Thank you very much for your attention and time today.
My name is Ihsaan Gardee, as mentioned, and I serve as executive director of the National Council of Canadian Muslims. I am joined today by my colleague, Professor Faisal Bhabha, NCCM's legal counsel and the chair of our national security policy committee.
The NCCM was founded in 2000 as an independent, non-partisan, and non-profit grassroots organization that for over 17 years has been a leading voice for Muslim civic engagement and the promotion of human rights. The NCCM's mandate is to protect the human rights and civil liberties of Canadian Muslims, advocate for their public interests, build mutual understanding, and challenge discrimination and Islamophobia.
We work to achieve this mission through our work in four primary areas: community education and outreach, media engagement, anti-discrimination action, and public advocacy. The NCCM has a long-standing and robust public record of participating in major public inquiries, intervening in landmark cases before the Supreme Court of Canada, and providing advice to security agencies on engaging communities and promoting public safety.
In terms of our position, the NCCM has always supported the government's responsibility to ensure national security. We commend the current government for fulfilling its election promise to review Bill as its condition for supporting the bill in the first place, and to consult with Canadians. While we welcome, for instance, that Bill proposes to create a national security review agency with more oversight and review than we currently have, our general objection remains constant. This law goes too far. It virtually guarantees constitutional breach, and it offers inadequate justification. It strengthens the security establishment when the evidence available gives every indication that the institutions carrying out national security intelligence gathering and enforcement mandates are in disarray, rife with bias and bullying from the top down. Oversight of those agencies is not sufficient. Real reform is necessary.
While we share the concerns of others you have heard from, including Amnesty International and others, for the purposes of our opening statement today I'll be focusing our testimony on two major substantive concerns we have with Bill . Number one is the powers given to CSIS, and number two, the failure to address systemic problems with the no-fly list.
In terms of our reasons, Canadian Muslims are just as concerned about security as other Canadians. We face the same risk of untimely death or injury at the hands of terrorists as any Canadian. In fact, globally the overwhelming majority of victims of political violence, including ideological extremist violence, have been Muslims. Being a population with global connections, Canadian Muslims are threatened and impacted by global terrorism as much, if not more, than other Canadians. We thus have a high interest in Canada developing a strong and sound national security policy with robust oversight, accountability, and redress mechanisms to guard against abuses and mistakes.
At the same time, members of Canadian Muslim communities have been victims of Canadian national security policy. Over the last 15 years we have seen three separate judicial inquiries, numerous court rulings, out-of-court settlements, and apologies that acknowledged the constitutional violations committed against innocent Muslims by national security intelligence and enforcement. Canadian Muslims are not only disproportionately affected by these errors and abuses, but we also bear the brunt of social impact when xenophobic and anti-Muslim sentiment surges.
NCCM agrees with the plurality of experts who state that more power to security agencies does not necessarily mean more security for Canadians. National security mistakes not only put innocent people at risk of suspicion and stigma, but also divert attention away from actual threats and obstruct effective action to promote safety and security. At the same time that Alexandre Bissonnette was dreaming up his murderous plot to attack a Quebec City mosque, the RCMP were “manufacturing crime”, according to the B.C. Superior Court judge in the case against John Nuttall and Amanda Korody. They were Muslim converts and recovering heroin addicts living on social assistance, whose terrorism charges were stayed last year after a court found they had been entrapped by police.
Bill strengthens the security establishment but does not address the security needs of Canadian Muslims. While the idea of prevention is laudable, any potential benefit from this approach will be negated by the incursions on charter rights that disproportionately affect members of our community, and which will continue to happen under the guise of threat reduction, information sharing, and no-fly listing.
If the government wishes to collaborate with communities on prevention, it needs to build trust and confidence first. For many young Canadian Muslims, the documented and admitted involvement of intelligence and enforcement agencies in rendition and other human rights abuses, and the complete lack of accountability and perceived impunity that have been created as a result, have bred a lack of confidence in the Canadian security establishment.
This past summer, a group of CSIS employees filed a civil claim against the service, alleging discrimination, harassment, bullying, and abuse of authority. They described a workplace environment within the service that is racist, Islamophobic, sexist, and homophobic, where the culture is like an old boys' club and where minority representation in management is abysmally low. The day after the claim was filed, two senior former CSIS employees were quoted in the media saying they were not surprised by the allegations.
In October 2017, CSIS released the report of an independent, third-party investigation into allegations of harassment in the Toronto region office. The findings noted an “old boys' culture”, demeaning treatment, swearing and discriminatory statements, distrust among employees towards management, and a lack of diversity among the staff.
If these kinds of reports are indicative of the overall culture that exists within these organizations toward their own employees, it does little to assuage concerns within Canadian Muslim communities about unfair profiling and error.
The Canadian Human Rights Commission conducted employment equity audits of CSIS in 2011 and 2014, and the findings are shocking for a powerful public institution operating in a 21st-century, multicultural, democratic society.
There were zero per cent visible minorities in senior management positions at a time when visible minorities were about 20% of the Canadian population. We have to infer from that not just a glass ceiling but an actual bar. The CHRC also noted an institutional culture that undervalued minorities and reproduced attitudinal barriers, which resulted in fewer hiring and advancement opportunities for minorities.
The security agency's loss of trust within Canadian Muslim communities has been exacerbated by the lack of accountability for past wrongs committed against innocent Muslims. While the government has concluded significant settlements and made apologies, no one from within those agencies has been held to account.
To the best of our knowledge, there has been no disciplinary action and no public acknowledgements. Instead of accountability, some of those involved in the well-known torture case of Maher Arar have even been promoted within the agencies.
At best, there was individual and institutional incompetence in the security agencies. At worst, it was gross negligence or bad faith. Neither is acceptable and the taxpaying Canadians who fund these agencies deserve better.
The lack of accountability projects a culture of impunity within the Canadian security agencies that reinforces the insecurity Canadian Muslims experience. The problems with CSIS will not be mitigated by Bill . No amount of administrative oversight can cure the systemic ills. These agencies need reform.
We do not see any attention given in this proposed legislation to the real impact that bias in national security has in producing insecurity and harm within our communities. Without a clear statutory mandate and direction from our government, we do not believe that civil society alone can change the culture within CSIS and other security agencies.
We are willing to help, but that burden cannot fall only upon us.
I'll now pass it over to my colleague, Professor Bhabha, to conclude with our recommendations.
Let me use these last remaining moments to take you to our recommendations. We have two.
First, we are asking that the no-fly list, formerly known as the passenger protect program, be ended. We found that it continues to cause serious damage to Canadian families and fails to provide effective remedy or recourse, as you're going to hear from our colleague beside me.
The NCCM continues to receive reports from individuals affected by the no-fly list, people who have had difficulty travelling for months or years, both domestically and internationally. While immediate relief is necessary for those currently listed for erroneous or invalid reasons, we expressly endorse the recommendations that the No Fly List Kids coalition is going to bring.
Our view remains that no amount of tinkering can solve the underlying problem, which is that the no-fly list is one of the most damaging instruments of racial and religious profiling currently in place in this country. It is the national security analogue to carding in the urban policing context. Since its implementation, it has caused so much damage without any proven or demonstrable benefit that we simply cannot justify it in our rule of law democracy. It was an interesting experiment, but its time has come to an end.
What Canada needs is not a list of banned flyers, but rather stronger investigative and intelligence work so that people who present actual risks or who have committed actual crimes are dealt with through the criminal justice system. Anything beyond that is dangerous profiling with proven harm to members of our community and others.
The second recommendation is to reform CSIS. With respect to CSIS, we hold that it cannot be given additional powers, given the current lack of faith and trust in the institution on the part of many Canadians. There's simply too much evidence of systemic bias and discrimination to ask Canadian Muslims and our fellow citizens to trust that any new powers will not be exercised improperly and discriminatorily. In fact, all of the evidence suggests that any new powers will be exercised improperly and discriminatorily.
As has been mentioned, abuses in national security disproportionately affect Canadian Muslims, though not only Canadian Muslims, and this is not a coincidence. What is needed is a thorough culture shift within the national security agencies before Canadians can trust that bias and stereotypes are not driving investigations and will not shape the way the proposed new powers to disrupt are deployed.
Before I start, I want to apologize to the committee that my colleague, Khalid, can't be here. I'm going to be wearing two hats today, one as a parent and one as a makeshift legal adviser.
Thank you for the opportunity to testify before you today on Bill My name is Zamir Khan and I am one of the parent founders of No Fly List Kids. We represent the hundreds of families and thousands of citizens adversely affected by Canada's passenger protect program. The scope of our knowledge, and accordingly our testimony, is limited to the passenger protect program, such as amendments the Secure Air Travel Act.
I am not a legislative expert or a security expert. I am simply a Canadian citizen and a father, here to testify to the harmful impact that can be enabled by gaps in legislation and when intelligence gathered by our own security agencies is applied in a haphazard manner. As you are likely aware, the passenger protect program, also known as Canada's no-fly list, was implemented in 2007 with a design that included, in the words of our current “a fundamental mistake.”
That flaw, which persists today, is that verifying whether passengers are potentially listed persons is delegated to airlines and done solely based on their name, and this is despite both booking information and the Secure Air Travel Act watch-list containing additional identifiers such as date of birth. Any innocent traveller caught in this web is subjected, at a minimum, to extra delays and additional security scrutiny to prove their identity. They are then stuck in a perpetually revolving door to repeat the process every time they fly.
We are often asked how many Canadians are affected by this problem. Statistics about the program and its effectiveness have not been shared since its inception in 2007 when the transport minister disclosed that there were up to 2,000 names on the list. Our group has been contacted by over 100 affected families, representing the tip of the iceberg. The vast majority of encumbered travellers are unaware of the source of their difficulties by virtue of the Secure Air Travel Act explicitly prohibiting the disclosing of any information related to a listed person. However, based on the names of the falsely flagged individuals we know of, and the number of Canadians who share those names, we conservatively estimate that over 100,000 Canadians are potential false positives when they fly. The methodology and rationale behind this estimate will be detailed in our upcoming written submission.
I am personally involved in this issue. My three-year-old son, Sebastian, has been treated as a potentially listed person since his birth. That means, for the first two years of his life, Sebastian was young enough, in the eyes of travel regulations, to be considered a “lap-held infant” who didn't require a seat on the flight, but old enough to be flagged as a possible security threat.
For families with flagged infants, the associated delays further complicate an already challenging travel schedule. As these children grow older, they become aware that they are the reason for the ever-present waiting and security scrutiny. That stigmatization has been described by the minister as a traumatizing experience for them and their families. When the children grow into teenagers and young adults, particularly young men, their innocence becomes less obvious. As our group has heard, their delays become longer and the scrutiny more intense. This has meant that some families have missed flights and the kids shy away from air travel for fear of stigmatization. This is not a future I want for my son.
The Secure Air Travel Act permits the minister to enter into agreements with foreign nations to disclose our watch-list to them. For example, a working group was established in 2016 to share our no-fly list with the United States. The prospect of this data being shared internationally is troubling to our families, who have experienced frightening ordeals of being detained and questioned or having passports confiscated while travelling abroad. Indeed, my wife and I are concerned about the treatment that awaits our family should we travel outside of Canada, given what already happens domestically. A watch-list that places undue suspicion on us is being shared internationally by our government, yet the burden to prove our innocence is being placed entirely on our shoulders.
All of this is to illustrate that the impact here runs much deeper than mere inconvenience. It is stigmatizing, inescapable, arguably a violation of charter rights, and as this committee has previously recommended, it is eminently solvable.
No Fly List Kids has been advocating for a fix to this flawed system for two years, and thus far the government has responded in two ways. In January 2016, the minister emphasized to airlines that children under the age of 18 did not require additional screening. However, as was reported by CBC, the result was Air Canada reiterating to their employees that all matches to the list must have their identities verified in person regardless of age.
In June 2016, the government announced the passenger protect inquiries office, or PPIO, designed to assist travellers who have experienced difficulties related to aviation security lists. Our group is not aware of a single family for whom the PPIO has been able to resolve their case. To the average Canadian, a resolution would mean permanently clearing someone who is falsely flagged. The PPIO considers recommending signing up your child for an airline rewards program or applying to the U.S. Department of Homeland Security's redress system as a resolution.
For those flagged by the Canadian list like my son, a U.S. redress number does not help. Airline rewards programs are an inconsistent and flawed band-aid that the minister has called a stopgap measure. It's not good enough.
Earlier this year, the committee authored the report entitled “Protecting Canadians and their Rights: A New Road Map for Canada's National Security”. No Fly List Kids agrees with your recommendation 35 that the only solution for Canadians is an expeditious redress system to assist travellers erroneously identified as a person on the specified persons list.
In lieu of our legal adviser Khalid, I will now articulate our views on Bill and how, while it provides some initial framing, it falls short of ensuring a timely implementation of a redress system.
I will briefly touch on the following points: one, that the pressing need for a redress system has been established; two, that Bill does not go far enough in the establishment of a redress system; and three, time permitting, that the technology required for a redress system already exists and is being employed by our allies.
Let's start with the good news. Over the past few years, law-abiding Canadians from coast to coast have recounted their personal stories of delay, frustration, humiliation, and frankly, consternation in their encounters with the no-fly list regime. Those stories took on a new urgency when the No Fly List Kids group came together a little less than two years ago to bring to light how the list was affecting their children, including infants.
It appears that the message has gotten through. The group has secured letters from 202 members of Parliament, constituting two-thirds of the House of Commons, all calling for the swift establishment of a redress system. There appears to be all-party support for getting this done, but that brings me to the bad news.
On reading the proposed amendments to the Secure Air Travel Act contained in Bill it is apparent that, although the bill takes a small step toward the establishment of a redress system, it falls short of actually establishing the system. Bill includes a section that permits the minister to collect personal information for the purpose of issuing a unique identifier to travellers. It's a small step forward, but it's not where we need to go.
To illustrate by way of example, section 16 of the act currently provides an appeal mechanism for individuals who are denied boarding. There's also a section for administrative recourse.
Contrast that with Bill , which does not come close to setting out the details of a redress system for people who are falsely flagged by the list.
My final point is that we are not asking the government to reinvent the wheel. We need to look no further than our closest neighbour, the United States. We have attached screenshots of booking information for the same passenger travelling from Canada to Halifax and New York, with a Canadian airline, Air Canada. As you can see, the technology is already there for the passenger to input their redress number when travelling to the United States and be cleared at the time of booking.
Thank you to the committee.
Just to clarify, we were discussing CSIS, the Canadian Security Intelligence Service, not the Communications Security Establishment, although our concerns are shared across different security agencies regarding their operation.
We have seen through a number of different public inquiries high-profile cases of innocent individuals who have been implicated in national security investigations that have in certain cases led to individuals being rendered to torture overseas or picked up, when information is shared with foreign intelligence agencies, and held for extended periods of time. In some cases, they are subjected to torture and mistreatment, as has been discovered through public inquiries through Justice Dennis O'Connor and Justice Frank Iacobucci, looking at the cases of Maher Arar, Abdullah Almalki, Ahmad Abou-Elmaati, Muayyed Nureddin.
We are aware, as well, of other cases of individuals who were abroad, alleging similar treatment, including Abousfian Abdelrazik who was held in Sudan for a number of years. We have other Canadians who are still detained abroad and on whose behalf we are still advocating for their return. These kinds of incidents and these kinds of high-profile cases certainly shine a light on some of our significant concerns.
As my colleague, Professor Bhabha, mentioned as well, we—
Thank you very much, Mr. Chair.
As–salaam alaikum, and welcome to the committee, Mr. Gardee.
It's great to see you again, Professor Bhabha.
I want to join my colleague Mr. Dubé in thanking Mr. Khan, in particular, who comes to us not only in the role of an advocate but also as a parent of a child who is directly impacted by the no-fly list.
Thank you, all four of you, for your advocacy, for your voices and for pushing us on issues that will ultimately result in better legislation and better institutions. I think it's quite clear to the committee that, from your perspectives, the status quo is not good enough, and I think, from my personal perspective—and I speak for others on the committee, I'm sure—we need to make changes. If we continue to go along the track that we are on right now, it is not working, and it is not the best Canadian answer that we can develop.
I want to seek some clarity from you, because in the beginning, there was some perception that there were differences in terms of what you'd like to achieve, and Professor Bhabha said we should just scrap the PPP altogether. If we had the U.S. equivalent, one for one, in front of us tomorrow, and it was operational, would that meet your concerns, and if so, to what extent?
We heard from other witnesses, from other members of the Muslim community but also other communities, that the U.S. redress system, stigmatizing as it may be, is at least functional. Do you agree with that?
Thank you, Chair, for the opportunity to present to the members of this committee on behalf of the Centre for Israel and Jewish Affairs, the advocacy agent for the Jewish Federations of Canada.
We are a national, non-partisan, non-profit organization representing more than 150,000 Jewish Canadians affiliated through local federations across the country. We believe in Canada's foundational values of freedom, democracy, and equality, and are committed to working with government, Parliament, and all like-minded groups to ensure that Canada remains a country where we all enjoy equal protections and opportunities.
In March 2015, I appeared as a witness before the Standing Committee on Public Safety and National Security as it studied Bill . Our testimony began with a statement of fact, “Jews are consistently targeted by hate and bias-related crimes in Canada at a rate higher than any other identifiable group.” Those words are, unfortunately, as true today as they were then.
Statistics Canada recently released its report on 2016 hate crimes, and once again Jews were targeted more than any other religious minority, with 221 incidents. We must, however, keep this in perspective. Canada is a very safe place for identifiable groups and one of the greatest places in the world in which to live as a minority. However, we must also remain vigilant. A single hate crime is one too many.
Whether considering the attack on a synagogue in Jerusalem, a gay nightclub in Orlando, an African American church in Charleston, or a mosque in Quebec City, extreme hate continues to precipitate extreme violence. Jews are often primary targets for terrorist attacks throughout the world: Belgium, Argentina, France, India, Bulgaria, Israel, Denmark, the United States. Understandably, Jewish Canadians are not just concerned about what threats might meet them abroad, but what could happen here at home.
Public Safety Canada's “2016 Public Report on the Terrorist Threat to Canada” notes that Hezbollah, the listed terrorist entity widely believed to have carried out the bombing of a Jewish community centre in Buenos Aires, has networks operating here in Canada. The notorious 2004 firebombing of a Jewish school in Montreal still looms large in our collective memory.
Our community, therefore, takes a keen interest in the government's approach to counterterrorism. We appreciate the opportunity we were afforded to engage in the consultations on Canada's national security framework, both before this committee and with the Department of Public Safety and Emergency Preparedness. I hope that our recommendations will prove helpful and constructive for the committee.
We'll speak on the expanded oversight for CSIS, but before going there let me just address a couple of considerations with respect to advocacy or promotion of terrorism offences in general.
In the context of the former Bill , CIJA was supportive of measures to empower security officials to criminalize the advocacy and promotion of terrorism and seize terrorist propaganda. CIJA supported these measures as a means of denying those intent on inspiring, radicalizing, or recruiting Canadians to commit acts of terror the legal leeway to be clever but dangerous with their words.
Bill seeks to change the law's articulation of this offence from “advocating or promoting” to “counselling” a terrorism offence. This doesn't necessarily undermine the intended function of the provision. Justice Canada's background information on the advocacy and promotion offence states, “The offence is modelled on existing offences of counselling and the relevant jurisprudence. 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.”
The same intended outcome seems to be achieved in Bill , which adds the caveat that the counselling offence “may be committed...whether or not...the person counsels the commission of a specific terrorism offence.” If, as indicated in his recent testimony before this committee, this change empowers authorities to enforce the law with greater impact, it would seem a reasonable shift. However, we believe there is an oversight in the proposed new language that could narrow the scope of the provision, weakening it substantially.
The existing offence applies to “Every person who, by communicating statements, knowingly advocates or promotes the commission of terrorism offences in general”. Swapping out the advocacy and promotion language, this should become something like “Every person who counsels the commission of a terrorism offence”, but it doesn't. Instead, Bill reads, “Every person who counsels another person to commit a terrorism offence”. With this wording, it appears that the offence could apply only to a specific individual counselling another specific individual.
When it comes to the offence of instructing a terrorist activity, the Criminal Code is explicit. The offence is committed whether or not the accused instructs a particular person to carry out the activity or even knows the identity of the person instructed to carry out the activity. The same standard should apply to the counselling offence. The change of “advocacy and promotion” to “counselling” also impacts on the definition of terrorism propaganda.
Bill would remove “advocacy and promotion of terrorism offences in general” from the definition, consistent with the change proposed for the counselling offence I've just discussed. However, the all-important caveat that a specific terrorism offence need not be counselled, which is included in the new counselling offence, is lacking here. This should be adjusted for the sake of consistency.
I'll turn to expanded oversight for CSIS.
In our testimony on Bill , CIJA supported the expansion of CSIS's role and responsibilities to include disruption of potential terrorist attacks. While we believed the new mandate was justified, we maintained that enhanced oversight was required to prevent abuse. Just as Canadians stand to benefit from a more robust approach to counterterrorism that emphasizes prevention, we argued that a concurrent increase in the review of CSIS's activities would be beneficial.
Measures to enhance SIRC's ability to provide adequate review are long overdue and are all the more imperative with CSIS's expanded mandate. We supported the refinements to CSIS's expanded mandate that Bill would put in place and the establishment of a national security and intelligence review agency. Both should help to ensure greater balance in protecting the security and civil rights of Canadians.
In the context of Bill , we proposed several concrete reforms to enhance oversight and accountability for CSIS. The new oversight agency will fulfill our first and perhaps most important recommendation's objective of enabling a review of security and intelligence activities across all government agencies and departments. However, we believe the following three recommendations regarding the structure and composition of the new agency would help ensure it is set up to be as impactful as possible.
First, the chair of the new agency should be someone with experience in intelligence and national security, and should occupy the position on a full-time basis to ensure consistent, professional leadership.
Unfortunately, Bill states, “The Chair and Vice-chair may be designated to hold office on a full-time or part-time basis”. The bill also states, “Every member of the Review Agency who is not designated as the Chair or Vice-chair holds office on a part-time basis”.
We suggest this be changed to provide the option of other members being brought on full time without requiring a legislative amendment. Given that the workload of the new agency is likely to be significantly greater than that of SIRC, this could conceivably require full-time engagement from all members.
Second, we recommend that the chair of the new agency be designated an officer of Parliament required to provide regular reports directly to Parliament. This mirrors the recommendation we made in the context of Bill with regard to the chair of SIRC.
The requirement enshrined in Bill that public reports from the new agency be tabled in Parliament is beneficial, but this reporting is still mediated through the Prime Minister and other ministers. Designating the chair of SIRC an officer of Parliament with a mandate for regular reporting directly to Parliament would send a clear signal that the work of the new agency is independent from the government of the day.
Third, we believe Parliament should have a greater voice in the appointment of members of the new agency.
We welcome the consultation provisions included in Bill but believe the appointments should also be subject to approval by resolution of the Senate and the House of Commons. This small addition, which is already standard practice in the appointment of officers of Parliament, would further enhance the credibility of the appointments process.
Although this may be more appropriate for your colleagues at the finance committee, it's also important to stress that the national security and intelligence review agency will require the allocation of significant resources, both professional and financial, if it is to be given a chance to succeed in fulfilling its important mandate.
CIJA's testimony in 2015 concluded with a plea for committee members to support a private member's bill that sought to extend hate crime penalties beyond houses of worship to schools and community centres. That initiative failed but was revived in this Parliament in Bill , which passed third reading in the Senate in October.
I am pleased to conclude my remarks today, Mr. Chair, with sincere thanks to each of you for coming together in unanimous support for Bill , a clear example of how elected officials can work together and make a practical difference to protect Canadians.
I hope committee members will consider my remarks today in that same constructive spirit, and I'm grateful for the opportunity to join with you.
Thank you very much for inviting me to appear before the committee.
My colleague Craig Forcese has already addressed you and has focused on parts 2, 3, and 4 of the bill. I will focus on the other parts of Bill .
Part 1 providing for a government-wide super-SIRC has been widely praised. In my view, it implements the important principle, if not the precise details, that animated the Arar commission's report; namely, that review should expand with the state's national security activities and that review strengthens rather than weakens security.
Improvements can still be made. I recommend that the new and very much welcome super-SIRC be somewhat supersized. In my view, it should contain a minimum of five members and up to eight members. Amnesty International has endorsed this recommendation, and you've heard some very interesting proposals about strengthening the new super-SIRC both from Professor Wark and Mr. Fogel.
We should think about having more diversity in appointments and not simply focusing on the consultation with leaders of political parties, which is very much a holdover from the original 1984 Cold War era CSIS Act. We could also include people with expertise in privacy, as you heard from the Privacy Commissioner. I think it is also important that there be representation where possible from communities that may be disproportionately affected by national security activities.
The mandate of the new review agency needs to be better defined. On my reading, the reference to “department” or “corporation”, which is incorporated in the new act, does not include the RCMP. This should be very clearly spelled out. It should be clear that the new committee can review the national security activities of the RCMP, hear complaints about the national security activities of the RCMP, and have full access to classified information that the RCMP has on the same basis that it will have access to classified information that CSIS, CSE, and other agencies involved in national security have.
Moving to part 5, I remain of the view that the SCISA part of Bill remains the weakest part of the bill. I would advocate that the definition of threats to national security in section 2 of the CSIS Act be the default trigger for information sharing, subject to carefully tailored and justified additions in cases where that may be inadequate. The novel Bill definition of activities that undermine the security of Canada was grossly overbroad. Even after the amendments in this bill, it would remain overbroad.
When I talk about overbreadth, and I know that some members of this committee have read the Air India commission report, I refer to overbreadth not only from a civil liberties perspective but frankly from a security perspective. If everything is a security threat, effectively nothing is a security threat. I think we really should tighten the definition with respect to information sharing.
On the subject of Air India—and here I'm going just a touch beyond Bill —I must again reiterate my objections to the CSIS human source privilege that was enacted in the Protection of Canada from Terrorists Act. If it is not repealed, at least I would recommend that, as an urgent matter, there be a study of whether CSIS's practice of granting anonymity to witnesses is hindering terrorism prosecutions.
The Privacy Commissioner has made a strong case to you that the standard for receiving agencies under SCISA should be raised to “necessity”. I agree. I would also not be troubled by having that same standard with respect to sending agencies. The Privacy Commissioner raised the issue that sending agencies may not have experience with security, but they also maybe don't have the same incentive that receiving agencies may have to keep, perhaps unnecessarily, the information that they receive.
In this regard, a critical feature of the new review agency is that it will be able to examine the legally privileged material that is the basis on which receiving agencies will make decisions, perhaps wrongly, to retain any information.
Moving to part 6, the committee is well aware of the problems of a no-fly list. The reforms in strike me as minimal. Four months is a long time to be a wrongfully listed person, even if the default has been changed. Special advocates should have a role in appeals, and Bill 's restriction on the information that these security-cleared advocates can see in security certificate cases should also be repealed. More fundamentally, however, perhaps the new committee that has access to classified information should review whether the costs of the no-fly list, both financial and human—in terms of false positives—are actually worth its benefits.
Moving to part 7 of the bill, I note that the CCLA submitted to you that the reference to terrorism offences in the counselling offence is not defined. That's not my reading. I would read the reference to terrorism offences as referring to the definition of terrorism offences contained in section 2 of the Criminal Code, but this is a matter that needs to be clarified.
The changes to the preventive arrest provisions are difficult to evaluate, but I would favour further amendments to clarify limits on questioning of people who may be detained for up to seven days. I would also advocate that there be some response to the Driver case in Manitoba, which held that at least one part of the peace bond provisions relating to treatment programs violated the charter. I would also recommend that we look at something like section 10 of the U.K. Terrorism Act, 2000, which would allow people to challenge listing as terrorist groups without that very act of challenge being the basis for a terrorism offence.
I applaud the government for repealing investigative hearings, a technique that has never been successfully used and, if used, could hinder terrorism prosecutions.
Finally, this is important and complex legislation that was made necessary by Bill . I would propose that given the comprehensive, if not radical, nature of C-51 and the important proactives of this bill, that the review of this bill be commenced within the fourth year of its enactment, not the sixth year as contemplated in part 9. I would also propose that the review be undertaken by a special joint committee of the Commons and the Senate, which could include one to two members of the new National Security and Intelligence Committee of Parliamentarians.
In addition to my previously submitted brief, which I hope you have and has been translated, those are my submissions.
Thank you very much. I look forward to your questions.
Thank you, Chair, and thank you to the panel members for being here today.
Mr. Fogel, I found it interesting that you should mention that the Jewish community has been the major focus of terrorists or actions against your group. I believe, if I'm not mistaken, perhaps the Catholic Church was fairly high in that whole hierarchy.
In terms of one of the ironies, I was here for the introduction of Bill , and both the Conservatives and the Liberals supported that bill. It was a first step, obviously, and I see this as perhaps being the next step of a living document. There are good suggestions that we should review this document before too many years pass. However, what I did note too, and my colleague mentioned the apologies and the compensation paid to four individuals, is that it all occurred way before Bill was brought in, so maybe it did have some things in there that brought the intelligence agencies and the security agencies a bit to heel, although much later in the whole process. Those were incidents that all occurred before 2004, so I see this as the next step.
When we talk about the no-fly list, for instance, and we look at the American list as being a far better system, would you also say that we should look at some of the other American rules with respect to terrorism and anti-terrorism? Particularly, I noticed yesterday in the incident in the New York City subway, the commentators talked about not allowing him his Miranda rights. That seems foreign to Canadians, but the Americans obviously have some view on that.
Mr. Fogel, do you have any comments on that?
Sure. Investigative hearings were one of the more draconian provisions in the first Anti-terrorism Act. I also testified against investigative hearings there, so I've been consistent on that. They were upheld by the Supreme Court as constitutional in 2004, but subject to a presumption that they be held in open court and that the rules of evidence apply.
My concern is that because of the requirements of the charter and the Criminal Code, anything that a person is required or forced to say in an investigative hearing is not usable in a terrorism prosecution.
You're right that the public might be anxious, but that's, frankly, a lack of knowledge. It goes back to needing to be smarter about our security powers and needing to have security powers that are usable. If you have something like an investigative hearing, which essentially has not been used and, if used, could render a terrorism prosecution, if not impossible, at least more difficult—and they're already extremely difficult—then that's something we should get rid of.
On the no-fly list, one of my recommendations would be maybe the new parliamentary committee needs to look at the costs and benefits of the no-fly list, because I'm aware that much of this requires access to classified information that neither you nor I have. Maybe Canada can be a world leader and say, “Look, we don't need this, because we want everyone on a plane to be safe”. I don't know that it's the case now, but that's the sort of thing....
We have to trust the public that, yes, we're scared about terrorism because it is in the news every day for legitimate reasons, but that means we have to be smarter, not simply going as far as the charter allows.