Bill C-59: An Act respecting national security matters - Second Reading
Honourable senators, I rise today to speak on Bill C-59, which proposes sweeping changes to our national security legislation. This is a broad piece of legislation which incorporates many elements. I acknowledge some of the elements proposed in this legislation may be desirable, for instance, provisions in the bill that strengthen the authorities of the Communications Security Establishment to protect Canada against cyberattacks seems to be a positive measure. However, I fear that such positive provisions are completely overshadowed by other elements of the bill that fail to strengthen Canada’s national security and, in fact, weaken it.
I would like to use my time to focus on one area of particular concern, a provision that I find completely inexplicable. These are provisions in the bill which eliminate the offence of advocating or promoting terrorism and instead propose to replace that language with the offence of counselling to commit a terrorism offence.
The government has rationalized this step by claiming that since there has been no prosecution of the offence of advocating or promoting terrorism in the past three years, the offence should simply be eliminated. Minister Goodale claimed that creating the more specific offence of counselling to commit will lead to more charges that can be defended in court. However, this argument has been specifically disputed by witnesses who appeared at committee in the other place.
As security expert and former Crown prosecutor Scott Newark stated, the offence of counselling an individual to commit a criminal offence already exists under the Criminal Code. By repealing the law around the advocacy of terrorism, this bill makes it almost impossible to prosecute those who had advocate terrorism.
Mr. Newark stated:
I guarantee you, sir, that if that wording is used, there will be occasions when defence counsel will come to court when somebody is charged, and ask, “Who was it that he was counselling to commit the offence?” If you don’t have another person involved, —
— if the advocacy of terrorism is just general in nature, —
— you aren’t able to prove the offence.
This is shocking since we know that terrorist propaganda is being used actively in the process of radicalization, recruitment and facilitation. Terrorist propaganda was instrumental in contributing to the radicalization of both Martin Couture-Rouleau and Michael Zehaf-Bibeau, who carried out the October 2014 terrorist attacks in Saint-Jean-sur-Richelieu and Ottawa. Other witnesses appearing before the house National Security Committee on this legislation raised the same concerns. Mr. Michael Mostyn, the Chief Executive Officer, National Office, B’nai Brith Canada stated in no uncertain terms the proposed change in the law weakens the current law and is unhelpful.
Specifically, he noted that:
We accept that the right to freedom of expression is an important consideration, but the right of potential victims to be free from terrorism and the threat of terrorism must be a greater priority.
I could not agree more. If there is a problem with the actions of prosecutions under the current law, we must address why that is the case, even as the advocacy of terrorism is growing in all Western countries, including Canada. The solution, if this is the case, is to improve our capacity to facilitate prosecutions of both hate speech and the advocacy of terrorism, not to completely repeal the law.
Mr. David Matas, the senior legal counsel from B’nai Brith Canada, stated in testimony before the National Security Committee in the other place that:
. . . it is far from obvious that changing the offences of advocacy and promotion to the offence of counselling will resolve this problem.
Mr. Matas also said the offences of advocacy and promotion are in fact not new offences. The offence of advocacy exists for both genocide and sexual activity with a person under the age of 18. The offence of promotion also exists both for genocide and hatred.
Mr. Matas said that the notion that prosecutors have stayed their hands because they are uncertain about the meaning of the current law or worried about its over-breadth is not supported by an examination of the Criminal Code and the jurisprudence. B’nai Brith filed written submissions with the House of Commons committee outlining a number of cases in which the Supreme Court of Canada looked at, defined and circumscribed the offences of advocacy and promotion. He noted that there’s ample legal guidance about the meaning of these concepts. Instead of just removing this provision from the law, as Bill C-59 proposes to do, we should be giving the investigation and prosecution of these offences higher priority. This may require more resources, expertise, training and a greater emphasis on collaborative international approaches. It does not mean we should narrow the law.
This is not simply a theoretical issue, as is so often claimed by senators on the other side. This is an issue that directly affects the safety of Canadians. Radicalization was a key factor that contributed to the attack launched by Martin Couture-Rouleau in Saint-Jean-sur-Richelieu in October 2014 in which he murdered Warrant Officer Patrice Vincent. Prior to his attack, Couture-Rouleau had posted images of ISIL black flags on his Facebook page, as well as anti-Western rants, but he wasn’t arrested. Laws around the advocacy and promotion of terrorism were not yet in place. They were put in place by the former Conservative government under Bill C-51.
Journalist Stewart Bell has conducted extensive research into the significant challenge posed by radicalization efforts in Canada. In his book,The Martyr’s Oath, he writes:
. . . what governments can do is challenge the world view of extremists and step in when radicalization crosses the line, when it becomes a recruiting mechanism that materially supports terrorism.
Radical preachers must be isolated, and prosecuted if they violate hate crimes or incitement laws.
The point here is you require effective laws to be in place. Despite what the government has claimed, the provisions put in place by the former Conservative government are being used. Over the summer, federal Crown prosecutors used the terrorism propaganda provisions in the law in their effort to remove terrorist content from the Internet. Hearings on this matter took place in Montreal early this summer, though details have not been publicly released.
The current government believes we don’t require these laws. Some senators opposite have essentially argued that if a provision in the law is rarely used, such as investigative hearings, recognizance with conditions or advocacy of terrorism offences, then we should get rid of them or make them difficult to use. I fundamentally disagree.
The threats we face as a country and as a society are real. We cannot simply put our heads in the sand, remove or reduce key protections in the law and hope for the best. I fear what is proposed in this bill will not make Canadians safer. This legislation also offers no assistance to those young people who may be vulnerable and are in danger of being radicalized by those who can now more openly advocate terrorism.
I simply cannot support a bill that so seriously weakens our capacity to protect Canadians. I ask that this issue be studied closely in the Senate committee and that the government be asked to explain why it has not proposed measures to strengthen the use of these provisions instead of its irresponsible approach of getting rid of them entirely. Thank you.