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Michael MacPherson
View Michael MacPherson Profile
Michael MacPherson
2019-08-21 14:22
We have Ms. Raitt, Mr. Kent, Mr. Angus, Mr. Baylis, Ms. McCrimmon, Ms. Vandenbeld, Madame Fortier, Mr. MacKinnon, Mr. Erskine-Smith....
View David Lametti Profile
Lib. (QC)
Thank you, Mr. Chair.
I will make a statement, then the Right Honourable Kim Campbell will speak, and then I will speak again. Afterwards, we will answer your questions together.
Mr. Chairman, Right Honourable Kim Campbell, members of the committee and other parliamentarians in the room, good morning. I also note the presence of the Honourable Irwin Cotler, whom I thank for being here.
First and foremost, we recognize that we are on traditional unceded Algonquin lands. It is very important to underline this fact today.
I would like to thank the chair for convening this extraordinary meeting of the committee. I also thank all honourable members for being here today. I recognize, of course, that many of them have changed their summer plans to be with us. I am very grateful to them.
As the chair has just pointed out, this is the third time our government has implemented its reformed process for appointing judges to the Supreme Court of Canada.
The modifications we introduced in 2016 are designed to ensure greater openness, transparency and accountability in the appointments process. Many of you here today are seasoned participants, having been part of the 2016 and 2017 processes that resulted in the appointments respectively of justices Rowe and Martin. Madam Campbell was the chair of those committees as well.
As you can imagine, I have followed these processes with great interest and attention. It is now a great honour and privilege for me to participate more directly in the process to fill the position that will become vacant on September 15, 2019, following the retirement of Justice Clément Gascon.
I would like to take this opportunity to once again thank Justice Gascon for his contribution and to acknowledge the courage he has shown throughout his career.
I have the pleasure of appearing today with the Right Honourable Kim Campbell, who joins us via video conference from Vancouver. Ms. Campbell previously served as the chairperson of the Independent Advisory Board for Supreme Court of Canada Judicial Appointments. Ms. Campbell also served as the chairperson of the current advisory board that was adapted to ensure the appointment of a judge properly grounded in the legal experience of Quebec and its legal tradition. Ms. Campbell's extensive experience with the selection process has been an invaluable resource in this process. We are grateful for her continued dedication to serving Canadians in this role and we say thank you.
In a few moments, I will turn things over to Ms. Campbell to describe the specific work the advisory board undertook in order to produce the short list of candidates for the Prime Minister's consideration. Before doing so, however, I would like to briefly outline the unique aspects of the current process to fill this Quebec seat on the court.
According to the Supreme Court Act, three seats on the court are reserved for lawyers from Quebec. Under sections 5 and 6 of the act, only judges of the Court of Appeal or the Superior Court of Quebec, or those who have been members in good standing of the Barreau du Québec for at least 10 years, may be appointed.
As specified by the Supreme Court of Canada in the Reference re Supreme Court Act, ss. 5 and 6, these appointment criteria are intended to ensure that Quebec's unique legal traditions are well represented on the court. These criteria make it possible not only to ensure that the court is able to handle civil law cases, but also to ensure its legitimacy in the eyes of the Quebec population.
That is why the qualifications and evaluation criteria stipulate that a "deep knowledge of the civil law tradition is essential for all candidates to the three Quebec seats".
In addition, on May 15, 2019, the Prime Minister announced a memorandum of understanding between our government and that of Quebec. This memorandum of understanding sets out the process for filling the position that will become vacant following Justice Gascon's retirement. As with the process for seats that do not belong to Quebec, this process is based primarily on the work of the independent and impartial advisory board, which is responsible for assessing nominations and developing a short list of three to five names to recommend to the Prime Minister.
The composition of the advisory board has been adjusted to accurately reflect the reality of Quebec, its legal practices and its civil law tradition.
As mentioned, the advisory board was chaired by Ms. Campbell and included another member whom, as Federal Minister of Justice, I had been asked to appoint. The other six members were selected in such a way as to ensure adequate representation with respect to Quebec and civil law. These six other members were appointed by the Quebec Minister of Justice, the Barreau du Québec, the Quebec Division of the Canadian Bar Association, the Canadian Judicial Council and the Deans of the Quebec Law Faculties and the Civil Law Section of the Faculty of Law of the University of Ottawa.
The selected members, all of whom are functionally bilingual, represented a distinguished set of individuals who undertook their important responsibilities with great care and dedication. I would like to thank them, on behalf of the Prime Minister and our government, for their exceptional service throughout this process.
They did a better job than those working the lights today.
Voices: Oh, oh!
Hon. David Lametti: The core mandate of the advisory board was to assess candidates against the published assessment criteria and to submit to the Prime Minister the names of three to five qualified and functionally bilingual candidates.
In accordance with the agreement with the Government of Quebec, after receiving the short list provided by the advisory board, I forwarded it to the Quebec Minister of Justice. We then conducted our own separate confidential consultations on the preselected applications.
For my part, I consulted with the Chief Justice of Canada, a number of my cabinet colleagues, the opposition justice critics, members of your committee and the Standing Senate Committee on Legal and Constitutional Affairs, among others. The Quebec Minister of Justice conducted her own consultations, including with the Chief Justice of Quebec, before reporting her findings to the Premier of Quebec. After the conclusion of this consultation period, the Premier of Quebec and I submitted our respective recommendations to the Prime Minister of Canada to inform his choice as to whom to appoint.
Before turning the floor over to Ms. Campbell, I would like to speak briefly about the importance of confidentiality in this process, given the concerns that have rightly been raised about improper disclosures surrounding the 2017 selection process.
As I have said previously, the disclosure of confidential information regarding candidates for judicial appointments is unacceptable. I want to stress that I took strict measures to ensure that confidentiality was respected. This process has implemented strict confidentiality measures throughout. The terms of reference for the advisory board contain provisions specifically designed to ensure that the privacy interests of all candidates are respected. This includes a requirement that advisory board members sign a confidentiality agreement prior to their appointment. In addition, the agreement with Quebec explicitly states that the sharing of, and consultations on, the short list are to be conducted in a confidential manner.
In terms of next steps in the process, in addition to the advisory board's critical contribution in developing the short list, today's hearing is another important element. It provides an opportunity for all of you, as parliamentarians, to hear from and question the government regarding the selection process and our choice of nominee. Parliamentarians, and Canadians more broadly, will have the opportunity to become acquainted with the nominee through the question and answer session that has been scheduled for this afternoon.
Having provided this context, I would now look to Ms. Campbell to describe the work that the advisory board undertook in fulfilling its mandate. I will then say a few words about the Prime Minister's nominee to the Supreme Court of Canada, the Honourable Nicholas Kasirer.
Madam Campbell.
Kim Campbell
View Kim Campbell Profile
Right Hon. Kim Campbell
2019-07-25 11:12
Thank you.
First of all, good afternoon. This is old home week, in a sense, for me and this committee. This is the third time we've had the opportunity to discuss this very important process. I do regret that I'm not there personally to give you all a valedictory handshake and perhaps a hug, since I'm sure this will be the last meeting during this mandate. I do want to say how much I've appreciated the opportunity to speak with you and hear your points of view on the work of the committee.
To the chair, Mr. Anthony Housefather; the vice-chairs, the Honourable Lisa Raitt and Ms. Tracey Ramsey; and the members of the committee, it is my pleasure to be before you. It was my honour to chair the committee.
I might say that the difference between the work of this committee and the two others is that
we almost always worked in French. You will find this surprising when you hear me speak French. Even though I speak French like a Vancouver native, it was very important to do so to reflect the reality: we were in the process of choosing candidates from the province of Quebec.
I will speak more French, except I'm very tired—I just arrived yesterday from Africa—and I don't really want to
massacre Molière's language in reporting to you.
We did, in fact, do most of our work in French. That was the difference from the other exercises.
I also want to say, as I said to you before about the other two iterations, that every time somebody says to me, “Thank you for your good work as the chair”, I say that the members of the committee made my work quite easy. I think you would be very proud and happy to know what incredible professionalism and dedication to serving Canadians across the country, not just Canadians in Quebec, the members brought to their work. My goal has always been, in these exercises, to ensure that each member of the committee has an opportunity to speak freely for himself or herself so that we get a genuine exchange of ideas and avoid groupthink and any other dynamics that can undermine the quality of decisions. I must say that this was an outstanding group of Canadians who really took their responsibility very seriously. As I said, it made my job easy. I was very proud to serve with them. I can say nothing but the finest things about them in terms of their competence and their character.
Incidentally, as I saw in the other two examples, the two members of the committee who are not lawyers often bring a very important dimension and a very clear understanding of what the court means to the legal life of our country. I admire them very much.
The 2019 process was opened on April 18 to fill the seat. Candidates were required to submit their applications by midnight Pacific time on Friday, May 17. That was a period of four weeks. I think we'll come back and discuss this a little. One of the challenges we face is the timing of this.
Of the three examples or three iterations of this committee's work, two were done to replace judges who took early retirement. For replacing the chief justice, we had more time, because her retirement was anticipated. She retired close to her retirement age. I think one challenge, which I want to come back and make some suggestions about, is that when justices of the Supreme Court of Canada take early retirement, this changes the time frame in which it's sometimes most convenient or appropriate to engage in the search process, particularly if we want to ensure that the court is up to full complement at the beginning of a new season of its work.
The remaining advisory board members were announced only on May 15, but as soon as the process was launched and I was confirmed to be the new chair, I set about making contact with all of the organizations that we contacted in the past iterations, to ask them to communicate with their members about the new opening and to encourage them to consider whether they would like to be considered as candidates for the new seat on the court. I didn't wait for the other committee members to be appointed but began right away to communicate. Again, I have some other comments I'd like to make about that process.
You know, of course, that I'm not going to repeat the requirements of the Supreme Court Act to have three civil law trained judges from Quebec. The quality of candidates was really outstanding. There were 12 candidates, which was perhaps about right. We had, I think, 12 or 14 candidates for the western seat.
The first seat we considered had many more candidates, because that was originally meant to be—and it was—a national competition. I will say that only one of the candidates was a woman. Again, that is something that the committee members were disappointed about. There were no indigenous applicants in this process. I think we want to talk about how we can encourage a broader range of Canadians to apply. I will give you some of my reflections on why we have encountered those issues.
The board members, first of all, convened via teleconference. We then met in Ottawa between May 27 and June 7 to discuss our evaluations and to proceed with our methodology of identifying and looking at candidates individually before we came together again—to avoid groupthink, to avoid too much influence before each of us had the opportunity to independently review.
Before that, though, we came on May 21 to meet with the chief justice. As you know, it's been our tradition to meet with the chief justice before setting out on our business. This was our first opportunity, obviously, to meet with the new chief justice, Chief Justice Wagner. As in the other two cases, we found that our meeting with the chief justice really helped to set us up for our work by reminding us of the reality of life on the Supreme Court of Canada, of what is required and what some of the things are we should be looking for as we interact with our candidates.
I think what was interesting for us in talking to Chief Justice Wagner—those are confidential conversations, but I don't think he said anything that he hasn't said to Canadians more broadly—was that, as with the other meetings we had with Chief Justice McLachlin, there was an emphasis on the importance of collegiality. Again, one wants justices who have strong views and who are capable of expressing themselves, but collegiality on the Supreme Court of Canada is not groupthink. It is the ability to try, as much as possible, to create clarity and judgments that become the architecture of Canadian law and that are so important for lower courts and practitioners. This ability to work toward the clearest possible elaboration of the court's views on issues is a very important part of the temperament of a constructive Supreme Court justice.
The other thing that was very interesting was when Chief Justice Wagner talked to us about the uniqueness of the Supreme Court of Canada as both bilingual and bijuridical. Now, we knew, of course, that for our judges, one of the requirements for our candidates has been that they be functionally bilingual. The Supreme Court Act requires that there be three civil law trained judges on the court from Quebec, although Justice Martin is also a civil law trained judge, so the strength of civil law capacity on the court is certainly well established. He made a very interesting comment about how unique this makes our Supreme Court and how, in terms of the way other courts around the world look at our judgments, we have a very special set of competences among our justices. I know that certainly many common law judges enjoy the opportunity to study the civil law because it's a different route, often, to getting to the same answer.
That really put our work in a different context in the sense that we weren't just looking to fulfill the requirements of the Supreme Court Act. We were working on an exercise that helped define our court more broadly in the world as uniquely extremely broad in its juridical competence. I think we felt quite inspired by that notion. Of course, the candidates we interviewed were quite outstanding in that regard.
After meeting with the chief justice and doing our work, we presented our short list to the Prime Minister.
I'm very happy to answer your questions, but I would just like to conclude with this comment. I notice that since 2011 there have been nine nominations, including Justice Kasirer, to the Supreme Court. I remember the first meeting we had with Chief Justice McLachlin. She felt that the ability to commit, say, 10 years to the work on the court was highly valuable for a Supreme Court justice simply because it takes time to ramp up, to get up and running, and to find your feet, but also because continuity and a lack of disruption are very important.
However, clearly, there are reasons for judges to not necessarily serve their full time on the court.
In terms of getting the quickest response from strong candidates to the opportunity to be considered as a candidate for the court when retirements come, or early retirements come, we have talked about a process—and I would be very interested in the views of members of the committee on how this might be approached—as a way of starting an ongoing conversation with members of the Canadian judiciary in all of the provinces and senior members of the profession, about what it means to serve on the Supreme Court of Canada. What are some of the nuances, what are some of the requirements? I say this because it's a very difficult job.
It isn't just that one has to be an outstanding legal thinker, but that one also has to move to the national capital region, to Ottawa, and often at a stage in life when a spouse's career may be at its most active and prominent stage of development, when family obligations make it difficult.
I think that having a broader conversation with people in the profession about what is required to be on the court so that there is greater knowledge of what it actually means might, first of all, enable us to encourage even more people to apply. I think, particularly for women, if they have families and are likely to have spouses who also have careers, this might be something that could overcome some reservations.
If this were an ongoing conversation, as opposed to something that we scramble to do just in the face of an imminent departure from the court and the need to recruit a new candidate, I think it might be something that could broaden the scope of the candidates.
Again, as I've said, we do reach out to a broad range of organizations of lawyers and judges in Canada, but I think that in finding people who are perhaps members of groups that are under-represented, having an ongoing process of making candidacy for the Supreme Court of Canada less daunting and more appealing, or certainly to at least allow for a greater, more informed view, so that people do not come to the court and find that it really is difficult for them to serve and that their expectations are not the reality, is something that we need to think about. I say this because we, again, have an outstanding court and a court that, in the context of world courts, is unique and whose work is highly regarded. We want to ensure that no person—no man or woman or member of any ethnic group or identification in Canada—is ever discouraged from presenting themselves as a candidate because of either a lack of confidence in what it might mean or a lack of knowledge.
I will stop here and will be very happy to answer your questions. I appreciate you, Mr. Chairman, and your committee for accommodating me to be able to speak to you from Vancouver because I sure needed my sleep last night.
Thank you.
View David Lametti Profile
Lib. (QC)
Thank you very much, Ms. Campbell.
I will take the floor for a few moments again to talk to you about the Honourable Nicholas Kasirer.
Born in 1960 and originally from Montreal, Mr. Justice Kasirer was called to the Quebec Bar in 1987, after graduating with distinction from the University of Toronto in 1981 with a Bachelor of Arts degree in Economics and Political Science and a Bachelor of Civil Law and Common Law degree from McGill University in 1985. He also studied at the University of Paris 1 Panthéon-Sorbonne, where he obtained an advanced degree in international public law in 1986.
Following his admission to the Barreau du Québec, Justice Kasirer clerked for the Hon. Jean Beetz at the Supreme Court of Canada.
He then served as professor at his and my alma mater, McGill University, from 1989 to 2009, and he was the dean of the faculty of law at McGill from 2003 to 2009, when he was appointed to the Court of Appeal of Quebec.
Prior to his career at McGill, from 1996 to 2003, he was the director of the Quebec Research Centre of Private and Comparative Law, as well as a part-time instructor at the Barreau du Québec and a guest professor at the Université de Paris.
Judge Kasirer is perfectly bilingual. As you will have the pleasure to see this afternoon, he speaks both Molière and Shakespeare's language equally well.
A prolific author, he has participated in the writing of nearly two dozen books, as author or contributor, and has written numerous legal publications, mainly devoted to the law of obligations, property law, family law and the law of wills and estates, both in civil law and in common law.
Known for his generosity and great collegiality, Judge Kasirer has had, as the Prime Minister said, an exceptional career as a judge and professor, and has earned the esteem of his peers in Canada and around the world. There is no doubt that he will be an asset to the Supreme Court of Canada.
I would like to conclude by reiterating my sincere thanks, on behalf of the government, to the Right Honourable Kim Campbell, each member of the advisory committee, each person who was consulted and each candidate who applied in this process. You have helped to ensure the strength of one of Canada's most treasured institutions, a Supreme Court that is respected and admired throughout the world. We are very grateful for your contribution.
I would also like to thank the Commissioner for Federal Judicial Affairs and his staff, who provided exceptional and professional administrative support throughout the process.
Finally, I thank my colleagues in Parliament for helping to place the values of democracy, transparency and accountability at the heart of the selection of judges for our final court of appeal.
Ways to involve parliamentarians in the process of appointing judges to the Supreme Court of Canada have been sought for at least 20 years. I believe this is a crucial role, and members of the 42nd Parliament can be proud to have made progress toward consultation and inclusion.
Thanks to this continued support for the core values of transparency, inclusion and accountability, the selection process for judges of the Supreme Court of Canada will continue to strengthen the confidence of Canadians in this fundamental institution, as will the appointment of outstanding jurists who reflect the diversity and bilingual and bijural character of our country.
Thank you.
View David Lametti Profile
Lib. (QC)
As you know and as I've said many times in the House of Commons and in other public fora, including in front of the press, I make no comment on anything with respect to that file. Anything that I can or might say might have an impact on ongoing litigation. Therefore, I'm very careful in that regard. Thank you.
Kim Campbell
View Kim Campbell Profile
Right Hon. Kim Campbell
2019-07-25 11:32
Let me say that the leak was not from our process. After we present our short list to the Prime Minister, the Prime Minister, in partnership with the Minister of Justice and all the other interlocutors, including, I think, critics, has an ongoing series of conversations. One thing our advisory board is not mandated to do is to select candidates based on their philosophy. Now, if there were candidates who had views that might be considered more extreme in some way, or unconventional, we might certainly mention this, but it is up to the Prime Minister and his post-short list process to determine some compatibility or philosophical views. There is a process that goes on after our committee.
There has never been a leak from our committee, and nor, I think, would there be.
Kim Campbell
View Kim Campbell Profile
Right Hon. Kim Campbell
2019-07-25 11:33
I don't know. I think he addressed that, but we have a very strict commitment to confidentiality, including not identifying who any of the candidates are. There has never been any suggestion that any of the members of the three committees have ever breached that confidentiality, nor would they.
Kim Campbell
View Kim Campbell Profile
Right Hon. Kim Campbell
2019-07-25 11:34
Not particularly, because we were obviously so devoted to it and so very careful to maintain that confidentiality.
Kim Campbell
View Kim Campbell Profile
Right Hon. Kim Campbell
2019-07-25 11:34
I don't think it was necessary. We worked with the commissioner for federal judicial affairs. We worked on our documents on secure tablets—very carefully controlled. We always left our documents in the meeting room and the clear commitment.... We signed an undertaking to maintaining confidentiality, so the process was well established. I just want to repeat that there has been no indication of any leak ever coming from a member of the committee.
Kim Campbell
View Kim Campbell Profile
Right Hon. Kim Campbell
2019-07-25 11:35
If anything, we were sort of tip-toeing around and were often afraid, even among ourselves. When we ate dinner together we went someplace where people wouldn't even realize who we were and what we were doing.
Kim Campbell
View Kim Campbell Profile
Right Hon. Kim Campbell
2019-07-25 11:35
Well, no, because there's never been any suggestion that this confidentiality has been breached.
I'm delighted—this is good for your committee obviously to be concerned about, but the nature of the leak, such as it was, is that it very clearly was not from the committee process.
View David Lametti Profile
Lib. (QC)
I don't know. The Privacy Commissioner has stated that he has opened an investigation into the matter, and I'm not going to comment on his ongoing investigation. I will say that federal departments will co-operate fully with the Office of the Privacy Commissioner and that I took steps in this current process both in terms of limiting the number of people who had access to the process within my department, as well as segregating the server and doing everything securely that we needed to do to make sure that there was no breach of privacy from my department.
Kim Campbell
View Kim Campbell Profile
Right Hon. Kim Campbell
2019-07-25 11:37
I don't think there were any who self-identified in that way, and it is a self-identification.
The committee was concerned, because we are, of course, limited to evaluating those who apply.
Kim Campbell
View Kim Campbell Profile
Right Hon. Kim Campbell
2019-07-25 11:38
I would say that the quality of candidates was outstanding in all three processes. I think our committee members come away very encouraged by the quality of people who do apply, but one of the things is that people have to apply. In the past, when we would get a nomination where, for example, somebody would write to us and say, “I nominate so-and-so to be a candidate”, I would immediately contact that person and say, “Your name has been forwarded to us as an outstanding candidate for the Supreme Court of Canada. Would you please review these materials? If you are interested in being considered, I warmly encourage you to apply.” That was the best we could do. In many cases, people feel shy about applying: “Am I being too arrogant?” It's nice for them to be able to say that they were asked to apply.
It's something that maybe even the members of your committee might want to think about. If you think there are people you know in the areas where the seats are vacant, there would be nothing wrong with a member of Parliament writing to say, “I'd like to have so-and-so considered.” Then I or a subsequent chair might write to that person, tell them their name was forwarded—we wouldn't say who forwarded it—as an outstanding candidate, and warmly encourage them to apply.
I think the more ways we can overcome people's reluctance to apply, the better. It might well be something that members of your committee, who are very engaged with this issue, might want to address as a committee or just do as interested members of the committee.
Kim Campbell
View Kim Campbell Profile
Right Hon. Kim Campbell
2019-07-25 11:41
That's a question I can't really answer. You have to follow the cases that go through. I would say that on the basis of the candidates who were presented to us, we felt there was a strong commitment to serve not just Quebec but to serve Canada, and consistent with the existing law of the charter. I think these are issues that are certainly beyond my purview to answer.
Kim Campbell
View Kim Campbell Profile
Right Hon. Kim Campbell
2019-07-25 11:42
In the three processes we had different mixes of candidates, including different types of diversity, but we don't simply leave it at that. One issue we explore when we are interviewing candidates is to draw them out on their experience, knowledge and understanding of the diversity of Canadian life. Somebody might not be the member of a self-identified group that we think of, broadly, as diverse. What we want to know is, in their life, in their experience and in their work, how familiar they are with the challenges faced by the many communities in Canada who may be less represented in the administration of justice. That kind of cultural and diversity literacy is for us a very important part of the outlook we would like to find in candidates who would be playing such an important role on the final court of the land.
Ideally, we will have more candidates who will represent these communities themselves, but that is not sufficient. We don't just ignore it from somebody who is not from a diverse community. We really do want to know how much they understand of the realities of the lives that Canadians lead.
View David Lametti Profile
Lib. (QC)
The question is clearly intended for me.
I do not agree with this proposal. According to the Supreme Court Act, this decision belongs to the Prime Minister , i.e. the governor in council. We do not want to weaken the Prime Minister's ability to make the best choice, in his opinion. He accepts the recommendations, of course, but it is up to him to decide.
I made recommendations based on the consultations I had conducted here in Ottawa. If I had disclosed my recommendations and my Quebec counterpart had done the same, it would have given an idea of the short list submitted to the Prime Minister and thus reduced the confidentiality of the process. We want to protect the privacy of the candidates who applied, especially those on the short list.
View David Lametti Profile
Lib. (QC)
The problem is that if I make a recommendation that is not included in the final decision, journalists and you, my parliamentary colleagues around the table, will ask me who I recommended. It would become too difficult to protect the confidentiality of the process. It is also necessary to protect, with all due respect, the ability of the Prime Minister to make his own choice.
View David Lametti Profile
Lib. (QC)
It is easier to close the door from the beginning. Otherwise, we could go down a slippery slope.
Kim Campbell
View Kim Campbell Profile
Right Hon. Kim Campbell
2019-07-25 11:47
I wonder if I could just add the following, Mr. Chairman, to clarify this for the honourable member. The short list is not given with any order. In fact, the names are given alphabetically. In the short list, we do not distinguish among them. I have often said that our goal is to present the Prime Minister with a short list of candidates that will keep him up at night trying to figure out which one of these excellent candidates to select. On the committee we may have our personal favourites, but we do not make any indication of an order among the candidates who are presented on the short list.
Kim Campbell
View Kim Campbell Profile
Right Hon. Kim Campbell
2019-07-25 11:48
The judicial commissioner has developed a series of tests. For example, with the anglophone candidates, they do a test, and I think the criteria are that you have to be able to understand and respond to oral argument and to be able to read without translation, etc. In the first two iterations, we actually lost some outstanding candidates who did not meet the standard of functional bilingualism.
I must say that with the Quebec process, we didn't lose anybody because bilingualism is perhaps better established in the Quebec French-language legal profession.
However, there is a test and I'm sure they'd be pleased to share it with you. It is performed, so that after candidates are reviewed, they must undergo this test as the final barrier to being considered a shortlisted candidate.
Kim Campbell
View Kim Campbell Profile
Right Hon. Kim Campbell
2019-07-25 11:51
I think you've put your finger on what is the most challenging issue we face. We would welcome recommendations of other approaches.
I was neither aware of nor had a sense of anyone not applying as a result of the tightness of the application time.
The first time, as you may recall, the applications were until the end of the summer, which was very difficult because people were coming in from their summer cottages and trying to get hold of their assistants to help them put together dossiers of their cases, etc.
I think this time around it was much more mainstream, being in the middle of the work year, and people were around. I think it was a little easier to do.
At the end of the day, we're not going to be able to rule out early retirements from the court. To assist the court in its business, you want to make sure that it would start a new season fully equipped and that the person who is chosen to make this important commitment has the opportunity to organize his or her private life. I think that's where there is the possibility of creating a greater preparedness among people who would be good candidates—and that would go even to members of the committee. If there are people who you think would be excellent candidates, make them aware and get them thinking about the process.
Of course, it depends on whether there are going to be retirements, but as we've seen, we can't predict the actuarial retirements and that people sometimes retire early.
The answer to your question is that we can do it better. I am not aware that it was a major barrier, but I don't know that for sure and I would hate to think it was.
Kim Campbell
View Kim Campbell Profile
Right Hon. Kim Campbell
2019-07-25 11:53
There were no differences in the questionnaire. Actually, as the process unfolded, it was very much like the others in terms of the kinds of things we wanted to know from people. Again, going back to the earlier questions about diversity, etc., we looked for the same kind of breadth in people.
I think the candidates were conscious of the fact that being selected for a Quebec seat brought with it a particular kind of responsibility in terms of the role of civil law and Quebec values, but I think it was actually remarkably similar.
I have to say that the committee members were quite outstanding. They made the point that, yes, there is a particular set of criteria because of Quebec and its language and juridical uniqueness, but that it was a seat that would serve the whole of Canada. That breadth of knowledge and understanding was important.
View David Lametti Profile
Lib. (QC)
As Ms. Campbell pointed out, on a court you have a dynamic when cases are heard and there's interaction amongst the judges both in the hearing as well as in the preparation prior to the hearing, and then in the decision-making phase afterwards, where there will be back and forth between and amongst judges to make better decisions. That doesn't mean unanimity. There will be dissenting and concurring judgments in which a judge may feel strongly about a point or the decisions and outcome generally, but you'll get better decisions.
I had the good fortune of hearing Guido Calabresi speak two weeks ago about the American Supreme Court. He clerked under the Warren court and he felt it was an outstanding court because the judges, specifically, spoke to each other. They all brought different kinds of expertise to the court and were quite collegial, and he felt that the kinds of judgments they came up with were better because of their collaboration and collegiality, and we would hope for the same kind of thing here.
Kim Campbell
View Kim Campbell Profile
Right Hon. Kim Campbell
2019-07-25 11:57
That is an important question. All of the candidates do have references that we consult. One of the things we ask about is how collegial they are in working together.
I can give you an example from the very first iteration. When we asked the successful candidate, who is now Justice Malcolm Rowe, how do you do this, what is your approach, he made a very interesting comment—and I hope I'm not breaching confidentiality when I say this because he's already there. He said he could put a lot of water into his wine and had no pride of authorship. I thought that was a very specific and powerful way of explaining his approach when he wants to get to some place. The important thing is what the fundamental idea is that you want to see in the decision, and then you see how much water you need to put in your wine or perhaps allow someone else to have the honour of writing the opinion, if it's the opinion that you agree is good enough. He was basically saying that he was not an egomaniac and that he understood what's important and what isn't.
When we ask candidates about their approach, they are often very revealing, and I hope Justice Rowe isn't cranky at me for saying that. That's the kind of thing we look for: What has been your experience and how have you approached it? For many of them, they have a lot of experience in this area, which is one of the reasons why judges who have already served on an appellate court have a clear understanding of what that question means.
Kim Campbell
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Right Hon. Kim Campbell
2019-07-25 12:00
I'm not actually sure whose responsibility it is. I think it might be something that could be done in partnership with a number of different groups—law societies, bar associations. That might be something your committee could look at as well, what the ideal situation is.
One thing we have, as a result of nine new appointments since 2011, including Justice Kasirer, is that there are quite a few retired Supreme Court of Canada justices lurking about who might be available to give some honest views about what it really means to serve on that court. Some of them have [Technical difficulty—Editor] 75. Others took early retirement.
I think [Technical difficulty—Editor] and I think it was in Saskatoon, that talked about this, where in fact some of the people who attended were surprised at what some of the benefits and attractions of working at that level were but hadn't really thought about them. It's not just to warn people about how hard the work is, but to talk honestly and openly about what it means to serve on Canada's highest court and perhaps to sow the seed of desire in some person to be considered for such a seat if the times align correctly.
View David Lametti Profile
Lib. (QC)
First of all, we have done this in practice. We have enshrined a practice that puts such a high premium on functional bilingualism that it practically is a bar in being selected. We haven't done that formally.
I'm not sure it's a good idea, formally, because there may be other needs of the court at some point—for example, to appoint an indigenous person—where we may have to soften that requirement down the road. I think we're at a nice compromise right now, where, in effect, there is a requirement of functional bilingualism through the process without having to worry about either the constitutionality of such a provision or amending an act formally.
View David Lametti Profile
Lib. (QC)
First of all, thank you for conducting this consultation during the process. It was very valuable. Your comments were very important.
Yes, it was important. We have acted accordingly, especially for this process. We made sure there would be no leaks. We have taken steps in this direction.
There is also an officer of Parliament, the Privacy Commissioner, who addresses these issues. We will collaborate with him during his investigations.
As a government, we took the leaks very seriously. We made sure it wouldn't happen again.
View David Lametti Profile
Lib. (QC)
The Privacy Commissioner has the authority to conduct an investigation. We believe it is a good non-partisan process. There will be an investigation and I hope there will be suggestions.
View David Lametti Profile
Lib. (QC)
As I said earlier to your colleague and to my colleague, I am not commenting on anything that concerns the SNC-Lavalin case, because trials are ongoing in the courts and everything I say could be interpreted or misinterpreted. So I won't comment on that.
View David Lametti Profile
Lib. (QC)
Unfortunately, the answer is the same. I'm not going to comment on that, for the reasons I just gave.
View David Lametti Profile
Lib. (QC)
As Minister of Justice and Attorney General of Canada, I must respect the justice system. I must be careful not to have any influence on the ongoing trials.
View David Lametti Profile
Lib. (QC)
In my case, it's not a matter of politics. I do so out of respect for the courts as Minister of Justice. Not wanting to have an influence on trials is a form of privilege. It is very important for me, in my role, to protect the judicial system.
View David Lametti Profile
Lib. (QC)
I did what I had to do as Minister of Justice and Attorney General of Canada to protect the justice system and respect the role of the courts.
View David Lametti Profile
Lib. (QC)
As I just said, I am very proud of the way the system worked.
Kim Campbell
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Right Hon. Kim Campbell
2019-07-25 12:10
This was in the broader questions of their own experience with respect to diversity. We would have an ongoing conversation, but there is no question that there were opportunities for the candidates to discuss this in their own questionnaires—and their references were asked about this. It was kind of a fundamental value, this sensitivity to gender issues and issues beyond, because these are all issues that come before the court.
I'm sorry, because if I went back and looked at the question more specifically, I could give you a more specific answer, but I think there was certainly a consensus.
Incidentally, I think half of our committee members were women and very distinguished women. There was strong institutional support for recognizing openness to the equality and equal treatment of women under the law as part of our whole mandate.
Kim Campbell
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Right Hon. Kim Campbell
2019-07-25 12:11
Not only does the candidate meet it, but the francophones on the committee in fact spoke about his français recherché. He speaks beautiful French. I think you will find that Justice Kasirer feels that his work in the civil law and in French really defines him and his connection to Quebec. It was actually quite remarkable to see that he is a man who loves the language and loves to use it in a most refined, excellent and precise way.
That is actually the whipped cream and cherry on the top of his qualifications. He's not just profoundly bilingual and profoundly competent in both languages, but also relishes the use of both languages, particularly French. I think he speaks his preferred language of expression, French, in a way that really elevates its importance.
The notion of official languages has been a criterion that has been fundamental to all three of the processes. There were some candidates who had very fine qualities who did not pass the functional bilingualism test and, therefore, were not considered for the short list. It is a principle that has been adhered to over the last three searches quite fastidiously.
It's not just that people argue in French. I think the idea is to make it possible for judges to communicate with each other and to have that capacity to reason together in either language. That is the underlying principle behind functional bilingualism.
View David Lametti Profile
Lib. (QC)
I would just like to support what Ms. Campbell just said. The quality of Judge Kasirer's French is exceptional. This is a very important aspect of the process. I think the linguistic criterion has clearly been met.
View David Lametti Profile
Lib. (QC)
Yes, Judge Kasirer is an anglophone, but he speaks French perfectly.
Kim Campbell
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Right Hon. Kim Campbell
2019-07-25 12:15
Yes, it did. One of our committee members had served in a firm. I don't want to go into too much detail, but he recused himself from the conversations about that person.
Kim Campbell
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Right Hon. Kim Campbell
2019-07-25 12:15
I think that is perfectly appropriate to mention. Again, I want to go back to the point that the committee members were very conscious of their responsibility and desired to conduct themselves in a way that was beyond reproach.
View David Lametti Profile
Lib. (QC)
I have said from the outset that my department will co-operate, and as I said, I am confident that the leak did not come from the very few people in my ministry—
View David Lametti Profile
Lib. (QC)
I'm going to let the Privacy Commissioner do his work.
View David Lametti Profile
Lib. (QC)
I'm not going to comment on anything that's an ongoing investigation by the Privacy Commissioner, other than to say, as I've already said, that there will be co-operation.
View David Lametti Profile
Lib. (QC)
I'm letting the Privacy Commissioner conduct his investigation, as I've stated publicly on a number of occasions and as you have rightfully pointed out.
View David Lametti Profile
Lib. (QC)
I was not the minister at the time, so I wasn't privy to all of those consultations.
View David Lametti Profile
Lib. (QC)
Once again, those conversations would come under the purview of the Privacy Commissioner. Therefore, I'm going to let the Privacy Commissioner do his work. He's an officer of Parliament. We have respect for officers of Parliament. I'm going to let him do his work unrestricted by—
View David Lametti Profile
Lib. (QC)
Obviously, knowledge of civil law is a criterion. Much of what you have just described is a matter of civil law. Another part belongs to the criminal law, which is under federal jurisdiction. These are questions that have been assessed by the advisory board.
View David Lametti Profile
Lib. (QC)
I would say so. I know that, as his record shows, he has published texts in this field and has taught family law for years, especially family property law, property law. He has also taught criminal law courses during his career.
Ms. Campbell may add some additional information on this subject, but on paper, Judge Kasirer's file clearly indicates that he has exceptional knowledge in this area.
View David Lametti Profile
Lib. (QC)
I must refer to Judge Kasirer's background. That said, we must also consider his experience as a judge since 2009. He has been seized of several cases and has handed down several judgments.
Kim Campbell
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Right Hon. Kim Campbell
2019-07-25 12:23
No, it's simply to say that, as the author of the revision of the rape shield provisions in the Criminal Code back in the early 1990s, it's been a source of great frustration to me that many of those principles often do not seem to be applied in the courts. That's a challenge that I think you, as legislators, are going to continue to be addressing, aside from the culture of the courts.
I think our view of Justice Kasirer was that he was very knowledgeable and I think very equipped to uphold those principles, which are in fact based on legislation.
Mark Flynn
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Mark Flynn
2019-07-15 13:29
You'll be happy to hear, as I understand the committee was informed, that I won't be making any opening remarks. I am present here today simply to address any questions you may have. As this, on its surface, does relate to an ongoing criminal investigative matter, it would be inappropriate for me to provide details of an investigation, particularly an investigation that is not being undertaken by the RCMP.
I welcome all questions. I am here to provide whatever assistance I can.
Mark Flynn
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Mark Flynn
2019-07-15 13:30
That will depend on the jurisdiction where it occurs. In the jurisdiction where we are, the police have jurisdiction, so they have the provincial and municipal responsibility. It would be forwarded to our intake process there, whether it be our telecoms office, the front desk of a detachment or a particular investigative unit that's identified for that.
In cases where we are not the police of jurisdiction, like in Ontario and Quebec where we are the federal police, we will become aware of these instances through our collaboration with our provincial and municipal partners. We will look at the information and determine whether or not there are any connections to other investigations that we have ongoing, and offer our assistance to the police of jurisdiction should they require it, although on many occasions this type of incident is very well handled. We have very competent provincial and municipal police forces that are able to handle these on their own.
Mark Flynn
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Mark Flynn
2019-07-15 13:31
The RCMP doesn't automatically step in solely because it crosses multiple provinces. As occurs with traditional crimes, whether a theft ring on a border between two provinces, or homicides, the police forces in those jurisdictions are used to collaborating and do so very well.
When there's an incident that occurs from a cyber perspective, if it's going to have an impact on a Government of Canada system, a critical infrastructure operator or there are national security considerations to it, or if it's connected to a transnational, serious and organized crime group that already falls within the priority areas we're investigating, then that matter will be something we will step into.
From a cyber perspective, we have ongoing relationships and regular communication with most of the provinces and municipalities that have cyber capabilities within their investigative areas. We know that many of these incidents occur in multiple jurisdictions, whether they be domestic or international, so coordination and collaboration are really important.
That's why the national cybercrime coordination unit is being stood up as a national police service to aid in that collaboration, but prior to that being implemented, one of the responsibilities of my team in our headquarters unit is to have regular engagement, whether regular telephone conference calls or formal meetings where we discuss things that are happening in multiple jurisdictions to ensure that collaboration and deconfliction occurs, or on an ad hoc basis. When a significant incident occurs, our staff in the multiple police forces will be on the phone speaking to each other and identifying and ensuring that an appropriate and non-duplicating response is provided.
Mark Flynn
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Mark Flynn
2019-07-15 13:33
I'd like to stay away from discussing this particular investigation, but I can tell you that investigations of this nature absolutely will lead to discussions occurring. That happens as a consequence of the fact that we do have those regular meetings, whether it be in cyber or other types of crime that are going on in different jurisdictions. These, obviously, on a scale of this nature, would lead to discussions.
I am not involved involved in any of those discussions at this time. It is not something I have knowledge about.
Mark Flynn
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Mark Flynn
2019-07-15 13:35
Absolutely. We actually have a program at the Canadian Anti-Fraud Centre and a close relationship with telecommunications service providers, who have been very helpful in addressing some of the challenges we've had around telemarketing and the mass fraud committed over the telephone. As we learn about numbers that are utilized for fraud, we are validating that, and the telecoms industry is blocking those numbers to reduce the victimization. We have adapted some of our practices to ensure that this occurs at a much more timely rate than it has historically.
Mark Flynn
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Mark Flynn
2019-07-15 13:36
With any mass fraud campaign, whether it be tied to an instance like this or just in general, people need to have a strong sense of skepticism and take action to protect themselves. There are many resources under the Government of Canada, with such organizations as the Canadian Anti-Fraud Centre and Get Cyber Safe, that provide a list of advice for Canadians. It simply comes down to protecting your information and having a good sense of doubt when somebody is calling you. If it's a bank calling, call your local branch and use your local number. Don't respond to the number they provide and don't immediately call back the number they provide. Go with your trusted sources to validate any questions that are coming in.
I have experienced calls similar to yours. I had a very convincing call from my own bank. I contacted my bank and they gave me the advice that it was not legitimate. It was interesting, because in the end it turned out to be legitimate, but we all felt very safe in the fact that the appropriate steps were taken. I would rather risk not getting a service than compromising my identity or my financial information.
Mark Flynn
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Mark Flynn
2019-07-15 13:40
The RCMP's role, as I explained earlier, in many of these situations is to work with our provincial and municipal partners. It's important to recognize that our provincial and municipal partners are very skilled at responding to many of these incidents. It's not always the case that the RCMP has additional powers, authorities or capabilities to the ones they have when dealing with an incident that is singular in nature, where an individual is involved in a single event, as opposed to a broader one.
However, there's always a standing offer from the RCMP to our provincial and municipal partners, that should they require technical assistance, advice or guidance, we are available to them for that. It would be inappropriate for the RCMP to inject itself into the jurisdiction of another police force to run the investigation they are operating.
Mark Flynn
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Mark Flynn
2019-07-15 13:42
Again, outside the scope of this particular investigation, cybercriminals do commit the majority of their crimes to gain access to personal or financial information for the purposes of gaining access to financial institutions and the money that's housed in those locations. The RCMP work continuously with the international community to identify and pursue the individuals who are committing a great number of these crimes.
The RCMP are working closely right now with those international partners, as well as many of the large financial institutions in Canada and the Canadian Bankers Association, to ensure that we are targeting the individuals who are causing the most significant harm. Our federal policing prevention and engagement team has hosted sessions with both the financial institutions and the cybersecurity industry. We have a new advisory group that's helping us target those individuals.
As far as knowledge goes, it's only in the hands of those cybersecurity and financial institutions. We're trying to ensure that as we are putting the resources we have into investigations, we are targeting those individuals who are causing the most harm.
We do that, as well, internationally. As incidents occur, we speak to our international law enforcement partners. We identify the behaviours we have in our cases or in our Canadian law enforcement partners' cases, so that if there are connections or individuals who are in those other jurisdictions, we're using the mutual legal assistance treaty, and we're using police-to-police collaborative efforts that we have to ensure that, internationally, all of those efforts are put towards a problem.
Now, I want to stay away again—and I apologize for doing that—from this exact incident. I cannot express what is or is not being done in this particular incident.
Mark Flynn
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Mark Flynn
2019-07-15 13:44
I am unable to speak about this particular incident. It would be inappropriate for me to do so.
Mark Flynn
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Mark Flynn
2019-07-15 13:46
We have formal, regular engagement with our policing partners across the country. That occurs on a monthly basis in the cyber area, as well as biweekly in some other areas. However, when there are incidents such as this, as you described, there are immediate calls that go out to ensure that collaboration is occurring and that any of our international partners' information that's relevant could be utilized to aid in those investigations.
Mark Flynn
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Mark Flynn
2019-07-15 13:48
Yes, we do. We work very closely, as I've stated, with our provincial and municipal police agencies. In fact, I take great pride in the fact that at some of those meetings that I described, where our federal policing prevention and engagement team brought together the private sector, financial institutions and cybersecurity, one of those policing partners actually stood up at the front of the room and thanked the RCMP for the collaboration they are seeing in the area of cyber, which is far better than anything they've ever seen in their career.
I take great pride in that because that has been a priority for me, my staff and our engagement folks, to ensure that we are not being competitive but are being collaborative and, in that collaboration, we are supporting each other. We are not superseding other police forces' authorities, but we're also ensuring that we can assist the others in that.
Mark Flynn
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Mark Flynn
2019-07-15 13:50
The threat comes from multiple directions, and I can't say which is greater, because, in our experience, we have seen a significant number of organized groups or individuals perpetrating the crimes across the Internet. The Internet is an enabler as much as it's a tool for us to use in leveraging and utilizing all the fantastic services that are out there.
Mark Flynn
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Mark Flynn
2019-07-15 13:51
Yes, absolutely. We have seen a rise in what we refer to as cybercrime as a service to aid others who are less skilled at committing cyber offences, whether they are creating the malware, operating the infrastructure, or creating the processes by which somebody can monetize the information that is stolen. That is a key target area for the RCMP under our federal policing mandate, and we are targeting those key enabling services so that we can have the most significant impact on the individual crimes that are occurring, as opposed to chasing each individual crime.
André Boucher
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André Boucher
2019-07-15 13:52
Thank you, Mr. Chair. As requested, I'll keep my presentation on the shorter side.
Mr. Chair and honourable members of the committee, my name is André Boucher, and I am the associate deputy minister of operations at the Canadian Centre for Cyber Security.
Thank you for the opportunity to appear before you this afternoon.
Let me begin with a brief overview of who we are.
The Canadian Centre for Cyber Security was launched on October 1, 2018 as part of the Communications Security Establishment. We are Canada's national authority on cybersecurity and we lead the government's response to cybersecurity events.
As Canada's national computer security incident response team, the cyber centre works in close collaboration with government departments, critical infrastructure, Canadian businesses and international partners to prepare for, respond to, mitigate and recover from cyber events. We do this by providing authoritative advice and support, and coordinating information sharing and incident response.
The cyber centre's partnerships with industry are key to this mission. Our goal is to promote the integration of cyber defence into the business model of industry partners to help strengthen Canada's overall resiliency to cyber threats. Despite these efforts and those of Canada's industry, cyber incidents do still happen.
This brings me to the topic we are here to discuss today. The cyber centre is not in a position to provide any details on this incident and does not comment on the cybersecurity practices of specific businesses or individuals. Any cyber breach, not just this specific instance, can be taken as an opportunity to revisit best practices and to refine systems, processes and safeguards.
In this case, media reporting and public statements indicate that the disclosure of personal information occurred as a result of the actions of an individual within the company—what is termed insider threat.
In our recent introduction to the cyber-threat environment, the cyber centre described the insider threat as individuals working within an organization who are particularly dangerous because of their access to internal networks that are protected by security parameters. For any malicious actor, access is key. The privileged access of insiders within an organization eliminates the need to employ other remote means and makes their job of collecting valuable information that much easier. More broadly, what this incident underscores is the human element of cybersecurity. The insider threat is only one example of this.
Cybercriminals have proven especially adept at exploiting human behaviour through social engineering to deceive targets into handing over valuable information. Fundamentally, the security of our systems depends on humans—users, administrators and security teams.
What can we do in a world of increasing cyber-threats? At the enterprise level, adopting a holistic approach to security is critical. This means starting with a culture of security and putting in place the right policies, procedures and cybersecurity practices. This ensures that when something goes wrong, as it almost inevitably will, there is a plan in place to address it.
Then we need to invest in knowing and empowering our people. Training and awareness for individuals and businesses are very important. Only with awareness can we continue to develop and instill good security practices, a fundamental step in securing Canada's cybe systems.
As well, we always need to identify and protect critical assets. Know where your key data lives; protect it; monitor the protection, and be ready to respond.
At the cyber centre, we'll continue to work with industry and to publish cybersecurity advice and guidance on our website. We regularly issue alerts and advisories on potential, imminent or actual cyber-threats, vulnerabilities or incidents affecting Canada's critical infrastructure.
Under, we hope, different circumstances, we'll continue to participate in conversations like this one, which help to keep the spotlight on these issues.
Ultimately, there is no silver bullet when it comes to cybersecurity. We cannot be complacent; there is too much at stake. While long-promised advances in technology may make the task easier, the need for skilled and trustworthy individuals will remain a constant.
Thank you, and I look forward to answering your questions.
Mark Flynn
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Mark Flynn
2019-07-15 13:59
From a policing perspective, I believe that the public expectation is that police are going to pursue the person and anyone associated with that person who is involved in either the theft or the monetization of information—whether through cyber-threat, cyber-compromise, insider threat, or so on—and hold them to account and bring them into the judicial process to ensure that there are consequences, and that steps are taken to prevent this type of incident from occurring.
Mark Flynn
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Mark Flynn
2019-07-15 14:00
It's not an area of expertise for me, as a police officer, to confirm identity. I would go back to my earlier statement about using your local resources, whether it be financial institutions or other types of service. If you're able to use a local service to confirm it, that is your best way to deal with those companies when there are questions about your identity.
Mark Flynn
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Mark Flynn
2019-07-15 14:01
That is correct. It's important to point out that the only measure of success is not necessarily prosecution. In fact, in the cyber area many of those prosecutions will occur in other jurisdictions as we work collaboratively.
One of the approaches in the RCMP, and I know in some of our other police forces as well, is that we are bringing financial institutions and cybersecurity experts into our investigations. That is different from what we traditionally have done in our criminal investigative efforts. That has already borne fruit. It has already provided significant advantages. Those “partners”, as I refer to them, are able to see information that we as police officers might not know is important and we may not independently be able to identify that this could be used to provide protection for their customers. I know of at least one incident in a major investigation we've been undertaking where several financial institutions, through that collaboration, were able to identify and reduce potential harm to accounts that through that sharing were identified as compromised.
So I think the approach we are taking is providing benefits that are not solely measured by arrest and prosecutions.
André Boucher
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André Boucher
2019-07-15 14:03
Thank you for your question.
That ties in with my opening statement. A few tools are available, but what works best is going back to the basics—in other words, taking a holistic approach to security.
First, that means a well-established internal security regime for staff. It is important to understand exactly where the information that needs protecting resides, to know the individuals the organization works with and to constantly update the security regime. An individual's personal situation can easily change after they've been interviewed, so an organization should have those kinds of conversations with staff members on a regular basis. For individuals, a clear training and education program should be in place, one that includes refreshers, and the underlying processes should be clear.
IT teams have access to data loss prevention tools that can help to detect fraud. By the time fraudulent activity is detected, however, it's often too late. It is therefore important that organizations invest as early as possible in measures that build trust and confidence and that they work with reliable people.
André Boucher
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André Boucher
2019-07-15 14:05
Thank you for your question. It's a vast question. I think you will have testimony this afternoon from experts from that specific sector of financial institutions.
I would say that from a cybersecurity perspective, the financial sector is quite mature, where we have both regulators in place and best practices that are part of the community. As cybersecurity-focused experts, we put a lot of effort into that collaboration in those best practices. We leave it to the regulators who are sector-specific to put in those minimum standards and guidelines that need to be in place, enforced and reviewed. We in fact appeal to the best and try to tease that up as much as possible for entire sectors, in this case the financial sector. The financial sector is one that's very mature. It's one where collaboration is established. It is where reputational risks are measured at their true value. Significant investments are made in that regard.
From a Canadian perspective, I would feel quite reassured that as a sector, there are both minimum standards and applications through the regulators that are in place and teams that are working at bringing the best out of enterprises so that they perform as well as possible.
André Boucher
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André Boucher
2019-07-15 14:07
I can assure you that we're quite vigorous in taking all the measures at our disposal, whether they be best practices in collaboration or measures that are enforced and in place.
The sad or unfortunate reality that we all have to compose with is that, as was pointed out earlier, when data gets lost and gets in the wild, we never get to recover it. It is not like a tangible asset that you can go and purge and bring home. It is a new reality for clients, it is a new reality for customers and it is a new reality for enterprises.
I would go back to the comment I made earlier that it just puts more fuel into the need to invest early, with early investments in having programs, in choosing our employees better, and in making sure we have a holistic approach to security to make sure we don't find ourselves trying to recover our losses.
André Boucher
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André Boucher
2019-07-15 14:10
Thank you for your question.
We have an extensive program. On our website, cyber.gc.ca, people can find information on how to protect themselves. Of course, people have to be aware when they are online. That is the most basic rule of cybersecurity. People have to know not only how to use the Internet, but also what they are sharing with others online. We are constantly running campaigns to educate people on using their devices securely and being smart about who they choose to share confidential information with.
Having the best protection and keeping it up to date is the first step, but making smart choices is another. People should visit only the sites of companies they consider to be reliable and reputable. Once they've done those two things, people need to choose what information they agree to share with the company. It's a three-step approach, and it is all available in the information and guidance we provide to people.
André Boucher
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André Boucher
2019-07-15 14:12
Yes. I always look for opportunities to promote our website, so on our website, we talk specifically about how long and complex passwords should be. We also provide some tips. I encourage people to explore our website for themselves. It is often said that people should change their passwords regularly, but the problem with that is having to memorize a bunch of ever-changing passwords. The guideline has evolved over time. Nowadays, it is recommended that people choose at least one strong password, using certain parameters, which are available online, based on password length and/or complexity, depending on the available options. If it's possible to have a password containing up to 15 characters, people should try to choose a password that uses all 15 characters. If the password can have only eight characters, that's pretty bad, but people should at least choose a more complex password.
Constantly changing one's passwords is of minimal benefit if it means people have to write them down somewhere or use the same one for many different sites. What we want people to do is be diligent about choosing their passwords: choose something that is unique and as strong as the provider's parameters allow. People can use the same password, but if a data breach occurs, they have to act fast, changing their password and taking additional security measures. It's important to do a combination of things.
André Boucher
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André Boucher
2019-07-15 14:13
Now you're asking me to be very pragmatic.
Ms. Julie Dabrusin: Yes, but this is pragmatic stuff.
Mr. André Boucher: What I would advise people, other than being very pragmatic, is to base their passwords on their level of uncertainty when it comes to the various online services they are using. For instance, for online banking, people should use a number of distinct passwords that are as complex as possible. However, for their online account with their local curling club, say, people may wish to be a little less rigorous and use the same password a few times, even though that isn't what I would recommend.
André Boucher
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André Boucher
2019-07-15 14:14
I believe most, if not all, banks require a minimum level of sophistication when it comes to the passwords they accept. They already have a certain standard in place to protect themselves from clients who are less diligent than they should be in selecting a password.
André Boucher
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André Boucher
2019-07-15 14:16
It's fair to say that the Canadian Centre for Cyber Security has the resources to deal with all aspects of cybersecurity. The case we are talking about today involves an insider threat and stolen information. Strictly speaking, it's not a cybersecurity issue.
André Boucher
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André Boucher
2019-07-15 14:16
I'm not trying to evade the question, but the issue actually comes down to legislation or fraud. It's not a cybersecurity problem. That's not to say, however, that, if we see something happening, we aren't going to respond.
The first thing we do every day is talk to our partners, including the RCMP, to share what we know and update them on anything new. We make sure that whoever is responsible for the matter does something with the information we provide. The national team is the best there is and won't let anything fall by the wayside. The members of the team endeavour to fix any problems and do everything they can to keep Canadians' information safe.
André Boucher
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André Boucher
2019-07-15 14:18
Thank you for your question. You don't ask easy ones, Mr. Clarke.
I'm not an expert in social insurance numbers or their use, but I can talk about identifiers. No matter what identifiers are used, whether they involve complex or simple cryptology, information management is always an issue and the potential for data theft always exists. It's a very complex issue, and I'm going to let the experts in social insurance numbers speak to your specific question.
The bigger problem, as I see it, is how identifiers are managed. They are key pieces of information, and learning how to manage them properly in the large security systems I was talking about earlier is crucial.
Mark Flynn
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Mark Flynn
2019-07-15 14:19
The reality is that whenever personal information, passwords, etc., are released on the Internet, they are there forever. People need to be cautious and vigilant about that, and use the services that are available, like credit monitoring, etc., to ensure that triggers are put in place to notify them when someone's trying to use that information, to help prevent an actual fraud from occurring.
I'm trying to respect the timeline.
Mark Flynn
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Mark Flynn
2019-07-15 14:20
The RCMP operates the Canadian Anti-Fraud Centre in partnership with the Ontario Provincial Police and the Competition Bureau. That is one of your best places to go to report fraudulent activity, whether it be the telephone numbers that people are calling from, or an individual identity theft or fraud that occurred. They collate that information. They share that information. Police investigations are launched based on the collation of that. That would be the first place you should call, as well as your local police force.
Local police forces—whether they be the RCMP or, in Ontario and Quebec, another police force—need to hear about the crimes that are occurring. There are connections between organized crime involved in fraud and other criminal activities.
André Boucher
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André Boucher
2019-07-15 14:21
Do you mean generally or in this specific case?
André Boucher
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André Boucher
2019-07-15 14:21
As I explained earlier, the Canadian Centre for Cyber Security is responsible for providing advice. It prepares and protects information of national interest. It is responsible for incident management and response, including mitigation strategies. Every step is undertaken in coordination with the centre's partners, as per its mandate. When a fraud-related issue arises, the national team is called in. It is made up of centres that have already been appointed. We make sure all stakeholders have access to the available information so we can move forward. Work on the case continues, and if more information becomes available, it is shared with the person responsible.
Here's where the value of this business model lies. If something changes while the case is under way—for instance, if it ceases to be an investigation—the Canadian Centre for Cyber Security takes over until the victim receives or, rather, until the case is closed.
André Boucher
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André Boucher
2019-07-15 14:23
I'm going to say the same thing I did earlier. I'm not an expert in social insurance numbers, but we strongly advise people to use two factors whenever possible. It's not perfect, but it improves the security of their information.
André Boucher
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André Boucher
2019-07-15 14:24
Absolutely. I can't name them today, but a number of countries around the world have endeavoured to adopt a system that relies on a national unique identification number. Some have been successful, and others, less so. As you said, the number becomes an essential piece of information and the slightest vulnerability puts the data at risk.
André Boucher
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André Boucher
2019-07-15 14:24
Yes, absolutely, using all the measures I mentioned earlier.
André Boucher
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André Boucher
2019-07-15 14:24
We have an extensive security program in place from the get-go, starting with the selection of personnel. Of course, a culture of security prevails throughout the organization, one that encompasses personnel security, physical security and computer system security.
The processes are in place. The system is evergreen, meaning that it's constantly updated. We don't rest on our laurels, so to speak. We review the system on a regular basis. It's an extensive and complex process, but the investment is worth it.
André Boucher
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André Boucher
2019-07-15 14:25
Our approach is modern, but we don't have a monopoly on security programs. Documentation is available. Public Safety Canada put out a publication on developing appropriate security programs. It's an excellent reference that refers to the same models we use.
André Boucher
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André Boucher
2019-07-15 14:27
Regarding your question about reporting incidents, I would just point out that we recommend organizations invest before an incident occurs. The organization has to have a security program in place, one that can detect threats and so forth. We always recommend that people report incidents and share them with their community because there are usually commonalities that everyone can learn from.
As the country's cybersecurity centre, we work to gather that information across all communities and to find commonalities in order to issue advice and guidance that could lead to enhanced security nationally. Yes, incidents should definitely be reported.
Mark Flynn
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Mark Flynn
2019-07-15 14:28
With respect to the physical versus the cyber harm, I agree with you. It's a very difficult thing to understand. We struggle in policing to determine where we are going to apply our resources, because we always look at where we're going to be able to have the most significant impact in reducing harm.
If you look at fraud, fraud is a very large and significant threat in Canada and globally. It is difficult to measure $400,000 worth of fraud or $2 million worth of fraud against a physical threat or a homicide, or an assault against an individual. We struggle with that, but I can tell you that we're aware of it and are examining how we measure that risk and how we prioritize.
Mark Flynn
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Mark Flynn
2019-07-15 14:29
Yes, it's absolutely a consideration.
Mark Flynn
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Mark Flynn
2019-07-15 14:29
The specific data from those compromises...?
Mark Flynn
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Mark Flynn
2019-07-15 14:30
We are seeing fraudsters utilizing information that is compromised in operations. The RCMP had a successful investigation into Leakedsource.com, which was reselling some of the information from the large compromises that were made public. There was a guilty plea in that case.
It is not an unusual circumstance that somebody is reselling that. We are seeing that occur.
Mark Flynn
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Mark Flynn
2019-07-15 14:30
I haven't taken note specifically of the rate of crime, but it is certainly a type of crime that we are seeing.
André Boucher
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André Boucher
2019-07-15 14:31
I can speak for my organization. We have a national responsibility, and that includes working with our Quebec partners. We invest in education and training, and we also make our services available to Quebec businesses.
André Boucher
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André Boucher
2019-07-15 14:32
I think every large enterprise has to measure its own key assets and the value of those assets and make a risk-based decision on how much they're going to invest to protect those assets. Starting from a position of zero trust is the reality of the complex environment we live in today. Don't assume your system is going to work on its own. It takes a holistic investment in a security program—in the right people, the right processes and the right technology. The sum of these things will....
André Boucher
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André Boucher
2019-07-15 14:32
It is a consensus that you have to invest in all of these aspects.
Annette Ryan
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Annette Ryan
2019-07-15 14:39
Thank you, Mr. Chair. I will go first, if that's all right.
My name is Annette Ryan. I am the associate assistant deputy minister of the financial sector policy branch within the Department of Finance. I am joined by Robert Sample, director general of the financial stability and capital markets division, as well as Judy Cameron, managing director of the Office of the Superintendent of Financial Institutions Canada, and her colleague. We are pleased to appear before you today.
My remarks today will address two areas that, I believe, are pertinent to the issues before you. Specifically I will clarify the roles of government departments and agencies and private sector actors within the federal financial sector framework and update the committee on efforts being undertaken by the Department of Finance, federal regulatory agencies and banks in support of cybersecurity and data protection.
Protecting the privacy and security of Canadians' personal and financial data is an objective shared by both levels of government and the private sector, and it is one that's crucial for maintaining continued trust in Canada's banking system.
I'll address the roles within the federal government and then discuss provincial government and private sector roles.
The Department of Finance along with federal financial sector oversight agencies has responsibility for the laws and regulations that govern Canada's federally regulated banking system. We collectively set expectations and oversee implementation to ensure that operational risks related to cybersecurity and privacy are properly managed by the financial institutions that we regulate.
The Minister of Finance has overarching responsibility for the stability and integrity of Canada's financial system. Cybersecurity is a primary aspect of financial cyber-stability as it ensures the sector remains resilient in the face of cyber-threats and attacks
In turn, Public Safety has recognized the financial services industry as being a critically important sector within its wider national critical infrastructure strategy.
The Department of Finance works closely with a range of partners responsible for financial regulation and cybersecurity both domestically and internationally to ensure that the sector is adopting appropriate cyber-resiliency and data protection practices and that the specific needs of the financial sector are considered within economy-wide policies and statutes that relate to cybersecurity and data security.
I'll describe the general responsibilities among financial regulators. The Office of the Superintendent of Financial Institutions is the prudential regulator of federally regulated financial institutions, including banks. OSFI develops standards and rules for managing cyber-risks as is consistent with its wider oversight of operational risks that institutions must manage.
The Bank of Canada monitors financial market infrastructures, such as payment systems, to enhance resilience to cyber-threats, and the bank coordinates sector-wide responses to systemic-level operational incidents.
Other federal agencies have responsibilities for laws of general application in respect of privacy. The Office of the Privacy Commissioner of Canada oversees the banks' compliance with Canada's private sector privacy legislation, the Personal Information Protection and Electronic Documents Act, known as PIPEDA. PIPEDA sets out requirements that businesses must follow when collecting, using or disclosing personal data in the course of commercial activities. These include putting in place appropriate security safeguards to protect personal data against loss, theft or unauthorized disclosure.
The Department of Innovation, Science and Economic Development has overall policy responsibility for PIPEDA. In November of 2018 the Government of Canada implemented amendments to PIPEDA related to data breach reporting requirements and associated monetary penalties for failing to report.
As you've just heard, other federal departments and agencies, including Public Safety, the Canadian Centre for Cyber Security and the RCMP, share responsibilities with respect to broader Government of Canada cybersecurity initiatives.
It is important to note that supervisory responsibility for the financial sector in Canada is divided between federal and provincial governments. Provinces are responsible for the supervision of securities dealers, mutual fund and investment advisers, provincial credit unions and provincially incorporated trust, loan and insurance companies.
Accordingly, federal and provincial financial sector authorities have protocols in place for information sharing, particularly where matters of financial stability are concerned. Financial institutions, themselves, of course, are most immediately responsible for maintaining cyber and data security on a day-to-day basis, directly managing operational risks through an extensive series of protective and preventative measures, both individually and through industry-level co-operation.
These are supported by policies and standards that are continually updated to address the evolving threat landscape and remain in line with industry best practices.
Cyber-attacks are a serious and ongoing threat. I will focus on some of the steps being taken by the Government of Canada, the financial sector, regulatory agencies and the banks to ensure cybersecurity in the financial sector.
In budget 2018, the federal government invested over half a billion dollars in cybersecurity, and in October of 2018, it established the Canadian Centre for Cyber Security, which serves as a single window of technical expertise and advice to Canadians, governments and businesses. The centre defends against cyber-threat actors that target Canadian businesses, including federally or provincially regulated financial institutions, for their customer data, financial information and payment systems. Efforts to address cybercrime have been further bolstered by the newly created national cybercrime coordination unit within the RCMP, which provides a national cybercrime reporting mechanism for Canadians, including incidents related to data breaches or financial fraud.
More recently, in budget 2019, the government proposed legislation and funding to protect critical cyber systems in the Canadian financial, telecommunications, energy and transport sectors.
Our colleagues at the Treasury Board Secretariat continue their work with provincial governments, financial institutions and federal partners toward a pan-Canadian trust framework for digital identity with the goal of strengthening digital ID protection in the context of cyberthreats.
On the regulatory side, earlier this year OSFI published new expectations on technology and cybersecurity breach reporting via the technology and cybersecurity incident reporting advisory. This is intended to help OSFI identify areas where banks can take steps to proactively prevent cyber incidents, or in cases where incidents have occurred, to improve their cyber-resiliency.
While the first objective is to prevent data breaches, the reality is that these events happen and are not localized to the financial sector. Having said this, when cyber events occur at a federally regulated financial institution, control and oversight mechanisms are in place to manage them.
To summarize, cybersecurity is an area of critical importance for the Department of Finance. We are actively working with partners across government and in the private sector to ensure that Canadians are well-protected from cyber incidents and that when incidents do occur, they're managed in a way that mitigates the impact on consumers and the financial sector as a whole.
Thank you for your time. I'm happy to take questions.
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