Proceedings of the Standing Senate Committee on
Transport and Communications
Issue 4 - Evidence - March 23, 2004
OTTAWA, Tuesday, March 23, 2004
The Standing Senate Committee on Transport and Communications met this day at 9:35 a.m. to consider Bill C-7, an Act to amend certain Acts of Canada, and to enact measures for implementing the Biological and Toxic Weapons Convention, in order to enhance public safety.
Senator Joan Fraser (Chairman) in the Chair.
[Translation]
The Chairman: Honourable senators, today we continue our study of Bill C-7, an Act to amend certain Acts of Canada, and to enact measures for implementing the Biological and Toxic Weapons Convention, in order to enhance public safety.
This morning, we welcome officials from Citizenship and Immigration and from the Canada Border Services Agency.
[English]
We have before us Mr. Daniel Jean, Assistant Deputy Minister of Policy and Program Development at Citizenship and Immigration Canada; Ms. Caroline Melis, Director General of the Admissibility Branch; Ms. Julie Watkinson, Legal Counsel; and from the Canada Border Services Agency, Mr. Mark Connolly, Head of Customs Contraband, Intelligence and Investigations, and Mr. Denis Lefebvre.
I think you have settled among yourselves who will lead off. You know that we are sharply limited in time so if we could get straight to it.
[Translation]
Mr. Daniel Jean, Assistant Deputy Minister, Policy and Program Development, Citizenship and Immigration Canada: Citizenship and Immigration Canada is pleased to appear before the Senate committee after second reading to provide support for this very important legislation.
I wish, in particular, to briefly highlight some aspects of the bill which pertain to Citizenship and Immigration Canada, specifically Parts 5 and 11.
The minister of CIC, under Section 5 of the Department of Citizenship and Immigration Act, has the authority to enter into agreements with any province or groups of provinces and with any foreign government or international organization for the purpose of facilitating the formulation, coordination and implementation of policies and programs for which the minister is responsible.
Section 7 of the Immigration and Refugee Protection Act also confirms the authority of the minister to enter into agreements with the government of a foreign State or an international organization.
Clause 33 of Bill C-7 amends subsection 5(1) of the Department of Citizenship and Immigration Act by adding an explicit reference to the collection, use and disclosure of information. This will explicitly acknowledge that the minister's authority to enter into agreements may be used for the purpose of sharing information, as well as for the reasons currently stipulated in the act.
Clause 33 also creates a new provision in the Department of Citizenship and Immigration Act; section 5(2), which gives the Minister of Citizenship and Immigration specific authority to enter into arrangements for the same purposes as those for which she can enter into agreements, including the collection, use and disclosure of information.
The distinction between these two provisions is that the term ``agreement'' in section 5(1) implies a treaty-level commitment, binding under international law, whereas the term ``arrangement'' in 5(2) applies to memoranda of understanding and other less formal instruments.
It is critical that CIC have the explicit authority to enter into both of these forms of information-sharing instruments in order to effectively carry out its mandate under the Immigration and Refugee Protection Act. These provisions of the Immigration and Refugee Protection Act and the Department of Citizenship and Immigration Act are consistent with section 8(2)(f) of the Privacy Act, which permits the disclosure of personal information under an agreement or arrangement with a province, foreign State or international organization.
One of the underlying pillars of the Smart Border Action Plan, signed by then Deputy Prime Minister Manley and U.S. Secretary of Homeland Security Tom Ridge on December 12, 2001 is the expansion of information-sharing to meet the needs of the action plan. What the Minister of CIC is seeking in C-7 is the explicit legal authority to fulfil this commitment.
Clause 72 of Bill C-7 would create a new provision in the Immigration and Refugee Protection Act. Section 150.1(1)(a), which provides the ability to make regulations concerning the collection, retention, disposal and disclosure of information for the purposes of the Immigration and Refugee Protection Act. In addition, section 150.1(1)(b) would provide the ability to make regulations concerning the disclosure of information for the purposes of national security, the defence of Canada or the conduct of international affairs, including the implementation of an agreement or arrangements entered into under section 5 of the Department of Citizenship and Immigration Act.
Under these new provisions CIC could create regulations allowing it to share immigration-related information with certain key partners in order to stop threats from entering or remaining in the country.
We must note that CIC could use these sharing of information instruments under the facilitation framework agreement. For example each year CIC welcomes more than 10,000 seasonal workers working in the agricultural industry under agreements signed with foreign countries. As such, this sharing of information contributes to CIC's mandate of facilitation and control.
[English]
In the government reorganization of December 12, 2003, CIC retained the responsibility for processing applications from all categories of persons seeking entry to Canada and for processing applications for adjustment of status within Canada. Decisions on such cases require the most complete information possible from all relevant sources to ensure that the right decision will be made.
For third-country nationals applying to enter into Canada, information from sources outside Canada may be of relevance to the decision-making process. It is the sharing of information for these purposes with our international partners that is the intended application of the provision relating to the disclosure of information for the conduct of international affairs.
CIC is responsible for more than 1 million case decisions a year — overseas and in Canada — and needs to insure that the right decisions are made in those cases with the best possible information. These clients are not Canadian citizens or, for the most part, Canadian permanent residents; most of them are foreign nationals seeking to visit, study, work temporarily, or immigrate to Canada. CIC wants to be certain they do not pose a risk to either our safety or security.
Information sharing is crucial to the business of CIC to keep Canada secure. We want to make certain that we come to have all the necessary tools to ensure integrity in our decision-making process so that Canadians will be confident that CIC is screening effectively.
At the same time, we recognize that information needs to be protected from inappropriate access, incorrect use, and non-authorized disclosure. For this reason, clause 72 of Bill C-7 also provides that regulations made under section 150.1 may also contain conditions to govern and/or restrict the purposes for which Citizenship and Immigration Canada may collect, retain, dispose and disclose information.
Clause 70 of Bill C-7 also amends section 5 of the Immigration and Refugee Protection Act, IRPA, to include regulations made under section 150.1 to those provisions for which any proposed regulation must be laid before each House of Parliament and each House shall refer the proposed regulation to the appropriate committee of that House.
The committee may have public hearings on these regulations, allowing contributions from the public and other interested groups to be made. The scrutiny will serve to increase transparency and overall accountability. Bill C-7 is one of many effective measures the government has undertaken to help protect the safety and security of Canadians. Canada and Canadians will benefit from information sharing, as we will have access to information that other countries have. This will increase our capacity to screen out terrorists, criminals and other threats.
[Translation]
Mr. Denis Lefebvre, Vice-President, Canada Border Services Agency: At an earlier meeting, Ms. Debra Normoyle made a presentation on behalf of the Canada Border Services Agency. We have a new team here to answer senators' questions on behalf of the Border Services Agency.
[English]
The Chairman: Brevity is the soul of wit. Does any other witness wish to speak before we go to questions?
Senator Beaudoin: My question is in respect of clause 72 of Bill C-7. It is one thing to make regulations for obtaining some information, but last week we were concerned with one thing in particular: the right of privacy, which is enshrined in the Charter of Rights and Freedoms after sections 7 and 8. Of course, there is no absolute right in Canada under the Charter except perhaps section 28.
I understand that we are in a very difficult period. We have to protect security, and we have to do something that is positive. However, it is quite another thing when we communicate to other countries some information that we have. I may agree with you that you have to destroy what you obtain after a certain time, but what about the other countries or the other bureaus that may be informed of this? What is the situation? Do you ask them to destroy those documents after a certain time?
Mr. Jean: Normally, Senator Beaudoin, in these information-sharing instruments there are clauses that speak to rules for retention, for disclosure and things of that nature. When designing these clauses, we try to ensure that they have all the appropriate safeguards from a privacy standpoint and that the information will be used solely for the reasons under which it had been obtained.
[Translation]
Senator Beaudoin: Increasingly in our modern system, we can obtain information. I am becoming a little bit worried to see that all of this, eventually, can affect the right to privacy, a legally recognized fundamental right which is thus slightly undermined. It is a matter of interpretation. I understand that since the events of September 11, we live in a difficult period, but a state of national emergency has never been proclaimed. I agree to increased powers in order to protect the public, yes. But we have to stop somewhere. We have observed, over the last few months, that law enforcement agencies of order have not always respected the right to privacy. I think things are becoming somewhat debatable.
Mr. Jean: Senator Beaudoin raises an excellent point. As you know, for years, our act — both the act that governs our department as well as the act on immigration and refugee protection — gives the minister the right to conclude international agreements. In Bill C-7, this authority is made more explicit because it touches upon issues of information-sharing. Indeed, that can sharpen tools used to target risks. However, by passing regulations, Parliament can thus ensure that the sharing of information will be done with the proper safeguards in place to protect privacy. In the same way that Bill C-7 will allow us to make information-sharing tools more explicit, regulations will govern the collection, retention, and sharing of information. Parliament will have an opportunity to make sure that these safeguards are in place.
Mr. Lefebvre: I cannot help but open another debate with my former professor of constitutional law on this very interesting subject. Agreements on the sharing of information are entered into on a reciprocal basis. The only reason we enter into these agreements is because we need information. It is in our interest. Therefore the limits that we negotiate and impose on our partners are ones that we ourselves are willing to accept respecting information given to us.
When working in the field of immigration or border services, the very essence of our work is international. We wear white hats and black hats: we cannot, because a person changes jurisdictions, say that our work stops at the border — we aren't in the movies, when cowboys in the Wild West would stop at the border — they would not continue their chase in another jurisdiction. We keep going. However, to make sure that we are able to work effectively, this sharing of information with other jurisdictions is absolutely essential.
Senator Beaudoin: When it comes to Canada, I have a great deal of confidence. But sometimes I have doubts. I do not want to criticize others, each country has its own system. But I have a little less faith. I will raise this again in the second round of questions, and we will discuss it again.
[English]
Senator Jaffer: Before I proceed, I would like to put a request on the record. I read again Commissioner Zaccardelli's testimony. He talked about an advisory committee. I would like more information from him about the advisory committee, so if we can request that, please, chair.
Ms. Normoyle represented you well here, and we welcome you here as well.
I understand that Bill S-23 passed recently. Is that correct? I am directing the question to Mr. Jean, but whoever wishes to answer may do so.
Mr. Jean: Immigration is about the movement of people. My understanding is that Bill S-23 was a customs bill, so it is about movement of goods. Mr. Lefebvre would be in a better position to answer questions about movement of goods.
Senator Jaffer: You deal with non-Canadians, and he would be dealing with Canadians; is that correct?
Mr. Jean: From a customs perspective, in the conduct of his duties, he would have to deal with Canadians, yes.
Senator Jaffer: Canadians do not need immigration.
Mr. Lefebvre: Bill S-23 was a bill to amend the Customs Act, and Customs has to do with anything that comes across the border carried by either a Canadian citizen or a non-citizen.
Senator Jaffer: Was it only dealing with goods?
Mr. Lefebvre: Yes, it was in respect of goods. Before the CBSA was created, the customs administration was also cross-designated by Order in Council at the border, at the primary line, to perform the duties of immigration officers.
Senator Jaffer: What power did Bill S-23 give you?
Mr. Lefebvre: Bill S-23 had a lot of amendments to the Customs Act. For instance, it authorized us to have alternative ways of processing people at the border. It enabled us to implement new regimes for alternative ways of reporting at the border — such as FAST and NEXUS. There was also a provision in that bill with respect to the right to collect information and to share information.
Senator Jaffer: I understand, sir, that Bill S-23 already gave you the right to share information with foreign countries. Is that not correct?
Mr. Lefebvre: Yes, it did, by virtue of the powers given to us under the Customs Act, which may not include all information that, for instance, the Department of Citizenship and Immigration would have in respect of individuals and immigration claimants and refugee claimants.
Senator Jaffer: Yet it would give you enough information for Canadians; am I correct in saying that?
Mr. Lefebvre: I think so, yes.
Senator Jaffer: You are saying the additional powers Bill C-7 provides will relate to non-Canadians. Am I correct in saying that?
Mr. Jean: Currently, in both the Immigration and Refugee Protection Act and in the act that governs the Citizenship and Immigration department, our minister has the right to enter into international agreements and accords and things of that nature. It is a very general thing and we have been using it to have information-sharing instruments. Of course, when we do that, we do so with all the privacy safeguards in place. We actually have a process whereby every information-sharing instrument is subject to a privacy impact assessment with the Privacy Commissioner. They identify privacy risks, and we take measures to mitigate these risks.
Bill C-7 makes it explicit that, in the conduct of these international affairs and in making these agreements, there is the ability to exchange information. As I said earlier, doing that will also create an opportunity for Parliament to be satisfied that the privacy safeguards are in place.
Senator Jaffer: I would like you, sir, to turn to page 33 of the bill and look at clause 33 dealing with proposed section 5.(1), please. From my understanding of the documentation that we were provided earlier in preparation for this — please correct me if I have not understood this correctly — in 5.(1), you have all the powers already. You have powers to enter into agreements with any province or group of provinces or any foreign government or international organization. You already have those powers. CIC has those powers ``for the purpose of facilitating the formulation, coordination and implementation'' I this correct?
Mr. Jean: Yes.
Senator Jaffer: You also have powers — not explicit but implicit — to collect and disclose information. This proposed section 5.(1) only adds explicitly ``the collection, use and disclosure of information.''
Mr. Jean: You are absolutely right, Senator Jaffer.
Senator Jaffer: For the rest of 5.(1), you already have those powers.
Mr. Jean: That is correct.
Senator Jaffer: Under what act do you have those powers?
Mr. Jean: We have them under the Immigration and Refugee Protection Act, section 7, and also in the act that governs the Department of Citizenship and Immigration.
Senator Jaffer: I understand you already exercise these powers, but you want to have explicit authority; is that correct?
Mr. Jean: We want to make it explicit that that includes exchange of information, yes.
Senator Graham: Mr. Jean, at the close of your opening statement, you said that Canada and Canadians would benefit from information shared, as we would have access to information that other countries have. Mr. Lefebvre, in your exchange with Senator Beaudoin, you said that this information would be reciprocal.
I am wondering if it is possible to monitor just how other governments and international organizations use the information shared. Is it possible to monitor that?
Mr. Lefebvre: Senator Beaudoin raised the same question. I will speak for myself and from my experience and for my agency.
We do not enter into such agreements unless we are satisfied that the partners we are entering into an agreement with live by the rule of law. We put in our agreements all the conditions we expect our partners to live by, and we undertake to basically implement the same safeguards.
The countries with which we have agreements have, as we do, Privacy Commissioners who have the right to audit what is happening in their organization. They also each have an Auditor General who looks at whether they live by the proper procedures, and so on. We have very similar regimes to enforce those agreements. It is not routine for us to send auditors into foreign countries to see how they safeguard these, but again, it starts with our entering into agreements with countries in which we have confidence that they will live by their commitments.
Senator Graham: Will the Privacy Commissioner be able to access your records?
Mr. Lefebvre: Yes.
Mr. Jean: Every time we do a privacy impact assessment, one issue that the Privacy Commissioner raises is the importance of being able to have records showing when the information was used and for what purpose in order to allow that monitoring.
Senator Graham: With respect to the sources of your information, I presume you have the usual sources like RCMP, CSIS, Transport Canada, and Customs. Are there any other sources for you with respect to information gathering?
Mr. Lefebvre: We have two principal sources. One principal source is the information from the individuals themselves. Under the Immigration Act, they apply to immigrate to Canada. Under the Customs Act, they must report what they are importing.
Senator Graham: I mentioned the RCMP, CSIS, Transport and Customs. I am wondering if there are other sources.
Mr. Lefebvre: There can be informants as a source.
Senator Graham: Are there?
Mr. Lefebvre: Sure there are.
Senator Graham: Are there many?
Mr. Lefebvre: There is not a huge number, but there are some. It is a source. We will accept informants' information as a lead to start an investigation if it appears to be valid.
Senator Graham: Is it something you go after yourselves, or is it something that just happens to land on your lap in a brown envelope?
Mr. Lefebvre: We have a bit of an organized program to capture the information we receive and to monitor how our officers do that. We will pursue with investigations where warranted.
[Translation]
Senator Corbin: Mr. Jean, on page 7 of the English version of your presentation, there is the following statement:
[English]
CIC is responsible for 1,000,000 case decisions a year, overseas and in Canada, and CIC needs to ensure that the right decisions are made on those cases, with the best possible information.
You have immigration agents overseas, do you not?
Mr. Jean: Yes, we have officers.
Senator Corbin: They are not necessarily all Canadian nationals?
Mr. Lefebvre: Under our act and regulations we have locally engaged officers who may have designated authority to issue visas.
Senator Corbin: What security test do you do on these people?
Mr. Jean: These people have an enhanced security clearance. They do not have the type of security clearance that our officers have, but they do not have access to any kind of sensitive information. Any case that is sensitive in nature is handled by a Canadian with a top-secret clearance.
Senator Corbin: I am not referring as much to that as I am to endemic corruption in some countries where non- Canadian nationals receive applications for immigration into Canada, as well as, of course, potential terrorist agents and such things.
At what point is that kind of control exercised overseas?
Mr. Jean: An enhanced reliability check is done when a person is hired. You are referring to something about which we are quite concerned. In fact, every year CIC publishes a report that publicly discloses any irregularities by staff. In relative terms, although it may be no consolation, our record on the problems to which you refer is not bad. Overall, our staff is very trustworthy. Most of them have been working for us for a number of years. There are countries where corruption is so prevalent or where family pressures are such that we never delegate authority to locally engaged officers. There are places where we have decided not to put our people in these situations.
We have quality assurance in place in our operations overseas to ensure that anything that is irregular in any fashion is flagged. We take harsh measures when we discover things of that nature. We have zero tolerance for that.
Our record is fairly good and, as I mentioned, this report comes out every year and shows the number of investigations we have conducted, how many irregularities occurred and what corrective measures were taken.
Senator Corbin: Is the RCMP or CSIS involved in these overseas checks with your agents or employees?
Mr. Jean: When we have evidence — either gathered by ourselves or otherwise received — that suggests that an employee is involved in wrongdoing, we usually ask the Immigration and Passport Division of the RCMP to investigate. We have an arrangement for that with the RCMP.
Senator Corbin: I am still amazed at the degree of ignorance on the part of American media, politicians, columnists, and even local pharmacists, about the stringency of Canadian laws with respect to the admission of immigrants. I dare say that overall we have just as good a system, if not better, than they have in the United States.
You will recall that when the planes crashed into the twin towers, the first comments we heard is that the perpetrators had crossed over from Yarmouth, Nova Scotia — a fiction, as far as I am concerned. It is important for Canada to react to these continuing comments. I am not suggesting there is no risk. However, the comments in general from all quarters of the United States have been excessive.
If you do have a PR program, or if someone else has such a program, how can we counter this negative image of Canada? That is very important for our national pride and certainly important in terms of respect for people such as you and thousands of employees who do a very good job.
Mr. Jean: I take that very much to heart, senator. Prior to my current functions, I served for five years in Washington where I was the principal immigration attaché at the embassy and I can claim some expertise on comparative policies between Canada and the United States. I must say that we and the Department of Foreign Affairs, in particular, are making, along with the rest of the Government of Canada, tremendous efforts to demystify some of the things you are describing.
You have given me a good segue to give a concrete example of why it is sometimes in the Canadian interest to share information. A few years ago, when I was serving in Washington, we received, on average, 100 asylum claims from fairly wealthy people from a country in Africa who were trying to come here to abuse the generosity and protection we provide for people who truly need that protection. They were doing that by obtaining U.S. visas from the local U.S. embassy.
Senator Graham: For clarification, how often were you receiving these claims?
Mr. Jean: We were receiving 100 asylum claims from that country per month.
By using sections of the Privacy Act then in place — at that time we did not have the information sharing instruments we now have with the United States — we were able to show the United States how their visa screening in that particular country was being abused. Those people were using a fairly liberal visa screening system in that country to come to Canada and abuse our asylum system when they were in fact not subject to any kind of persecution in their country.
By using information exchange in this way, we were able to reduce the volume of asylum claims from 100 to less than 10 per month. That is one example. We have done the same with countries in Eastern Europe as well.
Information sharing is a two-way street. The senator has made a valid point that irregular migration and threats to security is a two-way street. Finger pointing is not the solution — cooperation is. However, to cooperate you must be able to share information on cases that pose a risk.
As another concrete example, while I was serving in Washington, every month we received an updated most- wanted-terrorist list that the United States used when screening for visas. They purged from their lists the names of U.S. citizens. Since 1999, we have been reciprocating and are purging Canadian names as well, for the valid reasons of safeguards that we have discussed here.
I use these examples to show that it is often in our mutual interest to share this information. We have been doing this for years and it has never been abused in any way. When they need to use the information in the context of prosecution, they always do the contacts they need to have.
I reflect back on what I said earlier, that all our information-sharing instruments have clauses on the appropriate use of that information and safeguards that should be applied. Of course, if the United States, or any other party — because we have information-sharing instruments with other countries as well — were to abuse that, we could cancel the information-sharing instrument.
The Chairman: For clarification, when you share these lists of terrorists, do you purge out the names of Canadian citizens?
Mr. Jean: It was very much a concern for the United States when we came to that particular arrangement, given that our mandate is to screen for third-country nationals — I am talking from an immigration perspective here — for the names of lists exchanged in this context, we purge the names of both Canadian and U.S. nationals.
I also have to say that in the context of immigration, the only time information about a Canadian would be shared would be if we had strong suspicions that that Canadian was involved in smuggling. That would be because it is no longer an immigration issue; it would be a criminal issue and we would work with the RCMP because the person is doing a criminal irregularity.
The Chairman: A cross-border crime.
Mr. Jean: Yes.
The Chairman: What about landed immigrants?
Mr. Jean: We have the possibility to exchange information on landed immigrants, however, most of the information we exchange is usually about what we call temporary residents: people who are seeking admission to Canada to come as tourists, business visitors, students, temporary workers, or are applying to immigrate.
The Chairman: I see. Thank you all very much.
Senator Day: Part 11 of the bill, in clause 71(2), says, ``notice regarding use of the information must be given to the person to whom it relates.'' Can you tell me how you give notice? We had that discussion the other day about notice — this is with respect to section 149 of the Immigration and Refugee Protection Act. How do you give notice to somebody that you are going to use his or her information?
Ms. Julie Watkinson, Legal Counsel, Citizenship and Immigration Canada: CIC has been working with the International Air Transportation Association, IATA, and some of the air carriers to give notice at the check-in counters. I do not know definitively if those notices are being given.
Senator Day: Notice would be given when somebody is checking in and you would be telling him or her that the information that they are giving could be shared and could be used. Is that correct?
Ms. Caroline Melis, Director General, Admissibility Branch, Citizenship and Immigration Canada: Honourable senators, it may also appear on the ticket information that you receive. You have all that fine print to read, whenever you get a ticket; it is probably on there as well.
Senator Graham: Have you ever read it?
Senator Day: The bill specifically requires, once it is passed, that notice will be given in that regard?
Mr. Lefebvre: I cannot remain silent here. In Bill S-23, which was referred to earlier, amending the Customs Act, there is also a provision that enables the then Customs to ask for API/PNR information. In that bill, there is no requirement to notify the travellers. Since October 2002, we have had in place a regime whereby airlines send us — it used to be sent to Customs but they now send to the Canada Border Services Agency — the API information. The PNR information has started to come too.
Senator Day: Thank you.
The Chairman: What are you talking about, what do those acronyms mean?
Mr. Lefebvre: Information about travellers on a plane is divided into two names: API, which is just the tombstone data about the traveller; and PNR is the information in the reservation system.
The Chairman: Passenger name record.
Mr. Lefebvre: The record and the registration in the reservation system.
Senator Day: If it is in fine print on something, could you send us a sample of how that notice is given? Perhaps you can do that at a later time?
The Chairman: That is it, senators. Senator Graham will have the last word.
Senator Day: For the record, could you tell us, in Canada now, approximately how many people Immigration has lost? How many are there?
What do you estimate in that regard? These are people who were refugee claimants who were told to go home and return in a week and did not, or they are students that are overstaying.
Senator Spivak: Or just supposed to be deported and they are lost.
Senator Day: How many?
Mr. Jean: We do not maintain or attempt to maintain records like that because we do not have exit controls, senator, and they become estimations. There are countries that try to do that. In the U.S, you have, according to studies, estimates of 5 million or 12 million irregular migrants.
We can tell you the number of violations that we have in Canada every year and the number of people that we remove every year. People may read in the media an excerpt from the Auditor General's report that states there are 36,000 people — that is the number of outstanding warrants, from an Immigration perspective, that are in the system. Some of these warrants are 20 years old. Some of them are with regard to people who have left Canada and not told us that they have left Canada.
We use the warrant in the Immigration perspective in the same fashion that the law enforcement agencies use a warrant. It is a tool. If these people are still in Canada and somehow encounter a police force, that police force will know there is an outstanding warrant for arrest from an Immigration perspective for these people because they violated the rules; they were supposed to leave and somehow they have not left.
Senator Graham: Can you tell us again what is the difference between an agreement and arrangement, and why is it that the Governor in Council, the cabinet, has to approve an agreement? Why do they not have to approve an arrangement as well?
Mr. Jean: An agreement is legally binding, which is the main difference. Because it is legally binding, we must appear before the Governor in Council.
An arrangement is not legally binding. It is a more informal type of arrangement. It is done on the mutual intent of the parties to live up to the terms of reference of the arrangement. However, it is not legally binding.
An arrangement can be a diplomatic arrangement, which is just an exchange of diplomatic notes; it can be an exchange of letters; it can be a memorandum of understanding.
Senator Graham: Can you tell us what the cabinet does to process or scrutinize an agreement?
Mr. Jean: The most important scrutiny of these agreements comes from the Privacy Commissioner. Every time we want to sign one of these agreements or arrangements, we must have what is called a ``privacy impact assessment.'' The staff of the office of the Privacy Commissioner go through these arrangements or agreements and identifies all the privacy risks. They will come up with suggestions as to how these risks could be mitigated. We work with their office to ensure that we build in those agreements or arrangements measures to mitigate these privacy disclosure risks.
Senator Corbin: I am interested in cowboys.
Mr. Lefebvre told us that western cowboys are very respectful of boundary lines, the international boundary line. It seems the Americans are not so respectful of boundary lines. We had the incident of some cops crashing the barriers — in Windsor, was it not? — Some weeks ago. What has come out of that?
Mr. Lefebvre: The police conducted an investigation. This incident occurred in Niagara. They were in hot pursuit of someone who had been behaving badly in the United States. They crossed the port they drove a few hundred yards in Canada before they stopped. Then the person who was pursued continued and eventually, an accident occurred in the street some distance afterwards.
There was a police investigation. They were found to have committed no criminal offence. However, we did conclude that they had committed a customs offence, and this has been pursued through the diplomatic channels. It is certainly unacceptable, and the point was made very firmly by Canada to the United States that this was unacceptable and that measures should be taken for it not to happen again.
The Chairman: Thank you.
[Translation]
Senator Beaudoin: You used the term ``rule of law.'' What happens when we are not dealing with the same law?
[English]
Mr. Lefebvre: Senator, there will be some differences in our Privacy Act and the Privacy Acts of countries with which we deal. The acts are similar but not identical. I will concede that. We are confident that our partners will live up to whatever conditions we put in the agreement as to how it will be shared and under what circumstances.
Senator Beaudoin: With respect to your arrangement, it is not legally binding.
The Chairman: Senators Beaudoin and Jaffer, I know you have questions. I also know we are pressed for time. I will ask you to put your questions, and I will ask the witnesses to respond in writing within 24 hours.
Senator Beaudoin: My question is simple: If it is not legally binding, what is the use of an arrangement?
Senator Jaffer: I did not understand what you meant by ``black hat'' and ``white hat.'' I would also like an explanation of what the ``national centres of expertise'' and the ``risk-scoring framework'' are.
The Chairman: If you could get us answers in writing to those questions, we would be very grateful.
We thank you very much for being here. You have covered an enormous amount of ground in a very short time. It is always a frustration that we cannot take two days to hear every single witness because there is always so much information you can give us.
Our next witness, senators, familiar to all of us, I am sure, is the director of the Canadian Security Intelligence Service, Mr. Ward Elcock. Thank you very much for being with us today, Mr. Elcock. We are grateful that you could be here because CSIS is important in this bill.
Please proceed, sir.
Mr. Ward P.D. Elcock, Director, Canadian Security Intelligence Service: Madam Chair, my purpose here today is to provide you with an update with respect to the national security and/or public safety implications associated with Bill C-7 on the terrorist threat, particularly to aviation as we see it today.
I will briefly describe the global terrorist threat in its broadest terms and then move on to a detailed examination as to its most serious and imminent manifestation — those groups, members and adherents captured under the general rubric of Sunni Islamic extremism.
Towards that end, I would like to highlight some of the challenges the service and the government face in ensuring Canadians are protected against acts of serious violence motivated by political, religious or ideological causes. Of particular relevance is the ongoing threat posed by terrorist groups focused on exploiting the aviation sector for the purposes of launching attacks or in support of other terrorist activities. I would then conclude by highlighting how CSIS plans to give effect to its responsibilities under the provisions of Bill C-7 if and when it is passed.
Contrary to popular belief, Canada's history is not free from terrorist violence. Both indigenous and foreign terrorists have long been active in Canada pursuing domestic objectives or using Canada as a staging ground for overseas operations.
To many, Canada remains a land of refuge. Annually, our country takes in upwards of 250,000 immigrants, of which approximately 30,000 are refugees. The vast majority of that number of people comes to Canada to make a better life for themselves. However, amongst those newcomers are some who seek to import the politics and conflicts of their homelands.
More disturbing is the fact that some religious extremists purposely seek refugee in our country in order to conduct their respective extremist agendas free from the pressure of security forces in the countries of origin. Several states continue to provide support for terrorist groups, in terms of funding, training or the provision of a safe haven.
Violence associated with a number of nationalist and secessionist causes comes directly back to the multicultural makeup of our society. For example, most of the world's major Sikh terrorist groups are represented in Canada. Over the years, they have used Canada as a refuge and a base from which to coordinate terrorist operations in India or against Indian interests. The 1985 downing of Air India flight 182, which resulted in 329 deaths, is a graphic example of Sikh terrorism impacting on the aviation sector, Canada and Canadians. This remains the single most lethal terrorist action in Canadian history, and, up until the events of 9/11, the most lethal act of international terrorism in contemporary history.
Today, one of the prime motivators for terrorism is religious extremism. All major religions, unfortunately, have their fanatics, but Sunni Islamic extremism is the source of the ``Global Jihad'' currently being waged on the world by fanatics from the Sunni branch of Islam.
One-fifth of humanity is Muslim. Of that fifth, 80 per cent of them live outside the Arab world and about 85 per cent are Sunni. Although only a small minority of Sunnis advocate or support the use of violence, the phenomenon of Sunni Islamic terrorism is international in scope. It cuts across national boundaries in a way that other forms of terrorism have not.
Sunni Islamic extremists use a militant interpretation of the Koran to justify using extreme violence in this global jihad. They believe that Western values are corrupting Islamic states and that the West is intent on destroying Islam. They see the United States as leading this anti-Islamic campaign. Thus, a battle — the global jihad — has to be waged against Western conspiracies and the betrayal of Islam by secular Muslim societies and nationalist regimes.
In February 1998, the World Islamic Front for Jihad Against the Jews and Crusaders pronounced a religious decree, or ``fatwa,'' making it an individual duty for all Muslims to kill Americans and their allies — civilians as well as military. In November 2002, al-Qaeda's Osama bin Laden named Canada as a legitimate al-Qaeda target due to its participation, in large part, in operations in Afghanistan and its support of strong measures against terrorism. The assessment drawn from this announcement is that Islamic extremists may undertake terrorist operations in Canada or against Canadian interests abroad. The service continues to operate at a heightened level of activity and vigilance against al-Qaeda and its associated groups.
It would be folly to believe that the global jihad is limited to attacks on autocratic or authoritarian regimes in the Middle East, or that all Islamic terrorists are foreigners recruited while living abroad.
Islamic extremists have evolved the concept of the ``non-territorial Islamic state'' to incorporate emigrant Muslims in their global struggle. Islamic extremists who have left their homelands have sought to preserve in entirety their homeland culture, unlike previous generations, which did their best to adapt to the culture of their new country.
Islamic terrorists also practice the concept of ``taqiyah,'' or concealment, in order to avoid detection. This is sometimes referred to as `` sleeper tactics.'' This approach was used very effectively by the terrorists of September 11 while preparing for their attack.
Many Islamic terrorists are well educated and computer literate. They do not necessarily present themselves as battle-hardened mujahedin. They will not express extremist views except within a closed circle of trusted contacts.
This deception also facilitates fundraising for the purpose of financing the various jihads around the world.
Al-Qaeda is an umbrella organization headed by the terrorist financier Osama bin Laden. It is a network of individuals and organizations that share the common goal of creating a new Islamic Caliphate purged of all non- Muslim elements. These entities are capable of independent operations, yet can act in concert with each other. As one counterterrorism specialist stated: ``Al Qaeda is as much an ideology as a structure.''
What is al-Qaeda capable of at this time? Some al-Qaeda members, including key figures like Abu Zubayda and Khalid Sheik Mohammed, have been killed or captured, but a substantial number, including some of the group's senior leadership, are still in place. In that context, thousands of mujahedin from around the world, including some from Canada, have passed through the various al-Qaeda training camps over the years. This number includes many battle-hardened veterans, most of whom are capable of recruiting and training other extremists to form new cells.
Al-Qaeda continues to make use of autonomous cell-like structures and sleeper tactics. It has, however, become more regionalized with local leaders, likely setting the agenda based on local conditions and opportunities, focusing on attacks towards perceived softer targets, such as high-density civilian venues. Nonetheless it is impossible to rule out another formal al-Qaeda directed operation like the World Trade Center attack.
Al-Qaeda is not restricted by any rules of warfare and makes no distinction between civilian and military targets. On September 11 bin Laden and his supporters blatantly demonstrated their willingness to resort to catastrophic violence, nor did it stop after September 11 or the Taliban's defeat in 2002. Since November 11, 2001, the frequency and number of countries attacked by al-Qaeda have in fact increased. Although still unconfirmed, it is probable that al-Qaeda, or al-Qaeda inspired groups, were behind the attacks on the passenger train system in Madrid, Spain.
Al-Qaeda has also a well-documented interest in chemical, biological, radiological and nuclear materials, CBRN. A recent interpretation of Osama bin Laden communiqués spanning September to December 2003 indicates that al- Qaeda may have changed its strategy by increasing the frequency of attacks against U.S. interests globally. Although there has been no recorded attack against airports or airlines using CBRN, the potential exists that al-Qaeda or like- minded groups could seek to use CBR material in an aviation-related attack.
To date, Canadians have become victims as a result of being in the wrong place at the wrong time, but the service's assessment of the threat must be that it is no longer a question of ``if'' but rather ``when and where'' Canadian interests and citizens will be specifically targeted. Although terrorists still use traditional methods such as conventional bombs, they have attempted to develop new attack methods that are of concern to us. These methods have included simultaneous, highly explosive detonations; suicide bombers; portable surface-to-air missiles; chemical, biological, radiological and nuclear devices; and, even cyber attacks.
Today's terrorists can be very resourceful, as demonstrated by the most recent multiple knapsack bombings of passenger trains in Madrid.
Even before September 11 CSIS's investigations have revealed the presence in Canada of supporters of several groups linked to the al-Qaeda network as early as the 1990s. Probably the best known — albeit perhaps not the most serious threat — is Ahmed Ressam, a former Canadian resident of Algerian origin. Ressam traveled to Afghanistan to undergo terrorist training in one al-Qaeda's camps and came back to Canada intent on doing his part in the global jihad. In December 1999, he was arrested trying to cross the border into the U.S. as part of his plan to set off a bomb at the Los Angeles International Airport. After his arrest, Ressam admitted that the targeting of Jewish neighbourhoods in Montreal had been discussed with fellow jihadist Samir Ait Mohamed prior to December 1999.
Canada has had its share of trained, battle-hardened jihad fighters. We would be naive if we thought that their commitment to global jihad in Canada was limited to fundraising and acquiring false documents. We would be equally naive to think that attacks in Canada do not feature in their plans.
U.S. interests will, for the foreseeable future, preoccupy formal, directed al-Qaeda operations in our view. In respect of a semi-directed or informal non-directed operation, however, any Western target of opportunity could be selected at any time.
It is our assessment that Canada is a target of al-Qaeda. In his message of November 2002, where he warned Canada, bin Laden also stated, ``We had warned Australia about its participation in Afghanistan...It ignored the warning until it woke up to the sounds of explosions in Bali.''
The reality is that like Australia and other countries actively participating in the war against terrorism, Canada is vulnerable to al-Qaeda targeting, particularly by operatives acting outside the direct and formal command of al-Qaeda leaders. The preferred targets of Islamic terrorists are locations that will yield maximum destruction and casualties. Although an attack against Canadian interests abroad, such as embassies or consulates, or Canadian commercial buildings, particularly in countries where security standards are lower and a sufficient terrorist infrastructure exists, is much more likely, a terrorist attack within Canada is possible.
Terrorists have and will continue to exploit vulnerabilities within the civil aviation and other transportation sectors, both as targets of terror and as means of attack. Canada has a distinct appeal for terrorists in terms of its geographic proximity to the U.S. and its geographic dislocation from regions of conflict that spawn terrorism. Whether travelling to Canada to seek refuge or for the purposes of conducting terrorist activities in Canada and potentially in the U.S., air travel remains the most viable method of entry into Canada. We need to exploit this advantage by putting mechanisms in place to ensure that those individuals linked to terrorist activity and using air travel to enter Canada are identified and appropriate action is taken.
The global security environment is at a level of instability not seen for some years. Safeguarding against the possibility of a terrorist attack occurring in or originating from Canada is our first priority. A robust approach to national security is warranted to protect the interests of Canada at home and abroad, and to avoid compromising the secure status of all Canadians internationally.
The transnational nature of several terrorist organizations — al-Qaeda being only the most notorious — requires effective sharing of pertinent information amongst organizations involved in public safety and security.
While two of the September 11 hijackers — Khalid Al Midhar and Nawaf Al Hazmi — were on terrorist watch lists prior to that date, the inability to check their names against passenger manifest information enabled them to board the plane, which they then crashed into the Pentagon.
With regard to how CSIS plans to give effect to the provisions of Bill C-7, I should like to explain how we envision the system working. The service will be creating a separate computerized watch list. Only those persons who were known or suspected to engage in activities directed towards or in support of the threat or use of acts of serious violence, as set out in paragraph 2(c) of the CSIS Act, will be included on that list. Every name on that list will be approved by a senior manager within the service. This is a similar process to the list of individuals that the service already provides to the Canadian border services agency in an effort to keep terrorists out of Canada.
The passenger information lists will be received electronically from the airlines. This information will then be electronically compared against the service's watch list of persons who have been legitimately identified as engaging in threat-related activity as defined in paragraph 2(c). The computer system will be programmed to automatically erase all records of passengers after seven days, except for those who match a record on the watch list. Only when a match occurs will the identity of the traveller in question be disclosed to an employee of the service specifically designated by me to receive that information. In other words, not only will the vast majority of passengers not be matched, but given the way the computer will be structured, we will not even be aware that they travelled.
At this point only a small number of specially designated officers within CSIS will have access to any of the information. When a designated officer is alerted to a match or potential match, he or she will consider, verify, and assess the information, initially all from a transportation security context. If this assessment reveals that the information — the match, in other words — is relevant to transportation security it will be disclosed to the RCMP.
In addition to the assessment of the threat posed to an aircraft and under the provisions of Bill C-7, the designated officer may also believe that the information on the passenger's travel may be important in the service's ongoing investigation of terrorist threats. In such a case, a senior designated officer must assess the relevancy of the information to the service's terrorist investigative mandate. Should the decision be made to pass the passenger information to the service investigators we will, as required by the statute, keep a record of the information provided and the reasons for the disclosure.
At this point, the information becomes like any other sensitive information we collect from warrants, surveillance, human sources or whatever. It is retained, analyzed and disclosed according to our normal policies and procedures, all of course subject to the scrutiny of our review agencies. For example, it may be disclosed as part of an ongoing investigation to an allied service with whom we are cooperating.
Let us briefly look, however, at the safeguards that have been built into the legislation and the resulting process we are creating. All passenger information will be automatically destroyed within seven days of its collection, unless it is reasonably required for the purposes of transportation security or the investigation of terrorism. Passenger information will only be compared to a separate list of persons who are already known or suspected to be in support of a threat or use of acts of serious violence. Records of all disclosures will be kept and be available for ongoing review. In the first instance, only designated officers will have access to this information and only when they decide it meets the provisions of the act can it be further disclosed within or outside the service.
These are only the safe guards intended under Bill C-7. In addition to those safeguards, we also continue to be governed by the provisions of the CSIS Act. As you may know, our Act requires that we may only collect information that is strictly necessary for the investigation of threats to national security, which is defined in our act.
Further, we may disclose information to other agencies with which we have approved arrangements for sharing intelligence. All of these arrangements are approved by the minister of Public Safety and Emergency Preparedness. When it involves an agency outside of Canada, she, in turn, must consult with the Minister of Foreign Affairs. All operational activities of the service are subject to the ongoing scrutiny by the Inspector General on behalf of the minister and by the independent Security Intelligence Review Committee, SIRC.
Senator Beaudoin: I agree entirely with the collection of information. I want Canada to be very well protected. That is not my problem.
The problem is the disclosure of information. In your brief, you say, ``All those arrangements are approved by the minister ... and when it involves an agency outside Canada, she in turn must consult with the Minister of Foreign Affairs ...'' You used the word ``arrangement.'' Is an arrangement legally binding?
Mr. Elcock: We do not see our agreements with other services as legally binding one way or the other. There is really no court to which we could take such an agreement.
Services live and die by their performance under the agreements they enter into with other services. If a service does not live up to its commitments in any arrangement or agreement we have with them, we do not deal with them.
Senator Beaudoin: When it is internal to the Canadian system, it is all right with me because I have full confidence in it.
You say that you need extra powers. These safeguards are intended by Bill C-7. I accept easily that you must communicate with the other countries. It is to their advantage and our advantage because we obtain information from the other countries. However, these are what I would call ``friendly exchanges.'' It is an arrangement that we hope they will honour. We hope such an arrangement will be binding to a certain extent, but we know that we cannot go before a court with that.
Mr. Elcock: You are right. It is not a black and white situation, unfortunately. However, we make considerable efforts to ensure that we share information carefully. We ensure that we have looked at the information we propose to share and the consequences of sharing that information with a particular service. We assess, on a regular basis, the kind of service with which we are dealing and its record in a number of areas — including human rights issues — to try to make the best judgment we can as to whether we should share that particular piece of information.
Subsequently, all of those incidents of sharing are logged and are reviewed by the inspector general and by SIRC, which does regular reviews of posts with which we have shared information to assure that we have abided by our policies and that we have shared appropriately.
Senator Beaudoin: Have you come to the conclusion that we need to do that, and there is no possible other system?
Mr. Elcock: Madam Chair, it is virtually impossible to create a system that is absolutely perfect in this regard. Sharing is an essential part of this business. If we do not share with people, they will not share with us, and we will the not have warnings that we need to protect Canada's security and the security of Canadians. There is a relationship that is inevitable. The CSIS Act sets out to provide the kind of structure around that sharing that ensures that the sharing is appropriate.
Senator Jaffer: Mr. Elcock, I also would like to say that I completely support your work. Obviously, we want to keep Canadians safe. I appreciate the way you have set out how the information is collected and what you do with it.
Have you used any of the provisions of the anti-terrorism legislation, the former Bill C-36, in your work?
Mr. Elcock: Bill C-36 included no powers for the service. There are some things we do under C-36. For example, we contribute to the process of listing terrorist organizations by initiating it, but the powers under C-36 are really more in respect of law enforcement agencies than they are in respect of intelligence agencies. It did not change our powers at all.
Senator Jaffer: If I understand your presentation, Bill C-7 gives you information about people travelling by plane. Is that correct?
Mr. Elcock: Yes.
Senator Jaffer: Do you have an advisory committee of Canadians on issues affecting Canadians on the makeup of Canada?
Mr. Elcock: We do not have a committee, Madam Chair, but we do have regular discussions with a number of communities across Canada and the leadership of communities across Canada. Given the nature of CSIS, it is perhaps more difficult for us to have formal arrangements than for other agencies.
Senator Jaffer: You set out very clearly in your paper that the challenge was with the Sunnis.
The Chairman: Some Sunnis.
Mr. Elcock: A few.
Senator Jaffer: Very few Sunnis. Do you have training on the difference between Sunnis, Shias and just brown people?
Mr. Elcock: We do, Madam Chair. However, more importantly, as an organization it is important for us to recruit in all of the communities of Canada — in fact, we do. We have Sunnis, Shias, and representatives of various ethnic groups within the service. We do not have as many as we would like, but we recruit continuously for those kinds of backgrounds as well as other skills.
Senator Jaffer: Mr. Elcock, but I want to tell you that I have been holding round tables around the country. One complaint that I had from almost every round table is in respect of the way that CSIS officers have been dealing with the community.
I will bring those observations and the names of the specific people who have been harassed to you. There has not been one complaint about SIRC on this issue. People tell me that CSIS officers tell them that if they go to SIRC, they will see CSIS again. I will share this with you privately once I finish my round table.
Senator Graham: Thank you, Mr. Elcock for a very detailed presentation. I am curious about one point. On page four of your brief, you talk about the attacks on the passenger train system in Madrid. The written text reads, ``Although still unconfirmed, it is possible that al-Qaeda, or al-Qaeda inspired or associated groups were behind the attacks on the passenger train system in Madrid.''
In your verbal presentation, you changed the word ``possible'' to ``probable.'' Probable is a stronger word. Is that as a result of new and emerging information you received?
Mr. Elcock: No, Madam Chair, my view would be that it is probable. Other analysts might say that the jury is still out on the subject. My view would be that it is pretty hard to avoid the conclusion that it was al-Qaeda or an associated group.
Senator Graham: I am wondering about individuals who might be concerned about whether CSIS is retaining information on them individually by virtue of the proposed subsection 4.82 (14) of the Aeronautics Act. Will they have access to the files through the Access to the Information Act, and, therefore, have an opportunity to defend themselves?
Mr. Elcock: Madam Chair, they would certainly have access to the provisions of the Access to Information Act and the Privacy Act. I cannot honestly say that that would necessarily give them the means to defend themselves because, notwithstanding that the Privacy Act and the Access to Information Act apply to us in many cases, because of the information in question we may not be in a position to reveal it.
They may get the passenger information we have, but they may not know what other information we have in our files because of the way in which it was collected.
Senator Graham: Can they approach you directly?
Mr. Elcock: They would have to make a request under the Privacy Act or the Access to Information Act, or, if they were concerned that we had done something in respect of them, they could go to SIRC.
Senator Graham: Through their representations, is it possible that you would clear them or expunge whatever information you had that proved to be inaccurate?
Mr. Elcock: Madam Chair, we are not a law enforcement body. We do not have information to take action against people. We have information that we protect very carefully. We do not reveal that we are investigating someone. There are many people who imagine they are being investigated, there are some people who may have concluded that they are being investigated and there are some people who are actually being investigated and do not know about it. We make every effort to ensure that the fact that we are investigating someone is a secret. We do not talk about our individual targets or individuals that we would regard as people of concern.
We are not saying anyone is in trouble and nobody is in trouble until such time as that information goes further and goes to a law enforcement agency or to some other body that takes action, such as immigration or whatever in respect of a specific individual.
However, the consequences of being on a CSIS file are just that you are on the file. We may be carrying out an investigation, but we are not in the business of explaining to anyone that we are carrying on such an investigation until we have come to a point where either we can transfer it to a law enforcement body or to some other organization or close the file.
Senator Graham: If my name is on your file, there is no way I can possibly get it off; is that correct?
Mr. Elcock: There is no consequence to your name being on our file, unless it comes to a law enforcement action or unless it comes to a security clearance situation, in which case there would be a consequence and you would have all of the rights of action in respect to those particular situations.
The Chairman: Supposing the information in your file is wrong. You suggest that once it is in there it can never come out, no matter what; is that correct?
Mr. Elcock: Madam Chair, a single piece of information for us is not particularly useful. It may be a beginning point, but even that is usually not enough to commence an investigation. We have to have information that we can corroborate and check and that comes from more than one source before we would have enough information in most cases even to begin an investigation.
In most cases where we have information about people on our files, that information is there unless the names are simply there as contextual reference for another investigation. If you, for example, met a target of the service, your name might appear there simply because that particular target had met with you and maybe many other people. However, the name of that particular target and the information about him or her would be on the file in the context of a very broad investigation in which we would be looking to ensure that the information that we had on the file was corroborated, checked and duplicated until we got to the point where we could provide it to the RCMP for further action.
Senator Graham: How do you corroborate the information if you do not talk to the individual involved who has sought this information through access to information?
Mr. Elcock: In same cases, we may corroborate the information by interviewing an individual. In some cases we may not want to interview the individual because we may conclude that interviewing the individual would reveal that we are aware of the individual's activities.
Senator Graham: Are there any cases where you have subsequently shred the file?
Mr. Elcock: If we close a file and conclude that someone is not a threat to the security of Canada, then in the normal course we would remove those files and delete those individuals from the record.
Senator Merchant: In the U.S., there has been a knee-jerk reaction to terrorism following 9/11. We have seen additional powers given to the police, with a loss of civil liberties. These are the kind of powers that would not have been acceptable before 9/11. The American experience has been that some of this information has been used for investigating other kinds of crime rather than just terrorism.
Let me give you the example of a person who was travelling from Alberta to Mexico. He was travelling through the Los Angeles airport. When he met the immigration officer, it appeared on his record that he had had a summary conviction about 20 years previous. He had pushed someone around because of a settlement of some debt. The immigration officer questioned him about this and did not let him proceed with his travels. This is a person whose son is a dentist in the U.S. and who goes in and out of the United States often.
Is this the kind of information that we need to share? Is this the sort of thing we need to share with people? We are inconveniencing many people. Is this necessary?
Mr. Elcock: I cannot comment on the specific incident. We are not in the business of sharing information on criminal issues in any case.
We are essentially a counterterrorism organization. There are other things we do, but currently our highest priority is counterterrorism investigations. We share information on counterterrorism, and issues on targets and groups that are mutually regarded as a threat by Canada and a number of other countries with other services around the world.
That information is all shared in the context of a structure. That structure comes from our arrangements with other countries under section 17 of our act, the structure of our policies on looking at information that will be shared with another service and what are the consequences of it. We put caveats on the use of that information. SIRC and the Inspector General review the information that we do share.
That is not an absolute guarantee that there will never be a problem, but it is a very effective way of trying to manage what is a difficult issue: the sharing of information. However, this is a necessary issue. This is simply part of ensuring that Canada and Canadians are secure. This is an essential part of that that we share information with other countries around the world, in respect of organizations that seek to target those countries and Canada.
Senator Merchant: It is problematic, though, because we are not sure how other people will use the information that we provide to them. Everyone has different standards. I know the Americans are very concerned about their security and I appreciate that.
Mr. Elcock: As I said, we look carefully at the consequences of sharing the information we share and we put caveats on use of that information. In other words, in most cases it cannot be further disbursed without our consent, or used for prosecution without our consent, depending on the kinds of caveats we put on it in any specific instance. At the end of the day, a service could decide to disregard all of our caveats and use it for some other purpose, but that would obviously influence our sharing with that service in the future.
Senator Day: I should like to clarify a few points. You described the process that you go through in taking the information that CSIS has — information that I am assuming you will obtain by virtue of the act — and then if it relates to transportation security, you indicated that you give that information to the RCMP.
Mr. Elcock: That would be the information about the individual travelling. In other words, we would have had a hit in our system and we would be informing the RCMP that we had a match.
Senator Day: Would the RCMP be going through a similar type of process? Under 4.82, they obtain similar information on who is travelling on aircraft, and they apply that information to their database to see if they get a match. Can I assume that the RCMP is going through a similar type of process?
Mr. Elcock: I believe their process will be similar.
Senator Day: Is it conceivable that they might pass that information, a match, on to you?
Mr. Elcock: No, we would mostly be passing to the RCMP. They are the law enforcement agency that would actually take action on the match. We do not take any action. We do not go to the airport and arrest someone. We do not tell people that they cannot board a plane. That would be the job of law enforcement or the Department of Transport.
Senator Day: You get the information from the airline, or a travel agent, and that information is compared against a database that you have built up of potential terrorists or people that could cause problems. Is that correct?
Mr. Elcock: Yes.
Senator Day: This is all being done electronically — at least initially. Seven days seems like an eternity in the electronic business these days. If you are comparing information electronically, why do you need to keep that information seven days where you do not have a hit?
Mr. Elcock: We believe, in the circumstances, that we needed to maintain the database for a sufficient period of time. Seven days seems a reasonable period of time, in our view, after which the names would automatically drop off. To simply run it through the system and dispose of it right away did not seem to be appropriate. We thought we needed the safeguard of having a few days, just in case.
Senator Day: Do you anticipate, during that ``just-in-case'' period, that there would be a manual check against the electronic information?
Mr. Elcock: If we had to do something like that and deep-sixed the electronic information, we would have a problem.
Senator Day: That is the seven-day safety that you have built in there?
Mr. Elcock: Yes. It does not change the access to the data. It just means that you have a margin of error built into the system.
Senator Day: During that seven-day period, what will you do with the names of people who travel on an airline where there was no match?
Mr. Elcock: They are sitting there in a database and they drop off automatically after seven days.
Senator Day: How do we know that the names will be dropped off automatically after seven days? Does SIRC have the authority to review to that detail, that you have a program where the names are actually being dropped off?
Mr. Elcock: Yes.
The Chairman: I had several questions myself, Mr. Elcock. You say that only a small number of specially designated officers within CSIS will have access to this information. Understanding that I assume there has to be someone available 24 hours a day, seven days a week, because airlines are flying all that time, how many people do you expect to designate? Also, am I right about my 24 hours a day?
Mr. Elcock: You are essentially right, although the computer systems can work away without someone actually being there, until the alarm goes off saying there is a match and someone can go down and check the machine.
I cannot give you a precise estimate, but it would no more than 10 of 15 officers.
The Chairman: You said at some point that these would be senior people. How ``senior'' is senior?
Mr. Elcock: There would be different levels of people making the decisions. A more senior officer would be required to make the decision to transfer that information out of the Transport world into the CSIS database world. The officer who would be making the first check to see whether there was any relevance in the match would not necessarily be as senior as the officer who makes the second determination. It depends on the level of determination you are making.
The Chairman: I realize that you are not into this business yet, or at least not officially, but how many matches are you expecting roughly? As you look forward, what do you think is likely? Of the matches that come up, how many people's names are you thinking you will probably end up having to disclose to the RCMP or to the airlines?
Mr. Elcock: At this juncture, Madam Chair, that is entirely hypothetical. We do not know. Until we see the flow of data that we get, until we run it through the list for the first time, we will really not have a clue what we will get out of it — how many people there will be travelling who are on the list. My guess is that the numbers will not be huge. As I have said before, the number of terrorists is, relatively speaking, small in any case.
The Chairman: How can the people of Canada be informed about how this process is unfolding? We all understand that security work must be, by its nature, confidential. You have outlined the various institutional safeguards; but is there any point at which you or SIRC or someone will be able to tell the Canadian people that this has been a very useful system and how many times over a given period it was deemed necessary to disclose the information?
In terms of the public's confidence in the integrity of the system, it would make a big difference if we knew whether it would be three or 300,000.
Mr. Elcock: I suspect, Madam Chair, that either before this committee or another committee from the other House, at some point a director of CSIS will be asked that question. Even if a committee does not ask us that question, my guess would be that SIRC would comment on those issues in its review of the elements of Bill C-7 and our related responsibilities.
The Chairman: Yet you would not volunteer the information unsolicited?
Mr. Elcock: We prepare a public annual report, but it is a fairly broad and generic document. There is an annual public report by SIRC, and my guess is it would figure in there. I do appear before parliamentary committees and I expect that my successors will appear on more than one occasion in the years ahead. There will be many opportunities for a director of CSIS to respond to those questions. It is not something that will only happen 10 or 15 years from now, I suspect.
Senator Corbin: Mr. Elcock is well known to me. I had the privilege of serving with Senator Bill Kelly some years ago, and Mr. Elcock took us into his confidence. We had a very enjoyable visit at his establishment and so on.
However, I still hear Mr. Elcock repeating many of the things that I have heard before. Yet, events happen. I do not know how to put this in a very responsible way, but are you not a little bit too fixated on certain groups, certain possibilities?
You do not have to be very sophisticated to be a terrorist. For example, in Parliament, gates have been closed on Wellington Street and we all go up the hill and back down through the Bank Street entrance. Yet, we have pedestrians coming in with backpacks containing who knows what. There will be a check at some point inside the Parliament building but before they even get to that checkpoint, events of catastrophic nature can happen. That is just one example.
Here the focus seems to be on passenger lists, airline lists. What about other modes of transport? Are you not concerned with them? Of course, this is a knee-jerk reaction to the twin towers incident and we will get other knee-jerk reactions to other incidents. The human mind has a capacity to focus on these things, and we all cringe at the possibilities. I know that the remarks you made were of a general nature. I wish you could take us into your confidence in a secret meeting as you have before.
Surely, the name of the game here is not to keep the public on edge and tense. Business is going on as usual. We all seem to be dancing to the tune called by the Americans these days, yet we forget that American policy and American initiatives are currently being examined, and they are also being highly criticized. I do not want to be enslaved to an American policy on terrorism.
What is particularly Canadian about your establishment? What is it that we do and do best that others do not do? What distinguishes the Canadian Security Intelligence Service from other information gathering bodies?
Mr. Elcock: I supposed the reality is that there are only so many ways that you can run an intelligence agency. Collecting intelligence is collecting intelligence. That said, as an example of the genre, CSIS is a very capable organization and is respected around the world as such.
The significant point of difference would be the degree of review of CSIS as compared with any other intelligence service in the world. I do not think there is another intelligence service in the world that has the degree of review that CSIS does. In that respect, it makes us a different organization. There is no question that having such a degree of review changes the nature of the service fairly dramatically.
Senator Corbin: I know you will not answer me but I will put the question nevertheless. How do we prevent another intelligence failure of the type that preceded the September 11 incidents?
Mr. Elcock: Intelligence by its very nature is imperfect. There is no absolute assurance that one will have the intelligence one needs, when one needs it, in order to prevent an attack. By definition in a sense, every intelligence service in the world is riding towards its next failure when it may not have the information it needs.
Knowing that it is an imperfect world, we try to build in an intelligence organization is a capacity, a flexibility, a degree of expertise that minimizes those risks of missing the next attack. As I said, there is no absolute guarantee. It is simply application, good people, good systems, good structure, and in our case, too, a review has played a major role in that. It has caused us to be somewhat different from other services, to be perhaps more careful than other services, to be a very disciplined organization.
All of those things are necessary to have a capable intelligence organization living and operating in a somewhat imperfect world.
Senator Jaffer: Mr. Elcock, I understand in the U.S. they get rid of the information after 24 hours. Do you know if that is correct?
Mr. Elcock: I am not sure. I would have to check.
Senator Jaffer: Apart from what you have set out in getting information from passenger lists, does this act give you any other tools?
Mr. Elcock: No, it does not.
Senator Beaudoin: I should like to pose a question that I asked of the first panel. If these arrangements are not legally binding, how useful are they? Do we need them if they are not legally binding?
Mr. Elcock: The arrangements we have with other services are, at the end of the day, crucial. They are not the only things we do. Obviously we have our own operations both here and abroad. The bottom line is that no service in the world these days is capable of covering all of the problems in the world. Therefore, it is crucial to have a degree of cooperation with other services, assessing the nature of that particular service, assessing its strengths and weaknesses, assessing its record and so on, so that we are able to be effective against all of the various threats — be it counterterrorism, counter-intelligence, counter-proliferation, et cetera.
We have talked here briefly about the responsibilities of CSIS in respect of counterterrorism. We have other responsibilities. There are other areas where other services and CSIS cooperate in looking at a variety of issues of importance to the security of Canada. In each case you have to look at whom you are sharing with and make an assessment of whether the arrangement is appropriate and whether the information you are sharing is the appropriate information to share. However, it is crucial to have these arrangements.
Senator Andreychuk: It seems to me that you work best when you have well-trained personnel who understand the world today. To what extent have you focused your efforts since September 11 on rethinking the strategy of how you gather information as opposed to relying on legislation to give you new tools?
Mr. Elcock: We have received no new powers. We did not receive any powers under Bill C-36. Certainly we have not sought broad additional powers in any respect.
There is a misconception that somehow September 11 is a watershed for intelligence services. It certainly was for many others in society, I suppose, but for intelligence services — and CSIS is an example — the event merely required us to intensify what we already did. On balance, coming out of September 11 we were doing the right things. The reality is we are now having to do even more of them.
Senator Andreychuk: We have agreements with other countries, and we have signed protocols with other countries throughout our diplomatic work, which includes some intelligence gathering. If no further powers were given under this act, would you continue to have arrangements and understandings with your counterparts?
Mr. Elcock: Yes, we would, Madam Chair.
The Chairman: Thank you, Mr. Elcock. This has been a most informative session, and we are all very grateful to you.
Honourable senators, our next meeting will be on Thursday, March 25, at 10:45. We will hear witnesses from Air Canada, the Air Transport Association of Canada, and possibly others as well.
The committee adjourned.