Interventions in Committee
 
 
 
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View Julie Dabrusin Profile
Lib. (ON)
Over the past few exchanges, we've heard a little bit about Bill C-59 and the other forms of oversight or review that might be put in place. In respect of the National Security and Intelligence Review Agency, NSIRA, how would you see the complementarity between the review agency and yourself?
View Harjit S. Sajjan Profile
Lib. (BC)
Thank you, Mr. Chair.
I've actually had a little bit of de déjà vu this morning, given that I was at the defence committee and I see most of the same people here. It's nice to see everyone again.
I'd like to start by thanking all of you for the tremendous work that you have done in studying Bill C-59. These discussions and the experts you have talked to have helped inform the development of this important legislation, so thank you for all of your efforts.
I am accompanied today by Greta Bossenmaier, the Chief of the Communications Security Establishment; Shelly Bruce, the Associate Chief of CSE; and senior officials from CSE, National Defence, and the Canadian Armed Forces. It's our pleasure to be here today as you continue your review of the National Security Act, 2017.
This legislation demonstrates our government's recognition that the pursuit of national security involves two inseparable objectives: the protection of Canadians and the defence of our rights and freedoms. This commitment is apparent in part 3 of Bill C-59, which would establish stand-alone legislation for the Communications Security Establishment.
Last November, I had the opportunity in the House to speak to CSE's proud history of serving Canadians. For over 70 years, CSE has been Canada's foreign signals intelligence agency and the lead federal authority for information technology security in the Government of Canada. Over that long history, CSE has successfully adapted to remarkable change, including very rapid technological advancements and evolutions in the global threat landscape. However, what is needed now are modernized authorities to ensure that CSE is able to continue to adapt in this ever-changing environment both today and into the next 70 years.
In my remarks this morning, I'd like to underscore the importance of this legislation to ensuring that our security and intelligence agencies can keep pace with security threats, while at the same time enhancing accountability and transparency.
First, the CSE act would modernize the foreign intelligence aspect of CSE's mandate by allowing CSE to use new techniques to acquire intelligence through the global information infrastructure. CSE's foreign signals intelligence program is essential to keeping the government informed on matters of national security, national defence, and international affairs. These proposed changes will ensure that CSE is able to continue to collect this vital intelligence.
Second, as Canada's centre of excellence for cyber-operations, CSE operates at the forefront of changes in technology. The act would strengthen the cybersecurity and information-assurance aspect of CSE's mandate. Notably, the act would improve CSE's ability to defend important non-Government of Canada networks and to share cyber-threat information and mitigation advice. Taken altogether, the CSE act will strengthen Canada's cyber-defences by better protecting Canadians' most sensitive information and important cyber-networks from compromise.
Third, and of particular interest to National Defence, the technical and operational-assistance aspect of CSE's mandate would clarify that CSE is allowed to provide assistance to the Canadian Armed Forces and the Department of National Defence. This will enable CSE to better support Canada's military missions and the brave women and men of the Canadian Armed Forces serving in theatre.
Of course, CSE already provides important intelligence to the forces under the foreign intelligence aspects of CSE's mandate. This legislation would allow CSE to do more to help them to, among other things, conduct active cyber-operations in support of government-authorized military missions. Bill C-59 will enable CSE and the Canadian Armed Forces to better co-operate to ensure the best use of tools and capabilities to meet mission objectives.
The Department of National Defence and the Canadian Armed Forces look forward to the opportunity to work more closely with CSE to leverage its capabilities and expertise, as outlined in Canada's new defence policy “Strong, Secure, Engaged”.
I also want to discuss a crucial element of the proposed CSE act: foreign cyber-operations. I know that in her appearance before committee last month, the associate chief of CSE, Shelly Bruce, spoke to you about the active cyber-operations and exactly what they would look like in practice. Today I want to reiterate why these operations are important and why they are needed to protect the security of Canadians.
CSE's foreign cyber-operations mandate will provide Canada with the cyber-means to respond to serious foreign threats or international crises as part of a broader strategic approach.
For example, CSE would use active cyber-operations to prevent a terrorist's mobile phone from detonating a car bomb, or CSE could impede the ability of terrorists to communicate by obstructing their communications infrastructure.
CSE's active and defensive cyber-operations would be carefully targeted, by law, to the activities of foreign individuals, states, organizations, or terrorist groups that have implications for Canada's international affairs, defence, and security. Foreign cyber-operations would be subject to strict statutory prohibitions against directing these operations at Canadians, any person in Canada, or the global information infrastructure in Canada, and would require a robust approval process.
This brings me to my final point. This bill will considerably enhance oversight and review of Canada's national security and intelligence community, which includes CSE, the Department of National Defence, and the Canadian Armed Forces.
The oversight and review positions in the national security act demonstrate our government's commitment to enhancing lawfulness and transparency. I look forward to working with the proposed new bodies, including the national security and intelligence review agency and the intelligence commissioner.
By updating, clarifying, and clearly outlining in legislation what CSE is permitted to do, this legislation will empower Canadians to better understand what CSE does to protect Canada and Canadian interests. By adding new oversight and accountability measures, the national security act should also give you and all Canadians confidence that the measures are in place to ensure that CSE will continue to abide by the law and protect the privacy of Canadians.
To the members of the committee, I'm very proud of Bill C-59. This is very important legislation that will deliver on our government's promise to protect Canadians and their rights and freedoms.
Thank you.
View Matthew Dubé Profile
NDP (QC)
Thank you, Mr. Chair.
Minister, thank you for being here today, and thank you to the folks around the table as well.
My question—and you mentioned this in your comments—is about the capability sharing that's happening between CSE and the armed forces, in particular with regard to active cyber-operations. There have been concerns raised about the evolving landscape that was alluded to and what exactly that means for a civilian organization when you're talking about, in particular, foreign-state actors that might be involved in some of the activities that those active cyber-operations are being used against. It feels as if there might be a slippery slope there in terms of international law, as to what is military action and what is not.
I'm wondering if you could comment on that and perhaps explain how those capabilities go together and in what way we're making sure we don't have CSE as a civilian organization engaged in what other states might perceive as military attacks, especially with the concept of sovereignty being very nebulous in this digital age in terms of international law.
View Harjit S. Sajjan Profile
Lib. (BC)
I'll let Greta speak to the technical side of things. However, I think I need to be very clear on this. We, in Canada, are leveraging a repository of phenomenal excellence that resides in CSE. With regard to the expertise that's here, we as a government, and previous governments, have kept it there for that reason, to make sure we stay at the cutting edge.
The Canadian Armed Forces, with the new legislation, will be able to allow us to leverage that technology. Any type of military action that's taken, as with any other military operation, will be conducted with the proper targeting procedures, the proper rules of engagement, and in accordance with international law and, more importantly, our laws as well.
View Matthew Dubé Profile
NDP (QC)
Before I get to the technical side for a more precise aspect, the bill calls for authorization by you, in consultation with the Minister of Foreign Affairs, for any active cyber-operation. Let's say there's a foreign state actor involved in the activity that requires that active cyber-operation. Can you walk us through the process of how you make the decision as to whether the Armed Forces should be intervening with their cyber-capability or whether it's CSE as a civilian organization?
View Harjit S. Sajjan Profile
Lib. (BC)
Let's make a distinction in terms of whether it's a military operation that's providing.... For example, we're in Iraq right now. We have to look at the threats that are there. If a threat was developing capability in terms of creating a new type of IED, CSE will have the ability to support them on how to defeat that type of technology, and they will come out with that. But when it comes to active cyber-operations, it could be strictly, for example, that we as a government have to take some type of action to protect Canadians. That is a separate piece that CSE would be looking at. We have to separate the two. That will go through an appropriate process, as outlined in the legislation here, that will look at the proportionality, making sure that all the laws are respected, and a decision will be made.
Greta, do you want to add to that?
Greta Bossenmaier
View Greta Bossenmaier Profile
Greta Bossenmaier
2018-03-22 11:27
Sure. Thank you, Minister.
When the National Defence Act was amended some 17 years ago to recognize the role of CSE, at that point CSE was actually part of the Department of National Defence. We've always had an assistance mandate, the so-called part (c) of our mandate, that allows us, upon request from another organization such as a federal law enforcement organization, to request whether CSE could be supportive of their work under their lawful mandate. Again, given that we were part the Department of National Defence, assistance to National Defence or CAF wasn't explicitly spelled out because we were part of that department.
About six years ago, to give a bit of history here, we separated from the Department of National Defence and became a stand-alone agency, the Communications Security Establishment, albeit still reporting to the Minister of National Defence. Therefore, this proposed legislation adds the Canadian Armed Forces and National Defence as an organization that could request our capability, request our support, as the minister explained, on one of their lawful missions. We would be in a support operation to the Canadian Armed Forces.
We also have representation here this morning from the Canadian Armed Forces. They may also want to speak to their operations.
Michael Day
View Michael Day Profile
Michael Day
2018-02-15 10:59
Thank you very much, ladies and gentlemen. I appreciate the opportunity to speak in front of this committee.
First, let me say how encouraged I am that Canada, in the space of just a handful of years, has had two bills on national security. Content notwithstanding, the actual debate we're having helps improve...including the choices that we will be deliberately making as a country to either diminish or enhance our security, and I accept that there's a trade-off.
I come at this issue not just from my time in uniform in our special forces community, but also having been the senior uniformed officer responsible for international security in the Department of National Defence as well as being the chief strategic planner. Subsequent to my retirement, I have remained involved in this area, specifically working in the high-tech sector as well as in academia.
As part of the broader issue, I would wish to have my opening comments focused on three specific challenges. First of all is the trade-off between privacy and security, between the charter and the reasonable measures to protect Canadians. This is not, from my perspective obviously, a binary issue, or one that should be looked at as absolutes, but rather a dynamic relationship that should remain constantly under review. We should embrace that tension as opposed to pretending it doesn't exist, with a conversation being seen to have value in and of itself.
Second, there are the unavoidable challenges that are presented with dealing with intelligence and admissible evidence, quality information. This includes the provision of a coherent picture to policy makers. No policy or law will be able to solve this conundrum, however, better processes and deliberate case-by-case choices can be made to better inform our way ahead. I believe those are lacking. I believe this starts with a more coherent, joined up, centrally directed intelligence construct, which is mirrored in other countries, but quite frankly, not fully realized here in Canada. I'll address this a little later. Although this will be debated by many, the gap can be simply defined by the lack of one accountable minister—who is not the Prime Minister—in one department, responsible for the synthesis of a national perspective. The current construct through PCO lacks both authority and reach but most certainly process. The consequences are that we have government officials, both elected and unelected, who are not privy to a complete whole-of-government intelligence assessment, and vulnerabilities ensue as a consequence.
Lastly, we have a cultural blindness as a consequence of the quality of life that we all enjoy. To be sure, that's a double-edged sword, but the willingness to think of others, that they might share our values, our practices, essentially our way of life, is foolhardy. I vacillate, of course, between despair and admiration at this ability to ignore the realities of the world as I've experienced it. I won't be proposing any solution to that issue.
In this first instance, I would want to see a process that is able to flex and contract on a case-by-case basis. I do recognize there are embedded processes within the Government of Canada machinery. I believe them to be inadequate. This space should be defined by a non-political entity, likely expanding on the current judicial processes we have at the moment. In particular, I believe this must be informed by certain rules that trade off the automaticity of an action being appropriate or not with a deliberate set of decisions. Although there are some basic constructs that allow for warrants for certain actions, I don't believe this receives the attention or the expertise that is warranted in a holistic sense. We have a great judiciary, we have a great rule of law, and I believe the solution is in this space.
Lastly, in this area I consider it to be the requirement for whatever process adopted to remain in camera so as to protect that information, which leads me to my second point. By necessity, there's an overlap between various members of the security and intelligence community here in the machinery of government. We need better coordination, not merely information. Too often, even post-Maher, there remain gaps between how information and intelligence are manned in this domain. As an aside, I think it is tremendously important to distinguish between the two—information and intelligence. Although various individuals claim we are addressing this, I would remind this committee, as I'm sure you know, that this claim has been repeated by various officials in various governments for decades now. No good solutions have been reached, in my opinion.
When making this body of knowledge prosecutable, we need to do better. Although recognizing the hue and cry that will result, in some instances, it may mean, or continue to mean, a court process that is not transparent to the general public. These are the types of trade-offs that I believe are necessary. It's not a good solution. In fact, it may be a bad solution, but it's not the worst solution. In fact, it may be the best of a number of bad solutions. We are living in the worst solution, which is that we don't appear to address it at all. Implementation of independent monitors, etc., or any additional process may be considered as part of that solutions space.
With regard to electronic surveillance and security, I admit to an incredulity at either the inability or naïveté of Canadians in general, and quite frankly, the government in particular, accepting that there must be rules and policies surrounding these activities. It has shocked me. Over the last four or five years, I've worked a lot in the cyber domain. It's shocking to me how little effect successive governments have had in addressing the cyber-threats that this country faces on a daily basis. The vulnerability of our energy grid, the financial sector, among others, and the lack of a government-wide set of policies and legislation to enforce compliance leads me to believe that we are living in a country that is now fully compromised by foreign actors at the state and non-state level.
A voluntary system will not work, as a vulnerability by one is a vulnerability to all, in fact. The CSE legal mandate is a good and useful step, but it's only part of the picture. I am a strong believer that mass surveillance metadata, not individual surveillance or collecting individual information, and the power of directed and non-directed machine learning are critical to embrace and to better understand the space in which we are working. Lacking this, we will fall further behind.
Turning briefly to accountability and functionality in the government, I would cite the most recent report by the U.S. director of national intelligence, which is a significantly different role than the proposed commissioner of the intelligence, whose mandate falls well outside of my area of expertise and understanding, although it does appear to me to be a very good step. Although the current intelligent assessment secretariat fulfills some of the functionality of DNI, it falls short. Focused on the provision of intelligence to the Prime Minister and given its position in the Privy Council Office, it lacks the appropriate authorities to direct, as well as the degree of ministerial accountability needed. We have no minister responsible for this and no such equivalent director of intelligence. There is no mandate and therefore, the function is not served.
It seems to me that much of the public debate on the bill in question, C-59, is about legal mandates, compliance, oversight, and governance. I don't wish to imply that this isn't needed, let alone value added, but rather suggest that the necessity of this conversation should not be mistaken for sufficiency. By itself, the debate on those issues is insufficient.
In a rapidly changing world, an equal amount of discussion should be given to the efficacy of the security and intelligence agencies and supporting departments, how well they work together, how rapidly they are able to, not just respond in the moment, but adjust to changing threats, etc.
As a criticism, I could argue that one would say the jealous safeguarding of mandates authorities—or more crudely put, turf battles—will be argued by any number of officials who will come in front of this committee. I would posit that you would be fooling yourself to believe that those turf battles aren't actively fought on a daily basis and therefore, inhibit a fuller, broader understanding of the threats that we face and the actions that we can take in response. However, I was strongly and tremendously encouraged to see Ms. Rennie Marcoux appointed as the executive director of the committee proposed. She is a true intelligence professional, but this is a separate function, and I do not mislead myself into believing that replaces the proposed DNI, which I would support. This is a gap that needs attention.
Furthermore, not being in government at the moment, I do remain uninformed about how the interaction between that commission and PCO, the assistant secretary of security intelligence, and the national security advisor will all work together, reminding ourselves that the PCO answers only to the PMO and there's no accountable minister, let alone mandate, and therefore, no real authority besides that which is practised, but not enforced.
In addressing the oversight committee I believe I noted with concern that in some instances the committee—and I stand to be corrected on this—would not have access to certain intelligence. I think I've read that in some of the critiques. To be very clear, for lack of a better term, I believe that to be admittedly stupid. The committee should have access to any and all documentation seen and used by the intelligence committee regardless of the originator controls. Anything less makes a mockery of oversight. Decisions will be made. Actions will be initiated based on that foreign-based intelligence.
There is a need to continue to force the interaction most especially between the intelligence and security agencies and associated departments. I'm convinced that Bill C-59 is a good step forward, but it needs to be enlarged in processes and interactions, and an accountable minister appointed.
I'd be more than happy to talk about threats and other processes during our Q and A.
Thank you very much.
Guy Bujold
View Guy Bujold Profile
Guy Bujold
2018-02-15 12:05
Thank you.
Mr. Chair, honourable members, thank you for inviting me here today to speak to you about Bill  C-59, An Act respecting national security matters. As you said, Mr. McKay, I am accompanied by Ms. Joanne Gibb, Director of the Research, Policy and Strategic Investigations Unit of the Civilian Review and Complaints Commission for the Royal Canadian Mounted Police.
I will focus my comments today on part 1 of the bill, which seeks to establish the national security and intelligence review agency, thereby transferring certain powers, duties, and functions from the Civilian Review and Complaints Commission for the RCMP to this new agency.
As the head of the commission, I strongly believe in the importance of civilian oversight and review, whether it is related to national security or, for that matter, related to law enforcement more generally. Independent review fosters positive change and makes organizations better, and I think that's an objective we shouldn't lose sight of when we're talking about these changes. Consequently, the commission supports all of the efforts to enhance the national security review framework.
The trust that Canadians have in their public safety and national security agencies is predicated on accountability and transparency, to the degree possible. Independent review, whether it is by the National Security and Intelligence Committee of Parliamentarians, or by expert civilian bodies such as the Civilian Review and Complaints Commission, the Security Intelligence Review Committee, or the Office of the CSE Commissioner, contributes to the overall accountability framework of the organizations entrusted with keeping Canada safe and secure.
As the government seeks to further strengthen that framework by creating the National Security and Intelligence Review Agency, the commission welcomes the opportunity to work collaboratively with the new review body to ensure that RCMP activities are independently examined.
Created in 1988, the commission has significant experience and expertise in managing complaints and conducting reviews of the RCMP, whether it is into the RCMP’s actions in relation to the G8 or G20 summits, the RCMP seizure of firearms in High River, or policing in northern B.C., to name a few subjects.
The Civilian Review and Complaints Commission for the RCMP, as it is known now, has long been a key element of the RCMP’s accountability structure. By independently reviewing complaints, and where necessary making findings and remedial recommendations, the commission strives to bring about constructive change in the RCMP.
Currently, the commission is undertaking a review of the RCMP's implementation of Justice O'Connor's recommendations in relation to the Maher Arar affair. That investigation is ongoing at this time and is expected to be completed before the end of the fiscal year. The commission will then prepare a report outlining any findings and recommendations pertaining to the six sectors examined by Justice O'Connor.
It is my hope that any findings or recommendations made by the commission would guide the new review agency in its future work in relation to the RCMP's national security activities.
In his 2006 report, Justice O’Connor stressed the importance of a review body being able to “follow the thread”. Through Bill C-59, the new national security and intelligence review agency will have the mandate to do just that, providing a more holistic approach to national security review. Justice O’Connor also stressed the need to eliminate silos and for expert review bodies to work more collaboratively. We're hopeful that this will be an outcome of the new legislation and new oversight structures.
Since the mandate of the RCMP is much broader than just national security, I am pleased that Bill C-59 permits the national security and intelligence review agency to provide the Civilian Review and Complaints Commission with information it has obtained from the RCMP if such information relates to the fulfilment of our own mandate. I believe that this is critical to the overall effectiveness of the expert review bodies.
For example, if in the course of a national security review the national security and intelligence review agency becomes aware of a policy issue unrelated to national security, that issue could be flagged to the CRCC for further examination. This is the reality of the world we're living in.
To further illustrate the importance of collaboration and co-operation, I would suggest that if a public complaint was received by the commission that pertained to national security, but also contained allegations related to RCMP member conduct, the two review bodies should be able to collaborate, within their respective statutory mandates, to deal with the complaint. That is the only way that the Canadians who had made a complaint would receive an appropriate response to all their complaints.
Although the legislation requires the complaint to be referred to the National Security and Intelligence Review Agency, the CRCC, as the expert review body in relation to policing and police conduct, could deal with the allegation related to member conduct. This would ensure a consistent approach in reviewing complaints of RCMP on-duty conduct.
In terms of changes to the commission's mandate relative to Bill C-59, certain elements in the legislation might benefit from further clarification, and that the members of this committee may wish to consider further. Proposed amendments to the RCMP Act require that the Civilian Review and Complaints Commission refuse to deal with a complaint concerning an activity that is closely related to national security and refer any such complaint to the national security and intelligence review agency. That means the CRCC will continue to receive all public complaints related to the RCMP, and thus will remain the point of intake for public complaints. The onus will then be on the CRCC to determine whether the complaint is, in the words of the legislation, “closely related to national security” before deciding on how it will dispose of it.
Absent a definition of national security, however, the commission must make a determination on whether to refer the complaint to the national security and intelligence review agency. Once referred to the national security and intelligence review agency, that agency must receive and investigate the complaint in accordance with section 19 of the new legislation. There is currently no authority, however, for a referral back to the CRCC if the national security and intelligence review agency were to deem, after it had examined a complaint, that it was not a matter closely related to national security. This is a matter that the committee may want to consider further.
Also, while Bill  C-59 prohibits the commission from dealing with or investigating complaints closely related to national security, as well as RCMP activity related to national security, there is no prohibition on the commission's chairperson from initiating a complaint related to national security. Further to the RCMP Act, if the chairperson is satisfied that there are reasonable grounds to investigate the conduct of an RCMP member in the performance of any duty or function, the chairperson may initiate a complaint in relation to that conduct. Bill  C-59 does not amend subsection 45.59(1) of the RCMP Act and, as a result, the chairperson could initiate a complaint closely related to national security. I respectfully suggest that the committee may wish to consider whether this is consistent with the intent of the legislation.
As I indicated at the beginning of my remarks, I believe in the importance of civilian oversight of law enforcement, and we at the Civilian Review and Complaints Commission for the RCMP are fully committed to working with the new national security and intelligence review agency.
In closing, I'd like to thank the committee for allowing me to share my views on the important role of the independent civilian review. I welcome your questions.
View Sven Spengemann Profile
Lib. (ON)
Okay, that's very helpful, thank you.
I have a second technical question and a couple of broader ones within the remaining five minutes. Are there any budgetary or personnel pressures that you see resulting from the proposed changes to accountability and oversight as stipulated in Bill C-59, from the perspective of the commission?
Guy Bujold
View Guy Bujold Profile
Guy Bujold
2018-02-15 12:17
No, certainly not with regard to the commission itself, because, in our case, we're having some work removed from us and, as I say, the amount of work is fairly small.
I think where there's more of a resource implication for us is if we did one of these systemic reviews like the ones I mentioned in my remarks. Those can be quite time consuming and fairly expensive, but again, we are being taken out of that field with regard to security, so it wouldn't....
You may have had testimony to this effect from others. The resource pressures associated with creating the new agency will be something that will require some careful attention. Depending on the model that is put in place—the CRCC can be, we believe, a useful example to use as a guide for the creation of the new agency—the examination of the model will lead to the consideration of the resource implications, and those should be funded adequately, absolutely.
View Matthew Dubé Profile
NDP (QC)
Hello.
I am pleased to hear that I have 14 minutes.
Thank you for being here today. I have a number of questions and I would like them to pertain to the bill, but certain issues relate to your organization and the RCMP, broadly speaking, and to the topic under consideration.
My first question relates to the lack of consistency across Canada. There are a lot of questions about the way police action is investigated, in Ontario and Quebec in particular, which have provincial police services. We have even heard that the police services in Toronto, Montreal, and other cities have significant involvement in all kinds of anti-terrorism work. Could the lack of consistency in evaluating police work and handling complaints, in both legal and practical terms, be problematic for these national investigations?
Guy Bujold
View Guy Bujold Profile
Guy Bujold
2018-02-15 12:23
Thank you for your question. It is very interesting and it is something our agency is concerned about, whether in relation to national security or otherwise, and which has been brought to our attention through complaints from members of the public. As you said, it is not just the commission. There are similar organizations in the provinces which are also responsible for reviewing surveillance by various police services.
There is an association of the heads of those organizations. They meet fairly regularly to discuss common issues. As you rightly pointed out, Mr. Dubé, how can we ensure consistency and a standard approach to complaints that have been made about an officer from the Sûreté du Québec, the Ontario Provincial Police, or the RCMP elsewhere in the country, so that the complaint is reviewed in a similar way, regardless of the police service involved. There are conversations between these various groups to make sure that—I will use the English expression—
if it walls like a duck, it talks like a duck, looks like a duck, therefore we're going to treat it as a duck. We should treat all of them as ducks.
That is how we go about it.
View Matthew Dubé Profile
NDP (QC)
As regards national security, you made recommendations about how to proceed in this context and the need for a stronger definition. If I understand correctly, however, the ideal would be for you to work together rather than passing the buck back and forth.
You conduct parallel investigations, is that correct? How do you see this?
Guy Bujold
View Guy Bujold Profile
Guy Bujold
2018-02-15 12:29
First of all, we want to meet the legal requirement, under the act, to refer cases involving national security to the new agency. However, in an investigation relating to a worrisome national security issue, if we find that an RCMP member did not fulfill their obligations, their conduct would be an issue. In our view, the commission should be able to continue that investigation. That would mean sharing information with the new agency and would allow us both to conduct our investigation to arrive at a conclusion.
Guy Bujold
View Guy Bujold Profile
Guy Bujold
2018-02-15 12:30
No. The commission does not deal with criminal matters at all. Its role is to determine whether an RCMP member's conduct is in violation of the policies, training, and legislation that dictate their conduct. If there are legal proceedings because of the conduct of an RCMP member, other authorities will become involved.
View Matthew Dubé Profile
NDP (QC)
You mentioned that you are reviewing Justice O'Connor's recommendations.
Will you publish a report once you have completed that review?
View Matthew Dubé Profile
NDP (QC)
I have one final question. I might then give Mr. Picard some speaking time since it is his birthday.
My question pertains to the Canada Border Services Agency. There is a debate going on right now that you are certainly aware of. There is always some tension between police authority and the territory a certain number of kilometres around customs areas. There have been some incidents, in Windsor in particular. As I recall, someone died following a police chase.
One of the questions raised in the debate of Bill  C-59 is the review or surveillance of the Canada Border Services Agency.
Does your mandate include the work the CBSA does in co-operation with the RCMP or is it once again a question of following the trail, national security issues, and information sharing?
Guy Bujold
View Guy Bujold Profile
Guy Bujold
2018-02-15 12:32
I will heed Mr. McKay's warning and limit myself to a few brief remarks.
First, we know full well that the government is considering the need for a body like ours to review complaints about actions by members of that organization.
If such an agency is created, it would be in the public interest for it to have a clear link with the commission to ensure that, in cases where the responsibilities of the RCMP and the CBSA overlap, we can do what we have to do.
View Julie Dabrusin Profile
Lib. (ON)
Thank you. It's been an interesting conversation.
I'm really interested in the role between the two organizations, with NSIRA coming into place.
When I was asking questions of an earlier witness, I talked about how there can be differential impacts to legislation on different communities and different groups. From your experience as a review organization that's already looked at national security issues, do you have any suggestions as to what we should be looking for when developing NSIRA, how to take into account those differential impacts, and what tools we should have in our tool box so that oversight can balance against the differentials?
Guy Bujold
View Guy Bujold Profile
Guy Bujold
2018-02-15 12:34
At the heart of it, it would be describing the way we actually do a complaint investigation, what the various processes are that we follow in order to ensure there is consistency in the way we treat it, but also that you have a higher likelihood that the end point of your investigations will be the same when faced with similar situations. We certainly would be more than happy to talk to the people who are setting up NSIRA in order to establish that operational framework around how they do their business.
In terms of the legislative part of it, there are certain elements, again, of our legislation, of the RCMP Act, that could be used, essentially, to model the new agency.
Joanne, do you have any comment?
Joanne Gibb
View Joanne Gibb Profile
Joanne Gibb
2018-02-15 12:35
It's procedures and how you do your business.
An example is the workplace harassment review. When we were asked to do that by the minister, we looked at what our task was, and then we decided on the best approach and the best people to do it. We knew we wanted to engage members. We knew it was a really sensitive issue. We sought out a former major crime investigator retired from the Ottawa Police Service, a female, who we knew not only had a lot of knowledge of investigations but also would bring the right approach to speaking with the people and engaging in that way. It was very effective in that regard.
I think it's just more how we do our business as opposed to maybe a legislative change.
View Julie Dabrusin Profile
Lib. (ON)
It's something to be mindful of as we organize NSIRA and develop it.
Therefore, you don't see any legislative changes, because there were some suggestions about how the composition may look for that agency, and whether this differential impact should be taken into account. Or it can be something that's completely outside of the legislation. It's just more viewpoints as to how we have our tool box, what we hand them as their procedures and rules on how they operate.
Do you have any question on that, on the composition issue?
Guy Bujold
View Guy Bujold Profile
Guy Bujold
2018-02-15 12:37
Yes, I have one observation. I think members of the committee and the government would want to be very mindful of the governance structure put in place for this organization. The existence of a chair, a vice-chair, members, and who those members are and where they come from is, in my view, a very important consideration in order to ensure the organization can actually deliver the mandate the government wants it to deliver. It's not just a question of hiring good staff. If you don't have the governance structure.... I am talking to people who do governance here all the time. If you don't have that element right, the chances of success, I think, are quite lower.
View Pierre Paul-Hus Profile
CPC (QC)
Thank you.
I would like some explanations, but I am not sure who can provide them.
Several bodies report to the minister. We have the intelligence commissioner, the Privacy Commissioner, the new Committee of Parliamentarians. Several groups report in the interests of protecting privacy. But what about the operational aspect? I want to know how you will interact with all these groups and how that is going to work, especially in the case of CSIS.
Tricia Geddes
View Tricia Geddes Profile
Tricia Geddes
2018-02-13 11:52
Thank you for your question.
I do believe we have an obligation to our minister to ensure that we are meeting all of these expectations when it comes to privacy. We are quite comfortable with review. We have had a long relationship with SIRC. It has been very good at ensuring that we are adhering to policies and procedures when it comes to the privacy of Canadians. The new bill actually introduces a number of new mechanisms to ensure that the privacy obligations are being met by the service.
As I said at the outset, it is extremely important to us to ensure that Canadians have confidence in their security agencies. So I don't think we are concerned about it. I think that the privacy answers we would be giving to the Privacy Commissioner or our review agencies would be identical, frankly.
View Michel Picard Profile
Lib. (QC)
View Michel Picard Profile
2018-02-13 12:37
Thank you.
Mr. Brown, Bill  C-59 changes the powers to oversee the various agencies mentioned in it.
What impact will that have on the Civilian Review and Complaints Commission for the RCMP?
Malcolm Brown
View Malcolm Brown Profile
Malcolm Brown
2018-02-13 12:37
I think that question was raised during the first hour. Of course, it will have a positive impact because
Agencies will, I think, have greater clarity over what their expectations are.
This was an issue that we discussed, frankly, in the early days of the deliberations around the legislation. There was a recognition that there were gaps in the accountability regime, and we wanted to ensure that those gaps were filled in a way that didn't have a direct and negative impact on the operational capabilities of the agencies. Part of that is through greater clarity and expectation.
The other expectation is quite clear, and it's in the NSICOP legislation, for example. We expect NSICOP and NSIRA to consult and work with each other to ensure that they don't overlap unnecessarily and that they coordinate their activities.
There's no question that this will result—I would think this is one of the objectives—in greater transparency and greater public understanding of what we all do on a daily basis.
We're also taking steps to simplify the process through the transparency initiative, where the objective is that information that shouldn't be withheld can be shared publicly. This should eliminate going through access to information or whatever kinds of processes are required to release information. If we can release it proactively, we're lightening the burden.
I fully recognize that there has been some commentary about an increased burden, but as Tricia has mentioned, each of the deputy heads have indicated that they welcome and can function effectively within the proposed framework for oversight and review.
View Pam Damoff Profile
Lib. (ON)
Thank you, Mr. Chair. I just have one question, following up the questions that my colleague was asking.
In terms of changes that have been made in Bill C-59 to the CRCC, the Civilian Review and Complaints Commission, and the RCMP specifically, how will these impact the RCMP, and do you anticipate that the latter will work better under Bill C-59? Can you give us a little more information?
Mr. Brown, I'm not sure whether it would be you or the RCMP who would respond to that.
Malcolm Brown
View Malcolm Brown Profile
Malcolm Brown
2018-02-13 12:45
Really briefly, in some ways we're trying to clarify where CRCC's lines are and where NSIRA will be in terms of the conduct of national security reviews. I think conduct complaints and those kinds of things are clarified.
Gilles.
Gilles Michaud
View Gilles Michaud Profile
Gilles Michaud
2018-02-13 12:45
From an agency perspective, that is a welcome change, because when it comes to our national security mandate, very rarely do we exercise it in isolation. It's always working with our partners, those who are sitting at the table: CBSA, and so on. As a review is ordered on some of our activities, it is very difficult for a single agency to look at it unless you look across the spectrum of those who are involved.
From our perspective, it is a welcome change.
Timothy McSorley
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Timothy McSorley
2018-02-08 11:07
Thank you. I'm very glad to be able to present today on behalf of the International Civil Liberties Monitoring Group and our 45 member organizations. I'd like to thank OpenMedia for inviting us to join them today.
I'd like to touch on three main points: first, review and oversight; second, some of the changes to the Canadian Security Intelligence Service Act; and third, the no-fly list.
Regarding oversight and review, the ICLMG greatly welcomes the creation of the national security and intelligence review agency, as well as the intelligence commissioner. However, we believe there are important ways in which both bodies could be strengthened. We hope the committee and government take this opportunity to ensure that both the NSIRA and the intelligence commissioner have the powers and resources they need to carry out their important work. Others have given feedback, which we largely support, regarding the intelligence commissioner, so I will focus on the NSIRA.
The ICLMG has long supported an overarching review mechanism as a way to ensure Canadians' rights are not violated, and to monitor the effectiveness of Canada's national security activities. Bill C-59 does away with the silos that have restricted the various review agencies' work, which alone is a major improvement.
I would highlight three issues, though, that we think the committee should examine regarding strengthening the NSIRA. First, to ensure independence we suggest that the NSIRA members be appointed via vote in Parliament and not through Governor in Council. Second, the complaints mechanism in the NSIRA act should apply not just to the RCMP, CSIS, the CSE, and security clearances, but be expanded to include, at a minimum, the national security activities of the CBSA as well as Global Affairs Canada, although ideally the complaints mechanism would actually include all federal national security related activities.
Third, SIRC has faced important criticism over the lack of transparency in its complaints system. There is, in fact, an ongoing lawsuit over this issue. We have also raised concerns about SIRC's inability to make binding recommendations. The NSIRA act would transpose these problems onto the new agency. We urge the committee to take this opportunity to improve on the SIRC model and ensure we have a strong, effective, overarching review body.
Next, regarding changes to the Canadian Security Intelligence Service Act, CSIS's threat-reduction powers were introduced with BillC-51 and were heavily criticized at the time. Bill C-59 attempts to solve some of these issues by restricting the powers to a set list of activities. However, we must reiterate in the strongest possible terms our opposition to granting an intelligence agency, which operates in secret, powers akin to those of law enforcement.
My time does not allow me to go into all our specific concerns, but at the heart of this is that CSIS's creation was meant to separate intelligence activities from law enforcement, and today we continue to have the same concerns we had at that time. Even in cases that require a warrant, we believe that a non-adversarial system will not ensure the protection of a target's civil liberties. We do not believe that this is an issue of “if” the system will violate an individual's rights, but “when”.
We are also concerned about new powers granting CSIS agents immunity for acts or omissions that would otherwise constitute an offence. The Canadian Bar Association, among others, raised serious concerns when these powers were granted to law enforcement officers, calling it antithetical to the rule of law. We believe this even more so when such powers are granted to intelligence agents operating in secret, and we think this section should be removed from Bill C-59.
Finally, regarding the Secure Air Travel Act and the no-fly list, we support the tremendous efforts by the No Fly List Kids and other groups to bring about a redress system. However, we believe the government must go further and address the more fundamental problems with the no-fly list regime. Bill C-59 does not address the due process issues that have been raised since 2007. We cannot condone a system that is used to restrict individuals' travel and to place them on what amounts to a terrorist watch list but does not allow them full access to the information against them, in order to mount a full and adequate defence. We have also yet to be shown that it improves upon Criminal Code provisions already in place that can be used to restrict the activities of an individual suspected of planning a crime. While we appreciate potential solutions put forward by others, such as introducing a special advocate system into the appeals process, we do not believe it is sufficient to restore due process. We maintain our fundamental opposition and call for the repeal of the no-fly list regime.
For more on our positions, we sent a brief to the committee, which I believe was circulated yesterday. I'd also be happy to take any questions, or follow up with any members, following the meeting.
Thank you.
View Matthew Dubé Profile
NDP (QC)
Great. Thank you.
I just want to shift gears a bit and go to the position of the intelligence commissioner. It perhaps seems like a nitpicking thing, but it is important, this notion that it's a part-time position. I'm just wondering what your thoughts are on that, and if you think it should be full time, especially considering that, should this bill be adopted, it's essentially the only form of real-time oversight, versus everything else in this country that's based on review after the fact.
Timothy McSorley
View Timothy McSorley Profile
Timothy McSorley
2018-02-08 11:43
We believe that it should be a full-time position and that, as others have suggested, perhaps a pool could be expanded from being a retired judge to looking at the current judicial pool. Definitely, because of the amount of work that's expected from the intelligence commissioner, we believe that it needs to be a full-time position.
View Matthew Dubé Profile
NDP (QC)
Something that has come up a few times—and the minister has evoked interest in this, but nothing has really come of it yet. Do you both believe that there should be an oversight and complaints mechanism specifically for CBSA, which is currently the only body dealing with national security that doesn't have that kind of thing in place?
Timothy McSorley
View Timothy McSorley Profile
Timothy McSorley
2018-02-08 11:53
We believe there needs to be an independent review body for CBSA. As I mentioned, we believe that CBSA should be added to the complaints mechanism for the NSIRA for its national security activities. That fact that so much of what CBSA does isn't specific to national security, and the fact that it is an evolving and changing definition, means there needs to be a review agency for CBSA on its own.
View Matthew Dubé Profile
NDP (QC)
There's a sense that everything the CBSA does could be considered national security because it involves the flow at the border. Is there any concern that this definition is not tight enough even for the work that existing bodies such as SIRC currently do when they have to follow the breadcrumbs leading to CBSA?
Timothy McSorley
View Timothy McSorley Profile
Timothy McSorley
2018-02-08 11:54
I think because national security can be viewed broadly.... In fact, by including CBSA in the complaints mechanism, it would open up NSIRA to be able to dig into what's happening at the CBSA. In this case they will be able to go further.
However, at the same time, we need clarity on what constitutes national security so that on the other side it can't be shrunk in private to say that national security only means situations where somebody gets flagged on a no-fly list, or something like that, and that everything else, for example, refugees and similar issues, aren't considered.
Michael Nesbitt
View Michael Nesbitt Profile
Michael Nesbitt
2018-02-08 12:06
Thank you so much.
Let me start by thanking you all for this wonderful opportunity and for undertaking the crucial task of reviewing Bill C-59. It is truly indeed an honour and a privilege to be here today and to sit with you.
I have been asked to focus my attention today on part 3 of Bill C-59, the proposed CSE act, and that is what I intend to do. In general, there is no question to me that updating the antiquated authorities governing the CSE and putting the establishment on solid statutory footing is vitally important. As a result, I am strongly in favour of the initiative to craft a CSE act. Indeed, it is obvious to me that the result of this endeavour is a carefully crafted piece of legislation that tries hard to balance the operational needs of CSE to protect Canada's national security interests with Canada's commitment to democracy and the rule of law.
Obviously, given its size and complexity, there will also be much work to do. That simply goes with the territory. In this regard, I have had the distinct benefit of reading the briefs and testimonies of the witnesses that have already presented to this committee. While each guest has offered thoughtful commentary that I encourage you to strongly consider, my overarching sense is that none of us will foresee all the legal or operational challenges to come.
This is the reality of dealing with such a large, important, complex, and highly technical bill. Therefore, more than anything else, it will be vitally important that the current review of the CSE act is thorough and rigorous and that such rigorous review and oversight continues, particularly in the early days and years. This is not an act that should look precisely as it does now, by this summer, or when it is first reviewed, years after coming into force. It will have to be updated to keep pace with technological, operational, and legal developments.
In my mind, the best bet is to focus on robust review and oversight, such that, the issues that do arise in the coming days and years come to the attention of Parliament, to the public, and to the CSE itself, and that there is an opportunity to make the necessary corrections when the time comes.
Neither the law nor Canada's security is well served, if the CSE's legal and/or operational fault lines are kept in the shadows, and it is my sense that the CSE would agree with that sentiment. For this reason, I would start by encouraging you to adopt Professor Kent Roach's recommendation that the review contemplated in part 9 of the act take place sooner, rather than later.
The same goes for the CSE Commissioner's recommendation with regard to the need for the proposed intelligence commissioner to produce an annual report on his or her authorizations, to be tabled in both Houses yearly. Also, there is the need to ensure that any activities that implicate a reasonable expectation of privacy, and thus implicate section 8 of the charter, by necessity, are properly overseen by the intelligence commissioner.
Here, I have three things in mind. First, the CSE Commissioner has recommended that proposed section 37(3) of the CSE act be amended to require the IC approval of ministerial authorizations to extend foreign intelligence operations. Indeed, if the original operation requires IC approval, so too should any follow-up. Arguably, the IC will have more information on which to base a decision at this re-authorization stage. More to the point, it is at this later stage that we will really see whether, and how much, incidental collection of Canadian content is forming a part of the foreign intelligence collection.
This brings me to my second point fairly neatly. I encourage you to focus your legal review of the proposed CSE act on those sections that implicate the collection of incidental information not, as we commonly say, directed at Canadians. In the past, including recently in both the U.S. and Canada, we have seen that lack of oversight over just this sort of incidentally collected information can cause great legal and political controversy that I don't believe anyone is looking for.
In the context of the proposed CSE act, I would then encourage you to adopt Professor Craig Forcese's call to amend subsections 23(3) dealing with the collection of foreign intelligence, and 23(4) dealing with cybersecurity. CSE is made to seek ministerial authorization, and thus IC oversight, where its activities will contravene an act of Parliament, as it currently states, or involve the acquisition of information in which a Canadian or person in Canada has a reasonable expectation of privacy.
Our charter demands oversight where there is a reasonable expectation of privacy. Therefore, it is very hard to see how, without ministerial authorization and IC oversight, the bulk collection of information that implicates the reasonable expectation of privacy, which under the current wording could be permitted, would hold up in any court of law in Canada.
Third and finally, I believe that you have heard testimony that has expressed concern about the collection of publicly available data, without the oversight of the IC. I'd be happy to provide more detail here during the question period. For now, I will simply say that one can certainly be sympathetic to the carve-out for publicly available data. If the public can access it, surely there is no need for the CSE to get approval to do the same, or so the theory might go.
But not all publicly available information is the same, and bulk publicly accessible information in the hands of the state is a very different thing indeed from that information in the hands of an individual like you or me. For example, unlawfully obtained information, hacked passwords for example, can become public but nevertheless will also be thought of as private information—at least in the eyes of those who hold those passwords. Moreover, discrete pieces of public information may seem harmless on their own, but when harnessed together by the state to produce big data analytics that can also be publicly purchased and then collected as one piece of information, the amalgam of public information can offer very private insights into the lives of individuals. Of course, all of this adds to the thinking, which is already present with respect to some publicly available information, that in the right context public information can itself implicate a reasonable expectation of privacy and thus implicate section 7 of the charter once again.
Put another way, just because it was accessed publicly, does not mean it doesn't implicate the privacy protections of our charter. This will, of course, have ripple effects for how that information can be used and shared. With IC oversight, for example, such private “public” information might be shared with the RCMP for prosecutorial purposes. Without IC oversight, information collected in violation of the charter will not likely be able to be used in support of such prosecutions.
In short, unless CSE's collection of public information is brought under the purview of the IC, there is real reason to fear that we have both a security and a liberty concern here.
Thank you very much for your time.
View Glen Motz Profile
CPC (AB)
Thank you.
Professor Nesbitt, in your testimony on the national security review, you suggested that there needed to be better coordination of agencies and organizations.
Is this achieved here in Bill C-59? Do you see the new NSIRA as an ideal group to conduct this centralized information collection and analysis and then to put it together in a bigger picture?
Michael Nesbitt
View Michael Nesbitt Profile
Michael Nesbitt
2018-02-08 12:40
Yes, I'm quite supportive of both the new review bodies and the intelligence commissioner oversight. As I said during my testimony as well, I think this is not just my speaking as a lawyer about the promotion of liberties and rights and laws in Canada, by my speaking as someone who has worked in government and seen the benefit of having outside review to the efficacy of internal operations.
My biggest concern will not be legal but will be with respect to resourcing. If the resources are there—to get into the weeds—specifically to consider the operations of those agencies when certain matters are considered, then I think this could be very beneficial. Again, that will probably come down to—at least as far as I can tell so far—resourcing.
Pierre Blais
View Pierre Blais Profile
Hon. Pierre Blais
2018-02-06 11:01
Thank you very much, Mr. Chair.
Good morning, everybody.
Thank you for the opportunity to appear before you today to discuss Bill C-59. I will focus my presentation on two main areas. The first part will lay out SIRC's high-level response to the bill. In the second, I will offer a few suggestions for improvements to the language of the bill based on SIRC's experience in this area.
This is a positive time to be working in the area of review and accountability for intelligence in Canada. Not long ago, I was here to discuss the creation of a committee of parliamentarians in the context of BillC-22. I'm here again, this time to discuss the government's proposal to create the National Security and Intelligence Review Agency, or NSIRA. I will use this abbreviation. I hate using those acronyms of NSIRA, NSICOP, SIRC, CSARS, etc., but we have to. I will go on with NSIRA, which will be responsible for reviewing intelligence and national security activities across government.
Indeed, as included in the bill before you, NSIRA is to review any activity of CSIS or CSE carried out in any other department or agency that relates to national security or intelligence and any other matter related to national security referred to it by the minister. This will bring a dedicated national security review of the type that SIRC has been doing for more than 30 years to a large number of other departments and agencies, including in particular the CBSA and the RCMP. This will answer the gap that so many, including SIRC, have commented on over the years.
The recently created National Security and Intelligence Committee of Parliamentarians, or NSICOP, has been added to the proposals respecting the new intelligence commissioner. Together the three entities will represent a substantial change in the accountability system for intelligence in Canada.
I will just take a minute to describe for the committee the mandate and responsibilities of the Security Intelligence Review Committee, or SIRC. I will stress that SIRC is an independent external review body that reports to Parliament on CSIS's activities.
SIRC has three core responsibilities: to carry out in-depth reviews of CSIS's activities, to conduct investigations into complaints, and to certify the CSIS director's annual report to the Minister of Public Safety and Emergency Preparedness. In essence, SIRC was created to provide assurance to Parliament, and by extension to Canadians, that CSIS investigates and reports on threats to national security in a manner that respects the law and the rights of Canadians.
SIRC has discharged its mandate faithfully over its history, and it has had an impact. This was demonstrated most recently by the Federal Court of Canada decision of October 2016 that confirmed SIRC's long-standing practice of assessing the lawfulness of CSIS activities, including how CSIS applies the “strictly necessary” threshold to its collection and retention of information, which is one element that is all over the place now. Through its review work, SIRC contributed to high-level discussions on the type of intelligence that CSIS can collect and retain, as we see in the dataset provision of Bill C-59.
But the legislation makes clear that the National Security and Intelligence Review Agency, or NSIRA, is an entirely new entity, to be created—not from SIRC or the Office of the CSE Commissioner—but from a desire to push the accountability agenda forward in Canada. SIRC and the Office of the CSE Commissioner will be dissolved when NSIRA is created.
SIRC, along with its partners and counterparts in the review community, have long called for change of this nature that will break down the silos that have hampered review for so long.
When the decision was made in Canada more than 30 years ago to create SIRC, it represented some of the best, most forward thinking at the time on accountability for intelligence. But this is a new era, with new challenges for accountability. Canada has an opportunity to again fashion itself after the best of thinking on accountability, taking into account the important experience of others.
The parliamentary element of accountability means designing a committee of parliamentarians, which, I imagine, you already know. I am pleased that the government did not stop at the creation of NSICOP and has included equal attention to expert review.
Internationally, we can see our allies similarly adding substance to the review and oversight structures responsible for national security. In the U.K., there is the new Investigatory Powers Commissioner's Office. In New Zealand, there has been a doubling of the size of its inspector-general. In Australia, expanding the size and remit of its inspector-general for intelligence is actively being discussed as we speak.
Canada's deliberations on accountability are happening at a time when there has been a shift in thinking on accountability for intelligence agencies, translating into expectations among the public of greater transparency. To that end, one of the great strengths of the bill is the provision that allows for the agency to issue special reports when it decides that it is in the public interest to report on any matter related to its mandate. The new agency will issue these reports to the appropriate minister, who must then cause them to be tabled before each House of Parliament.
This will allow the new agency to signal a significant issue to the minister and the public in a timely way. SIRC is not currently able to do this, and it has been a limitation for SIRC in its ability to present the results of its work in a timelier manner. In light of the government's recent statements regarding transparency, this is an important provision. At the same time, we note that there are no provisions in the bill requiring CSIS to issue a public report to match the requirement of CSE in this regard. In the interests of transparency, SIRC views this as an important gap that SIRC puts to the committee to consider in its deliberations.
The proposed legislation makes clear that SIRC and its experience will be central to what is coming. The transitional provisions clarify that, at the coming into force of part 1, SIRC members, of whom I am one, are to be continued as NSIRA members for the remainder of their term. In the majority of—
Richard Fadden
View Richard Fadden Profile
Richard Fadden
2018-02-06 11:12
I'm going to take less than 10 minutes. If I could, I'd just like to make five points.
First, if I were a member of the House—and I'm well aware that I'm not—I would have quite happily voted yea at second reading. I think this bill goes a long way toward simultaneously dealing with security issues and concerns as well as charter and legal rights concerns.
I do say “dealing simultaneously”. People talk about balancing the two. I don't think they need to be balanced. Each is so important that they have to be dealt with as stand-alones and then adjusted as necessary.
I think this is the case because the bill endeavours to respond to one central issue that it should address, and that's the level of threat faced by Canada and its allies. Otherwise, there's no reason to make changes. The only reason we have these agencies and their review capacity is that we're facing a variety of threats in the areas of terrorism, espionage, foreign interference, and cyber-activities.
In these areas, I think it's fair to say that our adversaries remain committed to pursuing their activities against Canada and our allies here and elsewhere. It does not take a great deal of effort, I think, to see how a rebalancing of the world's power relationships is adding considerable instability to the world and offering opportunity to our adversaries, states and non-states alike, and I think we're only beginning to get a grip on cyber-threats. I think the additional authorities proposed in the bill, along with the new arrangements for review, reflect this not-so-brave new world.
I only have one specific concern that I wanted to raise concerning the provisions in the bill that relate to the proposed intelligence commissioner. My concern is not really about the security and rights balance, if I can contradict myself; rather, it's a machinery-of-government or accountability issue. The bill proposes to give the commissioner final say about a number of CSEC and CSIS activities, which in my view should be the responsibility of ministers of the crown and not that of an appointed official. Giving a former judge, however eminent, responsibility for the legality of some activities is one thing—and a good thing—but surely “reasonableness” should be the domain of ministers and of the officials for whom they are responsible.
In practical terms, if something goes wrong in the future, and whether this House or the Senate or a royal commission looks at this issue, it seems to me that the veto proposed to be given to an appointed official will make it too easy for the minister of the day to escape accountability. I say again that this is not a security issue, and I raise this issue because as a concerned Canadian I think we should have considerable respect for the fundamental principle of our unwritten constitution, which is that ministers, not appointed officials, are accountable for delicate and sensitive things.
Under the current arrangements being proposed, you will have the agencies, the public safety department, the Department of Justice, the minister, and then an appointed official, who may or may not know anything about national security, determine in the final analysis whether in these variety of activities they can move forward. Having a former judge as a commissioner to determine legality is fair ball. While it's entirely lawful for Parliament to do this, it seems to me that it is fundamentally changing one of the principles underlying our system of government to give such a fundamental veto to an appointed official.
I'm going to stop there. I have a variety of views on some other parts of the bill. Should you have any questions, I'd be happy to try to answer them.
Thank you, Chairman.
Richard Fadden
View Richard Fadden Profile
Richard Fadden
2018-02-06 11:23
Thank you, Mr. Chair.
As I said in my preliminary remarks, I would change the powers granted to the commissioner. I think those powers are more than what is necessary and are too similar to the powers or basic responsibility of a minister. Let me be very clear: Mr. Goodale is not in question here. I am speaking from an institutional standpoint.
I would give CSE the very clear and unambiguous power to assist the provinces. The current wording of the act generally limits what CSE can do to federal government institutions. Everything is connected these days. Failure to give CSE the power to intervene in the provinces and the private sector—something it currently does—sends a somewhat unclear message.
I am not necessarily suggesting a change to the bill. As I said, it is generally speaking a good bill. Having worked at CSIS and been a national security advisor, I am starting to be concerned about what is being asked of the institutions subject to review by Mr. Blais and his colleagues, as well as the Federal Court. Taken together, the new committee of parliamentarians, the new SIRC, the commissioner, and the Federal Court place a significant weight on government institutions.
When I went to CSIS, I was really surprised to see that most applications made to the Federal Court ran to some 150 pages, even the shortest ones. I'm not saying that too much is demanded in any particular case, but rather that this requires a lot of resources. I am not convinced the government provides its institutions with enough resources to conduct the effective review for which Mr. Blais is responsible.
View Pierre Paul-Hus Profile
CPC (QC)
Thank you very much.
Mr. Blais, each of your statements revealed a communication problem that might arise.
Many agencies and sub-agencies must cooperate, such as the National Security and Intelligence Committee of Parliamentarians, the national security review agencies, the intelligence commissioner, and the national security advisor to the Prime Minister. All these groups must intervene in decision-making on measures that must be taken with respect to national security. Since so many people are involved, aren't you afraid that leaks might occur or that information might not be protected? We are so eager to establish protections that we are creating a problem.
Pierre Blais
View Pierre Blais Profile
Hon. Pierre Blais
2018-02-06 11:29
I might look at the problem the other way round. The entity that has been added to the limited group is the committee of parliamentarians. I hope you're not suggesting that it's parliamentarians who present a threat.
This new committee of parliamentarians will take a more direct approach to the facts. CSIS has been around for 30 years, and I believe in all modesty that our experience has shown that we haven't been in the news for the wrong reasons. We have managed to maintain confidentiality.
Confidentiality is still a very important factor, but trust is as well. We need to establish that trust and a sense of responsibility among the organizations not here contemplated.
Consider this example. The Department of Finance is not used to seeing someone come in to determine whether something isn't right from a national security standpoint. If that department, or the Department of Agriculture and Agri-food or Transport or any other federal government entity, is concerned by a national security issue, it should be glad that independent organizations are verifying whether its work is being done right and that it isn't making any mistakes in its national-security-related actions.
You must have noticed that Canadians would like to know more about what is going on. They also want to be certain the law is obeyed. I think Bill  C-59 meets that demand.
View Matthew Dubé Profile
NDP (QC)
Thank you, Mr. Chair.
Ladies and gentlemen, thank you for being here.
Mr. Blais, I would like to ask you a question about the presence, or rather absence, of various review mechanisms for the Canada Border Services Agency. Several witnesses have said it would be important to have some kind of committee or organization that would review that agency's activities, considering that it plays an increasingly important national security role.
Do you agree with that view?
Pierre Blais
View Pierre Blais Profile
Hon. Pierre Blais
2018-02-06 11:31
The minister also raised that point. Correct me if you think I'm wrong, but I believe Minister Goodale, the Minister of Public Safety and Emergency Preparedness, previously stated clearly that he wanted an organization to review the activities of the Canada Border Services Agency. The only question we consider will be the activities of the National Security Agency. I think that meets a need.
Previously, when we researched a national security issue at CSIS, the secret services, and we needed to go and see the Canada Border Services Agency, we couldn't do it. Now we're allowed.
You can confirm this with the minister, but I think he has already committed to creating an organization that will oversee the Canada Border Services Agency for all matters not pertaining to a national security issue.
View Matthew Dubé Profile
NDP (QC)
I agree.
In the circumstances, should we follow the indicators? You usually conduct a review because you believe that information could have been shared with CSIS, for example. That is why you are reviewing the actions the agency has taken. Is that an appropriate conclusion?
Pierre Blais
View Pierre Blais Profile
Hon. Pierre Blais
2018-02-06 11:33
I find it hard to answer your question because that's a hypothetical situation.
If someone shows up at the border who, according to the agency of another country, presents a threat, an alarm is sounded somewhere. Border Services generally then communicates with the secret services or the RCMP to check and see whether the individual should be arrested, investigated, and so on. Measures are taken, but the law must be complied with. We can't just detain anyone at any time. Border Services will therefore take action.
Our role is not to intervene at that point. However, once measures have been taken, we will determine whether the act has been complied with. The departments currently have mechanisms designed to help them report national security threats. It is up to the organization to make that determination. Then we can figure out whether the organization was right or wrong. First and foremost, though, I think it is for the organization to determine.
Pierre Blais
View Pierre Blais Profile
Hon. Pierre Blais
2018-02-06 11:34
Some agencies are more likely than others to experience situations involving national security. The risks are greater given the number of people who arrive at the border every day.
View Matthew Dubé Profile
NDP (QC)
I understand. I also think our discussion clearly shows how difficult it is to determine when that's important and when it is not.
Now I would like to talk about Global Affairs Canada, which is exempted from review by the new committee that has been established. Isn't that a problem considering the role that–
Pierre Blais
View Pierre Blais Profile
Hon. Pierre Blais
2018-02-06 11:35
Global Affairs Canada is dealing with certain issues, but I'm not familiar with them.
Global Affairs Canada's will have to get involved when risks arise that directly concern national security, and it will have to report to the review agencies. Global Affairs Canada has been part of the system for more than 30 years. It maintains very close relations with the secret services. However, I can't go into the details.
View Matthew Dubé Profile
NDP (QC)
I understand because that includes consular affairs.
Do you think that what is proposed in the bill is enough to fill the gap that has been shown to exist on numerous occasions, particularly in cases such as that of Mr. Arar?
Pierre Blais
View Pierre Blais Profile
Hon. Pierre Blais
2018-02-06 11:36
That's a special case.
I think that the bill, as drafted, covers all the angles for Global Affairs Canada and all the other organizations. As far as I'm concerned, I don't really see any risk. The work done by Global Affairs Canada and the other agencies should be reviewed on a case-by-case basis.
I worked in this field for many years and have dealt with this kind of case, as you may suspect, and I have no fears in that regard.
View Julie Dabrusin Profile
Lib. (ON)
Thank you to all of you for coming to talk with us today.
One of the issues that I'm particularly interested in when I look at all of this is the question of oversight and accountability in the bill and how that's been arranged.
We've heard a number of people come to talk about—and I know we said we were going to try to avoid acronyms—NSIRA, and how that's great because it gets past all the silos that we've had in the past, which have been a problem. Last week we had a witness from the Canadian Bar Association. He presented an interesting quandary about whether it is too broad now.
Is the way “national security” is defined for the NSIRA review too broad? Given your own experience and the transitional role that gets played, how do you see that? Do you see any concerns about the definition of “national security” for the NSIRA review?
Pierre Blais
View Pierre Blais Profile
Hon. Pierre Blais
2018-02-06 11:38
Before, we had only two or three organizations to review national security. Now we have 19 altogether, and you're saying maybe that's too many. I don't think so.
NSIRA will be created. It will be new when the bill is adopted. We will see, case by case. I would say that when we start as NSIRA, we will probably not have a dozen investigations in finance or transport or whatever. We're going to go where the real threat is. This is where we will look into the situation.
We were complaining that we should have access to other departments and institutions that have national security matters, but we could not have that access. Now we have. That doesn't mean we will spend all of our time there.
Usually we make a plan when we start the year. We sit down with the organization, with CSIS, or with.... Mr. Fadden knows that. We don't arrive in the morning, knocking on the door and saying, “Look, we want to see this and that.” We don't do that. We cannot do that. We cannot intervene in their operations. We prepare a plan. We say we'll look into this and this, and we report on it to the minister and to Parliament. This is what we do. It will not change. We will have more flexibility to extend and to look into areas that we were not able to look into. It will be better for Canadians, I would say, because the accountability will be better.
View Julie Dabrusin Profile
Lib. (ON)
The breadth isn't a concern for you in the definition of “national security” in the statute for NSIRA?
Pierre Blais
View Pierre Blais Profile
Hon. Pierre Blais
2018-02-06 11:41
No, not really. It will be case by case. We will see how it works.
View Sven Spengemann Profile
Lib. (ON)
Thank you very much, Mr. Chair.
Mr. Fadden, I have a quick follow-up question on your comments and your recommendation regarding the intelligence commissioner. Is it your view that decisions of the intelligence commissioner would be subject to a judicial review?
Richard Fadden
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Richard Fadden
2018-02-06 11:52
I don't have an answer to that, and I think if the answer is yes, then I'm even more frightened by what the range of his authorities could be.
Technically speaking, from what I remember of the Federal Courts Act, I think the short answer would be yes, and if that's the case, I think one of the things that the bill misses a little bit, although there are provisions for exigent circumstances, is that this intelligence commissioner in some circumstances is going to have to be alert and readily accessible, even though he or she will be holding a part-time position.
Therefore, I worry that there's a little bit lost about the world of national security, which requires rapid movement.
View Sven Spengemann Profile
Lib. (ON)
That's very helpful. Thank you for that.
Mr. Blais, you spoke about the importance of transparency and public trust. In your written submissions, you've also addressed the work that we do very closely with our allies, especially our Five Eyes allies. How important will relationships with our allies be, not only in actually doing the security work, but also in reviewing the security work? Do you anticipate that NSIRA is going to be in close contact with its counterparts in other jurisdictions?
Pierre Blais
View Pierre Blais Profile
Hon. Pierre Blais
2018-02-06 11:54
As you know, we have already been in contact for decades with our five particular allies, the Five Eyes. As you may remember, we welcomed those partners earlier, in late September. They came over here. We have regular meetings with them to adapt our approach and to be more efficient.
Obviously, the organizations that we're looking at are also having meetings and are remaining in touch with their allies as well, the Five Eyes and others. It remains important.
We have already discussed what was going on here in Canada. We met with the British, the Americans, all of them, and we go on with that. Obviously, the way we are developing our approach, particularly with almost 20 organizations, is a little new in the area, and we will probably share our views on that. For the time being, we're not yet there, because NSIRA will probably be in place later this year at best.
Faisal Mirza
View Faisal Mirza Profile
Faisal Mirza
2018-02-06 12:07
Thank you. Good afternoon, Mr. Chair and members of the committee. On behalf of the Canadian Muslim Lawyers Association, thank you for the invitation to provide submissions about Bill C-59.
I will start with our background. This year will be our 20th anniversary. We are based in Toronto, with approximately 200 members across Canada who work in all areas of the legal field, including private practice and government.
In terms of advocacy, we have consistently appeared at the Supreme Court of Canada dealing with balancing individual rights with state interests. We also assist the legal community and the general public with legal education.
Our underlying goal is to promote a justice system that is fair. Since 2001, we have had the privilege of providing testimony to parliamentary and senate committees responsible for considering national security policy and law. 
In terms of my background, I am a criminal defence lawyer with 16 years of experience mitigating cases at all levels of court. I have acted as counsel on several national security cases. I am also an instructor on national security at the University of Toronto. Today I am speaking to you in my role as the chair of the Canadian Muslim Lawyers Association.
In terms of my contribution, I wish to discuss two fundamental areas.
The first is the positive. We see the national security intelligence review agency as having great potential, especially if it's staffed properly.
Second, I will raise our sources of concern. In particular, this bill does not address a key area of security, the legal threshold for searches of digital devices at the border. Further, there are real concerns about a lack of fairness and charter compliance regarding listed entities, which are noted at part 7 of the bill.
I'll deal first with the national security intelligence review agency. This is at part 1. For simplicity, I'll refer to it as NSIRA. This institution has the potential to be a strong pillar of our democracy by providing robust review of national security agencies and their related partners. With more powers being granted to intelligence agencies to deal with evolving threats, this agency reflects the greater need for effective review and oversight. It certainly has a broad mandate, which we think is positive, including to review the activities of CSIS, the CSE, and the RCMP; to investigate complaints against those services; to direct studies and to prepare annual reports; and to report to the Minister of Public Safety.
This strong mandate is a reflection of the expanding powers that are being provided to different agencies in order to effectively conduct national security operations. Clearly there is more power to collect data, more power to share information, more power to conduct surveillance, greater protection of informants, and more powers to engage in preventive measures.
All of this is primarily done either ex parte or behind closed doors. As a result, it is critical to have a very strong review agency to try to prevent mistakes before they happen.
Therefore, how do we ensure that a robust review agency is able to address its role in a fair manner? This government has indicated that it is committed to representative institution, and NSIRA will handle the review of security activities and investigate complaints. It is our submission to this committee that for it to be effective, it is essential that it be composed of a diverse group of persons. It should not fall into the trappings of ineffective oversight bodies that are staffed by people who lack independence and impartiality.
In the 2006 response to the Arar tragedy, recommendations 19 and 20 specifically advised that the RCMP, CBSA, and CSIS improve composition and training of their staff to prevent mistakes based on racial and religious profiling. The same logic must apply to NSIRA. Our concerns are that, as evidenced by the recent lawsuit brought by several CSIS employees alleging that some CSIS managers discriminate and stereotype against Muslims, there is little accountability when this misconduct is reported, and as a result, there needs to be stronger training, better oversight, and diverse composition.
In addition to NSIRA's members, which are statutorily governed to be no fewer than three persons and no more than six persons, there will obviously be a significant staff that's going to assist with investigations and provide assistance to those members. There will be an executive director, who will assist with staffing the agency.
It is our view that individuals in those qualified high-level positions must be aware of the community's perspective. The nature of the information to be drawn and the review of decisions would benefit from having a diversity of perspective.
Our friends in law enforcement have confirmed that working with the Muslim community is key to identifying threats and solving major cases. There are numerous instances where that has happened, but there are also instances of things going wrong and members of the community being mistreated by those very same agencies. For NSIRA to have legitimacy, it must recognize that perspective.
It would be helpful if there were some statutory guidance with respect to the required qualifications and composition of the agency members and from where people are going to be drawn in order to staff it. For instance, having one from the judiciary, one person from academia, and one person from the community with knowledge of these issues would be an important addition to the legislation.
Moving ahead, my concern about what's missing from Bill C-59 is that there needs to be some statutory guidance on when the CBSA may search digital devices at the border. We can debate and go over at length the fact that the bill has made progress with respect to balancing individual rights with state interests, but the reality on the ground is all of that can be circumvented by searches of individuals' digital devices at the border. The Customs Act needs to be revisited and reviewed. It is legislation from the 1980s, when digital devices were not the norm, and it contemplated searches of people's luggage.
The use of data collection is the future of national security and the devices that people carry with them obviously are integral in terms of preserving a balance between individual interests and state interests and in protecting our security. In today's era, most people travel. Returning Canadians can easily have their digital devices searched without restriction. A better legal threshold that reflects the nature of the technology needs to be established. Currently it's the position of customs and the government that there is no legal threshold to search individuals' cellphones, laptops, etc., when returning at the border. Even with a reduced expectation of privacy in that context, it becomes critical that there at least be some legal threshold; otherwise, the provisions in the Criminal Code or amendments to the Immigration and Refugee Protection Act or amendments to try to protect information sharing become easily circumvented when individuals are coming back through the border with no protections whatsoever.
The last point I'll touch on very briefly is with respect to part 7 of the bill, regarding listed entities. There is a fundamental omission in the Criminal Code legislation that needs to be addressed and fixed.
Listed entities, as you are aware, are currently listed by process of an administrative regime whereby the Minister of Public Safety and Emergency Preparedness, based on a balance of probabilities, determines whether an entity should be listed or not.
The difficulty is that organizations whose assets have then been stripped and frozen have no ability to hire counsel in order to engage in submissions with the minister or to engage in the statutory judicial review. In fact, it's our understanding that this omission results in a constitutional violation. There's a section 7 breach tied in with a section 10 breach, in that these entities are not given an opportunity to hire and retain counsel in order to defend themselves. That constitutional frailty could be a significant problem for this legislation in the future.
Thank you for the opportunity. That's my submission at this time, subject to your questions.
Dominique Peschard
View Dominique Peschard Profile
Dominique Peschard
2018-02-06 12:16
I will be giving the presentation on the Ligue's behalf. Both of us will then answer questions.
The Ligue des droits et libertés, the LDL, wishes to thank the members of the Standing Committee on Public Safety and National Security for inviting it to testify regarding Bill  C-59. Since September 11, 2011, the LDL has made regular representations to defend the rights and freedoms established in international instruments and our charters, and to prevent their violation in the "war on terror."
In the fall of 2016, during public consultations and the hearings of this Committee, the LDL called for the complete withdrawal of Bill C-51, which we considered dangerous and unnecessary. The LDL also called for the introduction of an oversight mechanism for national security activities, similar to the recommendations of the Arar Commission. Bill  C-59 addresses these issues only to a certain degree.
First, we welcome the establishment of the National Security and Intelligence Review Agency. However, some conditions must be met before the Agency can fulfil its mandate as watchdog. The size of the task awaiting the Agency should not be underestimated. It should not simply receive public complaints and reports from the organizations it oversees. It should have the authority to initiate investigations itself.
In addition, the Agency must be specifically mandated to verify that organizations are carrying out their national security activities in compliance with the rights and freedoms established in the Constitution. This mandate must also include the review of ministerial directions to ensure compliance with the Charter of Rights and Freedoms. On this point, we would like to note that ministerial directions concerning information sharing must be amended to be consistent with the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
A significant number of organizations are involved in intelligence sharing. The Arar Commission counted 24 in 2005. The oversight mechanism will have a considerable task, and it will be an empty shell if it lacks the material, human and financial resources needed to do its job. We would also like to note that provisions in C-59 concerning the Agency's public accountability do not go far enough, and an annual report is insufficient. The minister as well as the public and Parliament should be informed when the Agency discovers practices that are non-compliant with the Charter.
The fact that the Agency's recommendations are non-binding is also a concern. If the recommendations remain non-binding, the organizations concerned should be required to report publicly on the steps they have taken to implement the recommendations.
Lastly, the Agency should have the authority and resources to work with similar organizations from other countries. National security and intelligence organizations cooperate internationally, and the agencies that monitor them should be able to do likewise.
The next issue is the authority given to the CSE. The CSE can intercept anything in the international information infrastructure, regardless of any federal or foreign law. For example, the CSE can intercept communications from U.S. citizens, and the National Security Agency can do the same regarding Canadian citizens, for the purpose of sharing this information. Bill  C-59 must prohibit Canadian agencies from receiving information on Canadians from other agencies that they would not have been able to obtain under Canadian law.
While Bill  C-59 provides better guidance for the more worrisome provisions of C-51, some fundamental problems remain. The repeal of judicial investigations is a positive move. However, an individual could still be placed in preventive detention for seven days without being charged, even though C-59 raised the threshold for this detention. We urge that this measure and any previous provisions concerning this measure be removed.
There is major concern over the powers given to CSIS, as set out in Bill C-51 and amended by C-59. It is unacceptable for CSIS to be authorized to compile datasets on Canadians. There are no limits on the data that CSIS can compile, provided that the data is considered "public." Judges may approve the compilation of other datasets based on a very weak threshold. The only requirement is that the data "is likely to assist" CSIS.
These provisions make it legal for CSIS to continue to spy and compile dossiers on protest groups, environmental protection groups, Indigenous groups and any other organization that is simply exercising its democratic rights. CSIS can count on the support of the CSE, which is also authorized to collect, use, analyze, retain, and disclose publicly available information, and whose mandate includes providing technical and operational assistance to agencies responsible for law enforcement and security. These datasets also pave the way for big data and data mining, which in turn leads to the compilation of lists of individuals based on their risk profile. We are opposed to this approach to security, which places thousands of innocent people on suspect lists and targets Muslims disproportionately.
Bill  C-59 allows CSIS to continue to address threats through take active measures such as disruption. These measures can limit a right or freedom guaranteed under the Canadian Charter of Rights and Freedoms if so authorized by a judge. It is important to note that this judicial authorization is granted in secret and ex parte, so that the persons whose rights are being attacked cannot appear before the judge to plead their "innocence" or argue that the measures are unreasonable. They may also be unaware that CSIS is behind their problems, which would make it impossible for them to lodge a complaint after the fact. These powers recall the abuses uncovered by the Macdonald Commission, such as the RCMP stealing the list of PQ members, burning down a barn, and issuing fake FLQ news releases to fight the separatist threat. We are therefore strongly opposed to granting these powers to CSIS.
We are extremely disappointed to see that the Secure Air Travel Act preserves the no-fly list. Persons are not told why their names have been placed on the list and, if they appeal, the judge hears the case ex parte based on evidence that the individuals cannot challenge and that may even be inadmissible in a court of law.
The Human Rights Committee condemned this lack of effective recourse in its 2015 comments to Canada. It has never been proven that this list increases the safety of air travel, making the situation even more unacceptable. England, France, and other countries that are targeted by terrorists far more than Canada have no such lists, and the safety of their aircraft is not affected. We ask that the Secure Air Travel Act be repealed and any no-fly list be destroyed.
The Security of Canada Information Sharing Act allows 17 government agencies to share among themselves information that is in the possession of the Canadian government. While C-59 amends the preamble to the Act to state that information must be disclosed in a manner that respects privacy, the Act's provisions contradict this very principle. As the Privacy Commissioner told the Committee on December 7, 2017, the Act does not comply with privacy requirements. The threshold for disclosing and receiving information must be strict necessity. We also support the Commissioner's request regarding the role he should play in enforcing this Act.
In conclusion, we would like to submit the following list of recommendations regarding Bill  C-59. While some of the bill's provisions are beneficial, a number of other provisions should be amended or deleted to truly protect Canadians' rights and freedoms.
Our recommendations are as follows: that the National Security and Intelligence Review Agency have the material, human and financial resources needed to carry out its mandate; that the National Security and Intelligence Review Agency be mandated to ensure that national security organizations carry out their activities in a manner consistent with the rights and freedoms established in our constitution; that the Agency report publicly on any rights violations that it has found and on its recommendations; that the organizations concerned be required to report publicly on the way in which they have carried out the Agency's recommendations; that, in the course of its mandate, the Agency be authorized to share information with equivalent agencies in other countries; that Canadian organizations not be allowed to obtain information on Canadians from other international organizations that they would not have been able to obtain themselves under Canadian law; that Bill  C-59 repeal section 83.3(4) of the Criminal Code authorizing individuals to be placed in preventive detention for seven days without being charged; that "strict necessity" be the threshold for disclosing and receiving information under the Security of Canada Information Sharing Act; that the Office of the Privacy Commissioner of Canada be mandated to ensure that Canadians' privacy is respected under the Security of Canada Information Sharing Act; that CSlS be stripped of the power to address threats through active measures such as disruption; that the Secure Air Travel Act be repealed and any no-fly list be destroyed.
Thank you.
View Matthew Dubé Profile
NDP (QC)
That's perfect. Thank you.
I would like to discuss the new commissioner position. Part 3 contains a section that concerns the possibility that the minister may renew authorizations of work done by the CSE without obtaining the commissioner's authorization. Do you think this is a problem?
Dominique Peschard
View Dominique Peschard Profile
Dominique Peschard
2018-02-06 12:43
It would be desirable for the commissioner to review that because the conditions prevailing at the time he provided his initial authorization may no longer be applicable.
I have to say we aren't convinced about the commissioner's role. I would say the commissioner position gives the impression that there will be a kind of quasi-judicial review of the minister's decisions to determine whether they are consistent with the charter. That's what's understood. It's a kind of security, but it must be understood that the information the commissioner receives to validate or not validate an authorization depends entirely on what the intelligence services provide to the commissioner for the purpose of establishing an assessment of the situation that warrants the authorization.
The minister issues the authorization, and there is an enormous amount of pressure on the commissioner to approve it since no one wants to be held responsible for having denied something that might result in a subsequent security breach. There is no counterparty to advise the commissioner to oppose the file submitted by the intelligence services.
Our great fear is that the commissioner may play somewhat the same role as the United States Foreign Intelligence Surveillance Court, which is widely known to grant authorize authorizations almost automatically.
We are not opposed to this commissioner position, but it must provide adequate protection from rights abuses. We feel that remains to be proven.
View Matthew Dubé Profile
NDP (QC)
Thank you.
Your answer raises two questions. First, the post created is described as a part-time position. Considering the workload and all the complexities you have just cited, is that appropriate, or should it be a full-time position? I think it is entirely possible that a retired judge could occupy the position on a full-time basis.
Dominique Peschard
View Dominique Peschard Profile
Dominique Peschard
2018-02-06 12:45
We did not review that specifically, but the fact that it is a part-time position definitely left us somewhat perplexed, given the extent of the work involved. In view of the fact that the commissioner must seriously review the authorizations and various proposals submitted to him or her, we feel it would be reasonable for that person to occupy the position on a full-time basis.
View Matthew Dubé Profile
NDP (QC)
I have a final question on the subject. You may find it hard to answer in what little time we have left because it is fairly broad question.
You discussed automatic authorizations and said that might be difficult for the commissioner. It must also be acknowledged that there is no real-time oversight in this instance. What we can acknowledge as positive is that the commissioner position contemplated would approach that.
If this is not the perfect model, do you have any suggestions or recommendations regarding what we might explore in future to establish an entity that conducts real-time oversight, which is not currently the case in Canada?
Dominique Peschard
View Dominique Peschard Profile
Dominique Peschard
2018-02-06 12:47
Our hope is that the National Security and Intelligence Review Agency can verify that the agencies respect Canadians' rights in the course of their work. That is why we think the agency must first have the necessary resources, as Mr. Mirza previously mentioned. Second, the agency must also be seen and act somewhat as the Privacy Commissioner of Canada does with respect to privacy. In other words, the agency must be clearly seen as an independent organization that also has expertise and whose mandate is to be accountable to the public.
We think that what's wrong about Bill  C-59 is that, under it, the agency would report much more to the department and the government than to the people on the way the agencies conduct their business. Bill  C-59 could be amended to make the agency operate more as a watchdog reports to the public on the way the agencies respect rights in carrying out their mandates.
View Julie Dabrusin Profile
Lib. (ON)
All right. Thank you. That was very helpful.
I just want to make sure I have it clear, because I'm trying to look for some concrete things that I can apply when we're looking at this legislation.
In taking into account, for example, NSIRA composition, there have been all sorts of suggestions and recommendations made by others as to how that should look. You said we should ensure there's a proper diversity, a philosophical diversity, and that it should be part of the lens that's approached.
If I were going to give any other concrete solution that I might try to put in here, do you have anything else you would like to see us do, specifically?
Faisal Mirza
View Faisal Mirza Profile
Faisal Mirza
2018-02-06 12:53
Yes. I'd like to see it legislated that.... NSIRA will have a minimum of three of what we'll call the highest-level officials, and up to six, and they're renewable for a five-year term. I'd like to see some understanding as to how that's going to be composed so that it doesn't fall into the same scenarios that you see in other ineffective oversight bodies, a lack of independence and lack of impartiality.
Pick one person from the judiciary and pick one person from academia who has an understanding of the sociological issues and has expertise in those fields. Also, pick somebody who is in touch with the community, subject, of course, to the security clearances, etc., that they have to go through. I think it's important that you turn your mind to that, whether it's by codifying it or by at least providing a strong policy directive.
Peter Edelmann
View Peter Edelmann Profile
Peter Edelmann
2018-02-01 12:05
Thank you very much for inviting me to appear before you today.
Bill  C-59 proposes complex and major updates to national security law. It would address several decisions of the Federal Court of Canada, and widespread concerns expressed about Bill C-51 in 2015.
The Canadian Bar Association generally supports the goals and structure of Bill  C-59 as a positive change, modernizing the legal framework for Canada’s national security infrastructure and increasing transparency, oversight and review, features that have previously been lacking. Our comments and analysis of the proposals in Bill  C-59 are offered in hopes of further improving the bill.
Our written submissions provide a number of specific recommendations and I would refer you to those for the more technical amendments we propose. I will use my time today to focus on two or three areas of broader concern.
First of all, we support the creation of the national security and intelligence review agency, the NSIRA. I just have a couple of comments with respect to it but in particular with respect to the mandate. While we commend the decision to avoid language that would unnecessarily restrict the agency's mandate, an overly broad mandate could hinder the agency's ability to focus and assess its performance against its mandate.
In the way that it's drafted now, the NSIRA has responsibility for broad review of any activity of “a department that relates to national security or intelligence”. “Intelligence” is a very broad term. It could include things that are done by anything from the Canada Revenue Agency to Fisheries and Oceans, police departments, etc.
“National security” is also problematic given the multiple definitions that we see in different pieces of legislation. In particular, we remain concerned about the SCISA, the Security of Canada Information Sharing Act, or with the amendments that we have today. The breadth of the definition of an “activity that undermines the security of Canada” in section 2 is still very broad and notably it's different from the definition in the CSIS Act of “threats to the security of Canada”. Having two definitions is not helpful. It's confusing and it doesn't provide a clear mandate for national security agencies and in particular for an oversight or review agency.
I would also note in passing that the amendment to the exception in section 2(2) of the SCISA is troubling as it actually substantially reduces the protection under the current version. Several legitimate political activities might be seen on their face as undermining the sovereignty or territorial integrity of Canada.
In the past, we've recommended that there be one coherent, clear definition of “national security” and we continue to be of that view. It's also unclear whether certain other activities fall under the definition of “national security” at all. For example, the Secure Air Travel Act, SATA, does not refer to national security and it's unclear whether the review of SATA activities would fall under the NSIRA or not. In other words, is this national security legislation? Does it fall under NSIRA?
The coordination of the work of the NSIRA with other review agencies is obviously key although we would note that there remain significant gaps in the review framework. The problem is particularly stark with the Canada Border Services Agency, and we've expressed concerns about this lack of independent review of the CBSA in several past submissions.
CBSA remains one of the largest law enforcement agencies in the country and has no independent oversight or review at all. This is not a role that NSIRA should take on although it does highlight the problem of having a vague definition of “national security” because arguably everything that Canada Border Services Agency does could fall into a broad understanding of national security in a vague sense.
Everyday complaints about problems at the border should not be burdening NSIRA and its resources. A specialized review agency is required.
We also have concerns, in particular, with respect to NSIRA's access to information, and in particular that NSIRA would have access to any information other than a cabinet confidence that it deems necessary to conduct its work. This would extend explicitly to information subject to solicitor-client privilege, professional secrecy of advocates and notaries, or litigation privilege, creating an open-ended mechanism to review legal advice given to the government. This is of significant concern to the CBA.
The role of solicitor-client privilege is fundamental to the functioning of our justice system and this is as true for government actors as it is for private actors. It has been argued that privileged information must be made available because the practices of security agencies often depend on the legal advice they receive.
However, without assurances of privilege, legal advice will be sought less often, based on less candid disclosure by client agencies, or worse, sought and received but not documented.
The other problem with respect to the disclosure of solicitor-client privileged information is how the NSIRA then deals with it in its reports. It's not helpful for the NSIRA to have solicitor-client privileged information. What they need is information about how this is actually deployed in the agency, not the advice that was given behind those decisions.
Concerning the intelligence commissioner, the CBA supports the creation of an independent specialized office for the oversight and authorization of activities by the CSE and CSIS. We have generally called for judicial oversight, but we recognize the advantages of a dedicated commissioner with staff and resources to allow effective ongoing oversight.
The nature of the review mandated by sections 14 to 21 of the proposed intelligence commissioner act does create some concerns for us because there's a system of nested reasonableness findings. Instead of the normal process in front of a judge for a warrant where a judge would find whether there are reasonable grounds to issue a warrant, what the legislation currently foresees is that the minister would make a finding on reasonable grounds, and then the intelligence commissioner would review that on a reasonableness standard.
This creates two problems from our perspective. First, it's unclear how much deference that implies. There's an extensive debate in the courts right now around the application of the reasonableness standard at all and how that plays out in terms of deference.
There's no need to bring that confusion into this area, and there is not that confusion around the reasonable grounds standard, so there's no reason for this nested reasonableness finding other than creating a level of confusion as to how much oversight is actually being provided, in particular because it's going to be provided behind closed doors. It's important for Canadians to understand what the intelligence commissioner is doing and that it be clear.
With respect to the CSE, the CBA generally supports the more detailed mandate of the CSE, and we support the structure as it's being proposed. There are several elements of the proposed mandates that are in tension with one another, in particular, the offence and defence in cyber-operations.
We would recommend that there be an explicit vulnerabilities equities process as part of the mandate of the CSE, so that the balancing can happen in a transparent way. The U.S. has a process in place that might work as a model, or at least give ideas with respect to that.
With respect to CSIS, we continue to have concerns around the disruption powers. In particular, giving kinetic powers to CSIS comes away from the mandate of creating CSIS in the first place, after the McDonald Commission.
I'll refer you to our written submissions with respect to our concerns around section 12.1(3.2). We continue to have concerns similar to those we've had in the past with respect to these warrants limiting charter rights in that context.
Finally, I would note with respect to the Criminal Code provision of counselling of terrorism offence, in my view, following the jurisprudence of the Supreme Court in Hamilton, the counselling offences in the Criminal Code already cover everything this offence covers. There is no need to further complicate the Criminal Code. It's already too complex. It ought to be simplified, and the counselling offence covers everything you're hoping to cover here.
Thank you very much for your time, and I apologize if I went a little bit over.
Christina Szurlej
View Christina Szurlej Profile
Christina Szurlej
2018-02-01 12:25
Sure.
What I'll focus on instead are my recommendations. They are as follows:
Ensure any limitation of human rights conforms with Canada's national and international obligations. Any encroachment on human rights must be necessary, proportionate, reasonable, and justifiable in a free and democratic society.
The government must ensure any collection of personal data is directly linked to protecting public safety and national security, rather than being tangentially connected to the duties and functions of CSIS or any other agency.
Legislation should be introduced to protect the Canadian populace from third party commodification of personal data through payment or subscription.
The national security and intelligence review agency should be provided with the authority to render binding decisions.
The role of the intelligence commissioner should be elevated from part-time to full-time status to reflect the breadth of the portfolio.
View Julie Dabrusin Profile
Lib. (ON)
I'm happy you were able to get that in.
I've mentioned this before over the past hearings. One of the big issues for people in my community, one of the things that has come up a lot, is ensuring that there is proper oversight across our national security agencies.
I wanted to start with a point that you had raised, Mr. Edelmann. You suggested that in fact NSIRA is overly broad, which is a different perspective from what I've often heard. It seemed to me that the idea of having a broad institution that breaks across the silos was exactly what we were trying to get to. Would that be solved by having a different definition for national security? You had mentioned national security as being part of the problem.
Peter Edelmann
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Peter Edelmann
2018-02-01 12:28
The concern we have with the vagueness of the mandate is how NSIRA is to measure how it is being effective in relation to its mandate, and how it is to deploy its resources. If you have an overly broad definition of intelligence and national security in general, it covers such a broad swath of things that, where there is an actual requirement for oversight, the NSIRA may find itself overwhelmed with complaints about the Canada Border Services Agency, for example, or looking into intelligence activities of the Department of Fisheries and Oceans, or—
View Julie Dabrusin Profile
Lib. (ON)
But how would we cure it? At this point we have legislation in front of us. From your perspective, what would you like to see us do to dig into that problem?
Peter Edelmann
View Peter Edelmann Profile
Peter Edelmann
2018-02-01 12:29
What I would suggest is that there be one clear definition of national security and threats to national security. The definition in the CSIS Act has been used for a long time, and it's only with BillC-51 that we ended up with another definition that created a lack of clarity with the Security of Canada Information Sharing Act. If the information sharing act is going to be that broad, there's no question that there does need to be oversight, and so it may be that the broader definition from the information sharing act is the one that ought to be used with respect to NSIRA.
Our view is that definition is overly broad and vague.
Peter Edelmann
View Peter Edelmann Profile
Peter Edelmann
2018-02-01 12:30
Correct. In terms of looking at the definitions that are there already, we have the definition already in the CSIS Act. With NSIRA there may be some concerns as to whether the CSE's mandate is somewhat broader, and there are some aspects of what the CSE is doing that might be outside of that. There may be some thought that might need to go into exactly what it is that NSIRA is overseeing and where the gaps are with the other oversight agencies.
In terms of what it ought to cover, or what ought to be covered by other agencies, in our submission, most of what CBSA does, for example, should just be covered by another oversight agency.
Shimon Fogel
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Shimon Fogel
2017-12-12 9:52
Thank you, Chair, for the opportunity to present to the members of this committee on behalf of the Centre for Israel and Jewish Affairs, the advocacy agent for the Jewish Federations of Canada.
We are a national, non-partisan, non-profit organization representing more than 150,000 Jewish Canadians affiliated through local federations across the country. We believe in Canada's foundational values of freedom, democracy, and equality, and are committed to working with government, Parliament, and all like-minded groups to ensure that Canada remains a country where we all enjoy equal protections and opportunities.
In March 2015, I appeared as a witness before the Standing Committee on Public Safety and National Security as it studied BillC-51. Our testimony began with a statement of fact, “Jews are consistently targeted by hate and bias-related crimes in Canada at a rate higher than any other identifiable group.” Those words are, unfortunately, as true today as they were then.
Statistics Canada recently released its report on 2016 hate crimes, and once again Jews were targeted more than any other religious minority, with 221 incidents. We must, however, keep this in perspective. Canada is a very safe place for identifiable groups and one of the greatest places in the world in which to live as a minority. However, we must also remain vigilant. A single hate crime is one too many.
Whether considering the attack on a synagogue in Jerusalem, a gay nightclub in Orlando, an African American church in Charleston, or a mosque in Quebec City, extreme hate continues to precipitate extreme violence. Jews are often primary targets for terrorist attacks throughout the world: Belgium, Argentina, France, India, Bulgaria, Israel, Denmark, the United States. Understandably, Jewish Canadians are not just concerned about what threats might meet them abroad, but what could happen here at home.
Public Safety Canada's “2016 Public Report on the Terrorist Threat to Canada” notes that Hezbollah, the listed terrorist entity widely believed to have carried out the bombing of a Jewish community centre in Buenos Aires, has networks operating here in Canada. The notorious 2004 firebombing of a Jewish school in Montreal still looms large in our collective memory.
Our community, therefore, takes a keen interest in the government's approach to counterterrorism. We appreciate the opportunity we were afforded to engage in the consultations on Canada's national security framework, both before this committee and with the Department of Public Safety and Emergency Preparedness. I hope that our recommendations will prove helpful and constructive for the committee.
We'll speak on the expanded oversight for CSIS, but before going there let me just address a couple of considerations with respect to advocacy or promotion of terrorism offences in general.
In the context of the former BillC-51, CIJA was supportive of measures to empower security officials to criminalize the advocacy and promotion of terrorism and seize terrorist propaganda. CIJA supported these measures as a means of denying those intent on inspiring, radicalizing, or recruiting Canadians to commit acts of terror the legal leeway to be clever but dangerous with their words.
Bill C-59 seeks to change the law's articulation of this offence from “advocating or promoting” to “counselling” a terrorism offence. This doesn't necessarily undermine the intended function of the provision. Justice Canada's background information on the advocacy and promotion offence states, “The offence is modelled on existing offences of counselling and the relevant jurisprudence. It extended the concept of counselling to cases where no specific terrorism offence is being counselled, but it is evident nonetheless that terrorism offences are being counselled.”
The same intended outcome seems to be achieved in Bill C-59, which adds the caveat that the counselling offence “may be committed...whether or not...the person counsels the commission of a specific terrorism offence.” If, as Minister Goodale indicated in his recent testimony before this committee, this change empowers authorities to enforce the law with greater impact, it would seem a reasonable shift. However, we believe there is an oversight in the proposed new language that could narrow the scope of the provision, weakening it substantially.
The existing offence applies to “Every person who, by communicating statements, knowingly advocates or promotes the commission of terrorism offences in general”. Swapping out the advocacy and promotion language, this should become something like “Every person who counsels the commission of a terrorism offence”, but it doesn't. Instead, Bill C-59 reads, “Every person who counsels another person to commit a terrorism offence”. With this wording, it appears that the offence could apply only to a specific individual counselling another specific individual.
When it comes to the offence of instructing a terrorist activity, the Criminal Code is explicit. The offence is committed whether or not the accused instructs a particular person to carry out the activity or even knows the identity of the person instructed to carry out the activity. The same standard should apply to the counselling offence. The change of “advocacy and promotion” to “counselling” also impacts on the definition of terrorism propaganda.
Bill C-59 would remove “advocacy and promotion of terrorism offences in general” from the definition, consistent with the change proposed for the counselling offence I've just discussed. However, the all-important caveat that a specific terrorism offence need not be counselled, which is included in the new counselling offence, is lacking here. This should be adjusted for the sake of consistency.
I'll turn to expanded oversight for CSIS.
In our testimony on BillC-51, CIJA supported the expansion of CSIS's role and responsibilities to include disruption of potential terrorist attacks. While we believed the new mandate was justified, we maintained that enhanced oversight was required to prevent abuse. Just as Canadians stand to benefit from a more robust approach to counterterrorism that emphasizes prevention, we argued that a concurrent increase in the review of CSIS's activities would be beneficial.
Measures to enhance SIRC's ability to provide adequate review are long overdue and are all the more imperative with CSIS's expanded mandate. We supported the refinements to CSIS's expanded mandate that Bill C-59 would put in place and the establishment of a national security and intelligence review agency. Both should help to ensure greater balance in protecting the security and civil rights of Canadians.
In the context of BillC-51, we proposed several concrete reforms to enhance oversight and accountability for CSIS. The new oversight agency will fulfill our first and perhaps most important recommendation's objective of enabling a review of security and intelligence activities across all government agencies and departments. However, we believe the following three recommendations regarding the structure and composition of the new agency would help ensure it is set up to be as impactful as possible.
First, the chair of the new agency should be someone with experience in intelligence and national security, and should occupy the position on a full-time basis to ensure consistent, professional leadership.
Unfortunately, Bill C-59 states, “The Chair and Vice-chair may be designated to hold office on a full-time or part-time basis”. The bill also states, “Every member of the Review Agency who is not designated as the Chair or Vice-chair holds office on a part-time basis”.
We suggest this be changed to provide the option of other members being brought on full time without requiring a legislative amendment. Given that the workload of the new agency is likely to be significantly greater than that of SIRC, this could conceivably require full-time engagement from all members.
Second, we recommend that the chair of the new agency be designated an officer of Parliament required to provide regular reports directly to Parliament. This mirrors the recommendation we made in the context of BillC-51 with regard to the chair of SIRC.
The requirement enshrined in Bill C-59 that public reports from the new agency be tabled in Parliament is beneficial, but this reporting is still mediated through the Prime Minister and other ministers. Designating the chair of SIRC an officer of Parliament with a mandate for regular reporting directly to Parliament would send a clear signal that the work of the new agency is independent from the government of the day.
Third, we believe Parliament should have a greater voice in the appointment of members of the new agency.
We welcome the consultation provisions included in Bill C-59 but believe the appointments should also be subject to approval by resolution of the Senate and the House of Commons. This small addition, which is already standard practice in the appointment of officers of Parliament, would further enhance the credibility of the appointments process.
Although this may be more appropriate for your colleagues at the finance committee, it's also important to stress that the national security and intelligence review agency will require the allocation of significant resources, both professional and financial, if it is to be given a chance to succeed in fulfilling its important mandate.
CIJA's testimony in 2015 concluded with a plea for committee members to support a private member's bill that sought to extend hate crime penalties beyond houses of worship to schools and community centres. That initiative failed but was revived in this Parliament in BillC-305, which passed third reading in the Senate in October.
I am pleased to conclude my remarks today, Mr. Chair, with sincere thanks to each of you for coming together in unanimous support for BillC-305, a clear example of how elected officials can work together and make a practical difference to protect Canadians.
I hope committee members will consider my remarks today in that same constructive spirit, and I'm grateful for the opportunity to join with you.
Thank you.
Kent Roach
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Kent Roach
2017-12-12 10:03
Thank you very much for inviting me to appear before the committee.
My colleague Craig Forcese has already addressed you and has focused on parts 2, 3, and 4 of the bill. I will focus on the other parts of Bill C-59.
Part 1 providing for a government-wide super-SIRC has been widely praised. In my view, it implements the important principle, if not the precise details, that animated the Arar commission's report; namely, that review should expand with the state's national security activities and that review strengthens rather than weakens security.
Improvements can still be made. I recommend that the new and very much welcome super-SIRC be somewhat supersized. In my view, it should contain a minimum of five members and up to eight members. Amnesty International has endorsed this recommendation, and you've heard some very interesting proposals about strengthening the new super-SIRC both from Professor Wark and Mr. Fogel.
We should think about having more diversity in appointments and not simply focusing on the consultation with leaders of political parties, which is very much a holdover from the original 1984 Cold War era CSIS Act. We could also include people with expertise in privacy, as you heard from the Privacy Commissioner. I think it is also important that there be representation where possible from communities that may be disproportionately affected by national security activities.
The mandate of the new review agency needs to be better defined. On my reading, the reference to “department” or “corporation”, which is incorporated in the new act, does not include the RCMP. This should be very clearly spelled out. It should be clear that the new committee can review the national security activities of the RCMP, hear complaints about the national security activities of the RCMP, and have full access to classified information that the RCMP has on the same basis that it will have access to classified information that CSIS, CSE, and other agencies involved in national security have.
Moving to part 5, I remain of the view that the SCISA part of Bill C-59 remains the weakest part of the bill. I would advocate that the definition of threats to national security in section 2 of the CSIS Act be the default trigger for information sharing, subject to carefully tailored and justified additions in cases where that may be inadequate. The novel BillC-51 definition of activities that undermine the security of Canada was grossly overbroad. Even after the amendments in this bill, it would remain overbroad.
When I talk about overbreadth, and I know that some members of this committee have read the Air India commission report, I refer to overbreadth not only from a civil liberties perspective but frankly from a security perspective. If everything is a security threat, effectively nothing is a security threat. I think we really should tighten the definition with respect to information sharing.
On the subject of Air India—and here I'm going just a touch beyond Bill C-59—I must again reiterate my objections to the CSIS human source privilege that was enacted in the Protection of Canada from Terrorists Act. If it is not repealed, at least I would recommend that, as an urgent matter, there be a study of whether CSIS's practice of granting anonymity to witnesses is hindering terrorism prosecutions.
The Privacy Commissioner has made a strong case to you that the standard for receiving agencies under SCISA should be raised to “necessity”. I agree. I would also not be troubled by having that same standard with respect to sending agencies. The Privacy Commissioner raised the issue that sending agencies may not have experience with security, but they also maybe don't have the same incentive that receiving agencies may have to keep, perhaps unnecessarily, the information that they receive.
In this regard, a critical feature of the new review agency is that it will be able to examine the legally privileged material that is the basis on which receiving agencies will make decisions, perhaps wrongly, to retain any information.
Moving to part 6, the committee is well aware of the problems of a no-fly list. The reforms in C-59 strike me as minimal. Four months is a long time to be a wrongfully listed person, even if the default has been changed. Special advocates should have a role in appeals, and BillC-51's restriction on the information that these security-cleared advocates can see in security certificate cases should also be repealed. More fundamentally, however, perhaps the new committee that has access to classified information should review whether the costs of the no-fly list, both financial and human—in terms of false positives—are actually worth its benefits.
Moving to part 7 of the bill, I note that the CCLA submitted to you that the reference to terrorism offences in the counselling offence is not defined. That's not my reading. I would read the reference to terrorism offences as referring to the definition of terrorism offences contained in section 2 of the Criminal Code, but this is a matter that needs to be clarified.
The changes to the preventive arrest provisions are difficult to evaluate, but I would favour further amendments to clarify limits on questioning of people who may be detained for up to seven days. I would also advocate that there be some response to the Driver case in Manitoba, which held that at least one part of the peace bond provisions relating to treatment programs violated the charter. I would also recommend that we look at something like section 10 of the U.K. Terrorism Act, 2000, which would allow people to challenge listing as terrorist groups without that very act of challenge being the basis for a terrorism offence.
I applaud the government for repealing investigative hearings, a technique that has never been successfully used and, if used, could hinder terrorism prosecutions.
Finally, this is important and complex legislation that was made necessary by BillC-51. I would propose that given the comprehensive, if not radical, nature of C-51 and the important proactives of this bill, that the review of this bill be commenced within the fourth year of its enactment, not the sixth year as contemplated in part 9. I would also propose that the review be undertaken by a special joint committee of the Commons and the Senate, which could include one to two members of the new National Security and Intelligence Committee of Parliamentarians.
In addition to my previously submitted brief, which I hope you have and has been translated, those are my submissions.
Thank you very much. I look forward to your questions.
View Matthew Dubé Profile
NDP (QC)
Great. Thank you.
The last question I have about review and oversight is the issue of Global Affairs Canada being omitted from the investigative complaints component of the new body. Is that something that should be fixed?
Kent Roach
View Kent Roach Profile
Kent Roach
2017-12-12 10:31
Yes, absolutely, and that goes back to the Arar commission report, which really shed a lot of light on the very important role of what is now Global Affairs Canada when we're talking about security activities that are, inherently today, transnational.
View Matthew Dubé Profile
NDP (QC)
Thank you, Mr. Chair.
Mr. Therrien, I want to thank you and your team for being with us today.
My question has to do with the Canada Border Services Agency, or CBSA for short.
On the one hand, should the agency have an oversight body? It isn't the only organization that Bill  C-59 excludes.
On the other hand, should we broaden the scope of the bill to include those organizations in national security matters?
Daniel Therrien
View Daniel Therrien Profile
Daniel Therrien
2017-12-07 9:12
As far as I know, from a national security standpoint, CBSA does fall under the jurisdiction of the newly created body, the National Security and Intelligence Review Agency.
Is there a need to subject CBSA to oversight in relation to other matters? The question bears asking, since it is something that would certainly be welcome. Nevertheless, CBSA's national security activities do fall under the jurisdiction of the National Security and Intelligence Review Agency.
View Matthew Dubé Profile
NDP (QC)
CBSA is unlike other agencies in that it deals with travellers crossing the border as part of its day-to-day operations.
Does it raise any concerns that only CBSA's operations involving national security are subject to oversight? It could become difficult to distinguish between an action taken in the name of national security and one taken in the exercise of its mandate?
Daniel Therrien
View Daniel Therrien Profile
Daniel Therrien
2017-12-07 9:13
Yes, you're right.
We reviewed various elements under the Security of Canada Information Sharing Act, discussed in our most recent annual report. We, in fact, did a review of a CBSA program that uses scenario-based screening of travellers in order to identify threats.
The threat could involve national security, criminal activity or something else. Therefore, reviews of those types of programs—one of many at CBSA—should target not only national security initiatives, but also programs designed to identify criminal and other threats.
Stephanie Carvin
View Stephanie Carvin Profile
Stephanie Carvin
2017-12-05 8:47
I'd like to thank the committee for inviting me to speak on Bill C-59, the most comprehensive and far-reaching reform to national security in Canada since 1984. I would like emphasize that I am not a lawyer. However, I do have experience working in national security and intelligence, and I study this area for a living. Indeed, in the interest of transparency, I would like to state that from 2012 to 2015, I worked at the Canadian Security Intelligence Service as a strategic analyst.
My comments are, of course, my own, but they're informed by my research and experience as the national security landscape in Canada has evolved in a relatively short period of time. All of this is to say that today my comments will be focused on the scope of this bill and will address some of the areas that I believe this committee needs to, at the very least, consider as it makes recommendations.
First and foremost, I wish to express my support for this bill. I believe it contains four important steps that are essential for Canadian national security and the functions of our national security agencies.
First, it provides clarity as to the powers of our national security agencies. There's no better example of this than part 3, the CSE act, which gives our national signals intelligence agency statutory standing and spells out its mandate and procedures to a reasonable extent. Given that the first mention of this agency in law was the 2001 Anti-terrorism Act, this bill takes us a long way towards transparency.
Second, Bill C-59 outlines the limits on the power of our national security agencies in a way that will provide certainty to the public and also to our national security agencies. In particular, the bill clarifies one of the most controversial parts of the current legislation formerly known as BillC-51, that is, CSIS' disruption powers.
While it might be argued that this is taking away CSIS' ability to fight threats to Canada's national security, I disagree. Having found themselves embroiled in scandals in recent years, it is little appreciated how conservative our national security agencies actually are. While they do not want political interference in their activities, they no doubt welcome the clarity that Bill C-59 provides as to these measures.
Let there be no doubt that the ability to disrupt is an important one, particularly given the increasingly fast pace of terror investigations, especially those related to the threat of foreign fighters. In this sense, I believe that Bill C-59 hits the right balance, grounding these measures squarely within the Charter of Rights and Freedoms.
Third, Bill C-59 addresses long-standing problems related to review, and in some cases oversight, in Canadian national security. I will not go over the problems of our current system, which has been described as “stove-piped” by experts and commissions of inquiries. I will, however, state that the proposed national security and intelligence review agency, NSIRA, and intelligence commissioner—in combination with the new National Security and Intelligence Committee of Parliamentarians, NSICOP—create a review architecture that is robust and that I believe Canadians can have confidence in.
Fourth, in its totality, Bill C-59 is a forward-looking bill in at least three respects. First, the issue of datasets is not narrowly defined in law. While this has been a cause of concern for some, I believe this is the right approach to take. It allows flexibility of the term, but at the same time it subjects any interpretation to the oversight of the intelligence commissioner and the minister. It subjects the use of datasets to the internal procedures of the national security agencies themselves—and limits who may have access—and the review of the NSIRA and NSICOP.
Second, it takes steps to enhance Canada's ability to protect and defend its critical infrastructure. Increasingly, we are seeing the abilities of states and state-sponsored actors to create chaos through the attacks on electrical grids, oil and gas facilities, dams, and hospital and health care facilities. Much of this critical infrastructure is in the hands of the private sector. This bill takes steps to ensure that there is a process in place to address these threats in the future.
Third, Bill C-59 puts us on the same footing as our allies by mandating an active cyber-role for our national signals intelligence agency. I appreciate the legal and ethical challenges this raises, especially should CSE be asked to support a DND operation. However, the idea that Canada would not have this capability is, I think, unacceptable to most Canadians, and would be seen as unfortunate in the eyes of our allies, many of whom have been quietly encouraging Canada to enhance its cyber-presence in the wake of cyber-threats from North Korea, China, and Russia.
To reiterate, I believe this is a good bill, but there's room for improvement. I'm aware that some of my legal colleagues, especially Craig Forcese, Kent Roach, and Alex, of course, will be speaking to certain specific legal issues that should be addressed to make the law more operationalizable and compliant with our Constitution.
I encourage the committee to seriously consider their suggestions. However, I'm going to focus on four areas that may be problematic in a broader sense, which I believe the committee should at least be aware of or consider when it makes recommendations.
First, I think it's important to consider the role of the Minister of Public Safety. To be clear, I believe our current minister does a good job in his current position. However, the mandate of the Minister of Public Safety is already very large, and this bill would give him or her more responsibilities in terms of review and, in some cases, oversight. At some future date, the scope of this ministry may be worth considering.
Having said this, I acknowledge a paradox. Requiring the intelligence commissioner's approval for certain operations, as is clear in proposed subsections 28(1) and 28(2) of the proposed CSE Act, and potentially denying the approval of a minister is, in my view, at odds with the principle of ministerial responsibility in our Westminster system of government.
To be sure, I understand why this authority of the intelligence commissioner is there. Section 8 of the charter insists on the right to be protected from unreasonable search and seizure. The intelligence commissioner's role ensures that this standard is met.
Why is this a problem? Canada has an unfortunate history of ministers and prime ministers trying to shirk responsibility for the actions of our security services, which dates back decades. Prime Minister Pierre Trudeau used the principle of police independence to state that his government could not possibly engage in review or oversight of the activities of the RCMP even though the national security roles of the RCMP are a ministerial responsibility. There is simply a tension here with our constitutional requirements and with what has been the practice of our system for decades. If this bill is to pass through, it will be up to members of Parliament to hold the minister to account, even if he or she tries to blame the intelligence commissioner for actions not taken.
Second, despite the creation of no less than three major review agencies, there's still no formal mechanism for efficacy review of our security services. We will receive many reports as to whether or not our security services are compliant with the law, but we still will not have any idea of how well they are doing it. I'm not suggesting we need to number-crunch how many terrorism plots are disrupted. Such a crude measure would be counterproductive. However, inquiring as to whether the analysis produced supports government decisions in a timely manner is a worthwhile question to ask. Efficacy review is still a gap in our national security review architecture.
Third, while I praise the transparency of Bill C-59, I'm also concerned about what I'm calling “report fatigue”. I note that between last year's BillC-22 and now Bill C-59, there will have been at least 10 new reports generated, not including special reports as required. It is my understanding that some of these reports are very technical and can be automatically generated when certain tasks such as, hypothetically, the search of a dataset is done. However, others are going to be more complex. More briefings will also be required. Having spent considerable time working on reports for the government in my former work, I know how difficult and time-consuming this can be.
Finally, and related to this last point, it is my understanding that the security services will not be receiving any extra resources to comply with the reporting and briefing requirements of either BillC-22 or Bill C-59. This concerns me, because I believe that enhanced communication between our national security services with the government and review bodies is important. As the former's powers expand, this should be well resourced.
In summary, the ability to investigate threats to the national security of Canada is vital. I believe that for the most part, Bill C-59 takes Canada a great step towards meeting that elusive balance between liberty and security. In my view, where Bill C-59 defines powers and process, it should enable our security services to carry out their important work with confidence knowing exactly where they stand. Further, the transparency in the bill will hopefully go some way towards building trust between the Canadian public, Parliament, and our security services.
Thank you for your time. I look forward to your questions.
Alex Neve
View Alex Neve Profile
Alex Neve
2017-12-05 8:56
Thank you very much, Mr. Chair.
Good morning, committee members. Amnesty International certainly welcomes this opportunity to appear before you in the course of your review of Bill C-59. I'd like you to know at the outset that I'm here on behalf of both the English and francophone branch of Amnesty International Canada, and thus on behalf of our 400,000 supporters across the country.
Amnesty International has a long history of frequent appearances before parliamentary committees dealing with national security matters, be that studies of proposed legislation or reviews of existing legislation. That's not because we're national security experts. Our expertise, of course, lies in human rights. Our interest in Bill C-59, therefore, comes directly from our mandate to press governments to uphold their international human rights obligations. Documenting and responding to human rights violations arising in a national security context and pressing governments to amend national security laws, policies, and practices to conform to international human rights obligations have long featured prominently in Amnesty International's research and campaigning around the world, long predating September 11.
National security is often blatantly used as an excuse for human rights violations, clearly intended simply to punish and persecute political opponents or members of religious and ethnic minorities. National security operations have frequently proceeded with total disregard for obvious human rights consequences, leading to such serious human rights violations as torture, disappearances, and unlawful detention. Without adequate safeguards and restrictions, overly broad national security activities harm individuals and communities who pose no security threat at all. In all of these instances, the impact is frequently felt in a disproportionate and discriminatory manner by particular religious, ethnic, and racial communities, adding yet another human rights concern.
These concerns are by no means limited to other parts of the world. Over the past 15 years, Amnesty International has taken up numerous cases involving national security-related human rights violations related to the actions of Canadian law enforcement and national security agencies. These concerns have been so serious as to be the subject of two separate judicial inquiries, numerous Supreme Court and Federal Court rulings, and several significant apologies and financial settlements totalling well over $50 million to a number of Canadian citizens and other individuals whose rights were gravely violated because of the actions of Canadian agencies. I think of Maher Arar, Benamar Benatta, Abdullah Almalki, Ahmad El Maati, Muayyed Nureddin, and Omar Khadr. This is why we bring our human rights analysis to legislation such as Bill C-59—to ensure that provisions provide the greatest possible safeguards against human rights violations of this nature.
In commenting on the bill, I will touch briefly on five areas: first, the need for a stronger human rights anchor in the bill; second, the bill's national security review provisions; third, positive changes in Bill C-59; fourth, concerns that remain; and fifth, issues of concern that have not been addressed in the bill.
The first area is the need for a national security approach anchored in a commitment to human rights. In the review that preceded Bill C-59, we urged the government to use the opportunity of the present reform to adopt a clear human rights basis for Canada's national security framework. That is an approach that is not only of benefit, evidently, for human rights, but truly lays the ground for more inclusive, durable, and sustainable security as well. Currently, other than the Immigration and Refugee Protection Act, none of Canada's national security legislation specifically refers to or incorporates Canada's binding international human rights obligations.
We recommended that those laws be amended to include provisions requiring legislation to be interpreted and applied in a manner that complies with international human rights norms. That was not taken up in Bill C-59 except for one very limited reference to the convention against torture. This is important in that it sends a strong message of the centrality of human rights in Canada's approach to national security. It is also of real benefit when it comes to upholding human rights in national security-related court proceedings.
Our first recommendation, therefore, remains to amend Bill C-59 to include a provision requiring all national security-related laws to be interpreted in conformity with Canada's international human rights obligations.
Second, we strongly welcome and support the provisions in part 1 of Bill C-59 creating the national security and intelligence review agency. Amnesty International has been calling for the creation of a comprehensive and integrated review agency of this nature since the time of our submissions to the Arar inquiry in 2005. This has been one of the longest-standing and most serious gaps in Canada's national security architecture. We do have three associated recommendations.
First, in keeping with the earlier recommendation I just made, the mandate of the review agency should be amended to ensure that the activities of security and intelligence agencies will be reviewed specifically to ensure conformity to Canada's international human rights obligations.
Second, the review agency must have personnel and resources commensurate with what will be a significant workload. We endorse the recommendation made by Professor Kent Roach that the provision allowing for a chair and additional commissioners numbering between three and six is inadequate, and would suggest that the number of additional commissioners be raised to between five and eight.
Third, we continue to be concerned about the review specifically of the Canada Border Services Agency. Unlike many of the agencies that will be reviewed by the new agency, the CBSA does not have its own stand-alone independent review body. The new review agency will have the power to review CBSA's national security and intelligence-related activities, but there still is no other independent agency reviewing the entirety of CBSA's activities, despite the growing number of cases where the need for such review is urgently evident, including deaths in immigration custody. This imbalance will inevitably pose awkwardness for the review agency's review of CBSA, and it underscores how crucial it is for the government to move rapidly to institute full, independent review of CBSA.
We'd like to highlight improvements. First, our concerns about the overly broad criminal offence in BillC-51 of advocating or promoting the commission of terrorism offences in general have been addressed by the proposed revisions to section 83.221 of the Criminal Code, which would instead criminalize the act of counselling another person to commit a terrorism offence, which was already a criminal offence essentially.
Second, the threat reduction powers in BillC-51, which anticipated action by CSIS that could have violated a range of human rights guaranteed under the Charter of Rights and under international law have been significantly improved. However, we think it needs to go further, and there needs to be specific prohibition of the fact that CSIS will not involve threat reduction of any kind that will violate the charter or violate international human rights obligations. We also welcome the changes made to preventive detention, but have some recommendations as to how that can be improved.
We remain concerned about the Secure Air Travel Act provisions, which we do not think address the many serious challenges that people face with the application of the no-fly list. Much more fundamental reforms are needed, including a commitment to establishing a robust redress system that will eliminate false positives, and significant enhancements to listing and appeal provisions to meet standards of fairness.
Because I know my time is limited, let me end with some provisions that remain unaddressed in the legislation.
One of the most explicit contraventions of international human rights in Canadian national security law, going back over 20 decades now, is the provision in immigration legislation allowing individuals in undefined exceptional circumstances to be deported to a country where they would face a serious risk of torture. It's a direct violation of the UN convention against torture. UN human rights bodies have repeatedly called for this to be addressed. Bill C-59 passed on the opportunity to do so. We would recommend that be taken up.
Finally, Bill C-59 also fails to make needed reforms to the approach taken to national security in immigration proceedings. There were very serious concerns about BillC-51's deepening unfairness of the immigration security certificate process, for instance, withholding certain categories of evidence from special advocates.
There needs to be a significant rethinking and reconsideration of immigration security certificate proceedings, rolling back those changes that were made in BillC-51, and addressing still the other areas of concern with respect to the fairness of that process.
Thank you.
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