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Irwin Cotler, MP

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Debate on Bill C-51 (Anti-Terrorism Act 2015)

Posted on May 4, 2015

Hon. Irwin Cotler (Mount Royal, Lib.):

Mr. Speaker, I rise to address Bill C-51 and will begin by setting forth the credo that has underpinned my approach to anti-terrorism law and policy for many years. In brief, an appropriate and effective strategy must view security and rights not as concepts in conflict, but as values that are inextricably linked. Simply put, terrorism constitutes an assault on the security of democracy like Canada, and on our individual and collective rights to life, liberty, and security of the person.

Accordingly, we must take the threat of terrorism seriously and address it with effective legislation. As well, there are other measures, such as anti-radicalization efforts and the allocation of adequate resources to law enforcement and security services. A culture of prevention is crucial here. At the same time, we must ensure that legislative initiatives that are taken are consistent with the rule of law, comport with the Canadian Charter of Rights and Freedoms, and that they are always subject to robust oversight and review.

With these principles in mind, I will turn to the bill before us, which is not simply one bill, but omnibus legislation, a series of major enactments. I will discuss several specific aspects of the bill, particularly those that are cause for concern.

I must begin with a general critique and preface my remarks with respect to the process, or what I would call the abuse of process, by which this legislation has been considered. At the same time, I will make reference to some of the rhetoric surrounding this legislation under the government’s approach. It has frankly inhibited the necessary, thorough, and constructive legislative process, while at the same time and in so doing has undermined our responsibility as parliamentarians, whether we are on the government side of the House or in opposition, for the oversight of such major legislation.

With regard to rhetoric, let us be clear that every parliamentarian, every witness who appeared before committee, and Canadians themselves, both proponents and opponents of this bill, share the desire to keep Canadians safe from terrorism. Yet there have been accusations made to the contrary, particularly directed by some government members at critics of Bill C-51 at committees. References have been made to it in the House.

Such accusations are frankly not worthy of the serious role and responsibilities that our constituents have entrusted to us with respect to this and other pieces of legislation. In particular, the threat posed by terrorism to the safety of Canadians must be taken seriously, but so must concerns about the impact of anti-terror legislation on our civil liberties. Those who raise such concerns should be appreciated for their contributions, not denigrated and diminished.

With regard to process, we may note that time allocation was invoked during second reading on Bill C-51. It was invoked during committee, and now that the bill has returned from committee, time allocation has been imposed by the government once again at report stage. Indeed, at committee, the Conservatives limited the time allotted to study the bill such that important witnesses were prevented from testifying. I note as but one example the extraordinary, I would even say incomprehensible, fact that the Privacy Commissioner himself was not given the opportunity to testify about a bill that would impact directly and significantly on the privacy of Canadians.

As University of Ottawa law professor professor Craig Forcese has written, “this process is night and day compared to the more important role Parliament played in both the enactment of the original CSIS Act in 1983/84 and that of the first Anti-terrorism Act in 2001”. I might add that during the discussion of that anti-terrorism bill in 2001 and following, there was robust and public debate within the government caucus at the time, as well as from the opposition, and an acceptance of recommendations made by the opposition in the course of such debate to the bill.

The problem with overheated government rhetoric and a rushed and inadequate process is that problems with the bill cannot be fully and constructively aired and addressed in an environment that proceeds at such a pace, let alone, as I said, the diminution of the responsibility for parliamentary oversight.

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Nevertheless, I will do my best to highlight some of these problems in the limited time available to me, and to explain how some of these problems with the bill can and should be resolved.

To begin with, many of my concerns, and those that have been expressed by the experts who have been referenced in this debate, about provisions that broaden the powers of Canadian Security and Intelligence Service and the legislative language that provides or authorizes those powers, could be addressed and alleviated if they were accompanied by effective oversight, parliamentary and otherwise.

It is astonishing that the government has rejected all proposals, despite the overriding consensus by experts within the opposition in this House, and I suspect among members of the government caucus themselves, for the overriding need for robust oversight.

First, with respect to information sharing, the bill allows for the sharing of information about Canadians in order to protect Canada against activities that “undermine the security of Canada”, to quote the legislative language. Valid concerns have been raised about the overbreadth of that language and about how such powers to share information may be used or misused, and, again, the lack of corresponding oversight.

I recognize that the government effectively accepted two Liberal amendments, in accordance with recommendations also from the Canadian Bar Association and many others. First was to remove the qualifier “lawful” from the previously proposed exception for “lawful advocacy, protest, dissent and artistic expression”; and second was to narrow the provision that originally allowed for the disclosure of information “to any person for any purpose”. Yet there remains significant room for improvement to ensure that such information is reliable, that it is used and shared appropriately, and that it does not abuse privacy or liberty.

We know from the experience of Maher Arar, for instance—and I was particularly involved in that case, serving at that time as pro bono counsel—that a lack of safeguards with respect to information sharing can have and did have tragic consequences. These information sharing provisions should therefore be accompanied by effective parliamentary oversight of CSIS, in addition to mandated parliamentary review of the security of Canada information sharing act.

With respect to the Criminal Code, Bill C-51 would make several significant amendments, notably expanding and lowering the threshold for preventive arrest and peace bonds. I note that the Canadian Bar Association has expressed its support for the reduced standard for peace bonds, from the reasonable fear that a person “will” commit a terrorism offence, to the reasonable fear that they “may” commit a terrorism offence, and that police were reportedly unable to meet the existing evidentiary standard to secure a peace bond for Martin Couture-Rouleau before he murdered Warrant Officer Patrice Vincent.

Therefore, a case can be made that the refinement of powers in this area for prevention purposes is worthwhile. Again, however, such powers should be met with effective parliamentary oversight and mandatory review. Indeed, in the past, provisions allowing for preventive arrest were understood to be exceptional measures, accompanied by sunset clauses that are absent in this legislation.

Bill C-51 also contains several measures that raise questions of constitutionality. Again, we have no reports regarding any consistency with the Canadian Charter of Rights and Freedoms as required. However, leaving that aside, the legislation effectively provides for measures that “contravene a right of freedom guaranteed by the Canadian Charter of Rights and Freedoms”, if a judge issues a warrant to that effect in ex parte or in camera proceedings.

As we know, this turns on its head the role of judges as protectors of our rights. Despite the government’s protestations to the contrary, the need to obtain a warrant is by no means equivalent to a suitable replacement for robust parliamentary oversight. That remains the crux of the problem with the government’s approach.

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Mr. Craig Scott (Toronto—Danforth, NDP):

Mr. Speaker, I appreciate what might turn out to be one of the last speeches of our hon. colleague in the House because he will not be standing again for his riding. I thank him for the kind of speech we have come to know him for: thoughtful, scholarly, fair, and ultimately non-partisan.

I want to ask him, with respect to the last 30 seconds or so of his remarks, about this question of basically enlisting judges to pre-authorize charter infringements that can be saved through some kind of analogous reasoning to a section 1 process that judges go through when they are adjudicating, which is a different context. He has expressed extreme concern that this gets what judges do with respect to charter rights backwards.

I am wondering if he could comment a bit further about whether he does not see this as such a fundamental flaw of the bill that standing with the bill in the hope that it can be fixed in the future is not justified and we should be voting against it.

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Hon. Irwin Cotler:

Mr. Speaker, I appreciate the question that was put by my hon. colleague.

As I stated in my speech, and would even reiterate, if I have not stated it sufficiently and as expressly as it must be stated, judges should not be put in the position where they become enablers of violations of the charter. It is the responsibility of judges to protect the Charter of Rights and Freedoms, and to protect Canadians through the interpretation and application of the charter.

Therefore, I expressed my concern with regard to this particular aspect, and, as we have said as a party, we have proposed a series of amendments on this and other issues. They will be part of our platform, and we will leave it to the Canadian people.

Let me be clear: this is not legislation that we would have enacted in this form. We have sought to reconcile the responsibility that a government has and that we as parliamentarians have on behalf of our constituents, to protect the security and safety of Canadians. That is mandated also, I might add, by UN Security Council resolutions, in a spate of resolutions that we should undertake and enact to enhance anti-terrorism legislation, given the nature of the terrorist threat.

Having said that, we need to ensure that they do comport, as I said, with the charter, with the rule of law, with the protection of the rights of Canadians, including privacy. That is why we have put forth the amendments that we have.

Ms. Elizabeth May (Saanich—Gulf Islands, GP):

Mr. Speaker, the member for Mount Royal will know that I believe this bill to be dangerous in nearly every aspect of all five parts and that it should never have been brought to the House in this form.

If it were not for the over-politicization of the justice department in its advice, the contamination through partisanship of the operations of justice department lawyers so that they no longer block legislation, which is unconstitutional, this would never have arrived at first reading.

I will ask my hon. colleague if he agrees that this bill does not contain anything that could be described as oversight, that there is a difference between review, which we have weakly, through SIRC, and oversight, which we used to have. There was a CSIS director general. That position was eliminated through Bill C-38, in 2012. We have no oversight in Canada, no judicial oversight and no parliamentary oversight. From what I have learned, that means we are the only one of the Five Eyes partners, which are the U.S., U.K., Canada, New Zealand, and Australia, with such weak and non-existent oversight of the operations of intelligence and police.

Hon. Irwin Cotler:

Mr. Speaker, I share the concern that this bill does not have the necessary and robust oversight that it needs, not on a parliamentary level, a judicial level, and not for the purposes of having public engagement.

Therefore, I was proud to be one of many Canadians, including four former prime ministers, as well as the member for Malpeque, to issue an open letter underscoring the need for anti-terrorism law and policy to protect both security and civil liberties, and the need for express and parallel robust oversight, mandated review, sunset clauses and the like. We need that.

We will continue to work for that. Even after the passage of this bill, I will continue to work with Canadians of all political perspectives to ensure that the objectives of both security and the rights of Canadians are secure.

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