Interventions in Committee
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Pierre Blais
View Pierre Blais Profile
Hon. Pierre Blais
2018-02-06 11:35
Global Affairs Canada is dealing with certain issues, but I'm not familiar with them.
Global Affairs Canada's will have to get involved when risks arise that directly concern national security, and it will have to report to the review agencies. Global Affairs Canada has been part of the system for more than 30 years. It maintains very close relations with the secret services. However, I can't go into the details.
View Matthew Dubé Profile
I understand because that includes consular affairs.
Do you think that what is proposed in the bill is enough to fill the gap that has been shown to exist on numerous occasions, particularly in cases such as that of Mr. Arar?
Pierre Blais
View Pierre Blais Profile
Hon. Pierre Blais
2018-02-06 11:36
That's a special case.
I think that the bill, as drafted, covers all the angles for Global Affairs Canada and all the other organizations. As far as I'm concerned, I don't really see any risk. The work done by Global Affairs Canada and the other agencies should be reviewed on a case-by-case basis.
I worked in this field for many years and have dealt with this kind of case, as you may suspect, and I have no fears in that regard.
View Julie Dabrusin Profile
Lib. (ON)
Thank you to all of you for coming to talk with us today.
One of the issues that I'm particularly interested in when I look at all of this is the question of oversight and accountability in the bill and how that's been arranged.
We've heard a number of people come to talk about—and I know we said we were going to try to avoid acronyms—NSIRA, and how that's great because it gets past all the silos that we've had in the past, which have been a problem. Last week we had a witness from the Canadian Bar Association. He presented an interesting quandary about whether it is too broad now.
Is the way “national security” is defined for the NSIRA review too broad? Given your own experience and the transitional role that gets played, how do you see that? Do you see any concerns about the definition of “national security” for the NSIRA review?
Pierre Blais
View Pierre Blais Profile
Hon. Pierre Blais
2018-02-06 11:38
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.
View Julie Dabrusin Profile
Lib. (ON)
The breadth isn't a concern for you in the definition of “national security” in the statute for NSIRA?
Pierre Blais
View Pierre Blais Profile
Hon. Pierre Blais
2018-02-06 11:41
No, not really. It will be case by case. We will see how it works.
View Sven Spengemann Profile
Lib. (ON)
Thank you very much, Mr. Chair.
Mr. Fadden, I have a quick follow-up question on your comments and your recommendation regarding the intelligence commissioner. Is it your view that decisions of the intelligence commissioner would be subject to a judicial review?
Richard Fadden
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Richard Fadden
2018-02-06 11:52
I don't have an answer to that, and I think if the answer is yes, then I'm even more frightened by what the range of his authorities could be.
Technically speaking, from what I remember of the Federal Courts Act, I think the short answer would be yes, and if that's the case, I think one of the things that the bill misses a little bit, although there are provisions for exigent circumstances, is that this intelligence commissioner in some circumstances is going to have to be alert and readily accessible, even though he or she will be holding a part-time position.
Therefore, I worry that there's a little bit lost about the world of national security, which requires rapid movement.
View Sven Spengemann Profile
Lib. (ON)
That's very helpful. Thank you for that.
Mr. Blais, you spoke about the importance of transparency and public trust. In your written submissions, you've also addressed the work that we do very closely with our allies, especially our Five Eyes allies. How important will relationships with our allies be, not only in actually doing the security work, but also in reviewing the security work? Do you anticipate that NSIRA is going to be in close contact with its counterparts in other jurisdictions?
Pierre Blais
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Hon. Pierre Blais
2018-02-06 11:54
As you know, we have already been in contact for decades with our five particular allies, the Five Eyes. As you may remember, we welcomed those partners earlier, in late September. They came over here. We have regular meetings with them to adapt our approach and to be more efficient.
Obviously, the organizations that we're looking at are also having meetings and are remaining in touch with their allies as well, the Five Eyes and others. It remains important.
We have already discussed what was going on here in Canada. We met with the British, the Americans, all of them, and we go on with that. Obviously, the way we are developing our approach, particularly with almost 20 organizations, is a little new in the area, and we will probably share our views on that. For the time being, we're not yet there, because NSIRA will probably be in place later this year at best.
Faisal Mirza
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Faisal Mirza
2018-02-06 12:07
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 C-59.
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 Minister of Public Safety.
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 C-59 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 Minister of Public Safety and Emergency Preparedness, 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.
Dominique Peschard
View Dominique Peschard Profile
Dominique Peschard
2018-02-06 12:16
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  C-59. 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 C-59 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  C-59 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 C-59 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  C-59. 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  C-59 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.
View Matthew Dubé Profile
That's perfect. Thank you.
I would like to discuss the new commissioner position. Part 3 contains a section that concerns the possibility that the minister may renew authorizations of work done by the CSE without obtaining the commissioner's authorization. Do you think this is a problem?
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