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View Harjit S. Sajjan Profile
Lib. (BC)
One aspect in particular that is extremely important, since the Minister of National Defence is also responsible for our Canadian Armed Forces, is that CSE will now actually have the ability to provide the right support to the Canadian Armed Forces. They obviously provided the right intelligence, but now with Bill C-59 they can provide the right expertise. They'll be able to leverage their knowledge base and their technology and keep up to date with some of the terrorist networks and what they're trying to do, especially when it comes to keeping our soldiers safe. That includes everything, as I mentioned, from somebody detonating an IED to disrupting the network to keep it from getting to that point.
We also have to be mindful that even with the best technologies, we had to wait for a cyber-attack on us to occur before we could actually do anything about it. We need to make sure that we are proactive in having a defensive mechanism so that when we see a threat we are able to shut it down beforehand. These are the things that are very important here to making sure that we protect our infrastructure in a very proactive manner.
Greta Bossenmaier
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Greta Bossenmaier
2018-03-22 12:09
Sure.
I'm going to ask Scott Jones, our deputy chief of IT security, to come in on this as well. Without stealing all his thunder, before I offer him that opportunity to speak, I'll just say that one of the things Scott often talks about is that now we're seeing a wide variety of cyber-threat actors. Yes, we've been worried about nation states for a long time and non-state actors, as you mentioned. We're worried about hacktivists, cybercriminals. In Scott's portfolio, in defending the Government of Canada's systems and providing advice and guidance to Canadians and Canadian critical infrastructure, he often says we have to protect and defend against this whole variety of threat actors. They are diverse, but our responsibility is to be able to protect Canadians' information and Canadians' most private information from this variety of threat actors.
With that, I'll ask Scott to speak a little about the threat environment he sees.
Scott Jones
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Scott Jones
2018-03-22 12:10
Just building on that, I think some of the key points are that the cyber-techniques are within the reach of anybody, and that's more a result of the resilience level that we all face. There are simple actions we've been trying to promote that we can all take to make ourselves more resilient against any sort of actor, because to your point, no matter who they are, cyber-techniques are within their reach. These are our top 10, some simple things we can all do to increase our resilience.
The second piece of that is how we are able to purchase things that are better and more secure from the start. That's some of the work we do internationally. To your previous question about working internationally, there are things like asking for products to have better security features, things that are secure by default, things we don't have to worry about. One example of that is the common criteria program we have with 27 different nations.
How do we then share information quickly to let people take action on our behalf? We can't necessarily rely on ourselves. Some of these techniques are really sophisticated, but we can look at critical infrastructure to help us raise that bar.
Shelly Bruce
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Shelly Bruce
2018-03-22 12:15
We are prohibited from targeting Canadians anywhere, so if there is a direct correlation, and that activity is emanating from a Canadian's communications, it's off limits.
Thank you.
Greta Bossenmaier
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Greta Bossenmaier
2018-03-22 12:16
Maybe I'll start by answering your question, and then, again, we'll look to Shelly to further my description.
It goes back to mandate. The Communications Security Establishment's mandate is foreign signals intelligence that's not directed at a Canadian or anyone in Canada, which is a foreign focus. Suffice it to say that there are other pieces within the national security apparatus that focus on threats to Canada that may emanate from a Canadian. Some of our partners in that....
Shelly, do you want to speak a bit about how we work with partners in that regard?
Shelly Bruce
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Shelly Bruce
2018-03-22 12:16
Looking at terrorist activity is very much a team sport in Canada. The RCMP, CSIS, CSE, as well as others each have a role, and we work together to understand what each of us is bringing with our mandates, authorities, skills, and capabilities. In this case, it may be within the services' remit to be looking at a Canadian outside of Canada who was involved in these activities.
Our legislation currently allows us to provide an assistance role to the RCMP and CSIS. Generally it is for national security agencies and law enforcement agencies, but in practicality, it is mostly CSIS and the RCMP. In that case, if they had the authority, they could ask us for assistance in that space, and we could use our capabilities to assist them as long as it was done within the parameters of whatever legal authority they're operating under.
Scott Newark
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Scott Newark
2018-02-15 11:10
Thank you very much, Mr. Chair. It's good to see you again.
I'd like to thank the committee for the invitation to appear before you with respect to this very important Bill C-59. I've had the opportunity to follow some of the proceedings and to read some of the transcripts, and it's very encouraging to see the depth and substance of the questions asked of the individual witnesses who are appearing, including with different perspectives.
I've had a long history, and I was thinking about it before I came here today. It's been almost 30 years, I guess, since I first testified before a parliamentary committee. I was a crown prosecutor from Alberta, and as I put it, I got tired of tripping over the mistakes of the parole system in my courtroom, and realized that the only way to try to change it was to change the laws. That meant coming to Ottawa, because we were dealing with federal correctional legislation. I was appearing before parliamentary committees where I exposed what had happened in a couple of cases.
The important work of the legislative branch struck me then, and it has remained with me throughout. That sometimes gets overlooked, and depending on how things are being handled at the executive branch of government, the really important and critical analysis that committees can do is quite significant. A bill like this is a very good example of that, because you can have different opinions about things on different subjects, but you have the ability to ask questions and to try to elicit information to analyze whether or not the intended results are going to be achieved by the legislation in the way that it's drafted or if other things need to be done. That is particularly true, I think, in relation to legislation like Bill C-59, which is obviously pretty complex legislation and deals with a whole lot of subjects.
In fairness, the discussion itself has raised issues that are not contained in Bill C-59. I think a very encouraging sign was the way that the government sent the bill here in advance of second reading so that you could have input and suggestions on other subjects. I have some suggestions to make on things like that. I must admit, though, that I would suggest that it probably is a better idea, simply from a procedural perspective, to confine your recommendations to the specifics of the bill, and perhaps, in an ancillary report, make suggestions on other subjects rather than adding huge new amendments to sections and opening up different issues that are not specifically contained in Bill C-59. There's so much of value in Bill C-59 that it's a good idea to move it forward.
My presentation today will touch on essentially three aspects. The first is just to take some examples of things that I think are notable and quite important in Bill C-59. I also have a couple of comments on things, and one in particular I have a problem with, but I suppose, to put it in a larger sense, they're just ones where I would suggest you may want to ask some questions and make sure you understand that what you are anticipating is the case is, in fact, the case. Then, because the minister has invited suggestions on other issues, if we have time—and probably not in the opening statement, but during questions and answers—I have some suggestions on other issues that I think might be of interest.
Let me just give you a little bit of background as well on my personal experience in this, because it impacts on the insights. As I mentioned, I was a crown prosecutor in Alberta. Ultimately, because of one of the cases I was involved in, in 1992 I became the executive officer of the Canadian Police Association. This is the rank-and-file police officers, the unions. We were involved very heavily from 1992 to 1998 in criminal justice reform, policy advocacy. It was from that, in particular, and my work as a crown prosecutor, that I got the sense of the importance of learning from front-line operational insights how you can then shape legislative or policy tools so as to achieve desired outcomes.
Also, not everything needs to be done by legislation. There are frequently instances—and I was struck by this as I was watching some of the evidence from some of the witnesses that you've had—where we don't necessarily need new laws. We need to enforce the ones we already have, and we need to make sure that the tools are in place to use them appropriately. There are some examples of that, I think, in Bill C-59 specifically.
I ended up working with the Ontario government in 1998 as an order in council appointment. That government had intended to achieve some criminal justice reforms, and they weren't getting it done, so they wanted some people with some understanding of the justice system.
After 9/11, I was appointed as the special security adviser on counterterrorism because of some work I had previously been involved in. I had significant interactions with Americans in relation to that. In the old days, it was the Combined Forces Special Enforcement Unit, which became INSET. I had a role, essentially, in being the provincial representative in some of the discussions, and I saw the inter-agency interactions, or lack thereof, and the impact that potentially had.
Since then, I'm actually one of the guys who did the review that led to the arming of the border officers. I still do work with the union on policy stuff. I also do some stuff with security technology committees. The value of that is that you get an understanding of some of the operational insights and what is necessary to achieve the intended outcomes.
I should add, I suppose, the final thing. Last year, I accepted a position at Simon Fraser University as an adjunct professor. I know you'll be shocked to hear that. It's for a course they offer, a master's program, the Terrorism, Risk, and Security Studies program. The course I teach is balancing civil liberties and public safety and security. To go on from a point that the general made, I think the case is that these are not either-or situations. We are fully capable of doing both, and there is a balance involved in this. As a general principle, it is a very good idea, when you're looking at what is proposed in legislation, especially in legislation like this which has national security implications, to keep in mind the general principles of protecting civil rights.
There are two points about that. You'll notice that in “civil rights”, “rights” is modified by “civil”. In other words, they are rights that exist in the context of a civil society. That has ramifications in the sense, I think, of what citizens are entitled to expect of their government. I don't want government intruding on my privacy, but, at the same time, if government has the capability of accessing relevant information and acting on someone who is a threat to me and my family, I expect, under my civil right, that, in fact, government will do what it needs to do to extend that protection.
The other side of that—and I know, Monsieur Dubé asked many questions about this, as did other members of the committee—is the importance of looking at it generally, at what is proposed, to see that there is, in effect, oversight initially and, as well, appropriate review so that the balancing can take place. In my opinion, and more accurately in my experience, having the executive branch reporting to itself for authorization is something that should raise a red flag. There are provisions within the act that ultimately address that, although there are some that raise some questions about it.
In the very brief time left, let me just say that I think that among the important things in the legislation are the extensive use of preambles and definitions about the importance of privacy and what we would generally call civil rights in consideration of why we're doing things. That, I think, was a deficiency in BillC-51. I can tell you that it is critically important in today's charter world to make sure that is included so that the courts can consider whether or not what was being done by legislative authority in fact took into account the charter issues. A rule of statutory interpretation is “thou shalt consider the preamble in a statute when actually drafting it”.
With one minute left, I think probably the most important operational aspect of this bill is the proactive cyber-activity authorized to CSE. That is a reality of the world in which we live. We are totally cyber-dependent, which also means we have enormous cyber-vulnerabilities. Cybersecurity, in effect, has been an afterthought. This is a step; it is not the complete answer. I do some work in the cyber field as well, and that is something that I think is extremely important.
The one issue I would raise, in closing, which I have a concern about specifically, is in relation to the change in what I think is the evidentiary threshold in the terrorism propaganda offence. I can get into that in more detail, but my concern is, essentially, that it may be making it, for no good reason, no justifiable reason that I can see, harder to use that section, which has extreme relevance now in the changing domestic terrorism environment in which we are living.
I look forward to answering any questions and, hopefully, touching on the other subjects.
Scott Newark
View Scott Newark Profile
Scott Newark
2018-02-15 11:25
We're in a changing environment. I don't think there's any doubt about that, and it's one of the things that really struck me about the terrorism propaganda. We know, literally, that the threat environment is changing as they are losing—although not as much as we sometimes think—their actual physical control of territory. they are openly saying what it is. That's one of the things about Islamic terrorism: if you pay attention, they generally tell you what they plan on doing.
Scott Newark
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Scott Newark
2018-02-15 11:29
As I say, the biggest one I have questions about is the terrorism propaganda. To circle back and answer, precisely because the proposed definition is section 22 of the Criminal Code—which is counselling another person to commit a criminal offence—the way I read the language of that, in effect that offence is already there.
I guarantee you, sir, that if that wording is used, there will be occasions when defence counsel will come to court when somebody is charged, and ask, “Who was it that he was counselling to commit the offence?” If you don't have another person involved, you aren't able to prove the offence.
That compares to the general notion, which reflects the reality of what we're dealing with now: we know that what would be included in the definition of terrorism propaganda is what is being used in radicalization, recruitment, and facilitation, including and especially in domestic circumstances. That's what we're actually facing.
To your point, though, about the larger issues, I'll go back to what I said before. I actually think there are things in Bill C-59 that help us deal with the reality of returning jihadis. The most important thing is that the government did not change the evidentiary level in section 810.011, the terrorism peace bonds. It's still “may commit”. Had that been raised up to “will commit”, that would have put a much more significant barrier on things.
The other thing that is very important in this bill is the provision that requires annual reporting on the number of peace bonds that are actually used, and also a five-year reporting on the impact of the bill itself. In my experience in government, that tends to bring about accountability. I assure you that if those provisions are included, throughout the different offices of the security branches and agencies there will be whiteboards going up with people writing on them, “Okay, I'm responsible for this. I've actually got to deliver this.” That's a good thing, because I think accountability tends to produce results.
Michael Day
View Michael Day Profile
Michael Day
2018-02-15 11:32
Thank you very much for the question.
I will try to answer in French, but I might miss some slight nuances. I will answer the other questions in English.
I would like to briefly address the previous question.
As a practitioner, a focus solely on the legislation by this committee will miss about 80% of the potential gaps you've asked about. The reality is that legislation has to have practices in place and structures in place under those practices to support that. That's the total capability. There's lots of legislation in Canada that is not enacted because it lacks the practices, the structures, the reporting mechanisms, and everything else. I would be very guarded about focusing solely on gaps in legislation. As the guy on the practitioner side of the house, I would argue that we need to be a little more holistic.
With regard to your specific question, I think it's excellent. Jihadists or religious extremists fall along a pretty broad continuum spanning adventure seekers, malcontents, the disenfranchised, and the truly committed. We will receive back in Canada that complete continuum. Anybody who believes that every individual coming back is either wholly bad or just situationally good, and so on, is fooling themselves.
We will receive those people who went for reasons unrelated to the actual clash between Daesh, ISIS, and so on, and who were turned off by what they saw.
Equally, we will see people coming back here, fully determined to continue to prosecute that conflict. People are fooling themselves. I've dealt with these people around the world. They are committed. You're fooling yourself if you declare otherwise, and you're lying. You should know better.
Scott Newark
View Scott Newark Profile
Scott Newark
2018-02-15 11:34
If I could just add to that as well, I very much agree. I don't think some of the communications have been as effective as they could and should have been about this. However, I completely agree with General Day about the nature of the individuals you're dealing with.
It's not going to be one-size-fits-all. Use all the tools in the tool box, which does include things like de-radicalization and rehabilitation. We use that kind of approach in our criminal justice system as well. It's important that we use all the tools in the tool box and not just one.
Scott Newark
View Scott Newark Profile
Scott Newark
2018-02-15 11:41
Included in my recommendations that I supplied to the committee are some specific recommendations in relation to that.
However, as you know, with the rule in our system—and it does apply now to terrorism cases because it's done through the criminal justice system—the real issue isn't whether or not the evidence is relevant, the issue is whether the evidence is admissible.
That's why I think the aspect of things like preambles, and saying that we've considered the privacy issues, and even after the fact making sure you have review bodies like the committee on BillC-22 asking why you didn't share this information, are the kinds of things that I think will help us. However, we need to be ready in advance of those people coming back.
When the RCMP, for example, talks about 120 cases, I certainly hope that number is because of actual cases that are created, as opposed to some analyst doing a statistical judgment on what it should be, because we should be ready for this.
Michael Day
View Michael Day Profile
Michael Day
2018-02-15 11:43
I could maybe make a couple of comments about the strategic piece. I work with Dick Fadden quite regularly, and I'm aware of his views. I would support them.
We tend to be focused on, quite frankly, not just the smallest numerical threat in terms of the number of foreign fighters, again who fall along a continuum.... Not all of them are true threats, some of them are incredibly significant threats. However, it tends to obfuscate or blind us to the reality of homegrown terrorism and the networks to which they're connected. I am not yet seeing...and quite frankly there continue to be inhibitions or obstacles to associating those two network pieces.
I think we have to recognize the difference and the blurred line now between state and non-state actors, not just in the cyber domain, but quite frankly in the information domain writ large, and the fact that they have a variety of different aims. Some of them are about security, some about gaining advantage, some of them are commercial-industrial, and some are political. Some of them—if we look south of the border and what they're affecting—are merely to disrupt and create chaos.
I am concerned that current legislation, although it is targeted towards a specific area and is necessary, by itself is insufficient.
We need to have a more holistic look. I'm not proposing that they would all be rolled into Bill C-59, but rather there should be a series of actions and legislation that deal with the whole panoply of threats that Canada faces on an ongoing basis.
Michael Day
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Michael Day
2018-02-15 11:45
If I may, we have to be careful about the use of a label of “a terrorist”. In the United States, they don't like to use it when it's a white male. It seems unfortunate for them, but it's merely a label of convenience. The act itself was designed to terrorize a certain population, etc.. I think you can get really caught up with terrorism. America has a very distinct use of that, and it needs to be foreign based before it's terrorism. Language is important here.
With regard to what happened in Canada, etc., we have to be careful. When you look worldwide, the vast majority of—to use the broad definition—terrorist threats are actually domestically originated and not from outsiders coming in.
That's why I said that the security in Bill C-59 tends to have a colour or a focus, a lean towards this idea that we're protecting a border. I'm not convinced that the borders exist when it comes to that kind of security; hence, my previous comments.
Scott Newark
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Scott Newark
2018-02-15 11:46
Can I just add that it doesn't appear, as you say, that there is any ideological motivation in what happened. It certainly produced a terror response, but unlike, for example, what we were describing with relation to Islamists, it wasn't ideological driven. That's the first point that I would actually make as a distinction.
The other one that really struck me, though, was how a 17-year-old got an AK-47 with all of this ammunition, and people knew about it. Thank God I live in Canada.
Scott Newark
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Scott Newark
2018-02-15 11:49
As I said at the outset, the definition that is used in Bill C-59 as far as I'm concerned is the same definition used in section 22 of the Criminal Code, which means we're just duplicating something. It's not there. When I look at the wording on this one, I think you will find that both police and prosecutors will come to the conclusion, and certainly defence counsel, and probably judges, that there is a higher evidentiary standard required, targeting more specific action and targeting an identifiable individual. Especially because of the relevance of the promotion of terrorism and radicalization online that we were just talking about, for example, that is a more precise and more applicable definition. Those standards, by the way, are basically the standards that are in place in the sense of the definition of what you have to do on the hate crime sections, section 318 and section 319. For me when I looked at it, I didn't understand why the change was being made, and that always rings an alarm bell for me.
Michael Day
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Michael Day
2018-02-15 11:51
I have never seen any legislation during my time, certainly in the last 20 years in service where I had significant dealings here in Ottawa, that has ever forced any true interaction or mitigation of the turf battle. Legislation by itself doesn't do it. The enaction of subsequent processes and structures to support the legislation has the ability to get after that. I have little confidence that there will be a fundamental realignment of the senior public service to allow for those gaps to occur. This will be tremendously unpopular with the deputy's community in this town, but the reality is until you have a deputy with the responsibility for whole-of-government coordination of intelligence and security responding to an accountable minister, there will be no changes.
Scott Newark
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Scott Newark
2018-02-15 11:52
Just on that point, I would also like to add I think either this committee or the C-22 committee could have a really significant role by calling people in and asking why this didn't happen, and the kinds of non-sharing activities you were describing to ask those very kinds of informed questions. Not as a finger-pointing exercise per se, but as a lessons-learned exercise. I have seen this work out when I was with the Ontario government; it produced some positive results. We were able to learn from it, and not repeat the silo kind of activities.
With respect to your question to me, again I will go back to the point that I think we should emphasize in this country using all the tools in the tool box, including criminal prosecution where necessary and appropriate, although keeping in mind how difficult that may be. Think about that. If you're dealing with people who have been detained overseas, the evidence you get from them has to end up being admissible in court. That could be challenging.
The larger issue is our successful integration of people into Canadian society. I think we have done a vastly better job of doing so in Canada and the United States than they have in Europe, When you see instances of organizations or groups doing things that are trying to stop that integration, that should be a red flag. I wrote a piece for the Macdonald-Laurier Institute some years ago about that kind of a strategy, about how you deal with it, and that is one of the points.
In my opinion, we have been very successful in integrating people from different cultures into our society, and we should continue with it.
Guy Bujold
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Guy Bujold
2018-02-15 12:40
I just want to remind you that the commission does not concern itself with crimes. When a crime is committed, and a victim feels that the RCMP or one of its members misused it powers, a complaint should be sent to us.
Malcolm Brown
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Malcolm Brown
2018-02-13 11:49
Of course, I hope so. Seriously, there is no doubt that the bill contains important new tools to that end.
It's kind of a demand-driven environment. Can I say today—I'm making up a number—there are 15 threats and Bill C-59, or some version of it, is passed, and a year from now there will be 14? No.
Can I tell you I believe—and I think this is the view of the agencies—that Bill C-59 provides important tools and assets to help reduce the threats Canada faces? My response is the same as I gave earlier. Assuredly, yes. Does it reduce every threat? No.
Malcolm Brown
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Malcolm Brown
2018-02-13 12:30
There are no uniquely specific provisions in Bill C-59 to deal with the question of violent extremist travellers. There are elements of Bill C-59 that provide the tools and assets for the agencies that will improve our ability to safeguard Canada from any threats that may present. I will also say, though, that there is a variety of tools that are available to the government, to all of us here and others, to manage and assess and take action as necessary to protect Canadians and ensure, where there is the evidence, that prosecutions can be launched against these individuals.
Malcolm Brown
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Malcolm Brown
2018-02-13 12:32
When talking about a specific case, we are all constrained, so I think we'll need to respond to your question in a general way.
With that, I'll turn it over to Monsieur Michaud.
Gilles Michaud
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Gilles Michaud
2018-02-13 12:32
That is one example of many. When it's time to investigate Canadians who have gone abroad, the work begins abroad. We have relationships with different police forces, including the police force of Five Eyes or of other countries. We start to compile evidence. Once the individual arrives in the country, we can implement other measures to continue our work and to try to determine whether that individual does indeed represent a threat and whether we have the evidence needed to lay charges.
So there is a criminal aspect involved, as well as a preventive aspect. Some individuals who come back to the country don't necessarily have a criminal past. They had other roles to play for the cause. In that case, we use other organizations to get involved and try to help them move forward in the file as soon as the individuals return to Canada.
Michael Mostyn
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Michael Mostyn
2018-02-08 12:13
Thank you. I will be sharing my time with Mr. Matas.
We thank the committee for inviting us to appear. I will provide some introductory remarks. My colleague David Matas, our senior legal counsel, will elaborate on some of our key points on the proposed legislation.
B'nai Brith Canada is this country's oldest national Jewish organization, founded in 1875, with a long history of defending the human rights of Canadian Jewry and others across the country. We advocate for the interests of the grassroots Jewish community in Canada and for their rights such as freedom of conscience and religion.
B'nai Brith Canada testified before this committee in 2015 and, most recently, in February 2017, on what was then BillC-51. Our testimony today will develop the same points we had previously expressed, and we will focus on specific areas that touch on our work, particularly part 7.
Our latest audit of anti-Semitic incidents in Canada contains a key truth: Jews are consistently targeted by hate and bias-related crimes in Canada at a rate higher than that of any other identifiable group. Statistics Canada recently released its report on 2016 police-reported hate crimes, and once again Jews were targeted more than any other group in the country. But police-reported hate crimes are only the tip of the iceberg. We require better tools—data and analysis—to gain greater insights into all hate crimes and to do a better job of countering them.
Bill C-59 includes proposals to change the Criminal Code aimed at improving the efficiency and effectiveness of the terrorist entity listing regime. We endorse those proposals providing for a staggered ministerial review of listed entities and granting the minister the authority to amend the names, including aliases, of listed entities.
In the past, B'nai Brith has been supportive of measures to empower security officials to criminalize advocacy and promotion of terrorism, and seize terrorist propaganda. We supported these measures to deny those intent on inspiring, radicalizing, or recruiting Canadians to commit acts of terror and who exploit the legal leeway to be clever but dangerous with their words. Bill C-59 seeks to change the law's articulation of this offence from “advocates or promotes” to “counselling” the commission of a terrorism offence. This is a weakening of the law that we believe is unhelpful. We have noted the assurances provided by the Minister of Public Safety and Emergency Preparedness, but we are still uncertain that such a change, which in our view weakens the law, is needed.
The change of advocacy and promotion to “counselling” also impacts on the definition of “terrorism propaganda”. Bill C-59 would remove the advocacy and promotion of terrorism offences in general from the definition. This is also a weakening of the law.
We accept that the right to freedom of expression is an important consideration, but the right of potential victims to be free from terrorism and the threat of terrorism must be a greater priority.
The importance of a clear articulation of the penalties for advocacy and promotion of terrorism should include the glorification of terrorism, something that should be of concern to all of us.
These are specific points I wanted to raise. There are others that, while not specifically part of the proposed amendments to Bill C-59, are intimately associated and are of interest and concern to B'nai Brith Canada. There are further points here. I'd like to highlight some.
The continuing manifestation of anti-Semitism, hate crimes, and hate speech in Canada affects not only the Jewish community. B'nai Brith Canada sees these worrying trends as national security issues. Organizations such as ours working with law enforcement agencies at the federal, provincial, and municipal levels must address these issues collaboratively.
The government's framework to counter youth radicalization is also extremely important. We endorse the work of the Canada Centre for Community Engagement and Prevention of Violence. We look forward to a stronger dialogue with them.
How can we collaborate in the more effective monitoring of groups engaged in hate speech or incitement directed at children, including those using coded messages that are nonetheless threatening, even where these might fall short of actual crimes? This is very much the focus in countering radicalization at an early stage, where civil society can have better dialogue with law enforcement.
How can we ensure that government agencies shun questionable organizations and groups, particularly those that receive government grants and nonetheless are operating in ways inimical to the fundamental rights and freedoms of Canadian society? We would welcome a channel of dialogue for this purpose.
Lastly, how can we better engage in dialogue with the Canada Revenue Agency to ensure diligent follow-up to complaints regarding organizations engaged in or supporting those expressing hate speech at odds with their charitable status?
There are other points, as I mentioned, in our paper. I'm sure we can answer those in questions.
I'd like to cede the floor to my colleague David Matas.
David Matas
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David Matas
2018-02-08 12:18
Thank you very much, and thanks for allowing us to be here.
I want to restrict my remarks to one particular component of the bill, the proposal to remove from the Criminal Code the offence of advocating or promoting a terrorist offence, and to replace it with the offence of counselling a terrorist offence. We are sympathetic to the expressed government motivation that led to the introduction of this change. Nonetheless, we believe the proposal is problematic.
Public Safety Minister Ralph Goodale expressed concern that there were no prosecutions under the existing law. He introduced the change, so he said, in order to introduce a more familiar offence for which prosecution would be easier. We, too, of course, are concerned by the absence of prosecutions under the existing law. However, it is far from obvious that changing the offences of advocacy and promotion to the offence of counselling will resolve this problem.
For one, we note, as you've already seen in the submission of the International Civil Liberty Monitoring Group, that there is the view that the offence of counselling is superfluous now because that offence already exists in the Criminal Code. If that submission is right, and the offence is already there, then shifting the offence of advocacy and promotion of terrorism to counselling of terrorism will do nothing to solve the problem of inactive prosecution. Saying the same thing twice does nothing to spur prosecutions. If incitement to commit a terrorist offence was not prosecuted under the present counselling law, there's no reason why it would be prosecuted under a repetition of that law.
The alternative, of course, is that the proposed counselling offence does add something new, that it is not just a re-enactment of the already-existing offence. However, if that is the case, then the advantage of familiarity with an existing standard that the minister touted does not exist. If this counselling offence is different from already-existing counselling offences, then the new law will suffer from the same teething problems that the existing advocacy and promotion law have arguably suffered.
The rationale of the minister for the need to enact a familiar offence to make the law work is further undermined by the fact that advocacy and promotion are not new and different offences. The offence of advocacy exists for both genocide and sexual activity with a person under the age of 18. The offence of promotion exists both for genocide and hatred. In my written materials, I go through a number of cases in the Supreme Court of Canada that look at, define, and circumscribe these offences of advocacy and promotion. Therefore, we already have plenty of legal guidance about the meaning of the concepts of advocacy and promotion.
The notion that prosecutors have stayed their hands because they're uncertain about the meaning of the current law or worried about its overbreadth is not supported by an examination of the Criminal Code and the jurisprudence.
The minister has identified a real problem: a failure of prosecutions under the existing law despite the multiplicity of apparent violations. The solution he proposes, we suggest, does not directly address the problem. The solution, we suggest, lies elsewhere. The prosecution of incitement to terrorism within crown investigation and prosecution offices needs to be given a higher priority. There need to be more resources, more expertise, more training. There needs to be more international co-operation, more experience-sharing, more learning from others, including Israel, who have had to grapple with this problem.
We would encourage Canada to sign and ratify the Council of Europe Convention on the Prevention of Terrorism, which incorporates the specific obligation to prohibit public provocation of terrorism. Ratifying the treaty would not only allow for closer collaboration between Canada and other terror-combatting states, it would also make directly relevant to Canada the jurisprudence in other countries and the European Court of Human Rights, which interpret the relevant treaty provisions.
The government could publish advisory guidelines on its understanding of the meaning of the advocacy or promotion of terrorism. The guidelines would not bind prosecutors but could help dispel uncertainty. One suggestion already indicated by my colleague, Michael Mostyn, is that the guidelines should state that glorification of terrorism should be included in advocacy or promotion of terrorism.
We welcome the fact that the government and the committee are giving the combat against incitement to terrorism the attention it deserves. It remains, nonetheless, for us all to choose the best course to follow in combatting this scourge.
Thank you.
David Matas
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David Matas
2018-02-08 12:31
Right now I think the government has identified a real problem; there are no prosecutions. I don't think the problem is the wording in the law. In fact, the wording in the law we have now I think is preferable to the wording the government proposes. I think there's a different way of dealing with this problem. I don't see the problem being solved by changing the law to more restrictive wording, because I don't see the problem existing in the wording in the law. In fact, it sends a counterintuitive message that we're stepping back from directly addressing this problem. We have to think of ways of moving forward rather than stepping back.
David Matas
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David Matas
2018-02-08 12:32
I did try to indicate at least some of them in my brief: education, training, signing the convention guidelines, and working with other countries. I would say we are dealing with terrorism—not just incitement, but terrorism generally—as a relatively new phenomenon. As a result, it requires a form of expertise that the police authorities' prosecution and investigation haven't traditionally had. I don't see the development of that experience and the ability to use the law being affected by changing the law. I think it has to lie elsewhere.
Michael Mostyn
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Michael Mostyn
2018-02-08 12:33
If I could just add to that, we need to ensure that conceptually there is no narrowing, so that our security agencies can properly deal with the threats of terrorism today and the threats of terrorism that exist tomorrow.
On the Justice Canada website right now, in a description of Bill C-51 discussing the criminalization of the advocacy or promotion of terrorism offences in general, it states that:
It is directed at prohibiting the active encouragement of the commission of terrorism offences and not mere expressions of opinion about the acceptability of terrorism.
A sentence later states:
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.
I think we need to be careful about narrowing it as if that were handcuffing our security apparatus from dealing with the threats of terrorism into the future.
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