Interventions in Committee
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Guy Bujold
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Guy Bujold
2018-02-15 12:05
Thank you.
Mr. Chair, honourable members, thank you for inviting me here today to speak to you about Bill  C-59, An Act respecting national security matters. As you said, Mr. McKay, I am accompanied by Ms. Joanne Gibb, Director of the Research, Policy and Strategic Investigations Unit of the Civilian Review and Complaints Commission for the Royal Canadian Mounted Police.
I will focus my comments today on part 1 of the bill, which seeks to establish the national security and intelligence review agency, thereby transferring certain powers, duties, and functions from the Civilian Review and Complaints Commission for the RCMP to this new agency.
As the head of the commission, I strongly believe in the importance of civilian oversight and review, whether it is related to national security or, for that matter, related to law enforcement more generally. Independent review fosters positive change and makes organizations better, and I think that's an objective we shouldn't lose sight of when we're talking about these changes. Consequently, the commission supports all of the efforts to enhance the national security review framework.
The trust that Canadians have in their public safety and national security agencies is predicated on accountability and transparency, to the degree possible. Independent review, whether it is by the National Security and Intelligence Committee of Parliamentarians, or by expert civilian bodies such as the Civilian Review and Complaints Commission, the Security Intelligence Review Committee, or the Office of the CSE Commissioner, contributes to the overall accountability framework of the organizations entrusted with keeping Canada safe and secure.
As the government seeks to further strengthen that framework by creating the National Security and Intelligence Review Agency, the commission welcomes the opportunity to work collaboratively with the new review body to ensure that RCMP activities are independently examined.
Created in 1988, the commission has significant experience and expertise in managing complaints and conducting reviews of the RCMP, whether it is into the RCMP’s actions in relation to the G8 or G20 summits, the RCMP seizure of firearms in High River, or policing in northern B.C., to name a few subjects.
The Civilian Review and Complaints Commission for the RCMP, as it is known now, has long been a key element of the RCMP’s accountability structure. By independently reviewing complaints, and where necessary making findings and remedial recommendations, the commission strives to bring about constructive change in the RCMP.
Currently, the commission is undertaking a review of the RCMP's implementation of Justice O'Connor's recommendations in relation to the Maher Arar affair. That investigation is ongoing at this time and is expected to be completed before the end of the fiscal year. The commission will then prepare a report outlining any findings and recommendations pertaining to the six sectors examined by Justice O'Connor.
It is my hope that any findings or recommendations made by the commission would guide the new review agency in its future work in relation to the RCMP's national security activities.
In his 2006 report, Justice O’Connor stressed the importance of a review body being able to “follow the thread”. Through Bill C-59, the new national security and intelligence review agency will have the mandate to do just that, providing a more holistic approach to national security review. Justice O’Connor also stressed the need to eliminate silos and for expert review bodies to work more collaboratively. We're hopeful that this will be an outcome of the new legislation and new oversight structures.
Since the mandate of the RCMP is much broader than just national security, I am pleased that Bill C-59 permits the national security and intelligence review agency to provide the Civilian Review and Complaints Commission with information it has obtained from the RCMP if such information relates to the fulfilment of our own mandate. I believe that this is critical to the overall effectiveness of the expert review bodies.
For example, if in the course of a national security review the national security and intelligence review agency becomes aware of a policy issue unrelated to national security, that issue could be flagged to the CRCC for further examination. This is the reality of the world we're living in.
To further illustrate the importance of collaboration and co-operation, I would suggest that if a public complaint was received by the commission that pertained to national security, but also contained allegations related to RCMP member conduct, the two review bodies should be able to collaborate, within their respective statutory mandates, to deal with the complaint. That is the only way that the Canadians who had made a complaint would receive an appropriate response to all their complaints.
Although the legislation requires the complaint to be referred to the National Security and Intelligence Review Agency, the CRCC, as the expert review body in relation to policing and police conduct, could deal with the allegation related to member conduct. This would ensure a consistent approach in reviewing complaints of RCMP on-duty conduct.
In terms of changes to the commission's mandate relative to Bill C-59, certain elements in the legislation might benefit from further clarification, and that the members of this committee may wish to consider further. Proposed amendments to the RCMP Act require that the Civilian Review and Complaints Commission refuse to deal with a complaint concerning an activity that is closely related to national security and refer any such complaint to the national security and intelligence review agency. That means the CRCC will continue to receive all public complaints related to the RCMP, and thus will remain the point of intake for public complaints. The onus will then be on the CRCC to determine whether the complaint is, in the words of the legislation, “closely related to national security” before deciding on how it will dispose of it.
Absent a definition of national security, however, the commission must make a determination on whether to refer the complaint to the national security and intelligence review agency. Once referred to the national security and intelligence review agency, that agency must receive and investigate the complaint in accordance with section 19 of the new legislation. There is currently no authority, however, for a referral back to the CRCC if the national security and intelligence review agency were to deem, after it had examined a complaint, that it was not a matter closely related to national security. This is a matter that the committee may want to consider further.
Also, while Bill  C-59 prohibits the commission from dealing with or investigating complaints closely related to national security, as well as RCMP activity related to national security, there is no prohibition on the commission's chairperson from initiating a complaint related to national security. Further to the RCMP Act, if the chairperson is satisfied that there are reasonable grounds to investigate the conduct of an RCMP member in the performance of any duty or function, the chairperson may initiate a complaint in relation to that conduct. Bill  C-59 does not amend subsection 45.59(1) of the RCMP Act and, as a result, the chairperson could initiate a complaint closely related to national security. I respectfully suggest that the committee may wish to consider whether this is consistent with the intent of the legislation.
As I indicated at the beginning of my remarks, I believe in the importance of civilian oversight of law enforcement, and we at the Civilian Review and Complaints Commission for the RCMP are fully committed to working with the new national security and intelligence review agency.
In closing, I'd like to thank the committee for allowing me to share my views on the important role of the independent civilian review. I welcome your questions.
View Matthew Dubé Profile
I am pleased to hear that I have 14 minutes.
Thank you for being here today. I have a number of questions and I would like them to pertain to the bill, but certain issues relate to your organization and the RCMP, broadly speaking, and to the topic under consideration.
My first question relates to the lack of consistency across Canada. There are a lot of questions about the way police action is investigated, in Ontario and Quebec in particular, which have provincial police services. We have even heard that the police services in Toronto, Montreal, and other cities have significant involvement in all kinds of anti-terrorism work. Could the lack of consistency in evaluating police work and handling complaints, in both legal and practical terms, be problematic for these national investigations?
Guy Bujold
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Guy Bujold
2018-02-15 12:23
Thank you for your question. It is very interesting and it is something our agency is concerned about, whether in relation to national security or otherwise, and which has been brought to our attention through complaints from members of the public. As you said, it is not just the commission. There are similar organizations in the provinces which are also responsible for reviewing surveillance by various police services.
There is an association of the heads of those organizations. They meet fairly regularly to discuss common issues. As you rightly pointed out, Mr. Dubé, how can we ensure consistency and a standard approach to complaints that have been made about an officer from the Sûreté du Québec, the Ontario Provincial Police, or the RCMP elsewhere in the country, so that the complaint is reviewed in a similar way, regardless of the police service involved. There are conversations between these various groups to make sure that—I will use the English expression—
if it walls like a duck, it talks like a duck, looks like a duck, therefore we're going to treat it as a duck. We should treat all of them as ducks.
That is how we go about it.
View Matthew Dubé Profile
As regards national security, you made recommendations about how to proceed in this context and the need for a stronger definition. If I understand correctly, however, the ideal would be for you to work together rather than passing the buck back and forth.
You conduct parallel investigations, is that correct? How do you see this?
Guy Bujold
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Guy Bujold
2018-02-15 12:29
First of all, we want to meet the legal requirement, under the act, to refer cases involving national security to the new agency. However, in an investigation relating to a worrisome national security issue, if we find that an RCMP member did not fulfill their obligations, their conduct would be an issue. In our view, the commission should be able to continue that investigation. That would mean sharing information with the new agency and would allow us both to conduct our investigation to arrive at a conclusion.
Guy Bujold
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Guy Bujold
2018-02-15 12:30
No. The commission does not deal with criminal matters at all. Its role is to determine whether an RCMP member's conduct is in violation of the policies, training, and legislation that dictate their conduct. If there are legal proceedings because of the conduct of an RCMP member, other authorities will become involved.
View Matthew Dubé Profile
I have one final question. I might then give Mr. Picard some speaking time since it is his birthday.
My question pertains to the Canada Border Services Agency. There is a debate going on right now that you are certainly aware of. There is always some tension between police authority and the territory a certain number of kilometres around customs areas. There have been some incidents, in Windsor in particular. As I recall, someone died following a police chase.
One of the questions raised in the debate of Bill  C-59 is the review or surveillance of the Canada Border Services Agency.
Does your mandate include the work the CBSA does in co-operation with the RCMP or is it once again a question of following the trail, national security issues, and information sharing?
Guy Bujold
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Guy Bujold
2018-02-15 12:32
I will heed Mr. McKay's warning and limit myself to a few brief remarks.
First, we know full well that the government is considering the need for a body like ours to review complaints about actions by members of that organization.
If such an agency is created, it would be in the public interest for it to have a clear link with the commission to ensure that, in cases where the responsibilities of the RCMP and the CBSA overlap, we can do what we have to do.
Alex Neve
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Alex Neve
2017-12-05 8:56
Thank you very much, Mr. Chair.
Good morning, committee members. Amnesty International certainly welcomes this opportunity to appear before you in the course of your review of Bill C-59. I'd like you to know at the outset that I'm here on behalf of both the English and francophone branch of Amnesty International Canada, and thus on behalf of our 400,000 supporters across the country.
Amnesty International has a long history of frequent appearances before parliamentary committees dealing with national security matters, be that studies of proposed legislation or reviews of existing legislation. That's not because we're national security experts. Our expertise, of course, lies in human rights. Our interest in Bill C-59, therefore, comes directly from our mandate to press governments to uphold their international human rights obligations. Documenting and responding to human rights violations arising in a national security context and pressing governments to amend national security laws, policies, and practices to conform to international human rights obligations have long featured prominently in Amnesty International's research and campaigning around the world, long predating September 11.
National security is often blatantly used as an excuse for human rights violations, clearly intended simply to punish and persecute political opponents or members of religious and ethnic minorities. National security operations have frequently proceeded with total disregard for obvious human rights consequences, leading to such serious human rights violations as torture, disappearances, and unlawful detention. Without adequate safeguards and restrictions, overly broad national security activities harm individuals and communities who pose no security threat at all. In all of these instances, the impact is frequently felt in a disproportionate and discriminatory manner by particular religious, ethnic, and racial communities, adding yet another human rights concern.
These concerns are by no means limited to other parts of the world. Over the past 15 years, Amnesty International has taken up numerous cases involving national security-related human rights violations related to the actions of Canadian law enforcement and national security agencies. These concerns have been so serious as to be the subject of two separate judicial inquiries, numerous Supreme Court and Federal Court rulings, and several significant apologies and financial settlements totalling well over $50 million to a number of Canadian citizens and other individuals whose rights were gravely violated because of the actions of Canadian agencies. I think of Maher Arar, Benamar Benatta, Abdullah Almalki, Ahmad El Maati, Muayyed Nureddin, and Omar Khadr. This is why we bring our human rights analysis to legislation such as Bill C-59—to ensure that provisions provide the greatest possible safeguards against human rights violations of this nature.
In commenting on the bill, I will touch briefly on five areas: first, the need for a stronger human rights anchor in the bill; second, the bill's national security review provisions; third, positive changes in Bill C-59; fourth, concerns that remain; and fifth, issues of concern that have not been addressed in the bill.
The first area is the need for a national security approach anchored in a commitment to human rights. In the review that preceded Bill C-59, we urged the government to use the opportunity of the present reform to adopt a clear human rights basis for Canada's national security framework. That is an approach that is not only of benefit, evidently, for human rights, but truly lays the ground for more inclusive, durable, and sustainable security as well. Currently, other than the Immigration and Refugee Protection Act, none of Canada's national security legislation specifically refers to or incorporates Canada's binding international human rights obligations.
We recommended that those laws be amended to include provisions requiring legislation to be interpreted and applied in a manner that complies with international human rights norms. That was not taken up in Bill C-59 except for one very limited reference to the convention against torture. This is important in that it sends a strong message of the centrality of human rights in Canada's approach to national security. It is also of real benefit when it comes to upholding human rights in national security-related court proceedings.
Our first recommendation, therefore, remains to amend Bill C-59 to include a provision requiring all national security-related laws to be interpreted in conformity with Canada's international human rights obligations.
Second, we strongly welcome and support the provisions in part 1 of Bill C-59 creating the national security and intelligence review agency. Amnesty International has been calling for the creation of a comprehensive and integrated review agency of this nature since the time of our submissions to the Arar inquiry in 2005. This has been one of the longest-standing and most serious gaps in Canada's national security architecture. We do have three associated recommendations.
First, in keeping with the earlier recommendation I just made, the mandate of the review agency should be amended to ensure that the activities of security and intelligence agencies will be reviewed specifically to ensure conformity to Canada's international human rights obligations.
Second, the review agency must have personnel and resources commensurate with what will be a significant workload. We endorse the recommendation made by Professor Kent Roach that the provision allowing for a chair and additional commissioners numbering between three and six is inadequate, and would suggest that the number of additional commissioners be raised to between five and eight.
Third, we continue to be concerned about the review specifically of the Canada Border Services Agency. Unlike many of the agencies that will be reviewed by the new agency, the CBSA does not have its own stand-alone independent review body. The new review agency will have the power to review CBSA's national security and intelligence-related activities, but there still is no other independent agency reviewing the entirety of CBSA's activities, despite the growing number of cases where the need for such review is urgently evident, including deaths in immigration custody. This imbalance will inevitably pose awkwardness for the review agency's review of CBSA, and it underscores how crucial it is for the government to move rapidly to institute full, independent review of CBSA.
We'd like to highlight improvements. First, our concerns about the overly broad criminal offence in BillC-51 of advocating or promoting the commission of terrorism offences in general have been addressed by the proposed revisions to section 83.221 of the Criminal Code, which would instead criminalize the act of counselling another person to commit a terrorism offence, which was already a criminal offence essentially.
Second, the threat reduction powers in BillC-51, which anticipated action by CSIS that could have violated a range of human rights guaranteed under the Charter of Rights and under international law have been significantly improved. However, we think it needs to go further, and there needs to be specific prohibition of the fact that CSIS will not involve threat reduction of any kind that will violate the charter or violate international human rights obligations. We also welcome the changes made to preventive detention, but have some recommendations as to how that can be improved.
We remain concerned about the Secure Air Travel Act provisions, which we do not think address the many serious challenges that people face with the application of the no-fly list. Much more fundamental reforms are needed, including a commitment to establishing a robust redress system that will eliminate false positives, and significant enhancements to listing and appeal provisions to meet standards of fairness.
Because I know my time is limited, let me end with some provisions that remain unaddressed in the legislation.
One of the most explicit contraventions of international human rights in Canadian national security law, going back over 20 decades now, is the provision in immigration legislation allowing individuals in undefined exceptional circumstances to be deported to a country where they would face a serious risk of torture. It's a direct violation of the UN convention against torture. UN human rights bodies have repeatedly called for this to be addressed. Bill C-59 passed on the opportunity to do so. We would recommend that be taken up.
Finally, Bill C-59 also fails to make needed reforms to the approach taken to national security in immigration proceedings. There were very serious concerns about BillC-51's deepening unfairness of the immigration security certificate process, for instance, withholding certain categories of evidence from special advocates.
There needs to be a significant rethinking and reconsideration of immigration security certificate proceedings, rolling back those changes that were made in BillC-51, and addressing still the other areas of concern with respect to the fairness of that process.
Thank you.
Craig Forcese
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Craig Forcese
2017-12-05 9:52
Wesley has pointed at me, so I will go first.
I wish to extend my sincere thanks to the committee for inviting me here to speak on Bill C-59. It's always an honour to be asked to share my observations before this committee.
My colleague Kent Roach is appearing before you next week. He and I have divided up Bill C-59. Today I shall be addressing the new Communications Security Establishment act and the amendments to the CSIS Act.
I support most of the changes Bill C-59 makes in these areas. I recognize the policy objectives they seek to address. I believe the statutory language is usually carefully considered and robust, but I do have one serious concern.
I'll begin with the CSE act and make my single recommendation for today. I respectfully submit that this committee should amend proposed subsections 23(3) and 23(4) to indicate CSE may not, without ministerial authorization, contravene the reasonable expectation of privacy of any Canadian or person in Canada. Those two provisions are found on page 62 of the PDF of the bill.
I have provided a brief to this committee describing the rationale for this change, and I should disclose I've been an affiant in the current constitutional lawsuit brought by the British Columbia Civil Liberties Association challenging CSE activities, but today I appear on my own behalf.
To summarize my concern, while engaged in foreign intelligence in cybersecurity activities, CSE incidentally collects information in which Canadians or persons in Canada have a reasonable expectation of privacy. This is done without advance authorization by an independent judicial officer, and thus likely violates section 8 of the charter.
Bill C-59 attempts to cure this constitutional issue through a ministerial authorization process, one that involves vetting for reasonableness by an intelligence commissioner, a retired superior court judge. This is a creative and novel solution. It preserves a considerable swath of ministerial discretion and responsibility. It is not a full warrant system. Still, given the unique nature of CSE activities, I believe it is constitutionally defensible.
The new system will only resolve the constitutional problem if it steers all collection activities implicating constitutionally protected information into the new authorization process. The problem is this. Bill C-59's present drafting only triggers this authorization process where an act of Parliament would otherwise be contravened. This is a constitutionally under-inclusive trigger.
Some collection of information in which a Canadian has a constitutional interest does not violate an act of Parliament, for example, some sorts of metadata. The solution is simple. Expand the trigger to read as follows: “Activities carried out by the Establishment in furtherance of the foreign intelligence” or cybersecurity “aspect of its mandate must not contravene any other act of Parliament or involve the acquisition of information in which a Canadian or person in Canada has a reasonable expectation of privacy”, unless they are authorized under one of these ministerial authorizations that are subject to vetting by the intelligence commissioner.
This may seem a lawyerly tweak, but if we fail to cure the existing problem with CSE's collection authorization process, a court may ultimately determine that CSE has been collecting massive quantities of data in violation of the Constitution. Such a finding would decimate relations with civil society actors, placing CSE squarely in the crosshairs of a renewed controversy, and making it very difficult for private sector enterprises to partner with CSE on cybersecurity without risking reputational fallout themselves. With Bill C-59, we have a chance to minimize this kind of problem.
I turn to the CSIS Act changes. Bill C-59 does three things. First, it permits CSIS new authority to collect and potentially retain so-called datasets. Here the tension lies in balancing the operational need for CSIS to be able to query and exploit information against the privacy imperative. Rather than prescribe hard standards for what may be included in datasets, Bill C-59 opts for a system of in-advance oversight.
The intelligence commissioner is charged with approving the classes of Canadian datasets that the minister has deemed may be initially collected, and the Federal Court authorizes any subsequent retention of actual datasets. While I am wary of the idea of datasets, I cannot dispute the rationale for them and I can find no fault with the system of checks and balances. I have one concern with the retention of information that's queried in exigent circumstances. I don't know that the bill has the same checks and balances there, but I'm happy to address that further in questions.
The second change to the CSIS Act relates to revisions to CSIS's threat-reduction powers introduced in BillC-51 in 2015. These provisions were rightly controversial. For our part, Kent Roach and I did not dispute the idea of threat reduction, but we worried that CSIS threat reduction done as a continuation of our awkward, siloed police and intelligence operations runs the risk of derailing later criminal investigations and prosecutions. This would be tragic from a security perspective.
From a rights perspective, BillC-51 lacked nuance. It opened the door to a violation of any charter right subject to an unappealable, secret Federal Court warrant. The regime was radical, and in my view, almost certainly unconstitutional. It was, therefore, unworkable, whatever the strength of the policy objectives that propelled it.
Bill C-59 places the system on a much more credible constitutional foundation. It ratchets tighter the outer limit on CSIS threat reduction powers. By barring detention—a power I sincerely doubt the service ever wished—it eliminates concerns about the many charter violations for which detention is a necessary predicate. By legislating a closed list of activities that could be done where a warrant is authorized, Parliament tells us what charter interests are plausibly in play—essentially, free speech and mobility rights. I believe that if threat reduction is to be retained, this new system reasonably reconciles policy and constitutional issues.
Lastly, Bill C-59's CSIS Act changes create new immunities for CSIS officers and sources engaged in intelligence functions that may violate law during those activities. The breadth of Canada's terrorism offences makes it certain that a confidential source or undercover officer will commit a terrorism offence simply by participating with the terror group that they infiltrate. An immunity is necessary. The issue is whether there are sufficient checks and balances guarding against abuse of this immunity. Again, I think Bill C-59 does a good job of festooning the immunity provisions with such checks.
I will end, though, with a caution. Our conventional manner of siloed police and CSIS parallel investigations lags best practices in other jurisdictions that employ more blended investigations. As the Air India bombing inquiry observed, we struggle with what is known as intelligence to evidence. The government is working on this matter. We should be conscious, however, that what CSIS does in its investigations, whether in terms of immunized criminal conduct in intelligence investigations or authorized threat reduction, could derail prosecutions if not done with a close eye to downstream impacts. This issue might usefully be a topic of inquiry for the new security and intelligence committee of parliamentarians.
Thank you for your attention. I look forward to any questions.
View Nathaniel Erskine-Smith Profile
Lib. (ON)
This is my last question. We promised Canadians to improve the accountability of national security agencies. We promised to fix the overreaching and in some cases unconstitutional nature of BillC-51, and then Bill C-51 overall with BillC-22 and Bill C-59.
Do you think we've done that?
Craig Forcese
View Craig Forcese Profile
Craig Forcese
2017-12-05 10:45
Yes, subject to my concern about personal information that might be swept into the ministerial authorization or not swept into the ministerial authorization.
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