Bill C-51: Giving up liberty for little less safety

By Elizabeth May, Leader, Green Party and MP for Saanich—Gulf Islands, BC

This is not an ordinary debate, this is not an ordinary bill, and this is not about politics any more. This is about the soul of the country and whether we understand what Canada stands for, for ourselves and what we represent around the world.

The story the Prime Minister would like to have Canadians believe about this law is that in this place, some members of Parliament, the ones in the Conservative Party, want to protect Canadians from terrorism, and other members of Parliament—namely Greens, New Democrats, the Bloc, and Independents, and I certainly hope in future the Liberal Party will come to its senses and join us—who will vote against Bill C-51, do not care about security.

Certainly in the course of clause-by-clause, various Conservative members of that committee actually said what a shame it was that the Green Party was willing to “privilege” the rights of terrorists over the those of Canadians, I think were the words used. That is the story Conservatives want Canadians to hear, to think that we are so concerned about rights and freedoms and the Charter of Rights and Freedoms and civil liberties that we would turn a blind eye to the threat of terrorism.

The bill was initially launched at a campaign style rally in Richmond Hill, Ontario, and not in this place, something we are becoming all too familiar with as sort of a routine contempt of Parliament. The Conservatives launch big initiatives and laws outside of Parliament, with cheering crowds and campaign banners. When this was first launched, the Prime Minister said, “Violent jihadism is not a human right; it is an act of war”.

It is an extraordinary thing to say, as if anyone had ever suggested that violent jihadism was a human right. It set up a frame in which those of us who oppose Bill C-51 are somehow associating ourselves with violent jihadism.

In response to that torqued campaign rhetoric, we have the words and the advice of some of the country’s leading constitutional, legal, and operational security experts in relation to this notion of an act of war. We have the words of professors Craig Forcese from the University of Ottawa and Kent Roach from the University of Toronto, who said: “False analogies between crime and war can contort law”.

We need to look at this bill, which is an omnibus bill of five different sections, five different laws, thrown together and rushed through Parliament and rushed through committee, and ask this question: Does this make us safer? I ask my colleagues not to fall into the trap of saying it is civil liberties versus protecting us from terrorism. Does the bill make us safer? Does it actually confront terrorism in a fashion that makes Canadians safer? Then we can have a discussion about whether we are willing to make compromises about civil liberties because the bill will make us safer.

We see how cleverly the Conservatives’ spin puts us wrong-footed before we even begin.

The assumption is that the bill makes us safer, and I want to spend most of my time this morning at report stage to persuade as many colleagues as I can that the bill is dangerous because it makes us less safe. There are the losses of civil liberties the bill represents, the violations of privacy, and indeed, the most unprecedented, anti-constitutional, anti-democratic provision in any law that has ever come before this place, a law to allow a CSIS agent, in a secret trial before a judge, where the only evidence presented would be from the government, and the existence of the hearing would never be known to the public, to get a warrant to violate our Constitution. It is astonishing. It would be a constitutional breach warrant.

However, let us look at the question of whether the bill would make us safer?

After the rush of witnesses through the House, they began the hearings in the Senate. Before we have completed our review of the bill in this place, and here we are at report stage, the other place has already begun its review.

I think some of the most powerful testimony yet on Bill C-51 came up in the Senate from a British security expert who has worked as a liaison officer within the Canadian security establishment. In other words, he is an operational spy. He has worked for MI5 in security, and he has worked in Canada as a liaison officer with Canadian security. He is an expert in what we need to do to make us safer, which is to find and stop terrorist plots. His name is Joe Fogarty. He introduced himself to the Senate, and I have his testimony before me, from which I will quote.

He said, “The question I was asked to address was why it appeared to be the case that the relationship between the police service and MI5 in the United Kingdom was so close, with such easy sharing of information and with such a consistently strong outcome in terms of arrests, prosecutions and convictions in national security cases”.

In contrast, since 2001 in Canada, there have been 30 terrorism-related arrests, whereas in the U.K., there have been some 2,000, and these figures do not include Northern Ireland. It could just be that we do not have very much terrorism activity here, but it could also be that we have set up silos, with security services and police operations, which do not work with each other and actually can trip each other up.

In that sense, Mr. Fogarty gave further testimony, which I found quite shocking. He said that this is all on the public record but is not that easy to find. These examples were put forward. These are recent:

“CSIS discovered the location of a suspected terrorist training camp inside Canada…. it decides not to tell the RCMP about it”.

Here is another example:

“CSIS realized that the RCMP was following the wrong targets. So having identified certain people who are believed, by that stage, to be threats to public safety, realizing that the RCMP was following the wrong people, CSIS decided not to say anything”.

This evidence from Mr. Fogarty, which I will come back to, is directly relevant to testimony the House of Commons committee heard.

John Major, former Supreme Court Justice, who chaired the Air India inquiry, pleaded with the committee not to pass the bill in its current form and not to pass it without oversight.

Part 4 of the bill would create for CSIS new powers of disruption, and as I mentioned earlier, would allow it to get a warrant from a judge to break domestic law and to violate the Charter of Rights and Freedoms. However, nowhere in Bill C-51 are CSIS agents required to share information with the RCMP.

Now, we will hear from Conservatives that we should not worry, because part 1 of the bill is all about information sharing. Yes, the words “information sharing” are used, but they are not about sharing information between CSIS, Canada Border Services Agency, CSEC, and the RCMP. Those are the four different agencies that are collecting information and have a role in disrupting terrorist plots, but there is no oversight. There is no pinnacle command. There is nobody watching what each entity is doing, and there is no requirement to share information. On the contrary, we have set up a system where there are disincentives to sharing information.

Mr. Fogarty testified very clearly that in the U.K., due to a law that was passed back in 1996, a situation was created under that legislation that “all national security material is afforded third-party status in criminal proceedings as a matter of statute”.

With that assurance, in the case of the U.K., the police work with MI5. In Canada, we do not do that. Our current system lacks any oversight. I cannot say that clearly enough. We have a review committee in SIRC, but that is not oversight.

Here we have a situation where a security expert came before Parliament and to the Senate committee and said:

“At the minute…with the greatest of regret, if you continue with the situation in which your security intelligence agency is reluctant, for very good reasons, to share with your law enforcement team, this is the equivalent of sitting on top of a tragedy waiting to happen”.

He went on:

“I was asked this question a number of years ago…. I was asked to have a look at which bits of the Canadian operational relationship I would incorporate into the U.K. because, as liaison officers, you were very acquisitive and looking for best practices all over the world…. with the greatest of respect, I wouldn’t incorporate a single aspect of it, at the minute, because it’s dangerous”.

Here we are being told by the Conservatives and the Prime Minister that we must accept a bill that would trample on the Constitution, trample on our rights and freedoms, and violate our privacy rights because it would make us safer. Here is the big lie: it would not make us safer. It is dangerous. It would make us less safe. It would create circumstances in which CSIS and the RCMP operate in silos. That led to the Air India disaster.

[Photo Credit: @KathleenS17]