Submission in Response to “Our Security, Our Rights: National security Green Paper, 2016”
To: The Standing Committee on Public Safety and National Security
From: Elizabeth May, O.C.
Member of Parliament
Date: December 1, 2016
This brief is prepared in response to the Green Paper, “Our Security, Our Rights: National security Green Paper, 2016.” I am incorporating the views of my constituents who attended a Town Hall on this paper on November 8, 2016. Those in attendance overwhelmingly want most of what was C-51 repealed.
I hold both of the ministers under whose signature the document was released, as individual public servants and as members of the government’s Privy Council, in the highest regard. Therefore, I regret that my response to the Green Paper is to find it slanted and distorting. It should not be the frame within which the previous parliament’s Bill C-51 is reviewed.
It misses by miles the main objections to the omnibus Anti-Terrorism Act, (formerly known as C-51, and which I will reference as C-51 in this submission). It frames the issues in such a way that public commentary is likely to be misdirected to lesser concerns.
The four bulleted points in Ministers’ message presumes that the range of review and change is exceedingly narrow.
I will take each in turn:
“Guarantee that all Canadian Security Intelligence Service (CSIS) warrants comply with the Canadian Charter of Rights and Freedoms”
This commitment may mislead the average citizen into thinking the Liberal government is serious about redressing the egregious and anti-democratic nature of C-51. But the commitment presumes that CSIS agents will be going about seeking warrants. It anticipates and pre-judges the future role of CSIS.
The elephant in the room is ignored: Was the previous government justified by evidence of good public policy to convert the Canadian Security Intelligence Service into an active agency for “disruption of threats”?
The original raison d’etre for CSIS was to ensure it remained exclusively an intelligence gathering agency. There was no justification for abandoning that role. It makes far more sense for CSIS to be mandated to provide full intelligence at its disposal to the RCMP. It makes far more sense for there to be a Federal Security Czar to ensure that information is shared between and among Canadian security agencies. While the proposed C-22 to establish a committee of Parliament to provide oversight is a step in the right direction, it is, by itself, inadequate to ensure full information sharing, as was recommended by the Air India Inquiry.
It must be on the table for public consultation that Part 4 of C-51 (the amendments to the Canadian Security Intelligence Service Act) be repealed. The fundamental question is “Will empowering CSIS to disrupt plots and threats improve Canadian security?”
The evidence before the House and Senate committees examining C-51 was that it will not. In fact, C-51 decidedly will reduce the security of Canadians. This was the advice of no less than Mr. Justice John Major, who chaired the Air India Inquiry, as well as of UK intelligence expert, M-15 agent Joe Fogarty.
Creating CSIS as a secret police, for that is what it has become, is not only an affront to the Charter, it sets in motion competition and non-cooperation between the various agencies engaged in security in Canada.
The architects of C-51 completely ignored the advice from the Air India Inquiry. As Craig Forcese and Kent Roach testified to the House Standing Committee on Access to Information (November 3, 2016), “Information is the currency of any effective security system, especially one that seeks to pre-empt terrorism. The Air India commission recognized this, and urged that the CSIS Act ‘should be amended to require CSIS to report information that may be used in an investigation or prosecution of an offence either to the relevant policing or prosecutorial authorities or to the National Security Advisor.’ ” (Recommendation 10).
The testimony presented to this committee on November 1, 2016 from Michael Coulombe, CSIS Director, and Deputy Minister Malcolm Brown that CSIS and the RCMP pride themselves on their ability to share information is self-serving and run contrary to vast experience, such as that proffered as evidence in the last parliament.
Mr. Justice Major testified to the House committee on C-51 that it was “human nature” that Canadian spy agencies would keep information from each other. Before the committee in the last parliament, John Major testified, “The system just doesn’t work if there isn’t some way of ensuring that you have information-sharing.” By this he did not mean information sharing about all Canadians as in part 1 of C-51, but information sharing between CSIS and the RCMP. He went on to say, “...there’s no way from what I’ve seen that the present proposed legislation is going to do that.”
That was why Mr. Justice Major forcefully argued that C-51 should not be passed without a strong Federal Security Czar with pinnacle authority and review in real time.
British intelligence expert Joe Fogarty testified to the Senate committee of specific recent incidents in the public domain in which CSIS knew the RCMP was tracking the wrong people, or knew of terrorist preparations of which the RCMP were unaware but should have been tracking. His evidence was of recent examples where CSIS kept such vital information from the RCMP. Mr. Fogarty hinted that there were many other instances of this type not in the public domain. His conclusion was that C-51 left Canada as “...sitting on top of a tragedy waiting to happen.”
The safest course for public security is to ensure that CSIS revert to its intelligence gathering role ONLY.
The following is from my speech at Third Reading of C-51:
“It is one of the most offensive sections of the whole bill. It is the notion in part 4 that CSIS agents with an operational role now, what Roach and Forcese describe as ‘kinetic’ functions, would go from collecting the data in the information to taking up disruptive activities themselves. If they thought they were going to break a domestic law or violate the Charter, they would go to a judge in a secret hearing and ask for permission to violate the Charter…. Every legal expert who testified before the committee said that this was outrageous and that no other government, and certainly none of our Five Eyes partners, allows their spy agencies to violate the Constitution through the simple expedient of going to a federal court judge in a secret hearing…
That brings me to a brief from a group that was excluded from giving testimony to the committee, the special advocates. Special advocates are security cleared lawyers who operate in secret hearings, usually on security matters, to ensure that the public interest is protected. These experts who were not heard before committee did submit written evidence urging that the bill be changed to ensure that we do not have secret hearings with no one present other than the minister and CSIS.
This kind of secret hearing, by the way, is particularly egregious, because it is very unlikely to ever be subjected to judicial challenge. It would be hard to ever find out what happened in a secret hearing. It would not come before the Supreme Court of Canada and be struck down. Establishing standing, for instance, for a civil liberties organization to challenge this would be nearly impossible. That is why my position is so firm that the bill must be repealed if it should ever pass.”
Well, it has passed and I suspect the security establishment within the bureaucracy has prepared a discussion paper that prevents the new government from even examining these questions:
Why should Canada, alone in the democratic world, unlike any of our Five-Eye partners, allow a “warrant for constitutional breach?” (to use Craig Forcese and Kent Roach’s term).
Why should we empower CSIS to break laws in foreign countries with no review or warrant? Do we not foresee other countries acting reciprocally and having their security agents break our domestic laws?
Why did C-51 include these alarming provisions (in what was formerly s. 42 of C-51, amending section 12.2 of the Canadian Security Intelligence Service Act): (1) In taking measures to reduce a threat to the security of Canada, the Service shall not (a) cause, intentionally or by criminal negligence, death or bodily harm to an individual; (b) wilfully attempt in any manner to obstruct, pervert or defeat the course of justice or (c) violate the sexual integrity of an individual.”
Are CSIS agents allowed to accidentally pervert the course of justice?
Why change the role of CSIS as an intelligence gathering agency? Why create a secret police?
There was no evidence brought forward in the initial hearings on C-51 to justify the need to convert CSIS from intelligence gathering to active “disrupters” of threats to security.
It is clear CSIS will not have powers of arrest, but the following are the likely activities CSIS will be able (with secret warrants) to conduct:
Interfering with software, inserting or removing things from the computers and other devises of people who have no legal recourse and may be completely innocent.
Prompting computer crashes, loss of critical data;
Over—heating or inducing over-voltage incidents;
Remotely engaging the target’s device’s microphones for non-sanctioned eavesdropping;
Disruption of devices, including cars, home lighting and appliance controlled by smart computer systems.
This suggests the ease with which CSIS can engage in a modern-day version of 1944 mystery-thriller “Gaslight.” The mental health of innocent people could be easily compromised by manipulation with the gadgets of the modern world.
More nefarious, but hardly far-fetched, is the potential for more invasive actions. The recent successful appeal of the so-called terrorism case of John Nuttall and Amanda Korody should be considered when parliamentarians are examining our security laws. The following brief summary is from the Globe and Mail, July 29, 2016, “B.C. bomb plotters set free after judge rules RCMP entrapped pair:”
B.C. Supreme Court Justice Catherine Bruce said the Mounties used trickery, deceit and veiled threats to engineer the terrorist acts for which Nuttall and Korody were arrested on Canada Day three years ago.
The couple believed they were planting pressure-cooker bombs to kill and maim crowds gathered to celebrate at the B.C. legislature.
“The world has enough terrorists. We do not need the police to create more,” Bruce said in a landmark ruling Friday as she characterized the RCMP’s methods as “multi-faceted and systematic manipulation.”
“There is clearly a need to curtail the actions of police ... to ensure that future undercover investigations do not follow the same path.”
Without the heavy-handed involvement of undercover officers, it would have been impossible for Nuttall and Korody to articulate, craft and execute a terrorist bomb plot, Bruce said.
“Ultimately, their role in carrying out the plan was minuscule compared to what the police had to do,” Bruce said. “It was the police who were the leaders of the plot.”
She also condemned the behaviour of the primary undercover officer who, at the direction of the operation’s overseers, discouraged Nuttall and Korody from seeking outside spiritual guidance and convinced them he was a member of a powerful international terrorist group that would likely kill them if they failed to follow through.
“He was their leader and they were his disciples,” said Bruce, who stayed the proceedings, which threw out the convictions and allowed the couple to walk free after more than three years behind bars.
While this case involved RCMP under-cover efforts prior to C-51, in the context of C-51 it raises important questions:
Did CSIS know the RCMP were wasting vast resources on a non-threat?
Did CSIS share information about Nuttall and Korody with the RCMP?
Did the RCMP ask CSIS for intelligence on the two suspects?
With its new C-51 powers, CSIS will be able to offer immunity to informants from ever having to give evidence or face prosecution, yet nothing in C-51 requires CSIS to alert the RCMP that they have provided such protections. With the RCMP conducting undercover efforts, leading to planned arrests, what will ensure the agencies are not tripping over each other? Will the RCMP know before a suspect produces a CSIS “get out of jail free” protection?
Imagine the Nuttall/Korody case with the additional layer of CSIS “disruption.” Just think about it.
It is far from clear that there is any security advantage to giving CSIS new powers of disruption. There is evidence it could make us much less secure both from terrorist plots as well as from invasive action by our own security agencies.
“Ensure all Canadians are not limited from legitimate protest and advocacy”
I believe this bullet point has been included by the bureaucracy as a red herring. I believe the departments involved, having brought in C-51, are comfortable with it as status quo and hope to leave it as untouched as possible, so this section is more of a diversion than anything.
The use of the word “lawful” as a modifier for protests and actions in civil society was originally found in C-51 at First Reading in the Part 1 “Information Sharing” provisions. The clause on “Interpretation” included a long list of activities considered to “undermine the security of Canada.” It concluded with:
“For greater certainty, it does not include lawful advocacy, protest, dissent and artistic expression.”
I raised this issue within days of First Reading of C-51. The use of the word “lawful” attracted concern about non-violent civil disobedience, the use of wild cat strikes and so on. It was removed prior to Third Reading. It was a small improvement; but it is insufficient to deal with the dangers that are embedded in this act.
Section 1 on information sharing’s greatest risks are in the lack of reviewable tests or screens before information about Canadians is shared with foreign governments. The recommendations of the Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar must be brought to bear on this section, as well as the “no fly list” of Part 2 of C-51(Secure Air Travel Act). The threat to Canadians abroad of being shopped out to foreign governments and unable to board a plane home are deeply alarming.
“Enhance the redress process related to the Passenger Protect Program and address the issue of false positive matches to the list”
I submit this consumer concern about interference with holidays, while serious and annoying, is easily handled and does not focus on the far deeper threats to Canadian democracy of C-51. By all means, let’s protect those accidentally on the list. But if C-51 is a Frankenstein’s monster, this problem is a pimple on his nose. Another red herring in a public consultation.
“Narrow overly broad definitions, such as defining ‘terrorist propaganda’ more clearly”
Once again, the public consultation document neatly avoids the most dangerous elements of what was Part 3 of C-51, amending the Criminal Code to remove terrorist propaganda from the internet. But just as in the section on how CSIS agents obtain warrants, this section pre-supposes no problem with one of the most contentious aspects of this section. In fact, the Green Paper repeats the phrase “terrorism in general” as though it has meaning. It was repeatedly brought to the attention of the House Committee studying C-51 that the use of the phrase, unknown in law, only adds to the risk of the section infringing on the rights of innocent Canadians, while increasing the threat of radicalization.
This committee must make an issue the term “terrorism in general.” The term “terrorism” is understood. It has legal meaning. “Terrorism in general” has no meaning. The Criminal Code sections must be amended to eliminate this vague term.
In addition, the sections on internet promotion of terrorism lack crucial protections found in other such provisions of Canadian law. As I explained in my speech at Third Reading of C-51:
“…the fallacy that the provisions in the act to take terrorist propaganda off the Internet will in fact stop radicalization needs to be understood in the context of a legal analysis of the words that are used. In the section of the bill that deals with the Criminal Code and what I now call the thought-chill section in part three of the act, what it says is that this bill would deal with something called promoting terrorism “in general”, which is not a defined term. Terrorism and general propaganda would include any visual image or general language.
“Legal experts have looked at this and are concerned about a couple of things. This business of getting things off the Internet is not brand new to Canadians. We have hate speech laws that take things off the Internet, and we have child pornography laws that take things off the Internet. In what way have we constructed these provisions on terrorism in general that are fundamentally different from what we did about hate speech and child pornography, which I think we would all agree we take very seriously. Those kinds of laws have statutory defences, and more significantly, those laws specifically exclude private conversations. This one does not.
“A person could be arrested and go to jail for a private conversation, for discussing things that, in general, and it is very vague, could be seen to promote terrorism or might be reckless as to whether they promoted terrorism or not. Legal experts are concerned that this chill provision would make it harder for a community to continue to converse with people who are at risk of radicalization to stop them, to argue with them, to say that their understanding of Quran is entirely wrong and that they need to talk about this.
“By failing to exclude private conversations, we increase the likelihood that no one will reach out to that person, and we have no programs to deal with it.” (emphasis added)
Additional comments on the Green Paper
The paper fails to note that there is not adequate over-sight and review of security agencies even with the improvement of a Parliamentary Committee as proposed in C-22. Even with C-22, the measures are inadequate to meet Mr. Justice Major’s plea for pinnacle over-sight. Review functions for CSIS and RCMP are after the fact and weak. The RCMP review body still lacks powers of subpoena, despite strong recommendations that those powers be made available by the previous chair, of what was then called the RCMP Public Complaints Commission, Paul Kennedy.
Unlike CSIS and the RCMP, the Canadian Border Services Agency has no review body nor oversight. Given its recent legal transgressions, clearly CSEC is also inadequately controlled.
It will be all too easy to say, “Well, if I am a law-abiding citizen, I have nothing to fear from security agencies. Those calling for protection of civil liberties do not recognize the terrorist threat. It is a higher order good in society to prevent terrorism.”
But it must be stressed that expert evidence in the C-51 hearings was that without proper controls and mandatory information sharing, C-51 makes us less secure. The last part of former C-51 that requires review is the rather vague change to the Immigration and Refugee Act. This section received nearly no discussion. No witnesses spoke directly to the amendments to the Immigration Act. The only expert who explored the oblique and mysterious impact of those changes was Prof Donald Galloway of the University of Victoria Law School. Prof. Galloway is a leading expert in refugee and immigration law and the author of the current definitive text. Although he was not invited to testify in 2015, he published an opinion that the purpose of this section was to allow judges in security certificate cases to be given evidence obtained by torture, without telling the judge the evidence was obtained by torture. I urge this committee to seek Prof. Galloway’s opinion and re-examine the implications of the C-51 changes to the Immigration and Refugee Act.
To the question on page 10, What more can we do?
In December of 2014, the U.K. came up with a very specific anti-terrorism bill, with proactive programs to go into schools and prisons to find those people at risk of radicalization and stop them, prevent them, dissuade them. We know that the horrific attacks of 2015 in Europe were conducted by people who were allegedly radicalized in prison. The UK programmes should be studied in the Canadian context. We should learn from any early experience in the UK and bring well-funded programmes to Canadian schools and prisons.
Constituents at my Town Hall meeting overwhelming identified the gaps in mental health programmes a key issue. I agree. The October 22, 2014 attack on Parliament Hill and murder of Corporal Nathan Cirillo, an unarmed member of the Argyll and Sutherland Highlanders of Canada, could have been prevented had addition and mental health counselling been made available when the so-called terrorist first begged a Vancouver judge to incarcerate him long enough for him to get help.
It is not too late to call for a public inquiry into the events of October 22, 2014. It is quite incredible that in a modern democracy, the events of that day and the security failure inherent in its occurrence, have had zero public accountability.
There were numerous officers, particularly in the House of Commons on October 22, who risked their lives to protect Members of Parliament and others in the building. Although there has been no public investigation and report of what happened on that day, we do know that the gunman was stopped at the door by an unarmed House security guard, Samearn Son. He wrestled with the gunman and stopped what could have been a much worse event by giving others the chance to prepare themselves. Samearn Son had delayed the gunman at the door, with the rifle barrel at his chest at one point, forced the gun down and was shot in the leg. The bravery of many individual Hill Security and RCMP officers remains in the minds and hearts of those of us who were on Parliament Hill that day.
Without adequate debate, we abandoned a principle of over 500 years. That is that security for our parliament must never be in political government control. It must rest with the Speaker. The RCMP are now in charge of hill security. We should never have violated the principle that security for all MPs is not in the hands of the government. We do not want (as unlikely as it may be) a future PM to be able to ask security forces to impede the work of Opposition MPs.
There are lessons to be learned – about radicalization, about the urgent need for mental health and addiction programmes. But what bothers me to this day is that there has never been a full investigation of how one of the best guarded building in Canada was so poorly protected. I urge this committee to recommend that this veil of secrecy be lifted.
I recommend that, using the original C-51 sections, sections 1, 3, 4, and 5 be repealed and section 2 modified to ensure protections for Canadians travelling abroad.