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View David McGuinty Profile
Lib. (ON)
Thank you very much, Mr. Chair.
Good afternoon, colleagues. Thank you for your invitation to appear before your committee. I am joined by Rennie Marcoux, executive director of the Secretariat of the National Security and Intelligence Committee of Parliamentarians, or NSICOP.
It's a privilege to be here with you today to discuss the 2018 annual report of the National Security and Intelligence Committee of Parliamentarians.
The committee's first annual report is the result of the work, the dedication and the commitment from my colleagues on the committee. It is intended to contribute to an informed debate among Canadians on the difficult challenges of providing security and intelligence organizations with the exceptional powers necessary to identify and counter threats to the nation while at the same time ensuring that their activities continue to respect and preserve our democratic rights.
NSICOP has the mandate to review the overall framework for national security and intelligence in Canada, including legislation, regulations, policy, administration and finances.
It may also examine any activity that is carried out by a department that relates to national security or intelligence.
Finally, it may review any matter relating to national security or intelligence that a minister refers to the committee.
Members of the committee are all cleared to a top secret level, swear an oath and are permanently bound to secrecy. Members also agree that the nature of the committee, multi-party, drawn from the House of Commons and the Senate, with a broad range of experience, bring a unique perspective to these important issues.
In order to conduct our work, we are entitled to have access to any information that is related to our mandate, but there are some exceptions, namely, cabinet confidences, the identity of confidential sources or protected witnesses, and ongoing law enforcement investigations that may lead to prosecutions.
The year 2018 was a year of learning for the committee. We spent many hours and meetings building our understanding of our mandate and of the organizations responsible for protecting Canada and Canadians. The committee was briefed by officials from across the security and intelligence community and visited all seven of the main departments and agencies. Numerous meetings were also held with the national security and intelligence adviser to the Prime Minister. NSICOP also decided to conduct a review of certain security allegations surrounding the Prime Minister's trip to India in February 2018.
Over the course of the calendar year, the committee met 54 times, with an average of four hours per meeting. Annex E of the report outlines the committee's extensive outreach and engagement activities with government officials, academics and civil liberties groups.
The annual report is a result of extensive oral and written briefings, more than 8,000 pages of printed materials, dozens of meetings between NSICOP analysts and government officials, in-depth research and analysis, and thoughtful and detailed deliberations among committee members.
The report is also unanimous. In total, the report makes 11 findings and seven recommendations to the government. The committee has been scrupulously careful to take a non-partisan approach to these issues. We hope that our findings and recommendations will strengthen the accountability and effectiveness of Canada's security and intelligence community.
The report before you contains five chapters, including the two substantive reviews conducted by the committee.
The first chapter explains the origins of NSICOP, its mandate and how it approaches its work, including what factors the committee takes into consideration when deciding what to review.
The second chapter provides an overview of the security and intelligence organizations in Canada, of the threats to Canada's security and how these organizations work together to keep Canada and Canadian safe and to promote Canadian interests.
Those two chapters are followed by the committee's two substantive reviews for 2018.
In chapter 3, the committee reviewed the way the government determines its intelligence priorities. Why is this important? There are three reasons.
First, this process is the fundamental means of providing direction to Canada's intelligence collectors and assessors, ensuring they focus on the government's, and the country's, highest priorities.
Second, this process is essential to ensure accountability in the intelligence community. What the intelligence community does is highly classified. This process gives the government regular insight into intelligence operations from a government-wide lens.
Third, this process helps the government to manage risk. When the government approves the intelligence priorities, it is accepting the risks of focusing on some targets and also the risk of not focusing on others.
The committee found that the process, from identifying priorities to translating them into practical guidance, to informing ministers and seeking their approval, does have a solid foundation. That said, any process can be improved.
In particular, the committee recommends that the Prime Minister's national security and intelligence advisor should take a stronger leadership role in the process in order to make sure that cabinet has the best information to make important decisions on where Canada should focus its intelligence activities and its resources.
Moving on, chapter 4 reviews the intelligence activities of the Department of National Defence and the Canadian Armed Forces. The government's defence policy, “Strong, Secure, Engaged”, states that DND/CAF is “the only entity within the Government of Canada that employs the full spectrum of intelligence collection capabilities while providing multi-source analysis.”
We recognize that defence intelligence activities are critical to the safety of troops and the success of Canadian military activities, including those abroad, and they are expected to grow. When the government decides to deploy the Canadian Armed Forces, DND/CAF also has implicit authority to conduct defence intelligence activities. In both cases, the source of authority is what is known as the Crown prerogative. This is very different from how other intelligence organizations, notably CSE and CSIS, operate. Each of those organizations has clear statutory authority to conduct intelligence activities, and they are subject to regular, independent and external review.
This was a significant and complex review for the committee, with four findings and three recommendations.
Our first recommendation focuses on areas where DND/CAF could make changes to strengthen its existing internal governance structure over its intelligence activities and to strengthen the accountability of the minister.
The other two recommendations would require the government to amend or to consider enacting legislation. The committee has set out the reasons why it formed the view that regular independent review of DND/CAF intelligence activities will strengthen accountability over its operations.
We believe there is an opportunity for the government, with Bill C-59 still before the Senate, to put in place requirements for annual reporting on DND/CAF's national security or intelligence activities, as would be required for CSIS and CSE.
Second, the committee also believes that its review substantiates the need for the government to give very serious consideration to providing explicit legislative authority for the conduct of defence intelligence activities. Defence intelligence is critical to the operations of the Canadian Armed Forces and, like all intelligence activities, involves inherent risks.
DND/CAF officials expressed concerns to the committee about maintaining operational flexibility for the conduct of defence intelligence activities in support of military operations. The committee, therefore, thought it was important to present both the risks and the benefits of placing defence intelligence on a clear statutory footing.
Our recommendations are a reflection of the committee's analysis of these important issues.
We would be pleased to take your questions.
Thank you.
View Peter Fragiskatos Profile
Lib. (ON)
Thank you, Mr. Chair.
Thank you to the Minister and to the officials for being here today.
My questions will focus on Bill C-59 and cybersecurity.
First of all, Minister, you said in your comments when you opened things that cyber-operations “would be subject to strict statutory prohibitions against directing these operations at Canadians, any person in Canada, or the global information infrastructure in Canada, and would require a robust approval process.” To me, that's very much in line with democratic principles, but could you speak to the importance of that, to ensuring that when we have legislation, when we're talking about CSE and its powers, that those powers are consistent with democratic principles?
View Harjit S. Sajjan Profile
Lib. (BC)
Absolutely, and in fact, this is extremely fundamental. I was trying to address that in the answer that I gave about my responsibility with regard to CSE and the military's focus on foreign threats, and that's where CSE's at.
However, with what CSE currently has and with Bill C-59, we'll have additional ability to provide support for other agencies with judicial authorization. I think what's extremely important is making sure that we as a government leverage all the right resources within our government and within the laws. However, at the same time—and I want to stress this immensely, because Canadians expect this—we must have a process in place that respects privacy and transparency. This is something that hasn't happened before. More importantly, we are the last Five Eyes nation to finally come up to that transparency level.
Greta, do you want to add anything to that?
Greta Bossenmaier
View Greta Bossenmaier Profile
Greta Bossenmaier
2018-03-22 11:46
If I take your question, particularly around the foreign cyber-operations, active cyber-operations, and defensive cyber-operations, I'll say that it's very clear in the legislation. There are two pieces that I would draw folks' attention to. One is the strict approval processes that would need to be put in place. Active cyber-operations would require the approval of both the Minister of National Defence and the Minister of Foreign Affairs, given that these are operations that would be happening outside of Canada, not in Canada, so there would be Foreign Affairs implications or considerations as well. That's on the approvals side.
Also, in terms of the limitations, there are very clear limitations as to what an active or a defensive cyber-operation could entail. CSE would be prohibited, for example, from directing its active cyber-operations at Canadians, at any person in Canada, or at the global information infrastructure. It would have to be sure that it is not causing death or bodily harm, or wilfully obstructing justice or democracy. There would be significant, serious, senior-level approvals in addition to very clear limitations on what those activities could be.
View Matthew Dubé Profile
NDP (QC)
It's the first time I've ever liked daylight saving time.
Voices: Oh, oh!
Mr. Matthew Dubé: Really quickly, I have just one question. I want to get back to the details I asked about on the Cambridge Analytica situation with Facebook.
There's clearly not a situation here of the information having been obtained illegally. It's nebulous, and perhaps dubious and immoral, but it's not quite clear that it's illegal. Information like this that is being obtained and being used by political parties in a variety of countries around the world arguably could fall under the definition of publicly available information. How do you see that, Minister, and how does CSE see that?
View Harjit S. Sajjan Profile
Lib. (BC)
For CSE, the credibility of the great work they do and the credibility of any government to be able to function in a rules-based order is based on working within the law. That's exactly how CSE has been functioning.
More importantly, we're actually putting even more robust measures in place to make sure that CSE's activities and the activities of all our security agencies are done and that we have a mechanism in place for everything from the intelligence commissioner authorizing ministerial authorization to the national security and intelligence review agency and now actually having parliamentarians from all parties.
My answer to you is that CSE will always function within the law.
View Matthew Dubé Profile
NDP (QC)
I appreciate that, Minister. If we're talking about operating legally, and this information is obtained legally—although arguably the laws should be changed in that context—doesn't that mean that CSE could obtain that information under publicly available information?
View Harjit S. Sajjan Profile
Lib. (BC)
As I stated, not only from a legal perspective, CSE's activities are designed to make sure that we are protecting Canadians and Canadian interests, and we will continue to do so.
View Matthew Dubé Profile
NDP (QC)
Thank you, Mr. Chair.
I want to go back to the question I asked the minister, but to which I did not get an answer, in my opinion.
In a context where the information can be obtained legally by a company, such as Cambridge Analytica, even if it can be said that it is immoral and that it should be illegal, does that correspond to the definition of publicly available information?
Greta Bossenmaier
View Greta Bossenmaier Profile
Greta Bossenmaier
2018-03-22 12:20
The whole issue around publicly available information, I understand, has been considered around this table. I'll just try to perhaps add a couple of pieces to it.
For us, mandate is critical. Mandate matters, and it matters throughout the entire piece of legislation that is in front of you, and that includes publicly available information. We can use publicly available information only if it is related to our mandate, our foreign signals intelligence mandate or our cybersecurity mandate. We do not have within our legislation, currently or proposed, any mandate to focus our activities on Canadians, to have an investigative capability, to create dossiers on Canadians. That is not within our current or proposed legislation.
I would start with the fact that mandate matters.
The second piece I would relate is that, as I think has been raised before here, publicly available information—and it's defined in our act—would not comprise information that has been hacked or stolen. This is information that would be publicly available to any Canadians.
Also—
View Matthew Dubé Profile
NDP (QC)
The part of the bill dealing with publicly available information specifically exempts the prohibition on targeting Canadians. So you might not be actively collecting it, but you are permitted to collect it as part of the research that's being done under clauses 24 and 25, if I'm not mistaken.
You mentioned information that's hacked or stolen, but under the current legislation, arguably, the information that we're discussing in this particular example—I'm sure there are others that we just don't know of—was not obtained unlawfully. So the work Cambridge Analytica—and probably other companies of that sort—was doing for political parties, for example, was obtaining information through Facebook on people, and that's being done legally.
Would that not fall under publicly available information, if a company like that is able to obtain it? There are no legal repercussions because it's not illegal. Could CSE not do the same thing under those dispositions even if incidentally, as laid out in the law, in Bill C-59?
Greta Bossenmaier
View Greta Bossenmaier Profile
Greta Bossenmaier
2018-03-22 12:22
Mr. Chair, I have to go back to the point that, even on publicly available information, it goes back to our mandate. We would access publicly available information only if it were related to our mandate, and we do not have a mandate that focuses on Canadians or anyone in Canada. For the particular case you're referring to, I understand the Privacy Commissioner is looking into it, and I guess the details around it are still unfolding, so I can speak only to our legislation. Again, it goes back to our mandate. It would be very specific: what's the case for which we would need it? Also, very much, the proposed legislation talks about two other things.
Number one, it says we'd have to have privacy protection measures in place, even for publicly available information. Number two, like every other aspect of the proposed legislation, it would be subject to review by the national Security Intelligence Review Committee. This is not CSE having the authority to go look at any publicly available information. It's very targeted and very focused on fitting within our mandate, and again, with privacy protection measures in place, and finally, with review from an independent review agency looking at all of our activities.
I hope that answers your question.
View Matthew Dubé Profile
NDP (QC)
That's fair enough.
You mentioned the Privacy Commissioner's investigation, but I'm understanding that both your organization and CSIS have also been tasked with looking into that situation, and so in that particular context, when you're doing the research that's prescribed in the legislation where these exemptions exist, notwithstanding section 25, which talks about protecting privacy, would research not be done on, for example, things like Facebook, as part of this information infrastructure? I don't know if that would fall under the definition of information infrastructure, but if you're being tasked with looking into the situation as well, would you not inevitably come across Canadians' information and be allowed to obtain it even if incidentally under what's prescribed in Bill C-59? And under those circumstances, even though it would be in respect of the mandate—I understand that—while I understand you're taking steps to protect privacy, the information nonetheless could be collected over the course of that type of investigation.
Would that not be accurate?
Greta Bossenmaier
View Greta Bossenmaier Profile
Greta Bossenmaier
2018-03-22 12:25
You covered a lot of territory there. Maybe I'll start with the piece about CSE being asked by the Minister of Democratic Institutions to look at this issue around democratic institutions.
I'm thinking back and I'm looking to Scott. About a year ago, in about June 2017, CSE was asked by Minister Gould, the Minister of Democratic Institutions, to look at cyber-threats to Canadians' democratic institutions. For the first time in our history we actually produced a report that's available to this committee, if you haven't seen it, which looked at broad cyber-threats to democratic institutions.
We really looked at three different aspects of that. We looked at the electoral process per se, so how the electoral machine works. We also looked at cyber-threats to politicians and political parties, and we also looked at cyber-threats to the media. We came out with an assessment at that time, about a year ago.
The Minister of Democratic Institutions now is asking us to review our threat assessment in light of changes that have occurred over the past year. Even when we put out the initial report, we said that this would probably be an evergreened report based on new information and new threat information.
That's the kind of work we expect to be doing over the coming weeks, to review our threat assessment based on information and activities that have occurred over the past year. This is refreshing it.
Scott Newark
View Scott Newark Profile
Scott Newark
2018-02-15 11:10
Thank you very much, Mr. Chair. It's good to see you again.
I'd like to thank the committee for the invitation to appear before you with respect to this very important Bill C-59. I've had the opportunity to follow some of the proceedings and to read some of the transcripts, and it's very encouraging to see the depth and substance of the questions asked of the individual witnesses who are appearing, including with different perspectives.
I've had a long history, and I was thinking about it before I came here today. It's been almost 30 years, I guess, since I first testified before a parliamentary committee. I was a crown prosecutor from Alberta, and as I put it, I got tired of tripping over the mistakes of the parole system in my courtroom, and realized that the only way to try to change it was to change the laws. That meant coming to Ottawa, because we were dealing with federal correctional legislation. I was appearing before parliamentary committees where I exposed what had happened in a couple of cases.
The important work of the legislative branch struck me then, and it has remained with me throughout. That sometimes gets overlooked, and depending on how things are being handled at the executive branch of government, the really important and critical analysis that committees can do is quite significant. A bill like this is a very good example of that, because you can have different opinions about things on different subjects, but you have the ability to ask questions and to try to elicit information to analyze whether or not the intended results are going to be achieved by the legislation in the way that it's drafted or if other things need to be done. That is particularly true, I think, in relation to legislation like Bill C-59, which is obviously pretty complex legislation and deals with a whole lot of subjects.
In fairness, the discussion itself has raised issues that are not contained in Bill C-59. I think a very encouraging sign was the way that the government sent the bill here in advance of second reading so that you could have input and suggestions on other subjects. I have some suggestions to make on things like that. I must admit, though, that I would suggest that it probably is a better idea, simply from a procedural perspective, to confine your recommendations to the specifics of the bill, and perhaps, in an ancillary report, make suggestions on other subjects rather than adding huge new amendments to sections and opening up different issues that are not specifically contained in Bill C-59. There's so much of value in Bill C-59 that it's a good idea to move it forward.
My presentation today will touch on essentially three aspects. The first is just to take some examples of things that I think are notable and quite important in Bill C-59. I also have a couple of comments on things, and one in particular I have a problem with, but I suppose, to put it in a larger sense, they're just ones where I would suggest you may want to ask some questions and make sure you understand that what you are anticipating is the case is, in fact, the case. Then, because the minister has invited suggestions on other issues, if we have time—and probably not in the opening statement, but during questions and answers—I have some suggestions on other issues that I think might be of interest.
Let me just give you a little bit of background as well on my personal experience in this, because it impacts on the insights. As I mentioned, I was a crown prosecutor in Alberta. Ultimately, because of one of the cases I was involved in, in 1992 I became the executive officer of the Canadian Police Association. This is the rank-and-file police officers, the unions. We were involved very heavily from 1992 to 1998 in criminal justice reform, policy advocacy. It was from that, in particular, and my work as a crown prosecutor, that I got the sense of the importance of learning from front-line operational insights how you can then shape legislative or policy tools so as to achieve desired outcomes.
Also, not everything needs to be done by legislation. There are frequently instances—and I was struck by this as I was watching some of the evidence from some of the witnesses that you've had—where we don't necessarily need new laws. We need to enforce the ones we already have, and we need to make sure that the tools are in place to use them appropriately. There are some examples of that, I think, in Bill C-59 specifically.
I ended up working with the Ontario government in 1998 as an order in council appointment. That government had intended to achieve some criminal justice reforms, and they weren't getting it done, so they wanted some people with some understanding of the justice system.
After 9/11, I was appointed as the special security adviser on counterterrorism because of some work I had previously been involved in. I had significant interactions with Americans in relation to that. In the old days, it was the Combined Forces Special Enforcement Unit, which became INSET. I had a role, essentially, in being the provincial representative in some of the discussions, and I saw the inter-agency interactions, or lack thereof, and the impact that potentially had.
Since then, I'm actually one of the guys who did the review that led to the arming of the border officers. I still do work with the union on policy stuff. I also do some stuff with security technology committees. The value of that is that you get an understanding of some of the operational insights and what is necessary to achieve the intended outcomes.
I should add, I suppose, the final thing. Last year, I accepted a position at Simon Fraser University as an adjunct professor. I know you'll be shocked to hear that. It's for a course they offer, a master's program, the Terrorism, Risk, and Security Studies program. The course I teach is balancing civil liberties and public safety and security. To go on from a point that the general made, I think the case is that these are not either-or situations. We are fully capable of doing both, and there is a balance involved in this. As a general principle, it is a very good idea, when you're looking at what is proposed in legislation, especially in legislation like this which has national security implications, to keep in mind the general principles of protecting civil rights.
There are two points about that. You'll notice that in “civil rights”, “rights” is modified by “civil”. In other words, they are rights that exist in the context of a civil society. That has ramifications in the sense, I think, of what citizens are entitled to expect of their government. I don't want government intruding on my privacy, but, at the same time, if government has the capability of accessing relevant information and acting on someone who is a threat to me and my family, I expect, under my civil right, that, in fact, government will do what it needs to do to extend that protection.
The other side of that—and I know, Monsieur Dubé asked many questions about this, as did other members of the committee—is the importance of looking at it generally, at what is proposed, to see that there is, in effect, oversight initially and, as well, appropriate review so that the balancing can take place. In my opinion, and more accurately in my experience, having the executive branch reporting to itself for authorization is something that should raise a red flag. There are provisions within the act that ultimately address that, although there are some that raise some questions about it.
In the very brief time left, let me just say that I think that among the important things in the legislation are the extensive use of preambles and definitions about the importance of privacy and what we would generally call civil rights in consideration of why we're doing things. That, I think, was a deficiency in BillC-51. I can tell you that it is critically important in today's charter world to make sure that is included so that the courts can consider whether or not what was being done by legislative authority in fact took into account the charter issues. A rule of statutory interpretation is “thou shalt consider the preamble in a statute when actually drafting it”.
With one minute left, I think probably the most important operational aspect of this bill is the proactive cyber-activity authorized to CSE. That is a reality of the world in which we live. We are totally cyber-dependent, which also means we have enormous cyber-vulnerabilities. Cybersecurity, in effect, has been an afterthought. This is a step; it is not the complete answer. I do some work in the cyber field as well, and that is something that I think is extremely important.
The one issue I would raise, in closing, which I have a concern about specifically, is in relation to the change in what I think is the evidentiary threshold in the terrorism propaganda offence. I can get into that in more detail, but my concern is, essentially, that it may be making it, for no good reason, no justifiable reason that I can see, harder to use that section, which has extreme relevance now in the changing domestic terrorism environment in which we are living.
I look forward to answering any questions and, hopefully, touching on the other subjects.
Stephanie Carvin
View Stephanie Carvin Profile
Stephanie Carvin
2017-12-05 8:47
I'd like to thank the committee for inviting me to speak on Bill C-59, the most comprehensive and far-reaching reform to national security in Canada since 1984. I would like emphasize that I am not a lawyer. However, I do have experience working in national security and intelligence, and I study this area for a living. Indeed, in the interest of transparency, I would like to state that from 2012 to 2015, I worked at the Canadian Security Intelligence Service as a strategic analyst.
My comments are, of course, my own, but they're informed by my research and experience as the national security landscape in Canada has evolved in a relatively short period of time. All of this is to say that today my comments will be focused on the scope of this bill and will address some of the areas that I believe this committee needs to, at the very least, consider as it makes recommendations.
First and foremost, I wish to express my support for this bill. I believe it contains four important steps that are essential for Canadian national security and the functions of our national security agencies.
First, it provides clarity as to the powers of our national security agencies. There's no better example of this than part 3, the CSE act, which gives our national signals intelligence agency statutory standing and spells out its mandate and procedures to a reasonable extent. Given that the first mention of this agency in law was the 2001 Anti-terrorism Act, this bill takes us a long way towards transparency.
Second, Bill C-59 outlines the limits on the power of our national security agencies in a way that will provide certainty to the public and also to our national security agencies. In particular, the bill clarifies one of the most controversial parts of the current legislation formerly known as BillC-51, that is, CSIS' disruption powers.
While it might be argued that this is taking away CSIS' ability to fight threats to Canada's national security, I disagree. Having found themselves embroiled in scandals in recent years, it is little appreciated how conservative our national security agencies actually are. While they do not want political interference in their activities, they no doubt welcome the clarity that Bill C-59 provides as to these measures.
Let there be no doubt that the ability to disrupt is an important one, particularly given the increasingly fast pace of terror investigations, especially those related to the threat of foreign fighters. In this sense, I believe that Bill C-59 hits the right balance, grounding these measures squarely within the Charter of Rights and Freedoms.
Third, Bill C-59 addresses long-standing problems related to review, and in some cases oversight, in Canadian national security. I will not go over the problems of our current system, which has been described as “stove-piped” by experts and commissions of inquiries. I will, however, state that the proposed national security and intelligence review agency, NSIRA, and intelligence commissioner—in combination with the new National Security and Intelligence Committee of Parliamentarians, NSICOP—create a review architecture that is robust and that I believe Canadians can have confidence in.
Fourth, in its totality, Bill C-59 is a forward-looking bill in at least three respects. First, the issue of datasets is not narrowly defined in law. While this has been a cause of concern for some, I believe this is the right approach to take. It allows flexibility of the term, but at the same time it subjects any interpretation to the oversight of the intelligence commissioner and the minister. It subjects the use of datasets to the internal procedures of the national security agencies themselves—and limits who may have access—and the review of the NSIRA and NSICOP.
Second, it takes steps to enhance Canada's ability to protect and defend its critical infrastructure. Increasingly, we are seeing the abilities of states and state-sponsored actors to create chaos through the attacks on electrical grids, oil and gas facilities, dams, and hospital and health care facilities. Much of this critical infrastructure is in the hands of the private sector. This bill takes steps to ensure that there is a process in place to address these threats in the future.
Third, Bill C-59 puts us on the same footing as our allies by mandating an active cyber-role for our national signals intelligence agency. I appreciate the legal and ethical challenges this raises, especially should CSE be asked to support a DND operation. However, the idea that Canada would not have this capability is, I think, unacceptable to most Canadians, and would be seen as unfortunate in the eyes of our allies, many of whom have been quietly encouraging Canada to enhance its cyber-presence in the wake of cyber-threats from North Korea, China, and Russia.
To reiterate, I believe this is a good bill, but there's room for improvement. I'm aware that some of my legal colleagues, especially Craig Forcese, Kent Roach, and Alex, of course, will be speaking to certain specific legal issues that should be addressed to make the law more operationalizable and compliant with our Constitution.
I encourage the committee to seriously consider their suggestions. However, I'm going to focus on four areas that may be problematic in a broader sense, which I believe the committee should at least be aware of or consider when it makes recommendations.
First, I think it's important to consider the role of the Minister of Public Safety. To be clear, I believe our current minister does a good job in his current position. However, the mandate of the Minister of Public Safety is already very large, and this bill would give him or her more responsibilities in terms of review and, in some cases, oversight. At some future date, the scope of this ministry may be worth considering.
Having said this, I acknowledge a paradox. Requiring the intelligence commissioner's approval for certain operations, as is clear in proposed subsections 28(1) and 28(2) of the proposed CSE Act, and potentially denying the approval of a minister is, in my view, at odds with the principle of ministerial responsibility in our Westminster system of government.
To be sure, I understand why this authority of the intelligence commissioner is there. Section 8 of the charter insists on the right to be protected from unreasonable search and seizure. The intelligence commissioner's role ensures that this standard is met.
Why is this a problem? Canada has an unfortunate history of ministers and prime ministers trying to shirk responsibility for the actions of our security services, which dates back decades. Prime Minister Pierre Trudeau used the principle of police independence to state that his government could not possibly engage in review or oversight of the activities of the RCMP even though the national security roles of the RCMP are a ministerial responsibility. There is simply a tension here with our constitutional requirements and with what has been the practice of our system for decades. If this bill is to pass through, it will be up to members of Parliament to hold the minister to account, even if he or she tries to blame the intelligence commissioner for actions not taken.
Second, despite the creation of no less than three major review agencies, there's still no formal mechanism for efficacy review of our security services. We will receive many reports as to whether or not our security services are compliant with the law, but we still will not have any idea of how well they are doing it. I'm not suggesting we need to number-crunch how many terrorism plots are disrupted. Such a crude measure would be counterproductive. However, inquiring as to whether the analysis produced supports government decisions in a timely manner is a worthwhile question to ask. Efficacy review is still a gap in our national security review architecture.
Third, while I praise the transparency of Bill C-59, I'm also concerned about what I'm calling “report fatigue”. I note that between last year's BillC-22 and now Bill C-59, there will have been at least 10 new reports generated, not including special reports as required. It is my understanding that some of these reports are very technical and can be automatically generated when certain tasks such as, hypothetically, the search of a dataset is done. However, others are going to be more complex. More briefings will also be required. Having spent considerable time working on reports for the government in my former work, I know how difficult and time-consuming this can be.
Finally, and related to this last point, it is my understanding that the security services will not be receiving any extra resources to comply with the reporting and briefing requirements of either BillC-22 or Bill C-59. This concerns me, because I believe that enhanced communication between our national security services with the government and review bodies is important. As the former's powers expand, this should be well resourced.
In summary, the ability to investigate threats to the national security of Canada is vital. I believe that for the most part, Bill C-59 takes Canada a great step towards meeting that elusive balance between liberty and security. In my view, where Bill C-59 defines powers and process, it should enable our security services to carry out their important work with confidence knowing exactly where they stand. Further, the transparency in the bill will hopefully go some way towards building trust between the Canadian public, Parliament, and our security services.
Thank you for your time. I look forward to your questions.
View Pierre Paul-Hus Profile
CPC (QC)
Thank you, Mr. Chair.
Hello, Ms. Carvin.
In your presentation, you said that Bill  C-59 would change the powers of CSIS officers. It is often said that Bill C-51 gave CSIS too many powers. There have been many calls to change that, and I would like to better understand the reason for those requests. Since you worked for that organization, you are familiar with the field. I would like to know more about that.
Stephanie Carvin
View Stephanie Carvin Profile
Stephanie Carvin
2017-12-05 9:14
Thank you for your question.
I will respond in English. Thank you.
I think one of the issues is that, without guidance, the security services do not know where to step. There is concern, for example, that with the broad scope of BillC-51, knowing where the limits were was a challenge. One of the things that the service always worries about is another commission of inquiry. This is the number one thing you want to avoid because of the drain on manpower, resources, and these kinds of things. Without adequate oversight, without clear guidance as to where the lines are, the service becomes very scared about where it can actually proceed.
We've seen that, of course. Michel Coulombe and the new director have stated that they haven't really gone for the warranted powers in BillC-51 that allow it to violate the charter, as far as I'm aware. You want powers that are clearly defined in law and that you know have the backing of the government and the backing of the courts, or else a kind of paralysis develops, in the sense that you don't want to do anything that could eventually end up with a commission of inquiry again. This is why I strongly support clearly defined disruption powers.
I believe disruption is important. One of the things I saw during my time was just the speed at which terrorism investigations sped up. They could go from being over two years to being a couple of weeks, when people saw the propaganda and would make the decision to leave.
These disruption powers are important, but I think grounding them in the charter and in interpretations of the law is absolutely vital to the actual operations of the agency.
Alex Neve
View Alex Neve Profile
Alex Neve
2017-12-05 9:18
In a very complementary way, I was going to highlight that we too absolutely agree that the need for a much more careful delineation of CSIS's powers, when it comes to threat reduction, is essential. That's why there is this need to enshrine a clear prohibition—and the line absolutely needs to be drawn—to make it clear that actions that will violate the Charter of Rights.... Very importantly, we would add that Canada's international human rights obligations, which are binding and which take our actions into a global context, play a very important role there.
View Matthew Dubé Profile
NDP (QC)
Thank you, Mr. Chair.
I'm going to try to get through all these points quickly because I only have the seven minutes.
Dr. Carvin, on the intelligence commissioner issue, I'm just wondering about the length of the term and whether five years is enough to have some kind of independence from the government apparatus. Given the fact that, potentially, they can be reappointed for a second term, would there not be incentive to have some kind of job security in that sense?
Stephanie Carvin
View Stephanie Carvin Profile
Stephanie Carvin
2017-12-05 9:21
It's interesting, in that you want someone who is familiar enough with what's happening and doesn't lose touch, but you're right, there is that potential conflict. I think a lot of it is also going to depend on the people around the intelligence commissioner and the support staff they actually have.
The intelligence commissioner is going to have considerable responsibilities on review and oversight. I believe the advantage is going to be having someone who has recent experience and understands the context and things like that, but even more importantly, I think ensuring that the people around this individual are well staffed and well funded is going to make a difference.
View Matthew Dubé Profile
NDP (QC)
In terms of independence, does it cause potential conflicts by keeping the person as non-reliant on the executive branch as possible for their job security?
Stephanie Carvin
View Stephanie Carvin Profile
Stephanie Carvin
2017-12-05 9:22
I have to believe that our judges are sufficiently pensioned such that this is probably not going to be that much of an issue. I'm going to refer to my friend Emmett Macfarlane, who has written considerably on the courts in Canada and has written passionately that the judges actually are independent. I'm going to base my expertise on him and the conclusions of his research.
View Matthew Dubé Profile
NDP (QC)
Okay, great.
The last question is on the intelligence commissioner. Given that it's oversight and not review, there's obviously something novel in that, and that's important. I want to make sure I'm understanding correctly that we're looking more at general authorizations as opposed to specifics, in terms of the actions being carried out by different agencies. I want to make sure I'm understanding that right. They're not actually looking at a specific action being posed but rather at the reasonableness of a general direction that an agency might be going in. Am I understanding that correctly?
Stephanie Carvin
View Stephanie Carvin Profile
Stephanie Carvin
2017-12-05 9:24
Right. I don't know if you've been referred to Craig Forcese, who will be on the next panel. He has developed a decision tree. It's actually more complicated than your daily Sudoku. He might be better placed to answer that question.
It's my understanding that, yes, it is general, but there are some very specific cases where the intelligence commissioner will have to make calls, in particular, in defence of critical infrastructure. This is where some of my concerns about ministerial oversight arise.
View Matthew Dubé Profile
NDP (QC)
Thank you very much.
There is one last question I wanted to ask. You talked about the importance of having legal grounds for the operations that CSE does. There are different parts that I've been looking at. I don't have enough time to get into some of those details, but there is one I was asking them about with proposed section 24, about testing and studying information infrastructure. There's also proposed section 28, which is about the minister authorizing cybersecurity—essentially, authorization to protect federal infrastructure and non-federal infrastructure.
Could the bill benefit from more clarity as to what exactly CSE can be doing in those particular contexts?
Stephanie Carvin
View Stephanie Carvin Profile
Stephanie Carvin
2017-12-05 9:28
Very briefly, I would say I am happy for the intelligence commissioner to have a good review and oversight discretion, particularly with the defence of critical infrastructure, because that is a very vague concept and our idea of what it is actually changes over time.
With regard to proposed section 24, I'm going to leave that to Craig Forcese, given the time.
View Michel Picard Profile
Lib. (QC)
Rest assured that I completely agree with the principle you have just stated. Yet we also have to look at the practical application. In practice, the texts are not always adaptable.
Ms. Carvin, you said there are more reports and that there is a need for transparency. How does it help people to inform them of the current level of security or danger? I am not referring to security professionals and legislators, but to people who work in a store, a restaurant, a factory, and so forth.
Stephanie Carvin
View Stephanie Carvin Profile
Stephanie Carvin
2017-12-05 9:45
Thank you for your question.
Again, I would refer you to the worldwide threat assessment. It is a 10- to 15-page report written in very basic language that provides guidance as to the priorities and concerns of the U.S. national intelligence committee. It's there for anyone to read, and I think Canadians would benefit. Certainly someone like me, who teaches threats to critical infrastructure, would certainly be using any kind of document like that in teaching. I am sure I'm not alone.
There are a lot of university campuses now that are teaching terrorism and national security. We need to educate students about the kinds of threats they will be working on if they choose to go into a law enforcement career or a national security career.
View Peter Fragiskatos Profile
Lib. (ON)
Thank you very much.
Mr. Wark, I want to quote a couple of things here.
This is a sentence from an article you wrote in The Globe and Mail shortly after BillC-51 was introduced. You say, “Strengthened accountability may well be our best bet to ensure that new security powers are balanced against rights protections.”
After Bill C-59 was released, you wrote, “Canada may have restored its place in the world as it pertains to national security review and democratic controls, a place we gave up after 1984.”
This is a general question. I think it shows that Bill C-59 has made an important advance, but I wonder whether you could give us your thoughts on where we were and where we are now as a result of Bill C-59.
Wesley Wark
View Wesley Wark Profile
Wesley Wark
2017-12-05 10:37
Briefly I would say that once upon a time, going back to 1984 and the passage of the CSIS Act, Canada was a bit of a global leader in terms of providing for accountability for security and intelligence, albeit in a relatively limited realm. That was augmented when the CSE commissioner's office was created in 1996.
However, after that time I think we fell behind advancing practices among our counterparts, particularly our Five Eyes members. We didn't have across-the-board integrated review. We weren't covering many aspects of an increasingly integrated practice of intelligence and security. We had no parliamentary capacity to really dig into the classified information, which is the lifeblood of the security and intelligence system.
My view is that with regard to the creation of NSIRA, the intelligence commissioner, and the legislation that has been passed to create a National Security and Intelligence Committee of Parliamentarians, that package puts Canada, I would say, in a leading position in the world in terms of providing for accountability, in theory. Now we'll have to see how well it is actually put into practice. However, we certainly have the bones of a very impressive system for accountability, and now we'll just have to make sure we can make it work.
View Glen Motz Profile
CPC (AB)
I have no comment about 1984.
As we know, you can't wrap regulations and ministerial directives together. They're not the same. We know that. With that in mind, do both of you believe that these regulations allow accountability and public record with the ability to be more nimble? Rather than having everything in the bill, is there some value in having some provisions that require nimbleness to be in regulations?
Craig Forcese
View Craig Forcese Profile
Craig Forcese
2017-12-05 10:41
Absent a specific suggestion in this bill, I don't know that I would single anything out as better embedded in regulation. Professor Wark and Professor Carvin this morning both mentioned that the concept of dataset is broadly clothed. If we were to define it rigidly in the act, then we may have a problem. However, we don't. We have an open-textured definition of “dataset” that's then subject to scrutiny by independent oversight entities. That's an example of flexibility. There's also the prospect of “exigent circumstances”, which the bill recognizes in several instances.
I don't see this as overly restrictive, and to a certain extent, I think a lot of these changes surface internal guidelines that the services have in fact employed. I think codifying it in legislation is actually important because it creates a sense that these are agencies that do comply with the rule of law that people are otherwise unaware of because these standards are opaque and buried in operational policies. I think that's important in terms of credibility.
Wesley Wark
View Wesley Wark Profile
Wesley Wark
2017-12-05 10:42
I would just add very briefly that probably the ideal thing would be to have a balance between legislative direction and regulation in detail. I think one of the things that Bill C-59 does in particular through its accountability provisions is to ensure that if that combination of legislative direction and ministerial regulation isn't working properly, that will appear in the kinds of review reports and reporting to the minister that the body will do.
I would also say that although this remains a work-in-progress on the part of the government, I think it will be very important to roll out as quickly as possible the government's commitments on national security transparency, what has sometimes been referred to as the transparency charter. Transparency is a second dimension to accountability that I think will help ensure that balance between legislative direction and ministerial regulation is effective.
View Ralph Goodale Profile
Lib. (SK)
I will, Mr. Chairman. Thank you very much to the members of the committee for their work as they are about to begin clause-by-clause study of Bill C-59, the national security act.
I am pleased today to be accompanied by a range of distinguished officials in the field of public safety and national security. David Vigneault, as you know, is the director of CSIS. Greta Bossenmaier, to my right, is the chief of the Communications Security Establishment, and the CSE is involved in Bill C-59 in a very major way.
To my left is Vincent Rigby, associate deputy minister at Public Safety. I think this is his first committee hearing in his new role as associate deputy minister. Kevin Brosseau is deputy commissioner of the RCMP, and Doug Breithaupt is from the Department of Justice.
Everything that our government does in terms of national security has two inseparable objectives: to protect Canadians and to defend our rights and freedoms. To do so, we have already taken a number of major steps, such as the new parliamentary committee established by Bill C-22 and the new ministerial direction on avoiding complicity in mistreatment. That said, Bill  C-59 is certainly central to our efforts.
As I said last week in the House, this bill has three core themes: enhancing accountability and transparency, correcting certain problematic elements in the former BillC-51, and ensuring that our national security and intelligence agencies can keep pace with the evolving nature of security threats.
Bill C-59 is the product of the most inclusive and extensive consultations Canada has ever undertaken on the subject of national security. We received more than 75,000 submissions from a variety of stakeholders and experts as well as the general public, and of course this committee also made a very significant contribution, which I hope members will see reflected in the content of Bill C-59.
All of that input guided our work and led to the legislation that's before us today, and we're only getting started. When it comes to matters as fundamental as our safety and our rights, the process must be as open and thorough as it can possibly be. That is why we chose to have this committee study the bill not after second reading but before second reading. As you know, once a bill has passed second reading in the House, its scope is locked in. With our reversal of the usual order, you will have the chance to analyze Bill C-59 in detail at an earlier stage in the process, which is beginning now, and to propose amendments that might otherwise be deemed to be beyond the scope of the legislation.
We have, however, already had several hours of debate, and I'd like to use the remainder of my time to address some of the points that were raised during that debate. To begin with, there were concerns raised about CSIS's threat reduction powers. I know there are some who would like to see these authorities eliminated entirely and others who think they should be limitless. We have taken the approach, for those measures that require a judicial warrant, of enumerating what they are in a specific list.
CSIS needs clear authorities, and Canadians need CSIS to have clear authorities without ambiguity so that they can do their job of keeping us safe. This legislation provides that clarity. Greater clarity benefits CSIS officers, because it enables them to go about their difficult work with the full confidence that they are operating within the parameters of the law and the Constitution.
Importantly, this bill will ensure that any measure CSIS takes is consistent with the Charter of Rights and Freedoms. BillC-51 implied the contrary, but CSIS has been very clear that they have not used that particular option in Bill C-51, and Bill C-59 will end any ambiguity.
Mr. Paul-Hus, during his remarks in the debate in the House, discussed the changes we're proposing to the definition of “terrorist propaganda” and the criminal offence of promoting terrorism. Now, there can be absolutely no doubt of our conviction—I think this crosses all party lines—that spreading the odious ideologies of terrorist organizations is behaviour that cannot be tolerated. We know that terrorist groups use the Internet and social media to reach and radicalize people and to further their vile and murderous ends. We must do everything we can to stop that.
The problem with the way the law is written at the moment, as per BillC-51 is that it is so broad and so vague that it is virtually unuseable, and it hasn't been used. Bill C-59 proposes terminology that is clear and familiar in Canadian law. It would prohibit counselling another person to commit a terrorism offence. This does not require that a particular person be counselled to commit a particular offence. Simply encouraging others to engage in non-specific acts of terrorism will qualify and will trigger that section of the Criminal Code.
Because the law will be more clearly drafted, it will be easier to enforce. Perhaps we will actually see a prosecution under this new provision. There has been no prosecution of this particular offence as currently drafted.
There were also questions raised during debate about whether the new accountability mechanisms will constitute too many hoops for security and intelligence agencies to jump through as they go about their work. The answer, in my view, is clearly, no. When the bill was introduced, two of the country's leading national security experts, Craig Forcese and Kent Roach, said the bill represents “solid gains—measured both from a rule of law and civil liberties perspective—and come at no credible cost to security.”
Accountability mechanisms for Canadian security and intelligence agencies have been insufficient for quite some time. BillC-22 took one major step to remedy that weakness by creating the new National Security and Intelligence Committee of Parliamentarians. Bill C-59 will now add the new comprehensive national security and intelligence review agency, which some people, for shorthand, refer to as a super-SIRC, as well as the position of intelligence commissioner, which is another innovation in Bill C-59.
These steps have been broadly applauded. Some of the scrutiny that we are providing for in the new law will be after the fact, and where there is oversight in real time we've included provisions to deal with exigent circumstances when expedience and speed are necessary.
It is important to underscore that accountability is, of course, about ensuring that the rights and freedoms of Canadians are protected, but it is also about ensuring that our agencies are operating as effectively as they possibly can to keep Canadians safe. Both of these vital goals must be achieved simultaneously—safety and rights together, not one or the other.
Debate also included issues raised by the New Democratic Party about what is currently known as SCISA, the Security of Canada Information Sharing Act. There was a suggestion made that the act should be repealed entirely, but, with respect, that would jeopardize the security of Canadians. If one government agency or department has genuine information about a security threat, they have to be able to disclose it to the appropriate partner agencies within government in order to deal with that threat, and you may recall that this has been the subject of a number of judicial enquiries in the history of our country over the last number of years.
That disclosure must be governed by clear rules, which is why Bill C-59 establishes the following three requirements. First, the information being disclosed must contribute to the recipient organization's national security responsibilities. Second, the disclosure must not affect any person's privacy more than is reasonably necessary. Third, a statement must be provided to the recipient attesting to the information's accuracy. Furthermore, we make it clear that no new information collection powers are being created or implied, and records must be kept of what information is actually being shared.
Mr. Chair, I see you're giving me a rude gesture, which could be misinterpreted in another context.
Some hon. members: Oh, oh!
Hon. Ralph Goodale: There are a couple of points more, but I suspect they'll be raised during the course of the discussion. I'm happy to try to answer questions with the full support of the officials who are with me this morning.
Thank you.
View Michel Picard Profile
Lib. (QC)
Transparency is often welcome.
That said, this gives you greater flexibility in gathering information and, as a result, in being able to have more and better quality information. The downside of that is the possibility of having information about third parties.
As of now, what steps are you taking to protect information about third parties?
David Vigneault
View David Vigneault Profile
David Vigneault
2017-11-30 9:24
All information that the service gathers must be absolutely linked to our mandate, which is to monitor threats to the security of Canada. From the outset, the information we collect must be related to a threat to the security of Canada.
Bill  C-59 sets out categories of information that are determined by the Minister. He tells me, as director, which categories of information we have the right to use. The men and women of the service will go and gather that information in an organized fashion. If the information is part of a Canadian dataset, the Intelligence Commissioner will have to assess the minister's decision.
With Canadian information, the Federal Court will have to determine whether we can use it and keep it. The way in which we use that information will be reviewed by the new National Security and Intelligence Review Agency and the National Security and Intelligence Committee of Parliamentarians.
The way in which the categories are determined by the Minister, the way in which we will use Canadian information, the role that the Federal Court and the Intelligence Commissioner will play, and the fact that any subsequent use of the information will be reviewed by oversight committees, all this will allow us to use information that is absolutely essential in confronting 21st century threats. Having been written 30 years ago, the law was showing its age, as Justice Noël said.
These measures will allow us, in 2017, to confront the threats appropriately, while being accountable for the protection of information on third parties, as you mentioned.
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