Tuesday, June 2, 2015

Meeting 2 of C-51 Hearings

Here we are! Let's get to it!
    Good morning, colleagues, and welcome to our witnesses here today.

    We have a group of witnesses here for the first hour, then further witnesses for the second hour, and then another table of witnesses this evening. We will start with opening statements by our witnesses here today. We would remind you that you're entitled to a maximum of 10 minutes, but should you be able to be a bit more brief, that would give more opportunity for the committee to have a dialogue with you.
    At this particular point, we welcome Carmen Cheung, the senior counsel from the British Columbia Civil Liberties Association. From Greenpeace Canada, we have Joanna Kerr, executive director, and Keith Stewart, head of the energy campaign. As an individual, we have Ron Atkey, professor from Osgoode Hall Law School at York University. Welcome to all of our witnesses today.
    We'll start with opening statements now.
    Ms. Cheung, you have the floor.
There was a point of order from Wayne Easter here that I'll deal with in a separate section. 

    Thank you, Chair.
    Good morning. It is a privilege to appear before the committee again. On behalf of the British Columbia Civil Liberties Association, I'd like to thank you all for your invitation to speak today.
    The BCCLA is a non-profit, non-partisan organization based in Vancouver, British Columbia. For over 50 years the mandate of the BCCLA has been to promote, defend, sustain, and extend civil liberties and human rights in Canada.
    We have submitted for the committee's consideration a written brief setting out our chief concerns with Bill C-51, and hope that as the committee examines this bill it will consider not only whether its provisions are constitutionally compliant but whether they are also efficacious and just.
    We raise six chief concerns with the bill. Given our limited time here I can only canvass them in my opening remarks, but I do hope that the committee will refer to our written submission, which sets out our views in greater detail.
    First, it is our submission that the security of Canada information sharing act is fundamentally flawed and should not be enacted. It endorses a radical conception of security unprecedented in Canadian law, and an unbounded scope of what it means to undermine Canadian security. Based on these expansive concepts, the act authorizes warrantless information sharing across government and dissemination outside of government. As the Privacy Commissioner has pointed out in his letter to this committee, such widespread and relatively unfettered access to personal information poses serious dangers for individual privacy. We and others have also suggested that such massive data collection and information sharing may not necessarily benefit security, either. Moreover, the act deepens an already serious deficit in national security accountability.
    Professors Kent Roach and Craig Forcese have extensively detailed the legal problems with this proposed act, so we will not repeat them here.

    Paul Champ, who is appearing on behalf of the International Civil Liberties Monitoring Group later today, will discuss in greater detail the human rights concerns raised by the information sharing act. We share the ICLMG's concerns. We add only the following observation. To those who might say that this proposed act poses little threat to freedom of expression and dissent, recent examples show that government already takes a very wide view as to what constitutes a threat to Canada's security. We need only to look at CSIS and RCMP monitoring of non-violent protests undertaken by first nations and environmental groups. 
Exactly. (Emphasis added.)
    Second, it is our submission that the secure air travel act should be rejected. As a threshold matter, we question the efficacy of no-fly schemes in general. Travellers on such lists are deemed too dangerous to fly yet too harmless to arrest. It is our view that if law enforcement officials have enough information to determine that an individual poses a threat to aviation security or that they are planning to board a plan in order to commit a terrorism offence, the officials are also likely to have enough information to lay charges or to seek a recognizance order with conditions. If it is indeed necessary to impose a travel ban, then the criminal law is already well equipped to allow the government to seek a court order to that effect.
In retrospect, this seems obvious. What sort of individual, what sort of plot, could be discovered that would make someone worthy of a no-fly list, but unworthy of arrest? Where is the line on the spectrum from innocent to chargeable that the no-fly list would sit? If a terrorist plotter were to find themselves on a no-fly list, that would surely alert them to the fact that they're under surveillance, so tipping the hand of an investigation can't be the issue.
    But even if no-fly schemes do improve aviation security, the system proposed here suffers from serious procedural deficiencies. The proposed act creates a system where travellers have no concrete way of knowing whether they are on the no-fly list, where the reasons for listings are largely kept secret, and where the judicial process for reviewing delisting applications can be held in secret. This is a dangerous lack of due process. While travellers can't access information relating to their own listing, the proposed act does allow the government to share its no-fly list with other countries, with no statutory limitations on how that information can be used by a foreign state. Canada's experience with mistakenly labelling individuals as security threats and providing that information to foreign governments should counsel against such carte blanche approaches to foreign information sharing.
Taking up her last point first; Yes indeed, sharing our security agencies' "suspicions" with foreign agencies has been documented as having been disastrous (and expensive). You'll notice, if you read the first day's testimony, that no harpercon hack or stooge made any reference whatsoever to CSIS's serial fuck-ups which resulted in the prolonged torture of our fellow Canadian citizens.
With regards to her other points, I must be biased, in that I'm not an authoritarian goon who is also deluded in seeing "terrorism" as the great cause of our era, because her concerns make perfect sense to me.

No-fly lists create this perpetual status of "not quite innocent in the eyes of the law" with no real means for a citizen to get out of. Supposedly one is put on a no-fly list when they're at the stage of "dangerous but not really going to do anything yet." That is the criteria for getting on the no-fly list. Why does the government think you're such a person? You don't really know. You can apply to be taken off the list, but the decision is made behind closed doors.

As calculatedly duplicitous as people like Steven Blaney and Peter MacKay are, it's also important to remember that they're imbeciles. In his heart of hearts, Blaney might convince himself that good judges will not allow good people to be on no-fly lists for bad reasons. But Blaney forgets that the law is not about whether it's "good" but about how it's written. The Supreme Court of Canada doesn't constantly overturn harpercon legislation because it is not "good" but because its wording violates the wording of the Charter of Rights and Freedoms. The intention might be good, but sloppy wording can make well intended legislation dangerous. The criteria for being harassed by the state under Bil C-51 is dangerously vague. The threat level exceedingly low. I'm paraphrasing here, because I'm lazy, and not testifying before this committee and not writing legislation, but basically, all the government has to do is establish that they feel someone is likely to pose a threat to Canada's current state, for that person to be subject to all the oppressive measures in the Bill.

    Third, we oppose the creation of an advocating or promoting terrorism offence in the Criminal Code. We see no security interest in further criminalizing expression beyond what is already proscribed by law. The Criminal Code already makes it illegal to counsel anyone to commit a terrorism offence. Considering that terrorism offences include acts that fall well short of violence, such as preparing to commit terrorist acts or supporting terrorist activity, this already captures a broad range of terrorism-related expression.

    Similarly, the participating, facilitating, instructing, and harbouring provisions already contemplate recruitment and instruction to commit terrorist acts as criminal offences. In the Khawaja case, the Supreme Court of Canada also considered the constitutionality of the definition of terrorist activity in the Criminal Code, and allowed it to include threats of violence.  

    This new offence, then, would criminalize expression far removed from acts of terror or violence. It would make criminals of individuals whose sentiments may never even leave the confines of their own living room, so long as their listener is someone who might commit a terrorism offence. The new offence contains no requirement that the speaker actually intend a terrorism offence to be committed, and it contains no requirement that the listener commit a terrorism offence either.
    Endorsing acts of terror may be upsetting to some and repulsive to many. But freedom of expression is what creates a democratic society in which we can debate the merits of ideas, even those that, as individuals, we find deeply offensive. A democracy is based on the premise that individual citizens have the capacity to govern themselves, to understand and to evaluate different perspectives with which they are confronted, to deliberate their merits, and to ultimately decide which viewpoints to adopt and which to discard. Accordingly, we urge this committee to reject the creation of this new offence.
Under Bill C-51, someone who says they can understand it when the Palestinians fire rockets into Israel, or become suicide bombers, is now subject to  preventative arrest; invasions of privacy, and being put on a no-fly list. Meanwhile, Paul Calandra's 100% support for Israel carpet-bombing Palestinian civilians is exempt. Shit. Even someone who supports Boycotts, Divestments and Sanctions against Israel is on their way to becoming a terrorist in the eyes of this gang of lunatics who call themselves our government.
    Fourth, we submit that this committee should reject the proposed preventative detention amendments. Bill C-51 expands a troubling regime of preventative detention by lowering already low thresholds for detaining individuals on mere suspicion of dangerousness. When this committee debated the reintroduction of the preventative detention provisions currently in the Criminal Code, we expressed serious concerns about the necessity for such sweeping arrest and detention powers. While we continue to believe that it is preferable to charge terrorism suspects under the criminal law so that they are afforded appropriate due process protections, the fact remains that the government already has extraordinary powers at its disposal.
    The question that this committee and all Canadians should be asking is not what additional powers should be granted to government to protect public safety, but how well existing powers are being used and whether the existing criminal law is being properly enforced.
This is true. Listening to Blaney and MacKay, it sounds as if there is at present, nothing the government can do to deal with threats to national security unless we pass this bill. In reality, they can already do a lot. Even conduct surveillance on someone who they can only establish is "an Arab running around."
    Fifth, we believe that the proposed amendments to the CSIS Act are unwise and unnecessary and should be rejected. By giving CSIS the power to engage in threat disruption, Bill C-51 blurs the line between spying and policing, carefully drawn following the McDonald commission. This threat reduction power is a policing power. It is a policing power made extraordinarily broad by virtue of the expansive definition of threats to the security of Canada contained in section 2 of the CSIS Act, a definition that was constructed to set out the mandate of an agency responsible for collecting and evaluating information, not a policing authority. It is a policing power made dangerous, given the secrecy that accompanies national security activities. Rights violations may be more difficult to detect, and once detected, more difficult to remedy, and it is a power that seems wholly unnecessary. Government has provided little evidence for why this expanded power should be granted to CSIS or why CSIS should have any policing powers at all.
Especially when you remember that Bill C-51 is also about sharing of information. Why not smooth the path for CSIS to alert the RCMP about their discoveries? (Besides the fact that the denizens of both agencies distrust and loath one another.)
    We are deeply troubled by the proposed CSIS warrant powers in this bill and the proposition that Canada's courts should be tasked with authorizing measures that violate constitutional rights. As many others have observed, this profoundly misconstrues the role of the court in our constitutional system. Asking the court to authorize violations of fundamental rights, such as those protected by the charter, is simply offensive to the rule of law.
"Your honour; we know that as a Canadian citizen, this person supposedly enjoys the protections of the Charter of Rights and Freedoms, but we have some secret evidence we'd like to show you, that says you should sign-on to depriving this person of those protections."

"Well, I ..."

"Oh yes! I forgot to say that we did NOT get this information from anyone who was tortured, and we PROMISE (cross our hearts and hope to die) that we won't exceed the limits of the warrant you give us."
     Over the past decade, we have seen the effects of an approach to national security that privileges bare legality, and at worst, descends into illegality. The consequences for the rule of law and human rights have been profound. Meanwhile, it remains an open question whether the gloves-off approach to national security has made Canada or any of our allies any safer.
That's irrelevant to this government. They don't care if we die from eating tainted meat, exploding tanker cars, homelessness, cancer, etc., ... except so far as that affects their reelection prospects. This is all about grabbing power to suppress dissent. Our foreign policy attracts what terrorism or extremism we do suffer from, and they're not about to change that.
    Finally, Bill C-51 ignores the Supreme Court of Canada's teachings that the government cannot rely on secret evidence in security certificate proceedings without providing some way for the named person to know the case to be met and a procedure by which the evidence could be tested.
     The proposed amendments to IRPA that would limit the scope of materials produced to special advocates should be rejected. It is difficult to conceive what sort of information is being exempted by these provisions. By definition, the information is neither relevant to the government's case against the person nor is it information to be considered by a judge when determining whether the certificate is reasonable. It begs the question of why this information is being placed before a judge at all, and leads us to conclude that this class of information may be so problematic that, rather than being exempted from disclosure, it must be made available to special advocates to review and potentially challenge.
It sounds like something incoherent and pointless enough for Steven Blaney to have thought of!
    It is difficult to comment on national security powers without also discussing the need for real accountability and review.
     I know that I am out of time, so I will just end by saying this. We cannot afford to enact this bill, because we cannot afford to further expand the reach of the scope of our national security activities without taking steps to ameliorate what is now a staggering accountability deficit.
    Thank you again for this opportunity and for this committee's work. I look forward to your questions.
That'll be for tomorrow. I'll take some time to digest this testimony myself.

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