Proceedings of the Special Senate Committee on the
Anti-terrorism Act
Issue 5 - Evidence - Morning meeting
OTTAWA, Tuesday, March 15, 2005
The Special Senate Committee on the Anti-terrorism Act met this day at 10:30 a.m. to undertake a comprehensive review of the provisions and operations of the Anti-terrorism Act, (S.C. 2001, c.41).
Senator Joyce Fairbairn (Chairman) in the Chair.
[English]
The Chairman: Honourable senators, I call to order the tenth meeting of the Special Senate Committee on the Anti- terrorism Act. In October 2001, in direct response to the terrorist attacks in New York City, Washington, D.C. and Pennsylvania, and at the request of the United Nations, the Government of Canada introduced Bill C-36, to amend certain acts, which resulted return; in the Anti-terrorism Act. Given the urgency of the situation, Parliament was asked to expedite the study of the legislation and agreed. The deadline for the passage of the bill was mid-December 2001. However, concerns were expressed that it was difficult to thoroughly assess the potential impact of the proposed legislation in such a short period of time. Thus, it was agreed that three years later, Parliament would be asked to examine the provisions of the act and the impact on Canadians with the benefit of hindsight and in a less emotionally- charged situation for the public.
The work of the Special Senate Committee represents the Senate's obligation to complete this task. When that is done, the committee will report its findings to the Senate, outlining any issue that should be addressed. The results of our work will be available to the government and all Canadians. Currently, the House of Commons is undergoing a similar process.
To date the committee has met with government ministers, the Director of the Canadian Security Intelligence Service and international and domestic experts on the threat environment within which the Anti-terrorism Act is expected to operate. We continue our deliberations of the threat environment today with testimony from Professor Wesley Wark from the University of Toronto. Committee members followed the work of Professor Wark on a recent forum held here on these issues. Professor Wark, please proceed.
Mr. Wesley K. Wark, Professor, International Relations Programme, University of Toronto: Madam Chairman, thank you. I am grateful for the privilege of addressing this Special Senate Committee. I will preface my remarks by saying that I was one of a number of experts who gave testimony before Parliament in the fall of 2001, when Bill C-36 was drafted for the House of Commons. I have followed the evolution of the bill and the threat environment, as well as public attitudes in Canada since that time.
Bill C-36 was introduced and enacted in the fall of 2001, at a time of crisis and high anxiety when many experts expected the imminent launching of second-wave al Qaeda strikes against North America. If not proposed emergency legislation, Bill C-36 was certainly proposed crisis legislation. It must be acknowledged that even in that crisis environment, important modifications to the draft legislation were made in the fall of 2001 to meet criticisms aired in Parliament and before the then Special Senate Committee mandated to examine its subject matter.
Despite the revamping of the bill from its original form to its final version, critics of Bill C-36 continue to argue that it represents an unnecessary intrusion into Canadian civil liberties and an unnecessary affront to Canadian values. I have heard these arguments often. They are based on one of two general grounds, sometimes explicit and sometimes implicit, either that Bill C-36 was unnecessary because the existing Criminal Code was sufficient to handle terrorist offences or — and this is generally a more implicit argument — because the level of threat to Canada and Canadian interests did not warrant the expansion of judicial and government powers. Much of this criticism was aired in a vacuum with little knowledge of comparable powers and legislation that had been enacted among our close allies. Since the fall of 2001, many of the more significant powers of the Anti-terrorism Act have been used only lightly. No second- wave al Qaeda strikes in North America have occurred yet. Does this mean that Bill C-36 was unnecessary? In my opinion, it does not mean that. The legislation represents a necessary tool in an ongoing and, no doubt, lengthy fight against terrorism. The legislation is necessary but, not surprisingly given the circumstances in which it was enacted, flawed and incomplete, in my view in some senses. As enacted, Bill C-36 has come some of the characteristics of a bogeyman when it comes to public discussions. The current review of the Anti-terrorism Act in Parliament may become bogged down in a repetition of the arguments that took place in the fall of 2001. Were this to happen, we might miss the opportunity to correct some of the bill's flaws and to see beyond its details to understand how the legislation has failed some broader national security needs and public goods.
The more detailed points and recommendations I will make to this committee in respect of the act are based on a series of factors or underlying arguments that I will outline quickly. First, the assertion that the terrorist threat to Canadian interests and global interests is real, significant and ongoing. Second, the criminalization of terrorist offences was necessary. I do not buy the argument that the pre-September 11 Criminal Code could have done the job. Third, Canada had an obligation to meet international and UN conventions on terrorist offences. Fourth, it is important to under that the bill has a important political and symbolic function to perform in calling Canadian public attention to the threat of terrorism. Fifth, the act ultimately depends heavily for its legitimacy on public support and knowledge. Sixth, the act ultimately depends on the capabilities of the government security and intelligence community for its effectiveness. The flaws in the act rest mainly not on some of the legislative details that have been the focus of debate but on its failure to secure public legitimacy and to ensure operational effectiveness. With the indulgence of the committee, I will proceed to a series of detailed observations that follow the bill clause by clause.
The first observation is in respect of the so-called draconian provisions of section 83.28 of the act, Investigative Hearing, and section 83.3, Recognizance with Conditions. It is my view that Parliament should insist on prompt and full annual reporting requirements, to which the government has not always adhered, to date. I also believe that these draconian provisions should be renewed subject to a further sunset clause. This leads to my second detailed recommendation — that Parliament should require an ongoing or constant review process of the Anti-terrorism Act on the current three-to-five-year cycle. I would not recommend the ongoing one-year review that the British Parliament recently adopted. I think that a three-to-five-year cycle is perfectly appropriate. Third, by way of recommendation the use of Attorney General certificates regarding disclosure of evidence in trials and proceedings is a powerful tool that we need to keep under close scrutiny. This power should be reviewed again as part of the ongoing scrutiny of the act as more experience is gained through its usage. This also links to some amendments to the Access to Information and Privacy Act, which also gives the government discretion to withhold information in that process. The first three observations refer to one of the key issues on my mind — how to secure and sustain public legitimacy and knowledge of the nature of the act and its implications.
My fourth observation is in respect of Part 4, which received little attention in the examination of Bill C-36 in the fall of 2001, and the creation of FINTRAC, the Financial Transactions Reports Analysis Centre of Canada. This small part of the act carries important lessons for us in operational effectiveness. For the sake of better efficiency and coordination, Parliament should consider separating the money laundering and terrorist financing duties of FINTRAC and placing terrorist financing responsibilities under the Counter-terrorism Branch of CSIS. The alternative would be to move FINTRAC, in its entirety, under Public Safety and Emergency Preparedness Canada, PSEPC. I am sure that senators are aware that FINTRAC had an existence prior to September 11 and its duties were assigned only to tracing criminal money laundering. FINTRAC was given an added responsibility after September 11 to follow terrorist financing. The institutional assumption was that there was a similarity of congruence between terrorist financing and criminal money laundering. I do not believe any such congruence actually exists. In fact, we have created an agency with two different responsibilities, and I fear for its effectiveness in that respect.
For my fifth observation, I will move on to another part of the act that also speaks to the question of operational effectiveness and its impact on the general workings of the Canadian security and intelligence community — Part 6 and the enabling legislation for the Communication Security Establishment. In the fall of 2001 we had many dramatic issues to debate, such as the definitions of ``terrorism,'' the prescribed lists of terrorist entities, facilitation of terrorism, charity, registrations, et cetera. My argument is that with the passage of time and the lowering of some of our anxieties, it is time now to pay attention to some of these details. The Communication Security Establishment is engaged in the collection of foreign intelligence and is a critical component of the Canadian intelligence community, although it is one of its most secret arms. Section 273.65 of the Anti-terrorism Act gives the CSE the authority under ministerial direction to target what is defined as ``private communications.'' In practice, the CSE interprets this authority to mean that it can collect some signals' intelligence within Canada, as long as Canadian targets are at one end of a foreign-based communication net. From my own study of signals intelligence agencies, which goes back more than 20 years, I cannot see this as anything more than a polite fiction. Parliament should insist on a review of the CSE capabilities and interception policies to determine whether a distinction between foreign and domestic intercept targets remains valid in an age of terrorist threats and whether the existing lines of authority between the CSE and CSIS, in respect of monitoring the interception of communications, operate to the requisite levels of effectiveness. Otherwise, we risk losing one key intelligence collection tool in the war on terror, and this speaks to the issue of effectiveness.
My sixth observation concerns the Security of Information Act, which received relatively little attention in the fall of 2001 because it was overshadowed by other issues. The Security of Information Act is addressed near the end of the bill and was a revision of the Official Secrets Act, carried out after a long study of the problems inherent in the old Official Secrets Act. The new Security Information Act is a disaster, in my opinion. Its definition of ``special operational information'' is too broad and diffuse. Its public-interest whistle-blowing provisions are inoperable. Its creation of a class of persons ``permanently pledged to secrecy'' is Orwellian, unnecessary and impossible to administer in practice. The Security of Information Act has the capacity to introduce an unwarranted chill on informed public debate on national security issues. The O'Neill case, of the Ottawa Citizen reporter served with a search warrant under the Anti- terrorism Act, is an example of this. My advice to Parliament is that this part of the act be rejected in its entirety and sent back to the Department of Justice Canada for a thorough re-drafting. The Security of Information Act speaks to both the issues of effectiveness and public legitimacy.
My seventh observation is that, by creating a special category of terrorist offences under the Criminal Code, the Anti-terrorism Act contributed significantly to a post-September 11 momentum that saw the RCMP, as well as provincial and municipal police forces, engage in counterterrorist investigations in a significant way. This has led to the creation of problems of mandated jurisdiction between law enforcement agencies and intelligence gatherers, in particular the Canadian Security and Intelligence Service, CSIS. The rush by law enforcement agencies into counterterrorism activities, for which they have little expertise, needs to be halted and reassessed, especially in light of the actions in the Maher Arar case. Distinctions between the investigative function, with CSIS in the lead, and the arrest function, with law enforcement agencies fulfilling their necessary mandate, needs to be reasserted. To achieve this, Parliament should insist on a full-scale public review of the counterterrorism function at the federal level, which may need to be broadened in respect of the general effectiveness of Canadian intelligence, to meet 21st century domestic and global security threats. We are the only member of our tightly knit intelligence alliance that has not engaged in a full-scale public review of some aspect of its intelligence capabilities. The British, Americans, Australians and New Zealanders have done this.
My eighth observation is that the act ultimately depends on public support and knowledge for its standing in Canadian society. This evokes the question of chivalrous mythologies and bogeymen. Canadians remain confused about the nature and reality of terrorist threats. The government has failed in its duty to educate citizens about this threat or to assist in creating conditions whereby a fully informed debate can occur. To remedy this problem, I would suggest that an annual government document be tabled in Parliament that assesses the current threat from terrorism to Canadian domestic and global security. This document should be compiled by the Minister for Public Safety and Emergency Preparedness with input from a national security advisor. The report might be similar to the annual report of the U.S. State Department on global trends in terrorism. This recommended annual government report should also spell out for Canadians the respective roles and functions of the various components of the security and intelligence community, which would be one step toward achieving public legitimacy.
The Chairman: Thank you, Professor Wark. We will go to questions.
Senator Andreychuk: Professor Wark, you have hit upon a point with which I disagree. There is a concern about authorizing powers to the government that it never had before in any systematic way, and citizens should be worried about those powers because they can affect the rights of all Canadians. However, I agree that we will not be effective if we do not understand intelligence gathering. Could you expand on why you think that our counterterrorism functions have to be reviewed? In the United States we have seen that intelligence gathering and its interpretation — not the laws and their application — constituted the weak link. Are we missing out for lack of personnel, training and updating of skills? Is this your meaning when you talk about the situation in Canada or is it more than that vis-à-vis Britain, the United States and other countries?
Mr. Wark: That good question gives me the opportunity to expand on this issue. There are a number of points. It is understood and accepted that in any kind of engagement with terrorism, whether it is called ``a war on terror'' or otherwise, all security precautions that you might take are dependent for their effectiveness on good intelligence. You often hear the catchphrase ``intelligence is the first line of defence.'' Everyone understands the truth of that, in principle. If it is true in practical terms, then it requires considerable upgrading of intelligence capabilities in many countries, not just in Canada, and an ability to constantly review and assess those capabilities. Although we have existing accountability and review systems in Canada, and planned ones if a parliamentary committee were established, they have been largely focused for historical reasons on the adherence to law of these agencies. No genuine and significant concerns about effectiveness and capability have been included in the mandates of these agencies.
I say that to underline one point: in neither our accountability and review mechanisms nor in the security intelligence community within Canada is there capacity to study themselves in an honest way. There is no institutional or cultural capacity to do this. If you were to accept the point that we need some kind of thorough assessment of capabilities on an ongoing basis, then you would have to ask how it should be accomplished. Something in the order of a public review is required, of a kind that we have not seen in Canada since the Royal Commission on the Economic Union and Development Prospects for Canada under Liberal minister Donald MacDonald, reported in the early 1980s. We have gone through a process of developing a national security strategy document, and we have been promised foreign defence policy reviews. However, the missing piece of the puzzle is an intelligence and security capabilities review, which can only be generated through a public process or external expert study.
It is vitally important for Canada to get this right for our domestic security, for the way in which we work with our allies and for our understanding of the significance of Canadian-generated information, as opposed to ally-generated information, on global issues and problems.
The underlying point is that the public must have confidence in knowing that our security and intelligence community is up to the task; and that public confidence cannot be generated by a public relations campaign of the government. Rather, it has to be underpinned by a process of systematic review that is extended over time.
We do not have that capability in Canada, which is a weak spot. We are not testing the operational capability of the intelligence community and not providing the necessary material for an informed public debate. In Canada, we have a secret intelligence community; and, in the public domain, we have a great deal of mythology, concern and anxiety, much of which is unnecessary, about that secret community. That is a matter of tradition and how we did things in the past. That has to change.
Senator Andreychuk: Do you see any of the old patterns changing? I still see the government response as being, ``If we do not have all these powers and if you do not allow us this discretion, you will be at risk.'' However, when asked how it would exercise the power, the answer would be, ``We cannot say because if we were to disclose any intelligence, we would then be vulnerable to an attack by virtue of releasing information.'' How would one conduct such a public policy and bridge that attitude?
Mr. Wark: It is a false problem, in a way. Other countries have engaged in this process successfully over time. Britain, Australia and the United States have had public reviews of their intelligence capabilities and problems. The point of these reviews is not to find scapegoats or to score political points but to improve the effectiveness of intelligence communities. You can review an intelligence and security function without giving away secrets, which has been established by long practice in many countries. Canada does not have that tradition. If you accept that intelligence has to be a first line of defence, as it is for other countries, then you need a way to generate the confidence that the first line of defence is truly capable of doing the job. The best way to assure and convince the public is through a public review process, for which there are various methods. It could be done by a parliamentary committee, which was promised but does not exist, or by a royal commission. However, nothing has been done yet and it is a considerable weak spot.
On the issue of powers, I differ from many critics of Bill C-36. Although it was proposed omnibus legislation, I do not see it as giving the government an overweening new footprint in the field of security and intelligence matters. In looking closely at the bill, one can see not only the necessary measures but also a great deal of cautionary measure with many checks and balances.
We were all expressed theoretical concerns, quite appropriately, about the potential for abuse in various provisions of Bill C-36. We should be somewhat reassured by the history of the use of the bill since its enactment in December 2001 in that we have witnessed relatively few abuses and a cautious and conservative use of the act for the most part.
Senator Andreychuk: Bill C-36 cannot be analyzed except in conjunction with all of the other acts affected by it and the new powers gained by the government. It does not surprise me that Bill C-36, on its own, does not look as threatening as it did initially. However, that changes when it is viewed relative to the other acts that resulted from the passage of the bill, in particular the Aeronautics Act and the act that gives ministers the ability to shut down in the event of a crisis such as SARS, which has nothing to do with terrorism. We have expanded powers not by virtue of Bill C-36 but by virtue of the resultant legislation and matters that go beyond terrorism. Those who follow this develop an unease when they realize the collection of capabilities that are in the hands of the government without review processes.
Mr. Wark: I would respond by saying that lack of distinction in large segments of the population between the powers of Bill C-36 and issues to do with racial profiling and immigration security certificates complicates public understanding of Bill C-36 and the general issue of government powers and policies in this field. As you are aware, racial profiling is not mentioned in Bill C-36 and, therefore, is not in the act. The immigration security certificate process is long established and predates September 11 by one decade; thus, it has nothing to do with Bill C-36. You are quite right to say that all of this is part of a general conception of the problem of government powers. I would hope that this committee and the parliamentary review will deal with it and take some steps to dispel some of the mythology.
Senator Smith: In your introductory remarks, I am not sure whether you used the word ``myth.'' However, you did say that you disagreed with the viewpoint expressed by some that the provisions in the Criminal Code at the time of 9/ 11 were adequate to deal with any necessary actions. I am not arguing with you, but I would ask you to explain the gaps if we had only the Criminal Code.
Mr. Wark: I should backpedal slightly and underline the fact that I am not a lawyer. My principal view on this is twofold, or perhaps threefold. The existing Criminal Code would not assist Canada in terms of bringing its legislation into line with UN conventions. Therefore, we would have to engage in a process of legislative revision to meet those UN conventions on terrorist offences of various kinds.
We all understand the law as having a symbolic and political function. The Canadian public expected the Government of Canada to take steps to single out terrorism as a particular offence and to find ways to criminalize those offences in new legislation. There was a political and symbolic need to do this in terms of Canadian, global and, certainly, allied expectations. We have done this in ways that are similar to measures taken by our traditional allies, although in many respects rather more benign and benevolent, especially when compared with the Patriot Act or the British anti-terrorism legislation.
As well, from my non-legal perspective, I cannot see terrorism as a typical form of crime, such as the robbing of banks and other crimes dealt with in the Criminal Code. Terrorism is a distinct and dangerous kind of offence to human security and values. For that reason, it deserves a special place in our legislation. Clearly, we would have had to define ``terrorism'' as a form of offence. Once on that road, you would be creating a special category of offences in the Criminal Code. I see this whole process as inevitable in the circumstances of post-September 11.
Senator Smith: I cannot resist pointing out that several weeks ago I was in Ireland where I heard that robbing banks and political agendas were not altogether divorced. On the balance between dealing with the threat and having respect for civil liberties, is this close to achieving the right balance? You said that the security of information aspects could be eliminated so that we could start over. In terms of that balance per se, what is your comment? I refer to the balance between adequately dealing with a threat and civil liberties, à la Alan Borovoy.
Mr. Wark: Yes, I am familiar with Mr. Borovoy's arguments on the matter, which I respsect. He and I found ourselves on the same panel testifying before the House in the fall of 2001. I must confess to a slight metaphysical or academic or intellectual unease at the concept of balance because I am not sure that is the true issue. It is not that we trade legislative powers in this field for civil liberties, which can be the outcome at times, but I am not sure that it is the organizing principle. We need to have both. One does not egregiously change the basic approach to civil liberties in order to enact anti-terrorism legislation. For the most part, the act does a reasonable job of trying to surround new powers, which I deem necessary, with some checks, balances and caution. The appropriate way is to ensure a degree of Federal Court adjudication of the tougher provisions of the act. That would be a reasonable way to do this.
However, there are other important checks and balances that we have seen operate invisibly in Canada since September 11.
This is why I reject some of the more impassioned and extreme views on the dangers of the act. We operate in a society that, on the whole, has no time for terrorism and for overweening government power. Thus, we operate in a natural system of balance in that respect, which I do not think the act has disoriented. Coming back to Senator Andreychuk's point, we have to remain alert to the possibility of abuse. I have not seen many signs of practical abuse thus far, with some exceptions that I mentioned, or much momentum building toward possible abuses in the future.
Senator Smith: You referred to a full-scale review of the counterterrorism function. You referred to the role of a national security adviser, similar to the U.S. Do you think that needs enhancing? I am prompted to ask the question because I was on the Standing Senate Committee on National Security and Defence for several years. At 10 meetings out of 10 we heard a pitch about how tens of millions of dollars needed to be spent on items A, B, C, D, E, F and G, all of which sounded compelling at times. However, there is only so much in the wallet and many other issues, such as health care, must be considered. The choices are difficult. We heard about the huge land mass of Canada that is porous and about the Coast Guard being watered down to the point that it is a bit of a joke, according to some. Even if you were to increase the number of Coast Guard boats operated by the military by five, the land mass is so huge that it would not matter how much money were spent to deal with a suicide terrorist. Is this a spending priority item? You talked about a full-scale review of the counterterrorism function, and I understand that we need certain securities in place here, although I look back longingly at the days when we could walk around anywhere with no thought to security screening. Security was taken for granted. Could we have your comments on that, please.
Mr. Wark: Senator, I suspect we are destined to live with screens for the rest of our lives and the lives of our descendants. However, my conception of a review is that it is not a forum for suggesting to different government departments and agencies that they make bids for additional money. I suspect that the security and intelligence community, which would be the focus of such a review, thinks that it has enough in the various national security budgets passed since December 2001 to digest for the near future. Such a review needs to concentrate on the intelligence information gathering, assessment and dissemination of information functions, which are at the heart of the security and intelligence community, and not on the hard assets that exist to respond to that information. We need to ensure that we have constant knowledge of the real threats, the high risks and even the real dangers of low- probability risks that exist. This is a matter of whether we have that knowledge at the heart of government and, if we do not have it, we could make improvements.
It is a way of asking ourselves questions about the kind of institutional hodgepodge that has developed in the security and intelligence community, as a result of historical accretions since the Second World War and about who is responsible for what and where does institutional power lie. Of course, one of the key issues post-September 11 is the whole matter of coordination and how to ensure that the various elements of a government's security and intelligence community are working effectively together. We need to know who coordinates the effort to ensure that the intelligence you hope to receive reaches the decision-makers at the bureaucratic and political levels. All of those issues have been the focus for studies in the U.K., Australia and the United States. They are passionate studies about failures related to September 11 and the Iraq war. Perhaps those things do not affect us directly, but we could benefit a great deal from them.
We need a smart government in terms of intelligence and security in Canada because we are a multicultural country living in a North American environment with global security interests. My fear is that we know less than we could know about terrorism but because there are no internal mechanisms or culture for change and improvement, the only way we can achieve this is through external pressure.
Senator Smith: That is fair. However, I cannot lose sight of the fact that we may have a global-sized land mass but we are not a global power and we do not have a global budget. We have to remember to keep our efforts in the affordable category.
Senator Kinsella: Professor Wark, I would like to briefly explore three areas: the current anti-terrorism intelligence infrastructure in Canada; FINTRAC; and the point raised by you in your presentation about security of information provisions.
In your opinion, what are the three most outstanding gaps in Canada's anti-terrorism intelligence infrastructure? What is operationally ineffective? What are your recommendations for dealing with them? In respect of mechanisms to be used in other areas of the public service for ongoing program evaluation, is there a unique model that would be applicable to assess Canada's anti-terrorism intelligence infrastructure?
Mr. Wark: Senator, you have given me a delightful opportunity to imagine a better intelligence community but I will to stick to the top three recommendations. First, we have to understand that we are an anomaly in the global community because we do not have a true foreign intelligence service, although CSIS has moved in that direction, without an explicit mandate to do so, over the last several years. We need to address how good we are at collecting the kind of foreign intelligence that we need through overseas operations of various kinds.
Second, there remain serious issues about our ability to assess and make sense of the information collected by various Canadian agencies and departments and the information that comes to us from our allies. The recent Report of the Flood Inquiry into Australian Intelligence Agencies estimated that Australia is dependent to the degree of about 97 per cent for its intelligence on the global picture, and that is probably similar to the Canadian situation. When a government is that dependent on foreign sources for intelligence, it needs to have an extremely good assessment capability to ensure that it understands the picture in Canadian terms. We have increased the capability but we do not have an assessment system that is as strong as it could be, and there are various reasons for that. Partly, it is bureaucratically divided and fractionalized in that part of it exists in CSIS, part in the Privy Council Office and part in bits and pieces throughout the federal government. The whole question of how we understand, assess and report, particularly strategically on critical threats to Canada, remains to be studied and improved.
Third, measures have been taken since September 11 to try to improve the coordination of the Canadian security and intelligence community, but I am not sure they have been effective yet.
Some of them rest on the ability of the public safety department to function in this field, which remains unknown, to some degree. Some of them rest on the ability of the national security adviser to function effectively as a coordinator. Some of them give cause to wonder what the relationship between a national security adviser reporting to the Prime Minister and Public Safety and Emergency Preparedness Canada might be. However, coordination is critical to ensure that you do not engage in inefficiencies, and I take Senator Smith's point that in a necessarily small and budget- restricted effort, you do not suffer from unnecessary inefficiencies. We must also ensure that you can find and use the necessary information quickly. Foreign intelligence service, assessment capabilities and coordination are the top three gaps.
Senator Kinsella: The second matter that you mentioned was FINTRAC. You suggested that it might be better located under Public Safety and Emergency Preparedness. Would there be serious operational gaps with that? Witness testimony has indicated that there is a great deal of fundraising occurring via front groups. Indeed, last evening we heard the testimony of a witness who said that the Government of Canada is one of the contributors of grants to some of these front organizations. I was quite surprised when that witness indicated that there have been meetings of members of the ministry and some of these organizations. One such group referenced was the Tamil Tigers and its fundraising dinner that was attended by the former Minister of Finance, our current Prime Minister. We heard testimony that there have been transfers of money from the Hong Kong Shanghai Banking Corporation, HSBC, for the transfer of monies to purchase weapons from Canada. What is wrong at FINTRAC?
Mr. Wark: I preface these remarks by saying that we know too little about the real capabilities of FINTRAC. We need to recognize that it is a relatively young organization that is doing a difficult job. It is understood that the business of tracking, impeding and intercepting terrorist fundraising is one of the most complex challenges in the field of anti- terrorism. Nevertheless, all of our partners, including the UN, take the challenge seriously. The United Nations has given its most strenuous efforts as an international organization to focus its energies and the global community's efforts on interdicting terrorist financing. It is an extraordinarily difficult thing to do.
That is why I worry about FINTRAC in terms of its creation by adding the terrorist financing job to an existing small organization whose expertise resided in tracking criminal money laundering. I do not think there is much similarity, to be honest, between the nature of and problems with investigating criminal money laundering and with investigating terrorist financing. FINTRAC is a two-headed beast that we cannot afford. To study criminal money laundering, we need to be effective at impeding terrorist financing. However, the two should not be combined in one small organization that is bureaucratically disconnected from the key centres of expertise in the Canadian government; principally, the Canadian Security Intelligence Service.
My view on this, without speaking to any authority and without knowledge of any secrets about FINTRAC, is that FINTRAC has been given a mandate that is too ambitious and wrongly placed institutionally, both of which are dangerous. FINTRAC needs to live in a department or agency that is principally engaged in counterterrorism work in order to benefit from all the intelligence and knowledge that the agency or department might have, whether it is Public Safety and Emergency Preparedness or CSIS. The bill suggests that in certain circumstances, FINTRAC information should be passed to CSIS when that information seems to be terrorist-related. That is the recommendation and advice that has been given to FINTRAC and any time I see such an advisory note in a piece of legislation, it scares me. I do not know how well that relationship works but the way in which we created FINTRAC was simply wrong; and we need to rethink it. I would urge that the obvious home for it is either under CSIS or under Public Safety, where it could live in a milieu of substantial expertise on terrorist groups and terrorist threats. You cannot have an institution tracking terrorist financing that does not live institutionally in that milieu. Therefore, I fear the effectiveness of FINTRAC.
Senator Kinsella: You drew our attention to the Security of Information Act and the nature of the old Official Secrets Act. When Bill C-36 was before Parliament, those sections were added. I made a note of your statement because you were categorical and it is good to have categorical propositions laid on the table from time to time. You suggested eliminating the whole section and redrafting it ex de novo. Could you explicate that for the committee?
Mr. Wark: In explicating, the three key components of any official secrets act, however you name it, are wrongly devised in the Security of Information Act. I preface these remarks by saying that we need an effective official secrets act and, prior to the revision of the Official Secrets Act that provided for the Security of Information Act, we did not have an effective official secrets act that the government was confident to use in many circumstances; and so it was rarely used. We need such an act, if nothing more than as a form of deterrence.
Of the three key provisions, the first is how to define ``secrets.'' We have to struggle with this but the definition provided in the Security of Information Act is in fact dislocated from the real world of intelligence secrets. Intelligence secrets and secret knowledge in the government are defined according to a series of security classifications on documents. Most official secrets acts use that basis to determine genuine secrets from information that is not secret, even though there is a security over-classification problem in all democracies for various reasons.
The definition of ``national security information'' in the bill is simply far too broad. It gives the government too much power to say that a piece of information is secret on its say-so and not because the document is stamped ``Top Secret'' or ``Classified.'' Such a provision opens itself up to an obvious abuse, which is that a government tries to protect itself from embarrassment under the cover of the Security of Information Act rather than protect its genuine secrets.
The second key point is that it is important in any Official Secrets Act to have a genuine whistle-blower protection in the public interest. My study of the whistle-blower protection in the Security of Information Act suggests that it would be inoperable. I cannot imagine a real-world circumstance in which you could have any whistle-blowing under that Security of Information Act. That leads me to the slight suspicion that the intent of the bill was to prevent any whistle- blowing, which is a danger.
The third key point is that the Security of Information Act has set up a bureaucratic monster that requires the government to identify persons permanently pledged to secrecy, which, as the act is written, includes all veterans of what used to be called the ``Communications Branch of the National Research Council,'' which was formed in 1946. You have to identify and notify all of those people that they are persons permanently pledged to secrecy and to keep their files in a central location such that if they were to talk in public about any of it, they would be potentially prosecutable.
Some of the information surrounding this exercise to identify persons permanently pledged to secrecy, which I gather is in the hands of the Treasury Board, suggests that the government knows it has created a nightmare that it simply cannot administer and that any amount of time wasted on this monumental list of persons permanently pledged to secrecy is a waste of scarce resources.
It is the question of the potential chill. You cannot have an educated public, which we need, unless knowledgeable experts and retired professionals have a capacity to speak out on occasion in public, perhaps under a system of control and accountability, so that there can be informed debate on the matter. As a concrete example of this, anyone who served in CSIS, any signals intelligence branch or in Foreign Affairs intelligence that decided to write a memoir of their service 20 or 30 years after active service ended would be prosecutable under the provisions of the current Security of Information Act. It is unlikely to ever happen but the possibility exists and I deem that pure nonsense because it is a threat to public knowledge.
Senator Fraser: Professor Wark, you cover so much ground but I will try to confine my questions to FINTRAC, as tantalizing as the other elements are. I would like you to react to the following comments: We heard more than one witness say that terrorist groups engage in some of the same activities as organized crime for the purpose of financing. The two do not have the same objectives but they engage in the same kinds of activities. That strikes me as one reason for keeping both investigative functions under one heading. It also strikes me that if we were to separate criminal financing from terrorist financing, would we not then have to set up not one but two screening agencies? If memory serves me well, FINTRAC currently checks millions of transactions each year. It is a big deal. Would we not have to duplicate that effort if we had two separate agencies?
Mr. Wark: I take the point, senator, and it is accurate. Over the years we have learned that the modus operandi of terrorist groups, certainly those in the era of al Qaeda, is such that from time to time they find it opportune to engage in activities that we would deem similar to criminal money laundering. We also know that at the heart of terrorist financing efforts, particularly organizations such as al Qaeda, their system of fundraising is quite different. There may be elements of overlap and similarity but there are also important elements of difference about how terrorist organizations move money around the world.
Money and information are the two key lubricants of global terrorism, both of which present enormous challenges to interdict. I suggest that we keep FINTRAC intact but move it to a better milieu. We should study this recommendation and then see what happens. If we set up two institutions, we would have two parallel recording requirements. The terrorist financing reporting requirement of banks and other organizations would be more targeted than the criminal money laundering requirement. We would have those two streams. In this case, some degree of overlap would be beneficial because it might reveal something you would not otherwise find.
Canada has an obligation to itself and to its security. In light of the UN efforts to which we subscribe internationally, Canada has an obligation to try to prevent terrorist financing, although we have not created the best institutions and structures to do that. It is worthy of some institutional investment because it is a key element of any counterterrorism campaign. I am not necessarily saying we need to create two separate agencies but we do have to recognize that these are different problems needing different solutions. In pursuing different solutions, we might create some degree of overlap and bureaucratic extension, but I am prepared to pay that price because the payoff might be significant.
Senator Fraser: My senses of pure instinct are pushing back, but not based on fact. If we move FINTRAC under CSIS, would we not run up against the well-known human tendency to define everything we see in terms of our institutional imperative? We expect CSIS to identify spies and terrorists because that is what we pay them to do. We control that natural human tendency by setting limits to what they are allowed to do. If we simply hand over FINTRAC — this enormous tool of access to our entire financial and commercial system — would we not end up with the degree of surveillance expected under the big brother theory? Do you envision any danger in that?
Mr. Wark: The potential danger always exists, senator, but it has to be recognized that we have already set up these reporting requirements. We have this process of introspection into financial transactions because we decided it was necessary pre-September 11 to deal with money laundering problems and doubly necessary post-September 11 to deal with terrorism. The question is whether CSIS would be inclined institutionally, as opposed to the Department of Finance, to abuse this? If we are weighing the dangers of that potential abuse against the benefits of the expertise, which is what I would see were terrorist financing under CSIS, then the benefits of expertise overweigh what we know of the culture or practice of CSIS since it was created in 1984.
Senator Fraser: I am not suggesting we have a nascent KGB in Canada. I agree with you about that — structures have their own consequences.
Senator Lynch-Staunton: I thank you for your presentation. We have tended to stray away to areas attached to it, and I was glad to be brought back to the legislation that is before the committee. I agree with everything you have suggested, but I still do not understand your anxiety with the Security of Information Act.
As I recall, following the incident involving Juliet O'Neill and the RCMP raid on her house, which hopefully will not be repeated elsewhere, amendments were added to the act that the government claimed would guarantee that such activities could never take place again. Do you agree with that assessment? Do you recall the substance of the amendments?
Mr. Wark: I do not remember the amendments and so I plead ignorance.
Senator Lynch-Staunton: I do not have the papers in front of me so I cannot continue. In any event, you fault all governments, with reason, for tagging documentation ``Top Secret'', in an attempt to protect the government from embarrassment than to protect information, and there is no way to stop that. It happens in all governments throughout the world. What is your solution to guaranteeing to the extent possible that authentic top secret intelligence is not released?
You were right to remind us that we did not spend much time on this particular provision. It is difficult to take an omnibus bill such as C-36, which touched on 10 existing acts, and in a short period of time try to complete a proper evaluation of its contents and intent. Now, we have this review period so it is never too late. How would you phrase a provision to exclude the excesses that you see, while at the same time guaranteeing to the extent possible that the release of authentic top secret information without approval would be subject to severe sanction?
Mr. Wark: That is a tough question for which I have no magic solution but I profoundly believe that the current legislation is wrong-headed. To pull it back into the realm of reality and greater effectiveness, I think that there would have to be a different legal definition of ``state secrets'' that might have to be gradated according to security classification of the information. That might have one beneficial effect. I fully accept your argument that over classification is a problem that will never disappear but if the Security of Information Act were more stringent in its definition of ``essential national security information'' and related that to the security of classification system, then perhaps you would have some control over that problem. It has to be understood that there are one or two categories of secrets that are extremely important to protect. Some are highly classified and protected for good reason because they are generated by particular sources and methods, whether from within Canada or from foreign allies, under particular and stringent caveats that we are at pains to obey. That kind of information has to be protected. However, the core information that you are trying to protect has to be identified in some way under any security of information act. Not only is that important in law but also important as a signal to those who are in the business of protecting that information. There has to be a process for sober thinking about this rather than a kind of blanket suggestion that national security confidentiality or special operation intelligence is simply what the government defines it as. There has to be a process whereby this can be identified as potentially adjudicated within the government. In other words, who is responsible for deciding? That is not clear in the current act. There has to be a more stringent definition of ``national security information'' and who is responsible for adjudicating it. As well, there has to be a capacity for public interest whistle-blowing. It would be a difficult task to rewrite the Official Secrets Act appropriately and that is one reason that all the rewrites over 10 or more years were stalled. No one devised a perfect solution. The omnibus Bill C-36 that resulted in legislation was, in some of its extended pockets, opportunistically abused by the government. The Security of Information Act was seen as an opportunistic time to finish the problem of an inoperable Official Secrets Act during a time when not much attention would be paid to it in the fall of 2001. I read it rather cynically in that sense. It could just fly onto the radar screen of public interest but it has given us a bad and inoperable system.
Senator Lynch-Staunton: How would you assess the information that Ms. O'Neill was given? Would you have considered that top secret or were the contents pretty innocuous?
Mr. Wark: I am not privy to the information she had and it is not clear from the case what information she had. However, it struck me at the outset that I could not understand what was unique about Juliet O'Neill in the context of much national media reporting on leaks surrounding the case of Maher Arar. I have read the decision to issue a search warrant against Juliet O'Neill approved by a justice of the peace, which is standard procedure but perhaps should not be for search warrants served under the Security of Information Act. I saw it as a matter of desperation by the RCMP, which was under a great deal of pressure to seal the leak. In trying to identify the source of the leaked information without much success, the RCMP looked for a different way. The incident raises the issue of whether there are privileged persons in Canadian society that are immune from the act; and the answer has to be, no.
Senator Fraser: I have a point of order.
The Chairman: Yes, senator.
Senator Fraser: As a former journalist, I have enormous sympathy for Ms. O'Neill. However, I believe the Arar case is still before the courts and so we need to be careful about our reference to the merits of either side. I am not trying to curtail the discussion, in principle, but on the specific merits of this case I am becoming a little nervous.
The Chairman: Your point is well taken, senator.
Senator Lynch-Staunton: It may be a point well taken but it is not a point of order. The exchange is using one case to identify documentation and whether that documentation should have been top secret. I am not faulting Ms. O'Neill for launching her case or faulting the RCMP for believing that it did the right thing. Rather, I am trying to understand the application of the act, and this is the only dramatic case in which it has been applied.
Mr. Wark: Yes.
Senator Lynch-Staunton: If the chairman thinks this line of discussion is out of order, so be it, but we will have an opportunity to discuss the means and methods with those directly involved in this particular aspect. I have another question. I am not aware of any whistle-blowing provision in the act. Could you explain what that is all about?
Mr. Wark: In the Security of Information Act, the steps required for legitimate public interest exposure of information are detailed, although I cannot recall the specifics of the intricate dance that the whistle-blower would have to do. Essentially, the act requires a series of notifications and approvals of heads of government agencies before such a whistle-blowing activity would be deemed valid.
Senator Lynch-Staunton: By the term ``whistle-blowing,'' you mean the release of information in a book or in an article, rather than the release of information to embarrass the government surreptitiously, which is what a whistle- blower usually does to remain anonymous. A whistle-blowing bill is before the House of Commons but whistle-blowers now feel uncomfortable because they can be sanctioned without recourse. Are you talking about the same thing in this act or does it apply more to the inclusion of information in a book or an article? Would this apply to an author writing a book 15 years after the fact not being able to reveal information for which he was sworn to secrecy 20 years earlier?
Mr. Wark: I am referring to both cases but the more pressing case would involve one who is in possession of information that could fall under the category of security intelligence and who thinks that the public needs to know it in order to prevent some form of abuse. It would include current information of some kind. The individual would have to do the wholly unrealistic dance in order to legitimately inform the public about the piece of knowledge that he or she may have. As well, it could apply to someone who wanted to write their memoirs 10 or 15 years after the fact, but that is not what we call whistle-blowing'' in common parlance.
Senator Joyal: I want to stay on the topic of the Security of Information Act. Mr. Wark, you have made some interesting suggestions. Are you aware that your proposed approach has been implemented in other jurisdictions comparable to Canada? You referred to the U.K., Australia and the United States. Are you aware of a better system than the one established by Bill C-36 that we should look into?
Mr. Wark: Senator, I could not convey the details of comparative international legislation on this except to say that the Canadian Official Secrets Act was closely modeled on the British Official Secrets Act. In fact, our bill dates back to the turn of the 20th century — as does the British one — in its original form prior to its modification after September 11.
There were modifications and updates to the British and American legislation, which is similar, to try to tighten the focus of the definition of ``secrets'' and to provide an operational system under the act for some degree of public interest whistle-blowing. The British, Americans and Australians, who were probably the most similar to Canada, modified their legislation over time to improve those dimensions. Canada stood fast on an increasingly ineffective piece of legislation until the opportunity of September 11 came around to revise it holus bolus and introduce proposed legislation, which was a product of some study of similar official secrets legislation in other countries but with a distinct Canadian stamp.
Senator Joyal: I recall that when those provisions were discussed before the Special Senate Committee on Bill C-36 three years ago, officials of the department told the committee that if we did not adopt those provisions, Canada would not be able to ensure the secrecy of information passed to Canada by foreign governments, with whom they would sign an information exchange agreement. That was the main argument given to the committee. How would you address that preoccupation and argument in a review of the relevant sections of the act?
Mr. Wark: I will come back to the point I made that Canada needs an official secrets act to ensure the ongoing flow of information from foreign partners and allies by ensuring confidence in Canada's ability to protect that information. Certainly, we need such provisions. My argument is that we have the wrong provisions to ensure that protection. I do not for a moment suggest that the requirement is invalid or weak, but we have developed the wrong set of precise definitions and procedures to ensure that. I would add that Canada has a reputation among its allies as being, in a way, the smallest of the intelligence partners. Paradoxically, or counterintuitively, it is the most secretive and security conscious. That is part of our history and culture. I do not think any of our close partners doubts for a moment our ability to protect our secrets. We have been good at it since we learned our lessons from Igor Gouzenko in 1945, which had a lasting imprint on Canadian security consciousness.
I think committee members were served a slight scare tactic embedded in the reality that Canada needs to protect secrets, both for its own and ongoing allied exchange purposes. In fact, we are very good at it. The problem is in the details of the Security Information Act.
Senator Joyal: I would like to read the fourth and fifth recommendations of the previous Special Senate Committee of 2001 in respect of the Secrecy of Information Act process suggested by you such that it is to be adjudicated what is a secret and what is not a secret. There should be a level of appeal and control. Three years ago, the committee recommended the following:
The Committee recommends that within 90 days of Royal Assent to Bill C-36, Parliament appoint an Officer of Parliament to monitor, as appropriate, the exercise of powers provided in the bill. This officer shall table a report annually, or more frequently, as appropriate, in both Houses.
Three years ago it was the view of the committee that an officer of Parliament should review and monitor the powers authorized by the Secrecy of Information Act and the security certificate provided to the minister so that there would be checks and balances within the system. All of us understand that certain information cannot be made public, but there must be a mechanism in place to review the ``abuse'' that could occur because a department or an agency preferred to keep an issue away from public scrutiny for a reason not related to official secrets. In your opinion, do you think that the recommendation of the committee is valid relevant to the Secrecy of Information Act in respect of the intent of Bill C-36?
Mr. Wark: Yes, I think it is a good provision. Probably on its own, if enacted, it would not be enough. In terms of an adjudication process, it would come a little in advance of this parliamentary scrutiny, which inevitably would be retrospective. I was talking about an internal bureaucratic adjudication process, whereby senior civil servants in positions of authority would be vested with a power to try to deliberate, adjudicate and separate out real questions of national security. They would be responsible to their ministers for differentiating true matters of national security and confidentiality from the bogus or less important matters. You would need both of those processes: a clear system operating inside the government to focus on a narrow range of secrets that have to be protected and a parliamentary process of accountability.
Senator Joyal: You mentioned earlier that some issues relevant to the objective of the bill are not covered directly by the bill, and we mentioned the security certificate related to the Immigration Act. Is it your opinion that racial profiling exists in Canada at this time?
Mr. Wark: My view on this is not common in academic circles. I think that what we call ``racial profiling'' does not exist. There is some inevitable degree of targeting of certain ethnic communities in Canada in a basic surveillance, intelligence-gathering and monitoring sense. How extensive that is I do not know because I am not privy to that information. If racial profiling does exist as a more widespread problem beyond an issue of civil liberties, it would also point to a genuine operational dysfunction because no intelligence community in its right mind would want to have such a wide net sieve as racial profiling suggests. It would be inundated with useless information. Intelligence depends on sensibly targeted investigative techniques and on enormous and systematic processes of selection.
The problem is the widespread belief that racial profiling exists. The reality is otherwise but it is difficult to bridge the gap between the belief and the reality. Some degree of what we might call ``racial profiling'' undoubtedly occurs as an operational necessity. The notion that all ethnic communities are targeted for widespread racial profiling is a mistaken but understandable fear.
Somehow we have to bridge that gap, because it goes to the essential point that you cannot have an effective counterterrorism or national security strategy at large unless you have public approval for it. I fear that we are entering an era in which public approval will increasingly wane, perhaps in conjunction with a growing complacency about the reality of the threat in the sense that it is not a Canadian problem but an American or British or Israeli problem.
Some degree of racial profiling happens as a by-product of operational procedures. The danger is the widespread perception in certain communities in Canada that it is standard practice because the security and intelligence community is incapable of distinguishing between real terrorists and broad-based ethnic communities and, therefore, targets everyone and makes them all victims. I do not think that happens but if it does happen, then we have an even bigger problem than I ever imagined with our security and intelligence function.
Senator Joyal: Do you have a more specific suggestion to bridge that gap? A matter of perception can be the reality in that situation. Considering that that might hinder the efficiency of the objective of the act, would you suggest that we undertake to bridge that gap to ensure that those hindrances are redressed? Are there initiatives that could prevent that kind of situation from recurring?
Mr. Wark: Some practical measures could be taken, which I mentioned in my opening remarks. There is a need for some kind of annual report to Canadians, in as much detail as possible, on how the Government of Canada perceives the nature of the terrorist threat in Canada and globally in order to partially dispel some of these mythologies. A process of public review on an ongoing basis, not a one-off, of the security and intelligence community would aid not only in conceivably uncovering problems but also in laying to rest some more exaggerated fears.
It is also incumbent on the agencies that engage in intelligence investigations and that find themselves working in ethnic communities, such as CSIS, to adopt sensible policies in this respect. They first have to understand that they might be creating a backlash situation or a problem in terms of the existing perceptions in those communities, and they have to find a way to engage in direct dialogue with them to dispel some of that.
Much of this problem was understood and encapsulated in the recommendation, although I do not think it alone is sufficient. That was part of the national security strategy document released in April 2004 that called for a cross- cultural round table of groups of concerned ethnic communities in Canada that might have an opportunity to engage in direct dialogue with the government about their concerns. That cross-cultural round table has begun its work and could make its own contribution, but on its own it will not be enough and so other measures will have to be taken. Some of them undoubtedly speak to the culture and practices of the security intelligence community, which probably needs to be adjusted to meet the kinds of sensitivities, fears and concerns that exist in the communities they are required to target.
Senator Andreychuk: It is my understanding that a change was made that affected Bill C-36 in respect of the kind of case representative of the O'Neill case, although I cannot recall it now. The Minister of Justice and Attorney General of Canada, Irwin Cotler, made changes to either the regulations or the act so that the O'Neill case would not be repeated. Am I correct?
Mr. Wark: Senator Lynch-Staunton asked me that question, and I had to plead ignorance because I am not aware of it. I may have missed it and for that I apologize. As you know, security of information prosecutions require the prior approval of the Attorney General. In this case, we might be talking about a change of policy and procedure that does not result in a change to the legislation in that respect to underline ministerial responsibility and accountability, although I do not know that for certain. I am not aware of a substantial amendment to the Security of Information Act in response to the O'Neill case.
Senator Andreychuk: There was an amendment on procedure.
Mr. Wark: I do not know so you would have to ask Minister Cotler about that.
Senator Andreychuk: I recall asking a question on the floor of the Senate about that situation and it was indicated that there had been some quiet changes, I believe by way of regulation. Could the committee submit a question to Professor Wark to take this up by way of a response, Madam Chair?
The Chairman: Yes.
Senator Andreychuk: Thank you.
Mr. Wark: I will be happy to respond to your questions.
Senator Andreychuk: When Bill C-36 initially came before Parliament, there was some discussion that the Canadian Security Intelligence Service should be expanded to work overseas. We have a capacity to work overseas with CSIS and gather information but we would not set up a full intelligence network overseas. That discussion has died down somewhat. Are we still vulnerable and would we continue to be vulnerable if we were to set up an international system to receive intelligence from other like-minded sources? We glean much of our information through the British, the Americans and other like-minded sources. By having more intelligence-gathering capacity overseas, would we do a better job than our allies are doing?
Mr. Wark: I suppose we would not know the answer to that until we tried.
Senator Andreychuk: It would be expensive.
Mr. Wark: I always make the point, which is historically reasonably well founded, that intelligence is cheap. When you compare the hard budget of an intelligence agency to the hard budget of many other things the government needs to do in the field of public safety at large, intelligence is cheap. You have to find a way to afford it. I am and have been since September 11 a proponent on record of creating a foreign intelligence service that would be targeted to collect information on Canadian interests abroad. We have many Canadian economic and political interests abroad as well as other interests in peacekeeping and military operations. We have only to think of Afghanistan, for example, which is a dangerous environment to operate in, although not as dangerous as Iraq. It could be even more dangerous once we get into provincial reconstruction teams and efforts in some of the regions outside Kabul. To engage in those efforts effectively and safely, a country needs a good intelligence capability that is its own; it cannot be borrowed from allies. We went into Afghanistan borrowing all our intelligence from our allies, which remains the case today, by and large. There is a new requirement for foreign intelligence capability on the human side, as they say in intelligence jargon, for Canada. I do not think it is unaffordable. We could do a good job at it because we are a multicultural, well-educated, technologically sophisticated society and we have natural resources to draw on.
The situation currently is such that CSIS, seeing this need, has increasingly begun to define itself as a dual service agency in that it is both a domestic security intelligence service, which was its original mandate and vision, and increasingly a foreign intelligence gathering service. We may decide that that is not a bad model, but we should not have arrived there by accident or without full review and introspection of the process. The very fact that CSIS has moved increasingly in this direction indicates recognition of the necessity. We need to know that this has not happened simply by accident and by the power of institutional aggrandizement but rather because it is the best model to proceed with. If we decide that, then we have to recognize that it is a rather unusual model because most of our counterpart agencies make an effort to separate domestic and foreign intelligence gathering and put them into different institutional agencies. The only system that does not do that is the former KGB. I am not saying that we have created a KGB analogue but there is something peculiar about moving in this direction of giving foreign intelligence capabilities to an agency steeped in domestic security intelligence, procedures and routines.
Senator Andreychuk: If we went to a model directly and did not edge our way into it, it would be extremely expensive. The Americans cut back their intelligence services and it contributed high costs to their effectiveness. We would have to set up virtually all over the world with capacities in many languages and cultures. I believe there was a dialogue between you and Senator Joyal such that we need the capacity within Canada first before we stretch ourselves beyond. If we are to buy into this we need to keep in mind that we do not know where the terrorism threat will originate so we would have to be virtually everywhere in our capacity. We would have to match that with what the Americans, British and Russians have, and we know their pitfalls. Why would ours be better?
Mr. Wark: We could design a Canadian foreign intelligence service that would be much more targeted and specific to Canadian interests that would not have to be a globe-trotting free-for-all costing us a great deal of money. The intelligence budgets of our major allies spend the greatest portion of their budgets on technical collection platforms by satellites, signals intelligence systems and remote sensing systems. That eats up most of the budget. Humans, as a traditional form of intelligence gathering, are relatively cheap. It is dangerous, it is difficult to do well and can create diplomatic embarrassments for governments. Of course, all of that would have to be taken on board.
I have heard arguments made many times by people who cannot quite see Canada doing this. For Canada a set of national security priorities could be defined, to which a foreign intelligence service could help to operationalize. We are concerned about certain areas of the world and need to know more about them, such as those that are war-torn or facing civil strife, because Canada draws significant immigrant streams from many of those areas. We need to know what the connection between homeland conflicts overseas and their potential arrival in Canada might be.
In some ways for Canada it is too late to investigate that problem internally. However, to the extent that we continue to engage as a peacekeeping nation and improve our capabilities in that respect, we cannot continue with the old model. We cannot continue to rely on our allies to give us the intelligence that spells the security and safety of those missions. There are several reasons for that.
The old Canadian tradition of relying on foreign sources for the bulk of our knowledge in the intelligence field of global developments has been exposed as dangerous by the failures of September 11 and the failures of intelligence leading up to the Iraq War. That is not to say that Canada could necessarily do any better in that respect but we have try because we have to be independent in this field. We are an intelligence-dependent power and, during the Cold War, we could afford to be that in many respects. However, in a post-September 11 world, we simply cannot afford that.
Senator Kinsella: I want to place on the record that the convention of sub judice does not apply to civil matters, although it might apply to criminal matters. Parliamentary privilege, the privileges of this honourable committee, even trumps the sub judice convention. The principle of parliamentary privilege extends to witnesses before this honourable committee, for the record.
Senator Joyal: Mr. Wark, in preparing your notes for your appearance today, did you have an opportunity to review chapter 2 of the last report of the Auditor General, entitled The 2001 Anti-terrorism Initiative, Air Transportation Security, Marine Security and Emergency Preparedness for Chemical, Biological, Radiological and Nuclear Attacks?
Mr. Wark: I believe that I did have the opportunity.
The Chairman: Professor Wark, on behalf of the committee, I thank you for taking the time to appear before the committee today. Your testimony has been extremely helpful in the deliberations of the committee.
The committee adjourned.