Proceedings of the Standing Senate Committee on
National Security and Defence
Issue No. 42 - Evidence - Meeting of May 6, 2019
OTTAWA, Monday, May 6, 2019
The Standing Senate Committee on National Security and Defence, to which was referred Bill C-59, An Act respecting national security matters, met this day at 11 a.m. to give consideration to the bill.
Senator Gwen Boniface (Chair) in the chair.
[English]
The Chair: I’d like senators to introduce themselves.
[Translation]
Senator Boisvenu: Pierre-Hugues Boisvenu from Quebec.
[English]
Senator Richards: Dave Richards, New Brunswick.
Senator Oh: Senator Oh, Ontario.
Senator McIntyre: Paul McIntyre, New Brunswick.
Senator McPhedran: Marilou McPhedran, Manitoba.
Senator Gold: Marc Gold, Quebec.
[Translation]
Senator Pratte: André Pratte from Quebec.
[English]
Senator Griffin: Diane Griffin, Prince Edward Island.
The Chair: I’m Gwen Boniface, your chair.
Senators, today we continue our study of Bill C-59, An Act respecting national security matters.
We’ll begin with Mr. John Cotler, Israeli Intelligence Consultant; and Isaac Kfir, Director, National Security Program and Head, Counter-terrorism Policy Centre, Australia Strategic Policy Institute via teleconference. Before we start, I would like to note that it is 1 a.m. in Australia, so our many thanks to the witness for joining us at this hour. Mr. Kfir, you can begin.
Isaac Kfir, Director, National Security Program and Head, Counter-terrorism Policy Centre, Australia Strategic Policy Institute: First of all, I want to clarify that I am not running the Australia Strategic Policy Institute; I am the director of the National Security Program within the Australia Strategic Policy Institute, which is a think tank that is supported by the defence department here in Australia. So I’m not a public official. I’m not representing the Australian government, so the views that you will be hearing are those of my own.
I want to thank the committee for giving me the opportunity to address you in regard to the proposed bill before you, Bill C-59. I read the bill with great care. I found it to be fascinating. There are a lot of similarities with the national security architecture that we have here in Australia.
Here in Australia, the national security architecture is composed of the Office of National Assessments, which will be subsumed into the Office of National Intelligence. That’s operating under the Prime Minister’s Office. We’ve got the Australian Geospatial-Intelligence Organisation, and Australian Security Intelligence Organisation, or ASIO, we’ve got the Australian Secret Intelligence Service, and we’ve got the Australian Signals Directorate. So that, if you like, is the Australian security architecture. Overseeing that is the inspector general for intelligence and security.
What we have here in Australia is a combination of agencies that are run by the Defence Department and agencies that are managed either by the Prime Minister’s Office or are independent statutory bodies. What we have tried to do here in Australia is make sure that we balance security concerns with respect to human rights and privacy. As I’m sure all of the honourable members will be conscious, it is a very difficult balancing act to do. I’m very conscious that, with this new piece of legislation, there is an attempt to balance those two concerns.
I’m not sure if the committee is interested in the threat assessments that we have here in Australia. I’m happy to elaborate.
The Chair: May I suggest that we may cover those in questions.
Mr. Kfir: Okay. Yes.
I will be submitting to the committee a written statement that will help you follow how our national security community has developed. Supported within that national security community are also four other agencies, the Australian financial organization AUSTRAC, which is similar to your FINTRAC, the Australian Federal Police, the Australian Border Force and the Australian Criminal Intelligence Commission.
One of the key challenges for us, as a federation, is often to balance the different pressing demands of all of the agencies, but probably the most difficult task for us to date has been coordination. I think that’s something that most countries face. How do you coordinate the different demands and structures of the agencies and departments on the Commonwealth level but also on the state and territory level?
Now, at some point, one can suggest that we have between 75 to 100 agencies across Australia that are involved in national security-related issues, and one of the key challenges that we face here in Australia is also the issue of classification. Sometimes one of the challenges that we see, certainly sitting here in Canberra, is that the security intelligence organizations are unable to share information with the state and territories because members within the premier and the cabinet do not have security clearances. That’s often been a major challenge for us.
As you are deliberating this act, one of the things that I would suggest you also look at is the information sharing and dissemination. One challenge that seems to be repeated by all of our intelligence reviews is coordination and the sharing of information to appropriate individuals.
We also have, within our national security establishment, the Secretaries Committee on National Security. We have the National Intelligence Coordination Committee, and that has two subcommittees. We also have the Australia-New Zealand Counter-Terrorism Committee.
Again, what you will see is a very convoluted national security community that often struggles to share information. This is an ongoing problem that I will be the first to admit I don’t think we have solved.
There are enormous pressures on the national security intelligence community about the sharing of information, especially when it comes to privacy rights. We have made various attempts to address privacy and basic human rights, but one of the key challenges that we have faced is that here in Australia, for example, we don’t have a fundamental basic right for privacy. We have a Privacy Commissioner, and we have a human rights committee, but it’s not a fundamental right, and sometimes there have been tensions on that.
With that, I’ll be more than happy to take your questions.
The Chair: Thank you very much.
Jonatan Cotler, Israeli Intelligence Consultant, an individual: I’d also like to thank you for having me today. Also, I’ll add the same preamble. I’m also here not on behalf of any official body within Israel, but also independently based on work that I’ve been undertaking the past few months. My work specifically deals with the issues of Syrian refugees in Canada over the past four years since the 2015 commitment to bring in 25,000 Syrian refugees, which to date, factoring in increases in privately sponsored refugees, approximately 60,000 Syrian refugees have settled in Canada since that date.
Under the framework of Bill C-59, the prevailing intentions of the bill, as I read them from Minister Goodale, we’re enhancing accountability and transparency, amending certain elements of existing legislation and ensuring that national security and intelligence agencies can keep pace with the evolving nature of security threats. Within this framework, you see that, at the moment, there is a dearth of capacity to deal with this both humanitarian and security issue in Canada that is very much a human rights issue and one that can have severe security implications.
The Canadian immigration department, in 2017, committed to eliminating the existing backlog of privately sponsored refugees by the end of 2019. Not only has that not happened, but to date the wait time for submitting new applications has increased to roughly 20 months and the pending claims that are awaiting hearing have gone above 42,000 people. What has become clear is that the regulatory time frame for monitoring and properly vetting the people coming in has been deemed by the Immigration and Refugee Board of Canada, in their 2017 department results, as their key risk.
An internal audit by the Canada Border Services Agency has equally admitted to dozens of refugees being admitted without proper vetting and that comprehensive security checks were not undertaken before their arrival in Canada.
In addition, the core of security screening in Canada is often made up by public servants who lack the necessary linguistic skills or cultural familiarity and sensitivity to the population that they’re currently dealing with. This is a crucial issue that needs to be dealt with because it both greatly increases the amount of time that is being spent dealing with every individual file and decreases the amount of proficiency that can be brought to these particular screening procedures.
Equally, there has been mention of and issues with the strategy for the lack of vigilance in the ability to reliably combat the trafficking in fake passports that have been distributed to Daesh to the population who have then gone around the world submitting themselves as refugees, with information that is fake, with biometric data that cannot be verified and, based on the current technologies that are being applied, are incapable of properly undertaking a screening and vetting procedure.
In my view, what needs to be done, based on significant research that has been undertaken and with teams of experts within Israel who deal with these issues, specifically within Israel and without in contact with other security services in Europe, is for a committed team of experts, whose profession is in dealing with these local populations to provide Canadian services with the necessary expertise to properly both manage communities and aid in integration in de-radicalization efforts such as what’s being taken in the Canada Centre for Community Engagement and Prevention of Violence currently, to aid current Canadian law enforcement officials and intelligence services in properly grasping the nature of the population that they are currently dealing with in very large numbers with the necessary sensitivity to culture, language, limitation of capacity at present, with the hope to properly build the capacity in the future with the proper training of the Canadian law enforcement individuals.
I would be happy to take questions based on that opening statement as well.
The Chair: Thank you, Mr. Cotler.
[Translation]
Senator Dagenais: I want to thank our witnesses. My first question is for Mr. Cotler.
I don’t know whether you’re familiar with the case of Omar Khadr, who was convicted by the Americans for the murder of a medic in Afghanistan when he was a minor. I think that he was 15 years old at the time. He was brought back to Canada and the current Liberal government gave him $10.5 million because his rights had been violated. This money was given to him without any court looking into the matter.
As a consultant, have you ever seen a similar situation in another country?
[English]
Mr. Cotler: I am familiar with the Omar Khadr case. It has been some time since I’ve looked at the specifics of the case. To speak about the legislative process at the end that saw him being paid, how that would take place in other countries, ultimately my view on that is very often there can be political considerations, legal considerations and time considerations, depending on availability of evidence or otherwise, where sometimes a settlement may be deemed cheaper financially and time-wise than an extended, protracted lawsuit or investigation. Beyond that, I wouldn’t be able to give specific references to the Khadr case itself. It’s not something that I studied in depth.
Outside of Canada, how a similar case would be treated would have to be determined by the totality of the circumstances based on the evidence available for or against the person on the docket, and all other considerations that are available at that time would have to be taken within the context of the situation. I imagine it would be different country to country depending on that situation and their various precedents.
[Translation]
Senator Dagenais: Don’t you think that this type of approach could influence our collective ability to discourage the activity of foreign fighters?
[English]
Mr. Cotler: When you say “foreign fighters,” do you mean Canadian citizens who have gone abroad to fight or foreign fighters who are then trying to return to Canada?
[Translation]
Senator Dagenais: Yes, for example.
[English]
Mr. Cotler: And the question is whether such a policy as was implemented with Omar Khdar would succeed in discouraging them if they knew potentially that they would be able to avoid criminal prosecution and potentially even get paid.
Again, it is my personal opinion that that would be a globally applicable example. Very often, when you look at the tendency of Canadian members who have gone overseas to fight or foreign fighters in general, their motivations are personal, more often than that, especially now when you see the nature of online radicalization and the nature in which they are recruited in a very unaccountable way and the nature in which they self-select to join these organizations abroad.
The idea that they would be paying particularly close attention to the legal processes and consequences of other cases, potentially in other countries that are not their own, with sufficient detail to apply to themselves and then judge their own behaviour or movements based on those precedents, from the examples I’ve seen thus far, young people who have left their home country to go fight abroad don’t appear to take such considerations into account.
[Translation]
Senator Dagenais: My next question is for Mr. Kfir.
Bill C-59 calls for a major overhaul of the oversight mechanism for security agencies in Canada. Some advocates of the bill have said that our new rules were inspired by what’s being done in your country.
Have you noticed any similarities, or have you identified any shortcomings that we could address through amendments to Bill C-59?
[English]
Mr. Kfir: Thank you, senator, for your question. Since 2014, the threat situation in Australia has been deemed to be probable. That basically means that our security agencies have reached a conclusion that there is credible intelligence of the possibility of a terrorist attack. This is why we are at this level on the probable threat assessment.
Over the last four years, we’ve seen an increase in convictions for terrorism-related offences. Since 2001, 54 Australians have been convicted of terrorism-related offences. To date, Australia has not experienced a mass casualty terrorist attack. We have not had a mass casualty terrorist attack primarily because of the security community being able to prevent any attacks.
In 2017, there was an attempt to blow up an Etihad plane in Australia, which was foiled through a combination of work by our security agencies. So it was the Australian Government Intelligence Organisation, ASIO, working with the New South Wales counterterrorism committee, supported with intelligence from probably the Lebanese and Israelis that prevented a catastrophe.
We are very conscious here in Australia that we are on the radar. However, most of the threat that we are facing is from domestic as opposed to foreign-based. So it is primarily by Australians, individuals who have been born in Australia.
One of the interesting things that we have seen in Australia is that the age of the potential perpetrators has been declining. If we go back to 2000, the average age was somewhere in the 30s. We are now seeing much younger individuals who seem to embrace the Islamic state ideology, and that is a problem.
Our legislation and some of the measures have been to deal with the possibility of children committing terrorist acts. By children, I mean individuals under the age of 18. A number of the attacks that have taken place here in Australia, terrorism attacks, have been carried out by young children, i.e. 15, 16 and 17-year-olds. That has been a major problem because of extra protections that our legal system provides to children.
I did not see in the bill specific provisions about what to do with the radicalization of children and whether specific entities within the newly constituted intelligence community have the capability to deal with the possibility of children becoming terrorists, so I would suggest that maybe the committee needs to look and have some consultation as to the value of assessing specific goals of how to address children’s radicalization.
[Translation]
Senator Dagenais: Mr. Kfir, we’ve heard that, in Australia, about 60 people have already been charged with and convicted of terrorist offences. This figure can be adjusted. A number of Islamic State fighters have entered our country, but none have been charged. Do you think this is normal?
[English]
Mr. Kfir: In Australia, since 2014, 200 Australians have gone to join the Islamic State. It is an offence here in Australia to have travelled to Iraq and Syria. We have described those areas as a declared area. So you have to have a pretty good reason as to why you went there and, more importantly, as to why you stayed there.
Of the 200 Australians who have gone to join the Islamic State, we believe that about 100 are dead. They have died whether it is through fighting or other causes. We are concerned about the possibility of maybe 100 individuals who may want to return, and with the possibility of 90 children who have been produced during that time or who were taken to Iraq and Syria during that time, and that is a problem. We have yet in Australia to reach a conclusion as to how to deal with those individuals.
In Australia, we have the possibility of revoking someone’s passport if they have travelled to the Islamic State, but the revocation can only take place if that person has the possibility of a second passport. If they are a single passport holder, we cannot revoke their passport, and we are not sure as to what will happen should such individuals want to come back to Australia.
[Translation]
Senator Boisvenu: My questions are for Mr. Cotler, whom I first want to thank for his presentation, and also for our second witness, Mr. Kfir. Mr. Cotler, you said in your presentation that 60,000 Syrians have settled in Canada to date. Is that correct?
[English]
Mr. Cotler: That is correct. Based on the most recent polls since that was taken as of February 12, 2019, by Statistics Canada, the total amount, including privately sponsored and government sponsored Syrian refugees in Canada, has reached over 60,000.
[Translation]
Senator Boisvenu: In your brief, you provided some rather worrying facts when you talked about the time required to analyze a file and the number of pending cases. You’re saying that we have 42,000 pending cases?
[English]
Mr. Cotler: Approximately 42,000 cases remain open and need to be reviewed still, with an increasing backlog and an increasing time frame that was deemed the key risk by the agencies involved in dealing with it.
[Translation]
Senator Boisvenu: You also mentioned a lack of capacity. When you talk about a lack of capacity, it isn’t related to the intake process, but to the screening and analysis of cases. Is that correct?
[English]
Mr. Cotler: Without question, Canada’s capacity for welcoming is, without a doubt, a fantastic aspect and element of this country and why persecuted people from all over the world can and continue to choose to come to Canada if and when they can.
That said, it is insufficient to apply previous best practices to a new scenario. This particular situation deals with a large — not unmanageably large — concentrated, very specific refugee population coming from a very specific war zone that has their own fears and apprehensions about what to anticipate upon coming here. When I say the lack of capacity, that is the matter of linguistic familiarity and cultural familiarity that cannot be undersold as to their importance in dealing safely, securely and expeditiously with any entering operation. It is a matter of building trust with that person and being able to reliably, with the necessary experience and expertise, verify and assess, based on whether it be risk assessment or what have you, a potential applicant’s situation much quicker than is possible now based on the limitations that are in place.
[Translation]
Senator Boisvenu: You mentioned another worrying issue, namely, the fake passports produced by Islamic countries, or at least Daesh. Have any fake Canadian passports been issued for these people? To your knowledge, have these passports been used to enter Canada?
[English]
Mr. Cotler: I wouldn’t be able to say specifically whether fake Canadian passports have been issued; I can absolutely say fake passports, broadly speaking. The passport offices, the passport bureau in Syria, was held by Daesh from not long after Assad’s forces were essentially ousted for a period of years. That’s not to say, first of all, that everyone holding one of these passports is a member of Daesh. It is also a mechanism by which people would simply pay to be able to leave the country.
The problem is that these are often not real identifications. The names won’t be real, so that when they would come to Canada or to European countries, the name in the database won’t match. If you try and create a file on this person, and if you try to follow up with it, you are already dealing from a situation where, if he had a previous position within Assad’s government or has family that are affiliated with Daesh or what have you, that may be something that could be flagged within the various intelligence apparatuses of Canada and its allies, and it would be much more difficult to come across that information based on these fake identifications and passports that have been now in circulation for several years.
[Translation]
Senator Boisvenu: Based on your knowledge, can you make a judgment about the existence of groups linked to terrorist organizations that seek funding in Canada?
[English]
Mr. Cotler: I would find it difficult to believe that wouldn’t be the case. Terrorist financing through legitimate organizations and charities has been a mainstay of the mechanisms by which terrorist groups overseas are funded. A previous example in the United States would be the Holy Land Foundation, which was implicated post-September 11 in sending money overseas via legitimate charities ultimately to terrorist sources such as Hamas. There are multiple examples of such charities and such bodies, as well aszakat — taxes which are taken — or hawala networks, where money is used through legitimate systems and offices, and through legitimate hands, often ultimately making it into the hands of terrorist organizations. I would not be able to tell you for certain which bodies within Canada I could point to as an example. However, I would say with relative educated certainty that such apparatuses exist within Canada, yes.
[Translation]
Senator Boisvenu: In your brief, you said that the screening process, particularly the background checks of individuals who come to Canada, involves one of the most significant risks. You also said that, to your knowledge, there are dozens of individuals who probably have a criminal record, but who have managed to fall through the cracks of the safety net.
Do these individuals with a criminal or terrorist background have a particular profile, or are they people from all walks of life?
[English]
Mr. Cotler: This would be from all walks of life. There is no particular profile that would contribute to that. However, it would absolutely be a contributing factor and would be a factor, for those who have a legitimate claim, to be concerned about in making their claims, with a concern of getting looped in or grouped in with other parties.
Now, the necessary experts with the necessary experience in such matters, specifically with Syrian populations, would be able to tell themselves, and would be able to share and aid Canadian parties involved with such screening processes, what to look for, including linguistically. When people come from these areas of the world, often it’s not just the language of Arabic; it is the specific dialect that is particular to a specific neighbourhood. It is a series of questions asked by a properly trained individual who, within a short period of time, can know whether or not the person they are talking to is telling them the truth.
So it’s not that you can necessarily profile a group and say these are people who it can be reliably inferred to have criminal or terrorist links. But it can, with the necessary knowledge and training, expedite the process of screening those who are largely coming in as innocent victims of war and with a legitimate refugee claim and those who are coming in for more nefarious purposes or with those connections in their past.
Senator McPhedran: Thank you, Mr. Cotler and Mr. Kfir, for being with us today. I guess it’s technically morning for everybody at this point.
Mr. Kfir, Australia is often used as a comparator for the development of Canadian national security law and policy. Given what we have heard from you today — namely, that the Australian security apparatus has been developed on an understandably separate history and in some ways a different threat environment — what specific lessons in relation to this bill could Canada take away from your testimony today? What are the top takeaways you recommend?
Mr. Kfir: Thank you very much for your question.
I would say the issue of coordination has become absolutely crucial. We have become so focused on collecting data and information. Our capability of collecting that data is massive, and often that data is not analyzed. What tends to then happen is that we do after-the-fact assessments. After we have a crisis situation, our security agencies have to work back and say: Hold on a second. Did we actually miss something?
Here in Australia, we have spent a lot of time and effort improving our data collection but also our analytics. We can’t simply just trust machines to pick up the little bits. We have to have that human touch to assess the information and determine.
We have had a couple of situations where individuals have been flagged by the security community as potential risks. A couple of individuals have even had their passports revoked, only to have gone and committed a terrorist act. Now, it’s not because the security authorities were negligent in any step; it’s simply because we are maybe not cognizant of the radicalization process that takes place, which might be very short and might also be very long. So it’s a really difficult situation.
I would emphasize that it’s important, as we do these risk assessments, to be careful about blaming the security intelligence for missing something when they did their due diligence. Nobody knows what is going to happen. We collect a lot of information. There is an expectation on the security services to assess all of that data. We often hope to use machine data analytics to do that, but you still need that human touch. As the previous expert witness said, we need that expertise to pick up on the little nuances.
The last thing I would suggest is focused on mental health. One of the things we are noticing with some of the individuals who have been accused and convicted of terrorism offences in Australia is issues with mental health. There is a possibility that had they been diagnosed and treated, they would not have fallen prey to virtual recruiters and inciters online.
Senator McPhedran: Thank you.
Mr. Cotler, this question is around the offence of advocating or promoting the commission of terrorist offences in general. How does Israeli criminal law deal with the act of encouraging others to commit terrorist acts? Do you have any comments on the Canadian criminal offence of “advocating or promoting terrorism in general”? Also, do you have any comments on the Canadian legal definition of “terrorist propaganda”?
Mr. Cotler: With respect to your first question, I am not an Israeli legal expert, but in dealing with matters of freedom of speech versus targeted hate speech and incitement to terror or violence, I believe and imagine that the prevailing laws in Israel and Canada are relatively similar. In Israel, there is an increased capacity to not censure entirely but more monitor and potentially hold parties who are overtly inciting towards terrorism, whether it be via Hamas radio or individuals of that respect. I’m not familiar enough with the Canadian law that deals with it specifically. But it is about skirting that line between the freedom of speech aspect and the security aspect.
Now, where there is direct incitement to terror, that would already, I believe, fall within the threshold of justifying intervention.
Senator McPhedran: The second part of the question was your comments on the Canadian legal definition of “terrorist propaganda.”
Mr. Cotler: There is no consensus in the world on the definition of terrorism, which is an interesting and confounding issue. Individual countries and individual world bodies all have similar but somewhat different definitions. For the definition of terrorist propaganda in Canada, not knowing the specific wording of it myself, I would have to read the particular definition to be able to comment on it. Could you follow up on what nuance of it in particular you are referring to?
Senator McPhedran: No, that’s fine. Thank you.
Senator McIntyre: Mr. Kfir, as we all understand, in the world of intelligence, a lot of information is collected, but unless that information is converted into intelligence, it has very little value. However, once it’s converted into intelligence, its value is substantial. That said, my question has to do with the storage of that information. Is there a risk of storing information in a specific venue that could become a target of a cyber or conventional attack?
Mr. Kfir: I think that is an excellent question. Here in Australia, we have critical infrastructure legislation. Certain storage facilities are deemed as critical infrastructure and, therefore, receive extra security from our authorities.
One of the key challenges for us is not so much the possibility of information being hacked, but it’s simply that information is sitting in these storage units and nobody is actually reading it and assessing it. That has been an enormous challenge, but I’m not sure if there has been any attempt to hack.
Senator McIntyre: What role is the private sector playing in the storage of information? Could you tell us a little more about the intelligence contracting industry?
Mr. Kfir: I couldn’t tell you more because that is classified. I am aware that a private company, Telstra, is one of the key storage providers for the defence department. I am aware that we pay them an absolute fortune to store the information, but that’s the extent of what I can share.
Senator McIntyre: As we understand it, the cost of harmonizing intelligence can be quite substantial. Governments are constantly challenged to reduce their expenditures, so they often turn to the private sector with respect to the storage of information. In your opinion, and this happens with governments all over the world, when information touches the health, education, safety and so on, is the public protected when governments turn to the private sector for the storage of information?
Mr. Kfir: We have had a robust discussion here in Australia about something called “My Health,” which is a service that the government wanted to promote and which individuals actually had to opt out of. You were automatically enrolled into this program, and you actually had to contact the authorities and say to them, “I don’t want to be part of the My Health system.” Now, basically the idea behind the program is all of your health information would be available for your local doctor. One of the challenges, however, that we became aware of is that introduced into that was the ability to share information with third parties, with the individuals not being informed of that. Now, it is my understanding that that is now under review. Because of a big hue and cry that came out because of the My Health application, the government is having to rethink the dishing out of this particular program.
Senator Oh: My question is for Mr. Cotler. You are probably one of the most knowledgeable on intelligence services in the Middle East over here. Do you have any idea of how many of the 60,000 Syrian refugees in the country have gone underground or cannot be traced? Do we have enough personnel to track all 60,000 and classify them? How many are high risk, low risk or and no risk?
Mr. Cotler: That would be a question best saved for the Canadian members of the security services that are responsible.
That said, the most recent up-to-date statistics of 60,000 entrants appears to be one that doesn’t include an amount they can’t account for, as far as I understand. I don’t see in the issues that are currently present in Canada that it is a lack of manpower. It is not that they don’t have the people or the resources in principle. It’s the application of those resources. Just because you have enough people doesn’t mean that they are able to effectively utilize that time to process the 60,000, as I said before, based on the limitations that are linguistic, cultural or general understanding for the sensitivity and complexity of the population that they are dealing with.
I’m not familiar, and I’m sure the services in Canada would be more familiar with to what extent or what percentage of that population has gone underground and cannot be found, but that has not come up as a situation that is an issue.
Senator Oh: Do you think this bill will help to curtail what’s happening now? Would it help on this refugee issue with screening?
Mr. Cotler: I believe the elements of the bill that are prioritizing the ensurance of the national security and intelligence agencies establishment keeping pace and evolving their policies with best practices both in Canada and internationally, and doing it with a national strategy that is adaptive and responsive based on what this bill is trying to implement with the oversight committee that will allow for and, as the other witness mentioned, a necessity of a greater amount of coordination and information sharing, that would be of great value.
Senator Oh: Thank you.
Senator Gold: Thank you to both of you for appearing. Mr. Kfir, you mentioned the challenges of coordination and the gathering of information. I wonder if you could comment on two aspects of Bill C-59. The first is the creation, for the first time in Canada, of a government-wide system-wide review agency, the national security and intelligence review agency, and whether you think that is a step in the right direction vis-à-vis the coordination of the various actors in the community.
Second, you spoke of the importance of data gathering and the challenge of sharing. Do you have any comments on Part 5 of our act, the security of Canada information disclosure act, which sets out a framework or circumstances in which information can and cannot be shared between Canadian security actors?
Mr. Kfir: That is an excellent question.
I would start by saying that here in Australia we have something called the IGIS, the independent Inspector-General of Intelligence and Security. That position was created in 1987. It’s always been held by a very senior, retired judge. The IGIS has the ability to oversee all of our security intelligence agencies. She has the ability to monitor what they are doing — currently it’s a female judge — she is able to conduct inquiries, she is able to initiate an inquiry, she can make recommendations to the government and she can provide reports to the government. Now, this is done on a private element, not in an open forum, so there is more of an ability to identify some of the issues and problems. All individuals are required to answer questions to the IGIS. She takes sworn evidence — that’s another important aspect — and she can enter any of the agencies’ premises without asking permission. So that’s one person who oversees the entire architecture.
We have another body known as the INSLM, the inspector-general for monitoring terrorism legislation. That was a post that was created in 2010, and the role of INSLM is to assess all terrorism legislation and national security legislation. It’s also held by a very senior Q.C. — we have had three — and they issue reports and assessments.
Again, both the Inspector-General and INSLM work independently of each other, but their role is to make sure that the security agencies do not overstep the boundaries of their legislative responsibilities and authorities, and they issue annual reports. So that’s, if you like, on the review agencies. So I think what Canada is trying to do is very sensible and quite useful.
On the sharing of information, that’s often the difficulty that we all face. The issue of classification has been something that we are grappling with and how information is shared and collected. I will start, if you like, through the indirect aspect in a sense that very often specific agencies will have specific statutory authorities that would prevent them from sharing information. It will also be dependent as to how they acquire that information. Very often, individuals will have to have conversations, and then there will have to be assessments.
So I think on the sharing of information across, you’re going to have to think a little in two ways: First of all, is it sharing information across the federation or is it sharing information with the state and territories? This is something we found here in Australia that has been really difficult. We have struggled to share information with the state and territories because they lack the prerequisite classification, security clearance, to allow them to assess that. Now, here in Australia it takes about two years to get a security clearance. We have such a massive backlog. I think Canada is trying to make good headway, but I hope you will do a little better than us.
Senator Gold: Thank you. Mr. Cotler, and welcome again. Thank you for your comments and underlining the importance of having the right expertise and experience to do whatever the tasks are that we demand of our government and agencies to do. Senator Boisvenu mentioned on two occasions a memoir, a document, which we don’t seem to have. Will you be providing a written —
Mr. Cotler: I have previously sent a brief to Senators McPhedran and in conversation with Senators Lankin and Busson. I do have it and can send it. I would have provided it sooner, had I known who precisely to send it to, but yes.
Senator Gold: Well, I think the clerk would be the one to send it to.
Mr. Cotler: I would be very happy to, yes.
Senator Gold: Thank you.
Mr. Cotler, I wanted to ask if you have any specific comments on the provisions of Bill C-59 to help our committee in our study. In so doing, perhaps you can tell us a little about yourself and your background, because that isn’t obvious in the material that we have received.
Mr. Cotler: My background is that I grew up here and did my undergraduate at McGill. I then did a law degree in New York before moving to Israel, with the intention of working in the security intelligence department, whereupon I did a masters in counterterrorism and homeland security and have worked in intelligence analysis for two years before moving on to more broad private intelligence consulting dealing with larger projects that involve more of a human application of the craft as part of the furtherance of both my education and the pursuit of the field itself. That is how I came upon this particular issue that I researched and brought in February in previous meetings with members of this council.
On the specific provisions of Bill C-59, as I said, it’s not anything in particular that would bring in this necessity or this particular issue, Syrian refugees in Canada. This bill, in creating a national security intelligence review agency, is very broad. That said, its mandate in what it is attempting to create and hopefully provide Canadian security services speaks to and allows for, in my opinion, the introduction of an implementation of the kinds of projects with the kinds of expertise necessary to deal with this kind of issue.
Senator Gold: Thank you very much.
Senator Pratte: My question would be for Mr. Kfir, and it would be a follow-up to Senator Gold’s question. As you have noticed when reading the bill, there is a review agency that is created by the bill. There is also the intelligence commissioner, who will be cast with authorizing certain types of data collection and operations. There was created a few months ago a committee of parliamentarians. You said earlier that these review bodies have proven useful in Australia. I would like you to elaborate a little bit. Some are concerned that the existence of several review bodies would or could hinder the secret service operations. Has that been found to be the case in Australia?
Mr. Kfir: As I mentioned, we have got a number of review agencies or commissioners. We have got, as I mentioned, the Inspector-General on Intelligence and Security. They focus primarily on the security agencies, all six of them in the Australian intelligence community. She has wide and extensive power. We also have the Independent National Security Legislation Monitor, and they focus on national security legislation. They are supposed to be complementary, and they seem to work rather well.
I have not heard any criticism of either body, primarily from the security establishment. In fact, often I would hear from members of the security establishment how much they appreciate having those bodies just to make sure that they are operating within their legal responsibilities. There is no evidence that the work of these bodies has slowed down intelligence collections or has undermined any intelligence collections whatsoever.
One of the things we have noticed in Australia is that, over the last ten years, we have done a number of reviews of our intelligence community, and the reviews tended to come back by saying that intelligence collection has become more and more challenging and cumbersome, identifying domestic and foreign, where one stops and the other one ends, as being one of the principal challenges. And then, of course, the storage element has often been something.
We are constantly tinkering with our systems to try to maximize its utility. For example, in 2017 we created a new government department known as Department of Home Affairs, where we put some of our key agencies under that umbrella in the hope of facilitating better interaction between the different agencies and departments, and it has brought some element of success in terms of sharing the information. But again, the system at the moment is still being developed. We are doing another review of how we’re structuring our national intelligence community.
Senator Pratte: Thank you for this. Is there anything in Australia resembling the new function of intelligence commissioner who, as I said, will be tasked with authorizing certain operations and data collection?
Mr. Kfir: It really depends on how you’re talking about the data collection. For example, if we’re doing surveillance, that would require a magistrate warrant. The role of either one of those bodies is not really to support the collection element. The agencies will do that. What those two bodies do is assess whether those bodies have exceeded their authority and power, and they do annual reviews.
Senator Pratte: It’s post facto.
Mr. Kfir: Yes. We’re trying to have as much transparency as possible without giving the house away.
The Chair: Senators, I apologize for those I put on the second round. We are out of time, and our next witness is already here.
Let me take the opportunity to thank Mr. Cotler for joining us. Particularly, thank you, Mr. Kfir, for joining us at such an early hour of the morning in Australia. We are very grateful for your input. Thank you very much.
We now welcome before the committee Mr. Richard Fadden, Former National Security Advisor and Director of CSIS. He is no stranger to this committee. Mr. Fadden, we welcome you.
Richard Fadden, Former National Security Advisor and Director of CSIS, as an individual: It’s a pleasure to be here, both because these are topics that have interested me for a number of years and, in turn, I hope that I can be helpful to the committee.
I’d like to start with a couple of contextual points with which I hope you will agree and keep in mind as you finalize your bill.
First, the people, the countries, the organization and things that threaten our national security are nasty, they’re persistent, they’re adaptable and they’re usually highly competent and all too often effective. Resisting these threats is neither easy nor pleasant, and this is why the people, the resources, the technology and the legislative and policy framework dealing with the task of resisting threats is so important.
I just mentioned that our adversaries are adaptable. That is a characteristic that is equally important in those resisting national security threats, not always the strong suit of our political and bureaucratic systems. The proposed legislation is complex and quite prescriptive. I hope you will review both its implementation and the law itself to ensure that the element of adaptability is ever present.
My second general point is that in a democracy such as ours, our national security apparatus cannot work effectively without a fully effective accountability structure that is as transparent as possible. That accountability structure must work for the public, for Parliament, as well as for the national security departments and agencies themselves. It may surprise you that I argue that the accountability structure must be seen as effective by those subjected to it. This is because if they view it in any other way, it will be seen as a bureaucratic box-checking exercise, and this benefits no one at all.
The point I’m trying to make is that effective accountability is not solely a function of the number of review bodies, decision-making points, annual reports or micromanagement by non-operational players; rather, it is at least a function of the quality of the leadership and the staff involved, of their training, of the culture of their agency and of an effective working relationship with review institutions.
As you consider Bill C-59 and all the testimony that you will have heard, I would urge you to consider whether the bill, along with all the other national security legislation — and I think you must apply a comprehensive view — promotes the dual objectives of protecting our national interest while not unintentionally endangering applicable constitutional or legal principles.
As concerns Bill C-59 itself, were I a member of this place, I would have voted yea on second reading. It is generally a good bill that respects the need to adapt the law to new circumstances while correcting a number of anomalies and shortcomings. Having said that, I have one specific comment. As for the rest, I’d be happy to try and answer any questions I can.
My concern relates to the role of the intelligence commissioner, in particular to his or her mandate to determine the reasonableness of certain activities. Let me try and explain.
In our system, we focus accountability for the activities of departments and agencies on ministers. This has been especially true in the area of national security where secrecy is very important. I submit that the focus on ministers is a good thing that should not be lightly limited. I suggest that having a former judge sign off on the reasonableness as opposed to the legality of activities does just that.
After CSIS, there is CSEC, Justice, DND, Public Safety, and often PCO review a matter. I don’t see why a former judge should have to rule on reasonableness. Surely that is the role of ministers of the Crown. I have a great deal of respect for judges when they are doing judge’s work, where generally they are concerned with legality and not reasonableness. Using former judges would provide ministers with too easy an out if something ever goes wrong. I want to stress here that I’m not referring in any shape, way or fashion to Mr. Goodale. It’s a generic comment.
I would urge you to limit the intelligence commissioner’s role to one of certifying legality. If that is not possible, then require that the position of IC be filled with former politicians or public servants who are very likely to have had greater experience in dealing with reasonableness.
Thank you for your attention. I would be glad to try and answer any questions that you might have.
The Chair: Thank you, Mr. Fadden. We will move to questions.
[Translation]
Senator Dagenais: Thank you for being here, Mr. Fadden. You said in your presentation that, when you appeared before the committee at the other location, you mentioned the cumbersome process for reviewing CSIS requests.
To your knowledge, can this process make agencies less effective and thereby pose a threat to national security?
Mr. Fadden: The threat remains, but the leaders can change the allocation of the necessary resources. It also depends on the extent to which review bodies make reasonable requests.
When I worked at CSIS, the biggest issue wasn’t the review bodies, but the Federal Court. In Canada, the doctrine of discovery is very broad and it requires a great deal. I think that even the Federal Court had identified the requirements in this area.
In general, there’s a risk. The CSIS director shouldn’t hesitate to inform the minister of exaggerated requests or difficulties. However, in general, I don’t think that national security is at stake.
Senator Dagenais: I would now like to talk to you about cyber operations. What do you think of the requirement to obtain the approval of two ministers for covert operations?
Mr. Fadden: I don’t agree with it. Our system of governance in Canada is based on the individual responsibility of a minister, not on the responsibility of a committee or two or three ministers. However, it’s entirely reasonable for a minister to consult with colleagues. I also think that it isn’t always easy to find two ministers when emergencies occur. It isn’t the ministers’ fault. They’re very busy. However, I fundamentally disagree with the idea that two ministers must sign. If it’s simply a matter of consulting, that’s a different story.
Senator Dagenais: Thank you, Mr. Fadden.
[English]
Senator Griffin: As you know, and this applies to most things that we’re dealing with in terms of legislation, there will be some that say it doesn’t go far enough, it doesn’t provide enough clout, and then there are others who fear it’s going to provide too much clout and therefore interfere with our personal freedoms and privacy.
We’ve had some people actually say we’ve struck the right balance here. We had Hugh Segal last week who thought indeed it was the right balance. It’s like the baby bear and Goldilocks and the porridge; it was just the right amount and the right temperature.
With that in mind, there are still some who believe that CSIS now has the power to collect data that is not related to a threat and that that should be further constrained compared to what is proposed in this particular bill. What would your response be to that concern?
Mr. Fadden: Let me start by saying that I do think the bill strikes a pretty reasonable balance. I don’t think the agencies require any additional powers. In fact, I think sometimes they have powers they don’t use, and that was certainly the case when I was there.
I do worry a bit, as I mentioned to your colleague, that the role of the intelligence commissioner is an addition that I don’t think will add a great deal except time and complexity, particularly in some cases where there is urgency, although I do recognize there are provisions for the minister to move forward without a commissioner’s okay.
In terms of dealing with the cyber issue, that’s a very sensitive one, because the fundamental basis upon which CSIS can collect information, be it cyber based or otherwise, is they must perceive a threat to national security, and that in fact is something that surprises people. I think people watch TV too much and they see the Secret Service director saying, “Go and research Senator Gold.” Well, there are a number of measures in place, quite significant measures in place, to prevent that from happening. I think people tend to forget that.
As concerns cyber, sometimes you don’t know what you have or what you can get until you get it. To my mind, the real issue is not whether you should allow collection, always with some controls, but what you do with the information once you have it. The mainstay of any intelligence agency is information, in whatever form it may be. I would argue, with the constraints that are in the bill, let them collect what they can, but then make doubly sure that there are internal and external constraints on how they use the information. It’s a bit like the proverbial haystack. I think they should have the haystack of information, but they shouldn’t be able to plunge into it without very clear national security reasons and whatever approvals are necessary.
I guess that’s how I would respond to your query.
Senator Griffin: Thank you. Currently, how would CSIS consult with other departments and agencies about a proposed threat or a threat reduction measure?
Mr. Fadden: I think the general rule is you consult as much as necessary but no more than necessary. I’m not trying to make a joke of it, because if these things are going to work, you have to maintain a high level of privacy.
If the measures, for example, would involve any element of Foreign Affairs or Defence, those two departments would be consulted. If they involve an agency or department of the Government of Canada, very senior levels would be consulted.
When I was at CSIS, at any rate, there was a relatively short list of institutions that merited special regard. For example, if CSIS were going to start investigating the promoter of this bill, there would be a whole raft of things that they would have to go through to make sure that it’s reasonable.
The other thing that I think is important to realize — I certainly felt this, and I think my successors do — is you don’t want to put your minister in a position where, if you’re initiating some activity, it’s going to blow up. So the first person you tell about these things, even if you don’t have to request permission, is the minister, because you’re an agent, not a principal. But generally speaking, the consultations are limited to departments and agencies that are directly concerned, except for Foreign Affairs and Defence issues, which are a little bit broader.
Senator Griffin: Thank you.
Senator McIntyre: Thank you, Mr. Fadden, for your fine presentation.
There is oversight and oversight. The question remains how much oversight is too much oversight, which brings me to the oversight plan under Bill C-59, which includes several bodies, including the Federal Court. My question is this: How demanding is the Federal Court of CSIS? Are you concerned that the proposed intelligence commissioner will be just as demanding as the Federal Court?
Mr. Fadden: As I implied earlier, the Federal Court’s requirements need to be taken into account when you look at these various oversight and review bodies. Let me divide my comment on the Federal Court in two parts.
One, whenever there was a matter of urgency, we were told clearly and unambiguously we could wake up a justice at three in the morning and they would deal orally with an issue. If it was urgent and immediate, we never had a problem with the Federal Court.
As I said to your colleague initially, the law of discovery in Canada is very broad and all-encompassing. The Federal Court took the view, before the committee of parliamentarians was established, that they were almost exercising the powers of a superintending superior court under section 96 of the Constitution, and they were asking for more information. The first time I had to sign an application to the Federal Court, it was something like 350 pages. Now, I have no quarrel with the court knowing the material facts of an application, but if every application has to be a couple hundred pages — and I do know they’ve made efforts recently to cut back the number of pages — there is an issue there. The court will argue that because hearings are held ex parte and there is no one else in the room, they have to be as encompassing as they can. I think the Federal Court adds a not-inconsiderable burden. It may be a necessary one, given the nature of the judiciary and whatnot, but there should be ongoing efforts and discussions between the service and the court to try and reduce, to the minimum necessary, what the court needs.
As you will have gathered from my introductory remarks, I’m not a great supporter of the intelligence commissioner. Asking the commissioner to take a view of the reasonableness of activities is basically doing the job of a minister. I don’t think judges are particularly well-situated to judge reasonableness; they are well-situated to judge legality. If it is your view and that of the house that we need a commissioner, I hope you will restrict his mandate to legality.
The commissioner will be part-time as well. He will clearly have to have a staff. Very often, it’s not the principals in these review agencies that cause work; it’s the staff. That’s not unreasonable because principals can’t do everything.
I think I understand why the intelligence commissioner role is contemplated in the statute, but I do believe that the review of reasonableness is the job of ministers. It’s not the job of an appointed former judge.
Senator McIntyre: I would like to address the issue of reasonableness. I agree with you that we’re adding another layer of scrutiny. On the issue of reasonableness, it will depend on how the commissioner or his staff define the word “reasonable.” The intelligence commissioner is mandated to review the reasonableness of ministerial conclusions — and I know you don’t agree with that — but what role should the intelligence commissioner play with respect to the definition of “reasonableness”? In other words, should he be mandated to review the reasonableness of authorizations or determinations themselves and not review the reasonableness of ministerial conclusions?
Mr. Fadden: Let me start, senator, with the definition of “reasonableness.” First, I don’t think it is the intelligence commissioner’s job to define “reasonableness.” He is an agent, like everyone else in the statute. It would be desirable for the statute to provide some definition of “reasonableness.”
If not, the ministers involved and the commissioner should dialogue on what a definition should be. Because absent some form of definition, it is entirely subjective. If you get a former judge, for example, who was on the security bench of the Federal Court, he or she may have an entirely different view because he or she understands the nature of what we’re dealing, with as opposed to someone who might be appointed from the Superior Court of Alberta. I’m just picking Alberta; it could be any province.
The way the statute is presently constructed, it requires the commissioner to look at the substantive view of reasonableness. In other words, he or she has to look at the request against whatever environmental information he or she has and decide whether it’s reasonable. I don’t see how, aside from everything else, that’s fair on the former judge. It’s imposing a burden that is really heavy. He or she may decline to certify the reasonableness of an activity because he or she misunderstands what is going on or doesn’t have a definition, and because of this national security is affected.
I go back to the basic view that if Parliament insists on keeping the reasonableness role for the commissioner, you should provide him or her with the definition of “reasonableness.”
Senator McIntyre: Should the proposed intelligence commissioner be limited to review the reasonableness of the authorizations or determinations themselves?
Mr. Fadden: I think the former.
Senator McIntyre: Thank you.
Senator McPhedran: Thank you, Mr. Fadden, for being not only with us but also at the House of Commons committee. In fact, my question is geared to trying to make sure that we have a clear understanding of a point you made at the House of Commons committee. You raised a concern with giving the intelligence commissioner, in effect, a veto on certain operations by either CSIS or CSE. Last week, we had Commissioner Plouffe, who will become the intelligence commissioner, and he told this committee the intelligence commissioner will not have a veto and went into some detail around the reasonableness aspect of the role. Could you say more about this to make sure that we clearly understand the point you’re making on veto?
Mr. Fadden: I’m just a lapsed lawyer, so take what I say with a grain of salt. As I read the statute, the activity contemplated in the two sections relating to CSIS and CSEC cannot take place lawfully without the commissioner agreeing. If that’s not a veto, I don’t know what a veto is.
I didn’t hear Commissioner Plouffe’s testimony, but to my mind, if CSIS is asking to do something or other with their data sets, and eventually the minister has to agree but it can’t get to the minister without the commissioner’s sign-off, that’s a veto. It may not be called a veto, but it is a veto. As I was saying to your colleague, I disagree.
Senator McPhedran: The two answers to the questions come together to help us understand. Thank you.
Senator Gold: Thank you for being here, Mr. Fadden. I have a question about the intelligence commissioner, because that’s obviously a matter of interest to you, and also about the double ministers involved in some cases.
The testimony we heard from Professor Forcese — and it was also echoed in his writings, and Professor Roach’s — was that the introduction of the intelligence commissioner was an attempt to solve a constitutional conundrum because information that is gathered in the course of CSE’s or CSIS’s otherwise legal authorized activities will sweep in, inevitably, data around which Canadians have reasonable expectations of privacy. The intelligence commissioner would be an equivalent of a warrant system, but you can’t have a warrant system when you don’t know what you’re going to get until you get it. That’s why the office is there.
In the testimony we heard from Commissioner Plouffe, he described a situation that was interactive with the minister, that when the minister makes a determination that a request is reasonable and ticks off all the boxes, then the intelligence commissioner has to assess whether the minister’s ticking off the boxes is reasonable, and if he or she has a question, it would go back and forth with the minister until it was resolved.
When Professor Mendes was testifying before us, he took issue with the reasonableness as well. But he didn’t argue for legality because legality wouldn’t solve the constitutional problem, I gather. He said it should be reasonable grounds. We just received today a brief to that effect in his capacity from the international commission.
I’m not asking you to reconsider your conclusion, but do you have any comments on this architecture in light of the fact it seems to be in response to the need to satisfy our Charter when Canadians’ privacy is implicated necessarily but incidentally in the collection of data?
Mr. Fadden: That was my understanding as well on why the intelligence commissioner’s role was created.
Concerning the earlier testimony to the effect that there would be a dialogue between the commissioner and the minister — and I’m abstracting entirely individuals; I have no view — I think that’s a pipe dream. I think that ministers are way too busy. Commissioners are not going to want to talk to public servants on something that is this sensitive.
In my experience — just mine — independent commissioners, be they for intelligence or privacy or anything else, take a very dim view of having to negotiate their conclusions with ministers. Maybe my experience was unique in this respect but, generally speaking, they don’t like doing that. If the commissioner can’t talk to the minister, it means taking to his political staff or to public servants. By the time we are finished with all of this, I’m not sure how the view to the effect that this will all come out in the wash and people will agree on an outcome is going to happen, certainly not all the time and maybe never.
It was not my understanding, as to the second part of your question, sir, that it was absolutely necessary to create an intelligence commissioner with a view of allowing, for example, data sets to be accessed. I think the view was there had to be systems, practices, procedures and regulations in place that protected how this information was being dealt with. For example, there are any number of domestic departments that collect information for which people have a reasonable expectation of privacy, and ESDC does not have an information commissioner inside that act that stipulates that before they can go out and collect something, they have to get a sign off.
I don’t see why, constitutionally, it should be any different in this area. There should be limits, regulations and controls. I don’t see how having — and whether the person is a judge or note is not important; once he or she is appointed, she is the commissioner — a commissioner working part-time will meet the constitutional test that you have outlined. But I may be wrong. I am just giving you my sense of it.
Senator Gold: I’m a lapsed constitutional lawyer, so let’s agree not to engage on this one.
I have a brief question about an earlier comment that you made. You expressed disagreement with the circumstances under which two ministers might have to sign off. As I read Bill C-59, that arises in only one circumstance. With the new cyber power mandate to be given to CSE, if they engage in defensive cyber activities, as defined in the act, then the Minister of Defence would have to consult with his or her counterpart, the Minister of Foreign Affairs. But if they are to engage in active cyber, which essentially means going into another jurisdiction through cyberspace, then there would need to be the consent of the Minister of Foreign Affairs. That’s because these kinds of active cyber could trigger or implicate Canada in a war. It might be in response, a countermeasure. It’s a complicated area of international law.
But in circumstances where this new cyber mandate might actually implicate the international law of war, wouldn’t you think it’s appropriate that the Minister of Foreign Affairs has a say in this, in addition to the Minister of Defence who is clearly the right person?
Mr. Fadden: To be honest, I wouldn’t fall on my sword on this issue. It’s more an issue of principle. I find that when you ask for multiple ministerial authorizations, it just complicates things.
I would also argue that in some limited circumstances, both potentially we and our Five Eyes partners have found it useful not to ensure their foreign affairs ministry is aware of what’s going on. I am sure you can imagine the circumstances, but sometimes it’s helpful to be able to have a very narrow view. If something really goes wrong, the country at issue can argue that the state department or foreign office didn’t know about it; it was these weird people operating in CSEC or CSIS, and you can reduce the temperature that way.
To be up front with you, I don’t think this is a matter on which anybody should fall on their sword. I do think, though, that sometimes foreign ministries are a bit skittish about this sort of thing and sometimes too skittish, I would argue. That’s why I would prefer consultation rather than approval. If the Minister of Foreign Affairs really objects, there is always the Prime Minister to go to. But I’m trying to say that I take your point, and if there is a little flexibility in the system, sometimes not a bad thing.
Senator Gold: Thank you very much.
[Translation]
Senator Boisvenu: I would like to welcome you, Mr. Fadden. I have a few questions for you. Mr. Cotler spoke earlier about some worrying elements of the Canadian immigration system’s capacity to properly analyze cases. I also understand that, in terms of information gathering, this legislation is meant to be preventive. The goal is to ensure that Canadians don’t become potential victims of crime or terrorist acts in particular.
How can we make the passage of legislation, however perfect it may be, compatible with our current immigration system, when there are concerns about the capacity to identify criminal elements and analyze cases? I’m trying to understand, because this seems contradictory.
Mr. Fadden: There’s a contradiction in some ways. However, delays in the immigration system are completely administrative and even bureaucratic, in certain respects. The people who work in the field make decisions, sometimes on the basis of a ministerial directive, and sometimes not.
How long will this take? In general, based on my experience, for most people who come to Canada, there are no real concerns about crime or national security. Our current issue isn’t necessarily related to time or resources.
It should be noted that our adversaries aren’t crazy either. In most cases, when they want to send a potential terrorist to Canada, the United Kingdom, France or the United States, they choose someone whose name doesn’t appear in the databases of the countries concerned.
Having a lot of time or resources doesn’t help. Is there a contradiction? Yes. I think that the current immigration system makes it possible for security agencies to say the following to immigration officers: “You can’t proceed.” This power is rarely used, but it can still be exercised.
You’re right to say that, when we look at the current immigration system in relation to the passage of this legislation, it isn’t clear that these two elements complement each other.
Senator Boisvenu: A few weeks ago I asked Minister Blair what links CSIS has with countries like Iraq and Syria, where Canadians have fought next to terrorists. We know that those Canadians will someday come back to Canada, and they will have to be brought to account.
Since our legal system applies the principle of proof beyond a reasonable doubt, is our intelligence co-operation good enough so that if these people return to Canada, we will have an accurate idea of their criminal activity in those countries? Because in the absence of that, when they return to Canada, the legal system will not be able to pass judgment on them.
Mr. Fadden: I think the short answer is no. Relatively few countries have had this problem. In most cases, we have links with either police or security agencies that are more or less effective. Insofar as Syria is concerned, that is absolutely not the case. We were in fact at war with that country, and all of our co-operative relations came to an end.
However, very often that is not the issue. It happens most often when a country’s government is virtually non-existent. There are security agencies in Somalia or Sudan; they aren’t terribly effective, and I am not at all sure that we would unreservedly accept information they could provide to us.
Senator Boisvenu: We are faced with an immigration system that does not necessarily provide us with accurate information on the people entering the country. There are Canadians who have left the country to go and fight next to terrorists over there, and we don’t have any information about them; in addition, we have a Criminal Code that is relatively silent when it comes to criminalizing that type of activity. We are going to be caught short in a bad situation if these people come back to Canada.
Mr. Fadden: I think you are correct. Most of these people who come back to Canada can be divided up into three categories. There are those who decide, because of their activities outside of the country, that they will never again be involved in criminal or terrorist activities in their life, and that that is over for them. There are others who feel that they may help someone else, but they won’t do much themselves. And finally, there is a relatively small number of people who want to come back here and continue to cause trouble for us. The difficulty for CSIS in particular is to establish which category the returnees fall into. Once we have placed them in the third category, do we do surveillance on them 24-7, or do we simply ask the Federal Court for a warrant to monitor their electronic communications? Honestly, that is the problem, not only for Canada, but for all of the western countries.
Senator Boisvenu: However, there are countries that have said: “You aren’t coming back here.” France, with NATO, has said: “We will not accept you back into our country.” Canada has a different position, and we say that we will allow them to come back.
Mr. Fadden: Personally, I think that if someone turns into a terrorist here and leaves Canada, we have a responsibility to deal with him. We aren’t helping the management of international terrorism by refusing to have them come back to the country. In addition, if I understand correctly, Canadians have the constitutional right to return to Canada; so for us it would be somewhat difficult to tell them that they can’t return here.
When I attended the Five Eyes meetings, the opinion of our American friends, particularly, was:
[English]
If you created the terrorist and he goes abroad, you’d bloody well better take care of him when he comes back or when he’s mucking around the planet.
[Translation]
In addition, the Americans were generally displeased with the level of resources we allocate to trying to control this kind of person. Nevertheless, it is a dilemma because of the Canadian charter and legislation.
Senator Pratte: I’d like to go back to the matter of reasonableness.
[English]
I understand you’re a lapsed lawyer, but I’m not a lawyer at all.
[Translation]
I have two questions. You said you would like to see reasonableness defined in the law. My understanding is that this is quite a well-defined concept in administrative law jurisprudence, and that judges are used to it — those who practise administrative law, in any case.
My other question has to do with the fact that my understanding of the law is that the commissioner must determine whether the minister’s decision or conclusion is reasonable. That does not necessarily lead him to make a decision on the reasonableness of the measure. In this case, it’s a matter of seeing whether, between the two possible choices, the minister made a reasonable decision. It is not the reasonableness of the measure or the operation that is in question.
Are these important nuances, or do they change nothing, in your opinion?
Mr. Fadden: Ultimately, with regard to your second point, I don’t think it changes much. When the commissioner examines the minister’s decision, he must ask himself whether the minister’s definition of reasonableness is appropriate. In my opinion, we are removing from the commissioner the responsibility of being the immediate decision point; in practice, however, I think he will in fact have to examine the minister’s decision afterwards. You are correct, I think there are a series of decisions, and jurisprudence, and certain laws that define the notion of reasonableness. I am not sure that they would all apply to the national security sector, and I think it might be useful to adopt a definition that would be well understood by everyone. Indeed, if we use a definition from administrative law, we have to admit that there’s not much administrative law as such in the national security area. I would suggest that even if we use a definition taken from administrative law or jurisprudence, it would be advantageous to include it in the act, so that everyone understands exactly what is being talked about.
Senator Pratte: Thank you.
Senator Dagenais: I have a very quick question for Mr. Fadden: would you have any amendments to suggest to Bill C-59, without compromising the adoption of the bill, keeping in mind that we have a government that is not very receptive to suggestions coming from the Senate?
Mr. Fadden: I would have two, in fact. The first would be to change the mandate of the Intelligence Commissioner. I would limit his field of action to matters of legality. Secondly, I would include a definition of what is reasonable in the law. To continue the discussion we began with Senator Pratte, I think there is a generally accepted definition of what is reasonable in Canada. However, that definition is not well understood, particularly in the national security sector; so why not include a definition in the law?
Senator Dagenais: Thank you very much, Mr. Fadden.
[English]
Senator Griffin: My question relates to the privacy commissioner, who was a much earlier witness at our committee meeting. He noted that his office, even under this new legislation, would still be unable to share confidential information or otherwise collaborate meaningfully with the National Security and Intelligence Committee of Parliamentarians. Would you see this as being a flaw of Bill C-59?
Mr. Fadden: I guess I would. I’d like to think I don’t have very many hobbyhorses, but one of my hobbyhorses is that in this area you need to share information if you’re going to be effective, and if this kind of exchange could take place with the privacy commissioner, all sorts of precautions would have to take place to make sure that security is maintained.
People occasionally ask me what kept me awake when I was still working, and the one thing that always did was the prospect of telling the minister or a prime minister this event could have been avoided if we had this bit of information in department X. So with great respect for contrary views, I’m relatively unsympathetic to people who argue that information relevant to national security — and I include in that oversight and review — shouldn’t be shared generally, with all the precautions that you might need. But having to explain to the Canadian public that something went wrong because you didn’t make this connection or that connection would not be pleasant for a minister, and I think it applies to the privacy commissioner. I do not see why the sharing couldn’t take place.
Senator Griffin: Thank you.
Senator Gold: In your opening remarks, in the contextual points, you underlined the important issue of adaptability and flexibility going forward. How do you rate Bill C-59 in terms of providing an architecture that is adaptable? Are there areas we should be keeping our eye on and be worried about?
Mr. Fadden: Actually, I think it is pretty good. To be honest, it was rather a long time coming, but it’s a complex piece of legislation. I’ve been around long enough to know that there is no unanimity on these issues, so I can understand the government’s desire to try and package it.
One of the difficulties we have in Canada in respect of national security issues is we don’t really talk about it much. Broadly speaking, we don’t think we’re under threat. We have three oceans and the United States, and the only time we talk about national security — exceptions being things like this — is when something goes really wrong. I think either the Senate or a royal commission or the House of Commons needs to talk about these things more.
From my perspective, the bill is a pretty good one, as I tried to say at the very beginning, but it will probably not be a pretty good one in three years when technology will have leaped forward again. I’m being sarcastic, but if it’s going to leap forward in three years, we shouldn’t take ten years to change the legislation. I do not direct this at any government in particular. There is inertia in large organizations, and it’s hard to do, which is why I was urging you and your colleagues at the beginning that whether or not there is a legislative mandate to review this stuff, if something comes up, you should review it, and you should poke and prod as much as you can to make sure that necessary either legislative or policy changes are put in place.
Senator Gold: I’m not trying to create work for us, chair, but I could see an ongoing role for this committee to keep a watching brief — along with the committee of parliamentarians, of course, which would be their primary job — on some of the issues that may have been identified in the testimony that are new in the bill or that the bill may need some adjustments around.
Mr. Fadden: I absolutely do. One of the things that struck me when I retired is that in my last couple of jobs, I sort of had a hose connected to my brain in terms of intelligence going into. It was my job. After I retired, I was struck for a while that, with the exception of short-term operational intelligence — which is the critical part, because that’s how you avoid grief — if you are an assiduous reader of The Economist, if you watch a couple of reasonable broadcasts and if you make an effort to keep yourself informed, you pretty well know what is happening or what are the issues in national security.
So I would argue that should you and your colleagues decide to do this, you should get the Library of Parliament in a particular way to monitor what is going on. And if anything goes wrong, in 90 per cent of the cases you don’t need a top-secret “shoot yourself after reading this paper” to know that it’s going wrong. I would argue that anything that promotes discussion in Canada about these general topics being discussed would be in the national interest.
[Translation]
Senator Boisvenu: I have two brief questions. Thank you once again, Mr. Fadden, for your very interesting testimony. The bill changes the “the offence of advocating or promoting terrorism offences” to one of “counselling the commission of a terrorism offence.” That refers to two notions, the notion of inciting, and the notion of participation. Does this not weaken the government’s option to undertake legal proceedings against individuals who are linked to terrorism networks?
Mr. Fadden: Ultimately, I think the answer is yes. This was done deliberately, to avoid circumstances where it is not clear that a criminal act was committed. Are we somewhat weakening the government’s option to launch legal proceedings? I think we are. Are we dealing a lethal blow to it? I don’t think so.
Senator Boisvenu: I have one last question. Under the Australian Criminal Code, if you have dual citizenship and commit a terrorist attack, you lose your Australian citizenship. Would such a measure possibly encourage people to not get involved with a terrorist movement?
Mr. Fadden: Possibly. If I understand our Charter correctly, it might still be necessary to have a constitutional amendment to allow that kind of thing. In general, if people want to be terrorists, and we do not have the time to discuss how a terrorist is made, a measure of that kind is not terribly important, in my opinion. People like that have a mission that is alien to any external considerations. Such a measure might perhaps be useful in some cases but, in general, it would not be. Terrorists think only of accomplishing the mission they have set for themselves. For the reasons I have given, it is not something I would do. If they are our terrorists, we should deal with them ourselves. Saying that the responsibility belongs to another country, in my opinion, means that we are shirking our fundamental responsibility vis-à-vis Canadian citizens who become terrorists.
[English]
Senator McPhedran: Mr. Fadden, thanks for being with us from the start today. You heard previous testimony. My question is about some of the points made around the vast amounts of information that is gathered and stored but underutilized proactively and cooperatively by intelligence agencies. My question is really about your sense of Bill C-59 in terms of big data, analytics and artificial intelligence as being possible solutions to the problem of being able to be more proactive and hopefully more predictive and preventative. Do you see Bill C-59 as having the scope for this in terms of the data set provisions?
Mr. Fadden: Yes, I think I do. I don’t think it prevents the use of extraordinarily sophisticated algorithms in order to access and review information. However, I would agree with the gentleman from Australia and I think it would be a mistake to rely exclusively on artificial intelligence or algorithms.
If I can make a general comment, I think in Canada we have, over time — again, I’m not directing this at any particular government — spent a great deal of time, money and effort worrying about collection, prevention and law enforcement, and nowhere near as much proportionately on analysis. I understand that, because you want the CSIS officer or RCMP officer on the street doing something to prevent something bad happening; however, often if you have a sophisticated or coordinated analysis capacity, you make their jobs easier.
Over the years, we have debated whether or not there would be a central one in PCO. We have debated whether we should force the defence intelligence analysis function to be shared with CSIS or whatnot. I think these are useful to debate. However, the bottom line, I would argue, in my experience, is that we could spend a bit more time, money and effort on analysis generally.
But I suspect that if you asked the director of CSIS today, “Would you take some resources from operations and put them into analysis?” he probably would resist, because the people on the ground are those who prevent real problems. This may mean — and this is something the minister wouldn’t like to hear — more resources, and you have the eternal battle of the balancing act among all of them.
But to your basic question, I think it would be helpful.
Senator McPhedran: Thank you.
The Chair: Mr. Fadden, on behalf of all senators, let me express our sincere thanks for your appearance here today. It’s been very helpful in terms of the discussion of the bill.
For the next panel, we have, from the Ligue des droits et libertés, Alexandra Bahary, Lawyer, National Security; and Denis Barrette, Lawyer, National Security; and as an individual, we have Mark Freiman, Former Lead Commission Counsel for the Air India Inquiry. We welcome you all to the table. Mr. Freiman, I understand that you will begin.
Mark Freiman, Former Lead Commission Counsel for the Air India Inquiry, as an individual: I would like to thank the committee for its invitation to appear here today. My observations and recommendations today are my own and should not be attributed to any other person or institution, but they do arise in the context of my experience as lead commission counsel for the Air India inquiry, which studied a number of the topics and issues dealt with in Bill C-59, and also from my experience as lead commission counsel for the Military Police Complaints Commission, which may give me some insight into the oversight and complaints investigation mandate set out in Bill C-59 for the national security and intelligence review agency.
I also draw on my past experience as Deputy Attorney General for Ontario and, separately, as counsel for a number of NGOs, successfully intervening in constitutional cases to uphold the constitutionality of reasonable limits on section 2(b) Charter rights that protect safety and security in a free and democratic society.
I had planned to discuss six brief observations, mainly concerned with issues arising out of the special problems posed by confidential information and the pressures such information put on normal procedural and other safeguards. Let me preface that by saying, having listened to Mr. Fadden, I’m also prepared to wade into the reasonableness wars. This is simply by way of an invitation for senators to prompt me to get up to my hips into that particular morass.
On to my prepared, brief observations: First, I would like to discuss two omissions. The Air India report dealt extensively with information sharing, as does Bill C-59 in the Security of Canada Information Sharing Act. Bill C-59 does not, however, deal with the central problem raised in the Air India report, namely intelligence into evidence. That is, who decides whether and when an intelligence agency shares information that may disclose the commission or the intention to commit a crime? When does this information get shared with police authorities, usually the RCMP, and who decides on that issue?
This is a sensitive matter because, once disclosure is made, the intelligence community loses control not only of the information but also potentially of the entire investigation in which that information arises. What is most important? The ongoing investigation? Disrupting a potential crime? Securing a conviction? At the moment, that decision is ultimately made by the intelligence agency gathering the information itself, subject to certain deconfliction protocols with police agencies.
The Air India report proposed appointing an official in the Prime Minister’s Office to make the decision from an integrated, all-of-government perspective, which would perhaps be more disinterested. The government of the day rejected the recommendation citing “machinery of government” reasons.
Bill C-59 provided an opportunity to revisit the issue and put the decision into the hands of an objective decision-maker. It was arguably a mistake not to. Intelligence employees and police officers on the ground who were interviewed for the Air India inquiry told us that the current system incentivizes silos and information-hoarding.
Second, resolving disclosure dilemmas: Another holdover from the Air India inquiry recommendations involves the forum for resolving disclosure dilemmas in criminal cases where information covered by national security confidentiality is involved.
Most serious criminal cases are tried in the superior court of one of the provinces. The Canada Evidence Act, however, requires that any issue respecting national security confidentiality must be resolved in Federal Court. The matter becomes urgent when it is claimed that certain information for which national security confidentiality is claimed is indispensable to the defence in the criminal case. The current system involves two courts, attendant delays and, most problematically, requires the Federal Court to make findings about evidence in a criminal case based on criminal law being tried in another court and the adequacy from an evidentiary point of view — again based on criminal law principles — of certain substitutions for the confidential evidence.
The Air India Commission recommended that this bifurcation cease, either with terrorism trials being taken over and prosecuted in Federal Court by a newly created office of director of terrorism prosecutions or that designated, specially trained superior court judges be given jurisdiction under the Canada Evidence Act to determine issues of national security confidentiality.
Not only does Bill C-59 not address this extremely important and sensitive issue under the CSIS Act, it creates new scenarios for bifurcation in the case of CSE under new section 55(7) of the CSE Act with respect to disclosure in a criminal case of the identity of a person assisting the CSE, which, again, is a sign for determination to the Federal Court. To be clear, this means a Federal Court judge with no criminal law background has to make determinations about the state of the evidence in a criminal case in a criminal court, and the outcome of the criminal case is dependent on that ruling. That is not a healthy situation.
Third, national security confidentiality and due process: The ordinary requirements of due process in criminal and administrative proceedings entitle a person to be present at proceedings implicating his or her interests and to know the case being made against him or her.
The requirements of national security confidentiality sometimes make it impossible to afford full due process in an administrative law setting and even, exceptionally, in a criminal law one. However, where that is the case, to the extent possible, it is important to provide as close as possible a functional equivalent. Where part or all of the case against someone cannot be disclosed because of national security confidentiality, ordinary rules, obviously, cannot apply.
In security certificate cases under the Immigration Act, a combination of court decisions and legislation has led to a system of security-cleared special advocates. In other cases, the Federal Court has on its own authority appointed security-cleared amicus curiae to be given access to classified material and to argue on behalf of the person in question, even where the proceedings are in private and where the person in question cannot be personally present and cannot be informed of the classified information. There is no reason why, in other proceedings, because of the sensitivity of the information being discussed, special advocates cannot be appointed to review the information in question and to argue on behalf of the persons whose interests are being determined in their absence.
Bill C-59 does not remedy this defect in its amendments to the provisions of the Secure Air Travel Act with respect to the adjudication of complaints about the no-fly list. It ought to have done that. Complaints are still adjudicated in private with no opportunity for the person in question to know the case against them or, therefore, to refute it.
Fourth, the national security intelligence review agency: A potentially similar issue may arise with respect to NSIRA’s jurisdiction to investigate complaints regarding the intelligence agency or complaints referred to it regarding national security matters. Bill C-59 provides that these investigations are to be conducted in private with only limited reports and disclosure going to the complainant.
Insofar as the legislation can be read as authorizing proceedings that exclude the complainant from all or part of the proceedings and that restrict the information given to the complainant, it would have been better to make explicit provision for a power to appoint a special advocate to assist the complainant to participate as fully as possible, including having the advocate being given access to relevant confidential documents, even if they are not to be disclosed to the complainant.
Fifth, NSIRA’s statutory powers with respect to access to documents and information: Under sections 9 and 10 of the national security intelligence review agency act, NSIRA is given very broad access to the information and documents it needs to investigate a complaint, clause 9, or to conduct a review, clause 10, with regard to an intelligence agency or a national security matter. This includes, where necessary, access to solicitor-client privileged documents. This is very important and extremely commendable.
However, there still remains one exception, as set out in clause 12 of the act, and that is for privilege attached to “cabinet confidences,” as set out in section 39 of the Canada Evidence Act. This exception seems unnecessary and counterproductive in light of the stated goals of the legislation. It is true that, traditionally, the exception for cabinet confidences is nearly absolute, but then again, so is solicitor-client privilege and so, one would have thought, is the identity of persons who assist CSE, which, as we have seen, the legislation contemplates being disclosed.
The purpose of the NSIRA mandate to investigate and report is to ensure public trust and confidence in the Government of Canada institutions that carry out national security and intelligence functions. That’s a quote from the preamble. It’s to ensure that public trust and confidence through “enhanced accountability and transparency,” also from the preamble.
It is not necessary to be a conspiracy theorist when you look to the travails of our neighbours to the south to imagine that at some unknown future point a complaint about abuse and intelligence gathering might include a credible allegation requiring investigation that the abuse complained of involved an agreement among cabinet members. Clearly the traditional immunity of cabinet confidences is too important to be swept aside by a mere allegation, but where the chair of NSIRA forms the conclusion that a document defined with adequate precision is necessary for the investigation of a bona fide complaint, there ought to be a procedure set out in Bill C-59 for an application in private to the Chief Justice of the Federal Court — in which the chair of NSIRA and the Attorney General of Canada are parties — to determine whether the document or information, in whole or in part or in some summarized form, ought to be produced. The standard for the determination ought to be whether the relevance of the document, in light of the goal of safeguarding the liberties of our society and promoting confidence in its institutions, outweighs any harm caused by the breach of the privilege and by disclosure to NSIRA.
Sixth and finally, NSIRA’s powers with respect to complaints and reviews: A final point about the mandate and powers of NSIRA is that in light of the stated goals of Bill C-59, it’s important to note that NSIRA is limited, both in investigating complaints and in conducting reviews, to preparing a report for the relevant minister. There is no power to prescribe remedies for complaints, and there is no power to order compliance with any findings of its reviews. These restrictions do not seem necessary if the goal is to provide substantive reassurance to the Canadian public as to transparency and accountability with respect to the activities of the Canadian intelligence community.
With that, I would like to thank the committee for its patience and attendance. I would be glad to answer any questions about the foregoing or about reasonableness.
The Chair: Thank you, Mr. Freiman.
[Translation]
Denis Barrette, Lawyer, National Security, Ligue des droits et libertés: We have just submitted a brief in French that contains a number of proposals about Bill C-59. However, in the time we have been given, we will highlight certain specific aspects of the bill.
First, thank you for inviting us. We are very glad that you did.
We welcome the creation of the National Security and Intelligence Review Agency. This is a review mechanism that has been recommended for a long time and that was included in the second phase of the Arar inquiry. It was proposed by Justice O’Connor, who was the commissioner of the commission of inquiry on the Maher Arar affair a while ago. For us — and as Justice O’Connor noted — this review mechanism is necessary as an indispensable aspect of the public’s trust in our institutions and it is also necessary in a democratic society.
However, some conditions will have to be met in order for the agency to be able to fulfil its watchdog mandate. The task before it is considerable and it will quickly become an empty shell if it does not have the material and human resources it needs to fulfil its mandate.
In his second report, Commissioner O’Connor said that the major challenge for Canada, and for other democracies, will be to make sure that review and accountability structures develop at the same speed as the state’s growing involvement in security matters, and the increasing intensity of its activities.
In that context, in order for the mechanism to have adequate resources, we suggest that a part of the budgets of the CSE, the RCMP and CSIS be allocated to the agency. Moreover, in its first report, the agency, through its director or president, should establish the minimum amounts needed for its operations. In addition, all the agency’s annual reports should address its resources and staffing.
In addition, the agency must also ensure that it is given the explicit mandate of verifying whether the activities of national security agencies are being conducted according to the rights and freedoms enshrined in the constitution. The mandate must also include the review of all ministerial instructions and directives in order for them to operate in conformity with the Canadian Charter of Rights and Freedoms and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
Let us also point out that an annual report is not enough. The public and Parliament should be informed, just like the minister, when the agency discovers practices that are not in conformity with the Charter.
In addition, the agency’s recommendation should be binding. If they are not made binding, the organizations investigated by the agency should be required to explain publicly how they have implemented the review body’s recommendations.
Finally, the agency should be able to collaborate with similar organizations in other countries. National security and intelligence organizations work together internationally and the organizations mandated to oversee and review them should be able to do the same.
As for the gathering of information and the creation of large databases by national security agencies, the powers given to CSIS under Bill C-51, as modified by Bill C-59, remain a major concern. The power given to CSIS to legally create databases on all Canadians is unacceptable to us. There are no restrictions on the data that CSIS may gather, provided they are considered public.
More specifically, it is not necessary for information available to the public to have been obtained legally. While previously, gathering information was supposed to be necessary, it does not seem to have to be relevant any more. Data expressly recognized as not being directly and immediately linked to threats to Canada’s security will be able to be gathered in the future. Other data will be able to be compiled after approval from a judge on the basis of rather weak criteria. It is enough for it to be likely that keeping that data is of help to the intelligence service.
Unfortunately, these databases pave the way to big data and to what is known as data mining, which leads to the creation of lists of people on the basis of risk profiles. We are opposed to that approach to security, which ends up placing millions of innocent citizens on lists of suspects and which disproportionately targets certain groups, specifically Muslims.
With Bill C-59, CSIS will be able to continue with its active measures, including disruption measures, to address threats. The measures can limit a right or a freedom guaranteed by the Canadian Charter of Rights and Freedoms if a judge issues a warrant approving those measures. We emphasize that those approvals are granted ex parte, so that the people targeted by this assault on their rights will not be able to go before the judge to make a case for their innocence or against the unreasonable nature of the measures. It may even be that they are unaware that CSIS is the source of the problems they experience, which would prevent them from making complaints after the fact.
Let us not forget that documents made public in 2016 revealed that, since 2006, 800 demonstrations and events underwent surveillance by agencies and departments of the Canadian government. Such powers unfortunately bring to mind the abuses in the 1970s that the McDonald Commission denounced. The normalization of security measures is a pernicious phenomenon that is spreading into all our social and political activities. By seeing violations of rights and freedoms as routine, we are collectively accepting a weakening of the free and democratic nature of our societies. Our brief concludes with 14 recommendations that we submit to you. Although some measures in this bill are welcome, a number of others should be amended or removed in order to guarantee the rights and freedoms of Canadians. I invite you to read our recommendations. Thank you. We will be happy to answer your questions.
The Chair: Thank you.
Senator Dagenais: My thanks to our guests. My questions go to Mr. Freiman. I am curious, what do you call a State reason, that was given to explain the rejection of your recommendations to create a position directly attached to the Prime Minister’s office?
[English]
Mr. Freiman: I’m sorry, I didn’t hear the translation for the last part. Which recommendation?
[Translation]
Senator Dagenais: I will ask my question again. What do you call a State reason? That is what you said was the rationale for rejecting your recommendations on creating a position directly attached to the Prime Minister’s Office. You mentioned a State reason. Could you tell me about that?
[English]
Mr. Freiman: As I understand it, and I’m not an expert in such things, the objection was related to something called the machinery of government. It was explained to me that it was difficult to understand the relationship of that office to other branches of government, given that it was tied to the Prime Minister’s Office, and there was reluctance to create a new bureaucratic office that was not under a cabinet minister but tied to the Prime Minister’s office. I did not understand the objection, but that’s as much as I could understand. There was something about the way government is organized that made it unattractive to those receiving the recommendations to follow it. My understanding is that it was important to lift the decision out of the hands of those who are directly affected by the decision and give it to security-cleared individuals who had an all-of-government approach to the question.
[Translation]
Senator Dagenais: You have gained a lot of experience in your work on the Air India file. You have alerted us to the obvious shortcomings and legal problems in Bill C-59, particularly with respect to information sharing and potential criminal prosecutions. Does this bill improve Canada’s ability to fight terrorism?
[English]
Mr. Freiman: By making information sharing easier, yes. The points that I noted make criminal prosecutions more difficult, and in that respect, no. In terms of intelligence and intelligence sharing, yes, terrorism is better fought in the permissive sections of the bill, but by creating yet another instance of a bifurcated court proceeding, we are not making it easier, and by not curing the bifurcation, we are potentially leaving a difficult situation where there is a difficulty in criminal trials that could affect the ability to secure a criminal conviction.
[Translation]
Senator Dagenais: Thank you.
[English]
Senator Griffin: My question has just been asked, so I will pass.
Senator McPhedran: Thank you to all of the witnesses for being here today.
My question is to Mr. Freiman. It is going over some of the information you shared with us about the Air India inquiry and the examination of operational work by CSIS in that time. This committee has actually not heard very much about what is in this bill that gives a clear legal footing to CSIS employees to use covert identities to infiltrate potentially dangerous groups. What we have heard and have had quite a bit of confirmation on is the extent to which terrorism is homegrown and the extent to which terrorism has the face of a White male supremacist in Canada. Speaking to these abilities around CSIS employees and broadly, if you wish, do you see that with some elements of Bill C-59, had they been in place 30 years ago, would there have been a likely prevention of the Air India tragedy?
Mr. Freiman: I don’t think so. The specific provisions you are talking about would not necessarily have been of assistance. I may be generalizing, but my recollection and my impression is that we were dealing in very early days of CSIS, and CSIS recruitment had not gotten to the point yet where it had established a foothold in diverse communities. It was still feeling its way into Canada’s multicultural communities. The RCMP had done a better job than CSIS had at that point. So I’m not sure that the provisions of Bill C-59 would have been relevant in those days.
Senator McPhedran: In addition to your service to the Air India inquiry, of course, you are also a former deputy Attorney General in Ontario. This question is perhaps more geared to your experience in that field. It is in relation to your comments about special advocates and that this is a gap in the bill, a missed opportunity. We have had this discussion somewhat briefly with the minister and pointed out the fact the special advocates are up and running on the immigration side. It would not be difficult to add this into the bill. My question, though, is whether you feel that the lack of special advocates would actually contribute to the basis for a Charter challenge.
Mr. Freiman: Yes. Because it is such a simple and practical alternative, I think it contributes to an argument that this is a deprivation of a fundamental right that isn’t as limited as it could be. It’s not as tailored as it could be because it could have been less limiting.
Senator McPhedran: Thank you.
[Translation]
Senator Boisvenu: Welcome to our guests. My question is for Mr. Freiman. A witness who appeared in the other place, Cara Zwibel, Acting General Counsel, Canadian Civil Liberties Association, was very critical of certain aspects of the bill, including the Passenger Protect Program. Let me quote from her statement:
...the passenger protect program continues to raise serious constitutional problems.
She even said that the bill will ensure that this program will remain very opaque and that the redress mechanisms will be inadequate. I would like to know whether you share Ms. Zwibel’s concern and whether any adjustments could be made to the bill to make that item more transparent.
[English]
Mr. Freiman: I mentioned the lack of special advocates. At the moment, the no-fly list is entirely opaque. There is no transparency whatsoever. A person does not know and cannot know whether he or she is on the list and cannot challenge being on the list. It will form the basis of constitutional challenges. A system of special advocates that would allow for challenges by persons who believe that they are on the list improperly would improve the bill.
Senator McIntyre: Thank you all for your presentations.
My question is to Mr. Freiman. It has to do with the proposed amendments to the Security of Canada Information Sharing Act, better known as SCIS. You made reference a while ago to information sharing. That’s the reason I would like to pursue that a little further.
As I understand, there appears to be differences in wording between the SCIS Act and the CSIS Act regarding the necessity threshold. Let me explain. The bill proposes to amend the SCIS Act to specify that when a Government of Canada institution discloses information to a recipient institution, the disclosing institution must be satisfied that “the disclosure will not affect any person’s privacy interest more than is reasonably necessary in the circumstances.” Under the SCIS Act, CSIS may collect information “to the extent that it is strictly necessary.” So my question is this: What is the difference between the threshold of “reasonably necessary” and that of “strictly necessary,” and what are the reasons for those differences?
Mr. Freiman: I can’t tell you why the drafters chose the different language.
Senator McIntyre: Would you prefer the original language?
Mr. Freiman: Yes. CSIS has always prided itself on the narrowness of its mandate and on the “strictly necessary” language.
Now I can get into my spiel about reasonable. “Reasonable” has a defined meaning in administrative law. When one is speaking about an office like that of the intelligence commissioner, he is exercising an administrative law function. It refers to a standard of deference because “reasonable” means a conclusion that is available on the facts and the law, and it means it is one of a range of conclusions. It doesn’t mean the only conclusion. There can be a range of conclusions available on the facts and the law. In administrative law, when a court is asked whether something is reasonable, it is asked not whether it is correct; it is asked whether, of all the possible solutions that are available based on the law and the facts of the case, this would fall into that range. That’s why it’s said it’s a standard of deference, because so long as somebody could come to this conclusion based on the law and the facts, it will pass muster.
So “reasonably necessary” would mean somebody faced with these facts could come to the conclusion that it’s necessary — not that everybody would come to the conclusion, but that a person faced with these facts would be entitled to come to this conclusion; not that everybody would but that an ordinary person, not an expert but not a fool, faced with these circumstances, could come to this conclusion. It’s a much lower standard than “strictly necessary.”
Senator McIntyre: Thank you for your answer.
That said, would departments and agencies be required to allocate additional resources to intra-government information sharing? And also, do the Government of Canada’s departments and agencies have adequate and consistent information infrastructure, including computers, that can send and receive sensitive information?
Mr. Freiman: I can’t answer that question. I simply don’t know.
Senator Oh: I want to follow up on the provision in Bill C-59 to raise the threshold about national security and the response to serious terrorist threat from the word “promoting” into “counselling.” What do you say about that provision?
Mr. Freiman: “Counselling” is much preferable to “promoting.” It brings the offence in line with our usual notions of criminal law. A counselling offence is known to criminal law. You can be convicted of counselling someone to commit a criminal act — almost any act. Since terrorism is a criminal act, counselling terrorism is in line with our usual understanding of criminal law. Promoting terrorism is much more difficult. It straddles the line between expressive behaviour and criminal behaviour, between speaking one’s mind and promoting criminal activity. While personally I think “promoting” terrorism could be justified, it’s more difficult to justify it. The section is more open to a Charter challenge, whereas “counselling” terrorism is much more secure, much closer to our traditional ideas of what constitutes a criminal offence.
Senator Oh: Thank you.
[Translation]
Senator Gold: My question is for Mr. Barrette. You and other organizations have expressed concern about allowing massive surveillance of Canadians. The Privacy Commissioner stated that this issue remains a difficult one, as the government must collect information about individuals in order to identify what may constitute a threat.
The commissioner seemed satisfied with the definition of “publicly available information,” which excludes information for which a Canadian — or a person in Canada — has reasonable expectations of privacy, and which can help protect them from mass surveillance. The commissioner did not recommend any further amendments and expressed some satisfaction with the privacy provisions in the amendments. He recommended that the bill be passed.
Can you comment on that?
Mr. Barrette: First, it is not just about collecting information. It’s more about doing research and developing an individual profile based on big data. We operate in a different world from the one where police officers looked through telephone directories or read newspapers. This is the world of the Internet, a world in which certain individuals or groups are profiled for years.
Take environmentalists as an example. With keywords, we go far beyond the whole concept of gathering information accessible in a library. Caution must be exercised with certain terms. In addition to the word “dangerous” in the bill, we note that the bill provides additional powers to CSIS, which may collect information and share it among various departments.
We all know that we are heading towards a world — if we are not already there — where all human activity takes place on the Internet, and where much of it becomes public. In addition, we have to keep in mind all the various types of activism that can backfire the most. For example, when I participate in a public demonstration and am filmed, is that part of what is called “publicly available information”? Perhaps. However, as long as we do what Facebook and Google are doing, in terms of compiling information for profiling purposes, we have a problem.
The other question is about how Crown agencies will collect publicly available information. Will they buy it from private companies? Will they use it in the same way that Facebook or other companies handle big data? I’m telling you, but I’m no computer expert. Many people are saying that a world where all human activities will take place on the Internet is coming at lightning speed.
Senator Gold: Mr. Barrette, these are very legitimate concerns. However, Bill C-59 has nevertheless put in place a structure that my colleagues have described as cumbersome, but above all thorough in terms of prior authorization by departments and the intelligence commissioner. A set of rules and processes must be analyzed by the agencies that retain the information, while setting aside what is irrelevant or that affects the privacy of Canadians.
Can you comment on the status quo today?
Mr. Barrette: We are critical of Bill C-59. You will see this in our report. We are also saying that we find some very positive aspects in the bill.
Furthermore, I do not believe that a warrant from a judge is needed to obtain publicly available information. That’s not the issue. The issue is about what will happen with all the data. If the information is public, why does CSIS need to have the power to collect and use publicly available information, if it is actually like going to the library?
In terms of safeguards, some verification measures were not in Bill C-51 before. In many cases, actions take place without the person concerned being there and in a context where a person does not always have the resources to challenge them.
Earlier, Mr. Freiman gave the example of the no-fly lists. People are unaware that they are on no-fly lists and they find out when they are faced with the problem. In terms of disruption powers, people don’t even know that they are victims of a disruption to their activities by CSIS. People must first be aware of this to be able to challenge and correct the reason why they are the victims of such actions. You will tell me that we have review mechanisms, such as the national security and intelligence review agency and the intelligence commissioner, which is a good step forward, but we are waiting to see what resources those agencies will have.
There’s a reason why Justice O’Connor says that this is the great challenge facing today’s democracies. We are creating institutions and ombudsmen everywhere, but in many states, or provinces that I shall not name, these organizations do not have the resources to move forward and end up delegitimizing the organizations they should consider legitimate. In other words, the result is a loss of trust in state institutions rather than the other way around, because those institutions cannot function because of a lack of resources.
I’m not sure whether that answers your questions.
[English]
Senator Gold: I know that time is pressing, and there are others.
[Translation]
Thank you very much for your answers.
[English]
A yes-or-no answer would suffice. You have raised two really important issues: intelligence to evidence, which we’ve heard from Professor Forcese is an ongoing problem, notwithstanding One Vision 2.0 and all the deconfliction, and also the question of the dual court system that we have. It’s also been in the academic literature for a long time. Would you support — yes or no — ongoing study and consultation by this or some other organization in the event the bill, which doesn’t address it, passes without it being addressed?
Mr. Freiman: Absolutely. I think both are imperative issues that have been neglected for a decade now and can’t be left alone.
Senator Gold: Thank you.
Senator Richards: Thank you for your presentations. I haven’t asked a question this morning because I’m not a lawyer or police officer. There are lawyers and police officers here, and they know much more about all this than I do.
I was interested this morning in Mr. Fadden’s talk about reasonableness, and how nebulous and subjective it might be, and if it’s used as final oversight, how detrimental that might be to overall freedoms. My son was on a no-fly list when he was 13 because he must have had the same name as someone else. We had a real conundrum getting him to fly from Fredericton to Toronto on his first trip alone to visit a friend. Someone used reasonableness at that time, and I’m just wondering if you think Mr. Fadden has a point here about the nebulousness of using reasonableness as a basis for your authority.
Mr. Freiman: I don’t think he has a substantive point about reasonableness being nebulous. He may have a point about its utility.
As I said, reasonableness is understood as a deferential standard. It’s intended as a standard of review that concedes that the agency or the body being reviewed is the expert in the area, and it’s intended to check to make sure that the conclusion is a conclusion that is available on the facts and the law — not that it’s correct, not that it’s the one that the reviewing person or body would have adopted him or herself, but rather that it is available given the law and given the facts. It’s the opposite of unreasonable. It’s designed to weed out conclusions that are not available on the law and the facts.
When Mr. Fadden says he would restrict a judge to determining legality, really that’s what the judge is determining. Here is the law. Given the law and given the facts available, is this conclusion available?
As I say, it’s a very low standard, which is why the committee may decide that this isn’t much of a standard for the commissioner to review. That ties into the constitutional argument that this really is intended to solve a constitutional conundrum of after-the-fact authorization, saying that, “Well, I’m looking at this now, and given the facts that were available at the time, this seems okay.” It doesn’t really go much further than that, and one would expect that there would be very few authorizations that wouldn’t be approved, because in order not to approve an authorization, the commissioner would have to come to the conclusion that this particular authorization was not available on the facts given what the law requires — not that it was incorrect, but that no reasonable person could come to this conclusion, which as I say, that’s quite a conclusion that you have to come to.
Again, I don’t think it’s a nebulous standard. It’s a known standard, but again it’s a deferential standard, a very low standard. If you’re looking for something that has teeth and that will guarantee excellence in decision-making, this ain’t it. If you are looking for a standard that will solve a constitutional problem, this is it. If you’re looking for a standard that will, for all practical purposes, recognize the expertise of the agency and the minister, this also works.
The biggest problem I see is that it’s a double reasonableness standard. You are judging the reasonableness of the minister’s assessment of reasonableness. It’s a little hard to wrap your head around.
Senator McPhedran: My question is to Ms. Bahary and Mr. Barrette, please. Your organization has expressed concerns about authorizing the CSE to conduct cyber operations, and yet we’ve heard at this committee from Public Safety Canada and CSE that there are hundreds of millions of attempts each day to probe Canadian government networks for weaknesses to probe. We actually haven’t heard very much about similar attempts for private sector infrastructures, but with some intent to exploit any weaknesses that could be found. Given your concern, how would you address Canada’s need to defend itself against potentially malicious cyber activity?
[Translation]
Mr. Barrette: I’ll answer you. I’m not a computer expert, but the fact remains that Canada won’t be able to stop the problem by doing the same thing as what it is experiencing. It isn’t by launching cyber attacks, and especially by giving CSIS a new disruptive power, that we’ll solve the problem. Indeed, there can be problems, and yes, governments, states and probably private companies as well, are vulnerable to cyber attacks. However, it isn’t by carrying out cyberattacks ourselves that we’ll solve the problem. This isn’t a good solution for us. IT solutions will have to be found, and I’m sure they exist. My answer is simple: I don’t think starting a computer war is a good solution.
However, perhaps it’s necessary to find IT resources. Again, computer experts can tell you that. At first, it’s a bit like war. My example is crude: we don’t want a nuclear bomb, but we’re embarking on an arms race; it isn’t necessarily the right answer. Launching a cyberattack is like attacking a computer system, with all due respect for our technologies. This power cannot be separated from the disruptive power of CSIS. I don’t know if that answers your question.
[English]
Senator McPhedran: Ms. Bahary?
Ms. Bahary:No.
Mr. Barrette: No.
Senator McPhedran: Thank you.
[Translation]
Senator McIntyre: Mr. Barrette, I understand that your organization has welcomed the fact that Bill C-59 removes the investigative measures that have not been used since the Air India case. Could you explain why removing these investigative measures is a good thing?
Mr. Barrette: I think that, in the Air India case, which my colleague Mr. Freiman must know better than I do, the Supreme Court set a good example of why it is necessary to respond to the need to abolish such measures. Unfortunately, the Air India case is a clear example of the uselessness or ineffectiveness of judicial investigation. Particularly with regard to principles, it must be understood that this is a paradigm shift in our criminal law system in which the judge, in general, does not become the spokesperson for police investigations, but decides decisions. In the judicial investigation, the judge was responding to a request from the police. In the Supreme Court, Justice Fish, who had a dissenting opinion in the Air India case, considered that this did, indeed, attack the independence of the judiciary.
Senator McIntyre: My concern is that this position could put our police forces in a more difficult position when they face a serious terrorist threat in the future.
Mr. Barrette: In our opinion, just because judges are forced to act as investigating judges, without the powers of the investigating judge as we see them in France, doesn’t mean that we will help the police to conduct their investigation.
I repeat: this is a paradigm shift for us. In France, for example, investigating judges investigate and may themselves summon persons to appear before them and compel them to answer. However, it should not be forgotten that French investigating judges are said to be almost as powerful as the President of France. They can summon anyone they want to appear: police, military or someone else.
We are not in a system like this. We are not in an inquisitorial system, but in an adversarial one. Changing the paradigm is not the way to help police officers do their jobs well. If we go back to the Air India case, we must remember that the person who was forced to appear before the judge was completely reluctant and that we obtained very little of his testimony. Finally, as we all know, the trial ended in failure. This provision has been completely ineffective and inefficient.
[English]
The Chair: Are there any other questions? Let me take this opportunity to thank the witnesses for appearing before us today. It has been extremely helpful as we move forward studying Bill C-59. Thank you very much.
We welcome to the table, from the International Civil Liberties Monitoring Group, Tim McSorley, National Coordinator; and from Amnesty International Canada, we have Alex Neve, Secretary General; and Justin Mohammed, Campaigner, Human Rights Law and Policy. Welcome to you all. Mr. Neve, I understand you are going to lead.
Alex Neve, Secretary General, Amnesty International Canada: Thank you very much.
Good afternoon, committee members. Let me begin by first acknowledging that we come together for this testimony on the unceded territory of the Anishinabeg Algonquin people, which is a particularly important recognition when we remember that there are many ways and many times in which Indigenous peoples themselves in this country have suffered from national security laws and practices that have contravened their human rights.
For decades, Amnesty International reports have made it clear that governments in every corner of the world, certainly including Canada, commit or contribute to serious human rights violations in the name of national security. Those violations include the rights to life, not to be subjected to torture and to be protected from discrimination, safeguards against arbitrary arrest, fair trial guarantees, freedoms of expression, association, assembly and religion, refugee protection obligations, privacy rights and international humanitarian law provisions prohibiting military attacks against civilians.
Canadian politicians have made many reassuring speeches affirming that Canada upholds both national security and respects human rights, but nothing in Canadian law concretely enshrines that commitment. Our first recommendation, therefore, is that Bill C-59 be amended to require that Canada’s national security laws, policies, operations and activities will be interpreted and carried out in full conformity with Canada’s international human rights obligations, for example, by amending clause 92 of the bill dealing with the powers of CSIS.
We welcome the establishment of the national security and intelligence review agency. We have four recommendations related to NSIRA.
First, NSIRA’s mandate should be amended to explicitly include responsibility for ensuring that Canada’s security and intelligence agencies comply with the country’s international human rights obligations.
Second, NSIRA should have a role in ensuring that claims for redress for individuals who experience national security related human rights violations are independently assessed and decided so as to avoid the inconsistent, arbitrary and politicized approach to date, well illustrated by the current case of Abousfian Abdelrazik, whose claim for redress is being inexplicably refused by the government.
Third, we endorse proposals that have been made by others for NSIRA’s operations and composition to be strengthened, including by our colleagues with the ICLMG.
Fourth, steps need to be taken to institute independent review and oversight of the one major law enforcement agency with significant national security powers that lacks independent review, the Canadian Border Services Agency, and that must be expedited.
Numerous human rights shortcomings associated with Bill C-51 have not been rectified in Bill C-59. We’d like to draw your attention to three in need of serious attention.
First, immigration security certificates have been criticized by various UN human rights bodies because of the unfairness of the process and the risk it may lead to deportation and torture. Amnesty International urges that Bill C-59 be amended to abolish immigration security certificates or, at a minimum, to repeal the Bill C-51 changes that allow a wider category of information to be withheld from the special advocates involved in such cases.
Second, the extensive problems that remain with the implementation of no-fly lists, quite frankly, defy belief. It is vital that Bill C-59 be amended to ensure the following:
First, that a reliable system be finally implemented for avoiding false positives.
Second, that the fairness of the process for challenging inclusion on the no-fly list be significantly strengthened.
Third, that Canadian law establish that U.S. no-fly lists will not be used with respect to flights originating or finishing in Canada that do not involve landing or taking off from a U.S. airport or flying over U.S. airspace.
This concern is well illustrated by the experience of Abdullah Almalki, who is not on any Canadian no-fly list. After a harrowing experience of torture and other abuses in Syrian detention, caused in large part by Canadian complicity, Mr. Almalki’s name was effectively cleared by a judicial inquiry and he received full redress and an official apology from the Canadian government. Yet in November, when he was set to fly with me from Montreal to Geneva to join an Amnesty International delegation at the UN Committee against Torture, he was barred from boarding the flight because he is included on a U.S. no-fly list. The flight was not travelling to or passing over the United States. It is unacceptable that a Canadian’s freedom of movement and Canada’s sovereignty can be restricted in that arbitrary and secretive manner.
Justin Mohammed, Campaigner, Human Rights Law and Policy, Amnesty International Canada: Recent ministerial directions issued by Minister Goodale improve standards and safeguards with respect to Canadian intelligence sharing and torture, but concerns remain, which have been highlighted for the second time, by the United Nations Committee against Torture last year.
Bill C-59 introduces the avoiding complicity in mistreatment by foreign entities act, which would make such ministerial directions mandatory. However, Bill C-59 should be amended to include a clear obligation that such ministerial directions unequivocally prohibit, in any circumstances, one, the sharing of information with foreign agencies if there is a substantial risk that it would lead to torture or ill-treatment, and two, using information received from foreign agencies where there is a substantial likelihood that it has been derived from torture.
Amnesty International is concerned further with the decision to broaden the surveillance activities of CSIS from one that targets individual people under investigation to other forms of mass data capture. In general, surveillance activities have the potential to engage a broad range of human rights, including the right to privacy and the right to freedom of expression.
As such, indiscriminate data collection, even of publicly accessible data sets, should be restricted to an individual target or a defined group of targets in pursuit of a legitimate purpose. It should be strictly necessary and proportionate to that legitimate purpose and should be the least intrusive of all possible measures to pursue that aim. Collection and retention should also be judicially supervised. Finally, the collected information should be destroyed at the earliest opportunity, and at latest it should be destroyed when it is no longer necessary to achieve the legitimate purpose for which it was collected.
The failure of Bill C-59 to define what constitutes a publicly available data set is a significant oversight, and it must be further defined in law. The failure to do so would have the negative consequence of enabling CSIS to collect a substantial amount of information in which an individual may nonetheless retain a residual privacy interest in a data bank that is subject to minimal safeguards.
There is a long-standing serious human rights shortcoming in Canadian national security law that was not addressed by Bill C-51 and remains untouched by Bill C-59. In blatant contravention of Canada’s international human rights obligations and ignoring recommendations that were made repeatedly by the United Nations Human Rights Council and the Committee against Torture since the 1990s, Canadian law allows for individuals to be deported to face torture in another country in exceptional circumstances, such as where there are national security concerns. It is time to ensure that Canadian law makes clear that we will never, in any circumstances, hand anyone over to the waiting hands of a torturer.
Finally, we would note that there are many other concerns and recommendations regarding Bill C-59, which Amnesty International has raised previously and which we continue to urge should be addressed. We also broadly endorse the recommendations that were brought forward by other civil society groups and experts with respect to such issues as the human rights implications of active cyber operations. Thank you.
Tim McSorley, National Coordinator, International Civil Liberties Monitoring Group: Thank you, senators, for inviting the International Civil Liberties Monitoring Group to present today regarding Bill C-59.
As a point of information, last Friday we submitted a more detailed written brief on some of our concerns. It is being translated and will be circulated once it has been.
Our position on Bill C-59 is that while it brings some important, positive changes to the national security landscape, these are being overshadowed due to the government not going far enough to address existing problems, along with the introduction of new laws that raise troubling concerns for civil liberties and human rights in Canada.
First, I’d like to focus on the positive, the new review and oversight mechanisms, namely, the national security and intelligence review agency and the intelligence commissioner, and ways we can build on these proposed bodies.
Dating back to the O’Connor inquiry, the ICLMG has advocated for an overarching review body for Canada’s national security agencies and activities. We are glad to see that come into effect with NSIRA. However, we have also learned many lessons from the Security and Intelligence Review Committee’s role as CSIS’s watchdog. As NSIRA is largely modelled on the current SIRC legislation, we can look to it for areas of improvement.
While NSIRA will have a broader mandate, it will have the same number of members as SIRC. We instead suggest appointing a minimum five members and maximum eight, other than the chair. While the real test may be in the amount of resources allocated to the committee, more members will allow for the necessary staffing to conduct thorough reviews, and it would also allow NSIRA members to come from a broader range of backgrounds, including from the human rights and civil liberties communities.
Next, NSIRA would be limited to only accepting complaints regarding CSIS, the CSE and the RCMP. To ensure clear accountability, NSIRA should accept complaints about all national security agencies. At a minimum, this should include the CBSA and Global Affairs Canada. NSIRA should also be granted the power to make binding recommendations based on its findings. Finally, it should also have the power to award compensation, for example, for legal fees to complainants in cases where abuse was found legitimate.
The intelligence commissioner is an important new addition to national security oversight. To carry out its work, we believe the IC should be a full-time role. The commissioner should also be granted the power to place conditions on approved authorizations. Like others, we also believe that commissioners should play a role in approving active and defensive CSE cyber activities.
For both NSIRA and the intelligence commissioner, to ensure independence, we believe nominations should be approved by two thirds of MPs on recommendation of the Governor in Council.
While we welcome the new review and oversight bodies, there are areas of Bill C-59 that continue to raise deep concerns. First, it is problematic that Bill C-59 does not respond to and rescind more aspects of the Anti-terrorism Act, 2015, previously known as Bill C-51. Of primary concern are the threat-reduction powers introduced to the Canadian Security Intelligence Service Act, or CSIS Act, in 2015. While Bill C-59 moves to restrict these powers, we have deep reservations about granting active, operational powers to an intelligence agency which go beyond those necessary for intelligence gathering.
CSIS was created in 1984 in large part to separate the real-world interventions of law enforcement from secret intelligence-gathering operations. There is a degree of transparency to the work that law enforcement agencies carry out. Their goal is to eventually go to trial where, normally, their actions would be revealed and the legality of these actions determined. However, CSIS’s work does not necessarily lead to an arrest. This means that their operations which do not require a warrant, a determination which CSIS would make, would never go to any court. Those that do require a warrant would still rarely, if ever, be subject to public scrutiny or an adversarial process. This includes not just the contents of the warrant but also how it is eventually carried out. Despite efforts to put in place safeguards, we dispute the necessity of those powers.
Our same concerns apply to provisions granting CSIS employees or designated individuals immunity for acts or omissions that would otherwise constitute a crime, and we would ask that this section also be removed. In both cases, we see the potential for the grave violation of Charter rights and freedoms, with very little information given to justify why such powers are needed.
On data collection, we have made multiple recommendations in our brief on concerns about the expansion of CSE’s and CSIS’s powers to collect and retain non-threat-related information, such as unselected information and publicly available information.
There has been much debate on publicly available information. In regard to the CSE, the definition must be further restricted to exclude hacked or unlawfully divulged information, and it should also restrict information available for purchase. For CSIS, there is currently no definition of publicly available information in the CSIS Act, raising serious concerns about what they will or won’t be allowed to collect. Publicly available information in terms of data sets must be defined.
Regarding the disclosure of Canadians’ information, we have also proposed further modifications to the Security of Canada Information Sharing Act, SCISA — or SCIDA, as it is termed in Bill C-59, the Security of Canada Information Disclosure Act. In particular, we suggest narrowing the overly broad definition activities that undermine the security of Canada and ensuring there is an actual exception for political activity, dissent and artistic expression in the act. At the same time, we once again question why such a sweeping new act was needed in Bill C-51 and continue to urge the parliamentarians to repeal SCISA in favour of simpler rules focused on privacy protection.
Regarding the no-fly list, we support the call for a redress system and are pleased to see progress on that front. However, this will not address the fundamental flaws underlying the Secure Air Travel Act, known as SATA. We cannot support a tool that operates in secret and does not afford those listed the opportunity to mount an adequate defence. We are willing to discuss modifications to the regime but maintain our call that SATA must be repealed. There are multiple tools in the Criminal Code that can achieve a similar goal and that also afford individuals the right to due process in a court of law.
Finally, I haven’t spoken at length about the CSE Act, although I know I’ve been speaking at length about other aspects of the bill. The issue is that it is a complex act and, in our brief, we do make multiple proposals. However, I would like to add our support to the calls to suspend active cyber powers until further study can be done. At a minimum, we support the call for the intelligence commissioner to be given a role in approving any active cyber activities.
Thank you very much for paying attention to our concerns and for having us here today.
The Chair: Thank you very much. We’ll now move to questions.
[Translation]
Senator Dagenais: Thank you to our guests. My first question is for Mr. Mohammed. Mr. Mohammed, do you have any figures and examples of torture or ill-treatment that stem specifically from Canada’s national security measures?
[English]
Mr. Neve: If you don’t mind, senator, we’ll switch the responsibility for responding to you as, in my role, I’ve been extensively involved in cases where we absolutely do have very grave concerns that decisions, actions and inaction originating in Canada did lead to very serious human rights violations, including torture, abroad. Some of those cases are very well known. Obviously there is the case of Maher Arar which, of course, was the subject of a commission of inquiry. Similarly, the cases of Abdullah Almalki, Ahmad Abou-Elmaati and Muayyed Nureddin, were also the subject of an internal inquiry. Both of those inquiries unequivocally documented, number one, that torture had happened; number two, that it was very serious and sustained torture; and, number three, that there clearly was Canadian responsibility in a whole variety of ways, including very problematic approaches to intelligence-sharing in both directions — what was provided to foreign agencies and what was received back.
A more recent case that is still current has had much less attention because it hasn’t been the subject of a judicial inquiry is one I referred to briefly — the case of Abousfian Abdelrazik, who experienced sustained torture over a period of at least two-and-a-half to three years in the Sudan. It’s very clear — and there have been some Federal Court rulings pointing to this — that there’s again very serious Canadian complicity, including close collaboration between CSIS and the security forces in Sudan at the time.
Our concerns in this area aren’t theoretical. They are very real and grounded in those sorts of experiences.
[Translation]
Senator Dagenais: What I understand from your answer is that these events did not necessarily happen in Canada. They have occurred in other countries, and you assume that there have been interactions between the various security agencies, but this has happened in Sudan.
I have another question for you, Mr. Neve. In your presentation, you talked about politicized elements in Bill C-59. What are you talking about exactly? Can you identify the elements that justify the fact that you have described them as “politicized elements”?
[English]
Mr. Neve: Thank you, senator. My reference to politicization was not with respect to what’s in Bill C-59. It’s something we would like to see added to Bill C-59 to deal with concerns about politicization. This was particularly in the way that cases of redress for individuals who have subjected to human rights violations associated with national security have or have not been dealt with over the years.
That includes the cases I just referenced but also would include the very well-known case of Omar Khadr. Those are cases where there is clear Canadian responsibility for some aspects — you’re quite right, not the totality because the torture itself was meted out by a foreign agency — but clear Canadian responsibility and complicity in what happened.
It’s sadly very clear that, over the years, the decisions about when, how much and even if to provide redress in those cases have not been entirely based on clear, independent criteria about what justice would require but has absolutely been driven by political considerations. The case of Omar Khadr is the most obvious.
Our view is that it needs to be depoliticized. Something as fundamental as ensuring that survivors of torture, for instance, receive the redress that is their right cannot be subject to the prevailing political whims of the day. We would like to see NSIRA be given a very clear role and responsibility in ensuring that those decisions are made in a less political way.
[Translation]
Senator Dagenais: My next question is for Mr. McSorley. By restricting certain powers of security agencies, as you mentioned, does Bill C-59 approach or move away from what is being done by our allies, particularly in the United Kingdom and Australia, and could you give us some examples of what you call “political activities” that could be subject to oversight under Bill C-59?
[English]
Mr. McSorley: Yes, certainly.
In terms of whether or not we’re getting closer or further from what other countries are doing, because the laws in other countries are so complex, it’s hard to say exactly where we are. What we do understand is that we have been told from studies that have been done that this bill will bring Canada closer to what other countries, such as the United States and the U.K., have been bringing in. However, we have those questions. We work closely with organizations such as Privacy International and Statewatch, who have raised similar concerns that we have been raising throughout the adoption of new national security laws in the U.K. in order to increase their surveillance and information-gathering powers. While it’s true we are approaching the powers that our allies may have, we would question whether or not that’s the right direction for Canada to be going in.
One of the things I’d also like to point out is that, for example, in terms of other aspects of best practices in other countries, a study was done when the National Security and Intelligence Committee of Parliamentarians was brought in. The best practice in other countries is that it would be an independent parliamentary body. We brought that up, and that was a direction other countries were moving in. Canada decided not to go in that direction, which we found to be regrettable.
So it’s not always just a situation of are we moving in the same direction of other countries, but deciding what’s right in Canada. I think some of these laws do move in those directions, but we would raise concerns about them.
Regarding the information that has been collected, I think this is a good example of how in the U.K. there has been a drastic move towards greater data-collection powers for their security agencies, which have been the subject of intense criticism from civil liberties organizations in Europe and the U.K.
If we look domestically at SCISA and the concerns we have — for example, the way threats undermine the security of Canada — even in SCISA, in the new formation of the act, we would be concerned that, for example, people who are protesting pipelines, or people who are protesting for Indigenous rights and Indigenous title claims, could still be caught up in the definition of what includes an activity that undermines the security of Canada because of the broad nature of those definitions. We are concerned that would trigger information sharing between agencies, and information not related to a national security threat would then start to populate different dossiers and be used to both build profiles but also, as Mr. Barrette was saying earlier, to do data mining and profiling, which further down the road will raise other significant concerns.
[Translation]
Senator Dagenais: Thank you.
[English]
Senator Griffin: My first question is for Mr. McSorley, and it’s regarding the intelligence commissioner and parliamentary accountability. If the intelligence commissioner, and not the appropriate minister, has the authority to make the final decision about ministerial authorizations or determinations, how can Parliament exercise accountability over those decisions?
Mr. McSorley: It’s a very good question. Thank you. I think that’s one of the reasons we would like to see that the intelligence commissioner is accountable to Parliament and not appointed simply by the Governor-in-Council, and that would help address some of those concerns.
There is a lot of discussion about ministerial prerogative and the powers of the minister versus the power of somebody like an intelligence commissioner. I wasn’t here for Mr. Fadden’s testimony this morning, but I was here for the next session. From what I can understand, there is question about the reasonable powers. While we would like to see stronger authorizations, I think that, as framed right now, the fact whether or not an authorization is reasonable doesn’t necessarily undermine the decision-making of the minister. It’s simply to decide whether or not it’s reasonable under the law.
On the other hand, we do agree with other organizations that have brought up in the past, before the act was proposed, that these types of surveillance activities in other circumstances should be subject to judicial oversight, and that the intelligence commissioner, as a former judge, is quasi-judicial. We have a recognition that judicial oversight of surveillance activities is acceptable. So I don’t see that as undermining the minister’s ability to make decisions but, rather, ensuring that there is a judicial or quasi-judicial aspect to the approval of the authorizations.
Senator Griffin: Thank you. It’s quite a different stance than we heard this morning.
This question is for Mr. Neve, about the no-fly list. I take it you would see what’s proposed in this bill as being an improvement over the current situation, but yet you’re saying it’s not adequate.
Mr. Neve: Yes, senator, that’s a great summary of our view. We feel that, bit by bit — even, in some ways, with Bill C-51, and now further with Bill C-59 — we are seeing improvements. However, there are profound areas of concern.
I know you’re going to be hearing later this afternoon from the No Fly List Kids group, who are the most authoritative on the problems around false positives and the fact that, yes, Bill C-59 provides more tools to get us closer to finally dealing with that, but we need some real clarity and we need some of that to be specifically enshrined in Bill C-59 to truly guard against what has been, it would be mild to say, a huge inconvenience. It has been a serious human rights problem for families across this country for far too many years.
Second, while at least we do have — which we didn’t for quite a number of years — an appeal process that people can access to get their names off the list, there are fairness concerns about that process such as the secrecy of the proceedings, the lack of special advocates, the fact that much of the evidence is not available to individuals, and the inability to carry out cross-examination — all of which is a description of the similar concerns that arise with immigration security certificates in many respects. That needs to be addressed.
Third, as I shared the case of Abdullah Almalki as an example, we need provisions in Bill C-59 that will really push back against an unjustified intrusion of U.S. no-fly lists when there is no connection to the U.S., when a person has not been designated as being on a Canadian no-fly list. This would be a perfect moment to make it clear that U.S. no-fly lists will not be applied in Canada when we’re dealing with flights that are not originating in or passing over the United States.
Senator McPhedran: Thank you to all panellists for being with us today.
This is a question that could go to any one of you, as you see fit. You know that we’ve heard from several witnesses who have expressed concern over the due process of the appeals mechanism in the SATA. I understand it’s your preference to see that abolished. But short of that, what do you think of the proposal that’s floating about the viability of taking the special advocate system in the immigration security certificates and moving a very similar methodology into this process? If you are willing to address it, could you speak on the value of having a special advocate for an individual — because of experience you have had on the security certificate side — as distinct from what is currently set out as having an amicus appointed?
Mr. Neve: I will begin. My colleagues may want to jump in.
Yes, we would agree with the characterization that while we have larger concerns, and many groups have called for the entire process of having a no-fly list to be abolished and those concerns addressed through criminal law and other measures, absolutely we would agree that, at a minimum, introducing special advocates would at least improve concerns about lack of fairness.
Drawing on, as you have invited us to, the experience we have had in other areas — and for Amnesty International that would absolutely be within the realm of immigration security certificates — I think the most obvious lesson and cautionary note from that arena, which we would want to avoid here, is that if special advocates are going to be empowered, they truly need to be empowered. For instance, when it comes to immigration security certificates, special advocates are largely required to stop any communication with the individual concerned once they’ve seen the evidence. So at the very moment when they have seen the information and thus could have a meaningful exchange with the individual to figure out what to do about that, unless they get very exceptional permission from a judge, they are no longer allowed to have those conversations. Many special advocates have highlighted how difficult that makes it for them to do their job.
Furthermore, what we have seen — and this was a problem with Bill C-51, which has not yet been introduced — is that there has been a tendency to broaden the categories of evidence and information that special advocates won’t even be allowed to see at all, and we would want to absolutely avoid those concerns. If special advocates are going to play a role, it needs to be a role that is fully empowered without any restrictions.
Mr. McSorley: I would add that we largely agree with what Mr. Neve just said. We would still be concerned about maintaining a no-fly list. We would be worried that we would have this progression, that while a special advocate may help to improve on the situation, that fundamentally we would still have individuals who wouldn’t have the proper ability to defend themselves and present a case in order to remove themselves from a list, which has significant impacts on their rights.
While we wouldn’t oppose improvements, we would still maintain our position that this list should be abolished and that system should be abolished because of those restrictions. Especially because we are concerned about that, I’d call it a slippery slope that once we do have special advocates, if there are powers that are slowly taken away from them but the system is still there, that we would end up with a system that justifies the no-fly list but at the same time no longer accomplishes what the special advocates were set up to do in the first place. That is a major concern. I didn’t raise it, but we share those concerns about security certificates and the fact that special advocates have seen their powers reduced since Bill C-51.
Senator McPhedran: To quickly summarize that, if there were to be an amendment that would incorporate the special advocates, it’s very important not to simply take what exists on the immigration side and transpose it. It needs to be strengthened in terms of the capacity of the special advocate to truly represent. Thank you.
You’ve recommended that the CSE mandate be narrowed to remove international affairs — and again this is a question to all three of the panellists — and that further safeguards be implemented in the exercise of active and defensive cyber operations. I’m really interested in what those protections look like to you in the sense that you’re Canadians, you care about the country, you care about the security of the people of Canada and you obviously care very deeply for a reasonable balance in the way in which we try to defend Canada’s critical infrastructure and our networks from cyber threats. So if not what’s proposed, what’s the alternative?
Mr. McSorley: I think one of the important distinctions we try to make is between defensive cyber operations and active cyber operations. We believe wholeheartedly that Canada needs to be able to defend from cyber attacks and from hacking and from threats that the country does face, and it’s very clear. What we have concerns about are active cyber operations and the warnings we have heard from many other groups about the need to make sure that they are strongly restricted because we are concerned about what it could mean: if it means Canada begins pre-emptively attacking other nations through cyber attacks, what that can mean in terms of the impact it could have unintentionally on Canadians who are accessing the international cyber infrastructure because it is so connected and situations we have seen with the National Security Agency in the United States that already has similar powers and where some of the tools they developed were stolen and then used against civilians.
We’re not completely against the idea of Canada having active cyber powers, but the way it’s framed currently in Bill C-59 that it’s being granted to a civilian organization, and the fact that it’s part of a complex bill, and that this part in particular we believe deserves further investigation and further discussion before we move forward with it because of the implications that it can mean once it’s adopted. We fully believe that Canada needs to defend itself against cyber threats, but it’s in those active pre-emptive engagements where we have concerns. That’s why we’re also concerned about international affairs being a justification for these pre-emptive attacks, because of the potential broad nature of them.
Mr. Mohammed: Just to add one further point to that, senator, and thank you for the question: From previous testimony, I understand that the issue of whether or not international law is included in the breaches that could happen as a result of active cyber operations was discussed, and that Professor Forcese has indicated that if the act is read as it is now, it must be read to include that any action has to be consistent with international law. We would join with that position. We think that’s an important requirement, that any active cyber operations are consistent with international law.
From the perspective of Amnesty International, the particular concern that we would have is with respect to international humanitarian law and international human rights law. We think it’s very important that the provisions that allow CSE to conduct active cyber operations are consistent with those two branches of international law.
Senator Oh: Thank you, witnesses, for being here. You mentioned earlier about CBSA airport travel. Recently, the end of last month there was an article on CBC talking about returning residents and tourists coming into this country that were held back at the airport deliberately by CBSA, put on secondary or primary, something of that nature, going to secondary inspection. I have heard complaints that returning residents were asked to go into a room and sat there for one or two hours, sometimes up to three hours, for no reason, and then asked to go home. What is the reason? Is that profiling or security or what’s going on? Can you comment on that?
Mr. Neve: Thank you very much, Senator Oh. We certainly share those concerns. I wish I could answer your very important question, but I can’t. I think it’s very important that we should have a reliable process, means or body that would be able to answer those questions. I’ve seen the CBC report you are referring to and have actually had two or three outside individuals who work in this area be in touch to highlight these concerns with us.
The prospect that this is about discrimination, that it is about profiling, that there are certain ethnic and national profiles, for instance, that have been targeted for these secondary examinations, seems to be a very real possibility, but there isn’t a reliable means to get to the heart of that. That goes to our point about the lack of CBSA oversight. If we did have in place an independent agency with powers of review and oversight over CBSA, this is exactly the kind of concern that they would be expected — a complaint could be made or even they on their own volition could be sufficiently concerned to look into it so that you could get the answer to that very important question. Then, having that answer, we would know what kind of changes need to happen.
Senator Oh: If it’s a well-trained CBSA officer, with his hawk’s eye, he should be able to pick up a terrorist or a resident returning home or a tourist; right?
Mr. Neve: My understanding from the cases that seem to have emerged in these recent reports isn’t necessarily so much that they are national security related. It seems there have perhaps been some allegations around criminality or something of that sort, but it was very unclear, and because we don’t have any authoritative body that can get to the heart of it, then all sorts of preoccupations get amplified.
Senator Gold: First of all, welcome, all of you. I want to thank you, Amnesty International, for the work you do, and also the ICLMG for the work that you do, keeping issues of human rights and privacy on the front burner and acting as a conscience and reminder of how important it is for all of us in Canada and beyond.
As many of our witnesses have said, finding the right equilibrium and balance between the protection of national security and the protection and preservation of our constitutional rights and freedoms is a challenging matter under any circumstances, and all the more so as the world around us is changing so quickly and the threats are as they are.
I have some questions about some of the positions you’ve taken. I read very carefully some time ago but re-read the substantial brief that the International Civil Liberties Monitoring Group presented in January 2008. I expect the brief that we’re about to receive in translation will be no less exhaustive.
I could ask about so many things, but let me focus on two areas. One is mass surveillance, which is something we’re all concerned about. I’d ask for your comments on two aspects of it.
First, could you comment on the Privacy Commissioner’s conclusions to this committee that many of his preoccupations that he expressed before the committee in the other place have been addressed in amendments and that he now feels, on balance, that he is satisfied with the protection afforded to Canadians through privacy?
With respect to the collection, analysis and retention of data sets and mass data sets, could you comment on the relatively elaborate procedure that’s set out now, following Federal Court rulings, for CSIS — let’s focus on that — to collect, retain and use data? The minister needs the intelligence commissioner’s sign-off to determine classes of data sets that CSIS can collect because they have been to be relevant to CSIS’s functions. If CSIS collects a data set, a designated employee must evaluate and confirm whether it belongs to an approved class. During this evaluation period, CSIS isn’t allowed to query or exploit the data and has to delete any information that relates to personal information. CSIS needs Federal Court authorization to retain the Canadian data set; otherwise, they have to destroy it. It can only query or exploit a retained data set to the extent that it is strictly necessary. Then there’s an exception for exigent circumstances, as you’d expect.
So the Privacy Commissioner’s general satisfaction, and there’s a fairly elaborate system in place. What’s your view? Share it with us, please.
Mr. McSorley: Thank you very much for the question and for reading our extensive brief. I appreciate that.
Regarding the Privacy Commissioner, in large part, we agree that the Privacy Commissioner’s concerns were answered when it comes to SCISA, SCIDA and some other concerns. He said that he was reasonably satisfied, and there were other areas where he wished it had gone further, including around the definition of “publicly available information.” In that respect, we would go a little bit further and say it would have been necessary to bring those in and answer all of the Privacy Commissioner’s concerns.
I also think that there is an issue around privacy, and then there are issues around what it means for the chilling effect when people know that their information is being collected, concerns that we have about data mining and profiling down the road, and the discussion of using more big data analytics in terms of being able to develop ideas of who is a threat and where the threat is coming from. So we’re not simply just concerned about the privacy concerns about mass surveillance but also exactly what it means once all that information is collected by one body and what concerns we may have about how it may be used.
There’s an expression that’s become popular among intelligence agencies, that they need to develop the haystack in order to find the needle. We’re very concerned about this idea that they will be developing these haystacks, that they need to input as much information as possible and maintain that in a database, essentially for their use.
There may be — and this maybe gets more to the next part of your question as well — authorizations along the way, but our concerns are with that opening up of the initial gathering and retaining of that information and issues around whether or not it may not be abused. We know, despite the best efforts of SIRC and what’s being laid out with NSIRA, that there have been incidents around ODAC, for example, where CSIS was pulled up on the carpet for having a lack of candour with the courts. We’re concerned about giving them more powers, despite the fact that there are legal restrictions. We’re still sceptical that these types of situations won’t come back, despite the restrictions that are put on. I would agree with you that, at the same time, with the restrictions around Canadian and foreign data sets, there is a clear process and it is rigorous. It’s true.
Our concern is also around publicly available information. I recognize that if there is a definition of “publicly available information” in the CSE act, then it could be translated over and viewed as ways of finding the publicly available data sets in the CSIS Act, but we haven’t necessarily heard that coherence from witness from CSIS and CSE, where CSIS in fact said that if the same restrictions that were put on the CSE definition of “publicly available information,” that it excludes any information that has a reasonable expectation of privacy, it would, in fact, undermine the use of publicly available information data sets by CSIS.
Our question then is: What’s going into publicly available information data sets for CSIS that would contravene this idea of reasonable expectation of privacy? That’s where a big part of our concern is. We don’t know what’s going to be going into publicly available data sets.
In the other place, there was a statement around the issue that if there was a strict definition, it would mean that they wouldn’t be able to consult, I think it was, the Winnipeg phone book. We’re not saying that CSIS shouldn’t be looking at a phone book. Our concern is much broader than that, and it’s not defined in the bill that this would be limited to things like phone books, textbooks and instruction manuals, as has been brought up in other sessions, but, rather, that it’s a very broad definition.
That’s really where our concerns are around this issue. When we talk about mass surveillance and the concerns about what could go in, that’s where our concern is really focused.
Senator Gold: You’ve suggested repealing CSIS’s threat-reduction powers. We’ve heard from former Senator Hugh Segal in the Senate committee and SIRC itself that these are really necessary in order to stop things before the bomb goes off, so to speak. We also see in Bill C-59 a much more transparent list of what those powers are, what you can do and can’t do.
Would you comment on the way Bill C-59 addresses that? Having made the decision to retain the threat-reduction powers, are you satisfied that it’s an improvement over the way that they were left rather open-ended, including the possibility of violating the charter, which has been precluded now in Bill C-59? I’d like your thoughts, briefly.
Mr. McSorley: Very briefly. I think it’s true that probably how it’s worded now avoids it violating the Charter. We’re still concerned about the fundamental aspect of an intelligence agency that operates primarily in secret having these real-world powers and the concerns about accountability, especially how they might be implemented after the fact.
What we would much prefer is to see a stricter and more thorough way of ensuring that CSIS, once they have information that a threat is imminent and they’re working with RCMP or law enforcement, if they do proceed and lay charges and take action against an individual, that those will play out in a court of law. Our concern is definitely around the issue that some of these actions will never be known by the individual it’s taken against, and we will never know fully whether or not they violate an individual’s Charter rights after the fact.
If they do, I realize that NSIRA is allowed to refer to the Federal Court, but again, when it comes to such basic and fundamental rights, we’re concerned about anything slipping through. That’s why we always erred towards having it open and that it goes to a court where there can be full disclosure to the person being affected.
Senator Gold: Thank you.
Senator Richards: Thank you. I’m adding to something from Senator Oh here. Travelling for 48 years and meeting with all kinds of security at borders and airports, some of this comes down to mendacious bullying and just personal arrogance on the part of the border guard. It’s not necessarily profiling. It’s just a feeling of power that they have. I remember when my wife and I were travelling in England, she was 23 years old. She’s from the Miramichi. She talked and looked like a Galway girl. They held her up for half an hour, 40 minutes. Finally, I went over and said she’s a Canadian. They didn’t believe she was. I don’t think that was profiling more than someone feeling very powerful and arrogant. I don’t think there’s any way to compete with that or to solve it, unless we solve human personality. Would you comment on that?
Mr. Neve: I think you’re right that that is absolutely, senator, sometimes how this is playing out. I think what we certainly know from a human rights perspective is that borders are a place where there is great potential for abuse of power because there’s very little transparency and accountability. There’s a real vulnerability that people are facing. People may have no status or they may have uncertain status or they may have temporary status and are therefore very concerned about not wanting to do anything that is going to offend or trouble the person who stands between them and entering the country.
This may not fix all of the concerns, and there will almost always still be the potential for abuse of power by people who abuse power because they have power, but if we did have review and oversight in place with respect to the CBSA, there would at least be a process that your wife could have invoked at the time, although that was in the U.K., you’re saying, but if something similar had happened in Canada. And hopefully, as complaints get dealt with, as rulings come down, as discipline gets imposed, as trends get identified, then you see the kinds of changes which, while it may not do away with that abuse of power, will at least hopefully diminish it.
Senator Richards: I agree. When I was in Spain, the person I was with said, “Don’t look guilty.” Well, the first thing I did was look guilty as soon as he said, “Don’t look guilty.” Of course, I was searched, but they were searching everyone. There is that dichotomy going on at the border that is a lot of times personal and psychological. That’s all I’m trying to say.
[Translation]
Senator Boisvenu: Again, welcome to our guests. I have a question that any of you may answer. We know that there are currently close to 150 Canadians who have fought in Iraq or Syria. About 60 have returned and several remain there. Have any of your organizations had contact with some of these Canadians who have fought alongside terrorist groups in these countries?
[English]
Mr. McSorley: On our part, I can answer that we have not been in touch with anyone who is in prison internationally for being a foreign fighter. We haven’t dealt directly with anybody, no.
Mr. Mohammed: Thank you, senator, for the question. Amnesty International has been contacted by family members that are concerned or members of family that may be involved in or present in those areas. So yes, we have been contacted.
[Translation]
Senator Boisvenu: Are you working with Canadian departments or embassies on this issue, or are you working in isolation?
[English]
Mr. Mohammed: I think that’s highly dependent on the context, and I think you’ll appreciate, senator, given the amount of information and even the ease with which information flows in these contexts, you can have long periods of time where there is not communication. It’s very early stages in any of those cases and not a sustained amount of contact that we’ve had.
[Translation]
Senator Boisvenu: When you obtain inside information about activities that these people may have carried out or crimes they may have committed there, do you forward this information to the Government of Canada?
[English]
Mr. Mohammed: We haven’t been in a position to face that question as of yet.
Senator McPhedran: We received Bill C-59 with quite a significant addition from the House of Commons, and that deals with human rights violations, including torture. In the amendment that was made, we now have the act on avoiding complicity in mistreatment by foreign entities requiring written directions on disclosing or requesting information that might lead to or might have been obtained through the mistreatment of an individual by a foreign entity. To what extent do these changes address concerns that you have on the record? Again, to any panellist who wishes to comment.
Mr. Neve: It was a welcome addition, but it doesn’t solve the problem, in our view. What the addition requires is that all relevant agencies must have policies or ministerial directions in place, but it does not specify what those policies or ministerial directions must include. That’s where the contention has been over the years. This is an issue that’s been playing out over the last decade or so, beginning with the Maher Arar case, and some recommendations made by Dennis O’Connor, the commissioner, as to what should be Canadian policy here. Ministerial directions were then developed by the previous government that actually went completely against Commissioner O’Connor’s recommendation. There were concerns that came out of the UN Committee Against Torture about that, and then there was an improvement. Recent new guidelines developed by Minister Goodale are an improvement over the previous guidelines but still don’t go as far as the United Nations says Canada should be going. In fact, when Canada’s record was reviewed again this last November by the UN Committee Against Torture, this is one of the areas of concern that was highlighted.
So you see the point here is that it’s great to say all these agencies have to have the guidelines, but if the guidelines that are being developed aren’t what international human rights law requires, then we’ve still got a problem. That’s why we say that Bill C-59 should be amended to make it very clear that not only should there be guidelines, but here’s what those guidelines need to require in both directions, with respect to intelligence Canada is providing to other countries and intelligence we’re receiving back.
Senator McPhedran: May I just ask — and certainly we can hear further — but given what you’ve just said, Mr. Neve, could you tell us if you’ve provided those specifics that are missing and that you would like to see introduced?
Mr. Neve: Specifically, we have not with respect to Bill C-59 in particular. We have repeatedly engaged with the government around this issue going back at least a decade in terms of what we think Canadian law and policy in this area should be. So it’s readily available in terms of how that translates into what Bill C-59 should include.
Mr. Mohammed: Not to add much, but I think the content of what Alex has just suggested was also raised in my oral remarks, noting that sharing information with foreign agencies where there’s a substantial risk that it would lead to torture or ill-treatment should be prohibited in those directives and that using information from a foreign agency where there’s a likelihood that torture has resulted in that information coming out should also be prohibited.
Senator McPhedran: Thank you.
The Chair: I think that completes it from all senators. Let me, on behalf of our committee, thank you all very much for appearing before us. It’s been very informative as usual.
Senators, before I move to the next panel, I’d ask for a motion that Leila Almawi have permission to film the No Fly List Kids participants during our meeting today for the purpose of a documentary film.
Hon. Senators: Agreed.
The Chair: Thank you very much.
Senators, we have before us today, from the No Fly List Kids, Dr. Ruby Alvi, Parent and Assistant Professor, University of Toronto; Mr. Jeff Matthews, Parent and Canadian Armed Forces Veteran; from The National Council of Canadian Muslims, Mustafa Farooq, Executive Director, and Leila Nasr, Communications Coordinator; and from the Canadian Muslim Lawyers Association, Yavar Hameed. Welcome to all of you. We’ll start with the No Fly List Kids.
Ruby Alvi, Parent and Assistant Professor, University of Toronto, No Fly List Kids: Thank you for the opportunity to testify before you today on Bill C-59.
My name is Ruby Alvi. I have four children, three of whom have been falsely flagged on Canada’s no-fly list. I’m a physician and one of the parent advocates for the group No Fly List Kids, which represents hundreds of families and thousands of citizens adversely affected by Canada’s Passenger Protect program. I am here today with Jeff Matthews, a fellow parent advocate. The scope of our testimony is limited to legislation related directly to the Passenger Protect program, so Part 6 of Bill C-59.
Today we would like to implore senators to quickly and efficiently pass the legislation required to rebuild this flawed system. As you are likely aware, the Passenger Protect Program was implemented in 2007 with a design that included, in the words of our current public safety minister, a fundamental mistake. That flaw, which persists today, is that verifying whether passengers are potentially listed persons is delegated to airlines and done solely on the basis of their name, or parts of their name, despite the fact that both booking information and Secure Air Travel Act watch lists include additional information, like date of birth. Any innocent traveller caught in this web is subjected, at minimum, to extra delays and security scrutiny to prove their identity and then stuck in a perpetually revolving door to repeat the process every time they travel.
In 2007, the Minister of Transport disclosed that there were up to 2,000 names on the list. No Fly List Kids has been contacted by over 100 affected families, representing the tip of the iceberg. The vast majority of travellers are unaware of the source of their difficulties because the Secure Air Travel Act explicitly prohibits the disclosing of any information related to a listed person. However, based on the names of falsely flagged individuals that we know of, and a number of people who have shared those names, we conservatively estimate that well over 100,000 Canadians are potentially false positives.
Out of my four children, the three oldest are boys, two of whom are with me today. They’ve all been designated high profile since childhood. In the words of my youngest son Issa, who wrote a piece for the Toronto Star recently:
I am now 16. My brothers are 19 and 21. It is even scarier being on the list now, because people around us look at us suspiciously when we are being questioned by ticket agents. This suspicion stays with us as we pass through security lines, sit in airport lounges and even when we are finally in our airplane seats. It doesn’t feel good at all.
Thank you.
Jeff Matthews, Parent and Canadian Armed Forces Veteran, No Fly List Kids: Thank you for having me this afternoon. My name is Jeff Matthews. I’m a 31-year veteran of the Canadian Forces. I’m here to advocate for my seven-year-old son, David Matthews, who has been falsely flagged since birth. The irony of being both a veteran who held security clearances and being called upon to defend my country and having a young child falsely flagged for the No Fly List is not lost on me.
For families with flagged infants, the delays further complicate an already-challenging travel schedule. As these children grow older, they become aware that they are the reason for the delays and the extra security scrutiny. The stigmatization has been described by the minister as a traumatizing experience for them and their families. When the children grow into teenagers and young adults, particularly young men, their innocence becomes less obvious and the delays become longer and the scrutiny more intense. This has meant some families, including us, have been delayed for hours and have missed flights, and the kids shy away from the opportunity involving air travel and fear or stigmatization. Our last family vacation was without children so we could call it a vacation and not just point-A-to-point-B travel.
Though this list contains names of people from all backgrounds, it does skew toward Muslim- or Arabic-sounding names, which is unfairly placed upon people whose names are further scrutinized.
False positives also hurt travel business. Mr. Stephen Evans, who was the Chief Technology Officer of Kijiji and held senior positions at MSN, Canoe and The Toronto Star, wrote a piece for The Globe and Mail about his negative experiences at the border.
In 2009, the United States shifted the responsibility for screening passengers from the airline operators to TSA. Their system allows for non-U.S. residents to apply to their Department of Homeland Security Traveler Redress Inquiry Program for a unique identifier. Most of the children and adults we have known successfully applied for the DH trip, yet continue to face issues when flying domestically or on domestic airlines.
All this illustrates that the impact here runs much deeper than a mere inconvenience. It’s inescapable and arguably a violation of the Charter of Rights and is solvable. No Fly List Kids have been advocating for the fix to this flawed system for three and a half years. This issue has been widely reported on and covered to a point where it has received international media attention.
With an impending election and the looming rise of the Senate, we hope that by being here and sharing our stories and concerns that our respected senators will expedite passing Bill C-59 so work can commence on a system that will improve the efficiency and security of our air travel and national security. Thank you.
Mustafa Farooq, Executive Director, The National Council of Canadian Muslims: Thank you for providing us this opportunity to once again offer our thoughts on Bill C-59, An Act respecting national security matters.
I am Mustafa Farooq, Executive Director of The National Council of Canadian Muslims. I am joined by Leila Nasr, Communications Coordinator.
By way of background, NCCM was founded in 2000 as an independent, non-partisan and non-profit grassroots organization dedicated to defending the human rights and civil liberties of Muslim communities living in Canada. For almost two decades, we have been a leading voice in the promotion of human rights in Canada, working tirelessly in the areas of community education and outreach, media engagement and public advocacy and challenging discrimination and Islamophobia. The NCCM has a long-standing and robust public record of participating in major public inquiries, intervening in landmark cases before the Supreme Court of Canada and providing advice to security agencies on engaging communities and promoting public safety.
With the independently documented rise in hate, racism and Islamophobia faced by our communities, we are concerned about public safety. Since the Quebec mosque massacre, the New Zealand attacks and the attack on our synagogue in San Diego, many Canadian Muslims are on edge.
We agree that governments can play a crucial role in keeping communities safe, but like many of our colleagues and friends who have been testifying before you, we would like to state that Bill C-59 does not go far enough in addressing the many problems of the original Bill C-51. While there are changes brought forward in Bill C-59 that are welcome, and we will canvass those shortly, we believe that Bill C-59 has fundamental defects, as it does not go far enough in safeguarding the civil liberties of Canadians and in reconfiguring the powers and roles of CSIS and CSE.
My submissions before you today are squarely around three key approaches: issues around consultation, concerns around the broad powers given to CSIS and CSE without internal reformation, and highlighting provisions in Bill C-59 that we welcome, including changes to the no-fly list.
First let us discuss consultation. There is little doubt that the Minister of Public Safety undertook to stay in direct consultation with Canadians. Based on the submissions of the minister that have been put forward to you already, we understand that nearly 59,000 responses were received to consultations through online activity. There were as well numerous in-person consultations with academics, members of the public and through town halls.
While we acknowledge that Bill C-59 was born out of consultation, there has been little opportunity for the public to provide feedback on the proposed changes in the same fashion. While many Canadians welcomed the opportunity to weigh in and tell the minister what they did not like about the original Bill C-51, our constituents did not get to weigh in on a draft report that clearly summarized and put forward a recommended approach to government.
We think that the right approach to consultation would have been for the government to provide advance notice or through a draft report as to what the minister was planning on introducing in Bill C-59. Considering the stakes of the rights and civil liberties of Canadians, we do not approve of engaging in early consultations and then dropping a 160-page omnibus bill that, in the eyes of many, did not go far enough.
While we acknowledge that the bill underwent further committee study, with several important amendments as a result of that study, a study in committee is fundamentally different than the important public-facing work that should have been done for a bill of this size and with the ramifications arising from this bill. Further consultation would have been in line with best practices of consultative practices in other jurisdictions.
Second, we have grave concerns around Bill C-59’s change to the CSE and CSIS framework. Our experience in working with racialized communities tells us that national security surveillance activities can serve to severely stigmatize individuals within their own communities. We have heard from citizens coast to coast who experienced being ostracized by their own communities following an encounter with national security agencies.
While we acknowledge new oversight provisions through the national security and intelligence review agency and the introduction of an independent quasi-judicial intelligence commissioner, we are concerned that CSIS retains many of its kinetic threat disruption powers originally carved out in Bill C-59. We are concerned that these provisions blur the distinction carved out in the McDonald commission, which recommended separating security intelligence work from policing.
Further, we believe that CSIS is in need of internal reform, given the significant evidence available of potential biases inherent in the way that CSIS operates. These biases disproportionately affect Canadian Muslims and those perceived to be Canadian Muslims. Until CSIS and other national agencies undertake those changes, including better internal training around bias and stereotypes, with audits to check progress, NCCM is concerned about additional powers being given to CSIS.
Lastly, as alluded to above, we welcome the changes to the no-fly list apparatus in Part 6 of Bill C-59. For years, NCCM, along with allies and members of families — and you have with us our families of the No Fly List Kids today — have been urging the government to address the issue of the no-fly list by developing a common-sense screening model and a system of redress for individuals who have been falsely flagged.
Our concerns stem from the countless complaints our office received about the no-fly list from families whose young children appeared on the list. False positives stigmatize, inconvenience and, in some cases, traumatize Canadian families travelling both domestically and internationally. The no-fly list also raises serious privacy rights implications and affects the Charter-protected mobility rights of Canadians of all ages, including children. We concur with No Fly List Kids in welcoming some of the changes proposed in Bill C-59 around changes to the no-fly list.
Subject to your questions, those are my submissions.
Yavar Hameed, Canadian Muslim Lawyers Association: I’d like to begin with an acknowledgement that we are on unceded Algonquin territory.
My comments will be briefly about an introduction to who the CMLA is, and the I’m going to address three points: first, echoing some of the comments of my colleagues at ICLMG with respect to increasing the number of permanent members for NSIRA. I’ll talk a bit around funding and the importance of funding, something that Mr. Barrette brought up earlier today. Second, I will talk about abolishment of the security certificate. Mr. McSorley talked about that issue and others have echoed it. Third — and I have not seen this; I think it was in the ICLMG brief, and others may have talked about it — removing the terrorist listing provision under section 83.05 of the Criminal Code. That falls under the ambit of the fact that Bill C-59 doesn’t go far enough.
First, who are we as the Canadian Muslim Lawyers Association? We represent two constituencies, if you will: Muslim lawyers, who are united in terms of a professional coalition. Because of our background and ties to community, we have collectively advocated and acted on various cases that relate to national security law. This may include security certificate cases, reviews of security intelligence decisions through SIRC, other matters involving national security and section 38, Canada Evidence Act challenges. On the one hand, we have certain expertise we bring to bear in terms of our legal background and experience, but also we look at this through a lens with respect to ties to the community and provide our submissions or value added, hopefully in terms of how legal measures could be improved.
By way of background, in the last 20 years, CMLA made several different submissions. In February 2018, we spoke to the House of Commons standing committee on Bill C-59. In 2015 we spoke to the House of Commons standing committee on Bill C-51. Back in 2001, we spoke to the House of Commons standing committee on Bill C-36, an Act to amend the Criminal Code — omnibus legislation with far-reaching effects. That is some of the track record of CMLA.
My first comment is with respect to NSIRA. This is nothing new, and the fact I’m bringing nothing new to the table, in a sense, I think, echoes the importance of these submissions. We’ve heard experts and others talk about these submissions, and it speaks to the importance and depth of these comments.
First — and I think Mr. Barrette expressed it eloquently — amendments and mechanisms that are made, all well-intentioned to expand the purview of review, that’s excellent. That’s good; it is a step in the right direction. But when these organizations are not funded and not given the resources, it’s abysmal.
I can speak in terms of my experience and the experience of our members. The current Security Intelligence Review Committee is sorely underfunded.
There is one case in particular that I can speak to, and this goes to what we’re calling for. I think it’s in line with the ICLMG recommendation to expand the purview of permanent members — and I would underscore “permanent” — to a roster of at least eight. That’s something the ICLMG states, but I think we’re talking about at least that number.
I can give you a case where five different part-time members, for various reasons — because of the longevity of the case, not the complexity of the case — dealt with the same case. This goes to the fact that these members are overworked and SIRC is understaffed. It simply does not have the budget to keep up.
When we talk about expanding the purview of NSIRA and the ability of that body to seek more information to collectively and effectively deal with national security concerns, if we don’t have the dollars or the staffing there, it’s going to be sorely ineffective. Back in 2000, the percentage, if we roughly equate the SIRC budget to CSIS, looks somewhere around 1 per cent. Today, in 2018-19 — and this is from the 2018 SIRC report — we’re looking at around $7 million for SIRC — these are approximate figures; someone can correct me — and I believe $589 million for CSIS. We’re seeing somewhere in the vicinity of 1.2 per cent. It hasn’t changed much. What I can tell you, on behalf of our members and my own experience, is that the ability for SIRC to do its job is just not there.
With respect to the abolishment of the security certificate, others have spoken on this as well. I believe Alex Neve mentioned this, and I echo the comments of Amnesty International.
To put this in relief, in January of 2008, I and other members had been involved in litigation around security certificates. I was involved for about six or seven years in the litigation of one of these files. Jim Judd, the former director of CSIS, indicated in 2008, prior to inception of the amendment of the Immigration Act, that with the new amendments, the security certificate regime would not work. That was information that came to light in the case, and he said this in view of the provisions relating to the use of information where there are reasonable grounds to believe that the information emanates from torture. This is not something I’m submitting to you as my analysis — I would say that — but this is what Jim Judd said in 2008. Here we are 11 years later, and that anachronistic regime continues, and there are all sorts of reasons why it should not exist.
Third, with respect to the removal of the terrorist listing regime under section 83 of the Criminal Code, I know that some of my colleagues have spoken to this. I will add a couple more lines to this or a bit more context.
The provision under section 83.05(1) of the Criminal Code is a listing regime which, as others may have spoken about, is an ex parte regime. You’re listed as a terrorist entity, and because of that listing, the activities of that entity are criminal. They’re deemed to be terrorist. It doesn’t necessarily have the effect of casting those persons who were previously part of that entity as being terrorists, but it shuts them down financially. It basically drains the lifeblood out of them. It’s a mechanism the state uses to immobilize organizations in the interests of stopping terrorist financing.
The problem with that is that the presumption of innocence is gone, under section 7 of the Charter, and freedom of association is gone, under section 2. Section 11(d), which is another facet of the presumption of innocence, is violated by virtue of this ex parte deeming provision in the Criminal Code.
Why is that relevant to our members, or why is that relevant as a broader concern? We have mechanisms, as others have spoken about, under the Criminal Code for dealing with criminal activity as and when that arises. It’s important to note that 83.05 is a deeming provision that works on the basis of a “reasonable grounds to believe” threshold. With that threshold as the determining factor, it’s a low threshold and the consequences are extremely dire.
Subject to your questions, those are my comments.
The Chair: Thank you so much. We will move to questions, and I know there will be many.
[Translation]
Senator Dagenais: Thank you to our guests. My first question is for Mr. Farooq. Mr. Farooq, how can you believe that the state can separate intelligence services from the police?
If there is information, it is because there are necessarily investigations. In addition, it’s clear that monitoring or review of the agencies’ activities is necessary. However, I believe that there is a need to share information in cases where there is a concern for national security.
How else can it be done?
[English]
Mr. Farooq: Thank you, senator, for your comment.
We double on what the McDonald Commission recommended. It’s not that information shouldn’t be shared or that there shouldn’t be oversight. We think that Bill C-51 has gone some way into ensuring oversight over the sharing of information. Our concern specifically is around the kinetic disruption powers still granted to CSIS even after some of the amendments. Our concern is that this treads close to the demarcation laid out in the Macdonald Commission separating policing activities from intelligence-gathering activities.
[Translation]
Senator Dagenais: Thank you, Mr. Farooq.
My next question is for Mr. Matthews. Do you think the decision to put someone’s name on the list is the result of a passenger profile analysis conducted by Canadians, or rather by the Americans? How do you think it happened that your son’s name ended up on the no-fly list?
[English]
Mr. Matthews: I thank you for the question.
When we found out our son was on the list, at first we thought it was just a hiccough as part of travelling. Then we found out he was the subject of increased scrutiny. At first they pulled me aside thinking I was David Matthews. My son at the time was three. Once we found out that there was a systematic labelling of innocent kids, my wife reached out and found the No Fly List Kids. It mushroomed from there. We realized this was more widely implicated amongst Canadians. I think for us as a family, we wanted to come here to give our personal view of how it interrupts travel even domestically and on business travel. When we take our kids, it’s a whole new set of rules.
[Translation]
Senator Dagenais: If I understand correctly, you were never given the real reason why his name was on the list. You never knew why?
[English]
Mr. Matthews: No, not at all.
[Translation]
Senator Dagenais: As you probably know, a Canadian who is pardoned after a criminal charge is removed from the lists of people with a criminal record. However, it often happens that when this Canadian arrives at the U.S. border, his or her name has not been removed from the file, and then there is nothing to do.
How do you think the list could be revised?
[English]
Mr. Matthews: I’m not an IT expert, but I believe, at a family level, getting off the list would be something towards an IT rectification simply adding more markers to identify the person who has been wrongly accused or wrongly flagged, something as simple as just drop-down panels from your point of purchase for your plane tickets.
[Translation]
Senator Dagenais: Have you approached the Minister of Public Safety and Emergency Preparedness to see if the government could provide you with support by removing your son’s name from the list?
[English]
Mr. Matthews: I have been part of the group that met with Mr. Goodale. It’s ongoing. It’s driven by Bill C-59. Whatever they are doing on the public safety side of things, it’s based on whether or not Bill C-59 gets passed.
Senator McIntyre: Thank you all for your presentations.
Bill C-59 introduces the notion of a unique identifier. As you know, the Minister of Public Safety would be authorized to collect any personal information provided by a traveller for the purposes of issuing a unique identifier to that traveller and assisting with the verification of their identity before a flight. My question is this: To what extent would this additional information help to alleviate inaccurate information relating to false name matches, also known as false positives?
Dr. Alvi: That’s really a key factor. Right now, the names are flagged based on either first names, last names or parts of names. Something as simple as adding a date of birth — which is information already going with you when you are travelling on your passport, information that SATA has — would reduce the false positive rate to something more manageable by security. We all believe that lists like these exist for a reason. The issue is the many disruptions that occur when so many people — like, 100,000 people — are on lists that take up time and energy and create a lot of frustration. We have been working with Public Safety in consultation. We’ve heard the plan. The idea of an identity verification number makes a lot of sense and we feel it would help the situation.
Senator McIntyre: I further understand that Bill C-59 would allow the Minister of Public Safety to disclose to a child’s parent, guardian or tutor that the child is not a listed person. How would the ability to make such a disclosure help to address inaccurate information relating to false name matches?
Dr. Alvi: If I understand your question correctly, right now there is no way of knowing if you’re on the list. People assume they’re on the list. Their assumptions lead to a lot of stress and anxiety and maybe fear of travelling. If you know you’re not on the list and there’s another reason for disruptions, a process will be factored in so you can find the issues and have them rectified. It’s the not knowing that creates a lot of stress and anxiety.
Senator McIntyre: In your opinion, does Bill C-59 provide a proper redress mechanism for children who find themselves on the Secure Air Travel Act list?
Dr. Alvi: We’ve been in consultation with Public Safety Canada, so, up until now, we know their plan. Our understanding is that they need Part 6 of Bill C-59 to be passed in order for the regulation phase and the implementation phase to move forward. We actually just met with them this afternoon. By and large, we’re quite satisfied that they have a good plan, and we’ll continue to be in consultation with them to see what else they come up with. They have been very good about sharing with us their ideas and getting our feedback.
Senator McIntyre: The plan has not yet been disclosed?
Dr. Alvi: The overarching plan has but not the regulation piece. That’s the piece that needs Bill C-59 to pass in order to move forward.
Senator McPhedran: Thank you to all of you for being here today and for all of the advocacy work that you do in between appearances like this.
This is a general question to all panellists, and any comments are welcome. As you likely know, I asked Minister Goodale when he was before us about the use of a version of the special advocate system that is used for security certificates on the immigration side and whether it was possible to introduce that kind of representation for people if they found themselves caught in the no-fly list labyrinth. While we didn’t get a positive response or any kind of commitment, I want you to know that there are members of this committee who remain very interested in this and there’s active discussion going on.
Would anyone like to comment on the usefulness of having a special advocate introduced to this particular bill? And there’s a secondary question that’s probably more for the lawyers on the panel. If it’s not introduced, if Bill C-59 remains the way it is now, would you see that as making Bill C-59, once it became law, more vulnerable to a Charter challenge by those who cannot rely on that kind of representation?
First, the question about the general concept of taking this representative mechanism and moving it into Bill C-59.
Dr. Alvi: I’m not fully understanding that question. It is probably better for our legal counsel, who is sitting right behind us.
Senator McPhedran: You can invite your legal counsel to come. That’s fine.
The Chair: Would you introduce yourself, please, before you take the mic?
Khalid Elgazzar, Counsel for No Fly List Kids: Good afternoon, senators. My name is Khalid Elgazzar, counsel for No Fly List Kids.
Madam senator, would you mind rephrasing the question?
Senator McPhedran: As we see the bill currently, the secrecy of the process around decisions for the no-fly list and trying to get off the no-fly list is still fairly much intact. In other words, it’s very difficult for people to know what evidence, if any, is being used against them and it’s very difficult to be able to respond.
On the immigration side, we have an existing process that has a function known as a special advocate. That special advocate has a role in representing people who have similar questions and concerns as come up for the no-fly list individuals.
My question, both to the minister and to the panel, is whether or not it’s a good idea to take a version of what’s already operating in terms of security certificates and to move that representative function into Bill C-59. In fairness, I’ll summarize that when I asked the same question of the previous panel, you may have heard that Alex Neve, on behalf of Amnesty International, said conceptually, yes, but one of the biggest issues from their perspective was the extent of the authority or the powers that that special advocate would have.
Mr. Elgazzar: I would echo those views but I would take a step back first. When we are dealing with the no-fly list, there are two categories of affected people. There are people who are legitimately on the list and who are the subject of scrutiny, and then there are people who are falsely flagged.
For No Fly List Kids, predominantly we are dealing with people who are falsely flagged. I’m not sure how I would see a special advocate playing a role in that. We just need people cleared in advance so they don’t ever get into that system in the first place. We want to bypass that entire system, not have to deal with a special advocate.
If I’m putting on my lawyer hat, taking off the No Fly List Kids hat for a minute, certainly the introduction of a special advocate would be something that would improve the robustness of the ability of listed individuals to challenge what I think is a difficult process to begin with.
Senator McPhedran: I want to make sure I understood the answer. My take-away from what you just said is that for the No Fly List Kids, passage of Bill C-59, as we have it before us, is acceptably addressing the concerns of the organization?
Mr. Elgazzar: That is correct.
Senator McPhedran: Thank you.
Mr. Hameed: I might take a slightly different tack on that, having had some experience, not to the extent of my colleague here, Mr. Elgazzar, in the no-fly list for kids but in the security certificate context. I think it’s a good idea, and I sort of echo Alex’s comment in the sense that special advocates are good because you need to know what’s going on behind the closed door.
If we go back in time to around 2004, we didn’t have any special advocates in the immigration process. We had them otherwise in other contexts, like SIRC, but we didn’t have them specifically in immigration. As national security processes have proliferated, we’re seeing either special advocates or amici popping up everywhere. One of the things this does — and, again, I don’t mean to diminish conceptually how this could be a good thing — is it tends to legitimize the process in the sense that there’s a core secrecy to it and, if you put a special advocate into the mix, then that cures the procedural problems.
From my perspective, in any process, the first response is, can we get a core of the allegations to the person themselves, even before we reach that special advocate stage? That’s always the preference. What can we give to the person? Because in any process — and I know this from years of working with security certificates — when you have the process bifurcated, the concerned individual is always at a disadvantage because the special advocates are having a parallel discussion to which we’re not privy and, generally speaking, there should be a consistency between both forums. However, I think, in the idea of fairness, we want to maximize the amount of information that’s there in a public forum.
The other possibility — and we floated this in the securities certificate but the court didn’t like this suggestion — is that there’s nothing to say that the advocate for the person can’t also be a special advocate in this sense.
There are permutations or variations by which you can maximize the effectiveness of representation in the public forum without necessarily jumping towards the special advocate. That’s just the caution that I put forward. How can we create procedural safeguards so the maximum allegations are there, they are put forward either in summary form or otherwise, and we minimize the secret parts of the hearing?
Senator McPhedran: Those are very important points. If I may take it a bit further and ask for a preference as between the amici curiae option or the special advocate option? Is one better than the other?
Mr. Hameed: That’s a good question. I don’t fully know the difference in some ways. I’m currently involved in some judicial reviews of SIRC decisions. They’re not a lot of them out there, but we have amici that are assisting, a friend of the court. In that context, they are like a special advocate but they are technically the amici function. They look and they act a lot like the special advocate, and in many ways they are indiscernible, one from the other.
The way that I’ve seen the evolution of any kind of national security process is that where the statute doesn’t provide for a special advocate, the Federal Court — and often I’ll make the request — will be asked, can we have a special advocate or can we have an amicus curiae, because it’s not there in the statute. I’ll do that because, leaving aside the constitution challenge to the legislation, I’ll try to get the best thing we can.
The special advocate does have that little bit extra in terms of generally the purview and what they’re representing. The amici is there as a friend of the court, so the purview is perhaps more general. From the perspective of the advocate, I would want the special advocate, with the caveats I already mentioned.
Senator McPhedran: Thank you.
Senator Richards: I was going to ask this of Dr. Alvi and Mr. Matthews. Are your children still on the no-fly list? Mr. Matthews, how old is he now?
Mr. Matthews: David is seven now.
Senator Richards: He’s seven and on the no-fly list.
Mr. Matthews: He’s on the no-fly list, and it prevents us from pre-checking in.
Senator Richards: Have you spoken to the minister about this?
Mr. Matthews: Yes.
Senator Richards: You both have. It’s ridiculous.
Internationally, this bill would not affect international travel, would it, because that is an outlier for Canada. In the United States, it can be completely different. It wouldn’t help, say, if you are flying from San Francisco. This bill would not help your children. If you’re flying on an United Airlines flight into San Francisco, for instance, would this bill help?
Dr. Alvi: It would help, because these lists are actually shared with other carriers.
Senator Richards: That’s right, they are. That is good to know.
My son was on the no-fly list when he was 13, and we’ve had no problem now. He’s almost 24. We’ve had no problem. He’s flying tonight from LaGuardia, so I’ll let you know how that works out.
Senator Gold: Welcome, everyone. Let me echo what my colleague Senator McPhedran said about the good and effective job you’ve been doing bringing this issue and the issue of your families to public attention. You’ve sensitized a lot of us, including the government. I think we’re almost there.
I don’t need to ask you the question about how important Bill C-59 is so the next steps can be put into place because you’ve answered that sufficiently.
I would like to ask a question of you, Mr. Farooq, but I would invite anyone to comment. This is about the threat-disruption powers that you and other witnesses have questioned before us. You mentioned, properly and understandably, the McDonald Commission and its decision in 1984 to separate the intelligence function from the law enforcement function. Those of us, like myself, are old enough to remember the burning of barns and all of that. The world has changed a lot since 1984. In 1984, the fax machine was new technology. If you had a cellphone, you could barely carry it unless you were a weightlifter. More to the point, a lot of the challenges to our security were relatively unknown, certainly in this part of the world.
I want you to comment on the following: We’ve heard from a number of credible sources, including former Senator Segal in committee, that these threat-disruption powers are necessary and they’ve been necessary for a while, but the way they were framed in Bill C-51, it was perhaps somewhat overly broad, if not a bit sloppy, in drafting and gave rise to real concerns about open-ended powers to violate the Charter and so forth.
Bill C-59 tightens it up significantly, would you not agree? There’s a list that Canadians can now understand: this is what they can do and, more importantly, what they can’t do. It’s clear that you can’t get permission to violate the Charter. That’s made explicit if it wasn’t, in fact, always the case, notwithstanding the language, and that the actions of CSIS, in using those disruption powers, are reviewable and reviewed by NSIRA. In light of all of this, do you still take the view that Bill C-59’s threat-disruption powers should be scrapped?
Mr. Farooq: I’d like to, first of all, echo some of the general comments that you made. Obviously, under Bill C-51, CSIS agents were allowed to do a great number of things, for example, to interrupt a money transfer or planting a forged document. The only limits that were placed on CSIS at the time was they were not to kill, obstruct or pervert the course of justice or to violate a person’s sexual integrity. Bill C-51 also allowed CSIS to apply for court warrants, allowing them to violate Charter rights.
Bill C-59 is in a better place than Bill C-51 was. Clearly that’s the case, and we welcome that.
We echo in many ways the comments made by the CCLA here. There are a number of places where the threat-disruption powers still pose a potential civil liberties issue. For example, and especially taking into account the post-1984 world to the 2019 world, it seems possible that CSIS could impersonate a journalist to gain credibility with a target. They could fake an online profile to undermine an individual’s reputation. This would probably be allowed, as they are not clearly prohibited by any exception in Bill C-59, and it probably wouldn’t be considered a Charter violation either. CSIS can also do more if they can convince a judge that a particular activity is reasonable, proportionate, Charter-consistent and required to reduce a security threat.
This doesn’t necessarily mean that we have to scrap the entire process, but what it does mean is more study and consultation, perhaps, would have been important to explore the potential permutations that are possible here. Since we’re living in a world, as you described accurately, senator, where there are so many changes and permutations, we would have preferred to see a system where greater consultation took place once the government had an idea, after the first 59,000 online submissions were received, of what they were actually going to propose on the ground. That would be our position.
Senator Gold: Thank you.
Senator McIntyre: Mr. Hameed, in your opening remarks you made reference to the list of entities. As we know, Bill C-59 proposes to amend the code to change the time period for the ministerial review of the list of entities involved in terrorist activities. The proposed time period for the ministerial review would be five years, an increase from the current two-year period. What’s the rationale for this proposed change in the time period?
Mr. Hameed: For the lengthening of the time period? That’s a good question. I don’t know.
Anything that’s done to legitimate a process — I can get it into that if you want — there are all sorts of reasons why I believe that it’s an unconstitutional deeming provision. By further leaving it immune to review for a greater period of time, it’s just to protect the integrity of the list. It’s a reasonable grounds to believe threshold to list, and it’s a reasonable grounds threshold to remove.
The problem with this listing, as in any national security process, is there is a whole chunk of the file we don’t know about. I think, in many national security procedures, if you’re challenging your listing, you’re completely hamstrung. When you go to Federal Court — we talked about amici and having a special advocate, what have you — you can challenge at a first level. You can ask the minister to delist. If that fails, your redress is to go to Federal Court and enter into a judicial review.
What that judicial review looks like, I’ve never seen one, but I don’t think it’s ever happened before. I think it would happen in the way that the Federal Court deals with other national security judicial reviews, which is to have either an amici or a special advocate attached. It’s going to be an extremely cumbersome process where the government still maintains its national security privilege.
My long answer to your question is that by increasing that review period, you just make it more difficult for the removal to be there, but I think there are clearly safeguards for the state to maintain the integrity of the list.
Senator McIntyre: My final question, which you may have already answered: In general, how effective is the terrorist entity listing regime contributing to public safety in Canada?
Mr. Hameed: The creation of lists, whether it’s the No Fly List Kids list or any list that you pre-emptively create as a measure of saying now we’re secure, if the list contained everyone in this room or in this building, potentially there could be some security benefit from that, but I would submit there are tools and bases within security intelligence investigation, both on the intelligence-gathering side and on the policing side, to mount a criminal prosecution. So with that kind of shortcut method, from my perspective, the creation of lists is always problematic.
Senator McIntyre: Thank you.
The Chair: Thank you very much. I believe that completes our questions. Before we close, Mr. Matthews, may I thank you for your service to our country. I think this is the first day of Ramadan, and we send our good wishes. Thank you very much, all panellists, for being here. I think this has been a very helpful input to our review of this bill. We value the input and the time you’ve taken to join us.
(The committee adjourned.)