a gap in the waiting group and proceeded to walk toward and then alongside the RCMP officer, gesturing to my pin, which I was wearing on my lapel. I was asked to stop. I told the officer I was an MP and she said that did not matter. I asked whether she wanted to see my ID. She said that it was irrelevant. I nevertheless took out my MP identity card, which she glanced at in my hand but did not take to inspect. I asked whether she knew she had a duty to let an MP through. She said that she had orders to stop everyone. At that point, I proceeded to take two or three steps up the sidewalk, saying that I wanted to get to the House. She moved toward me with her arm outstretched to block my way, without physically touching me. So, I stopped to resume the discussion, as I was not going to put her in the position of acting in any further physical fashion on what were clearly orders from her superior officers. She was doing her job as best she understood it, in light of orders from the RCMP command on the Hill.

To be clear about what her orders were, I then asked whether she was under orders to stop MPs as well as others. She replied she was under orders to stop “everyone”.

At one point in the conversation I asked why I was being stopped. She said that VIPs were coming. I could see in the near distance the red carpet going up the main steps of the Centre Block. I asked whether the fear was that an MP would do something to these VIPs. She avoided the question, understandably recognizing its rhetorical nature. However, the point is clear. The only logic at work in this obstruction was one of protecting the safety of a VIP from a person the RCMP knows to be an MP. On that logic, there is little to stop the RCMP from putting in place orders that obstruct the movements of MPs inside Parliament's buildings in order to protect VIPs from us, the MPs. This may sound like a stretch, Mr. Speaker, but that is the logic of what happened. I was stopped because I was treated indistinguishably from non-MPs, as an equal threat to a visiting dignitary.

I then asked for the RCMP officer's name, and she showed her badge. I then pointed out to the waiting group that they were witnessing an MP being stopped from getting to the House of Commons. At that point, she got on her radio and asked whether she could let an MP through. An answer came back to let “everyone” through, with no specific response about an MP. I then walked the rest of the short distance to the West Block entrance to Centre Block.

I have the officer's name, but the name is irrelevant, as this issue is about the command of the RCMP, all the way up to and including the Commissioner and the Deputy Commissioner for Federal Policing, and their disregard for the rules of Parliament Hill related to the parliamentary privilege of MPs. This is about the system within which the officer had orders to operate. It is not about the officer, who I want to emphasize was firm but also polite.

I also took no record of the time that elapsed because it is irrelevant to the issue, which is that in these circumstances no obstruction of an MP was justified in the least. I am happy to say for the record, if it matters to some, that it lasted no longer than the time taken for the events and the conversation just described to transpire, almost certainly less than a minute.

As for precedents, as you know, Mr. Speaker, the second edition of the House of Commons Procedure and Practice states the following:

In circumstances where Members claim to be physically obstructed, impeded, interfered with or intimidated in the performance of their parliamentary functions, the Speaker is apt to find that a prima facie breach of privilege has occurred.

Having reminded you of something that you do not need to be reminded of, Mr. Speaker, I am sure I will save the House's time by adopting by reference all of the authorities cited and argued by my colleague, the member for Skeena—Bulkley Valley, in his question of privilege on April 30. Hansard will, of course, have those arguments in full for the Speaker to consult.

In conclusion, Mr. Speaker, I would ask you to consider my question of privilege and the facts I have just related to the House. I believe you will find that my privilege was breached and that I was prevented from carrying out my functions as an elected member of the House of Commons. If you find that there was a prima facie breach of my privileges as a member, I am prepared to move the appropriate motion.

[Questions on the Order Paper, May 8th, 2015]

With respect to Natural Resource Canada’s latest plant hardiness zones map: (a) what factors does the government consider when determining the plant hardiness zone of a particular geographical area; (b) are some variables given more weight than others in determining the plant hardiness zone of a particular geographical area; (c) given the impact of climate change across Canada, how is it that Vancouver Island is the only place in Canada to have gained additional plant hardiness zones since the last release of climatic zone data ten years ago; (d) has the government explored using climate envelope models; and (e) given the growing numbers of trades people that contribute to the economy through plant growth and maintenance, what is the government’s plan to ensure that they are regularly getting the most accurate information on plant hardiness zones?

[Petitions, May 6th, 2015]

Mr. Speaker, it is my honour to present a petition coming out of the St. Paul's riding in Toronto.

The residents of the Christie Gardens retirement home ask that the government adopt a carbon policy that applies a fee to greenhouse gas emissions at their source of production in Canada or port of entry into Canada, increase the fee over time, and distribute 100% of the money raised from the fee equally among all Canadians.

I would like to note that the lead signatories include: Bruna Nota, the former international president of the Women’s International League for Peace and Freedom; Ursula Franklin, the world renowned scholar; and Lois Wilson, the former moderator of the United Church of Canada.

[Anti-terrorism Act, 2015, May 5th, 2015]

Mr. Speaker, I am just following up on the question from our colleague from Saanich—Gulf Islands.

I would like to ask my colleague from Etobicoke Centre whether or not he realizes that Mr. Justice John Major was one of the signatories to the letter from the four former prime ministers, including the Right Hon. Joe Clark, criticizing this bill and indicating that oversight and review must accompany the bill or it should not pass. Is he aware that Mr. Justice Major, whom he cited in support of the bill, was a signatory to that letter?

[Anti-Terrorism Act, 2015, May 4th, 2015]

Mr. Speaker, there is nothing like leading with one's jaw.

We all know that the opposition NDP asked for 25 hearings and got eight. The government started with three. Lists and the priority on lists are completely irrelevant when these witnesses should have been there, especially when one is an officer of Parliament and especially when one is one of the only three bodies overseeing one of our national security agencies.

The fact is that they were not heard. The government did not want them heard. That is the fact.

[Anti-Terrorism Act, 2015, May 4th, 2015]

Mr. Speaker, in fact, that is a criticism directed at the effectiveness or lack of effectiveness of having a ton of information and data. I have also heard that criticism, but I am not really an expert, and I cannot say whether or not we have the ability to collect the data and discern what is pertinent, important and urgent. However, according to some people, it is a problem to think that just having more information and data is itself a solution.

[Anti-Terrorism Act, 2015, May 4th, 2015]

Mr. Speaker, the best and possibly only example would be the principle in the bill with respect to the new information sharing act. Better sharing of information among relevant agencies for the limited use that would enhance Canadian security is a good idea.

Therefore, say there is a principle, and who could have problems with that, being called upon by the Justice Major commission on Air India, by the Arar commission, et cetera. The point is how it is done, in a way that is extreme in how far it goes without safeguards, multiple safeguards, having to do with privacy rights, and how it has no corresponding inclusion of the right of oversight agencies to share information so they can step outside their silos to properly ensure that at least three of those seventeen departments are properly overseen.

If I were fair, anybody would want to build up the right kind of information-sharing regime, but this is certainly not the one.

[Anti-Terrorism Act, 2015, May 4th, 2015]

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.

He says:

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.

[Anti-Terrorism Act, 2015, May 4th, 2015]

Mr. Speaker, I appreciate what might turn out to be one of the last speeches of our hon. colleague in the House because he will not be standing again for his riding. I thank him for the kind of speech we have come to know him for: thoughtful, scholarly, fair, and ultimately non-partisan.

I want to ask him, with respect to the last 30 seconds or so of his remarks, about this question of basically enlisting judges to pre-authorize charter infringements that can be saved through some kind of analogous reasoning to a section 1 process that judges go through when they are adjudicating, which is a different context. He has expressed extreme concern that this gets what judges do with respect to charter rights backwards.

I am wondering if he could comment a bit further about whether he does not see this as such a fundamental flaw of the bill that standing with the bill in the hope that it can be fixed in the future is not justified and we should be voting against it.

[Privilege, May 4th, 2015]

Mr. Speaker, as a member of the Standing Committee on Procedure and House Affairs and having been involved in the drafting of the report on the previous incident involving the member for Acadie—Bathurst, I would like to take exception to the House leader's reading of that report. It is a misrepresentation, a very strong one, that any conclusion was drawn by the committee based on the time lapse of 77 seconds being somehow or other de minimis. That is nowhere in the report as part of the discussion and conclusion section.

Rather, in the spirit of this place, the report was more of a diplomatic effort, with a future-oriented reasoning. The committee says, at page 8:

It...considers its principle task to be that of mitigation against similar incidents arising in the future. Cases of privilege in which Members have had their right to unimpeded access to the Parliamentary Precinct denied have occurred in the recent past with all too great a frequency.

Mr. Speaker, I think you are capable of reading between the lines. Anything that is oriented toward mitigation against future incidents of the same sort rather suggests that the committee was concerned but chose to focus on the future.