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Irwin Cotler, MP



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

Posted on February 23, 2015

The House resumed consideration of the motion that Bill C-51, An Act to enact the Security of Canada Information Sharing Act and the Secure Air Travel Act, to amend the Criminal Code, the Canadian Security Intelligence Service Act and the Immigration and Refugee Protection Act and to make related and consequential amendments to other Acts, be read the second time and referred to a committee, and of the amendment.

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

Mr. Speaker, I rise to join in this critical debate on Bill C-51 as we, like parliamentarians around the world, continue to seek ways of safeguarding our country’s security in the face of terrorism, while securing also our rights and freedoms, as we have been grappling with for so many years.

Indeed, after the attacks of September 11, 2001, it was said then that the whole world had changed. Anti-terrorism law and policy became principle and priority not only for our government but for governments everywhere. It was, in fact, mandated by the UN Security Council Resolution 1377, adopted in the months following 9/11, which called upon states to unequivocally condemn “all acts, methods and practices of terrorism as criminal and unjustifiable, regardless of their motivation, in all their forms and manifestations, wherever and by whomever committed”.

I must state, parenthetically for reasons of time but not unimportantly, that the notion of a parliamentary debate when time allocation has been imposed on this comprehensive and crucial legislation is, to put it mildly, a misnomer.

First, Bill C-51 is not simply one act. It is omnibus anti-terrorist legislation composed of five different acts. It is not just one bill but five bills bundled together into one omnibus legislation of compelling character. Each bill, whether it deals with cross-government information sharing and coordination and enhanced powers for that purpose; or the securing of air travel, or Criminal Code amendments, including lowering thresholds for terrorism-related peace bonds; or expanded powers of detention; or a new offence of knowingly advocating or promoting terrorism or being reckless in that advocacy; or legislation to expand the powers of CSIS, what is referred as “threat disruption activities”; all impact on national security agencies and on those national security powers. There is also, which has almost not been discussed at all, amending the security certificate procedural regime for government appeals of court ordered disclosures.

Underpinning all of this, and tucked away in the information sharing act and provisions, but only there, is an effective reframing of a terrorist threat as a threat to national security, a selective redoing not only of our anti-terrorism law but our national security law, and where a terrorist threat is conflated with a national security threat, which can include also threats to economic and fiscal stability or a threat to the infrastructure and the like. In other words, it is a reframing that is being carried out without the necessary debate on this crucial legislation.

Admittedly, over a decade after 9/11, the world may well have changed again, and we must continue to ensure that the enhanced powers are to be found in our law and vested in our national security agency for purposes of protecting Canadians from terrorist threats with the tools needed to counter those threats. However, what has not changed are the fundamental principles that must underpin our approach to combatting terrorism.

I outlined those principles when I appeared both before the House and Senate justice and public safety committees respectively as minister of justice a decade ago, and I will recall them now in the context of this present parliamentary debate on a new bill, Bill C-51, but reflecting and representing a long-standing global challenge.

Let me summarize the foundational principles.

The first fundamental principle is that there is no inherent contradiction between the protection of our security and the protection of human rights. As I wrote in the wake of October’s assault on our parliamentary precinct and of the murders of Corporal Nathan Cirillo and Warrant Officer Patrice Vincent, while we often hear about the need to strike a balance between protecting Canadians from attack and protecting individual freedoms, we must remember that these are not mutually exclusive objectives or opposite ends of the spectrum, but rather an appropriate and effective strategy that must view security and rights, not as concepts in conflict, but as values that are inextricably linked.

In other words, terrorism constitutes an assault on the security of our democracy and an assault on our fundamental rights to life, liberty, and security of the person. In this sense, therefore, anti-terrorism law and policy are intended to protect the security of a democracy like Canada and to protect our fundamental rights to life, liberty, and security of the person.

However, the reverse is also true and must be read together as part of this foundational principle, namely, that anti-terrorism law and policy must always adhere to the rule of law and must always comport to the Charter of Rights and Freedoms. Torture must, everywhere and always, be prohibited. Minorities must never be singled out for differential or discriminatory treatment. Also, as we emphasized 10 years ago when tabling legislation to that effect and as I emphasize again, such anti-terrorism law and policy must also be subject to a comprehensive oversight review and accountability mechanisms.

This leads me to the next principle, which might be called the “contextual principle”. By this, I refer to the approach taken by the Supreme Court, according to which charter rights and any limits imposed on them must be analyzed not in the abstract but in the factual context that gives rise to them. As such, the debate we are having today must be anchored in the reality of the increasingly lethal, if not barbaric, and international nature of terrorism; the proliferation of transnational terrorist entities that invoke Islam at the same time as they subvert it for their purpose; the increasing potential for cyberterrorism; the sophistication of transnational communications, transportation, and financial networks, including the explosive use of social media, which ISIS alone is said to be using 100,000 times a day; the increasing radicalization of those exposed, for example, to these social media, including our Canadian youth; and the potential for what in our recent experiences have been characterized as “lone-wolf terrorists”.

This brings me to the third principle. The third principle is that the threat posed by terrorism, which is increasingly transnational in character, must be part of a global response. Indeed, previous Canadian anti-terrorist measures have implemented international conventions and undertakings mandated by the UN Security Council, which I referred to earlier, and we must continue, therefore, not only to mobilize our domestic legal arsenal against terrorism but also to participate in strengthening international mechanisms to confront this international threat.

Let there be no mistake about it: when we deal with such terrorists, we are dealing with Nuremberg crimes and Nuremberg criminals, with hostis humani generis, with enemies of humankind. Our domestic criminal-law, due-process model standing alone is insufficient. It must be joined with the overall international legal arsenal, and much of our anti-terrorism law and policies in fact must be anchored in the 14 anti-terrorism international treaties for that purpose.

The fourth principle flows from the third one. It is that nonetheless there still is a need for due-process safeguards in the application and implementation of our domestic criminal law. This remains of vital importance and must be included in any foundational underpinnings for this and other anti-terrorism legislation.

The fifth principle is that of proportionality. As the Supreme Court has ruled, there must be a proportionality between the effects of the measures for limiting charter or other rights under this legislation and the objective that has been identified as sufficient importance.

There can be no doubt that the threat of transnational terrorism comports with the first requirement of a proportionality test, namely, that there be a substantial and compelling objective for the limitation of charter and other rights. However, we must still ensure that the measures we enact respect this principle in other ways: they must be tailored specifically to their objective and not be over-broad or vague; they must intrude as little as possible upon our charter rights and other rights, and not undercut any of them; and their impact on civil liberties must not outweigh their remedial character.

This leads me to the sixth principle. We must consider and learn from anti-terrorism measures proposed and enacted in other jurisdictions similar to our own, and indeed from our own previous experiences in this regard. All free and democratic societies are grappling with the same issues we are grappling with today, and their efforts to remain both secure and free must be considered as part of our deliberations.

The seventh principle is the need for counterterrorism measures to focus on prevention. Admittedly, we must seek to disable and dismantle terrorist networks and disrupt terrorist plots before they result in injury and death, and that accounts for the enhanced approach to giving increased power to CSIS. However, it also means that those powers that are invested in CSIS must obey principles of proportionality. It also means intervening to prevent or undo radicalization and supporting local and community initiatives in this regard.

To conclude, we must emphasize the importance of oversight, of an accountability mechanism, and of a parliamentary review mechanism, all of which are missing in the present legislation.

Ms. Roxanne James (Parliamentary Secretary to the Minister of Public Safety and Emergency Preparedness, CPC):

Mr. Speaker, the Liberals are fundamentally opposed to taking away passports from those who would travel overseas and engage in terrorist activities. In fact, the leader of the Liberal Party went as far as saying it was against Canadian values.

However, with respect to the passenger protect program, we are actually expanding the legislation so that we could issue a no-board order for someone who is suspected of travelling overseas to engage in terrorist activities. As well, there would be certain provisions with regard to terrorism, such as peace bonds. Also, judges could impose conditions, such as surrender of a passport.

My question for the member of the Liberal Party is this: does he agree with his leader that it is against Canadian values, or has he somehow come to the realization that these provisions in the bill are needed and the Liberal Party has decided to support it, or is this a section of the bill that the Liberal Party is actually against?

Hon. Irwin Cotler:

Mr. Speaker, I set forth some foundational principles that would apply to this specific issue as well as others. When I said that we need to invest certain powers, I was referring in particular to those that relate to parts of part 3 and to part 4 of the bill. The hon. member has referred to part 2.

This brings me exactly to the point I was saying. The bill has five major pieces of legislation bundled together in omnibus anti-terrorism legislation. I would be delighted if the hon. member, since we cannot do it here in debate, would allow us in committee to address the whole issue of securing air travel, which she mentioned in particular, as well as each of the other facets of this omnibus anti-terrorism legislation, which time does not permit us to address here. I suspect, if precedent be our guide, that we will not be able to do so in committee either.

Mrs. Carol Hughes (Algoma—Manitoulin—Kapuskasing, NDP):

Mr. Speaker, the member has indicated a lot of areas where there should be some oversight. On this side of the House, we believe it is extremely important to have oversight when it comes to CSIS and the RCMP. We need to have that oversight.

However, the Liberal Party is willing to pass the legislation even though that oversight is not there. That is quite problematic. It is willing to do it afterward, either during a federal election by campaigning on it or doing it only later on, when they think they are going to form the government. Well, it is no surprise that we cannot predict the future. We need to ensure that the safety of Canadians is in place, but we also have to make sure that their rights are also protected.

François Lavigne was a CSIS officer. He used to be with the RCMP as well. He spent years tracking dangerous radicals without the powers the government wants to give to CSIS. There are currently powers in place. There are mechanisms, practices, and laws necessary for dealing with terrorists in section 46 of the Criminal Code of Canada.

Therefore, I wonder if my colleague could explain why this former CSIS worker is saying we should not be going down this route but Liberals are saying that we should go down this route.

Hon. Irwin Cotler:

Mr. Speaker, the primary thrust of the hon. member’s remarks had to do with the question of oversight mechanisms and the issue of our support for legislation which may not, at the end day, have such an oversight mechanism.

The point is that we are hoping that there will be not only oversight mechanisms but review and accountability mechanisms as well. That is why we are proposing them.

I was one of a number of Canadians who signed on to a statement that was published on February 19 in The Globe and Mail. This statement calls for just such an integrated series of oversight, review, and accountability mechanisms, with Parliament at its core. I would hope that the government, which looks to public opinion and finds that some 80% of Canadians are in support of this bill, will also look to the fact that two-thirds of Canadians also want a robust and integrated oversight mechanism system that has a parliamentary review mechanism and parliamentary oversight at its core as part of overall accountability.

This is something that was called for in the Arar commission, which we as a Liberal government set up. We tabled legislation in 2005 calling for such an oversight mechanism. All parliamentarians agreed to it. We lost the election, and for the last 10 years, the Conservative government has done nothing about implementing that mechanism. I hope the Conservatives will do it now.