Interventions in Committee
 
 
 
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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.
View Nathaniel Erskine-Smith Profile
Lib. (ON)
Thanks very much.
Thank you to you both for your testimony.
Ms. Carvin, you mentioned that in the total architecture of review you still had some concerns about efficacy. You mentioned Professor Forcese a few times. In a paper that he and Kent Roach wrote they talk about this three-legged stool and there is a parliamentarian committee on efficacy, there's a super-SIRC for propriety review, and then they talk about an independent monitor of national security law built on the U.K. and Australian model.
When we look at Bill C-59 and BillC-22 together, do you see that largely meeting the overall review architecture?
Stephanie Carvin
View Stephanie Carvin Profile
Stephanie Carvin
2017-12-05 9:29
That's a very interesting point.
When I testified on BillC-22 I suggested that much of the focus of that committee should be on efficacy. One of the issues we have is that it's not really clearly defined yet what the differences are between what NSIRA and NSICOP are going to be doing, and that's a concern not just for myself but also other people who formerly worked in this area. You don't want them both going after the same thing.
It should be clear that the BillC-22 committee should probably be taking a 60,000-foot view of what's happening and let the NSIRA get into the legal weeds. What I'm concerned with is that there is no division of labour, but where I think the efficacy review should be taking place is probably in the Bill C-22 committee.
View Nathaniel Erskine-Smith Profile
Lib. (ON)
I would agree. That makes sense, which would suggest that maybe we don't have a gap in efficacy review with BillC-22 on the table.
In any event, the new super-SIRC committee and the new commissioner don't have the exact same powers in replacing SIRC and replacing the current CSE commissioner. I have a note here, for example, that the CSE commissioner has certain authorizations under the Inquiries Act that the new commissioner would not have, that the reporting requirements for SIRC are more stringent in some cases, including the number of warrants that have been authorized for CSIS.
When we roll CSIS into this super-SIRC, when you roll CSE into the new commissioner role, shouldn't they have the same reporting requirements and the same powers? If not, why not?
Stephanie Carvin
View Stephanie Carvin Profile
Stephanie Carvin
2017-12-05 9:31
I didn't see those limitations in the legislation when I read them as perhaps you put it. It seems to me that the NSIRA actually has an extremely broad mandate and that is a very good thing because they should be able to have that authority.
I know that Wesley Wark, who will be speaking today, is an authority on review. I would encourage you to ask that question to him as well, but in my understanding, I did not see that limitation necessarily in the—
View Nathaniel Erskine-Smith Profile
Lib. (ON)
I put it to both of you, the expectation ought to be that the same powers and authorities should be granted to the new super-SIRC committee and the new commissioner. Is that fair?
Stephanie Carvin
View Stephanie Carvin Profile
Stephanie Carvin
2017-12-05 9:31
I would say that's the case, and if you believe that's not the case, I would try to make sure that it is to your satisfaction.
Alex Neve
View Alex Neve Profile
Alex Neve
2017-12-05 9:32
We would totally agree with that. One of the problems we've seen in the past has been the unevenness of the powers and mandate of various review bodies. That leads to confusion and it certainly means that the ability to coordinate review across agencies, which is, of course, one of the things we're really looking for in this new approach, gets hampered.
View Pierre Paul-Hus Profile
CPC (QC)
Thank you.
I would like to go back to Part 1 of Bill  C-59, which pertains to the National Security and Intelligence Review Agency.
The National Security and Intelligence Committee of Parliamentarians was created, pursuant to Bill C-22, and Part 1 of Bill  C-59 includes this committee.
Our party was in favour of creating this committee, but we expressed reservations about the information being centralized in the Prime Minister's Office, and so we voted against the bill.
I would like to hear your thoughts on that.
Wesley Wark
View Wesley Wark Profile
Wesley Wark
2017-12-05 10:24
Both Craig and I have testified previously on BillC-22, and my view is that it's important to be realistic about what is proposed in C-22 as a practice, and what is necessary. Any time you give a committee of parliamentarians access to highly sensitive information, you have to surround that access with controls and protections. The challenge is to make sure that, in doing that, you don't intrude too much on the work of the committee itself.
From my perspective, C-22 reaches a reasonable balance in that regard. I don't regard the control, as you put it, of the Prime Minister's Office over the information flow as something that is likely to impact, in practice, the ability of the committee to do its work. It has many challenges ahead of it. It has only just recently, as you know, been set up in terms of members that are going to appear. The executive director has not yet been appointed. It's very much in its infancy, but my view is basically that the legislation should hit a reasonable balance until we learn otherwise through experience.
View Ralph Goodale Profile
Lib. (SK)
I will, Mr. Chairman. Thank you very much to the members of the committee for their work as they are about to begin clause-by-clause study of Bill C-59, the national security act.
I am pleased today to be accompanied by a range of distinguished officials in the field of public safety and national security. David Vigneault, as you know, is the director of CSIS. Greta Bossenmaier, to my right, is the chief of the Communications Security Establishment, and the CSE is involved in Bill C-59 in a very major way.
To my left is Vincent Rigby, associate deputy minister at Public Safety. I think this is his first committee hearing in his new role as associate deputy minister. Kevin Brosseau is deputy commissioner of the RCMP, and Doug Breithaupt is from the Department of Justice.
Everything that our government does in terms of national security has two inseparable objectives: to protect Canadians and to defend our rights and freedoms. To do so, we have already taken a number of major steps, such as the new parliamentary committee established by Bill C-22 and the new ministerial direction on avoiding complicity in mistreatment. That said, Bill  C-59 is certainly central to our efforts.
As I said last week in the House, this bill has three core themes: enhancing accountability and transparency, correcting certain problematic elements in the former BillC-51, and ensuring that our national security and intelligence agencies can keep pace with the evolving nature of security threats.
Bill C-59 is the product of the most inclusive and extensive consultations Canada has ever undertaken on the subject of national security. We received more than 75,000 submissions from a variety of stakeholders and experts as well as the general public, and of course this committee also made a very significant contribution, which I hope members will see reflected in the content of Bill C-59.
All of that input guided our work and led to the legislation that's before us today, and we're only getting started. When it comes to matters as fundamental as our safety and our rights, the process must be as open and thorough as it can possibly be. That is why we chose to have this committee study the bill not after second reading but before second reading. As you know, once a bill has passed second reading in the House, its scope is locked in. With our reversal of the usual order, you will have the chance to analyze Bill C-59 in detail at an earlier stage in the process, which is beginning now, and to propose amendments that might otherwise be deemed to be beyond the scope of the legislation.
We have, however, already had several hours of debate, and I'd like to use the remainder of my time to address some of the points that were raised during that debate. To begin with, there were concerns raised about CSIS's threat reduction powers. I know there are some who would like to see these authorities eliminated entirely and others who think they should be limitless. We have taken the approach, for those measures that require a judicial warrant, of enumerating what they are in a specific list.
CSIS needs clear authorities, and Canadians need CSIS to have clear authorities without ambiguity so that they can do their job of keeping us safe. This legislation provides that clarity. Greater clarity benefits CSIS officers, because it enables them to go about their difficult work with the full confidence that they are operating within the parameters of the law and the Constitution.
Importantly, this bill will ensure that any measure CSIS takes is consistent with the Charter of Rights and Freedoms. BillC-51 implied the contrary, but CSIS has been very clear that they have not used that particular option in Bill C-51, and Bill C-59 will end any ambiguity.
Mr. Paul-Hus, during his remarks in the debate in the House, discussed the changes we're proposing to the definition of “terrorist propaganda” and the criminal offence of promoting terrorism. Now, there can be absolutely no doubt of our conviction—I think this crosses all party lines—that spreading the odious ideologies of terrorist organizations is behaviour that cannot be tolerated. We know that terrorist groups use the Internet and social media to reach and radicalize people and to further their vile and murderous ends. We must do everything we can to stop that.
The problem with the way the law is written at the moment, as per BillC-51 is that it is so broad and so vague that it is virtually unuseable, and it hasn't been used. Bill C-59 proposes terminology that is clear and familiar in Canadian law. It would prohibit counselling another person to commit a terrorism offence. This does not require that a particular person be counselled to commit a particular offence. Simply encouraging others to engage in non-specific acts of terrorism will qualify and will trigger that section of the Criminal Code.
Because the law will be more clearly drafted, it will be easier to enforce. Perhaps we will actually see a prosecution under this new provision. There has been no prosecution of this particular offence as currently drafted.
There were also questions raised during debate about whether the new accountability mechanisms will constitute too many hoops for security and intelligence agencies to jump through as they go about their work. The answer, in my view, is clearly, no. When the bill was introduced, two of the country's leading national security experts, Craig Forcese and Kent Roach, said the bill represents “solid gains—measured both from a rule of law and civil liberties perspective—and come at no credible cost to security.”
Accountability mechanisms for Canadian security and intelligence agencies have been insufficient for quite some time. BillC-22 took one major step to remedy that weakness by creating the new National Security and Intelligence Committee of Parliamentarians. Bill C-59 will now add the new comprehensive national security and intelligence review agency, which some people, for shorthand, refer to as a super-SIRC, as well as the position of intelligence commissioner, which is another innovation in Bill C-59.
These steps have been broadly applauded. Some of the scrutiny that we are providing for in the new law will be after the fact, and where there is oversight in real time we've included provisions to deal with exigent circumstances when expedience and speed are necessary.
It is important to underscore that accountability is, of course, about ensuring that the rights and freedoms of Canadians are protected, but it is also about ensuring that our agencies are operating as effectively as they possibly can to keep Canadians safe. Both of these vital goals must be achieved simultaneously—safety and rights together, not one or the other.
Debate also included issues raised by the New Democratic Party about what is currently known as SCISA, the Security of Canada Information Sharing Act. There was a suggestion made that the act should be repealed entirely, but, with respect, that would jeopardize the security of Canadians. If one government agency or department has genuine information about a security threat, they have to be able to disclose it to the appropriate partner agencies within government in order to deal with that threat, and you may recall that this has been the subject of a number of judicial enquiries in the history of our country over the last number of years.
That disclosure must be governed by clear rules, which is why Bill C-59 establishes the following three requirements. First, the information being disclosed must contribute to the recipient organization's national security responsibilities. Second, the disclosure must not affect any person's privacy more than is reasonably necessary. Third, a statement must be provided to the recipient attesting to the information's accuracy. Furthermore, we make it clear that no new information collection powers are being created or implied, and records must be kept of what information is actually being shared.
Mr. Chair, I see you're giving me a rude gesture, which could be misinterpreted in another context.
Some hon. members: Oh, oh!
Hon. Ralph Goodale: There are a couple of points more, but I suspect they'll be raised during the course of the discussion. I'm happy to try to answer questions with the full support of the officials who are with me this morning.
Thank you.
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