Interventions in Committee
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Dominique Peschard
View Dominique Peschard Profile
Dominique Peschard
2018-02-06 12:43
It would be desirable for the commissioner to review that because the conditions prevailing at the time he provided his initial authorization may no longer be applicable.
I have to say we aren't convinced about the commissioner's role. I would say the commissioner position gives the impression that there will be a kind of quasi-judicial review of the minister's decisions to determine whether they are consistent with the charter. That's what's understood. It's a kind of security, but it must be understood that the information the commissioner receives to validate or not validate an authorization depends entirely on what the intelligence services provide to the commissioner for the purpose of establishing an assessment of the situation that warrants the authorization.
The minister issues the authorization, and there is an enormous amount of pressure on the commissioner to approve it since no one wants to be held responsible for having denied something that might result in a subsequent security breach. There is no counterparty to advise the commissioner to oppose the file submitted by the intelligence services.
Our great fear is that the commissioner may play somewhat the same role as the United States Foreign Intelligence Surveillance Court, which is widely known to grant authorize authorizations almost automatically.
We are not opposed to this commissioner position, but it must provide adequate protection from rights abuses. We feel that remains to be proven.
View Matthew Dubé Profile
Thank you.
Your answer raises two questions. First, the post created is described as a part-time position. Considering the workload and all the complexities you have just cited, is that appropriate, or should it be a full-time position? I think it is entirely possible that a retired judge could occupy the position on a full-time basis.
Dominique Peschard
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Dominique Peschard
2018-02-06 12:45
We did not review that specifically, but the fact that it is a part-time position definitely left us somewhat perplexed, given the extent of the work involved. In view of the fact that the commissioner must seriously review the authorizations and various proposals submitted to him or her, we feel it would be reasonable for that person to occupy the position on a full-time basis.
View Matthew Dubé Profile
I have a final question on the subject. You may find it hard to answer in what little time we have left because it is fairly broad question.
You discussed automatic authorizations and said that might be difficult for the commissioner. It must also be acknowledged that there is no real-time oversight in this instance. What we can acknowledge as positive is that the commissioner position contemplated would approach that.
If this is not the perfect model, do you have any suggestions or recommendations regarding what we might explore in future to establish an entity that conducts real-time oversight, which is not currently the case in Canada?
Dominique Peschard
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Dominique Peschard
2018-02-06 12:47
Our hope is that the National Security and Intelligence Review Agency can verify that the agencies respect Canadians' rights in the course of their work. That is why we think the agency must first have the necessary resources, as Mr. Mirza previously mentioned. Second, the agency must also be seen and act somewhat as the Privacy Commissioner of Canada does with respect to privacy. In other words, the agency must be clearly seen as an independent organization that also has expertise and whose mandate is to be accountable to the public.
We think that what's wrong about Bill  C-59 is that, under it, the agency would report much more to the department and the government than to the people on the way the agencies conduct their business. Bill  C-59 could be amended to make the agency operate more as a watchdog reports to the public on the way the agencies respect rights in carrying out their mandates.
View Julie Dabrusin Profile
Lib. (ON)
All right. Thank you. That was very helpful.
I just want to make sure I have it clear, because I'm trying to look for some concrete things that I can apply when we're looking at this legislation.
In taking into account, for example, NSIRA composition, there have been all sorts of suggestions and recommendations made by others as to how that should look. You said we should ensure there's a proper diversity, a philosophical diversity, and that it should be part of the lens that's approached.
If I were going to give any other concrete solution that I might try to put in here, do you have anything else you would like to see us do, specifically?
Faisal Mirza
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Faisal Mirza
2018-02-06 12:53
Yes. I'd like to see it legislated that.... NSIRA will have a minimum of three of what we'll call the highest-level officials, and up to six, and they're renewable for a five-year term. I'd like to see some understanding as to how that's going to be composed so that it doesn't fall into the same scenarios that you see in other ineffective oversight bodies, a lack of independence and lack of impartiality.
Pick one person from the judiciary and pick one person from academia who has an understanding of the sociological issues and has expertise in those fields. Also, pick somebody who is in touch with the community, subject, of course, to the security clearances, etc., that they have to go through. I think it's important that you turn your mind to that, whether it's by codifying it or by at least providing a strong policy directive.
Peter Edelmann
View Peter Edelmann Profile
Peter Edelmann
2018-02-01 12:05
Thank you very much for inviting me to appear before you today.
Bill  C-59 proposes complex and major updates to national security law. It would address several decisions of the Federal Court of Canada, and widespread concerns expressed about Bill C-51 in 2015.
The Canadian Bar Association generally supports the goals and structure of Bill  C-59 as a positive change, modernizing the legal framework for Canada’s national security infrastructure and increasing transparency, oversight and review, features that have previously been lacking. Our comments and analysis of the proposals in Bill  C-59 are offered in hopes of further improving the bill.
Our written submissions provide a number of specific recommendations and I would refer you to those for the more technical amendments we propose. I will use my time today to focus on two or three areas of broader concern.
First of all, we support the creation of the national security and intelligence review agency, the NSIRA. I just have a couple of comments with respect to it but in particular with respect to the mandate. While we commend the decision to avoid language that would unnecessarily restrict the agency's mandate, an overly broad mandate could hinder the agency's ability to focus and assess its performance against its mandate.
In the way that it's drafted now, the NSIRA has responsibility for broad review of any activity of “a department that relates to national security or intelligence”. “Intelligence” is a very broad term. It could include things that are done by anything from the Canada Revenue Agency to Fisheries and Oceans, police departments, etc.
“National security” is also problematic given the multiple definitions that we see in different pieces of legislation. In particular, we remain concerned about the SCISA, the Security of Canada Information Sharing Act, or with the amendments that we have today. The breadth of the definition of an “activity that undermines the security of Canada” in section 2 is still very broad and notably it's different from the definition in the CSIS Act of “threats to the security of Canada”. Having two definitions is not helpful. It's confusing and it doesn't provide a clear mandate for national security agencies and in particular for an oversight or review agency.
I would also note in passing that the amendment to the exception in section 2(2) of the SCISA is troubling as it actually substantially reduces the protection under the current version. Several legitimate political activities might be seen on their face as undermining the sovereignty or territorial integrity of Canada.
In the past, we've recommended that there be one coherent, clear definition of “national security” and we continue to be of that view. It's also unclear whether certain other activities fall under the definition of “national security” at all. For example, the Secure Air Travel Act, SATA, does not refer to national security and it's unclear whether the review of SATA activities would fall under the NSIRA or not. In other words, is this national security legislation? Does it fall under NSIRA?
The coordination of the work of the NSIRA with other review agencies is obviously key although we would note that there remain significant gaps in the review framework. The problem is particularly stark with the Canada Border Services Agency, and we've expressed concerns about this lack of independent review of the CBSA in several past submissions.
CBSA remains one of the largest law enforcement agencies in the country and has no independent oversight or review at all. This is not a role that NSIRA should take on although it does highlight the problem of having a vague definition of “national security” because arguably everything that Canada Border Services Agency does could fall into a broad understanding of national security in a vague sense.
Everyday complaints about problems at the border should not be burdening NSIRA and its resources. A specialized review agency is required.
We also have concerns, in particular, with respect to NSIRA's access to information, and in particular that NSIRA would have access to any information other than a cabinet confidence that it deems necessary to conduct its work. This would extend explicitly to information subject to solicitor-client privilege, professional secrecy of advocates and notaries, or litigation privilege, creating an open-ended mechanism to review legal advice given to the government. This is of significant concern to the CBA.
The role of solicitor-client privilege is fundamental to the functioning of our justice system and this is as true for government actors as it is for private actors. It has been argued that privileged information must be made available because the practices of security agencies often depend on the legal advice they receive.
However, without assurances of privilege, legal advice will be sought less often, based on less candid disclosure by client agencies, or worse, sought and received but not documented.
The other problem with respect to the disclosure of solicitor-client privileged information is how the NSIRA then deals with it in its reports. It's not helpful for the NSIRA to have solicitor-client privileged information. What they need is information about how this is actually deployed in the agency, not the advice that was given behind those decisions.
Concerning the intelligence commissioner, the CBA supports the creation of an independent specialized office for the oversight and authorization of activities by the CSE and CSIS. We have generally called for judicial oversight, but we recognize the advantages of a dedicated commissioner with staff and resources to allow effective ongoing oversight.
The nature of the review mandated by sections 14 to 21 of the proposed intelligence commissioner act does create some concerns for us because there's a system of nested reasonableness findings. Instead of the normal process in front of a judge for a warrant where a judge would find whether there are reasonable grounds to issue a warrant, what the legislation currently foresees is that the minister would make a finding on reasonable grounds, and then the intelligence commissioner would review that on a reasonableness standard.
This creates two problems from our perspective. First, it's unclear how much deference that implies. There's an extensive debate in the courts right now around the application of the reasonableness standard at all and how that plays out in terms of deference.
There's no need to bring that confusion into this area, and there is not that confusion around the reasonable grounds standard, so there's no reason for this nested reasonableness finding other than creating a level of confusion as to how much oversight is actually being provided, in particular because it's going to be provided behind closed doors. It's important for Canadians to understand what the intelligence commissioner is doing and that it be clear.
With respect to the CSE, the CBA generally supports the more detailed mandate of the CSE, and we support the structure as it's being proposed. There are several elements of the proposed mandates that are in tension with one another, in particular, the offence and defence in cyber-operations.
We would recommend that there be an explicit vulnerabilities equities process as part of the mandate of the CSE, so that the balancing can happen in a transparent way. The U.S. has a process in place that might work as a model, or at least give ideas with respect to that.
With respect to CSIS, we continue to have concerns around the disruption powers. In particular, giving kinetic powers to CSIS comes away from the mandate of creating CSIS in the first place, after the McDonald Commission.
I'll refer you to our written submissions with respect to our concerns around section 12.1(3.2). We continue to have concerns similar to those we've had in the past with respect to these warrants limiting charter rights in that context.
Finally, I would note with respect to the Criminal Code provision of counselling of terrorism offence, in my view, following the jurisprudence of the Supreme Court in Hamilton, the counselling offences in the Criminal Code already cover everything this offence covers. There is no need to further complicate the Criminal Code. It's already too complex. It ought to be simplified, and the counselling offence covers everything you're hoping to cover here.
Thank you very much for your time, and I apologize if I went a little bit over.
Christina Szurlej
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Christina Szurlej
2018-02-01 12:25
What I'll focus on instead are my recommendations. They are as follows:
Ensure any limitation of human rights conforms with Canada's national and international obligations. Any encroachment on human rights must be necessary, proportionate, reasonable, and justifiable in a free and democratic society.
The government must ensure any collection of personal data is directly linked to protecting public safety and national security, rather than being tangentially connected to the duties and functions of CSIS or any other agency.
Legislation should be introduced to protect the Canadian populace from third party commodification of personal data through payment or subscription.
The national security and intelligence review agency should be provided with the authority to render binding decisions.
The role of the intelligence commissioner should be elevated from part-time to full-time status to reflect the breadth of the portfolio.
View Julie Dabrusin Profile
Lib. (ON)
I'm happy you were able to get that in.
I've mentioned this before over the past hearings. One of the big issues for people in my community, one of the things that has come up a lot, is ensuring that there is proper oversight across our national security agencies.
I wanted to start with a point that you had raised, Mr. Edelmann. You suggested that in fact NSIRA is overly broad, which is a different perspective from what I've often heard. It seemed to me that the idea of having a broad institution that breaks across the silos was exactly what we were trying to get to. Would that be solved by having a different definition for national security? You had mentioned national security as being part of the problem.
Peter Edelmann
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Peter Edelmann
2018-02-01 12:28
The concern we have with the vagueness of the mandate is how NSIRA is to measure how it is being effective in relation to its mandate, and how it is to deploy its resources. If you have an overly broad definition of intelligence and national security in general, it covers such a broad swath of things that, where there is an actual requirement for oversight, the NSIRA may find itself overwhelmed with complaints about the Canada Border Services Agency, for example, or looking into intelligence activities of the Department of Fisheries and Oceans, or—
View Julie Dabrusin Profile
Lib. (ON)
But how would we cure it? At this point we have legislation in front of us. From your perspective, what would you like to see us do to dig into that problem?
Peter Edelmann
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Peter Edelmann
2018-02-01 12:29
What I would suggest is that there be one clear definition of national security and threats to national security. The definition in the CSIS Act has been used for a long time, and it's only with BillC-51 that we ended up with another definition that created a lack of clarity with the Security of Canada Information Sharing Act. If the information sharing act is going to be that broad, there's no question that there does need to be oversight, and so it may be that the broader definition from the information sharing act is the one that ought to be used with respect to NSIRA.
Our view is that definition is overly broad and vague.
Peter Edelmann
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Peter Edelmann
2018-02-01 12:30
Correct. In terms of looking at the definitions that are there already, we have the definition already in the CSIS Act. With NSIRA there may be some concerns as to whether the CSE's mandate is somewhat broader, and there are some aspects of what the CSE is doing that might be outside of that. There may be some thought that might need to go into exactly what it is that NSIRA is overseeing and where the gaps are with the other oversight agencies.
In terms of what it ought to cover, or what ought to be covered by other agencies, in our submission, most of what CBSA does, for example, should just be covered by another oversight agency.
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