1 Gatineau, June 16, 2024 National Security Committee, Defense and Veterans Affairs The Senate of Canada Ottawa, Ontario, K1A 0A4 +1-343-550-7470 secd@sen.parl.gc.ca Subject: Suggestion of some amendments for rights and freedom problems on Bill C-70 [English version only] Dear members of the Standing Committee: Considering a lack of response to my correspondence of last June 11, 2024, in a timeframe that would allow you to take actions for the rushed analyse of Bill C-70, I address this second letter to you in order to follow up my concerns and provide specific inputs.

This is in line with more than 40 organizations around Canada, under the scope of the International Civil Liberties Monitoring Group, that raised up civil liberties concerns about this bill, and requested more time to analyze and introducing safeguards to protect Canadians against implicit attacks to the Canadian Charter of Rights and Freedoms from this C-70 Bill. This second letter intends to provide a request for specific changes, just in time before you might move forward with this bill tomorrow.

First of all, I would like to thank you for last week’s public meetings and the invite of several witnesses who exposed their opinions in matters of Bill C-70. Due to the volume of information shared in a short period of time, I am sure that it is difficult both for the public and for you too to process and implementing it. Nevertheless, I am convinced that you acted trying to protect the interest of Canada and Canadians in the best way, and the velocity of the events involved is part of your honourable goals.

I have the impression that when it comes to intelligence matters, there is a contradiction that needs to be balanced. Intelligence officers and supporters would push to not talking about the issues or talking rapidly and shortly. On the other hand, democracy means public participation, civil engagement, transparency, and open discussions. Both, intelligence supporters and democratic supporters, might refer to themselves as “patriots” or acting to protect the “common good” of the country. And they might be both right at the same time, even while the two approaches seem to be mutually exclusive.

Your role in this context is very challenging. So, I respect your work for this reason. Nevertheless, I hope that you might find a proper balance on a matter that already passed multiple steps before you at fast speed.

2 On June 6, 2024, an open letter to the House of Commons’ Standing Committee on Public Safety and National Security signed by several organizations observed: “A rushed process for a bill of such scope will undermine the ability to hold a full and meaningful study of the bill, risking the adoption of laws that will violate the Charter -protected rights and freedoms of people in Canada”. The letter was signed by the English Canadian

section of Amnesty International, the British Columbia Civil Liberties Association, the Canadian Association of University Teachers, the Canadian Civil Liberties Association, the Canadian Federation of Students, the Centre for Free Expression, the International Civil Liberties Monitoring Group, the Ligue des droits et libertés, OpenMedia and others. You heard in person the representative of the Canadian Civil Liberties Association on June 10 and the representatives of the Canadian

section for the International Civil Liberties Monitoring Group on June 13. The national coordinator for this last association on behalf of 46 other Canadian organizations, Mr. Tim McSorley, told you clearly: “Bill C -70 is a very consequential bill, that deals with crucial issues that are important to the protection and promotion of democracy and democratic rights in Canada. It has the potential to uphold those rights, but also contains very clear areas where those rights may or will be undermined”. For sure you are aware of the

Preamble of the Canadian Security Intelligence Service Act , which stands: “Whereas it is essential, to discharge that responsibility, for Canada to have a civilian intelligence service; “Whereas it is important that the civilian intelligence service perform its duties and functions in accordance with the rule of law and in a manner that respects the Canadian Charter of Rights and Freedoms; “And

whereas the Government of Canada, by carrying out its national security and information activities in a manner that respects rights and freedoms, encourages the international community to do the same”. It is not a coincidence that the

Preamble of this Act ruling the civil intelligence activity in Canada, imposes the respect to the Canadian Charter of Rights and Freedoms. It is because secret activity tends to violate rights and freedoms, those violations might be unknown because of the secrecy involving intelligence operations, so safeguards must be imposed with deep care. In his June 13 oral exposition, Mr.

McSorle answered the question of the Honourable Senator David Richards about the possibility that Bill C-70 is declared unconstitutional by the Courts, in the following way: “It’s too early to say whatever or not it will be any Court’s challenge to this bill. I think, we would be in a situation where an individual or a community would have been impacted by aspects of this bill in order to be able to understand how it could be challenged. And in that sense, a court’s challenge wouldn’t hold the passage of this bill.

It may lead (…) to changes to the legislation or recommendations rather to Parliament by the courts, in terms of what aspects of the bill are constitutional or infringe of the Charter [of Rights and Freedoms of Canada]. Unfortunately, we were concerned that that would only come after an individual or community is impacted”.

As anticipated on my first letter of June 11, 2024, I have a Federal Court’s file open against the Canadian Security Intelligence Service to investigate about the possibility of wrongdoing or errors in my personal information (file T-547-24), leading to a potential negative impact in my profession, my privacy, my finances and my whole life for around 15 years. On June 4, I submitted my last document to the Federal Court to reject a request of privacy and ex parte

3 provisions (actions in my absence) by the Canadian Attorney General on this file. On June 6, Bill C-70 had its first reading in the House of Commons. This bill, if adopted as it is, would have an impact on what the Federal Courts would be able to investigate about a potential wrongdoing or offence of the Canadian Security Intelligence Service, in the context of access to information requests for this file. If the first

interpretations are correct, the Federal Courts would be unable to access to the informat ion to investigate errors, wrongdoing or potential offences against the Canadian Charter of Rights and Freedoms (sections 7 and 8 fundamentally) without the Attorney General’s approval, who is acting in this case as the defender of the Canadian Security Intelligence Service at the Court. As a result of this

interpretation, the Parliament might adopt Bill C-70 in the fastest way a bill was adopted in the last decades, but it might be challenged as unconstitutional in the fastest period of time as well. And I would hold the honour to make sure this might take place for the protection of my rights and freedoms and the ones of all the Canadians as well. But like me, there might be other Canadians or people that feel negatively impacted by some provisions of Bill C-70, and nobody knows the way yet, because the bill could not be analyzed in a deeper manner. I am not a lawyer.

But in the last years I had to study several provisions of the Canadian laws in order to investigate the tragic path of my professional development in Canada (including the federal court’s files T-1944-22, T-2158-23, A-223-23 and T-547-24), and I arrived to the conclusion that subsection 83(4) (Single Judge), sections 38.21 (Notice to Attorney General of Canada and others) and 38.22 (Disclosure prohibited and others) of Bill C-70 are the most problematic, regarding a Court’s independent investigation of wrongdoing by a government agency, particularly an intelligence agency.

I suggest to completely erase these sections and subsections, or to add an exception that would exclude their application when a court is investigating a potential wrongdoing or offence eventually committed by a Canadian agency, during a request of access to information or personal information of a party involved in the Court’s case. The amendments would be as underlined: 38.21(5) Exception

(5) This

section does not apply when (

a) the information is disclosed by a person to their lawyer in connection with a federal proceeding, if the information is relevant to that proceeding; (

b) the information is disclosed to enable the Attorney General of Canada, special counsel, a judge, or a court hearing an appeal from an order of the judge, to exercise their powers and perform their duties and functions under this

section and sections 38.22 to 38.41 and 38.43; or (

c) disclosure of the information is authorized by the government institution in which or for which the information was produced or, if the information was not produced in or for a government institution, the government institution in which it was first received. (

d) the information is used only inside the court, by the judge(

s) and the parties, in order to take a decision about records in possession of a government institution, which could reasonably indicate wrongdoing or offenses of that government institution or potential errors in the personal information of one of the parties contained in those records. [(

d) les informations sont utilisées uniquement à l'intérieur du tribunal, par le(

s) juge(

s) et les parties, afin de prendre une décision concernant les documents en possession d'une institution

4 gouvernementale, qui pourraient raisonnablement indiquer des actes répréhensibles ou des infractions de cette institution gouvernementale ou de potentiels erreurs dans les renseignements personnels de l’une des parties contenus à l’intérieur ces documents.] 38.22(2) Exception

(2) Disclosure of the information or the facts referred to in subsection (1) is not prohibited if: (

a) the Attorney General of Canada authorizes the disclosure in writing under

section 38.23 or by agreement under

section 38.24 or subsection 38.25(6); or (

b) a judge authorizes the disclosure under subsection 38.26(1) or (2) or a court hearing an appeal from the order of the judge authorizes the disclosure, and either the time provided to appeal the order or the appeal court’s judgment has expired or no further appeal is available. (

c) the information is used only inside the court, by the judge(

s) and the parties, in order to take a decision about records in possession of a government institution, which could reasonably indicate possible wrongdoing or offenses of that government institution or potential errors in the personal information of one of the parties contained in those records. [(

c) les informations sont utilisées uniquement à l'intérieur du tribunal, par le(

s) juge(

s) et les parties, afin de prendre une décision concernant les documents en possession d'une institution gouvernementale, qui pourraient raisonnablement indiquer des actes répréhensibles ou des infractions de cette institution gouvernementale ou de potentiels erreurs dans les renseignements personnels de l’une des parties contenus à l’intérieur de ces documents.] In relation to subsection 83(4) (Single Judge), I am not aware of any reasonable argument for reducing the number of judges from 3 to 1 in the analyse of a file at the Federal Court of Appeals. More than one judge (in this case 3) guarantees that the decisions are taken with more diversity of points of views, different

interpretations and, most important, the decisions cannot be easily influenced by actions of any parties or actors or simulations by any source, including the Canadian Security Intelligence Service or other intelligence services. Therefore, I suggest eliminating subsection 83(4) completely. 83(4) Single judge

(4) Despite

section 16 of the Federal Courts Act, for the purposes of the application, the Federal Court of Appeal consists of a single judge of that Court. [83(4) Juge seul

(4) Malgré l’article 16 de la

Loi sur les Cours fédérales, la Cour d’appel fédérale est constituée d’un seul juge de ce tribunal pour l’étude de la demande.] The lack of time jeopardizes the possibility to make verifications to determine if these changes would be enough to guarantee the advance of investigations against government institutions who might use personal information with errors or might have incurred in offences. But this is what I can humbly observe for the moment as problematic in Bill C -70, and it could lead to a court’s challenge on constitutionality from my immediate actions.

Any systematic actions of an intelligence government agency based on erratic personal information, might lead to abuses of the Canadian Charter of Rights and Freedoms, as per the warnings in the

Preamble of the Canadian Security Intelligence Service Act indicate. For these reasons I believe that the members of this Committee should be very careful in making all the necessary consultations to Civil Liberties organizations, to fulfill the democratic

5 principles, before rushing to fulfill the intelligence supporters requesting no to talk about the bill and past it fast. For example, the society might see with great appreciation if the honourable members of parliament and senators decide to take away additional weeks from their summer break to serve Canadians with more transparency and intensive work, to safeguard fundamen tal Rights and Freedoms that might be incidentally undermined in a rush to pass a bill of this nature this week. I hope that this honourable Committee does not misunderstand my intentions.

I am sure that the Canadian intelligence agencies had taken successful actions to protect Canadians from internal and external risks or security threats in the past. And the Citizens we should be thankful for that. Probably, due to your permanent exposition to these matters, you are much well informed of the successful intelligence operations that have taken place in Canada in these four decades than simple Citizens. I also keep an important appreciation for the government offices making verifications for keeping intelligence quality controls.

Nevertheless, it is also important that a democratic country like Canada can keep the autonomy and action independency of Courts, to act as the last resource for its Citizens to raise and investigate complaints in any matter. While I also hold a profound respect for the Intelligence Commissioner and former judge, the Honourable Simon Noël, I respectfully disagree with his conclusion: “This bill is not perfect. But it’s better than nothing”. A utilitarian approach to fundamental rights and freedoms is dangerous.

The Bill C-70 as it is, might resolve certain issues of intimidation by foreign influence to a larger range of Canadians and particular communities, but it also might take away fundamental rights and freedoms from a minority of people who cannot raise alarms, do not have voice or even ignore the sources of their unjustified agonies or suffering.

In my particular case, I am certainly that with or without Bill C -70 in place, I did not commit any crime and I do not have the intention to do so, but at the moment all the institutional controls might have failed, including potentially those of the Office of the Intelligence Commissioner.

I highlight that the Courts are the last resource where Canadians can go to resolve their concerns, and the Courts must keep their independence to act and investigate freely in any case, no matter how big the embarrassment for Canada or its “internationa l relations” any case of long-term unconstitutional harassment could imply. I respectfully remind this Committee that the Canadian Security Intelligence Service has previously broken the laws, as Mr.

Tim McSorley referred in this June 13 presentation, in relation to collection of digital information: “We recognize that technology changes and that laws need to be adapted to those technologies. We were concerned with the datasets when they were originally introduced in 2017 and brought into force in 2019, because it allowed to the collection of non-threat information and both collection of information. There was a clear decision at that time that within five years there should be reviewed how that regime works.

During that time we found that CSIS instead of going back to parliamentarians to tell ‘we need this change earlier, we need the review to happen, we need new legislation’, they instead broke that laws that governs the dataset regime in order to (…) have the flexibility that they believed they required”. This happened too after a decade (2006 -2016) the Canadian Security Intelligence Service illegally stocked metadata of Canadians that were not a threat to National Security, until the Courts ordered this to stop (former judge Simon Noël took the decision).

6 The Canadian Security Intelligence Service received several complaints too from employees and former employees for harassment of visible minorities at workplace, which concluded with a millionaire non-disclosure agreement in the past, and recently the Canadian Security Intelligence Service received more than 20 complaints of harassment and rape from several employees allegedly conducted by senior officials, as documented in my Court’s file T-547- 24.

If the non-justified harassments happen with their own emp loyees, what could expect innocent Canadian Citizens who are just critics of secrecy and lack of transparency in the state’s actions? For these reasons, the Federal Court’s ability to independently investigate government’s wrongdoing or erroneous personal information of Canadians in possession of government agencies, including intelligence agencies, must remain in place, or they should i ncrease.

Citizens who observe wrongdoing and can provide reasonable argumentation and indications of offenses, must have the right to take the government agency to Court for it to decide on the matter (while guarantying the confidentiality into the Court i f necessary). Any government agency’s immunity that could come with this Bill C-70 must be rejected and reassessed for the protection of sections 7 (freedom) and 8 (unreasonable searches or seizures ) of the Canadian Charter of Rights and Freedoms.

To conclude this letter, I truly thank this Committee for this opportunity to address these lines, in the hope they are welcome or useful. In particular, I thank the Honourable Senator Jean-Guy Dagenais, vice-chair of this Committee, who proposed to me to meet electronically with him on June 19 for some minutes. In spite I believe it might be too late to communicate this follow- up of concerns, they are summarized in here for you to decide in the best interests of Canada.

Sincerely, Darío César Luzuriaga Sorribes (B.Eng, B.A., Ph.D.) Copy to : Tony.Dean@sen.parl.gc.ca; jean-guy.dagenais@sen.parl.gc.ca; MargaretDawn.Anderson@sen.parl.gc.ca; Peter.Boehm@sen.parl.gc.ca; Andrew.Cardozo@sen.parl.gc.ca; claude.carignan@sen.parl.gc.ca; Marty.Deacon@sen.parl.gc.ca; Stanley.Kutcher@sen.parl.gc.ca; Rebecca.Patterson@sen.parl.gc.ca; David.Richards@sen.parl.gc.ca; YuenPau.Woo@sen.parl.gc.ca; H.Yussuff@sen.parl.gc.ca