NDP-27 seeks to remove any and all references to “active cyber operations”. I'm going to explain my motivation and reasoning for this.
Obviously, Bill is a response to a Liberal campaign promise, and something that the Liberals made hay of in the last Parliament, about supporting the then Conservative Bill in exchange for the promise that the most egregious elements would be fixed.
Now—and we'll get to some of those elements later—I don't believe the bill achieves that objective. That being said, in the consultations that both this committee and the minister did, and the debate on Bill in the previous Parliament, CSE was obviously never part of it, being enacted by the National Defence Act, which is something not normally dealt with by this committee. I understand that with the new cybersecurity reality and the different issues that we face on a day-to-day basis, that's become something that's necessary.
However, given that it hasn't really been part of the consultations, and as you know, Chair, you acknowledged that CSE took on a life of its own as part of this study. With all due respect to our colleagues here from CSE, that is very new. The committee didn't necessarily, as far as I'm concerned, have the institutional memory to appropriately address all those elements in this omnibus legislation. Several witnesses even made the comment saying that the remarks would have to be limited to one part of the bill given its size and scope.
For that reason, notwithstanding a position I may or may not take in the future on active cyber operations, we have just not had adequate reassurance as to the purpose of this nor have we had the chance to properly study it. I would welcome it as a stand-alone piece of legislation. In the meantime, while it's important to have the defensive capabilities, the active capabilities are a slippery slope that I don't believe this committee or parliamentarians are yet ready to be engaged on.
I move this amendment to remove that aspect from the bill.
Good morning, Mr. Chair. Thank you.
In my view, this amendment is contrary to the fundamental goal of Bill , which is essentially to give our security agencies the tools they need to protect Canada and Canadians while respecting our rights and freedoms.
The amendment seems to achieve two things. It retains CSE's active cyber operations mandate under proposed section 20, but it then removes the ability of the minister to issue authorizations that would allow the CSE to undertake activities in this regard that would otherwise contravene an act of Parliament or any foreign state.
The authority to conduct active cyber operations is needed to support strategic objectives that go outside of a military or domestic threat context. The deletion of these sections as proposed in the amendment would limit Canada's options to respond to threats. It should also be noted that the authorities under the proposed bill would only take place within very strict legal parameters and approvals at the highest level of government.
I think it's important. Mr. Spengemann spoke of the purpose of Bill . As I said, this stems from a discussion that was long overdue about fixing the most egregious elements of the former Bill , and in none of the consultations were we engaged properly on the cybersecurity aspect.
To Mr. Motz's point, that's exactly why I'm not seeking to remove the defensive capabilities with any amendment. This is the notion of active cyber operations.
The committee will recall that I asked several questions, including to the , related to this notion of what, in this digital age, represents an attack on a foreign actor or sovereignty. How will the capability sharing in this bill between the armed forces and CSE, a civilian organization, be taking place?
It's even more problematic to me in the context that we have a budget that's announced a creation of a cybersecurity centre. The has promised legislation to that effect in the fall. In that context, I think it's even more important to have a proper study of these elements that are far from leading to unanimity. I believe more studies are required.
As I said, with this amendment, I am not discounting the urgency of having measures in place to protect our cybersecurity to address these threats, nor am I inclined to say that we should never have any active capabilities. Given the way in which the committee and the ministry were engaged in the public consultations and the way the debate has evolved on this particular issue, starting in the last Parliament with Bill , I don't believe we're properly equipped as parliamentarians to be offering this kind of new power with so many unanswered questions.
As I said, the amendment goes along with the statement that I believe it should have been a separate piece of legislation to begin with.
I can assure you that it might actually go that way. Anyway, I digress.
Mr. Chair, in the discussion we had when the appeared before the committee, I and a number of my colleagues asked the question as to why we would codify. There are several examples of previous amendments where the justification was used that we shouldn't codify normal practices because it limits flexibility. I want to make a similar argument now. Why would we codify here that there is a mandatory requirement for the Minister of National Defence to consult with the Minister of Foreign Affairs, when the minister said that as members of cabinet, they do this on an ongoing basis?
When it comes to cybersecurity and the cyber-attacks, where the jurisdiction ultimately falls with the Minister of National Defence, having the minister become almost seemingly a junior minister to the Minister of Foreign Affairs might not be in the best interests or provide the flexibility that might be required.
We're using this amendment to withdraw those references on the assumption that the Minister of National Defence would always be in consultation with cabinet colleagues and have the ability to consult with either the Prime Minister or other cabinet ministers as may be appropriate. We don't even know if it would always be the Minister of Foreign Affairs who would need to be consulted. Threats change and evolve. We used to be worried about symmetric threats or nation threats. Now we're worried about asymmetric threats. We don't know where the future is going, what the nature of the threats might be, and which ministers might be involved in consulting with the Minister of National Defence.
I'm hoping level heads will prevail here and we wouldn't inadvertently handcuff the Minister of National Defence in any way, shape, or form.
In an asymmetric threat perspective, the RCMP and the Minister of Public Safety ought to have the same kind of consultative process. I don't see them included in this legislation. I suppose we can ask the officials for their opinions on whether the changes that are being proposed or the amendments would be beneficial or not beneficial. I don't think anybody here has a crystal ball, but the argument that this is the kind of expected inclusiveness....
Just yesterday, the Liberal members of this committee voted down several amendments that would require reports by the commissioner to be tabled before Parliament, so I'm not buying the inclusiveness and the transparency arguments for this. This should be about good governance. This is very important stuff. This is about as serious as it gets, and if we don't have the legislation right, there could be serious consequences, ramifications for our Canadian economy, our defence systems, and virtually all aspects of Canadian life, which are, as you know, Mr. Chair, readily available and online.
Can our officials weigh in on this?
I'm required under the terms of your motion to be here to speak to my amendments, but since Pam has opened the door on the fact that these three are similar, we could talk about them as a cluster. I appreciate the chance to speak to that.
I'm really pleased—and I've seen this over and over in this committee—with the extent to which Liberal members have been listening to experts. With all due respect, I would never describe Professor Forcese as a stakeholder, but as one of the pre-eminent security and anti-terrorism law experts in Canada, he certainly played a very important role when the 41st Parliament was going through Bill . He and Kent Roach both were involved in the Air India inquiry and have a lot of legal expertise. You've captured it quite well, Pam, but I want to go back to his evidence.
With all due respect to our experts here from the department, as he describes it, there's a technical problem, “the inevitability of incidental acquisition of Canadian information.” That's what we're looking at. We know that in CSE's access, it's only supposed to be looking at collecting foreign information. It's not supposed to be looking at Canadians at all, but when you're collecting metadata you just don't know. It's inevitable, as Professor Forcese says, that you will incidentally end up with Canadian information, so how do we protect Canadians from significant violations of our right to privacy and of section 8 of the charter?
I'm pleased with the language in LIB-30. I know the language in Matthew Dubé's and my amendments is stronger and covers off more of the possibilities, but certainly the legislation is stronger once any one of these three motions is accepted by the committee. That's my only comment on it. When we went through it with the drafters, we looked at the testimony from Craig Forcese and from Amnesty International and Alex Neve, and tried to satisfy the drafters and draft as closely as possible to the recommendation we had from those experts.
That's all I have at this point, Mr. Chair. Thank you for the time.
I appreciate the points that have been made, but I would disagree that LIB-30 is the one that best encapsulates this for the simple reason that LIB-30 makes it very specific by saying, “or involve the acquisition by the Establishment of information from or through the global information infrastructure that interferes with the reasonable expectation of privacy”. On the other hand, my amendment and the Green Party amendment from Ms. May both say, “the acquisition of information in respect of which there is a reasonable expectation of privacy”.
The wording is not exactly identical, but suffice it to say that they do not limit it to information acquired from the global information infrastructure. I don't know why we would want to limit the types of information that are covered by this protection. As far as I'm concerned, a Canadian's information, where there is a reasonable expectation of privacy, should be all that information and not just information acquired in that way.
Moreover, given that we've heard numerous times both from the experts who are here and from members across the way that more specificity is not always good because it's the spirit and all these types of things, I don't know why we would suddenly be engaging in specificity if not to create loopholes that can be problematic for Canadians' rights and privacy.
In my amendment—and I know we've already opened the door to comparing amendments—unlike the LIB-30 amendment, I have language that looks at where there is the objective of “the acquisition of information in respect of which there is a reasonable expectation of privacy”. That language is crafted to be as close as possible to what Professor Forcese had recommended, which was the word “involve”. The drafters didn't feel that “involve” was a term that would work in the legislation to guide the application of a law on metadata. We're certainly moving beyond the narrow language that we currently have, which is if something violates an act of Parliament. There is a recognition in all three amendments that we need to go further to encapsulate and protect against the collection of information that was foreseeable but incidental.
I spoke to my amendment before, so I won't go on about it. I think my amendment is so close to the excellent amendment from Mr. Dubé that inexplicably just went down in defeat that I have no great hopes at this point for my amendment, but I submit it to you, eternally hopeful.
It's unfortunate not to hear the rationale of the government members—not technically government members, in the committee context, but Liberal members—for voting against some of these amendments.
At any rate, amendment 30 seeks to remove the word “disclosing”. As I mentioned yesterday in another context of the debate, disclosure is the new wording that's used as part of the information-sharing regime that was brought in during the last Parliament under Bill .
This is a suggestion that the Citizen Lab made to ensure that the information that CSE is collecting in the context of any research it's doing under proposed section 24.... By removing “disclosing” we're limiting the risk that the information that's been collected in that context can be shared with other agencies. If the stated goal is to really be studying the information infrastructure in Canada and to be conducting that type of research, then this way we'll be limiting the potential sharing of information where profiles might have been created, even if inadvertently, of Canadians.
This amendment seeks to clarify the activities that the CSE may undertake. In light of information leaks by Edward Snowden, in particular, we have seen that such tests can cause problems in computer systems.
This amendment seeks to ensure that these tests will be done with the knowledge of the people concerned, even though this is certainly already common practice, which I hope. This would impose the legal obligation to obtain the consent, for example, of a telecommunications company or any person who could be targeted by a system, software or component of the IT infrastructure. This would minimize the impact of any potential problems during these tests that could be detrimental to a Canadian using the same infrastructure.
In the same vein, we must realize that paragraph 33(1)(d) suggested by my colleague has already been approved in the context of amendment LIB-16, which contains measures against torture.
With respect to paragraph 33(1)(c), unless the experts can confirm otherwise, I have difficulty in seeing how the physical and sexual integrity of an individual can be achieved when a telephone communication is intercepted. This situation does not affect the physical aspect of people.
I would point out that subclause 35(1) deals with the reasonableness of the measures to be taken and the fact that it would prevent that kind of activity. I would also point out that the entire bill is subject to the Canadian Charter of Rights and Freedoms. It is therefore not conceivable to put these provisions into effect.
For those reasons, I will oppose the amendment.
Although I supported and appreciated amendment LIB-16, I think the bill still needs many clarifications regarding the use of information acquired through torture. I hope that, on the pretext that an amendment that talks about departmental directives will inevitably become the law, we won't feel obligated any longer to include in an amendment explicit provisions such as the following, which seeks to prohibit “subjecting an individual to torture or cruel, inhuman or degrading treatment or punishment, within the meaning of the Convention Against Torture”.
I hope this won't be used as a way out every time such wording is proposed. In the case of such an important issue, I think there is a huge difference between departmental directives and the fact that these provisions are specifically expressed in the legislation.
We can see that extensions of the validity period don't need to be reviewed by the commissioner. Several groups, witnesses and experts have told us that, on the contrary, this should be the case.
There is the International Civil Liberties Monitoring Group, Professor Wesley Wark, Commissioner Jean-Pierre Plouffe, the Canadian Civil Liberties Association, and so on.
I think that's entirely appropriate, especially since the amendment to reduce authorizations to six months instead of a year has been negatived. This means that, if there is an extension, it will go more than a year without review by the commissioner.
This amendment is appropriate, and it responds to what the experts proposed.
If the effect of my amendment was as expressed by Sven, then I wouldn't be in favour of my amendment, either.
By deleting this section there is no requirement that before an emergency order can be put in place the intelligence commissioner has to weigh in. By removing the specific exemption from any review we create the opportunity to do what they do in the U.K., which is to look at it after the fact. The minister can make an emergency order. The intelligence commissioner can look at it and decide, should this emergency order continue? Was this a mistake?
As a matter of fact, our Communications Security Establishment Commissioner also suggested in his testimony that a review within five days might be appropriate. We're leaving open the door here, not requiring that the intelligence commissioner sign off before the minister can take action in an emergency. We're leaving open the door to the possibility that there be an ex-post review sometime after the emergency order. The emergency order might be something that we need to reflect upon and decide whether we can halt that action now, or whether it was appropriately taken.
By deleting the provision that exempts the decision from any review, we leave open the possibility that it will be reviewed after the fact.
I don't want to repeat the great points that were just made my colleague, but this is indeed the point, understanding that national security does require quick action, at times, in emergency situations. The fact that the commissioner would be reviewing and not authorizing gives that nimbleness, if I may, to the minister in the types of situations that are being alluded to in this section of the bill. Again, if we want to talk about how we're listening to the experts and such, this is something that was raised repeatedly and is not something that would infringe in any way on the minister's ability to authorize, in emergencies, certain actions. This would simply make it reviewable after the fact, and I think, for the rest, Ms. May put it quite succinctly and appropriately.
Mr. Chair, thank you very much.
This is the amendment that will provide the completion of proposed section 44. Proposed section 44 of the proposed CSE act allows the CSE to disclose “information that could be used to identify a Canadian or a person in Canada and that has been used, analysed or retained” under a foreign intelligence ministerial authorization under proposed subsection 27(1).
What this amendment does is bring in proposed subsection 41(1) as well, which is the disclosure of Canadian identifying information obtained under an emergency ministerial authorization. Without this amendment, a situation could result in which the CSE could not disclose Canadian identifying information obtained pursuant to an emergency authorization to designated persons in the event of an emergency such as an imminent terrorist attack.
I should also add that this is a very limited five-day emergency authorization, as discussed in previous amendments, that would only be used in truly exigent circumstances and when the intelligence commissioner is incapacitated or unavailable to render an approval.
If I may, I will read parts of this amendment, which seeks to amend proposed section 55 so that CSE is prohibited from knowingly entering into arrangements with institutions of foreign states or other entities suspected of engaging in torture and require approval of the IC to do so, and so we say:
The entities referred to in subsection (1) include entities that are institutions of foreign states or that are international organizations of states or institutions of those organizations but do not include entities that subject, or are suspected by the Establishment to subject, individuals to torture or cruel, inhuman or degrading treatment or punishment, within the meaning of the Convention Against Torture
And so forth.... The other piece that's important is, “The Minister must not approve an arrangement described in subsection (2) without the approval of the Commissioner.”
This is obviously complementary to NDP-41 in a way, where again we're seeking to maximize the legal protections and legal framework around the comportment of CSE and to ensure that we're not in a situation where we might be party to other state actors or organizations whose standards for human rights are far less great than our own.
I would also ask for a recorded vote on this, as well, please.
Here's the thing. In the interest of time, I do not have the ability to read in all of LIB-16. I'm not going to make us listen to it all, but I want to underline that we are going toward the same objectives here.
The reason we have adopted LIB-16 was to deal with the specific issue of torture and mistreatment, and I'll read the definition of mistreatment as it is incorporated within the act so there is no misunderstanding. Mistreatment under LIB-16 means:
torture or other cruel, inhuman or degrading treatment or punishment, within the meaning of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, signed at New York on December 10, 1984.
Mistreatment includes all of what's in LIB-16, which is that act. I want to make sure there's no misunderstanding. We have previously adopted an amendment that deals specifically with these issues and covers this ground, so I wouldn't want it to be misunderstood.
In addition, there's a question of the intelligence commissioner's role, which is to review authorizations but it's not to be reviewing CSE's arrangements with other entities, so there's a question of whether this even oversteps what we would see as the intelligence commissioner's role in this.
I move that Bill , in clause 76, be amended by adding after line 35 on page 79 the following:
60.1 (1) Within the first four months after the commencement of each fiscal year, the Establishment must submit to the Minister a report on the administrative costs of meeting the requirements imposed on the Establishment under the National Security and Intelligence Review Agency Act and the National Security and Intelligence Committee of Parliamentarians Act for the preceding fiscal year.
(2) The Minister shall, within 15 days after a report is submitted under subsection (1), publish the report on its Internet site.
This was really brought forward to address issues raised by a number of national security experts with regard to, basically, a budget cut to our national security agencies. Under Bill , the new reporting requirements, without new funding, effectively means a funding cut for CSIS and CSE, and could actually put Canadians at risk during heightened security threats.
With regard to Dr. Leuprecht, Mr. Boisvert, as well as Mr. Fadden, and based on other conversations that my office has had, I would propose that CSE and CSIS provide to Parliament through the minister—which is what this talks about—an actual accounting of the administrative costs with compliance, to ensure that we are informed as to how much the government has cut from national security.
Thank you very much, Mr. Chair.
I am pleased to be here, dear colleagues. You work very hard in this committee. The bill you are studying is quite extensive and a number of amendments have been proposed, all in a spirit of goodwill. For someone who is beginning, I admit that it's quite difficult to dive into this all at once.
I'm a little surprised by the answer from my colleague on the importance of knowing how much the amendments and this new oversight mechanism will cost.
Ms. Dabrusin, if as you just said, it won't cost anything, we will have the opportunity to see that in the first report and to see the importance of the numbers. It's perfectly legitimate to add that to the act. We'll see how these new measures will affect the budget.
We want to improve national security, but it's important not to do the opposite by devoting the money that could be used to protect us from these threats to the surveillance of people who are working so that we don't face various threats. So I'm very much in favour of the amendment introduced by my colleague Mr. Motz.
I sincerely invite the Liberals to reconsider their thoughts on this amendment because it is legitimate and perfectly relevant when we are changing so much in a national security bill.
Mr. Chair, I find it dangerous and in bad faith to call the accountability and review requirements an administrative burden. In my opinion, it is instead a burden that comes under our national security. We always say that we must also protect the rights and freedoms of Canadians, and it is in that context that these mechanisms are imposed.
Since I have been a member of this committee, I have noticed that the representatives of the various agencies are always ready to have their activities subjected to more scrutiny. Obviously, we can't expect them to say anything other than that. This is the exercise to regain public confidence, which has been much undermined in recent years.
This amendment worries me. We don't do the opposite, meaning that we don't ask to understand the financial burden imposed on the review agency because of a lack of cooperation from the other side.
We need to be consistent. I think this amendment paves the way for a potential witch hunt, where we look for ways to undermine the credibility of these agencies. I find this extremely problematic, dangerous even. I won't support this amendment.
First of all, I would like to say that I absolutely agree with what Mr. Dubé said. He expressed it well.
I'm not going to add to that, but I think it's a little bit rich for the Conservatives to be very concerned about making sure that the funding is available right now, when in their last mandate, they cut about $1 billion from our security agencies. Let's put that straightforward and down. In fact, under this government, in this Parliament, we have been putting money back in, so it's a bit rich to be taking that position at this point. However, I'm also concerned about having NSIRA well-positioned there, which was one of the most important parts of this act for me, yet as Mr. Dubé points out, this seems to be setting up some framework for undermining their work.
Thank you very much, Mr. Chair.
I think this amendment is very simple and very easy to understand. When new measures or provisions are put into effect, it's important to know what costs and what repercussions are involved. I don't really understand my colleague's position on this. In recent days, I have heard that border measures have been reduced and slashed everywhere. I must remember that we haven't created problems everywhere, at the borders. If the needs are so serious today, it means that you should perhaps look at your Prime Minister's statements on Twitter. The needs might not be so big.
I know it's not the same issue. I don't mind going back to the past, but you have created different situations that, of course, require different obligations. That's what we are facing now. The act is amended, new measures are adopted, and we want to know how much it will cost. I think it's perfectly legitimate, and Canadians expect this level of transparency. If I remember correctly, you talked about an open and transparent government in your election platform.
This is a transparency measure that is absolutely necessary. Again, I say that I will support my colleague's amendment.
Thank you, Chair. Hopefully, you've given me some good luck to work on here with your comments.
My amendment seeks to remove proposed paragraph 61(c) on page 80, which says:
amending the definition of any term defined in section 2 or subsection 24(5) or 45(3) to respond, directly or indirectly, to any technological change.
I should add that's in the context of regulations. Regulatory power is always a funny thing when we have these debates. It has its place. It can be particularly frustrating, at times, for opposition MPs. We don't necessarily like to see things being put into regulation, although we understand the need for it at times.
However, we have heard numerous times throughout this study that the definitions are already designed in a way to be as nimble as possible with regard to things like technological change. I think that kind of change is far too substantive for it to simply be left up to regulation. I think that—“respond, directly or indirectly, to any technological change”—is crazy, as far as I'm concerned, with all due respect, and apologies for my choice of words.
It could be a very slippery slope. I think that type of change should be one that is legislative and voted on by parliamentarians. We've heard enough testimony from officials, and from experts, and from all sides of this debate, agreeing that if there's one thing that's close to a consensus from folks on both sides of this debate, it's that the definitions are relatively good when they come to addressing the needs of this. I don't think it's appropriate to have it as a regulatory change. I move to remove that proposed paragraph.
Yes, these two amendments are absolutely identical. Just to expand upon the comments of my NDP colleague, the government has asked Parliament to basically hand over its role to cabinet, in what has traditionally been called the Henry VIII amendment or clause. It takes from Old English that when in a time of crisis, the government takes power over everything. Parliament is and remains the appropriate vetting for any changes to legislation.
We've heard it was written to allow cabinet to make changes quickly. I understand the need to be nimble in this legislation. However, I don't think, as I raised with the minister when he was here, that the purpose of regulations.... Perhaps it's worth discussing what regulations are needed instead of this clause, but we should never be handing over authority to cabinet for what Parliament is responsible for. To be frank, cabinet should never be asking Parliament to do that, to be honest with you. I have a huge problem with this particular clause.
Just to work on the good graces of my Liberal colleagues, they have noticed, probably, we've been very supportive of a number of theirs, and probably will be of a number of theirs coming up. I think this is a reasonable exchange, with the understanding that it could easily still accomplish the goals of Bill on being nimble when nimbleness is required, yet not take the power or the responsibility away from Parliament and leaving it solely up to cabinet.
Notwithstanding the comments that were just made by Mr. Motz, I do find it very odd that this proposed paragraph is here, given the fact that proposed section 2 doesn't seem to have any reference in its definitions to “information technology”. Proposed subsection 24(5) does. I'm just trying to work my way down to proposed subsection 45(3).
My question to my colleagues across the way is, do you actually want to give the regulatory authority to cabinet to change the definition of the act through regulations? I think it seems, actually, incoherent in the nature of how law is supposed to work. Regulations should only have the authorities granted in them that are granted within the act.
If we're asking for this particular proposed paragraph to be in here, somebody somewhere thought that this was a good idea. Otherwise, it wouldn't be here. If we're drafting legislation to deal with, basically, cybersecurity, which is largely in the realm of information technology.... When I was the chair of the Standing Committee on Access to Information, Privacy and Ethics and all of that type of stuff, we would try to draft technologically neutral legislation. I'm guessing there's somebody somewhere thinking that maybe the legislation is not technologically neutral enough in its definitions that this would need to happen.
This is my question to the officials. Is this something that would not be covered or be exempted in an emergency, one of those emergency situations we referred to earlier? Why is this necessary? It just seems counterproductive to the democratic process and I'm a little worried about the precedent it sets.
Not to fuel any cynicism, but I think it's fair to say there's a big difference between a publicly available change to regulation and a debate on legislation. I think Mr. Calkins explained it well with regard to being technologically neutral. However, I'm also looking at something like the Justice Noël decision from 2016 where you have CSIS gathering bulk metadata. Metadata is a concept that was fixed in this legislation. Would that be considered a technological change, directly or indirectly?
I ask that question rhetorically because I think everyone agrees on this. Every piece of legislation has something built in for regulatory changes. There's a reason for that, as Mr. Motz explained, but at the end of the day there's the reasonableness of it. I think this is so vast.
It's funny how hearing Mr. Spengemann's intervention makes me even happier to have this amendment. With things like AI coming forward, I certainly don't want the ability of national security agencies to operate with that rapidly changing technology to be subject to the whims of regulatory change. Let's not forget that the person ultimately making the regulatory change is the minister, who, while he gets good advice, is at the end of the day a political actor.
There are grave concerns about this. In this study and our framework review, the tone, the narrative, and certain ideas we were dealing with changed on the fly because of things we were learning on the go. If we can't even get through a study of a bill without being faced with these kinds of changes, then I don't see how we can give this all-encompassing term and then leave it for decades to come. I think that's irresponsible and dangerous.
If we're envisioning it being taken on at the judiciary, then that's a legal question, not a regulatory one. That is an acknowledgement that it would require legislative changes.
Look at the situation with cellphones at the border. The access to information and ethics committee studied that issue. One consensus there is the notion of the suitcase. You have a reasonable expectation of giving up your privacy at the border, but that has changed in the advent of cellphones. As Ms. May and I pointed out yesterday in debating the definition of “publicly available information”, right now the courts are trying to sort out that notion. There have been several cases of people being asked to unlock their cellphones at the border.
I think this is relevant to the issue before us, this amendment, because at the end of the day, the solution to that issue is legislation, just as it would be with this bill. I don't want the minister deciding through regulation whether or not CBSA...and the same issue on the other side. I don't want the president—he has anyway but that's another discussion—signing executive orders that allow the searching of cellphones. That kind of purview should be in the hands of lawmakers and parliamentarians, and not decided through regulation.
I would say to Mr. Spengemann's point that, despite the expertise around ministers, it has been known to happen in the history of this country and other places that they don't always listen to those people around them. At the end of the day, they have political considerations to account for as well.
This is too much of a slippery slope and I think there are a multitude of examples that illustrate that.
Is there any further debate?
I remind colleagues that if NDP-44 is adopted, CPC-22 cannot be moved, and the corollary is that if NDP-44 is defeated so is CPC-22.
We'll have a recorded vote.
(Amendment negatived: nays 5; yeas 4)
(Clause 76 as amended agreed to on division)
The Chair: There are no amendments to clauses 77 to 81. May I group them for the purposes of voting?
Some hon. members: Agreed.
(Clauses 77 to 81 inclusive agreed to on division)
(On clause 82)
The Chair: We're now on clause 82. We now move to LIB-35.
Mr. Chair, thank you very much.
I may be proven otherwise, but this is probably the least controversial and least partisan amendment of the entire exercise.
Proposed subsection 82(1) is a provision that states that a reference to the former department, CSE, i.e., CSE under the National Defence Act, is deemed to be a reference to the new department, i.e. CSE under the CSE act, under all the following circumstances and it sets out some half-dozen or so incidents. This list is under-inclusive, because it could exclude, for example, orders in council and other delegated legislation.
LIB-35 adds a provision that, unless the context requires otherwise, every reference to the former department is deemed to be a reference to the new department.
Thank you, Mr. Chair.
We have no amendments to clauses 83 to 88. May I group them for the purposes of voting?
Seeing no objection to that, I'm going to proceed.
(Clauses 83 to 88 inclusive agreed to on division)
The Chair: Clause 89 was dealt with during amendment NDP-4 so that's no longer in play. Therefore, there are no amendments to clauses 89, 90, and 91.
(Clauses 89 to 91 inclusive agreed to on division)
(On clause 92)
The Chair: On clause 92, the first amendment is LIB-36.
(Amendment agreed to [See Minutes of Proceedings])
(Clause 92 as amended agreed to)
(Clauses 93 and 94 agreed to on division)
The Chair: The next amendment is NDP-45.
We will hear from you, Mr. Dubé, but before you commence, it's quarter to 12. We have an hour and 15 minutes left. I'm in the hands of the committee as to whether we want to suspend for any further or just keep going.
We should just keep on going? Mr. Calkins is ready to rock and roll here.
This amendment seeks to drop the word “lawful” from what's called “lawful advocacy” in the CSIS Act, the reason being that when there are “on the fly” determinations being made, we feel that “advocacy” protects more rights, as opposed to having CSIS make the determination of whether the advocacy is lawful.
Moreover, it also protects groups that may have certain individuals associating themselves with said groups and comporting themselves in an unlawful way. It would not have the group be targeted that way for what is lawful advocacy with perhaps individuals committing unlawful behaviour.
By removing the word “lawful” and keeping it as “advocacy”, there is a more robust rights protection. This was a recommendation by the Canadian Civil Liberties Association.
It is. It's adding the term “artistic expression” and also “by an individual or a group whose intent is to threaten the security”.
The definition of threats to the security of Canada has withstood a long history with the service. It has been in our act since its inception, and it has been well recognized and it's well understood. One of our concerns would be that if we did remove the word “lawful”, it could create a bit of ambiguity.
Also, as we know, intent is a concept in criminal law for prosecution. The purpose of CSIS is to investigate a suspected threat to determine the intent. If we had to know what the intent was before we started the investigation, we might be a bit too late in getting where we need to be to protect the national security interests of Canada.
Also, all of our activities are subject to review to ensure that we are in compliance with everything that we engage on, so it ensures that we engage appropriately in all of our investigative activities and that we've reached the appropriate threshold to suspect that there is an activity that could be detrimental to national security before we begin.
Yes, I'm okay with that, Chair. They do all deal with the same topic. At the end of the day, as much as people think that people in our profession like to hear ourselves talk, I'm okay making the point once.
Obviously, this amendment and the others you mention deal with the threat reduction powers that were given to CSIS by Bill in the previous Parliament. This is obviously one of the most controversial elements, in particular because the raison d'être of CSIS was initially to separate intelligence gathering and law enforcement from the RCMP after a number of scandals and problematic situations, which have been debated quite extensively in the different commissions that followed. This is one of the key points—which is why I'll ask for a recorded vote—on which the bill fails to correct the problems that were brought forward by the former bill, Bill C-51.
As to the powers of interference, while the purpose is clearly to protect national security through a wide range of existing mechanisms, including security certificates and police resources—or lack thereof, if I may say so—, there is a role for the police to play in that.
That is what we said in the last Parliament during debate on Bill . We said that we must give the RCMP more support so it can do its work, and increase our capacity to fight radicalization. There is a whole range of national security measures available without having to turn back the clock and give CSIS powers that go against the agency's purpose. It is an intelligence service and, with all due respect, it should not be engaged in work that, as a result of these powers, gradually becomes police work.
Seeing no further wish to debate, I'll call the question.
Before I do, I want to make sure that colleagues know what it is they're voting on. It's NDP-47. If NDP-47 is defeated, so also are NDP-48, NDP-51, NDP-54, NDP-56, NDP-57, NDP-58, NDP-59, NDP-60, NDP-61, NDP-62, NDP-63, NDP-64, and NDP-66, so also are PV-8, PV-9, PV-16, PV-17, PV-18, PV-19, PV-20, PV-21, and PV-26.
I propose—and the clerk can check if I've got this right—to deal with amendments PV-10, PV-11, PV-12, PV-13, PV-14, PV-15, PV-22 et PV-25.
I think those are all the amendments in this regard.
These amendments all speak to the same point, and I think those are all the ones that remain extant after the slaughter of Mr. Dubé's amendments. Sorry. It's a ritualized slaughter. We appreciate the effort.
I think those are the ones I could speak to all at once and, with the chair's permission, speak to the fundamental point these amendments are trying to achieve. I hope, because of the unusual nature of this process before second reading, that some of my words might reach ministers' offices as well, and that members of the committee might consider whether it isn't wise to actually have a fundamental rethink of the structure of our security intelligence legislation.
This is an important moment, as we all know. This is the most fundamental review we have had in years. It's really good legislation insofar as it sets up the national security intelligence and review agency. Having NSIRA is a big change, but in my view, Mr. Chair, it doesn't take away from the fundamental mistake that was made in Bill .
Forgive me, but having been through the hearings at Bill , I know there were witnesses this committee didn't hear talking about the risks of CSIS having kinetic powers at all. That's what I want to speak to. I will be brief.
This legislation reduces the wrongs that could be done by CSIS agents having these new powers to disrupt plots, but it doesn't deal with something quite fundamental that we grappled with in committee on Bill . It was certainly raised by witnesses and experts like Craig Forcese and John Major, former Supreme Court justice, and also in the Senate. Actually one of the most important witnesses on Bill was heard on the Senate side. His name's Joe Fogarty. He was the U.K. security liaison with Canada. He was an MI5 agent from the U.K. What he pointed to was the big risk of the RCMP and CSIS not talking to each other, and when you then give CSIS powers to actually disrupt plots, you have an accident waiting to happen, basically.
In his evidence, he referred the committee only to those things that are publicly known, but he assured the committee that, from his work as a U.K. security liaison in the Five Eyes system with Canada, there were more examples of which he could not speak. He directed us to the 2009 case of R. vs. Ahmad where, on the evidence, CSIS discovered the location of a suspected terrorist training camp within Canada and decided not to tell the RCMP.
There's another example, which was in the Canadian Press, to which Joe Fogarty also referred. In the case of Jeffrey Delisle, which we all know—the navy officer who sold secrets—apparently CSIS knew of the spying operations of Delisle for a very long time and decided not to tell the RCMP. Delisle was arrested when the RCMP was tipped off by the FBI.
There's a fundamental problem here, which John Major at the time referred to in this committee and its predecessor in the 41st Parliament. It's human nature not to want to share information, so what have we done now? I think we've compounded the problem because CSIS now has the powers to take action, but we haven't dealt with the fundamentals that it still may not want to tell the RCMP.
The situation is much improved because NSIRA can supervise what's going on. If it sees a problem, it can maybe intervene, but there still has never been a public policy rationale put forward by anyone, ever, for why CSIS needs the power to disrupt plots. CSIS was created, as Mr. Dubé referred to moments ago, in order to create a security and intelligence gathering, to give that information to the RCMP. That's the purpose. It was to separate it out, so that you wouldn't have the RCMP burning down barns and so on.
I don't see to this day why we want CSIS agents to have the capacity to disrupt plots within Canada.
The RCMP and CSIS need to work together and NSIRA needs to supervise them. All my amendments take out of our legislation the right of CSIS agents to have kinetic powers. Again, Bill improves on Bill in important ways, reducing and better balancing what CSIS agents are likely to do. I know we don't have anyone here from the RCMP on our witness roster but the RCMP job of disrupting plots will be complicated by the fact that CSIS doesn't share information with the RCMP. That's a pattern. That's our history. Things are improved in what CSIS agents can do. Thanks to Liberal amendment 16, we won't be worrying about torture, but there's still no public policy rationale for CSIS agents having these new powers to take kinetic action to disrupt plots.
I'm raising a different issue. The issue of whether we are undermining our own security intelligence operations by having different intelligence agencies tripping over each other, not talking to each other, when they're taking active steps to disrupt a plot. I'd rather have CSIS continue to do what it's always done since its creation, which is to collect the information and give it to the RCMP in a timely manner, which is what they haven't always done, so that the RCMP can arrest the Jeffrey Delisles of this world, not wait to be tipped off by the FBI or trip over CSIS agents who are trying to do the same thing.
The depth of Ms. May's concerns is entirely justified by the need to find appropriate ways for agencies to work together in order to reduce this kind of threat. That is the very spirit of Bill , which seeks to give those people the appropriate tools, to give the agencies the right to exchange information, and for all of that to be done under the supervision of a parliamentary committee, especially the exchange of information. We already have the necessary tools to do this. We are still affected by the errors of the past and fearful of the future. That is normal. Of course, there will likely be more errors. Field work being what it is, we will have other experiences.
I would now like to digress and talk about two aspects that should not be taken at face value.
In light of recent events, it would be hard for me to convince my fellow citizens that these events are ultimately not as serious as they seem, given that threat mitigation measures are to be reduced. My fellow citizens would not accept that. In order not to react emotionally to such an event, I remind myself that all operations are conducted under the very strong authority of the Canadian Charter of Rights and Freedoms. Returning to yesterday's events, I would probably not have said anything if, for instance, that person had left home with two flat tires instead of four brand new tires. In short, an unfortunate event might have been avoided.
We are not aware of what has been prevented. For CSIS— and to its great credit—, the hardest thing is not taking pride in preventing situations that we are not aware of. Its role is to protect us and its success depends on the number of events it is able to prevent, with the help of the RCMP. I think the structure of Bill addresses this kind of need on the whole.
I'd like to start by saying that CSIS and CSE are very different agencies, operating under different mandates, and the context in which the definition of “publicly available” is applied in the CSE portion of Bill is different from the context in which it's applied in the CSIS Act. Bill establishes proposed sections 11.01 to 11.25 of the CSIS Act, which is a robust framework for the service's collection, retention, and use of datasets in support of our investigations. Essentially Bill C-59 creates three types of datasets: publicly available datasets, predominantly foreign datasets, and predominantly Canadian datasets. It establishes a system of safeguards that govern their use. The safeguards are, in general, applied in consideration of the reasonable expectation of privacy of the different types of datasets. The lowest reasonable expectation of privacy is associated with publicly available datasets, so the safeguards are the lightest but they exist.
The intention of Bill within the dataset framework is to create three mutually exclusive categories of datasets. A dataset is either publicly available or it's Canadian or it's foreign. If we took the proposed definition of “publicly available dataset”, it would take out any dataset that has a reasonable expectation of privacy. We are told by our legal experts that when you assess reasonable expectation of privacy, you have to take context into consideration, so for a dataset collected by the service, the reasonable expectation of privacy might be different if it were used by someone else.
By adopting this definition, it is possible that we could eliminate the category of “publicly available”, but there is no dataset that can be collected by the service for which there is absolutely no reasonable expectation of privacy. There are a lot for which it is very low, but reaching the standard of zero expectation of privacy would mean not having the category of publicly available datasets. In the extreme, you would create a situation in which if the service wanted to collect the Saskatoon phone book, it would have to apply to get the Federal Court's authorization to do so. From a service perspective, that is simply administratively impossible given the burden it would create for us.
As I did with regard to part 3, at the risk of repeating myself, I recognize that LIB-16 is a step in the right direction, but nothing more. I think it is essential for the bill to clearly indicate that it is prohibited to obtain or convey information that may have been obtained by torture. As I said earlier, this goes beyond the ministerial directions mentioned in the Liberal amendment, but it must be firmly established in the legislative framework.
I will not reread the amendments because they are nearly identical, as is Ms. May's amendment, to the ones I proposed earlier today regarding the CSE.
I would like a recorded division.
This is dealing with a proposed section that we find on page 111, dealing with the process before a judge in looking at the issuance of a warrant, the collection of information, and so on.
What we're trying to do here is to ensure that when issues of charter rights are being adjudicated—and this is essentially a very private and secret hearing before one judge alone, and it may never be subject to an appeal—we're inserting into the section the presence of a special advocate.
A special advocate, of course, is present, from the Chrétien era changes to anti-terrorism legislation, when security certificates are issued. The special advocate is there obviously not in the interest of any accused, because the accused can't know about the hearings against them, in this case for the issuance of a warrant. Obviously, you don't want to have the person under suspicion notified of the proceeding. That's why it's ex parte and why it's secret. But the public interest should be represented. In this case, the public interest would be represented by a special advocate.
This was recommended by the Canadian Civil Liberties Association as well as by Professor Michael Nesbitt. I think it's appropriate that we import into this section the presence of a special advocate.