Elizabeth May Third Reading Speech on Bill C-51

On Wednesday, May 6th, 2015 in Parliament, Speeches

Mr. Speaker, I want to begin, of course, by thanking all parties in this place and all members. If even one voice had said no, I would not have had this opportunity to speak to Bill C-51 at third reading. I am genuinely grateful for the generosity of spirit in accepting this as a motion by unanimous consent.

Having participated in the debates on Bill C-51 from the very beginning, and having been the first member of Parliament to declare firm opposition to the bill, I am enormously concerned that we have made such little progress in addressing those concerns.

Let me acknowledge at the outset that one of the first concerns I had was the use of the word “lawful” as a modifier for protests and actions in civil society. That word “lawful” has been removed, and that is a small improvement, but it is insufficient to deal with the dangers that are embedded in this act.

Sitting here today through third reading, I heard a great number of propositions from Conservative members of Parliament. I have no doubt that they believe those propositions in their speaking notes to be true, but they are consistently repeating fallacies that I would like to try to explain and deconstruct so that Canadians will understand why these repeated bromides are just not true.

The three fallacies I want to address in the time I have are the following. One notion is that information-sharing, which is part one of the bill, is designed to ensure that our security services, which are the RCMP, CSIS, Canada Border Services Agency, and CSEC, the agencies of policing and intelligence, share information with each other. That was put forward earlier today several times, and that, indeed, is something that must be done, but this bill does not do it.

The second fallacy is that there is judicial oversight in this bill, because judges are involved in one section. I want to deal with that one as well.

The other fallacy is that the terrorism and propaganda sections in the amendments to the Criminal Code in this omnibus bill would actually make it more likely that we could stop youth from being radicalized.

There are some things that are not in this bill, and I want to mention those, because I do not understand why, if the Conservative Party and administration were serious about avoiding radicalization, they would not have followed the example of the United Kingdom. Not everything the U.K. is doing in this area do I endorse. However, in December of last year, 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 recently in Europe were by people who were allegedly radicalized in prison. Why do we have nothing in Canada to deal with that?

On the other hand, and I will get to this by starting with my last point first in terms of fallacies, 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.

The second fallacy, going backward, is the notion that we have judicial oversight. We have no judicial oversight in the bill. First, one needs to understand what oversight means. For this, I quote from a paper by the very dedicated law professors who took this bill on and have published hundreds of pages on it, Professor Craig Forcese and Kent Roach, who wrote the following:

“Review” and “oversight” are often confused. Oversight is a real-time (or close to real time) operational command and control strategy. Review is a retrospective performance audit….

We can say that SIRC provides review, although it has part-time employees and part-time members of the SIRC board and a very inadequate structure, but there is no oversight. We used to have an inspector general for CSIS. The inspector general for CSIS was done away with in omnibus Bill C-38 in spring of 2012.

The term “judicial oversight”, as used by members of the Conservative Party in this debate, is truly a perversion of reality. 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. Do not take it from me. 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.

Earlier today, the parliamentary secretary for public safety ridiculed a speech from the official opposition when it pointed out that no one would be there. How could anyone be there, she asked.

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.

The last fallacy is the really large one. It is part 1, about information-sharing making us safer. First, another witness who was not allowed to testify was the Privacy Commissioner of Canada, Daniel Therrien. He was very clear. He said that he was:

…concerned with the breadth of the new authorities to be conferred by the proposed new Security of Canada Information Sharing Act. This Act would seemingly allow departments and agencies to share the personal information of all individuals, including ordinary Canadians who may not be suspected of terrorist activities….

This is an important point. However, what the information-sharing section does not do, which is critical if we want safety, if we want to ensure that Air India does not happen again, is ensure that the spy agencies and the policing agencies are talking to each other so that they are not letting critical information be hoarded.

By the way, Joe Fogarty, a U.K. expert in security, testified before the Senate about recent examples, on the public record, where CSIS found out that the RCMP was tracking the wrong people and decided not to tell it, or where CSIS found out there was a training camp for terrorists and decided not to tell the RCMP. We need to ensure that these agencies share the information.

Part 1 of the bill would allow agencies of government to share information about individual Canadians, but there is no requirement and no pinnacle control to ensure that an RCMP operation tracking terrorists has information and the benefit of information from CSIS. As a structural matter, experts, from John Major, who was the chair of the Air India inquiry, to former heads of CSIS and former heads of SIRC, have all urged that the bill not be passed as is.

It is not too late. I ask my colleagues to vote no to Bill C-51.

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