I call this meeting to order.
This is the 33rd meeting of the Standing Committee on Public Safety and National Security, convened to do a study on the national security framework of Canada.
I want to welcome both our invited guests, who are here to give us testimony and to help us with our study, as well as members of the public who have joined us today.
I want to remind you that there are two meetings today. The meeting from 2 p.m. to 4 p.m. is an example of a meeting we would be doing in Ottawa; however, we are on the road this week. Then from 5:30 p.m. until 7:30 p.m. we are having an open-microphone meeting, allowing any member of the public who would like to make a statement to the committee on the issues defined within the study we are doing on national security framework, to come and make their opinions known. You're all welcome to come back, if you haven't had enough of us by then.
I would remind everyone that this is an extension of Parliament. We are here today as parliamentarians. Even though we are on the road, this is a bit of Parliament coming to you.
We work in both official languages of Canada, English and French, so you can put in your earpieces to listen to the interpretation.
We welcome you as members of the public to this meeting.
As I said, we are engaged in a study on the national security framework. We had meetings in Vancouver on Monday, and in Calgary yesterday. The committee is very bright and awake, but we were up at 3:30 this morning in order to be on an airplane quite early to get here, in Toronto, so you'll probably see us drinking water and coffee a lot as we continue.
We welcome our guests.
I'll start with Ron Atkey, adjunct professor at Osgoode Hall Law School, York University, and also teaching at Ryerson University, as our first witness, for 10 minutes.
Thank you, Mr. Chairman, and thank you for scheduling us in the first panel, so we'll be finished well in advance of the start of the baseball game. We'll see it, and we'll come back and report the score to you.
Thank you for this kind invitation to appear before you on the important subject of Canada's national security framework. Let me say how pleased I am that this consultation process is finally proceeding. I guess it was a year ago that an election was held. One might have thought, given the strong positions taken by opposition parties in the last Parliament on Bill and companion legislation, that the consultation process would start earlier, but I also understand the exigencies of the machinery of government.
I regret to say there was not a careful, measured debate on Bill in 2015, as the then-government rushed through Bill C-51, perhaps echoing public demand for swift and firm security action in response to the 2014 attacks in Ottawa and Saint-Jean-sur-Richelieu.
Let's be grateful that this much-needed conversation can now begin. Of course, we are all assisted by the recent release of two important documents. First, on August 25, 2016, the released his “Public Report On The Terrorist Threat To Canada”, noting that the principal terrorist threat to Canada remains that posed by violent extremist groups at home or abroad who could be inspired to carry out an attack within Canada.
The second was an important background document released last month, on September 8, a national security green paper entitled “Our Security, Our Rights”, which is an objective discussion on most of the hot-button issues such as accountability, disruption, information-sharing, the no-fly list, interdiction measures, and investigative techniques.
This 66-page document, plus endnotes, is by no means bedtime reading, and it has been difficult for me to get my students to plow their way through it, but I am going to, before the end of the term, I assure you. It walks the delicate line between being an advocacy piece for enhanced security measures and the need to protect fundamental charter rights and freedoms. For those Canadians who want a shorter document, there is relief, because the actual green paper is only 21 pages.
I offer my sincere congratulations to for finally getting this process under way. How long it will take remains to be seen. There are some provisions in the Anti-terrorism Act that are clearly unconstitutional and need immediate legislative fix, such as the power given to federal judges granting a disruption warrant that can ignore the Canadian Charter of Rights and Freedoms, or the lack of due process on the administrative side in the administration of the no-fly list. These should not have to be litigated in the courts. They can be easily dealt with by Parliament in this session.
I note that the green paper proposes a mandatory review of the Anti-terrorism Act after three years, but I can't help but observe that this will provide the government with an excuse to do nothing following the current consultation, until the end of 2018 or perhaps after the next election.
The period 2018-19 will be the lead-up to the next general election—hardly a time, in my experience, for constructive, non-partisan debate and enactment of meaningful legislation, if 2015 is any guide to the process.
The first of two items I want to deal with is accountability. Now, to be very fair, last June this government introduced Bill , the national security and intelligence committee of parliamentarians act, which was long overdue. This will provide, for the first time, a select group of Canadian parliamentarians with access to the national security tent. I hope the bill is passed this year, although not without some constructive amendments that may come forward. I may be suggesting some of these to you when I appear as a witness before you next week in Ottawa.
The point I want to make is that Bill is only a small part of the jigsaw puzzle of national security. Its anticipated achievement as a new structure in our system should not be used as an excuse for delaying necessary reforms to our national security framework generally.
Let me share with you my experience over the past 40 years. During that time, I was an opposition MP; a minister of immigration during troubled times in 1979-80; the first chair of the Security Intelligence Review Committee, from 1985 to 1989; amicus to the Arar commission; and a special advocate under the Immigration and Refugee Protection Act. I have taught national security law for eight years as my retirement project. So I know a little about the subject, and I have some views.
Regarding accountability, I've changed my views. When I first became the CSIS watchdog in 1985, along with four distinguished colleagues following consultations with the opposition parties, I accepted the conventional wisdom that reviewing the complex security operations at CSIS was too difficult and time-consuming for busy MPs, who could not be trusted to maintain security confidentiality in the political atmosphere of the House.
Over time that situation has changed. Whether it was Parliament's responding properly to the horrible events of 9/11 with controversial provisions regarding what was then the Anti-terrorism Act, or the heavy-handed response of Parliament with the passage of Bill to the 2014 attacks in Ottawa and Saint-Jean-sur-Richelieu, which became law in June 2015 after much partisan debate, one thing has become clear: a way has to be found to bring elected MPs inside the national security tent.
The debate in Parliament and before committee on Bill , which I closely followed, suffered from an absence of an understanding of the objectives and techniques of preserving national security for Canadians while protecting rights and freedoms under the charter. If Canadians are going to be asked to support the toughening of our national security framework, sometimes at the expense of individual rights and freedoms, they need assurances that changes going forward will be carefully scrutinized in camera by a select group of elected representatives. This committee of parliamentarians will be the first point of reference for an overview when something goes terribly wrong, which it's bound to under the circumstances.
That is not to say that the committee of parliamentarians should be a substitute for the independent review bodies like SIRC, or the CSEC commissioner, or the CRCC reviewing RCMP activities. In fact, the committee's work will be complementary to the expert review bodies. It is my view that the jurisdiction of these expert review bodies should be extended to cover other federal agencies such as CBSA or Transport Canada—that's my list—and that steps should be taken to allow these review bodies to share classified information with each other or to conduct joint reviews of national security and intelligence activities.
A lot of the work on the possible changes to the framework for national security accountability in Canada was undertaken by Justice O'Connor and his staff a decade ago as part of the mandate of the Arar commission. Unfortunately, many of his recommendations appear to have been ignored to date. I hope the release of the green paper currently guiding you in your discussions and debate on Canada's national security framework will rekindle some interest in the O'Connor recommendations, many of which remain valid today.
I'm going to conclude by commenting on something that's not in the green paper, and that is the national security adviser to the Prime Minister. Currently this office is within the Privy Council. It does not appear to have a high profile or any operational responsibilities. Given the communication problems that exist between the 17 agencies or departments involved in national security and intelligence activities, the complexity of sharing arrangements contemplated by the Security of Information Sharing Act under Bill , and the practical efficiency of joint operations on a broader base than it is currently, why not give the responsibility to someone with clout at the centre, the national security adviser to the Prime Minister? Of course, the mandate would have to change under this proposal, and so would the manner of appointment. Similar to the Auditor General or the Privacy Commissioner, this person should be appointed by Parliament on the recommendation of the Governor in Council. Presumably the committee of parliamentarians established by Bill would play a major role in the nomination and approval process, and the national security adviser would be required to table an annual report in Parliament subject to the usual redactions regarding security matters.
Some commentators may regard this proposal as plumping for a national security czar for Canada, but the concept has worked in the U.S. to ensure, since 9/11, more inter-agency co-operation, and the avoidance of institutional stovepipes in the unwillingness to share important security information in an organized and secure framework.
That concludes my remarks. I want to thank you for letting me share these ideas with you, and I look forward to your questions.
I would like to thank the chair, the clerk, and the honourable committee members for the privilege of this opportunity to speak to them today.
I'm here on behalf of Canadian Journalists for Free Expression, a non-profit, non-governmental organization that works to promote and protect freedom of the press and freedom of expression around the world. In July 2015, CJFE and the Canadian Civil Liberties Association brought a constitutional challenge to the Anti-terrorism Act, 2015, on the grounds that specific provisions therein violate sections of the Canadian Charter of Rights and Freedoms in a manner that cannot be saved under section 1 of the charter.
There's a lot of work to be done with Canada's national security apparatus, but given the short timeframe, I will limit my remarks to the Anti-terrorism Act, 2015, and its impact on freedom of expression, as protected under subsection 2(b) of the Canadian Charter of Rights and Freedoms, and under article 19 of the Universal Declaration of Human Rights. I will also touch on issues of privacy, as the right to privacy is necessary for the full enjoyment of the right to free expression.
I'll leave it to my colleagues from other organizations to speak to other, equally pressing issues and concerns on the protection of rights and democratic values in the national security framework of Canada.
I'll start with free expression. The oft-touted argument that we must strike a balance between security and rights, implying that the two are at odds, is equally flawed. Protecting democracy requires a deep respect for human rights, as enshrined in our charter and in international human rights documents, full stop. Ignoring Canada's international obligations and disrespecting basic human rights will only create instability and insecurity.
We are very thankful that your government has embarked on this consultation, but we share the concern with many other civil society organizations that the green paper on national security reform is biased in favour of security and police agencies, putting their interests ahead of human rights.
One particularly egregious example is that it contains no mention of the need to impose judicial control over Canada's foreign intelligence agency, CSE, and to regulate the agency's expansive metadata surveillance activities, despite revelations that CSE operates under a ministerial directive that allows it to collect and analyze metadata that is produced by Canadians using mobile phones or when accessing the Internet. CSE is permitted to read Canadians' emails and text messages, and listen to Canadians' phone calls whenever Canadians communicate with a person outside Canada. There is no court or committee that monitors CSE's interception of these private communications of metadata information, and there is no judicial oversight of its sweeping powers. CSE's operations are shrouded in secrecy. At the very least, we must bring judicial oversight to the work of Canadian intelligence agencies, as this is a basic tenet of democracy that our country now lacks.
In terms of the specific legislation, the new Criminal Code offence of “promoting terrorism” is extremely troubling and must be addressed. It is vastly overbroad and captures speech made for innocent purposes, including private conversations. In prohibiting the perceived promotion of “terrorism offences in general”, the law unduly and unnecessarily limits Canadians' freedom of expression and ability to engage in proper democratic debate. It is also unconstitutionally vague and imprecise, and a clear violation of section 7 of the charter.
Leading constitutional scholars have written that this speech crime could easily be interpreted to prosecute anyone quoting a terrorist or sharing content produced by an extremist group online. This is particularly troubling for journalists in Canada, and indeed threatens the very institution of journalism because the law does not weigh a person's intent when they share this content. In other words, a journalist could conceivably be charged with a terrorism offence just for doing his or her job, by doing something such as quoting a so-called terrorist as a source in a story. A private citizen could also be charged for sharing content from an extremist group, even if that sharing was solely for the purpose of condemning that same group.
The vaguely worded speech crime will also undermine the government's commitment to develop new community level programs to counter violent extremism. In order to succeed, any such program will need to engage in robust and frank dialogue with radicalized and extremist individuals. By definition, many of these individuals will hold opinions that are sympathetic to proscriptive terrorist groups. They have to trust they won't be placed under surveillance or arrested because they engaged in good faith with community programs.
Furthermore, criminalizing the expression of a political opinion, however repugnant, is anathema to a free society. There is an important distinction to be made between expressing an opinion, even in support of people carrying out violence, and directly inciting an act of violence. Content should only be considered a threat to national security if it can be demonstrated that it is intended to incite imminent violence, it is likely to incite such violence, and there is a direct and immediate connection between the expression and the likelihood of occurrence of such evidence.
This provision also has a chilling effect on freedom of expression, even if no prosecution is ever brought. Persons will prefer to remain silent rather than risk the perils of prosecution.
The law is unnecessary. Criminal laws in place before the adoption of the Anti-terrorism Act, 2015, were an effective means of dealing with these issues, and they did so in a way that was far less threatening to human rights.
As such, we urge the government to repeal this unnecessary, overbroad, and dangerous law.
When we look at privacy and information sharing, without strong privacy safeguards it becomes far more difficult, if not impossible, for people to exercise their human right to free expression. There are real, tangible harms that are demonstrated to occur when a society and its citizens are subjected to the far-reaching, suspicionless surveillance that the government is currently directing at Canadians.
This is not an abstract or theoretical concern, it is an established fact backed by a large body of scientific research that when people believe they're being watched, their behaviour changes in significant ways. Surveillance in Canada has become increasingly pervasive, and recent revelations have shown that Canadians and others have been surveilled under numerous programs, with little oversight or transparency.
The alternative to mass surveillance is not the complete elimination of surveillance, and we're not advocating for that. It is, instead, targeted surveillance, and only of those for whom there is substantial evidence to believe that they are engaged in real wrongdoing. Such targeted surveillance is far more likely to stop terrorist plots. It also allows for judicial oversight, which again is crucial in any democracy. We urge your government to concentrate on targeted, constitutional surveillance, and to end the ineffective mass surveillance practices that are encroaching on the rights of all Canadians.
Overbroad information sharing is a further threat to privacy. As has been pointed out by privacy commissioners and advocates across the country, the Anti-terrorism Act 2015 allows a large number of government departments and agencies to share an individual's private information and it does so without necessary oversight to ensure that this power is not abused. Worse, this legislation does nothing to address the 2010 Air India bombing commission's recommendation to make sharing information mandatory in terrorism cases. We strongly urge your government to repeal the ATA's information sharing provisions and to replace them with constitutional laws that meet the commission's recommendations.
Our time is limited today, but I want to briefly touch on a few other aspects of the ATA.
Firstly, the bill's new warrant process destroys the entire purpose of the courts in Canada. In a normal democracy, a judge has oversight over the warrant process in order to ensure an investigation can be conducted without unjustifiably violating charter rights. The ATA allows judges to pre-authorize charter violations in secret and without notifying the subject of those violations. This is a bizarre reversal of the purpose of the courts, and it is clearly unconstitutional. Furthermore, it puts legitimate investigations in jeopardy, as it could easily lead to judges throwing out illegally obtained evidence. For the sake of rights and our national security, it must be repealed.
Secondly, the bill allows the government to hold secret deportation hearings, and it drastically limits information shared with advocates on the subject of those hearings. This is an unconstitutional violation of jurisprudence and must be repealed.
Thirdly, the Secure Air Travel Act further extends Canada's opaque no-fly list process, without providing a meaningful means to appeal for anyone who has been added to the no-fly list. There is no evidence that no-fly lists have ever prevented a terrorist attack, but there is clear evidence that they have a huge societal cost. Many innocent people have been robbed of their ability to travel because they've been added to this list through a secret process, with no effective means to appeal.
Maher Arar, to illustrate just one example, is still on a no-fly list. He is still unable to travel because of this faulty process, despite the fact that he has been completely exonerated and he has been compensated because of the situation that he was in previously, thanks to Canadians' sharing of information with other governments. This legislation must be repealed.
Although these issues may not appear to impact free expression directly, the broadness of the legislation, the lack of oversight, and the potential for abuse means these new laws could easily be used to target political enemies of the government, journalists uncovering difficult truths, or citizens exercising their constitutional right to speak freely and to protest. Genuine security can only be maintained through the promotion and protection of human rights. Human rights should be a core consideration in any national security strategy. To ensure the effectiveness of this approach, a national security proposal should be carefully examined, tested for constitutionality, and regularly reviewed to assess its impact on human rights standards and obligations. Our current national security regime, which rests largely on the ATA 2015, was not built on these principles. As such, the Anti-terrorism Act must be repealed.
Thank you for your time.
Absolutely. To go into what could be found, there was a study done in the United States where basically a bunch of university professors got people to agree to let them access their metadata, and the professors would see what they could glean from that. They were able to determine people's political affiliation. They were able to determine their religion. They were able to determine that one women had had an abortion, through this information. This was all through just their metadata, just through the information that's collected. To have that holistic picture in the government services is quite dangerous.
To address the second part of your question in terms of outside actors and information sharing, there's already been a case where CSE was found to be sharing information that it was not allowed to be sharing with outside actors, a massive amount of information, about Canadians. This is extremely problematic because all of a sudden we don't know who else has access to our information and what it's being used for.
On top of that, under the information-sharing provisions, in our read of the ATA 2015, essentially it seems that under the right circumstances, and without judicial oversight, any information could be shared with any outside state actor. I believe it's from a 100 different government institutions within Canada, which, again, is extremely dangerous.
Speaking just from a journalistic perspective, the idea that the state could be reading our emails, could be using our metadata to construct who we've been speaking with, who are stories are, who are our sources are, it makes it extraordinarily chilling. It makes it impossible for whistle-blowers to come forward because there's no way for them to know that their information will be protected, and that they can be protected as a source. It makes it extremely frightening for journalists because they're afraid they could be prosecuted.
I know a lot of national security reporters. I know all of the national security reporters in Canada; they're aren't that many of them. They are very frightened by this legislation. As for the idea that the government would never prosecute them, one of those national security reporters is Ben Makuch, who works for Vice, and right now he could be thrown in jail, depending on what the results of his appeal are, over the RCMP's production order that Vice is fighting.
He has said he'll refuse to provide that information, which would mean he would be found in contempt of court and put in jail. We're already in a system where journalists could be jailed in Canada simply for doing their work. If this is allowed to continue and these powers are exercised.... You are the government of sunny ways, as a Liberal government, but what happens with the next government that isn't quite so sunny? They still will have those legislative powers. It just becomes more dangerous over time.
We're going to continue now with our second panel of the day.
Just a reminder to the public who have joined us, in between or during that first meeting, that this testimony at these hearings in the afternoon is coming from our invited guests. In the evening,everyone is invited. If you would like to speak, you will be given time at the 5:30 to 7:30 meeting of our standing committee.
I just want to clarify one thing that I didn't clarify in the first hour. These consultations are separate from, but not unrelated to, the government consultations on national security, so there are parallel operations. Parliament is separate from the executive branch of government.
The government has issued a green paper and is engaged in ministerial consultations. We have access, obviously, to that green paper and we are going to make comment on it, but we are not limited to the contents of that green paper in our consultations and we're not bound to report at any particular time. However, we do want to be helpful to the minister and the government in helping them understand the views of Canadians with respect to the national security framework. That is the purpose of these hearings.
This afternoon we continue on the panel. Thank you, Senator Segal. Ron Levi and Carmen Cheung are coming to us from the Munk School of Global Affairs.
We'll begin with you two and you're sharing 10 minutes, and then we'll go to Mr. Segal.
Chair and members of the committee, I want to thank you for this invitation to discuss Canada's national security framework and with it the 2016 “Our Security, Our Rights” green paper.
My brief remarks today focus on the importance of developing an evidence-based and “lessons learned” approach to national security. I'll be sharing my time with Ms. Carmen Cheung. Both of us are in the Munk School of Global Affairs in the University of Toronto, at the school's global justice lab. Each of us will be covering different aspects of the green paper. I will be discussing countering radicalization to violence. Ms. Cheung will be discussing accountability and secrecy. Our core message to you is the same: an evidence-based approach to national security should learn from local research, the experience of other countries, and evidence and experience in cognate fields, including crime and criminal justice.
The green paper identifies terrorism as criminal violence. It concerns itself with radicalization to violence. It has a theory of who might be at risk of becoming radicalized and with it a view of the process of violent radicalization. The green paper outlines the importance of working with communities, engaging youth and women, and promoting positive narratives as alternatives to violent, radical ones. It emphasizes fostering research on prevention and countering radicalization to violence.
I commend the Government of Canada on this approach. My own work has benefited from Kanishka project funding, and I'm pleased to serve on the executive committee of the Canadian Network for Research on Terrorism, Security and Society.
There are challenges to pursuing research in this field. Research approaches that one might pursue in other fields to build a policy-relevant knowledge base, such as experimental designs in criminology, are untenable here. Similarly, while any one case of terrorism is too many, the number of incidents does not always allow for the same sort of research we see elsewhere. Research access, methodology, and ethical review are more difficult in the context of radicalization to violence than in other areas. Yet there is a growing landscape of new research on radicalization and on terrorism, which, when combined with existing research on crime and criminal justice, provides us with an evidence base from which to work.
In the interest of time, I want to highlight just two sets of studies for the committee, since they relate directly to the green paper's theory of radicalization to violence, the importance of communities, and positive narratives.
The first is what we know about relationships between policing, community engagement, and embedded norms within communities. Research in the U.K. and the U.S. shows that when people judge law enforcement as fair and not singling out some groups, police are seen as more legitimate and residents are more likely to co-operate with the police and comply with legal rules. Social psychologists call this “procedural justice”, and this emphasis on neutrality, respect, and trust predicts the likelihood of co-operating with the police, both with respect to crime and with respect to terror.
In contrast, the political views of individuals who may be co-operating have limited impact. Research in Toronto suggests that the availability of counter-narratives to terrorism among youth is chilled. Existing counter-narratives are not shared widely in the community when there is a perception that the community is under targeted surveillance. Research in Los Angeles and other U.S. cities suggests something similar. Peers who notice early signs of extremism may be too fearful to alert law enforcement or others in the community.
On the flip side, research on gangs shows that having individuals with influence from the community—family members, faith leaders, ex-offenders, and other—provides moral messages that are valuable to the community, but the community disapproves at the same time of the behaviour. This seems to work in combination with positive opportunities for employment and engagement to reduce violent crime. If we take these puzzle pieces together, there is strong evidence that trust in state institutions can productively combine with a delegitimation of violence and of shared expectations of behaviour that encourage productive pathways for youth.
The green paper recognizes that different communities have different needs and priorities. As a result, one way of building resilience is to take an approach not exclusively or even primarily lodged in a law enforcement model, but instead, taking a broad view of community safety and well-being that integrates local concerns, including the needs of youth.
We are seeing work on countering violent extremism now move towards a complex public health model, where primary, secondary, and tertiary prevention, which I can speak about in Q and A, are engaged at the same time.
In the interest of time, I won't speak now about the need to broaden our understanding of radicalization to violence based on what we know about criminal offending more broadly. I am happy to discuss that in questions, but I want to say one last thing.
My point here has not been to provide detailed evidence about each issue. It is to echo the green paper's emphasis on the importance of fostering research, adding that we must pay attention to what we know already from related fields and from research on radicalization to violence specifically.
That brings me to a final point in my last few seconds. The green paper does not currently outline performance metrics of success in prevention. I recognize the challenges of doing so, especially with prevention distributed across agencies, and unfortunately, reducing the risk of violent extremism to zero is unattainable, but this makes discrete metrics that reflect prevention efforts and build resilience ever more salient. Incorporating appropriate metrics early on, matching the government's broader commitments to measurable outcomes would provide clarity for Canadians and for government on commitments to prevention and the building of resilience.
Thank you very much, Chair.
Good afternoon. It is a privilege to be here before the committee again. Thank you very much for the opportunity, and thanks again to Professor Levi for generously sharing his time.
I'd like to build a bit on his remarks and on the importance of learning from comparative experience, so let me start with something this committee already knows, which is that we cannot talk about Canada's national security framework without addressing the urgent need to update our framework for national security accountability. The international experience shows that Canada is, quite frankly, lagging behind our closest allies when it comes to comprehensive national security oversight and review.
This committee is currently studying Bill , which would create a national security and intelligence committee of parliamentarians. Political accountability is critical, and the move towards formalizing legislative review is a very welcome development; but as you will have heard from others, a modernized system of national security accountability requires more. Canada's system of independent expert review exists as a patchwork, in contrast to the consolidated model of integrated review that we see in countries like Australia.
The judiciary can play an important role in both oversight and review across a range of national security activities, from authorizing warrants for intelligence activities that might implicate constitutional rights to adjudicating claims arising from government actions. However, unlike in the United States, our courts play little role in authorizing foreign surveillance that might infringe on guarantees against unreasonable search and seizure. These are just a few examples.
This is of course not to say that there is a perfect model for accountability or even a best model. If anything, the value in comparative approaches is in seeing both what works and what does not work. We need not look any further than the recommendations from the Arar inquiry, or last year's extraordinary open letter calling for immediate reform to national security accountability, a letter that was signed by former prime ministers, senior security officials, and former Supreme Court justices. We need not look any further than to our own experts to know that the current system must be improved.
This national consultation we're taking part in represents an important moment of opportunity towards creating an integrated and comprehensive accountability framework, one that can evaluate whether national security policy and practices are effective, legal, and rights-respecting. International comparisons can help us build this framework.
Done right, a robust system of accountability enhances public trust. Also important for public trust is some measure of transparency in how government goes about protecting our national security. This is made complicated by the fact that national security activities will necessarily require some secrecy. Yet I would say that the experience has shown that government sometimes tends towards reflexive secrecy. The commissioners in both the Arar and the Air India inquiries concluded that the government over-claimed secrecy during the course of those two proceedings. Chief Justice McLachlin noted, in the 2014 Harkat decision, that government tends “to exaggerate claims of national security confidentiality”.
Excessive and unnecessary secrecy is problematic for several reasons. First, as Justice O'Connor noted in his report on the Arar inquiry, when government over-claims the need for secrecy, it “promotes public suspicion and cynicism about legitimate claims...of national security confidentiality”.
Second, Canadians should be able to understand and judge for themselves the nature of the security threats facing the country and the appropriateness of our responses to those threats. Excessive secrecy makes this sort of assessment difficult for ordinary Canadians.
Third, secrecy becomes normalized. We see this in new legislation allowing the use of secret evidence in closed courts, and judicial reviews of passport denials and no-fly listings. When processes are secret it's hard to know or hard to believe that they are fundamentally fair. The open court principle is foundational to the common law, and secrecy in the courts should be exceptional. In a democratic society we should always be looking for ways to make proceedings more transparent, not less.
So how do we balance fairness and transparency with the very real need to keep national security information from falling into the wrong hands? In the case of judicial proceedings, at least, we can learn from the criminal justice experience on how to protect sensitive sources and information in an open court, on which mechanisms are best for determining where the appropriate balance lies between confidentiality and disclosure, on how to go about gathering intelligence that can be presented in a court of law. The constitutional demands for a criminal proceeding may be different from those in administrative or civil cases; however, the presumption in favour of transparency and openness should not be.
Thank you again for this opportunity and we look forward to your questions.
Chairman, members of the committee, thank you for the opportunity to share my perspective with you. I am going to focus primarily on Bill, the parliamentary oversight proposition, because I think it's central to the premise of accountability for our national security and intelligence services.
I think the Government of Canada is to be congratulated for circulating the green paper and discussion paper on the balance between national security and individual freedom, and seeking public input on the choices that are ahead. The new legislation creating a committee of parliamentarians on national security, closely modelled on the U.K. committee of parliamentarians, is also a constructive and overdue initiative.
As Ms. Cheung pointed out, Canada has been the only major NATO partner without a legislative oversight structure for national security and intelligence operations. This is an unacceptable anomaly, an unpardonable gap in the vital linkage between the democratic institutions of the country and the agencies committed to protecting national security, which also means they're committed to protecting democracy.
While ministerial oversight has been clearly established by the enabling legislation for organizations such as the RCMP, CSIS, CBSA, Communications Security Establishment, and some retroactive but limited oversight was provided by SIRC and the Inspector General at CSE, their capacity to provide forward-looking oversight, as opposed to dealing retroactively with complaints, was severely limited.
The model suggested in , namely a committee of parliamentarians, chosen by order in council, as opposed to a parliamentary committee elected by the various parties in the House and the Senate, is the right choice and mirrors the initial form of oversight chosen by the United Kingdom in the Thatcher-Major era. Moving to where the U.K. committee of parliamentarians is now, after decades of operation and a proven track record on trust and discretion, would be a serious mistake and a threat to our national security operations.
For the oversight by parliamentarians to work well, and for the agencies being overseen to, along with Canadians as a whole, benefit from the dynamic of oversight, a relationship of trust between the overseers and operating agencies must be established. A five-year automatic review of existing legislation and will allow the nature and structure of the committee of parliamentarians to be revised and updated, based on real experience with challenges met and addressed in the Canadian context.
In my judgment, the committee, as now proposed, is too small. It should be no fewer than 12 parliamentarians, with eight from the House of Commons and four from the upper chamber. The new mix of independent senators being appointed affords the government a refreshing opportunity to have senators with previous experience in military, police, security, anti-terrorist, foreign affairs, defence, and civil liberties work considered by the government for service on the committee of parliamentarians.
The preamble of should specify that the oversight mission of the committee of parliamentarians is to be carried out in a fashion that does not favour partisan advantage or preference. Rather, it should promote the protection of Canadian civil liberties, essential freedoms and privacy, consistent with the Constitution and Charter of Rights and Freedoms, increasing the national security and safety of the residents of Canada.
It would be preferable for all security agencies to fall under the oversight of the same committee of parliamentarians. Separate civilian oversight for the RCMP, or none to speak of for CBSA, is not appropriate and it's unacceptable.
A larger committee of parliamentarians, with the freedom to appoint the head of the research, monitoring, and oversight operational structure underpinning its work, makes the most sense. Members of the structure serving the committee should not be appointed by the Clerk of the Privy Council, or any of the operational deputies in the relevant line departments. The organization serving the committee should be answerable to the committee, with fixed terms of service, appropriate security clearance protocols, and measured experience.
The clerk of the committee should have the rank and status of a senior deputy minister, with an order in council appointment of no less than five years, renewable by mutual consent. The operations of Canada's military intelligence should also be under the oversight of the committee of parliamentarians. The operational and committee support structure for the committee, and its meeting place in camera or otherwise, should be away from Parliament Hill in an appropriately secure facility, not adjacent to CSIS, the RCMP, CBSA, or DND.
Its enabling legislation should protect them from ATI requests, except as they might relate to expenditures, costs, travel, and normative operational administration.
Matters for review, testimony heard in camera, negotiations on agenda with the appearing agencies, reporting relationships between operational agencies and committee and/or its operational support unit should, by statute, be exempt from ATI inquiries.
The committee chair, already designated by the government, should have a Senate vice-chair of the committee. Unlike the requirement in the legislation with respect to the House of Commons, Senate members of the committee or a Senate vice-chair, who should also be designated by the government, need not be members of a partisan group in the upper chamber. Any federal body established in this area by statute—for example, on anti-terrorist missions such as deradicalization and community outreach—should be under the oversight of this committee of parliamentarians.
I'd be delighted to take any questions on this or other matters before the committee.
Thank you very much.
We don't have evidence on that. That's a simple and clear answer: we don't know. I've seen no empirics that suggest that.
That said, I think what we would want to think about, as a research matter and thus as a policy matter, would be how to distill a pathway to violent radicalization that doesn't presume what is thought about in the literature as a conveyor belt theory, as though somehow A causes B causes C and that this leads you on a conveyor belt to violent radicalization. We have not seen good evidence of that. The Aaron Driver case is one example. We have not seen evidence of predictive power around it.
Coming to the question of how we can predict and whether we can predict based on past experience, I haven't seen that evidence.
I would say that this is about determining what the vulnerability points are and acting on those vulnerability points. I would say that if we thought of it that way, I would want us to think about two things. The first would be to work at a primary level face to face, to work at a secondary level within communities, and to work at tertiary levels with law enforcement and other organizations of the state and others.
I also think you would need to do this in ways that are individual and that also attend to people who have had no contact with that risk, people before the fact, people who may have had some contact with that risk, and people who have in fact already been either radicalized or, as we say, radicalized to violence.
We have to figure out where that threshold is. I don't think the green paper tells us that, and that's going to be a judgment call. I think a lot of attention needs to be placed there. We have to think about those things.