Tuesday, March 10, 2015

Retired Senator Tommy Banks sent this out via email regarding Bill C-51. It is a long read. And it is that important... read and keep scrolling down.

Every Canadian should read all of the following words.  It takes a bit of reading, 5 not-so-easy pieces, but it’s an important heads-up. Take careful note of who said what. Watch out.

T. Banks

The following is an open letter addressed to all members of Parliament and signed by more than 100 Canadian professors of law and related disciplines.

Dear Members of Parliament,

Please accept this collective open letter as an expression of the signatories’ deep concern that Bill C-51 (which the government is calling the Anti-terrorism Act, 2015) is a dangerous piece of legislation in terms of its potential impacts on the rule of law, on constitutionally and internationally protected rights, and on the health of Canada’s democracy.

Beyond that, we note with concern that knowledgeable analysts have made cogent arguments not only that Bill C-51 may turn out to be ineffective in countering terrorism by virtue of what is omitted from the bill, but also that Bill C-51 could actually be counter-productive in that it could easily get in the way of effective policing, intelligence-gathering and prosecutorial activity. In this respect, we wish it to be clear that we are neither “extremists” (as the Prime Minister has recently labelled the Official Opposition for its resistance to Bill C-51) nor dismissive of the real threats to Canadians’ security that government and Parliament have a duty to protect. Rather, we believe that terrorism must be countered in ways that are fully consistent with core values (that include liberty, non-discrimination, and the rule of law), that are evidence-based, and that are likely to be effective.

The scope and implications of Bill C-51 are so extensive that it cannot be, and is not, the purpose of this letter to itemize every problem with the bill. Rather, the discussion below is an effort to reflect a basic consensus over some (and only some) of the leading concerns, all the while noting that any given signatory’s degree of concern may vary item by item. Also, the absence of a given matter from this letter is not meant to suggest it is not also a concern.

We are grateful for the service to informed public debate and public education provided, since Bill C-51 was tabled, by two highly respected law professors — Craig Forcese of the University of Ottawa and Kent Roach of the University of Toronto — who, combined, have great expertise in national security law at the intersection of constitutional law, criminal law, international law and other sub-disciplines. What follows — and we limit ourselves to five points — owes much to the background papers they have penned, as well as to insights from editorials in the media and speeches in the House of Commons.

Accordingly, we urge all MPs to vote against Bill C-51 for the following reasons:

1.      Bill C-51 enacts a new security-intelligence information-sharing statute of vast scope with no enhanced protections for privacy and from abuse. The law defines “activities that undermine the security of Canada” in such an exceptionally broad way that “terrorism” is simply one example of nine examples, and only “lawful advocacy, protest, dissent and artistic expression” is excluded. Apart from all the civil-disobedience activities and illegal protests or strikes that will be covered (e.g. in relation to “interference with critical infrastructure”), this deep and broad intrusion into privacy is made worse by the fact there are no corresponding oversight or review mechanisms adequate to this expansion of the state’s new levels of information awareness. Concerns have already been expressed by the Privacy Commissioner, an Officer of Parliament, who has insufficient powers and resources to even begin to oversee, let alone correct abuses within, this expanded information-sharing system. And there is virtually nothing in the bill that recognizes any lessons learned from what can happen when information-sharing ends up in the wrong hands, as when the RCMP supplied poor information to US authorities that in turn led to the rendition of Maher Arar to Syria and his subsequent torture based on that – and further – information coming from Canada.

2.    Bill C-51 enacts a new “terrorism” offence that makes it criminal to advocate or encourage “terrorism offences in general” where one does this being reckless as to whether the communication “may” contribute to someone else deciding to commit another terrorism offence. It is overbroad, unnecessary in view of current criminal law, and potentially counter-productive. Keep in mind how numerous and broad are the existing terrorism offences in the Criminal Code, some of which go beyond what the ordinary citizen imagines when they think of terrorism and all of which already include the general criminal-law prohibitions on counselling, aiding and abetting, conspiring, and so on: advocacy or encouragement of any of these “in general” could attract prosecution under the new C-51 offence. Note as well that gestures and physical symbols appear to be caught, and not just verbal or written exhortations. In media commentary and reports, there have been many examples of what could be caught, including in some contexts advocacy of armed revolution and rebellion in other countries (e.g. if C-51 had been the law when thousands of Canadians advocated support for Nelson Mandela’s African National Congress in its efforts to overthrow apartheid by force of arms, when that was still part of the ANC’s strategy). So, the chill for freedom of speech is real. In addition, in a context in which direct incitement to terrorist acts (versus of “terrorism offences in general”) is already a crime in Canada, this vague and sweeping extension of the criminal law seems unjustified in terms of necessity – and indeed, the Prime Minister during Question Period has been unable or unwilling to give examples of what conduct he would want to see criminalized now that is not already prohibited by the Criminal Code. But, perhaps most worrying is how counter-productive this new crime could be. De-radicalization outreach programs could be negatively affected. Much anti-radicalization work depends on frank engagement of authorities like the RCMP, alongside communities and parents, with youth who hold extreme views, including some views that, if expressed (including in private), would contravene this new prohibition. Such outreach may require “extreme dialogue” in order to work through the misconceptions, anger, hatred and other emotions that lead to radicalization. If C-51 is enacted, these efforts could find themselves stymied as local communities and parents receive advice that, if youth participating in these efforts say what they think, they could be charged with a crime. As a result, the RCMP may cease to be invited in at all, or, if they are, engagement will be fettered by restraint that defeats the underlying methods of the programme. And the counter-productive impact could go further. The Prime Minister himself confirmed he would want the new law used against young people sitting in front of computers in their family basements, youth who can express extreme views on social-media platforms. Why is criminalization counter-productive here? As a National Post editorial pointed out, the result of Bill C-51 could easily be that one of the best sources of intelligence for possible future threats — public social-media platforms — could dry up; that is, extreme views will go silent because of fears of being charged. This undercuts the usefulness of these platforms for monitoring and intelligence that lead to knowing not only who warrants further investigative attention but also whether early intervention in the form of de-radicalization outreach efforts are called for.

3.    Bill C-51 would allow CSIS to move from its central current function — information-gathering and associated surveillance with respect to a broad area of “national security” matters — to being a totally different kind of agency that now may actively intervene to disrupt activities by a potentially infinite range of unspecified measures, as long as a given measure falls shy of causing bodily harm, infringements on sexual integrity or obstructions of justice. CSIS agents can do this activity both inside and outside Canada, and they can call on any entity or person to assist them. There are a number of reasons to be apprehensive about this change of role. One only has to recall that the CSIS Act defines “threats to the security of Canada” so broadly that CSIS already considers various environmental and Aboriginal movements to be subject to their scrutiny; that is to say, this new disruption power goes well beyond anything that has any connection at all to “terrorism” precisely because CSIS’s mandate in the CSIS Act goes far beyond a concern only with terrorism. However, those general concerns expressed, we will now limit ourselves to the following serious problem: how Bill C-51 seems to display a complete misunderstanding of the role of judges in our legal system and constitutional order. Under C-51, judges may now be asked to give warrants to allow for disruption measures that contravene Canadian law or the Charter, a role that goes well beyond the current contexts in which judges now give warrants (e.g. surveillance warrants and search and seizure warrants) where a judge’s role is to ensure that these investigative measures are “reasonable” so as not to infringe section 8 of the Canadian Charter of Rights. What C-51 now does is turn judges into agents of the executive branch (here, CSIS) to pre-authorize violations of Canadian law and, even, to pre-authorize infringements of almost any Charter right as long as the limits in C-51 – bodily harm, sexual integrity and obstruction of justice – are respected. This completely subverts the normal role of judges, which is to assess whether measures prescribed by law or taken in accordance with discretion granted by statute infringed rights — and, if they did, whether the Charter has been violated because the infringement cannot be justified under the Charter’s section 1 limitation clause. Now, a judge can be asked (indeed, required) to say yes in advance to measures that could range from wiping a target’s computer clear of all information to fabricating materials (or playing agent-provocateur roles) that discredit a target in ways that cause others no longer to trust him, her or it: and these examples are possibly at the mild end of what CSIS may well judge as useful “disruption” measures to employ. It is also crucial to note that CSIS is authorized to engage in any measures it chooses if it concludes that the measure would not be “contrary” to any Canadian law or would not “contravene” the Charter. Thus, it is CSIS that decides whether to even go to a judge. There is reason to be worried about how unregulated (even by courts) this new CSIS disruption power would be, given the evidence that CSIS has in the past hidden information from its review body, SIRC, and given that a civil-servant whistleblower has revealed that, in a parallel context, Ministers of Justice in the Harper government have directed Department of Justice lawyers to conclude that the Minister can certify under the Department of Justice Act that a law is in compliance with the Charter if there is a mere 5% chance a court would uphold the law if it was challenged in court. Finally, it is crucial to add that these warrant proceedings will take place in secret, with only the government side represented, and no prospect of appeal. Warrants will not be disclosed to the target and, unlike police investigations, CSIS activities do not culminate in court proceedings where state conduct is then reviewed.

4.    We now draw attention to effectiveness by noting a key omission from C-51. As the Official Opposition noted in its “reasoned amendment” when it moved that C-51 not be given Second Reading, Bill C-51 does not include “the type of concrete, effective measures that have been proven to work, such as working with communities ‎on measures to counter radicalization of youth – may even undermine outreach.” This speaks for itself, and we will not elaborate beyond saying that, within a common commitment to countering terrorism, effective measures of the sort referenced in the reasoned amendment not only are necessary but also must be vigorously pursued and well-funded. The government made no parallel announcements alongside Bill C-51 that would suggest that these sort of measures are anywhere near the priority they need to be.

5.     Finally, the defects noted in points 1, 2 and 3 (information-sharing, criminalizing expression, and disruption) are magnified by the overarching lack of anything approaching adequate oversight and review functions, at the same time as existing accountability mechanisms have been weakened and in some cases eliminated in recent years. Quite simply, Bill C-51 continues the government’s resolute refusal to respond to 10 years of calls for adequate and integrated review of intelligence and related security-state activities, which was first (and perhaps best) articulated by Justice O’Connor in a dedicated volume in his report on what had happened to Maher Arar. Only last week, former prime ministers and premiers wrote an open letter saying that a bill like C-51 cannot be enacted absent the kind of accountability processes and mechanisms that will catch and hopefully prevent abuses of the wide new powers CSIS and a large number of partner agencies will now have (note that CSIS can enlist other agencies and any person in its disruption activities and the information-sharing law concerns over a dozen other government agencies besides CSIS). Even if one judged all the new CSIS powers in C-51 to be justified, they must not be enacted without proper accountability. Here, we must note that the government’s record has gone in the opposite direction from enhanced accountability. Taking CSIS alone, the present government weakened CSIS’s accountability by getting rid of an oversight actor, the Inspector General, whose job was to keep the Minister of Public Security on top of CSIS activity in real time. It transferred this function to CSIS’s review body, the Security Intelligence Review Committee (SIRC), which does not have anything close to the personnel or resources to carry this function out – given it does not have sufficient staff and resources to carry out its existing mandate to ensure CSIS acts within the law. Beyond staff, we note that SIRC is a body that has for some time not been at a full complement of members, even as the government continues to make no apology for having once appointed as SIRC’s Chair someone with no qualifications (and it turns out, no character) to be on SIRC let alone to be its chair (Arthur Porter). And, as revealed in a recent CBC investigation, the government has simply not been straight with Canadians when it constantly says SIRC is a robust and well-resourced body: its budget is a mere $3 million, which has flat-lined since 2005 when the budget was $2.9 million, even as its staff has been cut from 20 in 2005 to 17 now. Without an integrated security-intelligence review mechanism, which should also include some form of Parliamentary oversight and/or review, and with especially SIRC (with jurisdiction only over CSIS) not a fully effective body, we are of the view that no MP should in good conscience be voting for Bill C-51.

Above, we have limited ourselves to five central concerns, but it is important to reiterate that some or all of the signatories have serious concerns about a good number of other aspects of C-51 – and/or about detailed aspects of some of the concerns that were generally expressed in the above five points. The following are some (but only some) of those concerns, in point form. They are included by way of saying that signatories believe these all need to be looked at closely and rigorously during House of Commons committee study of C-51, now that it has passed Second Reading:

·         C-51 radically lowers the threshold for preventive detention and imposition of recognizance with conditions on individuals. Only three years ago, Parliament enacted a law saying this detention/conditions regime can operate if there is a reasonable basis for believing a person “will” commit a terrorist offence. Now, that threshold has been lowered to “may.” There has been a failure of the government to explain why exactly the existing power has not been adequate. In light of the huge potential for abuse of such a low threshold, including through wide-scale use (recalling the mass arrests at the time of the War Measures Act in Quebec), Canadians and parliamentarians need to know why extraordinary new powers are needed, especially when the current ones were enacted in the context of ongoing threats by Al-Qaeda to carry out attacks in Canada that seem no less serious than the ones currently being threatened by entities like ISIS and Al-Shabab.

·         C-51 expands the no-fly list regime. It seems to have simply replicated the US no-fly list rules, the operation of which has been widely criticized in terms of its breadth and impacts on innocent people. Is this the right regime for Canada?

·         C-51’s new disruption warrants now allows CSIS to impinge on the RCMP’s law enforcement role, bringing back turf wars that were eliminated when intelligence and law enforcement were separated in the wake of the RCMP’s abusive disruption activities of the late 1960s and early 1970s. But, even more important than turf wars is the potential for CSIS behaviour in the form of disruptive measures to undermine both the investigation and the prosecution of criminal cases by interfering with evidentiary trail, contaminating evidence, and so on.

·         C-51, in tandem with C-44, permits CSIS to engage not just in surveillance and information-gathering abroad, but also in disruption. There are many questions about how this will work. The danger of lawlessness seems to be significantly greater for CSIS activities abroad, in that CSIS only needs to seek approval for disruption under C-51 where Canadian, not foreign, law could be breached or where the Charter could be contravened (with Canadian law on the application of the Charter outside Canada being quite unclear at the moment). And there is no duty for CSIS to coordinate with or seek approval from the Department of Foreign Affairs, such that the chances of interference with the conduct of Canada’s foreign affairs cannot be discounted. Nor can we ignore the likely tendency for disruption measures abroad to be more threatening to individuals’ rights than in Canada: for example, Parliament needs to know whether CSIS agents abroad can engage in detention and rendition to agencies of other countries under the new C-51 regime.

We end by observing that this letter is dated Feb. 23, 2015, which is also the day when the government has chosen to cut off Second Reading debate on Bill C-51 after having allocated a mere three days (in reality, only portions of each of those days) to debate. In light of the sweeping scope and great importance of this bill, we believe that circumventing the ability of MPs to dissect the bill, and their responsibility to convey their concerns to Canadians at large before a Second Reading vote, is a troubling undermining of our Parliamentary democracy’s capacity to hold majority governments accountable. It is sadly ironic that democratic debate is being curtailed on a bill that vastly expands the scope of covert state activity when that activity will be subject to poor or even non-existent democratic oversight or review.

In conclusion, we urge all Parliamentarians to ensure that C-51 not be enacted in anything resembling its present form.

Yours sincerely,

Jennie Abell, Associate Professor, Faculty of Law – Common Law, University of Ottawa

Amir Attaran, Associate Professor, Faculty of Law – Common Law , University of Ottawa

Natasha Bakht, Associate Professor, Faculty of Law – Common Law, University of Ottawa

Clayton Bangsund, Assistant Professor, College of Law, University of Saskatchewan

Margaret Beare, Professor of Law and Sociology, York University

Faisal Bhabha, Assistant Professor, Osgoode Hall Law School, York University

Jennifer Bond, Assistant Professor, Faculty of Law – Common Law, University of Ottawa

Suzanne Bouclin, Assistant Professor, Faculty of Law – Civil Law, University of Ottawa

Susan Boyd, Professor, Peter A. Allard School of Law, University of British Columbia

Sarah Buhler, Assistant Professor, College of Law, University of Saskatchewan

Karen Busby, Professor, Faculty of Law, University of Manitoba, and Director, Centre for Human Rights Research

Michael Byers, Professor and Canada Research Chair, Global Politics and International Law, University of British Columbia

Angela Cameron, Associate Professor, Faculty of Law – Common Law, University of Ottawa

Pascale Chapdelaine, Professor, Faculty of Law, University of Windsor

Larry Chartrand, Professor, Faculty of Law – Common Law, University of Ottawa

Allison Christians, H. Heward Stikeman Chair in Tax Law, Faculty of Law, McGill University

Brenda Cossman, Professor, Faculty of Law, University of Toronto

Stephen Coughlan, Professor, Schulich School of Law, Dalhousie University

François Crépeau, Hans & Tamar Openheimer Professor in Public International Law, Faculty of Law, McGill University

Hugo Cyr, Professor of Law, University of Quebec in Montreal

Jennifer E. Dalton, Assistant Professor, School of Public Policy and Administration, York University

Maneesha Deckha, Associate Professor, Faculty of Law, University of Victoria

Julie Desrosiers, Professor, Faculty of Law, University Laval

Peter Dietsch, Associate Professor, Department of Philosophy, University of Montreal

Stacy Douglas, Assistant Professor, Department of Law & Legal Studies, Carleton University

Susan Drummond, Associate Professor of Law, Osgoode Hall Law School, York University

Isabelle Duplessis, Professor, Faculty of Law, University of Montreal

Stuart Farson, Adjunct Professor, Political Science, Simon Fraser University

Gerry Ferguson, Distinguished Professor, Faculty of Law, University of Victoria

Leonard, Findlay, Professor, College of Arts and Science, University of Saskatchewan, and Director, Humanities Research Unit

Colleen Flood, Professor, Faculty of Law, University of Ottawa; Research Chair in Health Law & Policy

Fabien Gélinas, Professor, Faculty of Law, McGill University

Daphne Gilbert, Associate Professor, Faculty of Law – Common Law, University of Ottawa

Jassmine Girgis, Associate Professor, Faculty of Law, University of Calgary

Isabel Grant, Professor, Peter A. Allard School of Law, University of British Columbia

Marie Annik Grégoire, Associate Professor, Faculty of Law, University of Montreal

Sakej Henderson, Professor, University of Saskatchewan, Research Director, Native Law Centre of Canada

Gleider I. Hernández, Senior Lecturer in Public International Law, Durham Law School

Steve Hewitt, Senior Lecturer, Department of History, University of Birmingham

Louis-Philippe Hodgson, Associate Professor, Department of Philosophy, York University

Felix Hoehn, Assistant Professor, College of Law, University of Saskatchewan

Jula Hughes, Associate Professor, Faculty of Law, University of New Brunswick

Allan Hutchinson, Distinguished Research Professor of Law, Osgoode Hall Law School, York University

Shin Imai, Associate Professor of Law, Osgoode Hall Law School, York University

Martha Jackman, Professor, Faculty of Law, University of Ottawa

Juliet Johnson, Associate Professor, Political Science, McGill University

Rebecca Johnson, Professor, Faculty of Law, University of Victoria

Jasminka Kalajdzic, Associate Professor, Faculty of Law, University of Windsor

Charis Kamphuis, Assistant Professor, Faculty of Law, Thompson Rivers University

John Keyes, Adjunct Professor, Faculty of Law, University of Ottawa

Muharem Kianieff, Associate Professor, Faculty of Law, University of Windsor

Jeff King, Senior Lecturer, Faculty of Laws, University College London

Jennifer Koshan, Professor, Faculty of Law, University of Calgary

François J. Larocque, Associate Professor, Faculty of Law – Common Law, University of Ottawa

Fannie Lafontaine, Associate Professor, Canada Research Chair on International Criminal Justice and Human Rights, University Laval

Louis-Philippe Lampron, Professor, Faculty of Law, Laval University

Nicole LaViolette, Professor, Faculty of Law – Common Law, University of Ottawa

Jean Leclair, Professor, Faculty of Law, University of Montreal

Ed Levy, Retired Professor of Philosophy, University of British Columbia

Brian Lewis, Professor of History, McGill University

Jamie Liew, Assistant Professor, Faculty of Law – Common Law, University of Ottawa

Catherine Lu, Associate Professor, Political Science, McGill University

Audrey Macklin, Professor of Law and Chair in Human Rights Law, Faculty of Law, University of Toronto

Alice MacLachlan, Associate Professor, Philosophy, York University

Warren Magnusson, Professor, Department of Political Science, University of Victoria

Kathleen Mahoney, Professor of Law, University of Calgary; Fellow of the Royal Society of Canada

Marie Manikis, Assistant Professor, Faculty of Law, McGill University

John Manwaring, Professor, Faculty of Law – Common Law, University of Ottawa

Michael Marin, Assistant Professor, Faculty of Law – Common Law, University of Ottawa

Graham Mayeda, Associate Professor, Faculty of Law – Common Law, University of Ottawa

Sheila McIntyre, Professor Emerita, Faculty of Law – Common Law, University of Ottawa

Michael M’Gonigle, Professor, Faculty of Law, University of Victoria

Cynthia Milton, Associate Professor, Department of History, University of Montreal

Richard Moon, Professor, Faculty of Law, University of Windsor

Mary Jane Mossman, Professor of Law, Osgoode Hall Law School, York University

Claire Mummé, Assistant Professor, Faculty of Law, University of Windsor

Roxanne Mykitiuk, Associate Professor of Law, Osgoode Hall Law School, York University

Pierre Noreau, Professor, Faculty of Law, University of Montreal

Darren O’Toole, Professor, Faculty of Law, University of Ottawa

Charles-Maxime Panaccio, Associate Professor, Faculty of Law, University of Ottawa

Steven Penney, Professor, Faculty of Law, University of Alberta

Denise Reaume, Professor, Faculty of Law, University of Toronto

Philip Resnick, Professor Emeritus, Political Science, University of British Columbia

Darryl Robinson, Associate Professor, Faculty of Law, Queen’s University

David Robitaille, Professor of Constitutional Law, University of Ottawa and trustee at the Quebec Centre for Environmental Law

Sanda Rodgers, Professor Emerita, Faculty of Law, University of Ottawa

Bruce Ryder, Associate Professor of Law, Osgoode Hall Law School, York University, and Academic Director, Anti-Discrimination Intensive Program

Hengameh Saberi, Assistant Professor of Law, Osgoode Hall Law School, York University

Calvin Sandborn, Professor, Faculty of Law, University of Victoria, Legal Director, UVic Environmental Law Centre

Steven Savit, Professor, Department of Philosophy, University of British Columbia

Jennifer Schulz, Associate Professor, Faculty of Law, University of Manitoba

Dayna Scott. Associate Professor of Law, Osgoode Hall Law School, York University, and Graduate Program Director

Noel Semple, Assistant Professor, Faculty of Law, University of Windsor

Martha Shaffer, Associate Professor, Faculty of Law, University of Toronto

Elizabeth Sheehy, Professor, Faculty of Law – Common Law, University of Ottawa

James Sheptycki, Professor of Criminology, Faculty of Liberal Arts and Professional Studies, York University

James Stewart, Assistant Professor, Peter A. Allard School of Law, University of British Columbia

Donald Stuart, Professor, Faculty of Law, Queen’s University

Marie-Eve Sylvestre, Associate Professor, Faculty of Law – Civil Law, University of Ottawa, and Vice-Dean, Research and Communications

François Tanguay-Renaud, Associate Professor of Law, Osgoode Hall Law School, York University, and Director, Nathanson Centre on Transnational Human Rights, Crime and Security

David Tanovich, Professor, Faculty of Law, University of Windsor

Christine Tappolet, Professor, Department of Philosophy, University of Montreal

Saul Templeton, Assistant Professor, Faculty of Law, University of Calgary

Kimberley N. Trapp, Senior Lecturer in International Law, Faculty of Laws, University College London

Gus Van Harten, Associate Professor of Law, Osgoode Hall Law School, York University

Lucinda Vandervort, Professor, College of Law, University of Saskatchewan

Wilfrid Waluchow, Professor, Senator William McMaster Chair in Constitutional Studies, Department of Philosophy, McMaster University

Christopher Waters, Professor, Faculty of Law, University of Windsor

Wesley Pue, Professor, Peter A. Allard School of Law, University of British Columbia

Reg Whitaker, Distinguished Research Professor Emeritus, York University, and Adjunct Professor of Political Science, University of Victoria

David Wiseman, Assistant Professor, Faculty of Law – Common Law, University of Ottawa

Stepan Wood, Professor, Osgoode Hall Law School, York University

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The following is a letter to the Prime Minister from four former prime ministers, and signed by a number of former ministers and justices.

The four of us most certainly know the enormity of the responsibility of keeping Canada safe, something always front of mind for a prime minister. We have come together with 18 other Canadians who have served as Supreme Court of Canada justices, ministers of justice and of public safety, solicitors-general, members of the Security and Intelligence Review Committee and commissioners responsible for overseeing the RCMP and upholding privacy laws.

Among us, we have served in our various public office roles from 1968 to 2014. Over that time we were faced with, and responded to, a range of pressing security concerns. We all agree that protecting public safety is one of government’s most important functions and that Canada’s national security agencies play a vital role in meeting that responsibility.

Yet we all also share the view that the lack of a robust and integrated accountability regime for Canada’s national security agencies makes it difficult to meaningfully assess the efficacy and legality of Canada’s national security activities. This poses serious problems for public safety and for human rights.

A detailed blueprint for the creation of an integrated review system was set out almost a decade ago by Justice Dennis O’Connor in his recommendations from the Maher Arar inquiry, which looked into the role that Canada’s national security agencies played in the rendition and torture of a Canadian citizen. Justice O’Connor’s recommendations, however, have not been implemented; nor have repeated calls from review bodies for expanded authority to conduct cross-agency reviews.

Meanwhile, efforts to enhance parliamentary oversight of national security agencies have also been unsuccessful. For example, in October 2004, a report calling for parliamentary oversight over national security activities was presented to the minister of public safety; this report contained an oversight structure that was agreed upon by representatives of all parties in both the House of Commons and the Senate. Legislation was introduced at the time, but not adopted before the next election.

Canada needs independent oversight and effective review mechanisms more than ever, as national security agencies continue to become increasingly integrated, international information sharing remains commonplace and as the powers of law enforcement and intelligence agencies continue to expand with new legislation.

Protecting human rights and protecting public safety are complementary objectives, but experience has shown that serious human rights abuses can occur in the name of maintaining national security. Given the secrecy around national security activities, abuses can go undetected and without remedy. This results not only in devastating personal consequences for the individuals, but a profoundly negative impact on Canada’s reputation as a rights-respecting nation. A strong and robust accountability regime mitigates the risk of abuse, stops abuse when it is detected, and provides a mechanism for remedying abuses that have taken place. In the years since the Arar inquiry, international human rights experts – including the UN Committee against Torture – have called on Canada to improve oversight of its national security agencies.

Canada’s national security policies and practices must be effective in order to protect public safety. Independent oversight and effective review mechanisms help ensure that resources devoted to national security activities are being utilized effectively and efficiently. The confidential nature of national security activities means that it is more difficult to rely on the usual public checks on government performance, such as scrutiny from Parliament, civil society, media and the general public. Security-cleared review bodies play crucial roles in catching and correcting operational and structural problems before they become full-blown national security failures, leading to better security for Canadians.

National security agencies, like all government institutions, must be accountable to the public. Accountability engenders public confidence and trust in activities undertaken by the government, particularly where those activities might be cloaked in secrecy. Independent checks and balances ensure that national security activities are protecting the public, and not just the government in power. Oversight and review mechanisms are necessary to make sure that powers are being exercised lawfully, and that government officials are not called upon to undertake activities that might expose them or Canada to legal liability either at home or abroad.

The Right Honourable Jean Chrétien, Prime Minister of Canada (1993-2003), Minister of Justice (1980-82);

The Right Honourable Joe Clark, Prime Minister of Canada (1979-80), Minister of Justice (1988-89);

The Right Honourable Paul Martin, Prime Minister of Canada (2003-06);

The Right Honourable John Turner, Prime Minister of Canada (1984), Minister of Justice (1968-72);

The Honourable Louise Arbour, Justice of the Supreme Court of Canada (1999-2004);

The Honourable Michel Bastarache, Justice of the Supreme Court of Canada (1997-2008);

The Honourable Ian Binnie, Justice of the Supreme Court of Canada (1998-2011);

The Honourable Claire L’Heureux Dubé, Justice of the Supreme Court of Canada (1987-2002);

The Honourable John Major, Justice of the Supreme Court of Canada (1992-2005);

The Honourable Irwin Cotler, Minister of Justice (2003-06);

The Honourable Marc Lalonde, Minister of Justice (1978-79);

The Honourable Anne McLellan, Minister of Justice (1997-2002), Minister of Public Safety (2003-06);

The Honourable Warren Allmand, Solicitor General of Canada (1972-76);

The Honourable Jean-Jacques Blais, Solicitor General of Canada (1978-79);

The Honourable Wayne Easter, Solicitor General of Canada (2002-03);

The Honourable Lawrence MacAulay, Solicitor General of Canada (1998-2002);

The Honourable Frances Lankin, Member, Security Intelligence Review Committee (2009-14);

The Honourable Bob Rae, Member, Security Intelligence Review Committee (1998-2003);

The Honourable Roy Romanow, Member, Security Intelligence Review Committee (2003-08);

Chantal Bernier, Acting Privacy Commissioner of Canada (2013-2014);

Shirley Heafey, Chairperson, Commission for Public Complaints against the RCMP (1997-2005);

Jennifer Stoddart, Privacy Commissioner of Canada (2003-2013);

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The following is an op-ed on Privacy Commissioner Daniel Therrien’s concerns about Bill C-51, versions of which were published by two newspapers.

Privacy Commissioner raises concerns about Bill C-51

Daniel Therrien, Privacy Commissioner of Canada

The debate over the federal government’s new anti-terrorism bill is raising profound questions about the tension between privacy and security.

Most Canadians would agree that terrorism represents a growing threat and that we must respond with appropriate national security measures when new threats arise. But at what cost?

In my view, Bill C-51 in its current form would fail to provide Canadians with what they want and expect: legislation that protects both their safety and their privacy. The proposed legislation does not strike the right balance.

The scale of information sharing between government departments and agencies being proposed in this bill is unprecedented. The new powers that would be created are excessive and the privacy safeguards being proposed are seriously deficient.

All Canadians – not only terrorism suspects – will be caught in this web. Bill C-51 opens the door to collecting, analysing and potentially keeping forever the personal information of all Canadians in order to find the virtual needle in the haystack. To my mind, that goes too far.

This is really about Big Data, which relies on massive amounts of information that can be analyzed algorithmically to spot trends, predict behaviours and make connections. The implications for privacy are serious – especially when we are talking about the highly sensitive information that Canadians entrust to their government.

The legislation would allow for the personal information of Canadians to be shared if it is deemed “relevant” to the detection of new security threats. That’s an extremely broad standard that suggests the bar to permit the sharing of Canadians’ personal information has been set far too low.

In this way, the Bill would provide 17 federal government agencies with almost limitless powers to monitor and profile ordinary Canadians, with a view to identifying security threats among them.

The end result is that national security agencies would potentially be aware of all interactions that all Canadians have with their government. That would include, for example, a person’s tax information and details about a person’s business and vacation travel.

While the potential to know virtually everything about everyone may well identify some new threats, the loss of privacy is clearly excessive.

In a country governed by the rule of law, it should not be left for national security and other government agencies to determine the limits of their own powers.

We need to create clear and reasonable standards for what personal information may be collected, shared, used and kept.

We also need to ensure appropriate oversight and review. Currently, 14 of the 17 agencies that will receive information under the proposed law are not subject to independent oversight.

Either a new review body should be created or the mandate of existing review bodies should be expanded. I would also recommend a system that includes a separate Parliamentary review body.

Existing review bodies also need permission to share information amongst each other, which is not currently the case, and judicial recourse should be available to those who believe personal information has been collected, used, disclosed or retained improperly.

National security agencies have an important and difficult role to play in protecting us from terrorist threats – and I believe they strive to do their work in a way that respects human rights.

That being said, history has shown us that serious human rights abuses can occur in the name of national security. A commission of inquiry, for example, confirmed that national security information sharing led to the torture of Syrian-Canadian Maher Arar, while revelations by U.S. whistleblower Edward Snowden have shown that government surveillance programs can be extremely pervasive.

Bill C-51 requires significant changes. I have sent the Parliamentary committee reviewing the Bill a submission outlining my concerns along with a series of recommendations and I would welcome the opportunity to speak with Parliamentarians about my concerns in the near future.

I hope that the government will listen to the concerns that are being raised – not just by me, but by many eminent Canadians – and that it will amend Bill C-51 to ensure it respects our privacy rights.

// // // // // // // // // // // // // // //

From Privacy Commissioners and Ombudsmen
March 4, 2015

To Daryl Kramp, Chair
Standing Committee on Public Safety
and National Security and Members of the Committee
Sixth Floor
131 Queen Street
House of Commons
Ottawa ON  K1A 0A6

Dear Chair Kramp:

Re: Bill C-51 – The Anti-terrorism Act, 2015

We are writing to you in our capacity as independent provincial and territorial privacy commissioners to express our deep concern about the far reaching implications of Bill C-51 (the Anti-terrorism Act, 2015) for the fundamental rights of Canadians.

Last fall, Information and Privacy Commissioners from across Canada shared the grief of all Canadians over the murders of Warrant Officer Patrice Vincent and Corporal Nathan Cirillo.  Like all Canadians, we believe that effective measures are necessary to deal with threats to our national security.  As all Canadian Commissioners said then, those measures must be evidence-based, proportionate, and subject to effective oversight and review.1  They must protect Canadians’ constitutionally-enshrined privacy rights and freedoms.  Bill C-51 fails to do these things. Bill C-51 challenges fundamental rights and freedoms on several fronts, but the focus of our concern is on its mandate for overbroad, unregulated and intrusive sharing of the personal information of ordinary Canadians.

If enacted, the portion of Bill C-51 comprising the Security of Canada Information Sharing Act (SCISA) would significantly expand the power of the state to surveil and profile ordinary, law-abiding Canadians.  Canadians rightly expect their governments will take reasonable measures to prevent acts of terrorism, but the potential to interpret SCISA as equating dissent with violence, sabotage and subversion would facilitate a substantial shift towards routine surveillance of large portions of the populace.  It could be used to authorize, in effect, surveillance across governments in Canada, and abroad, for virtually unlimited purposes.

Such a state of affairs would be inconsistent with the rule of law in our democratic state and contrary to the expectations of Canadians.  Given the sweeping implications of SCISA, Canadians should expect there to be clear and persuasive evidence that these proposals are truly necessary, limited and proportionate.  The government has yet to produce any evidence on these foundational points.  It has not explained why the existing statutory provisions allowing for the disclosure of personal information for law enforcement and national security-related purposes are not sufficient to meet current security requirements.

In light of the above, and for the reasons stated below, we urge government to withdraw SCISA. If the government declines to do this, substantial amendments to SCISA are, as we explain below, necessary in order to ensure that any new information-sharing powers are limited, proportionate, and protect Canadians’ constitutional rights and freedoms.


Section 2 of SCISA would define an “activity that undermines the security of Canada” very broadly, more so than any comparable concepts in the Canadian Security Intelligence Service Act or the Anti-terrorism Act, 2001. 2  The definition would capture activities such as those directed at planning and preparing to carry out a terrorist attack or an act of foreign-directed sabotage.  However, SCISA would also open the door to virtually limitless information sharing.  It would set no boundaries for the broad and open-ended terms “undermine” and “security”.  Many of the s. 2 examples of security-undermining activities are overly broad; notably the classes of activities listed in ss. 2(a), (b), (f), and (i).  These extend well beyond what generally would be accepted as representing genuine security threats.

Moreover, it is not clear that evidence of any link to unlawfulness (including criminality or violence) is a pre-condition to information sharing under s. 5.  This would expose Canadians innocent of any illegality to the risk of virtually limitless information sharing, including with respect to their civic activities. 2  See the definition of “threats to the security of Canada” in s. 2 of the Canadian Security Intelligence Service Act, and the definition of “terrorist activity” in s. 83.01 of the Criminal Code.

We are deeply concerned that SCISA would permit the sharing of personal information of individuals who have participated in lawful, peaceful demonstrations like the large-scale protests against investment in apartheid-era South Africa and the incarceration of Nelson Mandela.  The historic peaceful protests in support of nuclear disarmament would also almost certainly have been caught as well.  This is because SCISA would define, as an activity that undermines the security of Canada, anything that amounted to “interference with the capability of the Government of Canada in relation to … defence, … public safety, the administration of justice, diplomatic or consular relations, or the economic or financial stability of Canada”.  It would also include “unduly influencing a government in Canada by … unlawful means”, noting—as only one example—that sometimes peaceful marches are held without complying with all municipal bylaws.

Moreover, in contrast to the approach under the Anti-terrorism Act, 2001, SCISA risks surveillance of anyone associated with any group whose protests, demonstrations or pickets breach any law in Canada, however trivial.


Section 5(1) of SCISA would expressly authorize a “Government of Canada institution” to disclose any information it decides is “relevant” to the mandate of a recipient institution with respect to “activities that undermine the security of Canada, including in respect of their detection, identification, analysis, prevention, investigation or disruption”.  Section 8(2)(b) of the Privacy Act authorizes government institutions to disclose personal information for any purpose in accordance with an Act that authorizes its disclosure.  Section 5 of SCISA would appear to give that authority.  In combination, these provisions would allow institutions to share personal information, on their own initiative or on request, for overbroad purposes.  SCISA would, in other words, open the door to systematic disclosure of a broad range of information about ordinary Canadians.  It would funnel that information from, and to, disparate institutions, the list of which can be expanded by Cabinet at any time, without open debate. \

Another serious concern is that s. 6 of SCISA would permit an institution to disclose personal information to “any person” and for “any purpose”.  This would enable ungoverned sharing of personal information of Canadians with other Canadian governments and public institutions, private sector organizations and foreign governments or their agencies.  SCISA would also enable this unprecedented information sharing without any parallel increase in the already overstretched resources and limited authorities of existing independent review officials.  The torture and unlawful imprisonment suffered by Maher Arar as a result of the unconstrained sharing of inaccurate personal information with foreign agencies illustrates the grave dangers of this opening of the information floodgates.


In light of the above, the following amendments are critical to remedy the defects in SCISA and protect Canadians’ privacy, associational and expressive rights:

Recommendation 1:  Drawing on the definition of “terrorist activity” in s. 83.01 of the Criminal Code, the Committee should narrow the s. 2 definition of an “activity that undermines the security of Canada” to ensure that SCISA information-sharing programs do not target innocent Canadians, including those that fund, support or participate in peaceful protests or other non-violent activities.

Recommendation 2:  The Committee should amend s. 5 of SCISA to limit information sharing to that which is strictly necessary to accomplish a specific security purpose associated with preventing “terrorist activity” or “threats to the security of Canada” (as those terms are defined in s. 83.01 of the Criminal Code and s. 2 of the Canadian Security Intelligence Service Act, respectively).

Recommendation 3: The Committee should amend s. 4 of SCISA to require all disclosing and recipient institutions to implement responsible information-sharing practices and ensure that information sharing is conducted in a proportionate, transparent and accountable manner.  Specific information-sharing requirements should be set out in binding regulations under s. 10 of SCISA.  Those requirements should include a duty to establish appropriately limited retention periods (e.g., two years), to securely destroy records at the end of the retention period (unless the further retention of a specific record can clearly be justified), and to keep records reflecting what information was shared with whom, when, why, and subject to what controls.

Recommendation 4:  Section 6 of SCISA, which would lead to recipient institutions using and further disclosing personal information to “any person” and for “any purpose” should be repealed.

Recommendation 5:  Section 10 of SCISA should be amended to restrict Cabinet’s power to list recipient institutions under Schedule 3 of SCISA to those federal agencies that have primary responsibility for law enforcement or national security.

Recommendation 6:  SCISA should be subject to a sunset clause that requires the completion of a Parliamentary review within five years of its coming into force.  That review should be mandated to determine whether any derogations in and under SCISA from the right to privacy are necessary, rational and proportionate. PROPER


It is useful to separately address the reasons for our last recommendation, set out below.  Given the dramatic expansion of state power that SCISA represents, one would expect provision for robust, proportionate, independent oversight and review.  Bill C-51 fails to do this.  Aspects of SCISA speak vaguely to information sharing principles and some form of self-regulated compliance with such principles.  This is far from adequate.  The reference in s. 4 of SCISA to responsible information sharing, such as the use of “information-sharing arrangements …when Government of Canada institutions share information regularly”, offers no protection.

For one thing, there is no indication that any such “principles” would be binding.  Nor would they establish legally-enforceable rights for affected individuals.

We therefore strongly endorse the concerns raised by Daniel Therrien, the Privacy Commissioner of Canada, that the government’s proposal to establish a new information-sharing regime will exacerbate longstanding gaps in the independent oversight and review of law enforcement and intelligence agencies.  The secrecy that accompanies this form of surveillance drastically reduces the opportunity for affected individuals to learn of and challenge the state’s use and disclosure of their information.  Independent oversight and review is thus critical.  It also helps to improve both agency performance and the general public’s confidence in the integrity and propriety of the agency’s actions.  Accordingly, significant enhancements are needed for independent oversight and review of all agencies involved in national security and intelligence.

The recommendations of the Arar Inquiry provide a good starting point for the development of many of the necessary reforms, including outside the context of Bill C-51 as a whole.

Recommendation 7:  The Committee should call on the government to introduce legislation to ensure that all national security and intelligence agencies are subject to meaningful, independent oversight and review.


We are committed to the development of effective, transparent, and privacy-protective approaches to achieving public safety and national security.  As Commissioners charged with advising legislators with respect to complex privacy issues, we understand that developing a rational and proportionate response to terrorism can be extremely challenging.

In addition, s. 9 makes it clear that any person who discloses information under SCISA in good faith will enjoy immunity under any civil proceedings.  We are confident that it is possible to both improve our capacity to pre-empt future terrorist attacks and enhance the privacy, accountability and transparency safeguards necessary to preserve our free and open democracy.

In the interests of transparency, we will be making this letter a matter of public record.

Respectfully submitted by,

Brian Beamish Information and Privacy Commissioner, Ontario                                                                                                                                                                                                  
Elizabeth Denham Information and Privacy Commissioner, British Colombia                                                                                                                                                                             
Jean Chartier Chair, Commission à l’information du Québec                                                                                                                                                                                                           
Jill Clayton Information and Privacy Commissioner, Alberta                                                                                                                                                                                                   
Mel Holley Acting Ombudsman, Manitoba                                                                                                                                                                                                                            Elaine Keenan Bengts Information and Privacy Commissioner, Nunavut and Northwest Territories                                                                                                                              
Ronald J. Kruzeniski Information and Privacy Commissioner, Saskatchewan                                                                                                                                                                                
Maria C. MacDonald Information and Privacy Commissioner, Prince Edward Island                                                                                                                                                                    
Diane McLeod-McKay Yukon Ombudsman and Information and Privacy Commissioner                                                                                                                                                      
Ed Ring Information and Privacy Commissioner, Newfoundland and Labrador                                                                                                                                                                         
Catherine E. Tully Freedom of Information and Protection of Privacy Review Officer, Nova Scotia

// // // // // // // // // // // // // // //

SIRC is not doing the job
National Post - March 2, 2015

Nationalnewswatch - March 3, 2015

By Colin Kenny

If the prime minister thought public pressure to institute a more robust review system for national security would slowly die down, he has miscalculated.

Last week, a number of former prime ministers and Supreme Court justices penned an open letter calling for the government to keep a closer eye on federal intelligence activities. While certainly increasing the visibility of the issue, the letter was lacking as far as specific policy prescriptions.

There are a number of concrete steps the government should take to address the gap in national security accountability. Chief among those are improving the integrity of the application process for national security warrants, re-establishing the Office of the Inspector General of the Canadian Security Intelligence Service, and expanding the Security Intelligence Review Committee’s (SIRC) size, capabilities and mandate.

National security officials usually seek between 40 and 50 new warrants each year in addition to the 150 to 250 renewals or replacements. The prime minister argues that the involvement of federal court judges is a check on the bureaucracy. It may well be, but we should also note that the overwhelming majority of these warrant applications are approved.

In select cases, a security cleared lawyer, referred to as a Special Advocate, provides a challenge function against the government’s case. But more often than not these lawyers aren’t present, meaning judges generally only hear one side of the argument from teams of government lawyers seeking each application’s approval.

The outcome is predictable.

Providing balance to this process requires making the involvement of a Special Advocate mandatory for each warrant application. The reviews are conducted in secret, so this change would not in any way compromise Canada’ security.

With CSIS now designating terrorist “sympathizers” as national security threats and the authority to make targeting decisions being delegated to lower level officials, the need for a balanced warrant application process is all the greater.

Other observers believe that our warrant process is already too cumbersome. In 2005, I met with Baroness Eliza Manningham-Buller, the formidable director-general of MI5, the UK’s Security Service, in her office on the Thames. At one point in the discussion she held up a three-page form and said, “This is the document we use to obtain a warrant, not the bloody phonebook your people require” (clearly a set up by CSIS). While procedures here may be more cumbersome than in the UK, the importance of each warrant being vetted to ensure it meets the standards of the Charter is essential.

Efforts to increase national security accountability of CSIS must include the re-establishment of its Inspector General. The Harper government shut this organization down in 2012, arguing that its mandate overlapped with that of SIRC, even though both bodies were specifically designed to look at CSIS in different ways.

SIRC held the role of after the fact, civilian review that reported to Parliament while the Inspector General performed an internal oversight function that reported to the Minister of National Defence.

Unlike the members of SIRC, Inspectors General had decades of experience working in Canada’s security and intelligence community. They had the background, access and mandate to provide as close to real-time oversight of the spy agency as is possible in a Westminster system.

It’s only been three years since the watchdog was shuttered, but the negative ramifications of that decision are already beginning to show. In a recent ruling, Federal Court Justice Richard Mosley found that CSIS had misled him with respect to the agency’s surveillance partnerships with other countries. It was exactly this sort of wrongdoing that the Inspector General’s office was designed to prevent. Without it, future problems are inevitable.

All of the responsibility for reviewing CSIS’ activities now rests on the shoulders of SIRC, but the committee faces a number of serious challenges. One of these is its small size. It refers to itself as a “micro-agency” in its most recent Departmental Performance Report and acknowledges that its size carries with it “many inherent risks.”

SIRC’s limited capacity means it can only keep an eye on a sliver of what CSIS is up to. It takes what they refer to as “snapshots” (CSIS’ word) of some of the agency’s activities based on six considerations. These include the intelligence priorities of the government, issues identified in the course of SIRC’s complaints functions and changes in Canada’s threat environment.

These “snapshots” only capture a moment in time and this approach lacks context. SIRC also doesn’t assess the effectiveness or value for money of the activities it reviews. But despite all this, SIRC assures us that they are able to “ensure the democratic accountability of one of the Government's most powerful organizations, thereby safeguarding Canadians' fundamental rights and freedoms.” Doubtful.

SIRC’s inability to provide a comprehensive review function of CSIS’ activities is most easily explained by the gap in budget and size of the two organizations. CSIS has arrangements with 265 foreign agencies in 144 countries. It manages around 2,500 employees, has 14 regional and district offices across Canada and has an annual budget of $515 million. In contrast, SIRC employs an Executive Director and a staff of 17 and has only 5 part-time committee members (when all positions are filled) that met only 9 times in 2013/14.

How can the committee be expected to get its job done under these circumstances? Moreover, how can the committee assess that based on their 6 areas of review that CSIS is acting in accordance with the law?

Only adding to their problems, SIRC has also been struggling to deal with near-constant turnover in committee membership and delays in filling vacancies. The organization had four different Chairs between April 2011 and March 2014 and a number of regular members have retired prematurely. According to SIRC’s most recent Departmental Performance Report, this has had “a direct impact on the organization’s ability to operate effectively” and represents a “risk to the stability of leadership.”

To address these problems, more SIRC members and a larger staff are needed. The committee’s size should be boosted from 5 members to 9 and staff increased from 17 to 30. This should be coupled with a transition for committee members from part-time appointment to a full-time appointment on a staggered, one time renewable 5-year term.

Business continuity would be improved by appointing a Deputy Chair and Deputy Executive Director who can quickly take over the lead role should the Chair or Executive Director step down unexpectedly. Onus, however, will ultimately fall on the government to appoint qualified members in a timely manner.

The combination of a larger committee, full time membership and deputy governance positions would have a salutary impact on the turnover and leadership problems. This shift would also allow for an increase in the level of training for members and staff so that they are better positioned to carry out their duties on a full-time basis.

Instituting these reforms would allow the committee to cover much more than the “snapshots” that they’re limited to now.  The frequency of SIRC’s reports should go from once a year to once every quarter as part of this change.

As it stands now SIRC’s annual reports are short, vague and lack substance, which is no doubt why they garner little attention from the media or Canadians each time they’re released. Increasing the frequency and quality of reporting will help to change perceptions of the organization.

Once these changes have been put in place, the question should then shift to how to deal with the gap in federal intelligence oversight of other departments. A variety of other agencies collect and analyze intelligence, including the RCMP, Communications Security Establishment, Canada Border Services Agency, Transport Canada, Citizenship and Immigration Canada, the Privy Council Office, Department of Foreign Affairs, Trade and Development, and the Financial Transactions and Reports Analysis Centre of Canada.

It doesn’t make much sense to only have CSIS’ activities reviewed when all these other agencies face little or no scrutiny. This is something that needs to be addressed going forward.

SIRC’s annual budget is $2.8 million or about half a per cent of CSIS’ budget. This is much too low. SIRC should have a budget in the range of $10 million a year, or roughly 2 per cent of CSIS’ budget. This would cover the increase in committee size and staffing levels and the shift from part time to full time membership.

Keeping Canadian citizens safe requires a strong system in place to review their activities and make sure they’re lawful and effective. Canada’s current system is slipshod, giving our officials too much leeway in conducting their business without oversight. With ever more powers being granted to the intelligence community, the risk of mistakes being made will only get higher unless this imbalance is addressed soon.

[Colin Kenny is former chair of the Senate Committee on National Security and Defence.Kennyco@sen.parl.gc.ca] 

Sunday, October 14, 2012

Justin Trudeau, uniting the left and sugarplum fairies

“I shook his hand once,” my coworker said as we watched the news on the office TV. “Who?” I asked. “Justin Trudeau,” he said. “Oh,” I said, not knowing what else to say.
There's an aura growing around Trudeau, or perhaps there has always been one, that gives liberals (I use the small “l” intentionally) hope for the future. Especially in the face of Stephen Harper’s quietly draconian governing style rising up again in the form of a new omnibus bill as the fall session starts. “Can Trudeau reignite the flame of the centre-left?” Canadians wonder.
Trudeau's aura brings with it a halo effect to liberal/Liberal politics that's been missing since, well, I don’t know when. Yesterday, for example, I got an accidental phone call from a disaffected NDP supporter in Montreal (which is odd, since I’m based in the provincial Liberal office in Edmonton). She was upset that the NDP in Quebec were drifting toward what she termed “soft nationalism” and she didn't want to remain with a party that supported separation, no matter how softly. Toward the end of the conversation she asked whether I knew if Trudeau had officially declared his nomination. “Ah, there it is,” I thought.
No one would like to see Canada's left reignited and reunited more than I would. And lately in Alberta there’s been a lot of not-so-secret backroom buzz flying around about a merger between the parties on the left. In fact, there are a few people actively campaigning to make that happen.
Just for the record, the lonely Alberta Liberals have 5 seats in the Legislature, the New Democrats have fewer with 4 and the Alberta Party has zip. The Wildrose Party on the other wing is now the official opposition with 17 seats. The PCs control the remaining 61 seats—a comfortable majority to say the least, especially when one considers that the party has been in power for 41 years. And, for you trivia buffs, this will be the longest running provincial party in the history of Canada by the end of its term in 2016, beating the Nova Scotia Liberals who operated uninterrupted from 1882 to 1925.
Clearly, Canadians are no strangers to dynastic politics, whether it’s in the form of long-standing regimes or second and third generations of political scions such as the Ignatieffs, the Martins, the Leblancs, the Lougheeds, the Bennetts, the Crosbys, the Laytons and many more. So Justin Trudeau is no anomaly. But one might ask, is this aggregation of power into the hands of a few families a healthy thing, given our country’s present size, wealth and population?
I don't know. My instinct says no. But instinct is often wrong. There seems to be no shortage of new genes coming into our political system, including Stephen Harper. Ultimately, the key to a healthy political system is diversity and renewal. And in that sense, Justin Trudeau fits the bill perfectly for small “l” liberals on the national scene, just as Harper did for the right a decade ago.
So we have two threads of thought here: the magnetic appeal of the next Trudeau, and the possible merger of the parties on the left, principally, the Liberals and the NDP. And can these two threads be linked or are they mutually exclusive? It's too early to tell. Bob Rae will be a key figure. But given the discontent of half of the Canadian voting public, there seems to be a deep desire to pursue anything that brings together a working coalition on the left to take on the evermore rightist Conservatives in Ottawa.
Some pundits might tell you that the Canada’s left will unite about the same time the Liberals take power in Alberta. And actually, that could happen sooner than anyone thinks, but that's a story for another time.
Mirroring the federal scene, there’s a small movement underway in Alberta to bring the Liberals, NDP and Alberta Party together into a unified party of the centre-left. This was openly discussed at the NDP annual general meeting last week, which was publicly rejected by party leader Brian Mason. But the issue isn't quite dead on the floor.
I caught an e-mail the other day outlining the similarity of the platforms of the Alberta Liberals with the NDP during the last election, pointing out that there wasn't a great deal of difference between the two. It was a justification, I suppose, for the merger.
But the devil in any of these concepts, as they say, is in the doing. It's not the platforms that matter so much as how those platforms are developed and implemented that matter. These “how” issues raise deep philosophical divides between entrepreneurial, pro-business liberals and pro-labour, anti-business socialists.
And it's not the parties that matter, but the power residing behind those parties that matter. The “how” of merging power structures and cultures is far more challenging than merging platforms.
On both counts, merging ideologies and power structures, it would be naïve to think that uniting Alberta’s Liberals with Alberta’s NDP would be an easy task. Developing strong leadership and interparty cooperation might be an easier and far more effective way to deal with the slowly calcifying policies of Alison Redford’s PCs.
That, at least, is my insider's view for now. That could all change if the Trudeau-Bob Rae alliance reaches out to unite with the federal NDPs. All things are possible in Canadian politics.
At the end of the day it isn't left-right that matters, it’s always top-bottom. And even sugarplum fairies know Santa’s the boss.

Saturday, September 15, 2012

Riding the big red Alberta sled with Raj Sherman

Raj and his partner, Sharon, picked me up at the airport in Edmonton. He was unmistakable. His open enthusiasm telegraphed that this is the leader of Alberta's Liberals almost as much as his big red Dodge Ram truck. On the way into the city we talked about Alberta's oil sands, the economy and, of course, his recent history as a health critic with both the provincial PCs and the Liberals.

To say that this guy is controversial is an understatement. Stories roll of his tongue like chapters of a rags-to-riches novel. Apparently, his family already had a long history in Canada before Raj was born in India. By the age of six the family had migrated to Squamish, BC, where Raj learned the ropes in a tough frontier logging town where East Indians weren't exactly welcomed. While his father moved into the labour union movement, young Raj accepted the prejudice, smackdowns and bruises stoically.
And I couldn't identify any bitterness in Raj the man, the successful ER doc and now, seasoned politician. In fact, the Raj I met was clearly as Canadian as I am. And a real character, to boot. Which is great since I enjoy working with colourful characters, and I'll be working closely with him (and Sharon) for the next four years as the new executive director of the Alberta Liberal Party.
The learning curve during my first week on the job has been nearly vertical. I've had a mind-meld with Alex, the unofficial party strategist, for two days, had dinner with the party president, took in an executive board meeting, made an off-the-cuff presentation to 20 or more staunch Liberal women over breakfast, tip-toed into the in-house systems and files, and struggled to remember names of a several dozen key people.
In the middle of this I got into two late night sessions with Raj that ended in the big red sled (aka "The Sherman Tank") on the way home talking about everything from our personal histories-philosophies to global resource management issues. Not to mention the curious coincidence that my wife is also named Sharon, who is also an American like his Sharon, also hailing from New England, which I learned while we watched Obama give his big speech at the DNC at their place over takeout Thai.
What have I learned about Alberta's Liberals in just one week? It's too soon to say and probably more than I can possibly remember. But I have learned a bit about Alberta itself, at least as a comparison to life back home in New Brunswick.
I've learned that there's an epidemic of potholes in the streets of Edmonton. That its water and sewer utilities have been partially privatized and that the water tastes just fine. That housing prices are through the roof relative to East Coast prices, and that the cost of a mortgage can eat up a large portion of an Albertan's paycheque.
I've also discovered, I think, that Albertans seem to be, at least after one week, to be friendlier and more optimistic than eastern Canadians. They smile at you and look you in the eye even in the big city, which comes as a bit of a surprise to someone more attuned to the Toronto-Boston-New York street society. That said, I've been told that Edmonton is the murder capital of Canada, attributed feuding immigrant drug dealers.
But I'm an immigrant here, too, just like all those Newfoundlanders and Somalis, Middle Easterners, Asians and the rest. If they're part of the problem, then perhaps I am too, just another newcomer looking for new opportunities and challenges in the Promised Land.
And that land is big and beautiful, as I found out this weekend when a friend drove me up to Athabasca for the weekend. The farmers were out combining their fields, swathed into rows in the sunshine under that indescribably big sky. I had my friend stop the car so we could get out and walk into a cut grain field and stand among those huge round bales parked like spun gold discs against the bright blue horizon.
Is it easy to be here? Would I advise others to come? I don't know. A lot of easterners and even westerners like Raj have made the leap before me. I do know that the logistics of putting the house up for sale back home, staying connected with family on Skype, buying a new car, finding a place to live, shopping for houses and fumbling my way around a new city is slightly daunting.
Of course, the whole experience will seem insignificant a year from now, as they say, like a woman remembers childbirth.
But remembering is the thing. We moved from Ontario 8 years ago. New Brunswick has been the only home our kids have known, and a lot of our memories are there: sailing on Passamaquoddy Bay with the tides and seals, walking down to the St. Andrews blockhouse and the reef, having lunch at Olde Tyme Pizza in January when you could shoot off a cannon and not hit a tourist if you wanted to, and those slow, slow days of summer living beside the retired people who have nothing much to do except maybe cut the lawn and go for a walk. And for me the days of writing and hanging out with the kids.
It isn't going to like that here. But that's OK. I'm looking forward to the challenge of a more active, liberal chapter after a long sojourn in the slow moving, conservative East. So goodbye, New Brunswick, you will be missed. And hello, Alberta, let the adventure begin.