Thank you very much, Mr. Chair.
Good morning, everybody.
Thank you for the opportunity to appear before you today to discuss Bill . I will focus my presentation on two main areas. The first part will lay out SIRC's high-level response to the bill. In the second, I will offer a few suggestions for improvements to the language of the bill based on SIRC's experience in this area.
This is a positive time to be working in the area of review and accountability for intelligence in Canada. Not long ago, I was here to discuss the creation of a committee of parliamentarians in the context of Bill . I'm here again, this time to discuss the government's proposal to create the National Security and Intelligence Review Agency, or NSIRA. I will use this abbreviation. I hate using those acronyms of NSIRA, NSICOP, SIRC, CSARS, etc., but we have to. I will go on with NSIRA, which will be responsible for reviewing intelligence and national security activities across government.
Indeed, as included in the bill before you, NSIRA is to review any activity of CSIS or CSE carried out in any other department or agency that relates to national security or intelligence and any other matter related to national security referred to it by the minister. This will bring a dedicated national security review of the type that SIRC has been doing for more than 30 years to a large number of other departments and agencies, including in particular the CBSA and the RCMP. This will answer the gap that so many, including SIRC, have commented on over the years.
The recently created National Security and Intelligence Committee of Parliamentarians, or NSICOP, has been added to the proposals respecting the new intelligence commissioner. Together the three entities will represent a substantial change in the accountability system for intelligence in Canada.
I will just take a minute to describe for the committee the mandate and responsibilities of the Security Intelligence Review Committee, or SIRC. I will stress that SIRC is an independent external review body that reports to Parliament on CSIS's activities.
SIRC has three core responsibilities: to carry out in-depth reviews of CSIS's activities, to conduct investigations into complaints, and to certify the CSIS director's annual report to the . In essence, SIRC was created to provide assurance to Parliament, and by extension to Canadians, that CSIS investigates and reports on threats to national security in a manner that respects the law and the rights of Canadians.
SIRC has discharged its mandate faithfully over its history, and it has had an impact. This was demonstrated most recently by the Federal Court of Canada decision of October 2016 that confirmed SIRC's long-standing practice of assessing the lawfulness of CSIS activities, including how CSIS applies the “strictly necessary” threshold to its collection and retention of information, which is one element that is all over the place now. Through its review work, SIRC contributed to high-level discussions on the type of intelligence that CSIS can collect and retain, as we see in the dataset provision of Bill .
But the legislation makes clear that the National Security and Intelligence Review Agency, or NSIRA, is an entirely new entity, to be created—not from SIRC or the Office of the CSE Commissioner—but from a desire to push the accountability agenda forward in Canada. SIRC and the Office of the CSE Commissioner will be dissolved when NSIRA is created.
SIRC, along with its partners and counterparts in the review community, have long called for change of this nature that will break down the silos that have hampered review for so long.
When the decision was made in Canada more than 30 years ago to create SIRC, it represented some of the best, most forward thinking at the time on accountability for intelligence. But this is a new era, with new challenges for accountability. Canada has an opportunity to again fashion itself after the best of thinking on accountability, taking into account the important experience of others.
The parliamentary element of accountability means designing a committee of parliamentarians, which, I imagine, you already know. I am pleased that the government did not stop at the creation of NSICOP and has included equal attention to expert review.
Internationally, we can see our allies similarly adding substance to the review and oversight structures responsible for national security. In the U.K., there is the new Investigatory Powers Commissioner's Office. In New Zealand, there has been a doubling of the size of its inspector-general. In Australia, expanding the size and remit of its inspector-general for intelligence is actively being discussed as we speak.
Canada's deliberations on accountability are happening at a time when there has been a shift in thinking on accountability for intelligence agencies, translating into expectations among the public of greater transparency. To that end, one of the great strengths of the bill is the provision that allows for the agency to issue special reports when it decides that it is in the public interest to report on any matter related to its mandate. The new agency will issue these reports to the appropriate minister, who must then cause them to be tabled before each House of Parliament.
This will allow the new agency to signal a significant issue to the minister and the public in a timely way. SIRC is not currently able to do this, and it has been a limitation for SIRC in its ability to present the results of its work in a timelier manner. In light of the government's recent statements regarding transparency, this is an important provision. At the same time, we note that there are no provisions in the bill requiring CSIS to issue a public report to match the requirement of CSE in this regard. In the interests of transparency, SIRC views this as an important gap that SIRC puts to the committee to consider in its deliberations.
The proposed legislation makes clear that SIRC and its experience will be central to what is coming. The transitional provisions clarify that, at the coming into force of part 1, SIRC members, of whom I am one, are to be continued as NSIRA members for the remainder of their term. In the majority of—
What do these proposed changes mean for SIRC in the immediate? We have proposed some amendments that are not major. You have them in writing, and I encourage committee members to look at them. I will answer any questions you may have on that subject.
We will of course continue to review the activities of CSIS to ensure those activities are compliant with Canadian law and Ministerial Direction. As soon as we become NSIRA, we will promptly put the necessary mechanisms in place with the 17 or 18 new organizations that are under review.
All those organizations will be called upon to have MOUs with NSIRA to address the issue of how the review will be done; it's obviously a little early to address this.
In closing, we are very happy with this new bill that will cover...I wouldn't say “requests”, which is too strong, but what was discussed many times in the past over the last few years. Personally, having been involved for many years in national security, I will say that it will be very good to have all organizations and institutions in the Canadian government together being able to share their information and, I would say, to have better service for Canadians regarding national security.
I will stop at that and be available for questions.
I'm going to take less than 10 minutes. If I could, I'd just like to make five points.
First, if I were a member of the House—and I'm well aware that I'm not—I would have quite happily voted yea at second reading. I think this bill goes a long way toward simultaneously dealing with security issues and concerns as well as charter and legal rights concerns.
I do say “dealing simultaneously”. People talk about balancing the two. I don't think they need to be balanced. Each is so important that they have to be dealt with as stand-alones and then adjusted as necessary.
I think this is the case because the bill endeavours to respond to one central issue that it should address, and that's the level of threat faced by Canada and its allies. Otherwise, there's no reason to make changes. The only reason we have these agencies and their review capacity is that we're facing a variety of threats in the areas of terrorism, espionage, foreign interference, and cyber-activities.
In these areas, I think it's fair to say that our adversaries remain committed to pursuing their activities against Canada and our allies here and elsewhere. It does not take a great deal of effort, I think, to see how a rebalancing of the world's power relationships is adding considerable instability to the world and offering opportunity to our adversaries, states and non-states alike, and I think we're only beginning to get a grip on cyber-threats. I think the additional authorities proposed in the bill, along with the new arrangements for review, reflect this not-so-brave new world.
I only have one specific concern that I wanted to raise concerning the provisions in the bill that relate to the proposed intelligence commissioner. My concern is not really about the security and rights balance, if I can contradict myself; rather, it's a machinery-of-government or accountability issue. The bill proposes to give the commissioner final say about a number of CSEC and CSIS activities, which in my view should be the responsibility of ministers of the crown and not that of an appointed official. Giving a former judge, however eminent, responsibility for the legality of some activities is one thing—and a good thing—but surely “reasonableness” should be the domain of ministers and of the officials for whom they are responsible.
In practical terms, if something goes wrong in the future, and whether this House or the Senate or a royal commission looks at this issue, it seems to me that the veto proposed to be given to an appointed official will make it too easy for the minister of the day to escape accountability. I say again that this is not a security issue, and I raise this issue because as a concerned Canadian I think we should have considerable respect for the fundamental principle of our unwritten constitution, which is that ministers, not appointed officials, are accountable for delicate and sensitive things.
Under the current arrangements being proposed, you will have the agencies, the public safety department, the Department of Justice, the minister, and then an appointed official, who may or may not know anything about national security, determine in the final analysis whether in these variety of activities they can move forward. Having a former judge as a commissioner to determine legality is fair ball. While it's entirely lawful for Parliament to do this, it seems to me that it is fundamentally changing one of the principles underlying our system of government to give such a fundamental veto to an appointed official.
I'm going to stop there. I have a variety of views on some other parts of the bill. Should you have any questions, I'd be happy to try to answer them.
Thank you, Chairman.
Thank you to all of you for being here today.
Mr. Fadden, most of my questions will go to you.
You're here as an individual today and you have so much expertise in the realm of national security. I do want to ask you first about CSE and the proposal to allow CSE to carry out offensive cyber capabilities.
Last week we heard from Ray Boisvert, who, as you well know, is the former assistant director of CSIS, who told us that “the best defence always begins with a good offence.” In his view, when more than five dozen countries are rumoured to be developing active cyber capabilities, that means we must develop capabilities to respond, and in some cases that includes outside our borders.
You're nodding, so I take it that you agree with this position. In his commentary to the committee last week, Mr. Boisvert went even further and made the point that we're actually behind, that this should in fact already have happened. Can you delve into this?
Yes. Thank you, Chairman.
I generally agree that the authorities that are being proposed for CSEC are a good thing. I would put it somewhat differently. Monsieur Boisvert said that a good defence involves an offence. I would say that in the area of cyber, it's actually difficult to distinguish offence from defence and that, for example, you can sit in Canada and build up firewalls. That's purely defensive, and we're doing that now. Is it actually offensive, when you know somebody's about to come in and do you damage, to try to do something about it? I would say that's still in the realm of defensive, although it's in a grey area. “Offensive” would mean actually going out with a plan and a strategy and trying to do damage to somebody else.
At an absolute minimum—and I agree with the bill—you need to give CSEC the capacity to move outside Canada and to take some positive steps. I'd also note that I agree with Mr. Boisvert. All of our close allies have been doing this for some time, and we've been subject to some under-the-radar criticism for not being able to do it. I would also note that because the authority exists doesn't mean that it will be used blithely.
However, I think one of the great challenges of the day is cyber operations and cyber-activities, and we need to have this, I think, to defend ourselves, using the word “defence” in the broadest sense.
As I said in my preliminary remarks, I would change the powers granted to the commissioner. I think those powers are more than what is necessary and are too similar to the powers or basic responsibility of a minister. Let me be very clear: Mr. Goodale is not in question here. I am speaking from an institutional standpoint.
I would give CSE the very clear and unambiguous power to assist the provinces. The current wording of the act generally limits what CSE can do to federal government institutions. Everything is connected these days. Failure to give CSE the power to intervene in the provinces and the private sector—something it currently does—sends a somewhat unclear message.
I am not necessarily suggesting a change to the bill. As I said, it is generally speaking a good bill. Having worked at CSIS and been a national security advisor, I am starting to be concerned about what is being asked of the institutions subject to review by Mr. Blais and his colleagues, as well as the Federal Court. Taken together, the new committee of parliamentarians, the new SIRC, the commissioner, and the Federal Court place a significant weight on government institutions.
When I went to CSIS, I was really surprised to see that most applications made to the Federal Court ran to some 150 pages, even the shortest ones. I'm not saying that too much is demanded in any particular case, but rather that this requires a lot of resources. I am not convinced the government provides its institutions with enough resources to conduct the effective review for which Mr. Blais is responsible.
Before, we had only two or three organizations to review national security. Now we have 19 altogether, and you're saying maybe that's too many. I don't think so.
NSIRA will be created. It will be new when the bill is adopted. We will see, case by case. I would say that when we start as NSIRA, we will probably not have a dozen investigations in finance or transport or whatever. We're going to go where the real threat is. This is where we will look into the situation.
We were complaining that we should have access to other departments and institutions that have national security matters, but we could not have that access. Now we have. That doesn't mean we will spend all of our time there.
Usually we make a plan when we start the year. We sit down with the organization, with CSIS, or with.... Mr. Fadden knows that. We don't arrive in the morning, knocking on the door and saying, “Look, we want to see this and that.” We don't do that. We cannot do that. We cannot intervene in their operations. We prepare a plan. We say we'll look into this and this, and we report on it to the minister and to Parliament. This is what we do. It will not change. We will have more flexibility to extend and to look into areas that we were not able to look into. It will be better for Canadians, I would say, because the accountability will be better.
Thank you for the question. It's the traditional answer, but this time I mean it.
I didn't say it in my initial remarks, but one part of this quasi-omnibus bill that I think is overly complex is the one dealing with information sharing within the federal government. I would argue that there should be a positive obligation on any institution of the federal government to share with a listed number of institutions any information or concerns they might have about national security.
The way the bill is drafted now, you need to have worked in the Department of Justice for 15 years to understand the standards and whether there's a positive obligation or not. I think this is better than was the case when I was at CSIS, where there was no legal protection at all, but I don't think it makes clear to all and sundry that the overarching objective here is to share information relating to national security to avoid a crisis.
If you read that part of the bill, I don't think that comes through. There are so many conditions and thresholds and whatnot that I don't think it meets the standard, so if there is one part of the bill that I would argue you should strive to clarify and make very much clearer, that is the part. It would have made me more relaxed, when I was at CSIS, about the thing that you mentioned, but I would still worry that somebody in HRSDC or Heritage Canada who might have tripped over information would still not feel comfortable calling up and saying, “We have an issue.”
That's a pretty big question. I think, generally speaking, you're giving them the tools. It's like a lot of other areas: until they're actually out there in the field trying them out, it's hard to say.
I haven't counted, but the number of times that the words “protection of privacy” are mentioned in this bill is really quite astounding. I'm as much in favour of privacy as everybody else, but I sometimes wonder whether we're placing so much emphasis on it that it's going to scare some people out of dealing with information relating to national security. Generally speaking, though, I think they do have the tools.
What does worry me a bit—and I say this with great deference to Monsieur Blais and his colleagues—is that I think the review capacity, the review effectiveness, at least initially, is going to impose a considerable burden. Departments that have never had to deal with SIRC all of a sudden are going to have to develop a practical definition.
I think, to call a spade a shovel, the definition of national security is going to be hard. I understand what Monsieur Blais was saying. It's not that clear when someone is in Heritage Canada or the Department of Agriculture or CFIA that what they're doing could possibly affect national security. There's one stream that's easy to follow, and that's if they use information provided by CSE, but more broadly.... I'll give you an example.
A deputy minister once called me when I was at CSIS and said, “My department has responsibility across the country for doing a variety of things relating to individuals, and we think there's a pattern here that suggests that there's some foreign interference, and you ought to do something about it.” Four months later, our lawyers sort of concluded they weren't sure it was national security, and they were pretty sure they couldn't do it, given the Privacy Act.
Now, with great deference to lawyers—I was one earlier, and I'm now no longer one—I think we need to find a way to simplify some of these concepts. I know that once the bill is passed, if it's passed, there will be operational instructions, but my hope would be that in some respects, on some aspects of the bill, we could be a little bit less legal and a little bit clearer.
Thank you. Good afternoon, Mr. Chair and members of the committee. On behalf of the Canadian Muslim Lawyers Association, thank you for the invitation to provide submissions about Bill .
I will start with our background. This year will be our 20th anniversary. We are based in Toronto, with approximately 200 members across Canada who work in all areas of the legal field, including private practice and government.
In terms of advocacy, we have consistently appeared at the Supreme Court of Canada dealing with balancing individual rights with state interests. We also assist the legal community and the general public with legal education.
Our underlying goal is to promote a justice system that is fair. Since 2001, we have had the privilege of providing testimony to parliamentary and senate committees responsible for considering national security policy and law.
In terms of my background, I am a criminal defence lawyer with 16 years of experience mitigating cases at all levels of court. I have acted as counsel on several national security cases. I am also an instructor on national security at the University of Toronto. Today I am speaking to you in my role as the chair of the Canadian Muslim Lawyers Association.
In terms of my contribution, I wish to discuss two fundamental areas.
The first is the positive. We see the national security intelligence review agency as having great potential, especially if it's staffed properly.
Second, I will raise our sources of concern. In particular, this bill does not address a key area of security, the legal threshold for searches of digital devices at the border. Further, there are real concerns about a lack of fairness and charter compliance regarding listed entities, which are noted at part 7 of the bill.
I'll deal first with the national security intelligence review agency. This is at part 1. For simplicity, I'll refer to it as NSIRA. This institution has the potential to be a strong pillar of our democracy by providing robust review of national security agencies and their related partners. With more powers being granted to intelligence agencies to deal with evolving threats, this agency reflects the greater need for effective review and oversight. It certainly has a broad mandate, which we think is positive, including to review the activities of CSIS, the CSE, and the RCMP; to investigate complaints against those services; to direct studies and to prepare annual reports; and to report to the .
This strong mandate is a reflection of the expanding powers that are being provided to different agencies in order to effectively conduct national security operations. Clearly there is more power to collect data, more power to share information, more power to conduct surveillance, greater protection of informants, and more powers to engage in preventive measures.
All of this is primarily done either ex parte or behind closed doors. As a result, it is critical to have a very strong review agency to try to prevent mistakes before they happen.
Therefore, how do we ensure that a robust review agency is able to address its role in a fair manner? This government has indicated that it is committed to representative institution, and NSIRA will handle the review of security activities and investigate complaints. It is our submission to this committee that for it to be effective, it is essential that it be composed of a diverse group of persons. It should not fall into the trappings of ineffective oversight bodies that are staffed by people who lack independence and impartiality.
In the 2006 response to the Arar tragedy, recommendations 19 and 20 specifically advised that the RCMP, CBSA, and CSIS improve composition and training of their staff to prevent mistakes based on racial and religious profiling. The same logic must apply to NSIRA. Our concerns are that, as evidenced by the recent lawsuit brought by several CSIS employees alleging that some CSIS managers discriminate and stereotype against Muslims, there is little accountability when this misconduct is reported, and as a result, there needs to be stronger training, better oversight, and diverse composition.
In addition to NSIRA's members, which are statutorily governed to be no fewer than three persons and no more than six persons, there will obviously be a significant staff that's going to assist with investigations and provide assistance to those members. There will be an executive director, who will assist with staffing the agency.
It is our view that individuals in those qualified high-level positions must be aware of the community's perspective. The nature of the information to be drawn and the review of decisions would benefit from having a diversity of perspective.
Our friends in law enforcement have confirmed that working with the Muslim community is key to identifying threats and solving major cases. There are numerous instances where that has happened, but there are also instances of things going wrong and members of the community being mistreated by those very same agencies. For NSIRA to have legitimacy, it must recognize that perspective.
It would be helpful if there were some statutory guidance with respect to the required qualifications and composition of the agency members and from where people are going to be drawn in order to staff it. For instance, having one from the judiciary, one person from academia, and one person from the community with knowledge of these issues would be an important addition to the legislation.
Moving ahead, my concern about what's missing from Bill is that there needs to be some statutory guidance on when the CBSA may search digital devices at the border. We can debate and go over at length the fact that the bill has made progress with respect to balancing individual rights with state interests, but the reality on the ground is all of that can be circumvented by searches of individuals' digital devices at the border. The Customs Act needs to be revisited and reviewed. It is legislation from the 1980s, when digital devices were not the norm, and it contemplated searches of people's luggage.
The use of data collection is the future of national security and the devices that people carry with them obviously are integral in terms of preserving a balance between individual interests and state interests and in protecting our security. In today's era, most people travel. Returning Canadians can easily have their digital devices searched without restriction. A better legal threshold that reflects the nature of the technology needs to be established. Currently it's the position of customs and the government that there is no legal threshold to search individuals' cellphones, laptops, etc., when returning at the border. Even with a reduced expectation of privacy in that context, it becomes critical that there at least be some legal threshold; otherwise, the provisions in the Criminal Code or amendments to the Immigration and Refugee Protection Act or amendments to try to protect information sharing become easily circumvented when individuals are coming back through the border with no protections whatsoever.
The last point I'll touch on very briefly is with respect to part 7 of the bill, regarding listed entities. There is a fundamental omission in the Criminal Code legislation that needs to be addressed and fixed.
Listed entities, as you are aware, are currently listed by process of an administrative regime whereby the , based on a balance of probabilities, determines whether an entity should be listed or not.
The difficulty is that organizations whose assets have then been stripped and frozen have no ability to hire counsel in order to engage in submissions with the minister or to engage in the statutory judicial review. In fact, it's our understanding that this omission results in a constitutional violation. There's a section 7 breach tied in with a section 10 breach, in that these entities are not given an opportunity to hire and retain counsel in order to defend themselves. That constitutional frailty could be a significant problem for this legislation in the future.
Thank you for the opportunity. That's my submission at this time, subject to your questions.
I will be giving the presentation on the Ligue's behalf. Both of us will then answer questions.
The Ligue des droits et libertés, the LDL, wishes to thank the members of the Standing Committee on Public Safety and National Security for inviting it to testify regarding Bill . Since September 11, 2011, the LDL has made regular representations to defend the rights and freedoms established in international instruments and our charters, and to prevent their violation in the "war on terror."
In the fall of 2016, during public consultations and the hearings of this Committee, the LDL called for the complete withdrawal of Bill C-51, which we considered dangerous and unnecessary. The LDL also called for the introduction of an oversight mechanism for national security activities, similar to the recommendations of the Arar Commission. Bill C-59 addresses these issues only to a certain degree.
First, we welcome the establishment of the National Security and Intelligence Review Agency. However, some conditions must be met before the Agency can fulfil its mandate as watchdog. The size of the task awaiting the Agency should not be underestimated. It should not simply receive public complaints and reports from the organizations it oversees. It should have the authority to initiate investigations itself.
In addition, the Agency must be specifically mandated to verify that organizations are carrying out their national security activities in compliance with the rights and freedoms established in the Constitution. This mandate must also include the review of ministerial directions to ensure compliance with the Charter of Rights and Freedoms. On this point, we would like to note that ministerial directions concerning information sharing must be amended to be consistent with the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
A significant number of organizations are involved in intelligence sharing. The Arar Commission counted 24 in 2005. The oversight mechanism will have a considerable task, and it will be an empty shell if it lacks the material, human and financial resources needed to do its job. We would also like to note that provisions in concerning the Agency's public accountability do not go far enough, and an annual report is insufficient. The minister as well as the public and Parliament should be informed when the Agency discovers practices that are non-compliant with the Charter.
The fact that the Agency's recommendations are non-binding is also a concern. If the recommendations remain non-binding, the organizations concerned should be required to report publicly on the steps they have taken to implement the recommendations.
Lastly, the Agency should have the authority and resources to work with similar organizations from other countries. National security and intelligence organizations cooperate internationally, and the agencies that monitor them should be able to do likewise.
The next issue is the authority given to the CSE. The CSE can intercept anything in the international information infrastructure, regardless of any federal or foreign law. For example, the CSE can intercept communications from U.S. citizens, and the National Security Agency can do the same regarding Canadian citizens, for the purpose of sharing this information. Bill C-59 must prohibit Canadian agencies from receiving information on Canadians from other agencies that they would not have been able to obtain under Canadian law.
While Bill C-59 provides better guidance for the more worrisome provisions of C-51, some fundamental problems remain. The repeal of judicial investigations is a positive move. However, an individual could still be placed in preventive detention for seven days without being charged, even though C-59 raised the threshold for this detention. We urge that this measure and any previous provisions concerning this measure be removed.
There is major concern over the powers given to CSIS, as set out in Bill C-51 and amended by C-59. It is unacceptable for CSIS to be authorized to compile datasets on Canadians. There are no limits on the data that CSIS can compile, provided that the data is considered "public." Judges may approve the compilation of other datasets based on a very weak threshold. The only requirement is that the data "is likely to assist" CSIS.
These provisions make it legal for CSIS to continue to spy and compile dossiers on protest groups, environmental protection groups, Indigenous groups and any other organization that is simply exercising its democratic rights. CSIS can count on the support of the CSE, which is also authorized to collect, use, analyze, retain, and disclose publicly available information, and whose mandate includes providing technical and operational assistance to agencies responsible for law enforcement and security. These datasets also pave the way for big data and data mining, which in turn leads to the compilation of lists of individuals based on their risk profile. We are opposed to this approach to security, which places thousands of innocent people on suspect lists and targets Muslims disproportionately.
Bill allows CSIS to continue to address threats through take active measures such as disruption. These measures can limit a right or freedom guaranteed under the Canadian Charter of Rights and Freedoms if so authorized by a judge. It is important to note that this judicial authorization is granted in secret and ex parte, so that the persons whose rights are being attacked cannot appear before the judge to plead their "innocence" or argue that the measures are unreasonable. They may also be unaware that CSIS is behind their problems, which would make it impossible for them to lodge a complaint after the fact. These powers recall the abuses uncovered by the Macdonald Commission, such as the RCMP stealing the list of PQ members, burning down a barn, and issuing fake FLQ news releases to fight the separatist threat. We are therefore strongly opposed to granting these powers to CSIS.
We are extremely disappointed to see that the Secure Air Travel Act preserves the no-fly list. Persons are not told why their names have been placed on the list and, if they appeal, the judge hears the case ex parte based on evidence that the individuals cannot challenge and that may even be inadmissible in a court of law.
The Human Rights Committee condemned this lack of effective recourse in its 2015 comments to Canada. It has never been proven that this list increases the safety of air travel, making the situation even more unacceptable. England, France, and other countries that are targeted by terrorists far more than Canada have no such lists, and the safety of their aircraft is not affected. We ask that the Secure Air Travel Act be repealed and any no-fly list be destroyed.
The Security of Canada Information Sharing Act allows 17 government agencies to share among themselves information that is in the possession of the Canadian government. While amends the preamble to the Act to state that information must be disclosed in a manner that respects privacy, the Act's provisions contradict this very principle. As the Privacy Commissioner told the Committee on December 7, 2017, the Act does not comply with privacy requirements. The threshold for disclosing and receiving information must be strict necessity. We also support the Commissioner's request regarding the role he should play in enforcing this Act.
In conclusion, we would like to submit the following list of recommendations regarding Bill . While some of the bill's provisions are beneficial, a number of other provisions should be amended or deleted to truly protect Canadians' rights and freedoms.
Our recommendations are as follows: that the National Security and Intelligence Review Agency have the material, human and financial resources needed to carry out its mandate; that the National Security and Intelligence Review Agency be mandated to ensure that national security organizations carry out their activities in a manner consistent with the rights and freedoms established in our constitution; that the Agency report publicly on any rights violations that it has found and on its recommendations; that the organizations concerned be required to report publicly on the way in which they have carried out the Agency's recommendations; that, in the course of its mandate, the Agency be authorized to share information with equivalent agencies in other countries; that Canadian organizations not be allowed to obtain information on Canadians from other international organizations that they would not have been able to obtain themselves under Canadian law; that Bill repeal section 83.3(4) of the Criminal Code authorizing individuals to be placed in preventive detention for seven days without being charged; that "strict necessity" be the threshold for disclosing and receiving information under the Security of Canada Information Sharing Act; that the Office of the Privacy Commissioner of Canada be mandated to ensure that Canadians' privacy is respected under the Security of Canada Information Sharing Act; that CSlS be stripped of the power to address threats through active measures such as disruption; that the Secure Air Travel Act be repealed and any no-fly list be destroyed.
Thank you for the question.
My understanding from the CSE director with respect to the collection and retention of data is that if the data is innocuous, they are obliged by law to terminate or destroy it. Only if it has an intelligence value are they permitted to then take the next steps with respect to considering whether to share it in the retention period.
A necessity component would obviously be helpful in terms of delineating and making more clear to the agencies the circumstances under which the data should be retained.
I think that when we use words like “necessity” in the national security context, they're not viewed in the same way as they are, for instance, in criminal statutes or otherwise. In fact, it's easier for the government to be able to satisfy that threshold in the national security context.
For those critics of using a necessity-type threshold, as you proposed, it's probably not going to be as onerous as it would be in other contexts, and since it provides some degree of protection, it makes sense to ensure that guidance of this type is provided to the agency.
One of the big dangers that we have is that data collection becomes normalized in the current society. When we have all these different sources of data available to intelligence agencies, exactly what's going to happen with the information? How is it going to be stored, and how long is it going to be retained?
If you start on January 1 with a type of information that may be of some intelligence value but is later determined to have no value, in the sense that the person is no longer a suspect, that is the type of situation in which I'd like to see that information destroyed. In other words, just because it seemed to have some value at one point in time doesn't mean that infinite retention of that material is somehow permitted.
As I indicated in my initial submission, I think that the government and the opposition should start to take a look at redoing the Customs Act. It is a piece of legislation that is significantly outdated with respect to the ability to review digital technology.
When you speak about balancing individual rights versus state interests, obviously we support measures that are going to protect Canada and provide us with a sense of greater security and safety. That said, all of us carry digital devices, including everybody who's in this committee. You all carry laptops. They contain the most sensitive information that you can imagine, and the Supreme Court has said that there can be no greater invasion of privacy than going through someone's digital device or laptop. Customs officers and CBSA officers who are there trying to protect the border need some guidance with respect to how far they can go in terms of searching someone's digital device. Right now, they have no guidance.
The legislation, particularly under section 99, essentially speaks to an era when we would have our luggage searched. Second, we would have our personal effects searched, and third, we would have our body searched as the suspicion level rose. Digital devices, however, are a whole different world, and we need the legislation to start catching up with the technology.
If you don't do that, I guarantee that there are going to be constitutional challenges to that legislation when individuals coming back have their devices searched. I suspect that the Supreme Court is going to say that there has to be a legal threshold there, and in the absence of that, you have a constitutional violation.
What's the appropriate threshold? You could start with as low as a reasonable suspicion, which is not very hard for a CBSA officer to satisfy. Essentially, they just have to articulate some grounds as to why they think the person is suspicious. A reasonable grounds threshold would be better, and even that's not very hard to satisfy. I know, sir, that from your policing background, you would be familiar with both of those thresholds.
Yes, there is a tie-in. Let me try to take it back to first principles.
If you're looking at legislation that has a disproportionate impact on the treatment of women, for instance, I think everybody would agree that it's appropriate to have the female perspective with respect to that, and to have some diversity of female opinion on the committee that reviews it. If you were looking at an issue that disproportionately impacts the indigenous community, it would only make sense that you'd try your best to have the indigenous perspective accounted for. We ask for no less with respect to national security.
It's straightforward and well recognized that in today's era, for reasons that were provided to you by the previous panel—by the former director of CSIS and by the intelligence agencies—that there is still a significant focus on radicalization within the Muslim community. At the same time, there is a significant degree of co-operation, and what gets lost in the politicization of these issues is that it's actually the Muslim community that works very closely with CSIS and the RCMP in helping to identify threats to security and providing input with respect to what's appropriate to look at and what is not. Then they're also on the receiving end of this treatment, unfortunately, because that's the nature of what happens. When you have large organizations trying to review the conduct of an entire community, there are inevitably going to be some transgressions.
We'd like to see the national security and intelligence review agency include that perspective. We're not looking for affirmative action here, in saying that you have to have, for instance, x number of Muslim people on staff in that organization. What you need to have is a diversity of perspectives—people who understand those issues and people who have the qualifications to do that. Philosophical diversity is important, number one.
Number two, having some sense of what it's like on the ground for people in that community is important, and yes, you are likely to get people who have a better understanding of that if they're from the community. There are many qualified people today who can be chosen from academia and from the legal field who could be of significant assistance in fulfilling that function. That's why I think it's important that this committee take that under advisement, and perhaps even consider putting into some statutory language how that review agency should be composed.
There is also another significant omission, which is somewhat startling. There is currently nobody serving on the special advocate roster who has that degree of expertise. Now, don't get me wrong. There are very distinguished lawyers on that roster, lawyers I know and respect, but if you're talking about going into the secret hearing and providing a perspective for the reviewing judge about what type of expert evidence should be heard or what other type of information should be heard, you should have someone who has familiarity with those types of issues.