National Security Bill, 2017

Third Reading--Debate Adjourned

May 29, 2019


[15:05]

Moved third reading of Bill C-59, An Act respecting national security matters, as amended.

He said: Honourable senators, I rise today to speak to Bill C-59, An Act respecting national security matters. Although I am the very proud sponsor of this bill and would have 45 minutes to speak to you, I’m going to channel my inner Senator Baker and be brief.

I’d like to begin by thanking the opposition critic, Senator Dagenais, who conducted a thorough and focused analysis of the bill. I’d also like to thank the Chair of the Standing Senate Committee on National Security and Defence, Senator Boniface, and all the committee members, who studied this complex bill in a diligent and responsible manner.

Honourable senators, national security is too important to fall victim to partisan politics. The committee’s study is an example of the collaboration of senators from all parliamentary groups who worked together to analyze a bill of fundamental importance to Canada.

As I outlined in my second reading speech, Bill C-59 addresses three major problems. The first is the changing nature of the threats to our national security and the need to provide our security and intelligence agencies with clear mandates and the tools that they need to do their job.

The second is the lack of a system-wide review and accountability of our security and intelligence agencies.

The third is the need to ensure that the powers granted to our agencies rest on a solid legal and constitutional footing, one that enhances democratic accountability and transparency.

I went on in my speech to describe the various ways in which the bill enhanced our national security, while better protecting our constitutional rights and freedoms.

At committee, we heard from 43 witnesses in the course of 18 hours of hearings. I am pleased to report that the testimony we heard at committee confirmed the major points that I raised in my second reading speech and established the following key points.

First is the fundamental importance of system-wide review and oversight. This has brought us into line with our Five Eyes allies and corrects a major problem that had been identified by commissions of inquiry and previous studies as well as the academic community.

Second is the critical importance of modernizing the powers and mandates of our agencies. You will recall that the last major structural overhaul dates to 1984, notwithstanding some additions in the interim.

Third is the practical imperative, not theoretical, of putting the powers of our agencies on a solid legal and constitutional foundation. The evidence we heard at committee clearly established the importance of this bill to our security and intelligence agencies, notably to CSIS and to the CSE, and the fact that in their professional opinion this bill will enhance their ability to do their job to protect us in Canada.

The evidence also established how fundamentally important this bill is to those families who have kids on the “No-Fly List Kids” and who will finally, if this bill receives Royal Assent, have access to a redress system to cure the injustice that they’ve lived with and under for far too long.

It’s noteworthy, as well, that even though this bill and the area of national security raises enormously complex issues — finding the right equilibrium between national security, privacy and other rights and freedoms — the Privacy Commissioner testified that he was satisfied with this bill, he was pleased with the amendments that were introduced in the other place and was fully supportive.

It was also notable that the civil liberties groups, some which suggested many changes and were very critical, as they should be, of national security agencies and the need to protect rights, nevertheless said that this is a major step forward, and they approved and supported its implementation.

The evidence also established that the bill had the enthusiastic support of the leading national security academics in Canada.

Finally, what emerged from the testimony and evidence we heard was a strong consensus that Bill C-59 must pass before this Parliament rises.

Honourable senators, allow me to say a few words about the proposed amendments to the bill. As committee members will know, I was not convinced that all the amendments were appropriate, and I expressed some reservations during clause-by-clause consideration. However, these were sincere attempts to improve the bill and none of the suggested amendments went against its objectives. I am therefore very pleased to support the bill as amended.

Honourable senators, Bill C-59 is an important bill — one that is crucial and critical for our national security, necessary to ensure that our constitutional rights and freedoms are protected, and it’s a major step forward in democratic accountability and transparency. I support it wholeheartedly. I urge you to do the same.

Hon. Carolyn Stewart Olsen
[15:12]

Honourable senators, I rise today at third reading of Bill C-59, An Act respecting national security matters.

Before we take the final step of passing this bill into law, I would like to return to the points of principle that, in my view, underline it.

As I noted earlier, I see this bill as a reflection of the flawed ideology of our current government. This instrument is a derogation of ministerial responsibility, an essential principle in any parliamentary governance. Bill C-59 is an omnibus bill. It is lengthy, complex and purports to do a lot, but I will focus on just a few aspects of it.

Canada’s security agencies need new and better tools to address our very real security concerns. What I see in this bill is another academic exercise with significant flaws. We have all received hundreds of letters and emails from concerned Canadians who point out that this bill is not the improvement it claims to be. The world we live in is a world we must legislate for. There are people who live solely for inventing ways to harm us, create chaos and undermine our country. Our problems are not a morally relative abstraction that exists far from where we live, on some different plane of existence. I am not confident that our current government understands that.

The recent politicization of the 2018 Public Report on the Terrorism Threat to Canada is demonstration of this. Any mention of Sikh nationalists, or Sunnis or Shiite extremists was excised from the report in the face of a public lobbying campaign. It is no longer possible to refer to the motivations of these groups on the surface, the first of these groups being responsible for the largest terrorist attack on Canadian soil.

The decision’s political nature is obvious in that the terminology remains the same on the Public Safety’s list of outlawed groups. The absurdity of this decision has been pointed out by former CSIS analysts and officials. Phil Gurski, formerly of CSIS, noted that the inability to call a threat what it is makes it harder to identify and neutralize it.

Senators, this is the climate in which we are legislating.

The decision to remove these names from official publication no doubt runs parallel to Bill C-59’s measures, which limit the power of the government to take action against terrorist propagandists. We cannot underestimate the impact terrorist propaganda has on the path to violent extremism.

The weakness of our approach to radicalization was noted in the Senate National Defence Committee earlier this month by Isaac Kfir, the Director of the National Security Program at the Australia Strategic Policy Institute. He noted:

I did not see in the bill specific provisions about what to do with the radicalization of children and whether specific entities within the newly constituted intelligence community have the capability to deal with the possibility of children becoming terrorists . . . .

Bill C-59, as with much of this government’s legislation, was not designed with an intent to propose in so much as it was designed in opposition to a law passed in the previous government. Bill C-51 gave law enforcement agencies critical tools for stopping radicalization in its tracks. Creating an offence for advocating for terrorist organizations helped struggling security agencies to intervene when they saw individuals progressing from propaganda to considering real action.

As I noted at second reading, there is an essential struggle in law enforcement when it comes to budding terrorists. If we know someone has been radicalized or is progressing down that road, or we can see with a degree of certainty that they are likely to act on these beliefs, how do we prevent them from acting before it’s too late? In 2015, our National Defence Committee did a study on terrorist threats in Canada, and this tension was repeatedly presented.

Bill C-59 does more than just change the rules around terrorist propaganda; it makes the peace bond process tougher for law enforcement. This reinforces the thematic approach this government has taken to real problems: bureaucratization, obfuscation, derogation of responsibility and more.

I could regurgitate all of these grievances, but I want to return to my remarks on the politicization of our security apparatus. My concerns remain regarding the soon-to-be-created intelligence commissioner. This position carries enormous power as envisioned in this bill. It would be fully independent of the government and the Communications Security Establishment. The commissioner would be able to assess the authorization of intelligence missions, among other things, even after a minister has come to a conclusive finding.

Colleagues, we must realize we’re voting here to give a bureaucratic office a veto power over our elected representatives.

As Richard Fadden, former Director of CSIS and former National Security Advisor, noted at the House of Commons Public Safety Committee last year:

The bill proposes to give the commissioner final say about a number of CSEC and CSIS activities . . . surely “reasonableness” should be the domain of ministers . . .

In practical terms, if something goes wrong in the future . . . it seems to me that the veto proposed to be given to an appointed official will make it too easy for the minister of the day to escape accountability.

Oversight without accountability is pointless. Without ministerial accountability, without the ability to hold elected officials responsible for decision-making, we make it harder for Canadians to influence how our government operates. Politicians must be held responsible for the choices they make. Public servants should never be a substitute for cabinet ministers when mistakes are made.

The bill before us does a lot, but I’m not confident in this or this government’s ability to do the things that will make Canadians any safer. The safety of Canadians is my sole interest when legislating national security matters.

In that spirit, I do not support this bill in any form and would urge my colleagues to do the same. Thank you.

Hon. Linda Frum
[15:19]

Honourable senators, I rise today to speak to Bill C-59, which proposes broad changes to our national security legislation.

Late last year, I spoke to this legislation at second reading. Among the many components of this bill that caught my attention at that time were provisions that proposed to eliminate the offence of advocating or promoting terrorism and instead replace it with the offence of counselling to commit a terrorism offence. The government rationalized this step by claiming that since there had been no prosecution of the offence of advocating or promoting terrorism in the past three years, the offence should simply be eliminated.

Minister Goodale claimed that creating a more specific offence of counselling to commit would lead to more charges that could be defended in court. However, this argument was disputed by witnesses who appeared before the House of Commons committee that examined Bill C-59.

When the Senate Standing Committee on National Security and Defence examined this legislation, several witnesses raised similar concerns with these clauses.

Mr. Shimon Fogel, CEO of the Centre for Israel and Jewish Affairs, stated:

. . . we are deeply concerned by one key aspect of the bill: the amendment to the Criminal Code provision outlining what is now known as advocacy and promotion of terrorism.

Bill C-59 will redefine this offence as “counselling terrorism.”

Mr. Fogel further stated:

As currently worded, the new offence would apply to “every person who counsels another person to commit a terrorism offence.” This wording suggests that the offence exclusively pertains to one who counsels another specific individual.

Consistent with what witnesses said in the House of Commons committee, Mr. Fogel cautioned that this gap could create a potential loophole in the law. There was a risk the defendant could counsel social media followers to commit acts of terrorism and then argue that they did not directly counsel a specific person.

To address this gap, Mr. Fogle proposed a very useful amendment to ensure that terrorism counselling would explicitly apply whether one counselled a specific individual or whether one counselled broader audiences to commit acts of terrorism. He correctly referred to this as “a modest clarifying amendment.”

The sponsor of the bill, Senator Gold, opposed that amendment in committee. He argued the amendment was unnecessary because, he said, counselling does not require an accused to know the identity of those he counsels.

I know that Senator Gold is an expert on constitutional matters, and I accept his expertise on this matter. However, it also seems that this interpretation is not universally accepted among his legal peers. In this regard, in my second reading speech on this bill, I quoted former Crown attorney Scott Newark, who stated in the House of Commons committee:

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 —

— if the advocacy of terrorism is just general in nature —

— you aren’t able to prove the offence.

On behalf of his organization, Mr. Fogel argued that the intent of the law must be clear. That intent, with this amendment, is that those who counsel broader audiences to commit acts of terrorism must be held criminally accountable. I would hope that we would all agree with that.

However, Senator Gold also stated that the proposed amendment risked confusing the current law in that the Criminal Code will potentially have more than one definition of “counselling to commit an offence.” Again, I do not dispute that this is a possibility. However, I will note that neither Mr. Newark nor Mr. Fogel expressed similar concerns.

I will say that if such a risk does exist, why would the government not amend potentially conflictual sections of the code to ensure the definitions are either broader or at least sufficiently consistent in the context of the specific offences to which they apply?

Unfortunately, what I noticed is that the government and its supporters made considerable effort to find reasons not to tighten the law to address security and public safety risks. If there is a potential problem, as Senator Gold has asserted, between broader and narrow Criminal Code definitions of “advocacy of terrorism” or “counselling to commit,” why does the government instinctively opt for sustaining the narrower definition? Why does it focus on real or imagined constitutional risks instead of prioritizing the need to address potential security risks? I do not believe there is any doubt that the security risks are serious ones.

The promotion of terrorist propaganda is, unfortunately, part of the times in which we live. Canadians who have participated in radical Islamist terrorism in recent years, whether in Canada or overseas, have often done so after consuming jihadist content online. Online jihadist propaganda was a factor in the radicalization of both Martin Couture-Rouleau and Michael Zehaf-Bibeau, the individuals who carried out the October 2014 terrorist attacks in Saint-Jean-sur-Richelieu and Ottawa.

Online hate and terrorist advocacy have also contributed to acts of violence recently perpetrated by white supremacists against synagogues in Pittsburgh and San Diego.

In relation to the terrible attack on mosques in Christchurch, New Zealand, online propaganda and advocacy again played a major and very disturbing role.

Mr. Fogel correctly stated that “The ability of police to intercept those who counsel others in their virtual network to commit terrorism must not be impeded by ambiguity in the law itself.” I would further argue that this is a fundamental problem on which the government must focus.

I noted, in my remarks last year, that journalist Stewart Bell stated the following with respect to extremist radicalization:

. . . what governments can do is challenge the world view of extremists and step in when radicalization crosses the line, when it becomes a recruiting mechanism that materially supports terrorism.

Radical preachers must be isolated, and prosecuted if they violate hate crimes or incitement laws.

The government has claimed that it is seized with this issue. Foreign Affairs Minister Freeland stated at the United Nations, just a few weeks ago:

Today, hatred is increasingly spread through the internet; in online forums and on social media. We must be aware of this and work to stop it.

The question I would ask the minister, then, is whether her government will now support this amendment to Bill C-59. This issue should, in all frankness, have been tackled when the government introduced its original bill. But it was not. Instead, it became incumbent upon Senator McIntyre, after hearing witness testimony, to introduce this amendment at committee.

If the government accepts this amendment, I will, of course, be relieved. Should it fail to, then we will have to question the sincerity of the minister’s rhetorical claim that we must work to stop the spread of online hatred.

In conclusion, I would like to quote what Mr. Michael Mostyn, the CEO of B’nai Brith Canada, said at the committee in the other place:

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.

I completely agree with that statement. I now hope that the government will, even if belatedly, agree to accept that principle as well. Thank you.