I'm going to call this meeting to order, the 29th meeting of the Standing Committee on Public Safety and National Security, and welcome members of the public who are attending.
This is the first of 10 public meetings that we are going to be having over this coming week as we continue our study of the national security framework. There are two parts to the consultations that are happening right now regarding the national security framework. The government is undertaking its own consultations.
This parliamentary committee has decided to undertake a set of consultations to advise the government from a parliamentary standpoint with respect to changes, affirmations, or concerns about the national security framework as it exists right now in Canada.
This is the travelling version of the public safety and national security committee. We normally have 10 members on the committee; however, there are six who are travelling. I'm not going to say we're the best six, but that would be what I tend to think. We're representing the three parties that have standing in the House of Commons. For those of you who haven't come to Ottawa, this is exactly the same set-up as we would have in Ottawa for a committee.
In each of the cities we visit, Vancouver, Calgary, Toronto, Montreal, and Halifax, we will have an afternoon meeting where we bring in experts who are invited, who have either asked or members of the committee have requested that they testify in front of the committee to give us evidence as to their thoughts about the national security framework.
In each of the cities, we will also be having an open-mike session, where people from the public are invited to come and simply address the committee with their concerns. We're looking forward to that meeting happening tonight in this hall. Those of you who are in the public gallery for this meeting are invited to come back at 5:30 p.m., and the microphone will be yours. We will be listening to you tonight and engaging in that way.
I hope this is a robust discussion that we are beginning. We've had a couple of meetings already in Ottawa to start the committee on this study. We will be on the road for 10 meetings, and then we will continue in Ottawa with further meetings. Hopefully, we will have something to say to Parliament within a couple of months that the government can then use in its agenda in shaping Canada's national security framework.
I want to welcome our witness for the first hour, Stuart Farson, adjunct professor with the department of political science at Simon Fraser University. Thank you for coming.
We had another witness scheduled, who unfortunately had to cancel. We have Mr. Farson with us for the full hour, and we're looking forward to that. He may not be. Normally in these committee hearings, we hear from a witness for 10 minutes, but I'm giving him a little leeway with that, and then the committee members will ask questions.
Thank you, Mr. Chair. I'd like to thank you and the committee for the opportunity to come here today. Given that every member of the committee comes from either Quebec or Ontario, coming to the other side of the country, in this case, is an important thing for you.
I'd like to commend the Liberal government on two points. First is for making public the mandate letters issued to ministers. Hopefully, the metrics they contain will help reinstate the singular importance of ministerial responsibility in our system of governance, and make it easier for Canadians and their Parliament to hold them to account.
Second is for issuing this green paper on national security to prompt a public discussion and debate on Canada's so-called national security framework. Regardless of how one views the breadth of the discussion that the government appears to have in mind, or the cynicism that many will hold over whether talk leads to action, such a dialogue deserves our support and is long overdue.
I'd like to tackle three points in my presentation. I hope, in a way, that they'll connect to the speakers that you will hear after I finish. The first is to talk about the breadth of what the government has termed our national security framework. The second point is how one goes about learning and this largely takes into consideration my own personal experience of how difficult it is to learn about this area of governance. Finally, to talk about something that this committee, and others in Parliament, will be doing on a regular basis, which is, how to make oversight work effectively.
By way of preparing for this meeting, I looked for, and did not find, guidance on what parameters this committee had in mind for a national security framework. Yes, there's a green paper, but perhaps and hopefully, the committee will look much more broadly than is the case with the green paper.
What is it that the committee will examine to form conclusions about the framework? Two things are perhaps obvious. One is that there are a whole range of issues in the green paper that need to be addressed. Many of them stem from and if so, what reforms are needed?
I'm going leave these—what I call the nitty-gritty—to the rest of the witnesses that you're going to hear from. I want to touch on some of the things that are immediately, to my mind, missing from this national security framework.
From an academic point of view, at least, we've gone through calling this thing a whole range of names from communities to systems to networks. Now we're talking about a framework, so we really need to figure out what this thing is.
Missing, I think, from the discussion on independent review is the Military Police Complaints Commission. Arguably, its mandate was inadequate for pursuing whether Canadian troops knowingly committed war crimes when transferring prisoners to Afghan authorities. In addition to the adequacy of mandates, the experiences of the MPCC pose questions about the degree to which bodies are truly independent and have adequate resources.
I raise this because if you look at the RCMP complaints commission, this is a body that has changed—under the Conservative government, I should say—its mandate. It has a review process in addition to dealing with complaints. The MPCC doesn't have that sort of mandate at all. Perhaps it should.
The green paper also omits the historically important commission of inquiry, i.e., the McDonald commission, and it is to be recalled. The McDonald commission led to the establishment of CSIS, the Canadian Security Intelligence Service, as an intelligence agency without a mandate to reduce threats. It's important to recognize that while commissions have a level of independence, they are still executive instruments where the government sets the terms of reference.
Why is this important? In the Arar inquiry, for example, Justice O'Connor could not be encouraged to consider how the various review bodies should relate to Parliament. I believe that this was a serious missed opportunity. Also, the executive, it should be noted, can close down commissions of inquiry when it chooses to do so. The example of the Somalia inquiry of the 1990s, which was also a national security issue, is a good example.
Now, to touch on what the green paper is and why I find it inadequate, I should say that I think we can agree that it is a product of the Department of Public Safety and the Department of Justice. Not surprisingly, the issues raised in it reflect those that are particularly of interest to their particular ministers. It focuses on the threat of terrorism, largely at the exclusion of other threats, how to respond to it, and the legal regime needed to confront it, while protecting the rights and freedoms of Canadians. It's not a bad thing. This is something that needs to be done, but it's not the entirety. Thus, it frames a particular notion, I would argue, of national security, and may in the process divert public attention from other threats, and particularly existential threats like climate change.
Arguably, a green paper produced by the national security adviser's unit within the Privy Council Office would look very different. It would be broader in concept, consider a wider array of departments and organizations—Global Affairs, Transport, Finance, and the Privy Council itself, particularly the intelligence assessment secretariat—reflect upon the activities they all perform, and detail the threats and the national interests they ponder. It would consider defence and foreign policy implications, and indicate concern about the effectiveness of organizations and the resources available.
Furthermore, it would likely cover the importance of intelligence analysis and the sharing of intelligence, not just within Canada, as I think this green paper does, but between Canada and foreign states. A review of these kinds of security intelligence organizations suggests that any such framework would likely reflect the following: structural and functional diversity among organizations; the existence of several policy and coordination centres; intelligence analysis being conducted within several organizations; national security law expanding and becoming more complex, particularly since 9/11 and because of technological innovation; and a rising level of public concern. I think it's not been since McDonald that we have seen a level of public concern about national security issues as we have today.
Finally, there is emergence of a diversified and, I would argue, uncoordinated review framework, something which I think this committee should pay particular attention to, and I'll come to later. Arguably, this suggests a greater focus on how policy is developed, who coordinates the various organizations of the framework, and how human resources are recruited, trained, developed, and retained.
I want to make a few observations about how you go about learning, because it took me several years, and I've been doing it I think since the early 1980s.
I want to touch on some of them, which I guess is informed by my own personal experience of having been on the other side of a committee in the 1990s when a special committee of Parliament reviewed the CSIS Act and the Security Offences Act. I was its director of research. The strengths and weakness of the process has led me, in my academic career, to pursue a number of what I think are key areas.
How does one go about learning about the framework or whatever you like to call it? Obviously commissions of inquiry need to be studied and the recommendations they have made pondered in detail. I don't think we do enough of that. We seem to finish off the commission and more often than not it disappears into history.
Secondly, I think working with independent review bodies is very important. At one point, SIRC, for example, used to hold conferences where there were discussions between academics and the review process. Obviously, going inside the institutions helps. Being a contractor is one that comes to mind. Working for Parliament is another, and I've indicated my experience. From my own experience, I know I went to Parliament in 1989 with a rather naive view that Parliament, or at least the parliamentarians on the committee, would have detailed knowledge of the CSIS Act. However, surprise, surprise, this was not the case. It was, over the course of the better part of a year, a tremendous learning experience for those MPs. Unfortunately, what was the case for many, or most of those MPs, was that only two of them survived the 1993 election, so that institutional memory was lost.
Working with non-governmental organizations such as the Geneva Centre for the Democratic Control of Armed Forces is another. It, for example, specializes in comparative security sector governance and reform, and it covers a broad array of countries.
Following, of course, the work of investigative journalists is another. Many of them have used the Access to Information Act to good effect. I would like to suggest to you from personal experience that there are enormous delays in this process. Anything I've asked for over the last few years automatically seems to get 120 days added onto the process. I would add that the complaints process isn't much better. In my view, there are not enough investigators, and the process, even when it's time sensitive, is far too long.
Finally, there's academia. There was an organization, the Canadian Association for Security and Intelligence Studies, that held multi-day conferences attracting considerable audiences from abroad. It now is a shadow of its former self. Its membership is dwindling and greying, like your witness today.
Maybe I should get on to what I really wanted to say about oversight, if I may.
Thank you for this invitation.
The BCCLA is on record as calling for the complete repeal of Bill and we have views on almost every aspect of the national security framework, which I would be very pleased to share with you. However, for the duration of my prepared remarks, I wish to make a substantive contribution to your deliberations on a topic that is receiving surprisingly little airtime given it's importance, and that is the new Security of Canada Information Sharing Act.
The unprecedented expansion of the surveillance powers in this act, along with the controversial new CSIS threat disruption powers, were the main points of opposition heard by the thousands of citizens who took to the streets to protest the introduction of Bill . My discussion on the Security of Canada Information Sharing Act will focus on our new understanding of what is happening with the collection of datasets of personal information in the security intelligence realm.
If time permits, or perhaps during questions, I would be very pleased to unpack the ramifications of the act in further detail, including how it intersects with issues of profiling, but it is critical, in our view, that we first squarely set this discussion within the recent findings of unlawful data collection within the Five Eyes.
You will doubtless have seen today's headlines from the U.K. that the investigatory powers tribunal has ruled that British security agencies have secretly and unlawfully collected massive volumes of personal data in breach of article 8 of the European Convention on Human Rights, and that this unlawful activity has been going on for years and years.
The illegal data holdings include bulk personal datasets, which might include medical and tax records, individual biographical details, commercial and financial details, communications, and travel data. The ruling confirms that for over a decade U.K. security services unlawfully concealed both the extent of their surveillance capacities and the fact that innocent people across the country had been spied upon. This is an eerie echo of what we here in Canada learned only a few weeks ago about our own comparable intelligence data holdings.
Granted, unlike the situation in the U.K., it was not front page news. The media coverage of SIRC's just-released annual report focused on the review of the new threat disruption powers, which is, by no means, a surprise. However, largely unexplored in the public discourse was the report of SIRC's first-ever examination into CSIS data acquisition programs, including bulk datasets, and that report was an extremely damning one, very much in keeping with the situation that was recently disclosed in the U.K.
SIRC advises that within CSIS's own data classifications there are two types of datasets. The first type they refer to as “referential”, which, on the argument that they are openly sourced and publicly available, CSIS says are not collected under the authority of section 12 of the CSIS Act and therefore have to meet no standard of collection. SIRC does not comment on the legal interpretation that underpins this theory of collection that is not collection.
The second type of dataset is the “unreferential” datasets, which CSIS does consider to be collected under the authority of the CSIS Act and must, therefore, meet the collection threshold of being strictly necessary. Despite its characteristic calm and measured tones, what SIRC has to report in this matter is extremely alarming. The bottom line is this. SIRC does not agree that all of the publicly available, openly sourced data is in fact publicly available and openly sourced, so there are definitely red flags in that category. Even more troubling, however, as regards the datasets that clearly fall under the requirement for strict necessity, “SIRC found no evidence to indicate that CSIS had appropriately considered the threshold as required in the CSIS Act.”
It found no evidence of appropriate consideration of the applicable legal standard to bulk data collection of Canadians' private information. It is simply impossible to read this as indicating anything other than contempt for the need to abide by the applicable laws in this arena. This is so serious a matter that SIRC called for the immediate halt to the acquisition of bulk datasets until there can be a system to confirm compliance with the law. This, then, is the situation, one completely unmoored from the legal requirements in the CSIS Act, to which we add the near free-for-all of the information sharing act's powers.
You will recall that the Security of Canada Information Sharing Act applies to national security concerns defined so broadly that the definition has never before been seen in Canadian law. It constitutes a bar so low that there is hardly anything that cannot be argued to be within its purview. It spans far beyond public safety into ordinary public life, encompassing everything from the administration of justice to the country's economic or financial well-being.
There's no need, under the legislation, for individualized suspicion as the basis for individual information sharing, and indeed no impediment to entire databases of personal information being disclosed on the grounds that they may be relevant to an institution's mandate to detect, identify, analyze, prevent, investigate, or disrupt an activity that undermines the security of Canada—again, as defined so broadly in the act as to encompass huge swaths of ordinary public life. It is difficult to imagine a database held by a federal agency that couldn't be argued for on such grounds. Perhaps it was thought that a possible mechanism to prevent the obvious threat of inappropriate data disclosure might be, by virtue of the CSIS Act, that CSIS would be unable to collect, retain, or use such vast categories of Canadians' private information because they would not fall under the legal standard that CSIS is to apply to its data holdings. However, we have just been told, in no uncertain terms, that those legal standards are being ignored. It is anyone's guess for how long that situation has existed. As I say, this is SIRC's first-ever review of these data holdings.
Further, we need to keep alive to the fact that there was never a compelling case for the legislation in the first place. In their recent response to the government's green paper, Professors Roach and Forcese cite a CSIS briefing note of 2014 that sets out some concerns about the lack of clarity with respect to information sharing for national security purposes. The briefing note did not call for the wholesale revisioning of information sharing to address this concern about clarity but rather suggested, “With appropriate direction and framework in place, significant improvements are possible to encourage information sharing for national security purposes, on the basis [of] existing legislative authorities.”
Instead of the careful and measured approach called for, legislation of monumental overbreadth was enacted, which compounded the lack of clarity and paved the way for a massive increase in already illegal data holdings by security intelligence. Ordinary citizens thus have every justification for concern that their personal information can be disclosed under the vast sweep of the act, which the Privacy Commissioner of Canada confirms is unprecedented. Meanwhile, the security benefits of this approach are, at best, entirely speculative and infinitely more likely to actually undermine rather than enhance effectiveness. The act is so far from hitting the mark of what is needful for national security that, as Roach and Forcese note, “The Act allows the government to share just about everything while it rejects the Air India commission’s recommendation that CSIS must share intelligence about terrorist offences, if not to the police than to someone who is in charge and who can take responsibility for the proper use of the information.”
It was ill advised when it was introduced, and it is even more so now that we have some insight into the shocking state of the current data holdings. The act should be repealed and replaced with the careful, measured approach that was called for in the first place to ensure that needed information sharing for national security purposes can occur within appropriate and meaningful protections for lawful Canadians' personal information. Thank you very much.
I would certainly like to add my voice to applauding the initiative of opening up national security to wider public participation as with these committee hearings. It's certainly a contrast to the way in which Bill was carried through the last Parliament. A better-educated public is crucial to democratic decision-making, as is the enhanced role of Parliament as we see put forward in Bill .
However, public consultation can be diffuse and unfocused, while the key agencies of government have their own sharply focused agendas, which are relentlessly pressed on governments of any political stripe. I see already evidence in the green paper and in Bill of this process at work. The agencies are acting as a kind of heavy anchor pulling in one direction, while counter-pressures from outside are much weaker.
I'm not saying there's anything inherently nefarious in this kind of bureaucratic behaviour. I'm assuming that the bureaucrats are trying to do the job they're assigned to the best of their abilities, but on the issue of the powers that they are granted and the protections in terms of privilege and secrecy for their operations, there is a clear public interest in limiting the agencies' capacity to act without accountability to the public and to Parliament, and as well, in limiting the scope of their powers to conform to the rule of law.
The agencies certainly have legitimate concerns about reforms. I think there have been some unrealistic concepts of accountability and oversight that have been put out there, such as the idea that there should be oversight of ongoing operations in real time, whether by a parliamentary committee or whatever, which would be unworkable and undesirable. However, the provision of extraordinary and unreasonable powers, even though the agencies have no apparent intention of actually using them at this time but might prefer to keep them in the back drawer, as it were, just in case, should not be tolerated, nor should excessive limitations on external oversight review just to make the bureaucrats' lives a little easier.
In the interest of time, I want to focus my remarks on one section of Bill , what I consider to be the very worst part of what I would say is a very bad piece of legislation, generally badly conceived, badly drafted, and potentially pernicious in effect. I'm referring to the threat reduction or disruption powers awarded CSIS and the special warrants CSIS might seek for judicial authorization to break the law and violate charter rights. I will also try to touch on the closely related issue of the secret intelligence public evidence problem.
What is wrong with CSIS threat reduction powers? Well, I think, everything, literally. As someone who has co-authored a history of the security service from its late 19th century origins to its present post-9/11 era, from the RCMP to its present incarnation as CSIS, I would say unequivocally that threat reduction in Bill is dangerous to civil liberties and the rule of law, certainly, but it also threatens to undermine security and effective counter-terrorist law enforcement.
CSIS is a security intelligence agency empowered to collect intelligence on threats to security and advise governments. The RCMP, of course, is the law enforcement agency on national security matters. The security service was taken away from the RCMP in 1984 after the McDonald commission for good reason: the illegal activities in the 1970s, mainly in Quebec against Quebec separatists but also against various left-wing organizations in the rest of the country.
Violations of laws without accountability, no clear lines between violent versus legitimate political groups, the question of control by elected governments, and so on, was precisely what the McDonald commission reacted against, and CSIS was created apart from the RCMP, with no law enforcement powers and a mandate spelling out what it was authorized to do and what it was not authorized to do. All those things flowed from McDonald and we're seeing it threatened with a return back to that era, that scandal-filled era again.
I'll just skip over some of the credits and try to focus on each of the problems with this.
First of all, the special warrants allow law-breaking and charter violations, short only of murder, torture, and rape, to be authorized by a judge. They are not surveillance warrants, which are in effect judicial certifications that these acts are within the law and abide by the charter. Instead, they ask judges to enable law-breaking and unconstitutional acts. This is a radical revision of the role of the judiciary from protectors of the law and constitution to enablers of violations. This is a shocking assault on the rule of law and the independence of the judiciary, now turned into a tool of the executive. I expect most judges, if not all, would be quite appalled by this prospect.
The next point is that the warrant application is entirely secret, with no specified follow-up for the judge granting the warrant to determine if it has been carried out as promised, or what the results are. No reporting is required of warrants granted or turned down—no accountability of any kind.
The decision to seek a warrant—and this is an important point—is at the discretion of CSIS. If they decide that a disruption activity does not require a warrant, there appears to be no fallback accountability as to whether that decision is justified. That is unacceptable.
These threat reduction measures could involve detention, if you read this very carefully—not arrest but detention—and they could involve extraordinary rendition on the international stage. Of course, in the latter case, we could see the potential for somebody who is a Canadian perhaps being rendered to a country where torture is routinely practised.
All of these issues that I've been talking about are problems regarding the rule of law and the rights of citizens, and so on. However, it's also very important to realize that CSIS threat reduction efforts could impede rather than facilitate counterterrorism. This recreates the potential for conflict turf wars with the RCMP, as were tragically shown by the Air India commission. It opens up the possibility that CSIS, protecting its sources as a security and intelligence organization, could imperil convictions in court, and there's the distinct possibility that these activities could contaminate the evidentiary trail.
This brings us to the intelligence evidence conflict that the Air India commission addressed, in which the government did not take up any of the recommendations of the commission to deal with this problem. I can't go into this at any length, and certainly it's a topic best undertaken by lawyers, except to note that threat reduction or disruption activities can be useful, certainly. I'm not making the point that they should never be used. They can be very useful in counterterrorism, so long as they are undertaken with the goal always in mind of securing criminal convictions and putting dangerous terrorists behind bars.
The RCMP already does this, both in its criminal and national security investigations, if you look, for example, at the Toronto 18 case. CSIS does disruption as well, under pre-Bill law, and that's fine. I don't have any problem with that, so long as it does not interfere with the criminal law process and is rather supportive of the criminal law process.
A general point that I would like to make is that unlike the old Cold War era, the era of terrorism is one in which, given that the terrorist threat is against civilians, ordinary people, the priority must always be given to law enforcement and criminal convictions. CSIS has a role to play, but the notion that they have this role of slowly building a long-term picture of these networks like the old KGB in the Cold War has to be subordinated to law enforcement. The threat reduction powers and special warrants radically undermine this.
The last thing I want to say is that CSIS says it has not applied for any of these special warrants, and that presumably everything it has carried out, we can assume, has not required that kind of special warrant power, like the powers of preventive detention and investigative hearings in the 2001 Anti-terrorism Act, which were so controversial that time limits were put on them. They were actually allowed to lapse at one point and then were reinstituted by the former government, yet in all that process, they've never been used.
Are we seeing a repeat of the same kind of phenomenon?
In both cases, if they have never been used, why exactly are they needed? In the case of the threat reduction powers, perhaps CSIS had these foisted on them unwillingly by the government. In that case, then, we really ought to get rid of them. Or it may be another example of the unending pressure on governments to keep up powers that they might need “just in case”. That's a very bad case for keeping a bad law on the books to be potentially abused by less responsible people in the future.