Good afternoon. I'm happy to call to order this 37th meeting of the Standing Committee on Public Safety and National Security in the 42nd Parliament. We are continuing our study of the national security framework.
In order that our guests and the public know, this is the first of two meetings today. At this meeting we have invited witnesses the committee would like to hear from, and they bring their expertise. In the evening, from 5:30 p.m. to 7:30 p.m., the public comes, again with expertise. Their expertise may be different from that of the so-called experts, but the committee equally wants to hear from them.
These are meetings numbers 9 and 10 of this week. We began in Vancouver on Monday, where we had two meetings. Then we went to Calgary, Toronto, and Montreal, and now we are in Halifax. This is fairly early in our study of the national security framework.
There are two consultations going on simultaneously.
The government is having a consultation. It has issued a green paper to the . That green paper consultation is going on at a government and departmental level.
The parliamentary committee is doing its own study. We are obviously aware of the green paper, and it helps us frame our study, but we are not limited to that, nor are we from government. Even though some of us are from the government side of the House, others are from the opposition side.
I will simply have the members introduce themselves, starting at my far left, so you know who you are speaking to.
Thanks so much to the committee for the invitation.
I'm here as a representative of the Centre for Law and Democracy, which is an NGO based in Halifax that works to promote foundational rights for democracy. Our particular emphasis is on freedom of expression, so I'm planning on providing commentary from that perspective.
I'll say at the outset that I support the recommendations of Craig Forcese and Kent Roach regarding improving oversight of the system, as well as regarding sharing evidence. I also share the concerns of the Privacy Commissioner regarding the expanded scope of information sharing.
First, regarding the offence on advocating or promoting the commission of terrorism offences, it is well established under international law that there is an important difference between mere advocacy or promotion of something regardless of its harmfulness, and incitement to a harmful result. International human rights standards require a very close nexus between a statement and the risk of harm before the former may be legitimately prohibited. This standard ensures an appropriate balance between protecting free speech and protecting against harm.
An academic work, for example, may be said to advocate in favour of something by extolling its virtues and by setting out and weighing its relative benefits and drawbacks, and yet it would be rare for an academic work to actually incite others to harmful results.
The media, which have a professional obligation to report in a timely and comprehensive manner on acts of terrorism, could be deemed by some to be promoting terrorism offences by doing so. The use by Daesh of social media to promote itself simply by distributing videos and images has been widely commented on. This provision could potentially be applied to media reporting on their activities. Similarly, a very strongly worded poem may advocate for something, and yet it would be rare for it to create a genuine risk of harm.
There is clear authority under international law for the need to maintain, at least in relation to restrictions on freedom of expression, a clear distinction between expression which incites, and expression which merely advocates, promotes, or praises. I cite in particular article 20.2 of the International Covenant on Civil and Political Rights, which calls for the prohibition of advocacy of national, racial, or religious hatred, but only where it "constitutes incitement”.
Article III(c) of the Convention on the Prevention and Punishment of the Crime of Genocide uses similar language. I cite the 2015 Joint Declaration on Freedom of Expression and responses to conflict situations by the special mandates on freedom of expression from the United Nations, the Organization for Security and Co-operation in Europe, the Organization of American States, and the African Commission on Human and Peoples' Rights.
There are also problems with the recklessness standard in the offence, which should be of particular concern to the media. The media would presumably rarely, if ever, report on terrorism with the intention of promoting it, but they might be deemed to have been reckless as to this possible result. We recommend that this provision be deleted, as it is unnecessary in light of existing anti-terror provisions in the Criminal Code and overbroad in its impact on freedom of expression.
Sections 83.222 and 83.223, which provide for the seizure and suppression of “terrorist propaganda” are also problematic insofar as they apply a substantially similar definition of what constitutes terrorist propaganda. Although seizing material is not as serious an infringement as arresting its author, the potential overbreadth of the restriction is of concern either way. Moreover, the standard for acting—that of there being reasonable grounds to believe it's terrorist propaganda—is a troublingly low threshold to cross. For a media outlet, having its material seized or suppressed for seven days and the requirement of going to court to obtain its release could lead to significant operational challenges, with the concomitant possibility of a chilling effect around legitimate speech.
We also note that unlike the 83.221(1) offence, which incorporates the protection of a mens rea requirement, there are no conditions or protections against abuse of the reasonable grounds standard. Given that this is analogous to an urgent action or interim measure, it should be incumbent on the legislator to include protective measures. These might, for example, require a clear risk of imminent dissemination of the material to be shown, along with a similar risk of incitement to an actual terrorism offence. In other words, this sort of measure should at the very least be treated as exceptional, and appropriate protections against abuse should be built into it.
Regarding investigative technology in the digital world, it's a bit troubling that the green paper treats the Spencer decision as a problem to be solved or circumvented rather than a definitive statement by the country's highest court to the effect that there is a significant privacy interest in Canadians' metadata. We agree with the Spencer decision, but the bottom line is that it is the law of the land and should be respected.
What is far more troubling is that the green paper appears to be opening the door to far more intrusive and problematic policies, such as requirements for intermediaries to retain the technical ability to decrypt information sent by their users. This should be a huge red flag to any Canadian who cares about digital security.
For years, authorities in the United States and elsewhere have sought a solution whereby official access could be enabled without compromising security. The technical community has been and remains unanimous in their position that this is not possible. It is impossible to build a back door that only the good guys can walk through.
Even if it were possible to limit access to state requests that followed a proper procedure, it is worth noting that we live in a world where many governments do not share Canada's lofty ideals. What would be the impact on global human rights if the governments of China, Russia, Egypt, and Saudi Arabia demanded a similar deal? If such a solution were to be developed, it would be impossible to keep it out of the hands of the world's repressive governments. Strong encryption keeps everyone safe.
The other highly problematic new proposal that the green paper contains deals with data retention requirements. Data minimization, whereby organizations seek to limit materials stored to what is strictly necessary, is a cardinal principle of modern digital security. Overstorage is one of the main reasons that the Ashley Madison hack and last year's hack of the United States Office of Personnel Management were so catastrophic.
The green paper mentions data retention requirements in Australia. It does not mention that in the run-up to their adoption, Anonymous hacked the databases of one of the country's largest ISPs as a demonstration of why the requirement is a bad idea.
The green paper also fails to mention significant resistance at the national level to the data retention directive in Europe even before it was struck down, including having been rejected by courts in Germany, Romania, and the Czech Republic. Sweden, among others, also flatly refused to implement the directive.
Although the online world certainly presents novel challenges to law enforcement, it is worth noting that the tool kit available to police today is vastly more powerful than their investigative tool kit 20 or 30 years ago. The idea of developing a digital trail that can be tracked back for weeks or months is only a novel challenge because police never had the ability to do anything comparable in the past. If a suspect came on the police's radar in 1993, there was no way for them to go back to track their movements and communications from 1992.
From this perspective, painting the modern digital landscape as an environment where law enforcement is increasingly powerless does not comport with reality. With modern data processing, the centralization of communications due to the spread of the Internet, and the proliferating digital trail that it leaves, law enforcement investigative techniques are more powerful, effective, and efficient then ever before, even if they are not as powerful as someone in law enforcement would like them to be.
Mr. Chair and honourable committee members, thank you for the opportunity to speak with you regarding Canada's national security framework.
At this point, I would like to commend the Liberal government for launching a public consultation to inform legal, policy, regulatory, and program-based changes to the national security framework. My testimony before the standing committee centres on the additional authority for domestic national security information sharing as established under the Security of Canada Information Sharing Act, hereinafter the SCISA, and its impact on the right to privacy under domestic and international human rights law.
Indeed, the most vital function of government is to ensure peace and security by protecting its populace and citizens abroad.
|States are faced with the challenge of protecting human rights and fundamental freedoms while suppressing small groups of interconnected non-state terrorists who operate in detached networks and have the capacity to commit massive atrocities with minimal resources. These elusive factors amplify the risk posed to the state and members of the public by masking efforts to identify networks of individuals who are involved in or associated with terrorism, detect potential terrorist threats, and prevent terrorism from occurring.
This, however, does not negate the state's duty to respect, protect, and fulfil its domestic and international human rights obligations. Under the Canadian Charter of Rights and Freedoms, Canada's populace is guaranteed the “right to life, liberty and security of the person”, not life and security on the one hand and liberty on the other. These protections are interdependent and non-hierarchal.
Let us consider guidance from the International Commission of Jurists, urging states to:
||adhere strictly to the rule of law, including the core principles of criminal and international law, and the specific standards and obligations of international human rights law, refugee law and, where applicable, international humanitarian law. These principles, standards, and obligations define the boundaries of permissible and legitimate state action against terrorism. The odious nature of terrorist acts cannot serve as a basis or pretext for states to disregard their international obligations, in particular, in the protection of fundamental human rights.
The right to privacy is protected under article 17 of the International Covenant on Civil and Political Rights, to which Canada is a state party. Though there is no equivalent protection found under the Canadian Charter of Rights and Freedoms, the right to privacy is an enabling right to the fundamental freedoms set out under section 2, namely the “freedom of thought, belief, opinion and expression” and “freedom of association”. Privacy is likewise an enabling right for freedom of information and the “free unhindered development of one's personality”.
To exchange human rights, freedoms, liberties, and democratic safeguards for national security is not justifiable. “No law, no matter how well-crafted or comprehensive, can prevent all terrorist acts from occurring.” As such, the public must be mindful that the blind relinquishment of its civil liberties may not protect them from threats to national security.
A balanced approach is needed to ensure adequate measures are in place to prevent and address any such threats while protecting the fundamental human rights and freedoms of its populace. “When States fail to strike a balance between human rights and security in the context of countering terrorism, they risk impeding the very rights they purport to protect”, for what is national security without human security and what is human security without human rights?
According to the Special Rapporteur on the right to privacy, Professor Joe Cannataci, in limiting one's right to privacy in the name of national security, several factors must be considered, including the adequacy of oversight mechanisms, the distinction between targeted surveillance and mass surveillance, the proportionality of such measures in a democratic society, and the cost-effectiveness and the overall efficacy of such measures.
Introducing sweeping changes to the way in which personal data is shared among government agencies in Canada should be coupled with a commensurate review mechanism for ensuring the information shared is accurate, is done so within the limits prescribed by law, and is done so with minimal impairment to the rights and freedoms set out under the charter.
Distinguishing between targeted and mass surveillance is essential to preventing the net from being cast too wide and encasing innocent civilians undeserving of the erosion of their civil liberties. Failing to do so assumes in a sense that all are guilty until proven innocent, perverting a fundamental and long-standing principle of justice.
In terms of proportionality, there should be minimal impairment to the rights affected and the solution must not be worse than the problem. Has this test been met by the SCISA, wherein personal data can be shared across government agencies without any guarantee as to the accuracy of the information shared or express restrictions regarding the sharing of information with private actors and foreign governments? Much like a child's game of telephone, the original content of a message risks becoming distorted, potentially having significant consequences for the individual concerned.
In his first report to the Human Rights Council, Special Rapporteur Joe Cannataci expressed concern that:
||the ordinary citizen may often get caught in the cross-fire [of mass surveillance] and his or her personal data and on-line activities may end up being monitored in the name of national security in a way which is unnecessary, disproportionate and excessive.
The final point regarding cost-effectiveness is not one on which I can comment as an expert, though from a common sense point of view, concentrating resources where they are most needed—i.e., on targeted surveillance—limits the risk of overlooking a potential threat due to an information overload. In other words, we must ask ourselves what utility is served by mass surveillance? Does it result in greater protection for national security, or does an information overload spread resources so thin that it renders government efforts less effective in responding to potential threats?
As mentioned, Canada has international obligations to respect the right to privacy under the International Covenant on Civil and Political Rights. A corresponding treaty body, the Human Rights Committee, monitors the compliance of state parties with provisions within the covenant. In its concluding observations to Canada's periodic report, the Human Rights Committee expressed concerns that:
||...Bill C-51's amendments to the Canadian Security Intelligence Act confer a broad mandate and powers on the Canadian Security Intelligence Service to act domestically and abroad, thus potentially resulting in mass surveillance and targeting activities that are protected under the Covenant without sufficient and clear legal safeguards...including under the Security of Canada Information Sharing Act, an increased sharing of information among federal government agencies on the basis of a very broad definition of activities that undermine the security of Canada, which does not fully prevent that inaccurate or irrelevant information is shared....
In its general comment number 16, the committee has also clarified that:
||Effective measures have to be taken by States to ensure that information concerning a person's private life does not reach the hands of persons who are not authorized by law to receive, process and use it, and is never used for purposes incompatible with the Covenant.
Before Bill was passed, the improper sharing of information by the Government of Canada led to serious human rights abuses against Canadian citizens, including Almalki, El-Maati, Nureddin, and Arar.
The SCISA develops further authority for the government to share personal data without developing corresponding legal safeguards to prevent the repetition of similar gross injustices.
Now that we have identified some of the inconsistencies between the SCISA and Canada's international human rights obligations, let us look to potential solutions.
I'll read very quickly.
Number one, clearly define the scope of activities that constitute a “security threat to Canada” under section 2 of the SCISA, as well as “advocacy, protest, dissent and artistic expression”, which are excluded from the scope of the act.
Two, strike out provisions within the act permitting inter-agency information sharing to prevent losing control over sensitive information potentially harmful to Canada's national security. If disclosing information sensitive to national security can be so harmful as to warrant the limitation of fair trial rights within the existing framework—i.e., non-disclosure of classified information to the defence in a criminal case—how is this risk mitigated by inter-agency information sharing among heads of agencies who are neither experts in the right to privacy nor experts in national security?
Three, establish an office of the national security adviser “to review all national security activity, and to ensure effective information sharing” from government agencies to CSIS and the RCMP.
Four, amend the Privacy Act to compel heads of agencies to share all information that will adversely impact Canada's national security with the Canadian service intelligence agency via the office of the national security adviser. It is problematic that discretion rests with the heads of agencies as to whether to disclose information regarding “activities that undermine the security of Canada”, as they are not traditionally experts in the field.
Five, introduce regulations to track what type of information has been shared, by whom, and for what purpose, via the office of the national security adviser.
Six, follow up on cases where an individual has been cleared and ensure all relevant government agencies and other entities with which information has been shared are aware of this.
Seven, set out clear access to a remedy where information shared has resulted in adverse consequences for innocent individuals or disproportionate consequences for guilty persons.
Eight, more intrusive information sharing should require authorization through the issuance of a judicial warrant.
If the SCISA continues to allow inter-agency information sharing regarding the activities set out under section 2, I likewise recommend that it ensure that revisions to schedule 3 adding or deleting a Government of Canada institution are accompanied by a clear justification, including an explanation of how the agency's duties directly relate to national security.
I wish to end with this final point: “...respect for human rights legal obligations is a prerequisite for effective security”, not a hindrance. Canadian domestic legislation should reflect this by striking an appropriate balance between the right to privacy and the protection of national security.
I'm rusty at this. It's kind of fun.
Thank you for your work, and because Mr. Karanicolas is here, I want to spend a bit of time on the digital world stuff.
We're trying to scope out our big study on the national security framework, and one section is security in the digital age. We're not even sure what questions we should be asking, and I'm not sure. The green paper outlines four areas: basic subscriber information, interception and the requirement of service providers to allow that, encryption, and storage retention.
We've heard testimony on some of this. You haven't talked about basic subscriber information, or BSI. I'd be happy to have you comment on that, and also to have your comments on helping us frame our discussion.
Your work has been largely on access to information and making sure the public can get what the government has, and not as much on the government getting our stuff. Have you any comments on what we should be asking ourselves, or what questions we need to ask?
Thank you, Mr. Chair, and thank you to both Christina and Michael for being here.
To your second-last comment, Christina, I don't wake up every morning worried about dying in a terrorist attack either.
To carry on from something you said, Michael, you wondered if the terrorist threat was any worse than it was 20 years ago. I guess my comment would be that in 2006 we had the group of 18 in Toronto; two years ago we had Warrant Officer Vincent killed in the Montreal area and Corporal Cirillo in Ottawa; then just recently, not that far from where I live, a couple of hours to the south, there was a would-be terrorist, so I would say, respectfully, that the threat is probably there.
You were certainly correct that we can't compare it to Afghanistan, or even to some of the recent happenings in Europe—in Paris and what have you—but I think we do live in a different world today. You're nodding your head, so I presume you agree with me there.
Carrying that out, until we started these meetings earlier this week, I hadn't heard the term “metadata”. Of course, “encryption” is a word that we've heard lots of times, but not with the meaning that comes up here.
You made a comment earlier about strong encryption, which sounded like a good thing to a degree. Some of the criticism that comes out of Bill on some of the securities is about that encryption. Can you explain to me the difference between strong and good encryption, and how we deal with it, and the opposite?
We're going to reconvene.
Thank you to the witnesses who are here for our second panel. I don't think you were in the room when we started, so this is just to put this into context.
We are doing a study on the national security framework of Canada, and that is a large study. It's being done at the same time as the government is doing a study. They've issued a green paper on national security and how we reframe it. Our study is related to that, but not part of it, so we're not here as government. The green paper informs our study, but it does not encompass our study. Our study can be broader. It can be more foundational.
We're already having the first piece of legislation to deal with, and that's Bill , around oversight. We're anticipating more pieces of legislation, and as a result of this study we may be recommending legislative changes to the government. However, we are not doing their consultation. This is our consultation.
The members of the committee have been travelling. As I've said, we've been in Vancouver, Calgary, Toronto, and Montreal this week, and we are delighted to be in Atlantic Canada.
There was some miscommunication, but we'd like to give each panellist would 10 minutes, so I'd like to go to about 4:10 or 4:15, if that's okay with the committee, so that we can have enough time for questioning as well.
Some hon. members: Agreed.
The Chair: Perfect.
I'm going to suggest that we begin with David Fraser for 10 minutes, and then we'll go to Brian and Andrea. Thank you.
Thank you very much, Mr. Chairman.
Thank you very much to this honourable committee for inviting me to provide my thoughts on this very broad consultation that the committee is undertaking, one that has obviously been influenced and affected by the green paper issued by the Department of Public Safety.
Though I have previously appeared before this committee on behalf of the Canadian Bar Association, particularly its national privacy and access law section, I am here today as an individual. I will not be speaking on behalf of my firm, any associations of which I'm a member, or any of my clients.
For some background, I am a lawyer in private practice with the firm McInnes Cooper, based in Atlantic Canada. I'm also a part-time instructor at Dalhousie law school, where I teach Internet and media law, and law and policy for e-commerce. I've also taught privacy law.
As you might be able to guess, my practice is exclusively devoted to privacy law and Internet law. In that capacity, I regularly provide advice to public sector and private sector clients from across Canada, and actually around the world, on their obligations under Canadian laws. That includes companies that are exclusively in the technology sector, the telecommunications sector, and other sectors. This means I'm often providing advice to my clients on interactions with law enforcement and national security agencies in Canada, where the police and national security authorities are seeking access to my client's customer information and information about others of their stakeholders. I have seen many things that inform the testimony I am about to give.
In my personal capacity, I am a strong proponent of a free and democratic Canada that is founded on the rule of law and rooted in our constitutional traditions. I am not associated with any political party, and I feel free to speak my mind on matters such as these from my heart, and hopefully informed by some serious, informed reflection.
I have some mixed feelings about where we are today. The current government campaigned and was elected on a platform that advanced scaling back Bill , the Anti-terrorism Act. I would have hoped we'd be discussing a piece of legislation that would be doing that rather than continuing the long-standing discussion that I expect will extend into the next year.
The information-sharing and disruption powers that the act contains have now become the status quo. We've heard testimony from others, and you've certainly heard it reported in the media, that these powers are being used. We are told they are working, but since we're dealing with the RCMP, CSIS, and CSE, we're not being given any real information about how they are being used. We're being kept in the dark, as usual.
That brings me to my first point. Our national security apparatus in Canada needs effective, accountable oversight. I think Bill is critical. Our system of government is a parliamentary one, in which Parliament makes the laws that set the limits under which the national security agencies operate. Parliament cannot do this job if it has blinkers on or if it's only given access to unclassified information, and in that case even information that only those agencies deem to be appropriate for Parliament to see. A committee of parliamentarians should have unfettered access to all information it deems relevant to carry out this critical job.
I would, however, suggest that we may need an officer of Parliament to oversee all the national security agencies, something in the model of the Information Commissioner, the Privacy Commissioner, or the Auditor General, who reports to Parliament directly. It may look like a super-SIRC, Security Intelligence Review Committee, that would have oversight over all of the agencies, because the line between CSIS, the RCMP, CSE, and others only depends upon who signs your paycheque, perhaps, or what's written at the top of your paycheque. They collaborate hand in hand. This oversight agency needs to be fully independent of the agencies and has to have unfettered access to everything. It should have the power to report to Parliament on its own initiative and to take any questions before any of the designated justices of the Federal Court on any question about lawful activities.
Our national security agencies by necessity operate largely in the shadows. The only way that we as Canadians can have confidence that they're doing their jobs appropriately is if we have confidence in the organizations that oversee them. I'm not sure we yet have that.
We saw recently a case in which CSIS, with the approval of the Department of Justice, knowingly lied under oath to a Federal Court judge in order to get a warrant. We cannot allow that to happen. We saw a situation in which our federal police department was found to have created terrorists through entrapment. This can't be allowed to happen. Dozens of police officers every year are disciplined for inappropriate and unlawful access to CPIC, the Canadian police database. That shouldn't be allowed to happen. We need to be able to assume the good faith of the individuals who act on our behalf in our police departments and our national security authorities, but it's only through effective oversight and accountability that this can actually be done.
I read with great interest the green paper, and I read with great interest its backgrounder. I could tell who the author was. It was drawn directly from the wish lists of public safety bureaucrats, folks like Commissioner Paulson and the Canadian Association of Chiefs of Police.
It advocates, in a one-sided manner, a whole bunch of police powers that have been debated back and forth over the years and ultimately have been dismissed.
You'll recall that Canadians roundly denounced the lawful-access provisions, the interception capabilities, and other things that were embedded in the Modernization of Investigative Techniques Act that was tabled by Vic Toews and ultimately left to die on the order paper.
I found that the green paper and its backgrounder on advocacy was disguised as consultation, and it's clear that somebody was looking to revive these lawful-access powers, notwithstanding that the Spencer decision was pretty clear about access to basic subscriber information and rights of privacy that individuals enjoy on the Internet. We're still hearing advocates of this sort of thing talking about phone book information—and I'm happy to talk about metadata as well—which was thoroughly debunked by the Supreme Court in that case. The fact that this discussion is taking place in terms that fly in the face of what in fact is the last word on the supreme law of the land from the Spencer decision further reinforces to me that strong oversight is required.
I'm happy to talk about the topic of warrantless access to subscriber information, a topic that I've done a lot of research into, as well as the topic of going dark through encryption.
Ultimately, to allow additional time for questions to make sure that everything the committee wants to hear is heard, we need to be careful that this wish list doesn't come at the expense of our rights. We need to be very cautious, and this committee has a very important job. The threat of terrorism is a threat to our democracy, but we cannot create a self-inflicted wound by marching towards a police state or undermining our democratic values.
I very much look forward to the discussion we're going to have.
Thanks to the members of the committee for this opportunity to provide input to the committee's ongoing consideration of Canada's national security framework.
I'm here in my capacity as the director of the Centre for the Study of Security and Development at Dalhousie—the successor research centre to the Centre for Foreign Policy Studies—but the views I'll be expressing here are my own, rather than those of the centre as a whole.
One of our core projects now is a comparative study that looks at the way that cross-national networks manage different kinds of internal or homeland security issues in both the North American and European regional contexts. It's a very broad study that takes in a number of different policy areas, and today I'm going talk a little about one slice of that. It's going to take us a little away from the themes that have been covered in some of the previous presentations. The argument I want to make here is based on an interest in broadening our view of what security questions we want to consider here as well as making the case for broadening and balancing our focus and thinking about how we want to weigh counterterrorism operations against other kinds of security priorities.
I'm going to be focusing mostly on cross-border cooperation and on border control questions, particularly the policing of cross-border criminal activity, with special attention to the trafficking of people, money, guns, and drugs.
The main point I want to make here is that some of the mechanisms for coordinated surveillance and enforcement activities that were set up in the immediate aftermath of 9/11, which were important initiatives, have been undercut over the last 10 years by reallocations of resources and shifting priorities by some of the agencies involved, and that has led to a diminishing of some of those law enforcement activities, or at least the cross-border coordination of them. I want to make the argument that it isn't necessarily a bad outcome, as long as those initiatives are replaced with new ones that respond more effectively to what we understand about how some of these illicit transborder flows actually work and are based on a different set of strategic priorities, which I will try to explain.
After 9/11, the top priority on both sides was demonstrating that the border was as tightly controlled as possible and, on the Canadian side at least, also that this was being accomplished without massively disrupting trade and travel or undermining Canadian sovereignty.
That led to the creation of a number of technical working groups on a variety of issues that were designed essentially to create new standards and procedures for border control and border patrol activities. These were enormously complicated and important policy coordination efforts. They were also very slow-moving, and in many cases dull and technically not very exciting politically, and for the most part they didn't get a lot of political or media attention. We tended to focus on cross-border law enforcement activities instead, and particularly a small number of initiatives that were flagship efforts, I guess, some of which predated 9/11, but many of which had been played up in the immediate aftermath of 9/11 as representative of a new approach.
Here in particular I'm thinking about the integrated border enforcement teams—the IBET program—and the shiprider program. These were played up politically, mostly based on having a particular symbolic value that came out of showing highly integrated operations at the front line, which could be reassuring to people who were worried about the adequacy of those border enforcement efforts, and also because they consistently produced tangible results in the forms of arrests and seizures. They looked good and they seemed to represent that the problem was being resolved.
Over the last 10 years or so, those programs have been diminished. They still exist on the books and people are still operating on those files, but far fewer resources are going into them. Here in particular I'm thinking of personnel, and that's because a lot of the people who had previously been assigned to these things, particularly on the west coast, have been reassigned to other things, and that is representative of a larger reallocation of resources within the law enforcement community.
There are two parts of this that I want to highlight for you.
One of them is a shift of priorities in terms of the RCMP's overall strategy for Canada drug operations and a tendency to refocus away from catching that one guy with the pickup truck at the border and thinking more about this as being part of a larger criminal network. It's thinking about how cases can be built that attack transnational criminal organizations at the centre and thinking about it more in terms of finance and building cases based on intelligence that lead up to the top of the pyramid, aiming at the head instead of at the toes of the organization.
At the same time, within the RCMP there's also been a redirection of resources away from organized crime in general and towards national security files, in particular on the intelligence side. There's a shifting both in terms of money and also personnel over to the intelligence side on national security files. Obviously, there are good reasons for that to happen, but there are significant consequences to the withdrawal of those resources from the organized crime files.
On the American side, there have also been some developments that have changed the landscape a little bit as well.
The main one, particularly on the west coast, has been the withdrawal of agency commitments to the IBET program and reallocation of those resources to the BEST, the border enforcement security teams, which is a model that was originally developed on the U.S.-Mexico side and has been now transplanted and spread to other regional directorships. Whereas the IBET program involved a number of different law enforcement agencies on the American side, none of which had a kind of clear lead within the program, the Department of Homeland Security's HSI, Homeland Security Investigations group, really dominates the BEST program and organizes it in a way that makes sense for them as an organization. That has consequences not only in terms of how they do their business but also on the participation of different agencies from both sides of the border.
One of the main things is obviously that the HSI's focus is on border patrol activities and law enforcement activities that are focused on the border area, and the RCMP just has fewer incentives to invest resources in that than it did in the previous version of the IBET-driven border co-operation. That, in combination with the shifting of resources within the RCMP, has meant that there's been a withdrawal of the commitment on the Canadian side from the BEST-centred border control activities. That is not necessarily a bad thing, because as much as the IBET looks great symbolically, they were really very much focused on catching low-level distributors and smugglers, and they really didn't do much damage to any of these larger transnational criminal organizations.
Obviously there's still a continuing need to have law enforcement activity at the border to manage those things, and I'm not suggesting we would give up on that entirely; however, there ought to be a shifting of resources to other things. I think the RCMP's larger strategic shift toward combatting criminal networks as networks makes a lot of sense, but it has to be followed through with a substantial investment of resources to support that activity; otherwise it looks, as it does in the eyes of many of the U.S. agencies that participate in, for example, the BEST, as a cop-out or rationalization for the withdrawal of participation altogether.
I want to make the argument here that there needs to be a shift of resources back into organized crime co-operation and that this shift has to be adapted to the new reality and new strategic priorities of the agencies involved. That means thinking about more of a task force model that involves cross-border co-operation built around attacking particular patterns of flows or particular organizations, and mostly it's going to focus on tracking money and long-term building of intelligence-driven cases against the leadership of some of these criminal organizations.
This is a costly and demanding thing, and it involves all kinds of political obstacles based on the differences in our disclosure rules and privacy rules. There are all those kinds of obstacles, but none of those diminishes the need to work out some kind of an understanding and to have a renewed commitment to resources to back it up.
Thank you very much for inviting me today. It's really an honour to present to you. My name is Andrea Lane, and I'm the deputy director of the Centre for the Study of Security and Development at Dalhousie University, although today I am appearing in my capacity as an individual.
I would like to speak to you about research that I have conducted that seeks to contextualize the broader discussion of anti-terrorism legislation, radicalization, and counter-radicalization measures. This research was funded by a bursary from Public Safety Canada under the Kanishka research affiliate program.
My research examines so-called single-issue terrorism—that is, terroristic violence used in the pursuit of an issue, such as environmental protection or white suprematism or the outlawing of abortion. It blurs the lines between right-wing and left-wing extremism, and this kind of terrorism is very often understudied, with public attention and law enforcement attention directed more on Islamic terrorism.
In particular, my research examined why some activists choose to use terroristic violence as a protest tactic, and how those activists differ from their non-violent counterparts. More importantly, it asks how security agencies could tell the difference between violent and non-violent activists before the bang—that is, in order to prevent attacks.
My conclusions provide some suggestions as to how costly surveillance and law enforcement assets could be used more effectively. It's difficult to summarize a year and 120 pages of the research into 10 minutes, but I'm going to try, so bear with me.
My research was testing a sociological theory of mobilization—that is, of how people come to be involved with a particular social movement or group, in this case terrorist groups. The theory was that people only become mobilized into activism or terrorism when several conditions are just right for this to occur, and not, as is more commonly thought, when they start to have beliefs or ideas about an issue.
We tend to think about radicalization into violence as belief before action. The theory that I was testing actually posited instead that it's actions before beliefs, so that people's beliefs, radical or otherwise, actually come about only after their participation in an activist group.
People who are at a turning point in their life—and it doesn't have to be a negative crisis, and it could be something as simple as moving to another city for a job or obtaining a divorce—who come into contact with an activist group, almost on a lark or accidentally at a time in their life when they're more receptive to certain ideas or new people, can be mobilized. Both of those conditions have to be met. If they have contact with a group while they are not at a turning point in their life, they're not mobilized. If they are at a turning point but they don't have contact with a group, they are not mobilized.
I tested this theory using the 1980s Canadian terrorist group called Direct Action, also known as the Squamish Five. I compared them with members from non-violent groups whose issue areas overlap those of Direct Action, including anti-nuclear and anti-resource development groups. I conducted interviews and collected evidence from court proceedings, newspapers, and groups members' own writings to see whether the theory of mobilization held true and could explain the difference between violent and non-violent radicalization.
My research found three things that are important for members of this committee to know as they go forward with a review of Canada's national security framework.
The first finding is that activists are moulded by the groups to which they belong. A group like Greenpeace or the Canadian Centre for Bio-Ethical Reform is not only a political group but also a social community with its own sets of traditions regarding the way its members should think about an issue and a corresponding set of traditions regarding protest behaviour.
For example, the CCBR believes abortion to be a social justice issue like slavery in the U.S., and it advocates for its supporters to use leaflets, bumper stickers, letters to their newspapers or MPs, and seminars to spread its message. Greenpeace, on the other hand, believes raising public awareness is key in effecting environmental change, and it encourages its members to participate in high-profile public stunts. This means that current members of non-violent protest groups are highly unlikely to commit terroristic violence because they are extensively socialized against it. In that case, violence is almost unthinkable for them because it violates the social rules of their group.
That brings me to my second point. Activist groups like Greenpeace, Earth First!, and Idle No More, who use what could be termed violence against property, are in fact valuable assets in the efforts to prevent violence against people. The conflation of violence against property and violence against people in terms of legislation or in crime prevention efforts does more harm than good, because in fact looking at non-violent groups that don't advocate violence against humans but that might advocate violence against property, for instance, is one of the best ways of finding out who within their larger groups might actually be at risk for being radicalized into violence against humans. If you alienate those groups by conflating property destruction and actual intentional violence against humans, then you lose a valuable asset. Those are my second and third points, because I recognize that I'm running out of time.
Thank you very much for your attention. I look forward to answering any questions you might have about my research or any other aspects of single-issue terrorism in Canada—which I gather isn't the sexy form of terrorism these days—and radicalization into violence more generally.
Absolutely, and it just requires judicial authorization. That's what it takes. Before the Spencer decision, there was a patchwork system. A number of Internet service providers decided that if the police said it was an investigation into a child exploitation offence, then the Internet service provider would hand over the customer information when provided with the IP address by the police. Every Internet service provider in Canada followed that except for two, both of which are based in Atlantic Canada.
Investigations were able to proceed here because we have been able, for the last 10 years or longer, to go to a Justice of the Peace and obtain a production order that requires the Internet service provider to hand over that information. That process was actually made easier under Bill . That bill is best known for dealing with the non-consensual distribution of intimate images, but it also lowered the threshold for a number of production orders that allow a Justice of the Peace to provide that information.
I find it surprising that I hear from law enforcement that it's now more difficult.... Well, it is more difficult, because you used to just ask and get it, but it was in only a very small subset of cases that they were able to get it. They're saying it takes longer to get it from the Internet service provider, when in fact a production order includes a timeline that's a court order. Before it was just voluntary, and they were hopping to it.
They can get access to this information, and if there is a problem with the amount of time or paperwork or whatever that is required for them to get it, the solution is to have more Justices of the Peace and to create a streamlined process or to fine-tune or tweak what's in Bill C-13, rather than throwing the charter out the window.
They say they're only looking for basic subscriber information, a customer name and address, but as the Supreme Court of Canada decision said, they're looking to connect that name and address with an activity that's unlawful, such as trading child pornography, cyberbullying, or something like that.
I know you acknowledged how difficult it is, particularly with the limited time, and I also understand that it's a complicated issue, but I have to say that I do find it a concern when there's always that possibility of profiling certain groups.
I'm from Quebec, and this to me sounds a lot like that slippery slope that leads to when the RCMP is stealing membership lists from a political party, which eventually then leads to the War Measures Act and people with any affiliation whatsoever with a certain community being detained. I know that's not what you're advocating for, and I don't mean to imply that at all, but I do have a concern when I hear that we want to make a link between legitimate groups and those who, for lack of a better word, fall off the wagon, because that's almost how I hear this narrative going.
This was part of the debate around Bill . I know you're looking at it from a more sociological perspective, but I just want to hear from you on this point. When Bill C-51 was being debated, part of what I and folks in my party said is that while terrorism has a political element, political activity, even when it's civil disobedience, is not terrorism. I'm very concerned that when we look at it this way, when we start making links, even though they're stretched between the two, that's when we start getting lost as legislators, by putting these kinds of definitions—flawed definitions, in my opinion—in bills.
Again, I know it's complicated, but could I have your thoughts on some of those comments I've just made?
I guess what I'm advocating for is actually a better situation than is currently existing with legitimate protest groups and government law enforcement. It is extraordinarily adversarial, and it's also combative and really expensive.
During the Vancouver Olympics, the budget for surveillance and following protest groups like Greenpeace or others who might have wanted to interrupt what was going on at the Olympics in a quasi-violent way was millions and millions of dollars and person-hours spent on this, because there existed this complete wall between protest groups and government.
You're perfectly right that if you go down this slippery slope of nailing every type of behaviour as possibly criminal, the end result is the criminalization of legitimate protest.
What currently exists is a fairly broad umbrella of what is defined as terrorism in Canada, and then this grey area where law enforcement is able to use terrorism-related language and assets to pursue groups who, yes, are advocating for property destruction and a bunch of things that most people and legislators would rather not have, such as big protest marches and things like that. As it currently stands, it's the worst possible scenario. You have that legislative criminalization and terrorization of that activity and you have no mechanism in which to speak to each other in a way that isn't really expensive, and it plays badly in the public eye as well.
There are a million things I could say about that, but I'll just make a couple of points.
The first thing is that the overall pattern on organized crime is that there are ad hoc efforts to build teams around particular cases. Most of the initiative for those things comes from international partners, and the RCMP participates in those in an ad hoc way. They very much are about providing support for multinational operations.
There are two kinds of negative consequences to that approach. One is that it tends not to build sustained professional networks. People move into these groups and they work on an operation until their part is done, and then they lose the connections. There's very little long-term relationship-building that might provide some of the trust that makes it easier to establish functional information-sharing relationships.
The other thing is that there's no strategic priority-setting in an arrangement like that. The operations that they participate in are, for the most part, ones to which they've been invited by law enforcement agencies in other places, particularly the United States, so rather than having a set of strategic priorities, they're essentially piggybacking on other operations.
I would suggest that we ought to be thinking about having a program for setting up a set of long-term campaigns driven by Canadian priorities on these things. We should identify the organized crime problems we want to address, build task forces around them, and then make connections to law enforcement agencies in other countries to pursue those cases.