THE STANDING SENATE COMMITTEE ON NATIONAL SECURITY AND DEFENCE
OTTAWA, Monday, April 29, 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.
The Chair: Before we begin, I would like senators to introduce themselves.
Senator Dagenais: Jean-Guy Dagenais from Quebec.
Senator Griffin: Diane Griffin, Prince Edward Island.
Senator Boisvenu: Pierre-Hugues Boisvenu from Quebec.
Senator Oh: Victor Oh from Ontario.
Senator McPhedran: Mary Lou McPhedran, Manitoba.
Senator Gold: Marc Gold from Quebec.
Senator Pratte: André Pratte from Quebec.
The Chair: I am Gwen Boniface, the chair, from Ontario.
We continue begin our study today of Bill C-59, An Act respecting national security matters. We begin with Daniel Therrien, Privacy Commissioner, who is with Kate Wilson, Legal Counsel, Legal Services Directorate, Office of the Privacy Commissioner of Canada. Mr. Therrien, you have the floor.
Daniel Therrien, Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada: Thank you for inviting me to speak on Bill C-59. In my statement today, I will mainly address issues related to information sharing between departments, namely part 5 of the bill. However, I will be glad to answer any questions you may have on other parts of the bill.
I have long been a vocal critic of this bill and its predecessor, Bill C-51, which is now the Anti-Terrorism Act of 2015. While I have always recognized the legitimacy of anti-terrorism measures and in particular the need to identify new threats to national security through information sharing between federal institutions, I have consistently cautioned that this must be done in a manner that respects privacy. Specifically, I have suggested that the law should prescribe clear and reasonable standards for the sharing, collection, use and retention of personal information, and compliance with these standards should be subject to independent and effective review mechanisms. I am considering the bill from the perspective of establishing clear standards and complying with those standards through effective review mechanisms.
I am generally pleased with the amendments that have been adopted in the House of Commons and note that many of my recommendations were adopted, quite often in a slightly different manner but with a very similar result.
My primary criticism with Bill C-59 at the time of tabling was that a deficient standard for information sharing — that is, relevance rather than necessity — could lead to overly broad collection, with significant risks for law-abiding citizens. I had recommended that the bill be amended to impose on recipient institutions retention and destruction rules for personal information that does not meet or no longer meets the recipient’s threshold for collecting the information. The bill was amended to require institutions to destroy or return information that is “not necessary for the institution to exercise its jurisdiction or to carry out its responsibilities.” While this is not exactly what I had recommended, I believe it gets us to a similar place, namely, a sensible necessity test.
As to oversight of national security activities, I remain of the view that effective review of national security activities must include both parliamentary and expert review, and the latter must include both national security and privacy experts. The amended Bill C-59 gives my office the authority to share confidential information and coordinate our activities with those of the National Security and Intelligence Review Agency, NSIRA. This addresses a real need for collaboration between expert oversight bodies, but I know my office is still unable to share confidential information or otherwise collaborate meaningfully with another committee, the National Security and Intelligence Committee of Parliamentarians. This remains a flaw that Bill C-59 does not address at this point.
In conclusion, in my view, the amended bill, while not perfect, is now fairly balanced and clearly an improvement over the current law. I therefore recommend that it should be adopted. Again, I would be happy to answer your questions. Thank you.
The Chair: Thank you very much. We’ll move to questions.
Senator Dagenais: Mr. Therrien, during your presentation in the House of Commons, you provided 11 amendment recommendations — correct me if I am wrong. Yet only one was retained as proposed. You now seem to be saying that you are pleased with some of the amendments. Among the 10 other recommendations, which ones should we work on today to propose amendments to the bill before we send it back to the House of Commons?
Mr. Therrien: It is useful to point out that the amendments I proposed before the House of Commons were not enacted as proposed. I still believe that, for the majority of them, even if the wording is different, the result is the same. In particular, I am thinking of the necessity test and the release of information. The necessity test remains applicable to institutions that provide information to national security agencies. That aspect has not changed. However, when it comes to recipient institutions, which are mostly national security agencies, they can receive information based on what is relevant to their mandate. Once it feels that the information is no longer necessary to its mandate or to identifying a threat to national security, the recipient institution must destroy or set aside the information in question. That is not exactly how I recommended it, but something very similar is being achieved.
Among the recommendations that were not retained, I think the most important one is the one I mentioned in my opening remarks — the difficulty in collaborating with the committee of parliamentarians. Since the committee was struck, I have been invited once to appear before it, and we had an interesting exchange. However, discussions cannot pertain to confidential information I would have learned about through an investigation. They are carried out in a political setting and are rather general. That approach is not without its usefulness, but I cannot give to the committee of parliamentarians more concrete or confidential information I may have learned through investigations. They are also unable to share that kind of information with me, and that is somewhat unfortunate. However, when I look at the bill in its current form, I feel that significant progress has been made overall compared with the current legislation and the bill as it was introduced in the House in the beginning. That is why I recommend that you pass it.
Among the aspects that should be considered is the relationship with the committee of parliamentarians. Other questions were raised during testimony before your committee on the notion of publicly available information — I may not be using the exact expression that was used in the bill, but that is the meaning. CSE and CSIS can gather information that is already public. That is another issue that would be worthy of consideration.
Senator Dagenais: When national security organizations gather information on an investigation, you are saying that, if they feel they no longer need that information, they can destroy it. However, who will decide to destroy that information? Normally, lengthy investigations can require information to be kept for a period of time. Who do you think will make the decision to destroy information and intelligence? We are talking about national security. Like me, you know that those investigations can take a long time. For one reason or another, national security agencies may need to keep that information at least during the investigation. Who will make the decision to destroy it?
Mr. Therrien: My answer has two parts. You seem to be concerned by the fact that certain information could be destroyed too soon. Your concern is completely legitimate. To answer the question, I think national security authorities should be asked under which administrative framework they enable or not their agents to destroy information.
Second, let’s look at the concrete case that should lead to the destruction of information rather quickly. My main concern, throughout the evolution of this bill and its predecessor, was related to the collection of information on individuals who have done nothing wrong, such as travellers.
People travel, and their personal information is gathered by the government and analyzed by national security agencies to try to identify, among all travellers, any who present a risk to national security. In 99.99 per cent of cases, people whose information is passed on to national security agencies are identified as non-threats to national security.
In the version of the bill you have before you, information is sent as it should be, but once CSIS analyzes it, for example, and the agency concludes that the vast majority of people do not represent a threat to national security, information related to those people should be destroyed. I assume that the CSIS administrative framework will enable agencies to destroy that information, as it is really not problematic.
In addition, the bill you have before you provides that the government and national security agencies must inform the new review committee — the National Security and Intelligence Review Agency — about that information, to let it know whether it was disclosed and which information was destroyed because it was not necessary to the mandate of CSIS or CSE, for example. So there is some control of that decision, to determine whether information that is no longer useful to a security agency’s mandate should be kept or destroyed.
Senator Dagenais: So the decision would once again belong to the new review committee?
Mr. Therrien: The committee reports on it, and the decision belongs to the agencies and the government, but the government must report to the committee. Then the committee analyzes the report and, if it feels that information that should have been destroyed was not, it will let the government know, and then the government will make a decision.
Senator Dagenais: Thank you, Mr. Therrien.
Senator McPhedran: My question builds on the discussion you just had with Senator Dagenais. The House of Commons amended the bill to clearly state that publicly available information that may be gathered and used by CSIS and CSE does not include information in respect of which a Canadian or a person in Canada has a reasonable expectation of privacy. As worded now, do you think it’s sufficiently clear that illegally obtained or hacked personal information does not count as publicly available? Do you have any concerns about the way that “publicly available information” might be interpreted or used by the security establishments?
Mr. Therrien: That remains an issue. We had recommended that the concept of “publicly available information” exclude information unlawfully obtained, including information hacked, for instance. That’s not quite what the bill before you says, although there are similarities. I think it would have been ideal to exclude “unlawfully obtained information.” The government chose instead to exclude from that concept of “publicly available information” information for which there is a reasonable expectation of privacy.
We’re getting to a similar place. Where information was collected or obtained unlawfully, normally there would a reasonable expectation of privacy for that information and it should be excluded from the notion of “publicly available information,” but the concept of “reasonable expectation of privacy” is fluid, difficult to apply and contextual. It’s a good exception, but it’s an exception that might be difficult to apply in the field, so I would certainly look to government agencies and departments to give guidance to their officers as to how to apply that concept, because it is quite fluid and contextual and difficult to apply. I think that would be my answer.
Senator McPhedran: To take this a little bit further, when you talk about the interpretation of “reasonable expectation of privacy,” do you see a pathway for that interpretation to go to the review agency and/or the committee of parliamentarians on national security?
Mr. Therrien: Yes. Operationally, the national security agencies have, as one of their lawful grounds of collection, the information that is publicly available, except if there is a reasonable expectation of privacy. So they will have to ask themselves that question. When they come across information that looks to be publicly available, they will have to ask themselves: Is there a reasonable expectation of privacy to this? I’ll just do a parenthesis in a second on that notion. Operationally, that’s relevant. They will make decisions to collect or not, and these decisions will be reviewed by oversight bodies, whether the NSIRA, potentially us in some cases and the committee of parliamentarians. All of these oversight bodies will have to look at this notion.
The notion of reasonable expectation of privacy will become relevant in many contexts, but in particular with respect to social media information. People put a lot of information on social media, sometimes with public settings, i.e., with the intention of making it truly public. If you put information out that way, then you have no reasonable expectation of privacy because you consciously decided that you wanted to disclose this. But we also know that the terms and conditions under which these settings are set are less than crystal clear, so there will be issues in real cases. This is information that looks to be publicly available, and the privacy settings were public, but did the person understand that it was going to be public? Or the terms and conditions may have changed 25 times since the decision was made to make the information public, and what is the reasonable expectation of privacy of the individual in these circumstances? It’s going to be complicated.
Senator McPhedran: Okay. Thank you.
Senator Pratte: Good morning, Mr. Therrien. My first question is about a somewhat specific aspect, but it is related to Senator McPhedran’s questions on expectations with regard to publicly available information and on expectations concerning privacy. The two parts of the legislation — the one on CSIS and the one on CSE — do not handle this in the same way. In CSE’s case, there is a definition of publicly available information that clearly states that information for which there is an expectation in terms of privacy is excluded.
For the Canadian Security Intelligence Service, this is handled differently and the legislation says that information must be destroyed. In this case, the expression is fairly narrow, and it says the following:
...delete any information in respect of which there is a reasonable expectation of privacy that relates to the physical or mental health of an individual;
That seems to be a bit more narrow.
Is that something you have noticed? Are you concerned about it?
Mr. Therrien: First off, I have a hard time understanding why this would be handled differently for the two organizations. Do I have a concern? The government decided to exclude certain information based on reasonable expectations in terms of privacy protection. That is found in both pieces of legislation. The concept is a bit more narrow when it comes to CSIS. It is probable that physical or mental integrity criteria are those where prejudice caused to individuals would be the most significant. I think it is the same thing. There is no reason to worry too much.
Senator Pratte: Thank you. As for your preference in terms of relations between you and the committee of parliamentarians, could you give us a concrete example that would be useful to us. I am not sure I understand exactly what you would want to share in terms of information with the committee of parliamentarians that the bill does not provide for.
Mr. Therrien: I will try to be more specific while preserving the confidentiality of the information in question. I have a specific example in mind. Under the current act not amended by Bill C-59, the office of the commissioner and the current SIRC have looked into the same issue, the implementation, by CSIS, of the ruling of Judge Noël, who stated that it was illegal for CSIS to keep certain information.
SIRC and we have carried out independent reviews on the implementation of that ruling by CSIS. In order to collaborate, not to step over each other, help each other and share our respective expertise, we have engaged in discussions. We put the following questions to them: What do you do? How do you do it? What are the issues you deem relevant?
We have held some discussions, but we could not talk about what we have really found during the investigation, which would have given our analysis a concrete foundation. So we can collaborate in terms of major principles, policies and general issues and trends, but not in terms of the way those trends manifest concretely in a specific case, which is often necessary to understand the balance between human rights and national security interests.
Senator Pratte: So the bill allows you to do that with the new expert agency, but not with the committee of parliamentarians?
Mr. Therrien: That’s right.
Senator Pratte: Thank you very much.
Senator Boisvenu: Welcome to our committee and thank you very much for your participation. Mr. Therrien, first, you seem to be critical of this bill. Were you previously consulted on its content?
Mr. Therrien: I have been critical of the bill since its introduction, until amendments were made to it in the House of Commons committee. I still find the bill imperfect, but overall, most of our concerns have been addressed in the House of Commons amendments after conversations the Office of the Commissioner had with officials and, once or twice, with Mr. Goodale, to arrive at where we are now.
Senator Boisvenu: The bill is relatively silent about your role.
Mr. Therrien: Yes.
Senator Boisvenu: Is it still?
Mr. Therrien: The bill creates the new oversight committee and does not talk about us. At the time, I was afraid that this might be seen as an exclusion from our mandate. The government tells me—and this is a reasonable reading of the bill—that the creation of the new committee does not preclude us from playing our part. In fact, there is explicit provision for collaboration between the Security and Intelligence Review Agency and the Office of the Privacy Commissioner. So, on that side, I don’t have any particular concerns.
Senator Boisvenu: You state that you should be part of the review bodies that have the legal authority to disclose information. You have worked in the field of security in the past. Aside from you, are there others in your offices who have the expertise to do this type of review?
Mr. Therrien: I will clarify my thinking about competence. Bill C-59 creates a new agency. We also exist under existing legislation that is not affected by the new legislation. We have the expertise to review privacy issues in all government departments, including national security agencies. Do we have the necessary expertise? I believe it is necessary for us and the Security and Intelligence Review Agency to be able to share, because we have expertise that sometimes overlaps and sometimes complements each other.
The Office of the Commissioner is an expert in privacy. The office is an expert in national security and, as a result, has some knowledge of privacy, because personal information is the raw material for national security agencies. However, the office is adding a level of privacy expertise on what the concept of reasonable expectation of privacy might look like, for example.
We can strengthen each other. The office has some knowledge of national security, since these agencies are among those whose privacy activities it controls, but we do not claim to be national security experts; the agency is. The office has some expertise in privacy, but the Office of the Commissioner has more expertise in this area. If I had to write the provision on collaboration, I would not have emphasized the desire not to duplicate functions as a main criterion. As drafted, the legislation states that the two agencies may collaborate when necessary to avoid duplication. This is a factor, but I think the most important factor is that the agencies must collaborate to the extent that this collaboration will produce a better result in terms of monitoring the legality of the activities of national security agencies. This remains an important step forward.
Senator Boisvenu: You stated in the other place, and I quote:
Clear legal rules governing the destruction of information are necessary to protect people’s privacy.
Do you think CSIS would agree with that?
Mr. Therrien: That’s what I see in the amendments to the bill. There is a legal obligation for agencies that receive information, including CSIS, to destroy it if it is no longer necessary for the exercise of their powers.
Senator Boisvenu: And do you think they do?
Mr. Therrien: I think they’re going to do it in general. There are three review bodies—the agency, us and the Committee of Parliamentarians—that can ensure that CSIS does so.
Senator Boisvenu: Thank you.
Senator McIntyre: Thank you, Mr. Therrien. You have already answered several of my questions. I understand that the amendments mitigate your concerns on several parts of the bill, including new subsection 5(1) and new section 7.1, as well as subsection 9(2).
I’m going to go in a different direction. Could you explain in more detail the July 2017 decision of the Court of Justice of the European Union in the passenger name record case involving Canada, and the importance of that decision to our consideration of Bill C-59?
Mr. Therrien: We are back to the question of the relevance of travellers’ information to identify national security risks.
Senator McIntyre: I’m talking about the retention and disposal of documents.
Mr. Therrien: Exactly. What was at issue before the Court of Justice of the European Union—which is equivalent to the Supreme Court of the European Union—was a draft agreement between Canada and the European Commission for the exchange of traveller information to identify national security risks.
The court recognized the legitimacy of the exchange of information between Canada and the European Union for the purpose of identifying terrorists and reducing risks to national security, but ruled that the manner in which the agreement was conducted allowed information to be kept for too long and that the agreement therefore violated the Charter of Fundamental Rights of the European Union.
This is very similar to the situation I described in the original version of the bill, where the Canada Border Services Agency provided information to CSIS about travellers and, once CSIS had obtained it, CSIS was not required to destroy it if the person was deemed not to pose a risk. That is exactly the problem that has been raised by the European Court, and I believe that in the current version of Bill C-59, these concerns are essentially addressed.
Senator Gold: Welcome, commissioner. In your concluding remarks, you mentioned that the bill, though not perfect, is clearly an improvement over the current law. I take it you’re referring to the law as it is pending, we hope, the passage of Bill C-59. Could you share your thoughts on what would be the implications, from your point of view, on Canadians’ privacy rights if Bill C-59 were not passed in a timely fashion?
Mr. Therrien: I go back to the two main criteria I used to assess what is currently the Anti-terrorism Act and what is now Bill C-59, which are the legal standards and the oversight mechanisms.
To start with oversight, under the current law, we have a small number of expert bodies. We have SIRC that oversees CSIS, and we have the CSE commissioner that oversees the security establishment. All the other institutions of the federal government that have a role in national security are not the subject of oversight. Therefore, there is no independent body to ensure that their national security activities, including activities around the collection and use of information, which is the core of privacy, are not subject to expert bodies. We have jurisdiction for all of the federal government, including those agencies for which SIRC and the commissioner do not have jurisdiction, but we have jurisdiction over the private sector and all of federal government, and not only in national security. We have many other things to do. Therefore the one impact of not adopting Bill C-59 as amended is that you would lose a necessary oversight body over most of the national security agencies other than the two that are currently the subject of oversight. That’s a very important matter.
In terms of legal standards, just to look at information sharing or information disclosure — Part 5 of Bill C-59 — the current law says that so long as there is any relationship to national security, according to departments, information can be shared. So again the case of the traveller. The border agency discloses to CSIS because there is a relevance to the mandate of CSIS, and once CSIS has the information it is under no obligation to set aside the information of travellers. So CSIS can maintain information about a large number of law-abiding individuals who have no relationship whatsoever with national security threats under the current law. With Bill C-59, as amended, there will be a legal obligation to destroy that information once most individuals have been found not to be a threat, and that decision, which may or may not be made correctly by some officers, will be the subject of oversight.
These are among the most important consequences of not adopting Bill C-59.
Senator Gold: On the subject of review, we’ve heard it argued that NSIRA would be rather bureaucratic and cumbersome and would gum up the works, if I can use a colloquial expression. You have had experience in interacting and reporting on how government institutions are doing. Do you have any thoughts from your point of view of how effective and efficient the new NSIRA review function is likely to be?
Mr. Therrien: If you look at SIRC and the CSE Commissioner, their resources are not very important. In one case, it is dozens, maybe a bit more, and in the case of the CSE commissioner it’s very few people. That might actually be a problem in terms of whether they have sufficient resources to do the important work they do. As currently constituted, with the resources they have, I don’t think the issue of security agencies being overburdened by oversight is a real concern. It depends, of course, on how the new agency will be staffed and how many people they will have.
I’ve seen the testimony given before your committee by CSIS and the CSE, who welcome oversight as giving them more trust, for instance, among the population, which is a crucial aspect of their work. If I wear my previous hat as counsel to national security agencies, national security agencies prefer to be on the street than being controlled or having their activities looked at by an oversight body, but I did not hear huge concerns that they could not do their work because they were also being the subject of oversight or review.
Senator Gold: Thank you.
Senator Griffin: I’m basically following up on the same kind of questions Senator Gold asked. Toward the end of your testimony, you noted that your office is still unable to share confidential information or otherwise collaborate meaningfully with another committee, which is the National Security and Intelligence Committee of Parliamentarians. Have you been given any reason why Bill C-59 does not address that problem?
Mr. Therrien: No. No, I have not.
Senator Griffin: That was a quick answer to a quick question. Thank you.
Senator McPhedran: I want to explore a bit further with you the reasonable expectation of privacy. It is an important constitutional interest, and I think that we have some questions about the way in which pervasive surveillance gathering of information in bulk could tip over into a kind of mass surveillance of our population. I wonder if you could speak with us a bit more about the degree of concern you may have about that and what sort of safeguards there are or should be.
Mr. Therrien: The criticism that I made of the bill as it was tabled was in part due to concerns over mass surveillance, including the surveillance of people who have nothing to do with national security, who are not a threat. This is a difficult issue because the government needs to gather information about more than people who are a threat in order to identify those who are a threat. Travellers are a very good example in this day and age, but if we move to communications of individuals on social media or using the Internet generally, I think the law needs to be constructed in such a way as to avoid or greatly minimize the risk of mass surveillance of people who go about their lives, get informed and communicate with others using digital services. The notion of reasonable expectation of privacy can be a safeguard against mass surveillance, including what is published on the Internet that is publicly available. At the end of the day, it’s a difficult balance to reach.
I have heard senior government officials — heads of security agencies — tell you and the house that when they look for publicly available information, it is generally to understand a context. It is not to target individuals. That’s an important consideration. I think that’s probably how they work. They gather more information than too little to start with, to understand a certain phenomenon. That may involve publicly available information, or that certainly involves publicly available information such as research as to this or that phenomenon in a country from which terrorists come.
It’s in the use of the tools, then, starting from the more general information of that nature to information that targets individuals that we need to make sure that people who are not a threat are not unduly affected. It’s a difficult task. I think, at the end of the day, the legislation before you does a better job of that than the legislation that we have, but it’s a very difficult task.
Senator McPhedran: I’d like to maybe flip this a little. In your opinion, as we have the current definition of “publicly available information,” does the bill construct that publicly available information in a way that helps to preclude or stop this kind of mass surveillance we’re talking about?
Mr. Therrien: I think you need to look at that, the concept of reasonable expectation of privacy, plus the obligation to destroy information that is no longer related to the mandate of security agencies. The two together certainly go in that direction.
It would have been preferable to exclude information that was not lawfully collected, but the concept of reasonable expectation of privacy is undoubtedly relevant to that exercise of trying to find the right balance. Broad collection, including more than people who are threats, because you will not find people who are threats unless you have a broader net, protection through destruction of what becomes irrelevant and the notion of reasonable expectation of privacy — these are the right legal concepts. But the latter, reasonable expectation of privacy, is extremely difficult to apply on a case-by-case basis, particularly for a single officer of CSIS or the CSE.
I think reasonable expectation of privacy is a relevant and good tool. We will need to see how it applies in practice. I know and you know that there will be a five-year review of this legislation. That certainly should be something to look at if this bill is adopted, namely, how this notion is actually applied on the ground to make sure that people’s privacy is properly protected.
Senator McPhedran: I just want to seek a clarification to make sure I understood something you said. I think I heard you say something about terrorists and the countries from which they usually come. My question is geared to the fact that we have terrorists from the country in which we live.
Mr. Therrien: Yes.
Senator McPhedran: We have certainly seen evidence of that with the special four- or five-page article in The Globe and Mail this past weekend on White nationalists and the extensive use of the social media Internet group, with, in many cases, probably from their perspective, I think, a reasonable expectation of privacy that they were communicating with each other. From the kind of journalism that we’ve seen delving into social media, even where the parties posting may consider themselves to have a reasonable expectation of privacy, do you think the White nationalism that is homegrown in Canada is going to be able to be under surveillance with this bill?
Mr. Therrien: First of all, of course, you’re right that there are risks to national security from within the country, so let’s adjust your scenario a bit, although I think that was part of your premise. Let’s say people with nefarious terrorism-related intent use the Internet to communicate with others, presumably to recruit new individuals, and let’s assume for the purpose of discussion that they do that in a way where they make clear their expectation that the communication will be private by using the right privacy settings, for instance. That’s the difficulty of the notion of reasonable expectation of privacy. It is certainly possible that a court seized with a scenario like that, where security agencies would have collected information put out on the Internet by people with these intents, may conclude that even though the privacy settings were private, given the nature of the communication, there ought not to be a reasonable expectation of privacy. That underlines the fluidity of the concept, but the concept in your scenario may not be an impediment to national security agencies doing their job.
Senator Gold: I have a follow-up and a supplementary question. Thank you for the questions and answers. I think Canadians need to understand, beyond the issues of reasonable expectation of privacy, the mechanisms in Bill C-59 that would provide authorization, whether to the security services of the CSE, to gather information in the first place and concerns about mass surveillance and engage the questions of when you need to go to the courts to get a warrant or when the intelligence commissioner might have to certify that the minister’s designations and authorizations are reasonable. Could you comment on the plumbing in Bill C-59, the mechanisms whereby various actors at the front end of the process — I’m thinking here of oversight, whether ministerial or the intelligence commissioner — structure the process whereby our agencies can go out and gather the information in the first place, which is before they have to destroy it?
Mr. Therrien: That’s a tall order, and I think you will have experts here today.
Senator Gold: Are you satisfied with the architecture?
Mr. Therrien: Yes. The architecture has a combination of, certainly, a number of independent bodies at the review stage after the fact, and of judicial authorities before the fact in many cases, although not all. Publicly available information is an exception to that rule. Overall, you have judicial authorities, including the new intelligence commissioner, including a new role for the Federal Court in the use of data sets by CSIS, for instance. These are undoubtedly improvements to privacy protection. And you have oversight or review bodies after the fact, with broader authority and certainly broader jurisdiction over more national security agencies after the fact. The notion of publicly available information is a little bit out of the norm.
Senator Oh: Thank you very much for all the information. Most of the information has been addressed. I just want to follow up on Senator McPhedran’s question and expand on it.
We know that for terrorism attacks, the information we receive is critical. A lot of the time decisions on information sharing must be quick. How about Third World or smaller countries doing their best with the complicated system we have with Bill C-59, which we are introducing? How is the information given to a country that is protected, or how do we share — the timing is critical — before any privacy or terrorism attack is effected?
Mr. Therrien: The need for diligence in, for instance, information disclosure was the main reason why the government, I think, retained the relevance criteria for disclosure from other departments to national security agencies, the idea being that, I will say, the Department of Agriculture might not know precisely what might be relevant to the mandate of CSIS or another body. Therefore, you have a more generous standard for disclosure, because you need to act quickly. And the sending institution might not know precisely the mandate of the receiving institution. But with Bill C-59, the national security agency must look rigorously at the information against its mandate and must destroy what is not relevant to its mandate.
In terms of information sharing internationally, this bill does not really address that. This is a bill governing the activities of various security agencies, and in terms of information sharing, it deals with information disclosure or sharing within Canada, within the public administration in Canada. Your question is outside the scope of the bill, as drafted. You’re now getting into issues around when a Canadian agency discloses to another department should there be conditions for the respect of human rights, for instance, in the country that receives the information? There are investigation recommendations and changes to administrative procedures that have followed the Arar investigation. That is not, per se, dealt with in this piece of legislation.
Senator Oh: Thank you.
Senator Gold: On that latter point, I wanted to point members of the committee to Part 1.1 of the bill, which is titled “Avoiding Complicity in Mistreatment by Foreign Entities.” This was added to the bill. So there are provisions in this bill that at least speak to the question of when we should or should not both share information with other states or use information that we receive from other states that may have been tainted by mistreatment and the like. So there is something in this bill to that effect.
The Chair: I believe those are all the questions. Let me thank you very much, Mr. Therrien and Ms. Wilson, for joining us. As usual, it was very informative.
Before we turn to our next panel, I want to welcome Senator David Richards and Senator Fabian Manning to the table. They joined us during the last session.
For senators’ information, our final panel will begin at 3:50. We are putting the two last speakers together, for your own planning purposes, so we will not have as long a day as we anticipated.
At this point, I would like to welcome to the committee Leah West, Lecturer, incoming, Normal Paterson School of International Affairs from Carleton University; and from the Canadian Civil Liberties Association, Brenda McPhail, Director, Privacy, Technology and Surveillance Program; and Cara Zwibel, Director, Fundamental Freedoms Program.
Welcome all to the table, and I’ll turn it over to you for opening comments.
Cara Zwibel, Director, Fundamental Freedoms Program, Canadian Civil Liberties Association: Thank you, Madam Chair and members of the committee, for inviting the Canadian Civil Liberties Association to appear before you today with respect to Bill C-59.
We believe Canada needs national security legislation that, first, allows well-defined and targeted action to protect against threats; second, provides meaningful due process protections; and third, mandates robust review, oversight and public transparency. We will be using our brief opening statement to call your attention to areas where we believe the bill falls short in meeting one of those three goals.
There are two places we would like to highlight where definitions in the act are sweepingly over-broad. First, while the majority of CSE activities cannot be directed at Canadians or persons in Canada, clause 23 of the new CSE act creates an exception for collecting publicly available information defined in unacceptably broad terms. This permits a vast amount of unselected information to be collected, creating the potential for mass surveillance of Canadians or persons in Canada. The definition was amended by the House to exclude information for which a person in Canada has a reasonable expectation of privacy, but that does not fully ameliorate concerns because CSE will decide whose expectations are reasonable. At a minimum, we recommend external oversight of such collection by the intelligence commissioner, who currently has no role in relation to publicly available information.
Second, in the security of Canada information disclosure act, the definition of “activity” that undermines the security of Canada encourages proactive disclosure across a range of activities that go well beyond the threats identified in the CSIS act. When a broad range of actors are asked to interpret a broad set of provisions, it is inevitable that a broad range of information about Canadians will end up being disclosed, raising both privacy concerns and also concerns that vital information will get buried.
Furthermore, the essential exception for acts of advocacy, protest, dissent or artistic expression is newly qualified by the phrase “unless carried on in conjunction with an activity that undermines the security of Canada.” As a result, constitutionally protected acts may be wrongly subject to information disclosures. It remains unclear whether a non-violent but long-term occupation of a resource extraction site might be considered significant interference with critical infrastructure. Would a peaceful march scheduled for multiple Canadian cities be considered widespread? Limiting the exception for legitimate acts of dissent or expression in this manner renders it difficult for members of the public to understand when information sharing will be triggered. If we make people afraid to stand up for what they believe in, democracy suffers.
There are two places where we would like to highlight insufficient due process under the current bill. First, the secure air travel act’s remedial mechanisms remain defective. Even if denied travel, individuals may never be explicitly informed that they are a listed person, which can frustrate their ability to seek recourse within the narrow 60-day period that begins on the day on which they were denied transportation. More fundamentally, proceedings may take place in secret. Appellants are only provided a summary of intelligence and evidence used against them, which may include hearsay, and the judge is empowered to rely on evidence and information that has not been provided in that summary. The appellant’s right to be heard is not meaningful if he or she does not know the case to meet. Moreover, the appellant is not afforded a special advocate with the ability to review and test the government’s case.
Similar issues arise with respect to the proposed Criminal Code amendments made to the process for listing a group as a terrorist entity, a designation that has significant consequences. There are not just legal but practical obstacles in attempting to challenge the designation, since it results in the freezing of assets and can thus impede access to legal counsel.
Finally, despite our concerns about many aspects of Bill C-59, we recognize that it includes a number of important new accountability mechanisms. There are areas where we believe it could be improved to achieve the necessary robustness of review and oversight and to provide improved transparency. We’re just highlighting some of those here.
With respect to the National Security and Intelligence Review Agency act, we have recommendations to ensure that reports that are made public include all activities of the agency and unclassified versions of all findings and recommendations made by the agency.
We also propose a number of changes to the intelligence commissioner’s mandate. Most significantly, we recommend that the IC be responsible for approval of active and defensive cyber operation authorizations granted by the minister. Given the potential of these operations to have far-reaching implications, some form of independent oversight is required to ensure that these powers are exercised in a manner that is reasonable and proportionate. In light of the IC’s quasi-judicial function, we have also recommended that a special advocate, amicus or similar entity be involved in instances where the commissioner’s approval is being sought. The inclusion of someone in this role will allow for more rigour of analysis in relation to authorizations. Finally, the intelligence commissioner should be empowered to attach conditions to authorizations in all cases.
We will be providing the committee with a written brief and an annex with recommendations, and we look forward to responding to your questions. Thank you.
Leah West, Lecturer (incoming), Normal Paterson School of International Affairs, Carleton University, as an individual: Thank you very much for inviting me to address the committee. I am truly honoured by this opportunity.
Today I would like to address the Communications Security Establishment act. I strongly believe that this legislation is necessary and should become law. That said, I am concerned about the effectiveness and scope of the CSE’s new cyber operations mandates, specifically its active cyber mandate, defined in clause 19 of the act.
Under this mandate, the establishment may:
. . . carry out activities on or through the global information infrastructure to degrade, disrupt, influence, respond to or interfere with the capabilities, intentions or activities of a foreign individual, state, organization or terrorist group as they relate to international affairs, defence or security.
At first, the scope of the authorization in this definition appears remarkable. It encompasses acts as benign as changing the content of an ISIS supporter’s tweet to taking down the entire electrical grid of an enemy-state capital. However, before conducting a foreign cyber operation, be it active or defensive, CSE must obtain authorization from the Minister of National Defence. The minister may authorize a cyber operation “despite any other Act of Parliament or of any foreign state.” This clause means that CSE may carry out a cyber operation if its execution violates Canadian and foreign law. The current act does not permit CSE to violate international law when engaging in cyber operations.
Why is this important? CSE may only target its operations at non-Canadians in foreign countries. Yet, under international law, Canada may not exercise its power in the territory of another state or intervene in the international affairs or foreign relations of another state. If we think back to the definition of active cyber operations, it is hard to conceive of an example that would not violate these international legal rules.
Under a strict interpretation of international law, merely hacking a foreign server may be a violation of the target state’s sovereignty. While there is debate about this issue amongst the international community, there is strong agreement that hacking activities that lead to a loss of functionality or physical damage to cyber infrastructure in a foreign state would violate that state’s territorial integrity.
What does this mean for CSE? It means that there are only three instances where CSE can employ active cyber operations and comply with the proposed act: first, with the consent of the host state; second, as a lawful countermeasure; and, third, in an armed conflict. Each of these circumstances raises additional concerns.
First, consent: It might be an option if CSE were looking to direct its cyber operations against a non-state threat, like a terrorist organization, if Canada were partnering with the host state to disrupt that threat. It would, however, be wholly ineffective if the threat CSE is looking to affect is the host state itself. Consent would not be a viable approach to counter, as an example, foreign interference in the upcoming federal election.
The second instance is as a lawful countermeasure. Countermeasures are a form of self-help under international law. A state can engage in an activity that would otherwise violate international law to induce another state to comply with its obligations. To lawfully employ a countermeasure, Canada would first have to demand that the bad-actor state change their behaviour, notify the offending state of the intention to take countermeasures and offer to negotiate. Because of these constraints, relying on this exception is of limited use if Canada’s intent is to engage in covert cyber activities.
The third is an armed conflict. CSE could use its active cyber mandate during an armed conflict to which Canada is a party. To do so, any cyber operation would have to comply with the law of armed conflict and could put CSE civilians at risk. This is because, as participants in hostilities, CSE employees would become lawful targets, meaning the enemy could target and kill CSE employees in Canada or anywhere else they operate.
So what is my recommendation? I suggest changing the language of clause 29 and clause 30 from its original language “despite any other Act of Parliament or of any foreign state” to “notwithstanding any other law.” This would give the government more flexibility.
However, this amendment, without more, would open the door too wide to violations of international law, other than those already limited within the act. I certainly do not want to see the act amended in a way that would authorize CSE to engage in cyber operations that violate international humanitarian law or the prohibition on the use of force. For this reason, I recommend the act be amended to explicitly prevent CSE from engaging in operations that rise to the level of a use of force or participating in an armed conflict under their cyber operations mandate.
Importantly, this change would permit the minister to authorize CSE cyber operations that violate lower-level international obligations, but it would also lessen the associated risks to Canadians and Canadian foreign relations, while at the same time increasing the government’s legal capacity to employ offensive and defensive tools in cyberspace.
Thank you for your time, and I look forward to answering your questions.
The Chair: Thank you very much.
Senator Dagenais: Thank you to our guests. My question is for Ms. Zwibel.
The work of security agencies to track down potential terrorists and protect Canadians is not always easy, and our citizens are always happy to see how effective they are when a plot is foiled. You express concerns about the collection of information. To explain your concerns, are there any examples of abuse that have occurred in this type of information gathering and processing in investigations related to terrorist activities? Are you aware of any abuses that our national security agencies may have committed? They have a role to play, and that is to protect citizens.
Ms. Zwibel: I apologize. I’m not sure if your translation was working. Mine wasn’t. I will do my best. I think I understand your question. Your question is whether we’re aware of instances where there were abuses by the security services.
Senator Dagenais: Yes, exactly.
Ms. Zwibel: We might share the time.
There are certainly examples where the Federal Court has found, for example, that the Canadian Security Intelligence Service has failed in its duty of candour to the court, has gone beyond the scope of what the service told the court they would be doing in seeking the warrant authorizations and has failed to be forthcoming with the court about the kind of information they were collecting and retaining. Indeed, some provisions in the bill are designed specifically to address some of those questions. We also know that there are instances where SIRC has commented on things that CSIS has done that are beyond the scope of their lawful authority. We do have examples that demonstrate the need for greater accountability and greater transparency. As we say, there are some very positive measures in the bill that do those things, including the enactment of the National Security Intelligence Review Agency Act.
I don’t know if my colleague has something else to add there.
Brenda McPhail, Director, Privacy, Technology and Surveillance Program, Canadian Civil Liberties Association: There are also examples of the Canadian Security Establishment again failing in their duty of candour to the court in relation to engaging their intelligence partners in relation to information collection about Canadians. That would be just another example I would flag where past behaviour has led us to be concerned about oversight as well as review. I refer to operational oversight at the time things are being undertaken, as well as the after-the-fact review, which is important but a little bit too late to stop things from happening. But, again, this bill does a better job of that than any previous national security law.
Senator Dagenais: Two weeks ago, I was on the Promenade des Anglais in Nice, and I laid a wreath in memory of the 86 people who were killed in a terrorist attack.
In France, the power of security agencies has been increased because it became clear that it wasn’t necessarily the security agencies that had to be monitored, but rather terrorists. That was the purpose of my question. Don’t you think that, by over-monitoring national security agencies, we may well interfere with their work, in order to protect the safety of citizens? Wouldn’t you agree with that?
Ms. McPhail: I think that we can’t have too much, but we must have just enough, and our legal system is filled with examples where we have chosen to regulate in accordance with our values, even if it might be more expedient to allow fuller investigatory powers. We advocate for that appropriate balance to be struck. We certainly don’t minimize the concerns that are happening in relation to terrorist offences, but we also don’t want to overemphasize them. We have to find that balance.
Senator Dagenais: Thank you.
Senator McPhedran: I am wondering if I might be allowed a question to Ms. McPhail and Ms. Zwibel, and then also a question to Ms. West.
My first question is to CCLA. It’s in relation to the no-fly list. In your brief to the House of Commons counterpart to our committee, you recommended many changes to Bill C-59, including several to the Secure Air Travel Act. In particular, you recommended the creation of a mechanism for the appointment of special advocates, which you have also mentioned to us this morning. These special advocates would be protecting the interests of a person who has appealed to have their name removed from the list.
I just wanted you to know that I proposed this to Minister Goodale when he came to our committee several weeks ago. His response was that the presiding judge already had the ability to designate an amicus curiae to assist them, and thus the special advocate regime was not needed in this context for those wanting to get off the no-fly list. I am wondering if you have any responsive thoughts to that. Feel welcome to share them with us.
Ms. Zwibel: I suppose the simplest response is the difference between making something a requirement and making something optional. Certainly I don’t dispute that there is the option of appointing an amicus. The question is whether that will happen in every case. Our preference is to have that protection built into the legislation to ensure that every person who wants to challenge their listing can have that mechanism because we do believe it will be necessary in all cases because we’re dealing with issues of national security where there may be restrictions on what is disclosed to the named person.
Senator McPhedran: Thank you.
My question to you, Ms. West, is in relation to the CSE and cyber powers and some of the points that you have made for us this morning. I want to focus in on the integrity of our upcoming elections and ask you whether you think the new defensive and active cyber operations mandates we see in this bill will be helpful or will be sufficient?
Ms. West: I absolutely do believe that giving these types of powers to CSE will give Canada another tool to defend the integrity of our elections, whether or not it’s actually targeting election infrastructure that’s Canadian-supported, which isn’t necessarily in the cyber mandate — the cyber active defensive mandate, but in the infrastructure protection aspect of the expanded mandate — but also in defending forward to potentially negate the impacts of foreign influence on the Canadian electorate itself through misinformation and whatnot that we saw quite prevalent in the United States in the 2016 election. I think both active and defensive cyber could be helpful in that. Surely defensive.
But the reason I bring up my proposed recommendation is that the actual use of active cyber in a foreign influence type situation — we saw in the United States, for example, on the date of the 2018 election, the National Security Agency shut down the capabilities of the Russian intelligence that was operating botnets. They were able to defend for it and do that. That would technically be a violation of Russian sovereignty, and therefore, that would be precluded currently as the law is drafted. So there is tension between what could be possible with an amendment.
I say this not knowing exactly how the Government of Canada interprets international law as it applies to cyberspace because we have never had a statement from the Government of Canada, as we have from most of its allies, explaining its interpretation, which is another important element of all of this.
Senator McPhedran: You make reference, in a quite broad way, to international law. I wonder if you could focus in more on international humanitarian law and whether you see a relevant distinction here.
Ms. West: Certainly. If CSE were to engage in an armed conflict in support of the Canadian Forces under their expanded assistance mandate or an active cyber in an armed conflict under their own mandate, international humanitarian law would apply to its actions, so its actions would have to be completely compliant with the Geneva Conventions and customary international law in that way. This is something that CSE has never had to really grapple with before, and it’s something that concerns me. I hope and expect that CSE would seek assistance from the military and their legal officers in determining how to employ active cyber operations in a theatre of hostilities.
Senator McPhedran: Just a quick point of clarification: You made reference to Canadian Armed Forces, but in your thinking on this, are you also seeing Canadians acting as peacekeepers with UN joint forces having an extension of this concern?
Ms. West: Certainly. As we understand warfare to be adapting to include cyber operations alongside conventional kinetic operations, that will apply in peacekeeping as well. Peacekeeping operations versus a more kinetic conflict like we saw in Afghanistan will also have to incorporate cyber capabilities and assist the Canadian Armed Forces with that. Currently, that will fall if Bill C-59 passes — until the Canadian Forces can increase its capacity, it will fall to CSE to assist the military in those operations.
Senator McPhedran: Thank you.
Senator Pratte: My question would be for CCLA about the definition of activities that undermine the security of Canada and the exception provided for advocacy work and protests and so on. You mentioned this in your presentation, but I would like you to elaborate on what your concern is in the wording of this exception.
Ms. McPhail: Thank you for that. Essentially, the activities that undermine the security of Canada in the Security of Canada Information Sharing or Disclosure Act as amended are much broader than any such definition that we have had in the past relating to CSIS and their activities that are considered threats. It speaks to interference with infrastructure. As amended, there is a qualifier there, so that needs to be significant interference. Other provisions add the term “widespread.” So there is an attempt to provide some narrowing of that really quite broad definition that expands ideas of undermining national security from things like sabotage or espionage to wider activities.
But it’s still so big that it will be hard for people to understand exactly what is caught. A couple of the questions that we asked in our oral statements I think are really relevant, and I know from speaking to activists who engage in environmental activism in particular that they are concerned. They are wondering, if we occupy a site near a proposed pipeline location and we’re there for a month, is that significant? At that point, does that somehow open a door for all of our information collected by the many institutions of government who are allowed to engage in information sharing for these purposes to hand out the information that we have given when it was mandatory for us to do so in relationship to the government providing services for us in the course of our usual interactions with government? Is that information then going to be subject to national security scrutiny? There is both the risk that it may happen and people’s fears that it may happen. The fear is real. It’s something that affects the trust that Canadians and people in Canada have for their public safety bodies and the social licence that we give them. If it can be addressed by creating narrow, comprehensible and understandable definitions that allow the public to know when the sharing is going to happen and when it’s not, we see that as a public benefit, as well as a benefit to the security agencies that benefit from that increased trust.
Senator Pratte: I’m a bit concerned about the way the exception is worded, and I wonder if does not capture activities. The way it is worded is as follows:
For the purposes of this Act, advocacy, protest, dissent or artistic expression is not an activity that undermines the security of Canada unless carried on in conjunction with an activity that undermines the security of Canada.
In French, it is even wider because it says:
... sauf si elles ont un lien avec une activité portant atteinte à la sécurité du Canada ...
That means any kind of link with an activity that undermines the security of Canada would not be protected by the exception. I haven’t seen your brief yet, but do you provide alternate wording for this section?
Ms. McPhail: Our understanding from earlier commentary around this section is that, in Bill C-51, when people were concerned that the exception carved out for dissent and advocacy was too broad, they were concerned because they didn’t want it to open the door to violent actions, actions that would involve risk to the security of persons from being claimed as a valid act of dissent. So our recommendation would be, if necessary, to limit the exception for advocacy, dissent and artistic expression only insofar as those activities are reasonably directed towards causing injury to others, serious harm to property, death or serious public safety risks. I’ve actually got proper wording that I’m not spitting out, but we have it documented in our brief.
Senator Pratte: Okay. Thank you.
Senator McIntyre: Thank you all for your presentations. I have two questions, and they both have to do with Part 3 of Bill C-59, the proposed Communications Security Establishment Act. My first question is to Ms. West.
Ms. West, as you’ve indicated, the proposed CSE Act would expand the activities that the CSE may commit in violation of an act of Parliament. The proposed CSE Act would allow the minister to authorize the “contravention” of other acts by the CSE, not only to obtain foreign intelligence but also as part of its security and information assurance mandate. In your opinion, which other acts of Parliament might the CSE contravene in the conduct of its duties?
Ms. West: I could see the Privacy Act being one of those in particular.
Senator McIntyre: We heard from the Privacy Commissioner this morning. He was satisfied with the bill.
Ms. West: Yes. I haven’t given that much thought. Realistically, the Criminal Code of Canada would also be another big one. There are limitations in the Criminal Code about mischief to computers and improper use of a computer, which, depending on CSE’s activities, would be a violation of the Criminal Code. So that would be another significant act I would see where they would run up against a legal prohibition quite regularly. I’m sorry, I can’t provide you with any more than that.
Senator McIntyre: That’s okay. Any idea how these proposed authorities compare with those provided to the signals intelligence agencies of Canada’s Five Eyes?
Ms. West: That’s a complex question. Currently, Canada would be the only signals intelligence agency, if passed, to have the capacity to engage in active cyber operations without reliance on the military and their authorities. That’s quite significant, in my opinion. In Australia, for example, and the U.K., their signals intelligence agencies have the capacity for foreign intelligence collection. They also have the capacity to assist the military in their operations. Even in the United States, they have the capacity to engage in defensive operations. But the actual authority for the signals intelligence agencies to operate independently of the military in a foreign jurisdiction is unique to Canada among the Five Eyes, which I think in part is due to the fact that our military — unlike the United States, for example, which has a strong, robust cyber-command within their military to engage in those kinds of operations, we don’t have that in our military, so we will be relying on our signals intelligence agencies to do major cyber operations. But it is unique to Canada.
Senator McIntyre: My next question is to Ms. Zwibel. As you have indicated in your opening statement, if Bill C-59 is enacted, the CSE would be empowered to collect publicly available information. Under the proposed CSE Act, publicly available information would include information that is available to the public on request, by subscription or through purchase. The proposed CSE Act would also allow the CSE to use, analyze, retain or disclose publicly available information without ministerial authorization. What does this suggest? Does it suggest that the CSE would leverage its data mining capacity to provide intelligence products to others, including CSIS?
Ms. Zwibel: I will allow my colleague to answer that.
Ms. McPhail: That’s certainly one of our concerns. The definition of “publicly available information” again is very broad. Essentially, everything on the global information infrastructure or otherwise that can be acquired, even through purchase — again, with no qualification as to whether or not prior to purchase it has to be assured that the information was acquired or compiled legally or is composed of legally acquired information. That’s big.
We know that despite the exception for personally identifiable information, it’s possible in the age of big data analysis to take small pieces of information, whether or not they’re personally identifiable, aggregate them and analyze them in ways that have impactful effects on individuals and groups of individuals. The individual concerns often boil down to privacy, but the group effects extend more broadly to things like equality rights and issues around discrimination and bias that can come into play in that kind of analysis, free expression rights and the chilling of online or offline behaviour to the extent that people feel their activities are going to occasion national security attention.
There is sort of a broad suite of concerns we have around the widespread intelligence-led collection of publicly available information.
Senator Richards: I have two questions here, and the first one is a little bit off-centre. It’s just that there is so much information now on the Internet and Facebook. People give up so much information that so many Canadians are vulnerable, not only to it being collected by CSIS but by anyone else who has bad intentions for Canada. How do you look at that with your own policy? How do you cope with the idea of Canadians giving so much information about where they live, where they’re going, how many people are in their family and where they work? All of this is on the Internet for millions of Canadians.
Ms. McPhail: You’re absolutely right. I think there would be an amazing role for this house and, more broadly speaking, the Government of Canada to play a public education role in helping people understand exactly what they give up when they plaster the details of their lives across the Internet.
However, I also think, to some extent, the dangers that come with the widespread public posting of information online have snuck up on us. It happened slowly over time, and we’re just now coming to grips with what it might mean for people and what the risks and benefits are, if any, for us as a society in having this kind of information available to look at, to analyze and to consider.
In terms of our policy, what we do in each case is look at precisely those risks and benefits. When it comes to information-sharing with agents of the state for public safety purposes, there are particularly high duties on the government and those agencies to make sure that their collection and use and disclosure of information is compliant with particularly their obligations under the Charter of Rights and Freedoms, because there are so many things that can go wrong with the widespread analysis of information right down to behavioural modification.
Senator Richards: Thank you.
My second question is to follow up from Senator Dagenais. Ms. Zwibel, you were talking about Canada and the court, but in a fluid situation where you’re gathering information on something and you come across information you did not expect, and because of that your investigation turns and you do something else, perhaps, in collecting that information, you arrest not only the guilty but the innocent. These are things that are going to happen within any investigation to protect the public. How would you react or look upon that?
Ms. Zwibel: Certainly we don’t have an expectation that our security services operate with perfection, but there is an obligation that they are forthcoming with the court when seeking authorizations, and when new information arises that they didn’t anticipate when they obtained a warrant, that they might go back to the court to disclose these developments. I think now there’s been enough guidance from the courts for the security services to understand those obligations.
It’s not a standard of perfection, but these are services that operate largely in secret, that have an impact on people, and it’s not the same type of situation as you might have in a criminal trial where there’s going to be a defendant who can test the evidence and has an opportunity to challenge it. It’s largely a dialogue between a judge and the security service. That’s why the duty of candour is particularly important and why we expect so much from our security services. It’s to ensure that there’s compliance with the law, and particularly with the Constitution and with the Charter of Rights.
Senator Richards: Thank you.
Senator Manning: Thank you to our witnesses here today.
I’m not a permanent member of the committee, but I’m interested in what’s happening here. Last night, I was reading through some recommendations you put forward. I’ve sat on many committees, and there is always an organization or individual who will come forward and propose two or three amendments. Your organization, if I’m correct, has proposed 60 amendments to this bill. I know some of them may be housekeeping items, but I’m sure, when I look through some of the amendments, they’re very important amendments from your organization. Unless I’m reading it all wrong, I doubt we will be accepting 60 recommendations. Maybe I am wrong.
The purpose of any recommendation is to improve the bill. We hope to improve the bill. So if you look at the top three recommendations that you have put forward here to make this bill more compatible to your organization and to Canadians as a whole, what would they be?
Ms. Zwibel: It’s difficult to narrow down what we’ve done. Where we think the most benefit would come from is in putting the active and defensive cyber operations under the realm of the intelligence commissioner so there would be some oversight of those functions. The other has to do with the definition of publicly available information that my colleague has already talked about.
I don’t know if you have a third. We talked about this before, and we had, I think, five, so there are certain things to narrow. Probably the other would be the recommendations we make in relation to the intelligence commissioner’s mandate and expanding that mandate, not just with respect to the cyber operations but in other areas and ensuring that there is a greater transparency with what’s going on in that before that commissioner.
Senator Manning: Your seventh recommendation suggests removing subclause 4 so that the intelligence commissioner may serve only a single, non-renewable term, in this case subclause 4 is to be made longer than five years. What are you suggesting there?
Ms. Zwibel: Because the intelligence commissioner is meant to be a quasi-judicial officer, we’re concerned both about the actual independence and the appearance of independence. So the recommendation to serve a single term as opposed to a renewable term would, in our view, ameliorate the concern that the intelligence commissioner would in some way be beholden to the government of the day. If there is no opportunity to be reappointed and there’s just a single term, there is greater independence or, at a minimum, a greater appearance of independence.
Senator Manning: Ms. West, in relation to gathering information, if there’s not necessarily a foreign government but an entity within a foreign state that is planning an attack on Canada in some way, shape or form, and we’re trying to gather that information the best we can without violating international law, I’m just trying to decide how far we can go in relation to the violation of that law while at the same time trying to protect Canadians and keep them safe. Where is the line in the sand here? I know it may be in law, but I’m more concerned about where the line is in the sand in reality.
Ms. West: There is a distinction between intelligence collection for the purpose of protecting Canadian national security and active and defensive operations. When we’re talking about intelligence collection, we’re thinking more along the foreign intelligence collection mandate of CSE. The lines are blurry at international law when it comes to espionage. The collection of information or espionage at international law is not per se illegal, which is why I haven’t made the same recommendation I have for the CSE’s intelligence collection mandate, because, depending on your interpretation, and again I’m not currently aware of what the government’s interpretation of the application of international law to cyberspace is, there is an argument to be made that espionage is not a violation of international law. Therefore, it could be collected without having to make the amendment. What you do with that information, if you do some sort of kinetic action with that information under the active or defensive cyber mandate, that’s when the prohibition against the violation of international law would start to stymie the actions of CSE.
Senator Manning: Ms. Zwibel, when you were making your remarks, you touched on the fact, if I understood you correctly, that a person is notified they are on the no-fly list and they have a 60-day period to correct that. From your remarks, I understand you don’t think that’s long enough. Should we look at extending that process?
Ms. Zwibel: The problem is that the 60 days start to run from the time you’re denied transportation, but there isn’t actually anything in the act that requires you to be informed that you are on the list. You may not be aware that that’s why you’ve been denied transportation. In general, it’s a problem that would be solved by requiring people to be advised that they are on the list and that it’s why they’ve been denied transportation.
Senator Gold: I’ll try to be brief in my questions because I’m hoping you will elaborate in your answers. It’s a question to both the Canadian Civil Liberties Association and to Ms. West, and it’s two parts. Both of you have expertise in different respects on the question of rights and freedoms and their application in this area, and thank you for your recommendations and the attention you’ve paid to this bill.
The general question for both of you is this: Standing back from the particularities, because all bills can always be improved and nothing is perfect, can you give us your general evaluation of whether Bill C-59 does a decent job in accommodating our concerns for security and the protection of rights? And can you compare it to the status quo or the current state of the law, since this bill has not yet passed? That’s the general question to both of you.
The specific question has to do with the role of the intelligence commissioner. CCLA has recommended that the commissioner be involved in overseeing active and defensive cyber operations. That’s not a view that’s always subscribed to. Others say the oversight is really the Minister of Public Security, and whether consultative on defence or actively involved when it’s active cyber, the Minister of Global Affairs, that there is the whole political accountability and oversight at the front end. Again, could you speak to that specific issue?
Ms. West: Generally, I will say that I am pleased with Bill C-59 and the advancements it’s making for national security in this country. I am measured in my tone because I did work on the bill for CSIS so I want to disclose that when singing its praises.
I will say there are aspects of this bill that our national security agencies, from my experience as a lawyer in the military and the Department of Justice, desperately need and can only be granted to them through legislation.
CSE needs these new powers, and Canadians need to understand what this powerful organization does, and the first time they’re going to get a clear picture is through this bill. There are important changes for the no-fly list. The no-fly list kid situation is something that is egregious and needs to be fixed. I’m happy to see it addressed here.
I actually say that the bill constraints CSE too much. In certain respects, the law has handcuffed CSE. But I think part of that is that the drafters of the bill and those who have introduced the bill seem to be quite focused on ensuring Canadians understand that, throughout this bill, respect for Canadian rights and the Charter of Rights and Freedoms is top of mind for all agencies that are implicated. For that reason, I’m quite happy with how Bill C-59 has come out, but yes, you’re right, there is always room for improvement.
On the second issue of the role of the IC, I do not agree that the intelligence commissioner should have a role in supervising the choice to engage in active or defensive cyber operations. I believe this is purely the role for the executive. As you mentioned, it will be decided upon by the Minister of National Defence whether or not CSE can engage, and if it’s a defensive measure it has to be in consultation with the Minister of Foreign Affairs, and if it is active has to be either at their request or with their consent. Given that this is an executive function typically to engage in an active or kinetic, if you would, activity outside Canadian jurisdiction in a foreign state to protect against the state and Canada’s sovereignty, I don’t think that’s something a quasi-judicial officer should have power over.
Ms. McPhail: Standing back from the particularities, which is obviously deeply difficult for us to do, we also believe that Bill C-59 is an improvement over what preceded it, particularly with respect to the incredibly important improvements that are being made to the accountability and transparency of the national security agencies. Just eliminating the siloed oversight or review powers of the CSE commissioner and SIRC and creating NSIRA, with its broader scope, is a fundamentally important move for Canada to take in relation to national security law.
The big caveat to that, and, frankly, my concern, has not been ameliorated but exacerbated by the expert testimony of our colleague here, is that we really haven’t come to grips with all the implications of what it means for Canada to engage in active cyber operations. I would qualify our opinion that this bill is a significant improvement despite the small details we would like to bring up with the fact that we have grave hesitations about whether we’ve had the public debates, the conversations where the government talks about their attitude or their policies about what it means to engage in active cyber, where we’ve grappled with the intricacies of international law and considered what risks that opens our security services to as individuals and also Canadians as individuals. Therefore, I think our initial recommendation that the active cyber provisions in the CSE act could be severed from the bill in order to make the rest of it stronger would hold.
In relation to the IC, should that not be the case, I think it’s reasonable to question, again given the intricacies and deep and broad lack of knowledge we have about what this could look like, given the fact that Canada would be a pioneer in this area, that our allies are not doing this now, it would be prudent to have an independent quasi-judicial officer looking not necessarily to play a role in deciding whether or not the minister can issue an authorization but at minimum advising the minister on the sort of intricacies of international relations that are being raised in relation to this and also the risks that doing this might raise for the rights of Canadians at home and abroad. So we would reiterate that because of the complexity of active cyber, we do think that some additional oversight function or advisory function to the executive body is necessary.
Senator Gold: Ms. West, you mentioned Canada would be unique in having its signals intelligence agency be responsible for cyber. You explained that in terms of the lack of capacity in the military. But could you clarify which of our Five Eyes allies have the capacity, even though they do it differently, to engage in active cyber?
Ms. West: Actually, the Australians were first of the Five Eyes partners to come out and say they engage in offensive cyber operations, and that was in 2016. The United States also engages and has more publicly stated that they engage in offensive cyber operations. The U.K. has come out and said they engage in offensive cyber operations and, along with that, have given an explanation of how they interpret international law to allow it to engage in offensive cyber operations. New Zealand is the furthest behind of all the Five Eyes. They are still in the consultation/consideration phase of developing their cyber policies.
The difference between the U.S., the U.K., Australia and Canada in enunciating their offensive cyber-op capabilities is that that was generally coincided with some explanation of the state’s understanding of international law and international cyber norms as they applied to offensive cyber operations, which has not happened here in this country. That is a significant difference.
As I mentioned, in those other countries, their signals intelligence agencies play a role in engaging in cyber operations, but it’s through assistance to their National Defence forces.
Senator Gold: Thank you.
Senator McPhedran: What we’re starting to realize is that the risk to security is often from inside our own country. You will likely have gone through the special article on the weekend by The Globe and Mail dealing with White nationalism, and the evidence builds that the murders committed by domestic terrorists have a strong link to White nationalism. We also know, for example, that our Chief of Defence Staff, General Vance, is very concerned and has stated publicly his concern about the predilection for certain members of the Armed Forces to White nationalism and their involvement, for example, in social media groups, some examples of which we saw in the Globe’s research published over the weekend. We also know that the White nationalists have a very strong attraction to guns and the use of guns.
My question is really about Bill C-59 and the changes in terms of protections, respect and concern that it might not be adequate for Charter rights. My question is to all panellists, as you see fit: What about the Charter rights of the White nationalists?
Ms. Zwibel: I get the distinction of saying, yes, White nationalists, like every other Canadian, have Charter rights. Although I in no way want to minimize the threat and the danger that these people and these groups pose, I think we have to think carefully about slipping between what the ordinary criminal law can do and what our national security laws are about, and whether we need the hammer of the National Security Establishment to deal with what could be characterized as really a basic criminal law issue. I don’t think that we have seen the evidence that our criminal law doesn’t have the tools that it needs to address those problems. I do get worried when we start to characterize issues that we have traditionally left to criminal law as national security matters and the additional powers that come with the agencies that are responsible for overseeing our national security and the lesser role of our courts in overseeing how those functions are carried out by national security agencies. The benefit of the criminal law is that we have a process that requires a trial where a judge can assess the actions that have been taken by police and determine whether there have been violations of Charter rights. In the national security world, that operates much differently.
Senator McPhedran: I just want to note that, generally speaking, we rely on our criminal law after the fact — so after the terrorism, after the murders, then the criminal law kicks in. My question was also geared to preventative measures.
Ms. Zwibel: We do have criminal provisions that deal with advocacy and counselling of offences that I think could capture some of this. Again, some of these in Bill C-59 are amendments to the Criminal Code that would deal with counselling of terrorism offences. I think that the Criminal Code is up to that task.
Ms. West: I largely disagree. I think that for too long we have considered White nationalism and right-wing extremism as solely a police matter. For that reason, it hasn’t gotten the attention it needs as a terrorist and extremist movement. I think that we do need the tools provided to our security intelligence agencies to investigate that threat to Canadian security in the same way our security agencies have been investigating Islamic extremism. Just because we have hate crimes on the books, that tends to be how we tend to deal with White nationalist-type sentiments when, in fact, it would fall squarely within the definition of terrorism. There shouldn’t be a difference based on the underlying ideology in how we investigate these deep threats to Canadian security. For that reason, I think that we should be using all the tools in the toolbox we have, both pre- and post-crime to deal with this growing threat to Canada.
Senator Dagenais: Ms. West, Bill C-59 puts the law ahead of safety. This is probably because we have time to discuss it, and we are not a future target for terrorist attacks. I’m presenting a hypothetical case, but I think I’m not far from the truth. What kind of reputation would we have as a country with our allies if our security services had to discover a terrorist plot based on cyberinformation that was discovered and collected on our territory by a foreign country? We will impose restrictions and delays on the work of our agencies. These are things that could happen.
Ms. West: My translation was a bit fuzzy, so I will attempt to answer you as best as possible.
I believe your question was with respect to working with our allies to share information with respect to cyber threats. I don’t know that Bill C-59 addresses that from a CSE perspective other than, as Senator Gold pointed out, when the Privacy Commissioner was here earlier, talking about sharing information that could be derived from torture or could contribute to mistreatment. Otherwise, in terms of our allies, I think the key addition here is that now Canada will have the tools to take care of threats itself. CSE will not only be able to receive or share information about cyber threats, they will actually be able to do something about it, which right now they are limited in doing stuff. They are taking preventative measures if the threat is directly targeting federal infrastructure. They are quite limited. This expands Canada’s capacity to take the information we receive from our allies and do something about it, which I think is an important addition, as opposed to potentially relying on our allies to take care of threats to Canadians’ security on our behalf.
Senator Dagenais: Will Bill C-59 still impose restrictive measures on our security agencies?
Ms. West: That’s correct, but I think with great power comes great responsibility. These are significant new powers for our agencies, and I believe that they are appropriately constrained, especially with respect to the CSE act.
Senator Dagenais: Thank you very much, Ms. West.
The Chair: On behalf of the committee, I would like to thank you all for coming today and sharing your views with us. It’s very much appreciated. Thank you.
It’s our pleasure to have with us today Professor Mendes from the Faculty of Law at the University of Ottawa; Professor Craig Forcese from the University of Ottawa; and Professor Nesbitt, Faculty of Law, University of Calgary. Welcome, gentlemen. Professor Nesbitt, I understand you’ll begin.
Michael Nesbitt, Professor, Faculty of Law, University of Calgary, as an individual: Let me begin with a sincere thank you to all of you for the work you are doing and, of course, for inviting me to appear before you to talk about Bill C-59. It really is an honour to be here today, and I mean that.
Let me begin by expanding on one salient point that I really want to drive home, which is that Bill C-59 represents the largest change to Canada’s national security landscape I think ever — certainly since 1984 and the creation of CSIS. It’s a complicated bill, as you now know, and one that struggles meaningfully — and I would say laudably — to find an effective, secure and rights-based balance to national security and liberty in Canada. For this, all of those involved with its conception and drafting should be praised.
The bill is also a timely one for our age. It’s imperative that it is passed in some form in the very near future, I believe, and very likely before Canada’s fall election. There is so much in this bill that brings Canada’s national security practice into the 21st century, and, frankly, it does so almost 20 years into that 21st century. I’m thinking here particularly of the section relating to CSE, which you’ve just heard about, which is absolutely imperative to the effective operation of that agency and, indeed, to Internet and even election security.
It’s also well past time that the so-called “no-fly list” situation is remedied. These poor families should — I think self-evidently — not have to endure another second of their Kafkaesque predicament. As honourable Canadians, it’s time we act.
Finally, it’s beyond time that Canada has a national security and intelligence review committee that brings us more in line with our Five Eyes partners. This is especially important given the scope of the new powers and the increased information sharing that now takes place both within government and with our partners overseas.
Having made my pitch for the bill as a whole, I don’t want to leave you with the impression that I think it’s perfect as such, so I wanted to make three small recommendations with respect to the CSIS disruptive powers as found in Part 4 of the bill. For my part, these three small recommendations are not inconsequential. Each of these I view as important from both a national security and a civil liberties perspective. Let me repeat that. I think that these recommendations will provide both additional support for CSIS operations, and thus for national security in Canada, and ensure that these extensive new powers for CSIS are exercised with greater and more substantive oversight and challenge, ensuring the protection of liberty and, frankly, the constitutionality of the powers.
So what are these three recommendations? The first one is to further limit CSIS’s Charter-limiting disruptive powers to reflect their accurate scope. What do I mean by that? As you know, new section 12.1(3.1) will read that the service may take measures that would eliminate a right or freedom guaranteed by the Charter of Rights and Freedoms essentially with a judicial warrant. I ask you, will CSIS be able to limit the right of legal counsel guaranteed under section 10 of the Charter or the right to be presumed innocent until guilty under section 11(d)? If the answer is yes, as a plain-language reading of that text might indicate, then we have a rather serious constitutional problem. I suggest the answer is no. The Charter-limiting power really only applies to section 2, your freedoms; section 6, your mobility rights; and section 7, or part thereof, the right to liberty and security of person, though not to life. In fact, the new section 20.1(18) is going to impose a series of limits on these Charter-limiting powers, which would seem to prevent many of the Charter rights from ever being limited in practice, so sections 10 and 11 in practice are probably, though not clearly, unlikely to ever be limited. This is obviously a strong new check on CSIS’s broad and indeed unprecedented powers and therefore a good one. But I ask you, if the intention is never to limit sections 10, 11, 13, your voting rights, et cetera, why offer such a robust, explicit Charter-limiting authority in new section 12.1 in the first place? The short answer is, you shouldn’t.
I submit to you that the new section 12 Charter-limiting power should itself be directly limited by spelling out precisely what Charter rights can be limited. This amendment offers two benefits. First, it ensures transparency and certainty with respect to what is actually being allowed in practice. Again, there is no harm in limiting these powers further if that is already the intention of CSIS. If that is not the intention and sections 10 and 11 might indeed be limited by these powers, then I have grave concerns, and again it would be very good indeed to hear about it, and I will add, hear about it for the first time, before this bill is passed.
Second, presuming that CSIS has no intention of ever limiting the section 10 and 11 powers, my proposed amendment is important because it speaks directly to the constitutionality of the regime. The CSIS disruptive regime is constructed so as to turn on a section 1 Charter save. To do so, the powers will have to be minimally impairing, not over-broad, et cetera. But if the grant of power goes beyond what is acceptable, and indeed goes theoretically beyond what CSIS even wants or needs, then not only is there no security benefit to this extended power as currently worded, but there is a constitutional concern with respect to its minimal impairment and that constitutional concern exists for no good reason.
Second recommendation I would have is again a simple one. It is to introduce special advocates to the section 1 warrant process. I have seen numerous descriptions comparing the proposed CSIS disruptive powers regime to the police powers regime under section 25.1 of the Criminal Code or perhaps to the police warrant regime found variously in the code. This is inaccurate in practice. In practice, the CSIS regime will look little like the police warrant regime. While warrants might similarly be authorized during ex parte in camera hearings, police warrants will almost always be challenged in the adversarial process in open court once they are executed. The same will rarely, if ever, be said for CSIS disruptive warrants.
More to the point, the CSIS regime contemplates a full section 1 Charter save during these hearings, something unique to Canadian law. That’s, of course, fine, but section 1 saves cannot and should not be determined in ex parte in camera hearings with only the state and a warrant-authorizing judge present. Introducing the well-known concept of so-called special advocates into the disruptive warrant regime would go a long way to remedying the process. Indeed, if you don’t do it, in all likelihood, the Federal Court is going to anyways.
The problem is that this is a debate for the legislative branch. It should not be left to the Federal Court to invent necessary, well-known procedures that we all know are probably going to come to pass when they could just as easily have been inserted into the legislation in the first place. I very much doubt that the CSIS regime can survive without special advocates, or amici, as they will be called if the Federal Court does it, to participate in the section 1 challenge, and as such I see it as incumbent on the government to insert them into the regime, just as they did, by the way, with the Immigration Refugee Protection Act in similar ex parte in camera hearings and just as they did with recent journalism source protection legislation, et cetera.
This brings me to my final recommendation, which is to introduce a requirement that CSIS return with the special advocate present to update the Federal Court on the exercise of the Charter-limiting warrant. The Federal Court already seems to have introduced a practice like this, whereby CSIS is asked to return to the court to update it on the execution of its warrant. I would think the Federal Court would almost once again invariably have to do the same in order to save the CSIS disruptive regime under a section 1 challenge — that is, to be constitutional, they are going to have to require that CSIS come back and explain how they executed the warrant. Again, that’s fine, but courts should not be put in the predicament of legislating necessary and well-known procedures in the face of government inertia. There is no reason why this wouldn’t just be spelled out in the bill. Police warrants are the gold standard, not just because of the authorization process but because the actual execution of the warrant can be compared to the authorized warrant and the actions of the state challenged subsequently in open court. The process does not exist in the CSIS disruptive powers regime. If you know anything about the police warrants process, you will know that what is actually authorized and what actually takes place will often differ, not because of misfeasance or because of malfeasance, but simply by dint of necessity. The same will be true for the CSIS disruptive warrants, and we should be planning for that eventuality now.
It is best that the legislators make these changes. It is best that these protections are enshrined in law, not left to the best graces of our judiciary. The debate should be open, here, rather than in closed courts, to ensure that the CSIS disruptive regime is upheld as constitutional and thus is able to operate to protect all of us and to protect the liberties of Canadians. I ask you to consider these three small and simple changes. Thank you for your time.
Errol Mendes, Professor, Faculty of Law, University of Ottawa, as an individual: Thank you very much for inviting me. I have prepared a written brief.
I also asked the clerk to have it translated. I don’t know if it’s available.
If it isn’t, it should be available soon.
Bill C-59 is a crucial update, in my view, to Canada’s national security laws correcting many of the issues introduced by the previous bill, C-51. Although, like my friend, it is not perfect, it makes substantial changes that improve transparency and review over Canada’s national security agencies while enhancing the ability to keep Canada and Canadian interests safe.
Bill C-59 will create, in my view, a world-leading monitoring and review mechanism by establishing the National Security and Intelligence Review Agency, NSIRA I’ll call it in short, and finally establishing a stand-alone legislative basis for a whole range of national security agencies, which is long overdue. If there is one thing that makes this bill’s passing urgent, it is on that basis alone, if nothing else.
I understand that the upcoming election schedules may be a constraining factor in implementing many of the legislative changes that I or my friends may make, so for that reason, much of what I’m suggesting could also be done in the form of observations, which could give you then an ambit to think about it and perhaps prepare for a future five-year review.
The most important suggestions I am making, both in terms of observations and amendments, are the following:
Firstly, the intelligence commissioner should review ministerial authorizations for CSIS and CSE not on the grounds of reasonableness, but I suggest a slight change to adding reasonable grounds. I can discuss this with you in great detail. It’s a rather complex area of administrative law, but there is a big difference between a review on the basis of reasonableness and one which is based on reasonable grounds. Again, in the question period, I can go into some of the morass of complexities involved in administrative law issues from that distinction.
Second, CSIS’s use of publicly available information under section 23.1(a) of the proposed CS Act in my view should be reviewed by NSIRA but in cooperation with the Privacy Commissioner. I completely agree with the Privacy Commissioner’s comment this morning that there should be some relationship between NSIRA, the Privacy Commissioner and the ability to interact with the National Security and Intelligence Committee of Parliamentarians, either periodically or at least annually. You would then have both the expert review of different areas from national security and privacy and also the democratic review by parliamentarians. That is critical. I fully agree with the Privacy Commissioner that those things absolutely have to be done. If not by an amendment, they can perhaps be done by observation leading up to the five-year review, when that could then be put into the legislation based on your distinctions.
In my view, when NSIRA reviews records on information-sharing provided to it under SCISA, the Security of Canada Information Sharing Act, it should be done in cooperation with the Privacy Commissioner. Again, there should be a type of reporting relationship between the expert agencies and the Privacy Commissioner leading them to interact again with the National Security and Intelligence Committee of Parliamentarians. I’m suggesting here a way of going ahead with this legislation in large part but ensuring that there are observations that will allow over the next few years for appropriate interactions between the expert monitoring and review and the parliamentarians’ democratic review.
In terms of specific amendments, I suggest the CSIS threat-reduction activity should have a slight amendment. I’ll discuss with you my suggestions in that regard. Again, any threat-reduction activity should be periodically reviewed by NSIRA with reports given to the national parliamentary committee.
Finally, I suggest the procedure for the Secure Air Travel Act, like some of the discussions you had with the CCLA, should definitely include special advocates to represent individuals. Perhaps to anticipate the question from senators, there is a big distinction between an amicus curiae and a special advocate. I fully support the suggestion by my colleague that a special advocate, if at all, should be part of the threat-reduction review by the Federal Court. Again, I stress the big difference between an amicus curiae, who is essentially a servant of the court, and a special advocate, who is specially brought in to represent the interests of the target person. That distinction has not been fully discussed, in my view.
There are more details in those areas that I have just discussed. I am happy to expand in the question period, especially on the suggestion made by me and by the Canadian Bar Association to move the review mechanism for the intelligence commissioner from a reasonableness standard to a reasonable grounds standard. Hopefully we can discuss the complexities of administrative law if we need to get into that. Thank you.
Craig Forcese, Professor, Faculty of Law, University of Ottawa, as an individual: Let me add my thanks to the committee for asking me to present on Bill C-59 today. It’s always an honour to be asked to share my observations with this committee.
I will take about six minutes to offer my overall assessment of Bill C-59, focusing on the pressing need for national security law to create certainty. Second, I’ll flag two issues where I believe some uncertainty may still exist. Then, time permitting, I will say a few words about the next generation of national security law issues that a new government or subsequent Parliament may want to look at.
Let me start by saying I support the bill and consider it the most important national security law project in more than a generation. This assessment reflects the common view that activities taken in pursuit of national security must be lawful, proportionate to the threat, necessary in the context and designed to be effective and efficient. National security law is the set of rules that ideally guarantees these standards.
The greatest single shortcoming in national security law is uncertainty. Uncertainty risks overreaction, as poorly drafted laws facilitate conduct that is disproportionate, unnecessary or inefficient, but it also risks under-reaction as risk-averse agencies fetter themselves with doubts about the true scope of their legal authorities. I believe Bill C-59 generally does a very good job in redressing past uncertainty in current law and in avoiding new uncertainties in the many new powers it accords the security services.
For instance, as others have mentioned, Bill C-59 cures features of existing law that I believe are of doubtful constitutionality, including the present structure of CSIS’s threat-reduction powers, the absence of independent oversight of CSE’s interception of Canadians’ private communications, and the opaque and confusing present drafting of the promotion and advocacy of terrorism offence crime. The amendments to the Security of Canada Information Sharing, now renamed Disclosure, Act also resolve doubts about its operation and reach, and a statutory framework for a redress system for those persons falsely flagged by the no-fly list is long overdue.
I also welcome the proposed National Security and Intelligence Review Agency, a body that finally overcomes serious shortcomings in our present independent review process. The new review body and the proposed new intelligence commissioner have been woven into the new powers in a manner consistent with another important best practice of national security: Trust but verify.
As a result of these changes, including in relation to the authorization regime for CSE’s various mandates and the CSIS data set system, there has been concern that the outcome is complexity. Complexity is, however, not for its own sake but responsive to the very different legal, technological and threat environments in which preserving national security now takes place. That complexity is more than equalled in the equivalent laws that exist in, for example, the United States, the United Kingdom and Australia. The alternative to complexity is ambiguity. As I have suggested, ambiguity brings with it serious risk.
I want to end with this. We’re all professors and we all find things to pick on, so let me flag two features of the bill where I believe there remains some uncertainty. You will find detailed postings about these issues on a new blog that we have started up under the heading of, “A Blog Called Intrepid.”
First, as you know, the new CSIS data set regime includes significant checks and balances on the ingestion of Canadian data sets. Those safeguards do not exist for data sets considered publicly available. It will be very important, therefore, that CSIS not over-claim on what is publicly available, a concept that lacks clear definition. At the very least, these proceedings here in Parliament should lay down a clear legislative history on how we are to understand the concept of publicly available data sets.
Second — and I won’t belabour this because it was well explained by my colleague Professor West — the CSE Act as presently constituted must be interpreted as obliging compliance with international law when CSE exercises its mandates. As Professor West suggested, that gives rise to uncertainty.
There are things left undone by Bill C-59. It is not for a single bill, it seems to me, to accomplish all these things, but, just to name a few, I would also urge the importance of special advocates in not just no-fly proceedings but also in passport-revocation appeals for some of the reasons that people have been discussing. I believe there should also be additional checks and balances on preventive detention powers, which remain part of the law, lightly modified, in this bill. Renovation of CSIS’s creaky foreign intelligence mandate is long overdue. I would add, because it remains a very important central pillar of Canadian national security law, there needs to be a solution to the perennial problem of intelligence to evidence which serves as the most important fetter on accomplishing many of the national security objectives that are front and centre. There is also the perennial problem of going dark — that is, encrypted communications and the question of lawful access. All those issues — certainly the last two — are complex and cannot be drafted on the fly. There is no single, silver-bullet resolution, but they are areas where I believe reasonable and proportionate progress is possible.
In sum, I would say that Bill C-59 is important — I would say vital. In its absence, we will continue to risk a pattern of over- and under-reaction, and that pattern neither protects liberties nor permits the efficient exercise of proportionate powers by the security services. However, national security will remain a moving target, and we must habituate ourselves to regular updates of national security law more frequently than once in a generation to counter the detrimental effects of legal uncertainty.
My thanks for your interest. I’m happy, of course, to address your questions, whether on my remarks or on other features of this important bill. Thank you.
The Chair: Thank you. We will move to questions.
Senator Dagenais: Thank you to our guests.
My question is for Mr. Nesbitt.
With this bill, a new agency will be created in addition to a commissioner, a judge and a committee of parliamentarians. It worries me to see another agency of parliamentarians joining the other three. In terms of effectiveness, it is safety knowledge and law that are at stake. What does politics have to do with controlling our security agencies, especially since the other three that are already in place already report to the Minister of Public Safety?
We are showing that we can’t trust the other three organizations, including a judge. We are setting up an additional control mechanism, and you’re telling us that this will prevent mistakes and abuses. I would like to hear what you have to say about that. I am concerned that the bill would establish a fourth oversight body. This will affect the effectiveness of our national security agencies. In short, if there are terrorists listening to us, they will almost be happy to hear that.
Mr. Nesbitt: If I understood correctly, we’re talking about NSIRA, the national security and intelligence review agency, which is the only new oversight. There’s the intelligence commissioner, of course, for CSE, but that’s really the only new oversight — or review, I guess, in this case — that I can think of with respect to this bill.
The question is whether we need it. I would say in some ways we already have a poor version of it, which, as you mentioned at the beginning, is the SIRC, which oversees CSIS. The NSIRA would be new, but it would be new as in an expansion of the SIRC, so CSIS wouldn’t be getting new oversight, and in fact, arguably they might be getting less in some ways because the NSIRA is going to be spread rather thin. Rather, the new agency will have the opportunity to move beyond just CSIS to look at other organizations.
Let me take a moment, then, to speak to not my experience as a professor but to my experience with government. In almost a decade in government, I would have welcomed this review body. I would have welcomed it not because I think it’s going to be terribly bureaucratic and not because I thought that, when I was working for Foreign Affairs or Justice, we were doing anything wrong, but because I think there are two types of review, efficacy being one of them. That efficacy review will be tremendously important for a bunch of agencies that haven’t had that oversight. I would think of it almost like having a boss who can look into some of the details that haven’t been examined for a long time.
I would be happy to provide examples otherwise, but I suppose my answer is that I don’t see this as a huge administrative burden, although it will be an administrative burden to some employees who are having to respond to some of these details. I see it as good not just for overseeing the agencies and, therefore, the protection of our liberties, et cetera, but for the efficiency of these agencies — that is, to review their conduct and ensure that they’re acting professionally and efficaciously, to the best of our ability, that they’re bringing forth issues that might not otherwise be brought forward within these very large organizations that don’t always have the opportunity to bring forward every little detail with respect to national security that might be relevant. To the extent that answers, I don’t know.
Senator Dagenais: My second question is for Mr. Forcese. What should our allies think of what we’re doing in terms of monitoring security agencies.
Mr. Forcese: Catching up. In all frankness, we are catching up. In 1984, we were state of the art with the Security Intelligence Review Committee. Its remit has been confined to CSIS. We have the CSE commissioner, whose remit has been confined to the CSE. We have not had expert review that crosses the broad envelope of security intelligence services. That puts us on a very different footing than has existed relatively recently in the U.K., but certainly in relation to the United States, in relation to The Privacy and Civil Liberties Oversight Board, for example. In many respects, we are playing catch-up — and I would add catch-up relative to some of our continental allies. Many of them base their model on SIRC, but the remit of their bodies straddles security agencies in a way that we’re only able to do now in Bill C-59, which will extend, as Professor Nesbitt suggested, the scope of review to a subject matter of national security intelligence, not simply to a single agency or handful of agencies.
Senator Jaffer: I first want to thank the three of you for the work you’ve done and the support you’ve given to the Senate over the years in helping us understand the bills. Over the years, I’ve really looked forward to hearing from you. Thank you so much.
Any bill is not worth anything if the communities don’t trust it, if the communities feel that their interests are not being met. I would like all three of you to speak about racial profiling. Will this bill help with racial profiling, or will it even further the issue of racial profiling? More specifically, I want to ask whether the implementation of the new process in the secure air travel act — that is, the no-fly list — can be monitored by the national security and intelligence review agency to ensure that there is no racial profiling. I would like to start with you, Professor Mendes.
Mr. Mendes: Thank you, Senator Jaffer, for the question. I think it is essential, and in a way it addresses the previous question as to why we have so many review agencies. When I was listening to the testimony of the Privacy Commissioner, it became clear to me, for example, that in addition to the expertise of our national security agencies, you needed that oversight to make sure — for example, in terms of the information sharing that we have now given 17 government departments, under SCISA — that there should be a watch-out for things such as racial profiling, and likewise in terms of the no-fly list process we’re now putting in place.
Yes, we have had significant amendments, which I strongly support. It is a huge improvement on Bill C-51. But, again, there is the potential that, even within the improved processes, there could be a form of racial profiling. Again, we need the democratic review of the parliamentarians to basically ask questions on that basis from time to time to make sure those things don’t happen. That’s why we have these different agencies. It’s not that we’re trying to smother our national security interests, but we’re trying to protect the fundamental democratic values and interests that Canadians have as a community.
Mr. Forcese: I would agree with that. I think ultimately it comes down to the phrase I used in my presentation: Trust, but verify. If we don’t have bodies that are sufficiently equipped to provide that verification role, then of course we’re dependent on the trust. As you’ve suggested, where trust is impaired, there is ultimately no solution. Enhancing the capacity of our review bodies to work across the ambit of the security services, whether in the form of expert review like NSIRA or, now, the quite well-developed National Security and Intelligence Committee of Parliamentarians, which is focusing on questions, as Professor Nesbitt suggested, of efficacy and asking questions that perhaps might not occur to a more expert body, pooling those activities — yes, coordinating them, as Professor Mendes suggested — I think creates the prospect of enhanced review that is not redundant but captures all aspects of subject matters that might concern Canadians.
Mr. Nesbitt: I don’t have much to add. I concur with my colleagues.
Senator Oh: Thank you, witnesses, for being here. I have a question for you all. The former director of CSIS, Richard Fadden, testified before the house committee and expressed some serious concerns about the vital role that the intelligence commissioner will have in relation to certain CSIS and CSE activities. I quote what he said:
. . . you will have the agencies, the public safety department, the Department of Justice, the minister, and then an appointed official, who may or may not know anything about national security, determine in the final analysis whether in these variety of activities they can move forward.
He said that:
. . . surely “reasonableness” should be the domain of ministers and of the officials for whom they are responsible.
I need your comments or any concerns that you might have.
Mr. Forcese: I would agree with Mr. Fadden in relation to the CSE mandates on active and defensive cyber. That was an issue that was addressed by my colleague Professor West.
I would not agree with Mr. Fadden in relation to CSE’s foreign intelligence and cyber security mandates. When CSE engages in foreign intelligence and cyber security, they will, however inadvertently, be collecting information in which Canadians have a reasonable expectation of privacy, including private communications, just by virtue of the nature of the globalized telecommunication system. In those circumstances, we have an executive body of government — the CSE — collecting, without warrant, information that in every other circumstance has to be authorized by a judge.
The inclusion of an intelligence commissioner puts in place a proxy approval system not like a warrant per se because a warrant doesn’t really work very well when you are talking about inadvertent collection, but at least there is an independent in advance oversight by a quasi-judicial officer. That’s what makes the foreign intelligence and cyber security mandates of CSE constitutional. In its absence, that collection is, I believe, unconstitutional, and that is why CSE has been sued on constitutional grounds in Federal Court. So I believe it to be a cure to a constitutional problem.
I also would add that if I were the minister, I would take some comfort from the fact that an arm’s-length agency was vetting the approvals I gave in part because, in my minister’s office, I am asked now to approve very technical requirements from CSE. It would be helpful to have an independent officer with an adequate staff looking over my shoulder. I think it enhances the comfort level of ministers. I’ll end there.
Mr. Mendes: I can follow up my colleague, with whom I completely agree, with a specific situation that suddenly was experienced in the United States and I think in part was also experienced in Canada. For example, you may have publicly available information that is not really publicly available information. You have, for example, the Cambridge Analytica situation where data was taken from Facebook without the knowledge of many of the participants in the Facebook analysis and then became part of a political campaign in the United States. Apparently there was one Canadian company involved in this. I’ve forgotten the name of it. That shows you why, when you have the potential for so-called public information actually involving such things as private information taken from Facebook, you need, in addition to the minister having an analysis of the situation, the intelligence commissioner being able to provide some expert analysis to make sure that those sort of things don’t happen here in Canada. So that’s a specific type of situation.
Mr. Nesbitt: I would concur with my colleagues as well.
Senator McIntyre: Thank you for your presentations, gentlemen. I have a couple of short questions.
In the last 40 years, the country has had at least four commissions of inquiry looking into Canada’s national security. McDonald, O’Connor, Major, Iacobucci. My question is how and to what extent Bill C-59 incorporates the recommendations of those commissions of inquiry. Short answers.
Mr. Mendes: I’ll try to give a short answer but it’s difficult for me because I happened to know Justice McDonald when he was going through his examination, which dates me. I think if you look at the progress from what happened with the situation with the McDonald Commission and the issues relating to the RCMP, you should also add, for example, the fact of the dysfunction that happened with the Air India bombing, which actually then created a desire to move forward on that, and then you had the very disturbing episodes that happened with Maher Arar and more recently with the three Arab men who were detained in Egypt and in Syria where there was evidence that even if we want to focus on our national security, things can go dramatically wrong.
For that reason, you start seeing the desire by not just governments but Canadians in general, especially after the Maher Arar situation, to want to come in and put in place a form of review and monitoring that will prevent that, because we as Canadians value the fact that we cannot impose that type of activity on our very multicultural and diverse and inclusive population. So that’s the reason why. I see that starting with Air India, the largest terrorist incident this country has faced, leading up even to the more recent events, which then deal with a new situation such as the mosque killing in Quebec City. I see Canada as trying to, as much as possible, respond democratically and caring about our fundamental values in this situation, and that I think is reflected in Bill C-59.
Senator McIntyre: Mr. Nesbitt, Senator Dagenais spoke about the role of the intelligence commissioner, and in your opening statement, you had concerns regarding the Federal Court. I’m trying to join the two pieces together. My question is this: Would the proposed intelligence commissioner’s decisions be subject to review by the Federal Court and, if so, would it be necessary to amend the Federal Courts Act to provide explicit authorization for review by the Federal Court of decisions by the proposed intelligence commissioner?
Mr. Nesbitt: I’m not an expert on administrative law. I’ll pass this one off to my two colleagues, who are, if that’s okay.
Mr. Forcese: One struggles at all times to be an expert in administrative law. The short answer is yes, the intelligence commissioner would be subject to judicial review under the Federal Courts Act, and no, it would not require any additional amendment because, under the definition of federal board, tribunal or other commission, the intelligence commissioner would fall within the existing jurisdiction of the Federal Court.
I would add that one of the reasons why the intelligence commissioner is anticipated as being a retired rather than a supernumerary judge is to avoid the awkward prospect of a supernumerary Federal Court judge serving as intelligence commissioner and then being reviewable in the same court. That’s one of the reasons why there is a focus on a retired judge as opposed to a still sitting judge.
Senator McIntyre: Mr. Forcese, you spoke a while ago about metadata. The government takes the position that metadata are not private information and therefore that collecting it without a warrant is legal. According to the government, with no requirement to seek ministerial authorization, there would be no oversight of these activities by the proposed intelligence commissioner. My question is this: In your view, what would be the circumstances under which CSE would be required to seek ministerial authorization to conduct foreign intelligence collection and cyber security activities?
Mr. Forcese: Thank you very much for the question. It’s an important question because the prospect of oversight by both the minister and the intelligence commissioner is only triggered in circumstances where now either an act of Parliament would otherwise be violated or the reasonable expectation of privacy of a Canadian would be at stake, and that was amended in the Commons.
An unequivocal example would be a circumstance where the CSE activity might, however inadvertently, collect a private communication, which could be a content-rich communication. I would argue that the concept of reasonable expectation of privacy, post-Supreme Court jurisprudence — and my colleagues would I’m sure be able to amplify that — since cases like Spencer and Marakah and others, now includes what we would colloquially call metadata, at least in the right circumstance. It may not be all metadata. But a substantial amount of what we would have once considered not to trigger reasonable expectation of privacy now does because of the nature of communications. So I would assume that, properly applied, the trigger requiring that intercepts that might implicate reasonable expectation of privacy, those activities would be steered through the ministerial authorization process and thereafter through to consideration by the intelligence commissioner. I think there is enough structure in the act that does that now.
Senator McIntyre: If the CSE information collection was limited to metadata alone, would it be required to seek a ministerial authorization?
Mr. Forcese: If that metadata implicated reasonable expectations of privacy, yes. One of the reasons we don’t see an emphatic requirement that invokes metadata is we don’t want to stale date the statute. Technology changes. If we put in a definition of metadata and the world changes in terms of the technology we all use, then we have a problem: a mismatch between technology and the way we live our lives. Instead, the decision was made to put in place a legal test — reasonable expectation of privacy — that will morph according to the technologies of the day. Obviously, it will be dependent on good faith and rules of what triggers reasonable expectation of privacy by the Department of Justice and those who advise CSE, but I’m much more content with the model that exists now in the amended version of Bill C-59 than the one first tabled on first reading in the House of Commons.
Mr. Mendes: I agree with my colleague on the metadata thing. I want to add that the key ruling in the Spencer decision, in a way, muddied the waters by saying yes, but it’s subject to exigent situations and subject to what it called a reasonable law, so therefore one could argue that Bill C-59 is that reasonable law. For that reason, we don’t have to worry as much on some of the trickier issues dealing with metadata, I think.
Senator McPhedran: I want to invite all panellists to respond as they wish. This is addressing what Professor Forcese I think referred to as an intelligence to evidence conundrum in our country. I wanted to ask for commentary on rating this bill. Are amendments needed to this bill to address the intelligence evidence problem, or are we already looking at a solution when we know that we can have parallel investigations by both the RCMP and CSIS?
Mr. Forcese: I agree with you that intelligence to evidence is the great unsolved dilemma in Canadian national security law and practice. It seems to me it’s the impediment in terms of successful use of the criminal law tools in which Parliament has invested a lot of effort and time. I’m not sure that this is the vessel for doing so because it is a conundrum that raises not just legal issues but also operational issues. There are efforts afoot, and I would hope that those discussions continue. I would encourage this committee to take a watching brief on this to solve intelligence to evidence in a way that grapples not just with the legal issues but also with the operational cultural issues. Once you address some of the operational issues, it seems to me that provides a road map as to what is left that has to be solved in law. I know there are ongoing conversations about that. It’s not something that could be drafted on the fly in this bill. This is already a mammoth bill. My plea at the end of my presentation, as you may recall, is to get into the habit of regular national security law bills so that we don’t end up with sweeping omnibus bills every generation or so dealing with all sorts of accrued problems.
Mr. Nesbitt: I would agree. It’s a huge problem and therefore requires a rather large, long and complicated solution. I think it’s a separate process. We’re about 20 years now from September 11 and the subsequent passing of our criminal laws in this area. It might be a good opportunity to look at how they are working as well in the context of intelligence to evidence. But maybe I can say I hope to see you in four years to discuss those issues.
Mr. Mendes: I have spoken to a few judges who are basically having their own problems in this area. If they can’t handle it, I don’t think we can as yet. We have to figure out ways in which we can start addressing this issue, but it’s a huge problem.
Senator McPhedran: Thank you.
Senator Gold: Before I ask my question, I can’t resist using this as a bridge because, in all seriousness, this is a large issue, and it’s something that in the next Parliament this committee might consider taking up as a study and providing assistance, if assistance would be welcome, for those who are already engaged in trying to solve this issue, so I table that.
This is a question for all of you. Professor Forcese mentioned that uncertainty has negative consequences for national security, and that would include constitutional uncertainty. You mentioned in your remarks a number of areas where you thought Bill C-59 cures, I think was the term you used, features of the existing law that were problematic. We will have other panels after you, so would you comment on at least two areas? One is the disruption powers of CSIS. Professor Nesbitt suggested that your three fixes would cure what you think is a constitutional problem. I wouldn’t mind hearing whether your colleagues agree with you on that. More generally, from the perspective of the current law, what are the constitutional problems that exist in the current law vis-à-vis the disruption powers added in 2015? And the other one is the advocacy of terrorism in general. There has been a lot of activity around that issue in the e-mail sphere, and we’ll have witnesses on that later today. I would like to hear you comment on those two areas and any others you have in mind.
Mr. Mendes: In terms of the threat reduction, another reason why I think passing this bill is absolutely crucial is because if we stay with Bill C-51, I am positive, and I think my friend said so expressly, that it would eventually be struck down under the Constitution. Think about the consequences of that happening if we were to just not do anything and this bill failed.
However, adding the list of actions that are permitted under the threat reduction power doesn’t resolve it completely because, yes, as my colleague just said, there are still potential constitutional violations in that. However, given the fact that there is the potential eventually, in my view, that people will see the light in bringing on a special advocate, I have a feeling that that could remedy it. I don’t think amicus curiae is going to be enough. Finally, however, I think the judges will find ways to start making what is called in terms of remedies, which they have the ability to do, what is called a supervisory order where they can still keep abreast of what is actually happening with that. For that reason, it’s absolutely critical to bring in the democratic review function, to have NSIRA studying the use of these warrants carefully and presenting some of the findings to the parliamentary committee so that you have a constant expert monitoring and then a constant democratic monitoring of this powerful and suspect power unless it is done carefully and coherently.
One final amendment is in my brief that I would suggest. There is this one sentence that says that the director or employee may seek a warrant to go to the Federal Court. At minimum, you should strike out the “may” and put “shall.” In other words, no potential activity can be done or contemplated to be done if it involves a potential Charter violation, and that triggers a mandatory warrant appeal to the courts. It’s in my brief. You may want to look at it carefully.
Mr. Forcese: I agree with Professor Mendes and the two-stage amendments they made here. On the one hand, a closed and enumerated list of powers that can be authorized by the Federal Court that amount to threat reduction in circumstances where at issue is a breach of Canadian law or the prospect of the limitation of the Charter, that list, if you look at the enumerated items, constrains the universe of possible Charter issues that could be in play. That, coupled with the amplification of no-go areas for the service, very importantly taking detention off the table — once you take detention off the table, for many Charter rights that might otherwise be in play, it’s very difficult to come up with a hypothetical of where they would be potentially limited. So the squeeze on the scope of the service, and then the idea that there are enumerated classes for which you receive a warrant, puts us on a much more conventional constitutional footing, but still novel in the sense that you are talking about a closed-door, pre-authorization of activities, such as turning off someone’s phone, which may raise freedom of expression issues, but you’re getting pre-authorization rather than after-the-fact adjudication of constitutionality, which is a bit unusual, but I can’t think of another way of doing it, to be honest.
On the issue of detention, I would add that the service, as best I know, has no interest in being in the detention business. That seems like a fairly easy constraint, avoiding some of the controversies that arose out of Bill C-51 about all sorts of downstream, possible nefarious activities that might arise in the immediacy of some moment.
You asked about the advocacy and promotion of terrorism offence in general provision. That was introduced in Bill C-51. The problem was its template was drawn from the promotion and advocacy of hate speech or hate crimes or hate generally, but it wasn’t built with some of the features that made section 319(2), the hate crime provision, constitutional when that matter was challenged in the Keegstra case in 1990. That instantly raised alarm bells, along with the problem that no one knew what terrorism offences in general really meant. What is the scope of that? That uncertainty, as well as the absence of a parallel structure to what we had in the hate speech context, led many of us to conclude that this was constitutionally suspect. It’s never been used, and there is probably a good reason for that. If I were a prosecutor, I wouldn’t want to touch it with a 10-foot pole.
So I would go back to threat reduction measures. Those threat reduction measures that reach as far as possibly jeopardizing the Canadian law or the Charter have not been used, hence my point about uncertainty. You don’t want to end up in Federal Court and find out those of us who have been doubting its constitutionality were right.
Senator Gold: Would it be fair to say that it would be misleading, if not indeed wrong, to say that the changes that are recommended in Bill C-59 in these two areas weaken the ability of our services to protect us, not simply because they haven’t been used but because of the reasons which you have offered, that they may very well be unusable, and that the agencies know that? Would you agree?
Mr. Forcese: I would definitely agree with that. Right now, you’ve created an uncertainty engine. Of course, there is the peril of being caught out engaging in activity that a court down the line decides is unconstitutional.
I would add that if you engage in threat reduction measures and you’re not tempered in the use of those threat reduction measures and you do something that subsequently taints the prosecution downstream of this threat actor, the risk is that in a criminal court, which looks over the shoulder now of what has been done in the past, you may have an abuse of process claim, and you made it with people who are ultimately unprosecutable because you had untempered threat reduction measures.
Senator Gold: Thank you.
Senator Griffin: My question is for Professor Forcese, and it regards open-source intelligence sharing, following up further on Senator McIntyre’s point about metadata, for instance. Your point about open intelligence sharing where there needs to be more clarification is interesting. Let’s use Facebook for an example. The privacy settings can vary, depending on levels of information that can be shared, especially if you are a friend of a friend on Facebook. Where do you view CSIS drawing the line for open-source intelligence sharing now?
Mr. Forcese: It’s a very good question. It is difficult to give you a definitive answer, but let me try.
You’re right that there is information that is technically available publicly but in which one retains a reasonable expectation of privacy. Imagine hacked sensitive information that is dumped somewhere on the Web. The Privacy Commissioner in a different context has said that simply because it has been dumped on the Web doesn’t mean that you have no residual expectation of privacy in that information. So would that be publicly available for the purpose of ingestion through the data set regime that is at issue in Bill C-59? The answer is, frankly, I don’t know. I know that the service has said — and I think it’s very important that they said this — they will not treat hacked information as being publicly available for the data set regime. I think that’s important legislative history, if this were ever to need interpretation.
My preference, frankly, would be to ensure that nothing in which one has a reasonable expectation of privacy is treated as publicly available, thereby obliging everything in which one has a reasonable expectation of privacy to be vetted according to one of these data set regimes that have these checks and balances. The problem is everything will then hinge on how expansive your understanding of reasonable expectation of privacy is. As the prior conversation suggested, there can be some uncertainty there.
At the very least though, I would hope that there would be a ministerial direction, which is within the power of the public safety minister, specifying in a way that can be changed as technology changes, “The following forms of information are not publicly available and must therefore be steered into the other data set regimes.” That would be a fairly fluid way of addressing this that is not entrenched in statute.
Senator Griffin: Thank you.
Senator Pratte: Actually, this is a follow-up. The bill does not treat publicly available information in the same way in the CSE part of the act and the CSIS part of the act. CSE makes it very clear that information for which there are concerns about privacy is not to be collected. CSIS does it in a more indirect way. In practical terms, is there a difference? Or is it more a matter of just different wording with the same consequences?
Mr. Forcese: I have asked quite often why the difference now exists where you have an amplified definition of “publicly available” for CSE purposes, which now excludes reasonable expectation of privacy information from its ambit, and you don’t on the CSIS side. There are operational reasons, as I understand it, and perhaps some reasons related to legal advice. I’m not in a position to give you the definitive answer. It’s certainly a question worth posing of representatives from the service.
Mr. Mendes: The only answer that I can think of is that the two agencies have different functions. CSIS is very much focused internally, whereas CSE, I think for the most part, will probably be more focused externally than internally, and hence there may be a desire to have different parameters for publicly available information. That’s the only thing that I can think of.
Senator Pratte: For CSIS, the bill provides that with a specific data set, they have to destroy the data set if there is reasonable expectation of privacy that relates to the physical and mental health of an individual, so it sort of narrows it a little. Is this a source for concern, or is it just a matter of different drafting techniques for both services?
Mr. Forcese: They can ingest data sets, and then they decide whether to retain. In between that period, there is a culling process, not only considering whether it’s of any utility, but also certain information has to be removed. Solicitor-client is another example. That exists for Canadian data sets. I would have to check. It might also exist for foreign data sets. There is a mechanism for Canadian and foreign data sets such that if you feed your information into publicly available, it simply isn’t triggered. The question then becomes what data is steered into which bucket. You want to avoid sensitive personal information being steered into the publicly available bucket where you don’t have the checks and balances, hence the importance of understanding what “publicly available” really means and having an adequate definition so those checks and balances you mentioned are put into play.
Senator Pratte: Thank you very much.
Senator Richards: You kind of answered the question, but the expectation of privacy is pretty nebulous in this age. I’m wondering how many legal problems might come up and what that might create in the next little while if this bill is passed.
Mr. Forcese: I think reasonable expectation of privacy and the complexity behind it is being driven by the Supreme Court, in large measure. One of the reasons it’s being driven by the Supreme Court is Parliament has not legislated in this space. My colleague Professor Mendes talked about the need for reasonable laws applied reasonably. If there is no law that governs some of the sensitive information, the court will simply fill the vacuum. It will come up with solutions that perhaps are unexpected, and the knock-on consequences may be deleterious. That’s a plea for the sort of structure we see, for example, with data sets, where there is conscious attention to the need for the sorts of checks and balances that we were just speaking about and anticipation of where the court would otherwise go. If you didn’t have that data set regime with, for example, the idea of some kind of independent authorization or retention and yet opened the gates wide to CSIS ingesting all this information and engaging bulk data set collection, I think instantaneously you are in almost impossible constitutional terrain. That’s where the court would go. So my answer to your question is that I’m more worried about the questions of reasonable expectation of privacy that might arise if we didn’t pass this law.
Mr. Mendes: I completely agree with that. In fact, the reasonable expectation of privacy is going to cause immense problems apart from Bill C-59. You have seen recently with the lawsuits started by the Privacy Commissioner on Facebook. That’s only going to increase dramatically in many other areas, so let’s not focus only on Bill C-59 for this troublesome concept because it’s going to be there in many different fields.
Senator Richards: Thank you.
The Chair: We have two requests on second round. I just ask you to be brief. We’ll start with Senator Jaffer and we’ll finish with Senator Dagenais.
Senator Jaffer: I want to follow up on a question that Senator McPhedran asked an earlier panel on hate versus terrorism. We all know that the online hate against the Jewish community has increased 16 per cent, and it’s increasing. I would like to hear from the three of you as to why we are treating this terrible thing that is happening to our community differently? Shouldn’t that also be terrorism?
Mr. Forcese: I’ll start. There are Criminal Code offences that involve hate, and they have their elements. There are criminal offences that involve terrorism offences, and they have their definitional elements, which are tied to the concept of terrorist activity. To fall into one of those two buckets, you have to tick off the right boxes. I think you can tick off the boxes of both hate and also terrorist activity in the right circumstances.
Why haven’t we seen that in relation to some of the recent events involving mass murders, such as the Quebec City mosque, et cetera? There are a couple of structural reasons for part of that. One is that once you engage in a kinetic act of violence, it’s usually a lot easier for the prosecutor to prosecute you for, say, murder than to prove all the more complicated elements of a terrorism offence, plus our terrorism offences are really geared to preemption rather than reaction. It’s about stopping terrorism before it arises.
That said, in sentencing, it is entirely appropriate for a court to take into account the fact that the activity was, in fact, a terrorist activity in augmenting the sentence. We haven’t seen that. I cannot answer why we haven’t seen that. I’m going to turn that over to my colleague Professor Nesbitt, who spent a lot more time thinking about this.
Mr. Nesbitt: I agree with everything that’s just been said. Having said that, we have two examples where a kinetic action, that is an action that has already been taken, an assault, an attempted murder, has been charged as terrorism, and those are both with respect to Islamist terrorist threats or actions. We have zero examples with respect to far-right extremism. We have more far-right extremists actions —
Senator Jaffer: Why is that?
Mr. Nesbitt: Well, that’s the question then, right? You have a theoretical explanation but which doesn’t apply with respect to one group — small sample size, of course — but seems to apply with respect to another what I would call terrorist group. I don’t have a good answer for that.
Perhaps what I can offer is a plea then, which goes back to what Senator Gold mentioned earlier, which is when we talk about intelligence to evidence, a big part of that is how do you make that evidence usable in court? I think it’s about time we start looking at our Criminal Code provisions and how they are playing out in practice. They were drafted in haste. They were done very well, but they were drafted in haste within a couple of months of September 11, and they were done in 2001. We didn’t have the majority of our decisions really from upper courts until 2010. We’re now 18 years on, and our only real change is the new advocacy provision, which actually, frankly, gets at the heart of this, which is trying to do what we did with respect to hate speech but with respect to terrorism in general.
I think you’re starting to see some of the uncertainties and confusion that crops up, so it might be a very good time to ask that very question. I’m spending a big part of my summer personally trying to research this and answer it and look at what other countries are doing. It might be wonderful for a parliamentary committee of some kind to start looking at those criminal laws as well and thinking about whether there is a better way to go about prosecuting some of this to ensure — I think what you’re getting at — fairness and consistency, to ensure that our laws are doing what they are supposed to be doing.
Senator Jaffer: Thank you.
Mr. Mendes: Can I take a completely different tack with this? Let me put forward something, a fairly controversial thesis. To date, with many of the acts based on hate against minorities, one question is whether there was sufficient preventative actions to prevent it, because to date, there had been a lot of discussion after 9/11 to focus only on preventative actions against certain types of extremists from a certain type of religion, et cetera.
Now, when you have so many acts against racial minorities here in Canada, and we have had the Quebec killing in the mosque, and around the world, this is another reason why the threat reduction provision in Bill C-59 is absolutely necessary, not only for its own sake, but to make sure that you as senators and the security agencies make sure that the preventative focus is not in a way racially profiled and takes into account the emerging threat from White supremacists and from the hatemongers around the world. Here is another reason why Bill C-59 is desperately needed, the threat-reduction strategy. Without it, what do we have? A potentially unconstitutional provision from Bill C-51.
Senator Dagenais: My question is for our three guests. Out of curiosity, as a lawyer, have you ever had government mandates in the past five years?
Do you understand my question?
Mr. Mendes: What kind of mandate are you talking about?
Senator Dagenais: My question is very clear. During the last five years, do you have a special mandate from the government?
Mr. Nesbitt: Do I have?
Senator Dagenais: For the three witnesses.
Mr. Forcese: I have not been an employee of the government. I have done — I do work for the National Security Committee of Parliamentarians.
Mr. Mendes: In 2005-06, I was a special adviser in the Privy Council Office, but nothing since then.
Mr. Nesbitt: I was a bureaucrat with Foreign Affairs until mid-2015 and then have had no dealings with any government since 2015, since I left the government.
Mr. Mendes: I should have also mentioned I’m a commissioner on the Ontario Human Rights Commission too.
Senator Dagenais: Thank you so much.
The Chair: Thank you to our witnesses. As you can tell by the questions, there is great interest in your perspectives. We very much appreciate you taking the time to be here. On behalf of all the committee members, I extend my sincere thanks.
We now welcome to the table, from the Centre for Israel and Jewish Affairs, Shimon Fogel, Chief Executive Officer; from B’Nai Brith Canada, Michael Mostyn, Chief Executive Officer; and Steven Slimovitch, National Legal Counsel. Welcome, gentlemen. Mr. Fogel, would you like to begin?
Shimon Fogel, Chief Executive Officer, Centre for Israel and Jewish Affairs: Thank you very much, Madam Chair. Members of the committee, I extend my thanks to you as well for inviting us to join this important conversation.
I’m pleased to offer reflections on behalf of the Centre for Israel and Jewish Affairs — CIJA by acronym — which is the advocacy agent of the Jewish Federations of Canada and represents close to 200,000 Jewish Canadians from coast to coast.
CIJA has been engaging parliamentarians on the issue of national security legislation for years. We had the privilege of sharing our perspective on Bill C-59 with the House of Commons Standing Committee on Public Safety and National Security, just as we did in response to predecessor legislation, Bill C-51, under a previous government. We’ve done so because the Jewish community has a direct interest in this matter.
Globally, the Jewish community has been disproportionately targeted by terrorists, as demonstrated by a long and painful history of such attacks. Committee members will be familiar with the experience of Israelis who have suffered terrorism probably more than the citizens of any other liberal democracy. Jewish communities worldwide have also been targeted, as seen in terror attacks in recent years at such sites as the AMIA Jewish community centre in Buenos Aires, synagogues in Copenhagen, a Jewish museum in Brussels, a kosher grocery store in Paris, a Jewish elementary school in Toulouse, a Jewish community centre in Mumbai, a synagogue in Pittsburgh and, just 48 hours ago, a synagogue in San Diego County. Our community knows first-hand the imperative to ensure our laws are effective in protecting Canadians from such threats.
Our view is that Bill C-59 generally strikes the necessary balance between safeguarding individual rights and providing security agencies with the tools they need to ensure public safety. However, we are deeply concerned by one key aspect of the bill: the amendment to the Criminal Code provision outlining what is now known as advocacy and promotion of terrorism.
Bill C-59 will redefine this offence as “counselling terrorism.” Minister Goodale, in recent testimony to this committee, made a reasonable and compelling argument in support of the term “counselling.” As the minister noted, “counselling” is consistent with other Criminal Code provisions. Compared to advocacy and promotion, the term “counselling” enjoys greater legal clarity and broader familiarity among law enforcement and prosecutors. CIJA takes no issue whatsoever with the new term for this offence.
However, the description of the offence is sufficiently ambiguous as to warrant a modest clarifying amendment. As currently worded, the new offence would apply to “every person who counsels another person to commit a terrorism offence.” This wording suggests that the offence exclusively pertains to one who counsels another specific individual. Criminal law experts with whom CIJA consulted shared with us the concern that this creates a potential loophole that could be exploited in courts by extremists, be they jihadists, white supremacists or others seeking to inspire terrorism. One can imagine such a defendant, after counselling social media followers to commit terrorism, arguing before a future court that they simply published rhetoric before a general audience and did not directly counsel another specific person.
I was encouraged that Minister Goodale, in his testimony before this committee, confirmed he welcomes potential amendments. Just as important, the government affirmed in the same meeting that it shares the goal of ensuring the law applies to those who issue calls for terrorism before broad audiences.
It is worth recalling the testimony of Doug Breithaupt, Director and General Counsel of the Department of Justice’s Criminal Law Policy Section, who told this committee:
. . . The words “another person” indicate that one person is counselling somebody else, and that somebody else need not be limited to a specific person or one person. So the target of the accused incitement has to be a person, but it does not have to be a particular individual or group.
This observation is vital, so much so that it must be explicitly reflected in Bill C-59 so that the intent of this law is never misunderstood by a future court.
This is crucial, given that those who seek to inspire terrorism often use technology to broadcast their message to online audiences. Canadians who have participated in radical Islamist terrorism in recent years, whether in Canada or overseas, have often done so after consuming jihadist lectures and content online. Recent acts of White supremacist terrorism against synagogues in Pittsburgh and San Diego County, as well as mosques in Christchurch, were committed by attackers who had delved deeply into online propaganda. The ability of police to intercept those who counsel others in their virtual network to commit terrorism must not be impeded by ambiguity in the law itself.
There’s an existing model in the Criminal Code that offers a simple but effective formula. The offence of instructing to carry out terrorist activity explicitly applies, whether the accused instructs a particular person or even knows the identity of the person being instructed. This reflects the fact that terror groups can be structured so that operatives do not know the identity of one another. The law on counselling terrorism should mirror this language to ensure it applies when perpetrators call on broad audiences to commit terrorism.
This amendment could be achieved by taking elements of the text currently included in section 83.22(2) of the Criminal Code — that is, instructing to carry out terrorist activity — and adding it to 83.221(2) in Bill C-59, which is the counselling the commission of a terrorism offence, inserting the following subclauses after the existing statement:
An offence may be committed under subsection (1) whether or not—
— and here are our specific applications —
(b) the accused counsels a particular person to carry out the terrorist activity;
(c) the accused knows the identity of the person whom the accused counsels to carry out the terrorist activity; or
(d) the person whom the accused counsels to carry out the terrorist activity knows that it is a terrorist activity.
This amendment would provide consistency in the Criminal Code, as well as clarity for police, prosecutors and courts in interpreting this provision, and it would definitively secure the objective of this law as affirmed by the government in Mr. Breithaupt’s testimony: to ensure that those who counsel large audiences to commit terrorism can be held accountable for their dangerous actions.
Honourable senators, that was the limit of the contribution we wanted to offer the committee. I thank you for your time and would welcome any questions or reflections that you have. We’ve left with the clerk copies of the proposed amendment for your consideration so that you can reference it in your deliberations. Thank you.
The Chair: Thank you, Mr. Fogel. It has been distributed to all senators.
Michael Mostyn, Chief Executive Officer, B’Nai Brith Canada: We thank the committee for inviting us to appear. I will provide some introductory remarks, and my colleague, Steven Slimovitch, National Legal Counsel to the League for Human Rights at B’Nai Brith, will be pleased to address questions on the legal issues attached to the proposed legislation.
We are particularly pleased to join you today, the day that B’Nai Brith is launching our latest Annual Audit of Antisemitic Incidents in Canada, aspects of which bear on the points I wish to raise.
The year 2018 proved to be another record-breaking year for anti-Semitism in Canada, with an over 16 per cent increase in recorded anti-Semitic incidents. In the shadow of this weekend’s devastating attack on Chabad Synagogue outside of San Diego, there can be no starker example of the serious rise in anti-Semitism worldwide.
B’Nai Brith Canada testified before the House of Commons in 2017 and in February 2017 on what was then Bill C-51. We also elaborated our concerns with Bill C-59 in February 2018 before the House of Commons Standing Committee on Public Safety and National Security. Our testimony today will develop the same points we have previously expressed. We will focus on specific areas that touch our work, particularly Part 7.
Our latest Annual Audit of Antisemitic Incidents in Canada contains a key truth: Jews are consistently targeted by hate and bias-related crimes in Canada at a rate higher than any other identifiable group.
In the past, B’Nai Brith has been supportive of measures to empower security officials to criminalize advocacy and promotion of terrorism and seize terrorist propaganda. We supported these measures to deny those intent on inspiring, radicalizing or recruiting Canadians to commit acts of terror and who seek to exploit the legal leeway to be clever but dangerous with their words.
Bill C-59 seeks to change the law’s articulation of this offence from advocacy and promotion to counselling the commission of a terrorism offence. This, in our opinion, is a weakening of the law, which we believe is unhelpful.
I’ll now turn it over to my colleague, Steven Slimovitch.
Steven G. Slimovitch, National Legal Counsel, B’Nai Brith Canada: Thank you. We have noted the assurances provided by the Minister of Public Safety and Emergency Preparedness, but we are still uncertain that such a change, which in our view weakens the law, is needed. The change from “advocacy and promotion” to “counselling” also impacts on the definition of terrorism propaganda. Bill C-59 would remove “advocacy and promotion of terrorism offences in general” from the definition. This also is a weakening of the law.
We accept that the right to freedom of expression is an important consideration, but the right of potential victims to be free from terrorism and the threat of terrorism must be of greater priority. It is a fundamental human right. Freedom to kill, to assault or to advocate those actions are not.
The Minister of Public Safety has identified a real problem: failure of prosecutions under the existing law. Proposing a new law that either duplicates an old law that is not used or, alternatively, that adds concepts perpetuating the uncertainty that the old law generated, are not the answers. The prosecution of existing terrorism-related offences needs to be given a higher priority and greater resources, and there needs to be more international cooperation.
The importance of a clear articulation of the penalties for advocacy and promotion of terrorism includes the glorification of terrorism, something that should be of concern to all of us and which we believe has not received sufficient attention.
In the case of Bill C-59 and the alternative of making existing law more effective, why can the government not publish advisory guidelines on the concept of advocacy or promotion of terrorism? These guidelines would not bind prosecutors but could help dispel uncertainty.
These are specific points I wanted to raise. I have a number of other points, but given the time constraint, I’m only going to mention one of them. We also referred to this issue in our audit.
We have suggested that more diligent use of the tools that are available at the disposal of authorities be used. We need to address what can be done to have existing municipal hate crime units more diligently pursue instances of hate crimes or hate speech to ensure charges are laid where appropriate. Under sections 319(1) and 319(2) of the Criminal Code, police do not seem to be reporting to the Attorneys General, a shortcoming that needs to be rectified. There is a lack of consistency in qualifying offences as indictable, for which there is no statute of limitations.
Those are our submissions. Thank you.
The Chair: Thank you very much. We’ll now move to questions.
Senator Jaffer: I want to thank all three of you for your presentations. I also want to offer condolences based on what happened yesterday. I watched the rabbi, and it was gut-wrenching. Your press conference this morning brought to a head the 16 per cent increase of hate crimes just this year.
In all of your three presentations, you spoke about terrorism. I’m not judging; I’m just wanting to learn. This morning you called it “hate crimes.” I’m concerned we treat one community that is under a real threat with hate crimes. I personally think it should be called what it is. We should name it terrorism. You have studied this more. I would like your view as to why we are not just calling it terrorism.
Mr. Mostyn: Thank you very much for the question.
First of all, with respect to the press conference this morning, it was with respect to anti-Semitism in general, both anti-Semitism in society that is below the criminal threshold and that also meets the criminal threshold in Canada. The League for Human Rights has been monitoring and publishing this audit since 1982 to talk about anti-Semitism in particular, but of course, it is very useful to see the trend lines for hate generally in society.
To your point, when it crosses the threshold and becomes an issue of real terrorism, the motivations should not matter. It should be judged the same way whether it is for political or religious reasons. If an individual has been targeted in an act of violence because they are a member of an identifiable group, it should be loudly and clearly called out by government and civil society for what it is. I agree entirely with that.
Mr. Slimovitch: We have to recognize the difference between a hate crime or a hate-motivated crime and terrorism. You can easily have a hate-motivated crime that’s committed inside a country that has nothing to do with the overthrow of the state. It’s extremely important. I can remember a number of years ago trying to speak to the various policing authorities in Quebec, trying to push the idea of a dedicated hate crimes unit. The answer that I was consistently given — at least in the Montreal sphere — was there’s no need for it because there is no hate in Montreal. Okay. But the next development was the Sûreté du Quebec set up a hate crimes unit inside their anti-terrorist division. The difficulty with that is it negates the idea of, if you will, a local hate spewer, so to speak, and it focuses the idea solely on somebody who’s trying to overthrow the country. They’re both crimes, and they both must be punished accordingly.
Mr. Fogel: Senator, the genesis of the concept of terrorism was rooted in seeking political advances with a very particular agenda. In that regard, we can almost look at terrorism as more of a tactic than a set of beliefs that drive action. But in point of fact, I don’t think the two terms are binary or mutually exclusive. You can have a terrorist act that is informed or motivated by a particular hatred that simply replaces a political rationale that maybe some non-state actor adopts in order to advance their political agenda. I would be a little concerned about becoming too focused on the semantics of it as opposed to identifying what the sources are and what the strategies are in order to address it.
Senator Jaffer: Thank you.
Senator Dagenais: Thank you to our guests. My first question is for Mr. Fogel. We know how much the Internet can encourage people with terrorist intentions and those who support them. You rightly raised the completely unacceptable provision in Bill C-59 that eliminates the offence of promoting terrorism. I think terrorist or racist propaganda should be prohibited without restriction. What do you think is the reason for this change in the legislation?
Mr. Fogel: Thank you for the question, and please permit me to respond in English so I can be precise and clear and because you have a time limit on how long you’re here for the day.
I’m going to take the minister at his word. The intent was to better calibrate the language and the intention so that it balanced the competing imperatives and gave law enforcement officials, as well as those who are part of the judiciary, the necessary tools in order to move forward.
Mr. Slimovitch made reference to section 319 of the Criminal Code. We share the frustration with the lack of action on the part of law enforcement in laying charges and the Crown prosecuting those cases. We encountered this when we went through the debate about section 13 of the Canadian Human Rights Act. At the time, we took note that if the government intended to abolish section 13, it had to provide within the criminal court not just the capacity but the political will to the Attorneys General across the country in order to carry forward with this.
In our effort to balance between free speech and freedom from hate, we’re trying to calibrate it properly, and the intent of the bill is to provide the necessary tools without being so broad as to chill the capacity of society to engage in a reasonable conversation about things. While I share with you the desire to see genuine hate removed from the Internet, I think that horse has left the barn. Our challenge now is how to provide safeguards to address it and to push it to the margins so that it is never normalized and seen as part of legitimate public discussion.
Senator Dagenais: My next question is for Mr. Slimovitch. Don’t you feel that the government has just closed the door on the use of the terrorism-related charge for people who commit crimes? I’ll remind you in particular of the attack on Quebec City’s great mosque. If so, how do you explain the government’s behaviour?
Mr. Slimovitch: First of all, I would say that the fact that the authority is prosecuting the fiat has never been explicitly stated, either in the act or in the regulations, and this is a major problem. Within B’nai Brith, we met several times with Crown counsel, particularly in Montreal. Examples have been given of certain acts of a hateful nature, whether graffiti or assault, but Attorneys General are often reluctant, whether in Quebec or elsewhere, to give their consent.
We have often asked about the scales and criteria for deciding to prosecute. The problem we still see is that we cannot publish these scales, which remain a kind of judicial secrecy. It appears that Attorneys General discuss with their colleagues and decide whether or not to prosecute. This is a major problem.
Senator Dagenais: Thank you.
Senator Boisvenu: I would like to apologize to our witnesses for my slight delay. I would also like to express my sympathy for the events that may affect your community, in Canada or elsewhere in the world.
A few weeks ago, the Minister of Public Safety appeared before the committee and I questioned him about the change made to Bill C-59, which consists of replacing the offence of advocating or promoting a terrorism offence with the offence of advising the commission of a terrorism offence. I then told the minister that, if I were a defence lawyer, I would be very happy with this change, because it really weakens the relationship between the person who is going to promote or advocate an act and the person who is going to commit that act. With regard to this question, I think it will be much more difficult to prove it.
If we look at what is being done in France and other countries such as Australia, we have just tightened up the notion of an offence related to incitement, regardless of its form. We know that today’s social networks are very powerful when they convey images of incitement to violence.
Last week, the leader of the armed group Islamic State, Abu Bakr al-Baghdadi, appeared for the first time in a video that was promoting terrorism. If today we had only this video as evidence of incitement to terrorism, which of the two pieces of legislation—Bill C-59 or Bill C-51—would make it easier to lay charges?
In other words, will Bill C-59 make it easier to lay charges, or does the definition in Bill C-51 make it easier to lay charges?
Mr. Slimovitch: I’ll answer that question very directly by saying that there’s no question, at least in the case law that exists right now, that counselling is a much tighter, much more specific, much more direct action than advocacy or promotion. The idea of removing advocacy and promotion, which would have caught a larger net of people, and bringing it down to counselling is a problem. That’s exactly why we think it should not be changed.
Senator Boisvenu: As legitimate as the government’s intentions to improve Bill C-59 with respect to incitement to terrorism-related violence on social networks may be, the question arises as to whether this bill is really suited to these new methods of contact between terrorist groups and youth in virtually every country. Will Bill C-59 meet the challenge?
Mr. Fogel: I don’t want to duck the question, but I think that it’s really important that honourable members of the committee understand that if we think that we are going to address these kinds of problems with one tool, then we are just setting ourselves up for failure. There are a lot of layers. There’s a lot of context. It isn’t simply about trying to use a legislative instrument to shut something down that is well beyond being shut down. We simply don’t have the capacity to do that. To ignore the other elements that have to be brought into the equation in order to get a handle on hate, in order to create a separation between the toxicity that exists out there and somehow insulate our society to the best that we can against it, we have to take into consideration that there are multiple components to that strategy.
Bill C-59, or its predecessor Bill C-51, alone is not going to address the problem in and of itself. Right now Parliament is also looking at multiple other issues, such as online hate, which itself is a huge issue. Just wrapping our heads around the number of messages that go out on social media every second, let alone every day or every week or every month, is almost beyond our ken to understand. There are elements that will effectively be addressed by other instruments.
I suggest that with the particular issue that we’re looking at, there may be a nuanced difference between B’Nai Birth Canada and CJIA on the particular wording but the intent is the same. We are talking about individuals who are deliberately and intentionally going out not just to incite hatred directed against a particular group or multiple groups, but rather to provide them with the inspiration and the ability to translate that sentiment into something tangible and real. So the only question in that regard is: What do we have to provide to our officials, be they law enforcement or the Crown or the courts, in order to be able to push back and hold to account those that are seeking to transform hate into an act of hate?
In that context, I would suggest that it’s less about which writ large is a more effective piece of legislation and approach it in what my wife calls the salami method, which is going section by section, slice by slice, and testing whether it is reasonable and makes sense to use a particular formula in order to address the specific desired outcome of the intent of the legislation.
I think over here, if we would be successful in adding the amendments that we proposed to the legislation, it would provide the necessary tools to our officials, and it would address the intent of the legislation, which is to hold accountable those who are seeking to prey on individuals, to take their words and translate them into deeds.
Senator Manning: Thank you to our witnesses.
My first question is for Mr. Fogel. You mentioned in your remarks that you heard Minister Goodale saying he was open to amendments. I noticed discussion on a particular amendment has come forward before. Has there been any response from the government to date that you’re aware of in relation to what you are putting forward in regard to advocacy and promotion versus counselling?
Mr. Fogel: My sense, senator, from some discussions that we’ve had, is that they would be open to that. They think it’s consistent with the intent of the legislation. Sometimes you have a circumstance where there’s a reluctance to consider any amendments, but given that the minister has signalled his openness to having amendments introduced, I think that this keeps the faith of the intent of the legislation in a way that would improve it. There are those on the government side who have indicated that they acknowledge it would strengthen the legislation in ways that would be consistent with the desired goal.
Senator Manning: I have a more general question. First, I want to reiterate the comments of some of my colleagues by expressing my condolences to the Jewish community for everything that has happened and certainly in relation to yesterday’s tragedy. I was pleased to see that the rabbi has resolved in showing that terrorism doesn’t rule the day, that peace does and there’s no place for hate in this world.
I quickly looked at your executive summary, and this is more of a general question on lack of accountability. Perpetrators are rarely held accountable for anti-Semitic harassment and vandalism. What do we need to be doing as a society in Canada? I know that through Bill C-59 we’re trying to improve legislation that addresses some of this, but there’s a 143 per cent increase, 16.5 per cent increase over 2017 and reported incidents up over 2,000. Is it the Internet taking us over in regard to anti-Semitism? How do you suggest that we try to educate people on what needs to be done here? It’s definitely going in the wrong direction, in my humble opinion.
Mr. Fogel: Senator, I will offer three quick comments. Let me begin with a comment that a former chair of mine, who sits amongst you, always cautioned me against, which was my tendency to negotiate against myself.
It’s just important for me as a Jew, a Canadian Jew, whose parents came to this country after surviving a most horrendous experience in Europe during the Holocaust and rebuilt their lives and grew a family. It’s important for us, when we’re talking about these things, to place it in a broader context. Canada is the most blessed country in which a minority could live. It is true that there are incidents, and as the B’Nai Birth audit notes, there is a very scary upward trend to those incidents that teaches us something. But we shouldn’t lose sight of the fact that fundamentally Canada is a good place and Canadians are good people and new immigrants are embracing Canadian values for the most part. We shouldn’t be distracted by this from holding on to that as our anchor of hope and optimism.
While I’m deeply appreciative, and I think everybody in the community is, of expressions of sympathy and condolence, let me offer a second remark about that. Yes, a Jewish community has a parochial interest in this, but don’t mistake that for it being a Jewish problem. It’s our problem because what begins with Jews never ends with Jews. The work that this honourable committee is doing is about insulating all Canadians from the threat of hatred and terrorism and any of the other abuses.
Going back to my negotiating against myself, it’s on this issue: all expressions of hate are odious. This is not the most popular view even in my own constituency, but we should be able to distinguish between those things that are born out of ignorance from those things that are expressions of unadulterated hate. Ignorance has instruments and tools that we can avail ourselves of that are much more constructive, much more positive, and include education, sensitivity and people reaching out and getting to know each other so that others become much more aware that some of their actions or attitudes are offensive to others. We shouldn’t commingle those things that have, at their root, issues of ignorance, however deplorable that might be, with those things that are born in hate with an agenda that seeks to destroy. In that regard, I think there is some room for optimism and hope. The work that you are now addressing is about that fractional margin that crossed the threshold from being actions and attitudes that can be addressed through multiple other ways and those that require the remedies of the courts, law enforcement and the like.
Mr. Mostyn: I wish to echo what my colleague was saying because it was very well put. Going back to the terrorism offences, I believe all Canadians are concerned that there are prosecutions and that those prosecutions can go forward in the future.
At B’Nai Birth, we have taken the position to leave it as advocacy and promotion because we believe that those meanings are well defined currently within the Criminal Code. But at today’s audit — and we actually brought these forward last year — there are many ways Canada can improve itself in fighting against hate. I think we’re all agreed that terrorism starts with hate, terrorism starts with incitement, just as various hate speech offences and others do.
There are many things that can be done. Parliament is going forward with discussing the problem of online hate, which we have raised today, but, again, Attorneys General can be publishing their guidelines with respect to sections 318 and 319 of the code, enhanced training for police officers and dedicated hate crimes units in larger cities in Canada. We’ve provided a list of some others for consideration in our eight-point plan, page 29 of today’s audit, which we have provided. However, it will be a multi-layered strategy and it is something that takes time, but it is worth the effort because we all want to keep Canada a safe country.
Senator Manning: Thank you very much. I had the privilege of visiting Israel in January with my 16-year-old daughter and some of my colleagues here around the table. I stress the word “privilege.” It was a great learning experience.
It was reported in The Globe and Mail last fall that the federal Crown prosecutors in Montreal used the terrorism propaganda provisions in the current law in their effort to remove terrorism content from the Internet. Are you familiar with that case? If so, to the best of your knowledge, have those provisions in the current law been used at other times in recent years? We look at the numbers, and 80 per cent of incidents are taking place in online platforms such as Facebook, Twitter and others.
Mr. Fogel: In general, senator, as I think we both noted earlier, there has been a level of frustration at the lack of willingness on the part of the Crown to lay hate-related charges, which changes the whole dynamic of the proceedings against a particular accused. There is this self-perpetuating cycle. Because they know of the reluctance of the Attorneys General to move ahead with the laying of, let’s say, charges under section 319, prosecutors don’t want to sign off on that. Because they don’t want to sign off on that, law enforcement is reluctant to invest all of the time and investigation required in order to bring forward the evidence that would allow for a successful prosecution.
Part of the important work of this committee and of Parliament in general is to set notional expectations, even outside of formal legislation, of the approach that we want our Attorneys General, both federally and provincially, to adopt, and that the appetite for allowing such expressions of hate to go unanswered or unaccountable, as you described it, senator, is exceedingly low. That would be as important an outcome of your deliberations as the particular legislation that comes forward.
Senator Oh: Thank you for your presentations.
My question is to Michael. You may have answered some of it. When you testified in the House of Commons on the provisions in Bill C-59 that replaced the offence of advocacy of terrorism with counselling to commit, you argued that the proposed changes in law weaken the current law and are unhelpful. Specifically, you noted:
We accept that the right of freedom of expression is an important consideration, but the right of potential victims to be free from terrorism and the threat of terrorism must be the greater priority.
In this age of increasing advocacy of terrorism and hate on the Internet, which is leading to terrorism attacks, what can be done to give greater weight to the threat that this represents? You may have touched on some of this before.
Mr. Mostyn: Yes, senator, but thank you very much for the question.
That really was the intent behind my previous remarks, that in no way should this legislation be weakened and in no way should it be seen to be weakened. That’s an important point because, in Bill C-75, which was dealing with interference with religious officials or clergy during a religious service, we made the argument that we were opposed to deletion of that clause from the Criminal Code because it could be seen as a message to certain people out there that this was open. We just felt the timing was wrong, it sent the wrong message and it should stay in.
It should not be seen with the seriousness we have all addressed in this room today about online promotion of hatred, online terrorism, some of which is emanating outside of Canada and may be beyond our reach but some of which could emanate and certainly has an impact on Canadians. That’s what we have to deal with in terms of criminal prosecutions here in Canada.
So we cannot do anything to be seen to weaken the law, and that’s what, in our opinion, it does. We feel the jurisprudence is there for the advocacy and the promotion. We just want to be able to provide all the tools to all law enforcement officials to be able to have successful prosecutions going forward for terrorism-related offences.
Senator Gold: Thank you all for being here. As you know, and others may not know, I’ve learned a lot from all of you over many years, long before I arrived here. Thank you once again for your presence and for all the work you do on behalf of all Canadians.
I want to get back to the bill and to your recommendations just to understand a little better what your position is. I understand the CIJA-proposed amendment because it’s linked very much to the current formulation of the offence and linked to the testimony we heard before this committee. I’m less clear, Michael and Steven, on your position on that amendment. I’d like you to comment whether you would support the CIJA amendment, even though your position, I gather, is that we should leave the advocacy and terrorism ones in place.
On that latter point, I wonder if you could comment on some testimony we’ve already heard. We’ve heard from the Director and General Counsel Doug Breithaupt who was here on April 10 that, in his reading of the Supreme Court jurisprudence, advocacy or promotion has been interpreted by the courts as being active encouragement and, therefore, the equivalent of counselling. The testimony we heard was that there isn’t really a narrowing by the substitution of the word “counselling” for the words “advocacy and terrorism.” That was one point.
Then we heard from Professor Forcese and others in their writings that the current law suffers from at least two problems. One is that the phrase “terrorism offences” in general is not well established in law and produces uncertainty. Also, it lacks the defences around the current law, such as were present in hate propaganda provisions and which were critical to it being saved under section 1 of the Keegstra case. Professors Roach and Forcese and others have said that the current law, salutary though its intent may be, is a constitutional train wreck waiting to happen.
Is it your position that in fact it’s constitutionally solid? I’d would like to hear your comments on that and on whether or not you would support the amendment that Mr. Fogel is proposing.
Mr. Mostyn: Thank you very much for that question, senator.
First of all, dealing with the advocacy and promotion of hatred being distinct from counselling, they are currently distinct offences under counselling, separate and apart from advocacy and promotion under the existing Criminal Code. The offence of advocacy currently exists for genocide, for example. Sexual activity with a person under the age of 18 currently exists for advocacy and promotion, and that’s section 163.1. There’s a general counselling offence under section 22. Section 464 is a counselling offence not committed. The first general counselling offence, of course, only covers if an actual offence was committed.
Our position is really that if the reason and the rationale for the change of the wording from promotion and incitement to counselling is because of the current lack of prosecutions under this, what is being proposed to ensure that a new language of counselling will have active prosecutions? Or will it suffer from the same flaws that currently exist if we are only looking at it in terms of this current language going forward?
There are a lot of lessons that can be learned from international partnerships. As my colleague mentioned before, no country has suffered more under terrorism than the State of Israel, but there are other international agreements. For example, Canada could potentially sign and ratify the Council of Europe Convention on the Prevention of Terrorism, which is open for signature by non-member states, which would include Canada, and there are many lessons that Canada can learn in terms of how to deal with terrorism offences. How we deal with terrorism in Canada is a separate question from whether to term it in the code as counselling or incitement and promotion.
Once again, though, our position is that it can be viewed as a weakening, which is just a signal that we don’t want to send.
In terms of CIJA’s position, clearly if the B’Nai Brith position was not accepted at the end of the day, what we’re trying to achieve here today is the protection of Canadians. We want to see prosecutions under the law. We need to see more education within Crown prosecutors’ offices and not view this as just a one-off. Any change in the law or keeping the wording identical in and of itself is probably not going to do anything. There will have to be broader communications and more education for our Crowns and their investigative and research units to ensure that prosecutions go forward. If that’s what happens at the end of the day, we, of course, would be supportive of that. We want to see terrorism-related prosecutions.
Mr. Slimovitch: I can add one small point. I’ve been listening to this whole discussion, and we had a discussion obviously for many hours on the difference between advocacy and promotion versus counselling. These are the sorts of discussions you often have around a boardroom table in a law office. You’re deciding whether it really makes a difference at the end of the day. What makes a difference at the end of the day are the prosecutions. At the end of the day, you have to ask what is the best way to get prosecutions? There’s no reason to believe that the change from advocacy and promotion to counselling will result in more prosecutions.
For whatever reason, there seems to be a large fog around the idea of the attorneys general giving their fiat for these kinds of prosecutions. Local prosecutors can get authorization to prosecute a murder case easier than you can get to prosecute a willfully promoting hatred crime, because it requires the attorney general’s fiat. There’s no reason in this day and age that that kind of concept is shrouded in great secrecy. These things should be published. You should be able to have discussions about this. That’s the crux, and that’s what will result in more prosecutions. Thank you.
Senator Gold: Just as a follow-up and just to be clear, I think the government’s position — and it was supported by the academics — was that the problem with the Bill C-51 formulation was they felt it was clearly unconstitutional, and therefore something needed to be done. Whether this was the right fix or the amendment was the right fix was a separate matter. That’s my understanding of why this change was effected, because the current law was thought to be literally unenforceable, unusable, because of the constitutional defects that are on its face.
Mr. Slimovitch: Well, the answer I would give is, what’s wrong with section 319(1)? Why isn’t it prosecuted? Why isn’t it used? That’s the fundamental problem. The actual wording of the offence is obviously very important, but it seems that we’ve been spending years without prosecutions. I personally can tell you that I’ve met with Crown prosecutors trying to push these kinds of prosecutions. The answer has often been, “We don’t have authority from Quebec City.”
Mr. Fogel: Just very quickly, I have two points. The first is that while I don’t at all disagree that the goal is to more effectively prosecute those who commit these offences, there is another dimension to the value of the legislation, which is as a deterrent. To the extent that we become more and more precise about who would be captured in the net of those who have been in violation of the law and reduce their wiggle room in terms of what they can get away with in terms of preaching, counselling, advocating and promoting terrorist activity, that also has a value in terms of diminishing the volume that takes place.
The other point goes back to the general one of political will. As Mr. Mostyn noted, we can have any legislation on the books, any elements of the Criminal Code, but absent the political will to implement them, it’s of very little use. I think one of the things we have to see as an outcome of this whole conversation is resolve on the part of all the different pieces of the judicial system and public policy to redouble their efforts to use all of the tools appropriately and aggressively.
Senator McPhedran: In some ways, this is a build on the discussion that you’ve just had with my colleague Senator Gold. To a large extent, the current wording around advocating or promoting and the proposed change in this bill remains a largely academic exercise. I think everybody would agree that it’s the next step, namely, prosecutions, which, of course, build the jurisprudence. This is really by way of wanting to ensure we understand clearly the positions that are taken here. The jurisprudence around the existing wording in Bill C-51 is zero; is that correct?
Mr. Mostyn: We’re not aware of any.
Senator McPhedran: No prosecutions, so we are engaged in a largely academic exercise here.
However, we do have, with considerable reputations, academics who have argued strongly, I think, in a way that has been accepted by the government for the changes that we see through Bill C-59 that there is a problem with advocating and promoting, both in terms of those words and also in terms of the legal defences connected to that offence. Since we have no jurisprudence that would underscore the constitutionality of the wording, but we do have considerable academic commentary that it is likely unconstitutional, can you give us anything on the other side of the argument from academic sources?
Mr. Mostyn: Thank you very much, senator, for the question. Maybe my friend can answer in terms of the academic sources.
Where we’re coming from is a community that has in fact been targeted by terrorism around the world. It’s less academic and more real-world practicalities. I think we’re all agreed and concerned that there have been no prosecutions. There should be when it meets the criminal definition of terrorism, obviously.
I know and I understand that any academic arguments would be made around the issues of freedom of speech because, of course, you never want the net so broad that you are going against those constitutional freedoms for freedom of speech. We understand that and we respect that.
However, freedom from incitement of terrorism and freedom from promotion of terrorism is also a fundamental human right and also needs to be respected. While we may not have seen that much of it yet in Canada, we can learn from other countries with that experience. We should not be in a position in this country where we suddenly have to radically shift the way that we operate and the way civil society is governed to deal with new and emerging threats. We see these threats in other countries in the world. We should be learning from their experiences, and we shouldn’t be narrowing it. We just believe that it’s the wrong time to send that signal. Once again, we believe that it is an equal human right to be free from that incitement and particular promotion.
Senator McIntyre: Thank you, gentlemen, for your presentations, and my warmest sympathies for the recent tragedies that your community and other Jewish communities around the world have been going through.
I just want to follow up very briefly on the offences of advocacy and promotion versus the offence of counselling. I think we’ve pretty well covered that ground, but I just want to add this point. True, there are defences to the offences of advocacy and promotion. Mr. Mostyn, as you’ve indicated, the offence of counselling is covered under section 22 of the code, but there’s no defence to the offence of counselling, surprisingly enough. There’s no defence to the offence of counselling. I’d just like to have your thoughts on that point.
Mr. Mostyn: Well, if there’s no defence to the offence of counselling, then certainly that would seem less constitutional than making the change.
Senator McIntyre: That’s why I can’t understand why the bill is proposing to eliminate the offence of the advocacy and promotion of terrorism and to instead substitute the offence of counselling to commit. That’s beyond me. Thank you.
Senator Richards: Thank you for being here. I was in Israel with Senator Manning, and it was a wonderful experience.
The broadness of the net was mentioned here. Would prosecutors shy away from it because of the fear of lack of ability to get a guilty verdict?
I’m wondering what the position is in other democratic countries concerning this amendment to the act that you propose. Do you know, for instance, how Israel or the U.S. would look at this?
Mr. Slimovitch: I can’t really speak to the other countries. The question of whether the attorneys general would shy away from that sort of brings us back to the original problem. We have no idea, because it’s all a big secret. You have no idea what the considerations are or what the factors are. You have no idea how it’s discussed. You sort of go to a local prosecutor. He somehow sends a message to the provincial capital, and somewhere there a decision is made. That’s the fundamental problem.
Senator Richards: Okay. Thank you.
The Chair: Let me express, on behalf of all committee members, our sincere thanks for your appearance here today. We very much appreciate the perspective, and I share our condolences on behalf of all committee members for the recent loss over the weekend. Thank you again.
For our final panel today, we welcome Wesley Wark, Visiting Professor, Graduate School of Public and International Affairs, from the University of Ottawa; and the Honourable Hugh Segal, Principal, Massey College, University of Toronto, and Chair of the NATO Association of Canada. Welcome, gentlemen. Mr. Segal, I understand you will lead.
The Honourable Hugh D. Segal, Principal, Massey College, University of Toronto, and Chair, NATO Association of Canada, as an individual: :
I am very appreciative of the opportunity to share perspectives on Bill C-59, An act respecting national security matters, which your committee is considering. Thank you very much for your invitation.
As you have been at this all day, I will make my presentation brief so as to give an opportunity for my colleague and to take any questions you may have.
I do so in this context.
The question of national security, always of immense importance and the precise focus of this committee, first became a focus of my own work in the Senate after the Special Senate Committee on Anti-terrorism was created here in the Senate to consider a series of flaws found in the well-intentioned legislation presented and passed by the Chrétien administration after the 9/11 terrorist attack on New York City and the Pentagon in Washington, resulting in thousands of innocent civilian deaths.
The legislation, presented in good faith, was thought by the government to be Charter-proof. It was not. The Special Senate Committee on Anti-terrorism was established to deal with court rulings that the legislation had to be modified to address. This mission was given to the Senate, first, because of the detailed nature of the task and, second, because of the necessity that it be dealt with in an objective, national-interest fashion without the excessive partisanship sometimes alive and well in the other place. I want to pay tribute to one of your colleagues, Senator Mobina Jaffer, who was a member of that committee and who made a substantial contribution based on principle and passion around the issue of rights and their protection during that debate.
Beyond doing its work in a cooperative, fastidious and non-partisan way, the committee also made recommendations for future policy priorities. Two areas of recommendation contributed to legislation either now before this committee or laws already passed and proclaimed.
One recommendation was focused on proper parliamentary oversight of our national security and intelligence operations, opting for the British model, as it was required and believed that a parliamentary democracy should have oversight of its national security operations. At that particular time, we were the only major NATO partner without that oversight.
The other recommendation was around the recommendations from the royal commission of former Justice Major, which considered the aftermath of the Air India explosion, killing hundreds, which still ranks as the most serious terrorist event in Canadian history. This royal commission report wondered clearly and precisely about the lack of active measures and a united joint actionless day perspective between CSIS, the RCMP and other national security agencies — a lack which was seen to be a contributor to what was not done to prevent the Air India tragedy.
The first recommendation resulted in private legislation Bill S-220, which was advanced in this place jointly by Senator General Roméo Dallaire, Senator Mitchell and myself. That resulted in the federal legislation brought in by the present government that created NSICOP, the National Security and Intelligence Committee of Parliamentarians. I congratulate the government and those on this committee who worked so diligently to create this security-cleared, parliamentary oversight body. Its first and most recent report speaks well to their diligence, broad and constructive focus and underlines the value of independent, security-cleared parliamentary national security oversight in a democracy.
The second recommendation helped contribute to the legislation before you today, which in my view is comprehensive, balanced, broadly well crafted and of urgent importance to Canada and Canadians.
No legislation is perfect. Your ability to make policy recommendations about aspects of the bill in your report, interim operational reports that should be forwarded to NSICOP or policy reviews that this and other committees might consider on a regular basis will be invaluable.
Amending this legislation in a way that might put its ultimate passage and proclamation before this Parliament comes to an end at risk would not, I respectfully submit, be in the national interest. In fact, as we are but a few months before our next federal election, failing to pass this bill would make it easier for totalitarian states, criminal troll and other groups from abroad or of the far right or far left to disrupt our election by getting in the way of Canadians making their own democratic decision about who should form the next government and who should sit in our next Parliament.
Recommendations and observations made by this committee will matter greatly. Perhaps seeking a change to shorten the review period from six to five years would be productive. But broad amendments would, in my view, be counterproductive if they slow the lawful engagement through active national security measures in defence of Canada and against those who would imperil our national security, which this bill provides for.
We know that these real threats are more than conceptual. As we have seen in other allied democracies who have had recent referenda or elections, the totalitarian forces that seek to weaken democracies, the legitimacy of the liberal, democratic, rules-based approach to international affairs and global security and commerce, and do harm to national institutions in the democracies, are active, engaged and determined.
The active measures anticipated in this bill and proscribed by judicial preclearance are necessary and should be part of the quiver of options available to CSIS, CSEC, all appropriate parts of the Canadian Armed Forces, including special operations, special forces and military intelligence, to address and get ahead of the challenges arrayed against us from many quarters.
Taking a defensive posture as the only one appropriate is essentially giving the initiative, strategic and tactical benefit to the forces of darkness actively operating in Russia, North Korea, Iran and the People’s Republic of China, not to mention contracted subgroups serving the intelligence, disinformation and cyber attack tactics being employed by the countries I have listed, along with their fellow travellers in the cyber and disinformation sectors.
I refer honourable senators to the superb research and exposure work done by the Citizens Lab at the Munk School of Global Affairs & Public Policy at the University of Toronto for more details should you be interested.
Of course, this bill is not perfect. No piece of legislation ever is. But it is in the national interest, I respectfully submit, for this committee to not let the perfect be the enemy of the good.
The simple structure of what happens when amendments are sent back to the other place is unknowable, but it is likely to be more complex as this parliamentary session, and indeed this Parliament, comes to an end.
Lawful access to active measures is an important instrument Canada and our national security agencies can use to deter, dilute, diminish and deflect efforts by our enemies to destabilize our democracy.
It is important to keep in mind that the most important goal of any national security policy, administration and its active engagement is the protection of democracy itself. Democratic institutions, processes, elections, the rule of law, due process, presumption of innocence, freedom of the press and of religion, respect and the embrace of diversity and human rights should not be taken for granted, especially when we know that strong and aggressive powers, who specifically dismiss these values as signs of our weakness, are eager to see their destruction and dilution in our democracy and others.
This bill does strike the right balance between freedom and security specifically because it protects our freedoms by giving our security forces the lawful authority, reviewable and accountable, to get that job done. A legal and accountable footing makes it clear that we are a society of laws and freedoms, not secret fiats unaccountable to the law.
Allowing CSIS to manage threat reduction and engage actively removes one of the constraints that divided intelligence from active measures and enforcement in the past. The lawful framework makes it doable, possible and constitutional.
When the enemies of democracy abroad are ungoverned by any laws, norms or accountabilities, ensuring that measures can be taken actively to repel and weaken their efforts actually have statutory and prior approval is the right partnership between effective active measures and the rule of law in the democracy we share.
System-wide review as contemplated by this bill is vital if linkages and engagements that involve more than one agency are to be governed by lawful and thoughtful analysis. Any stance other than system-wide review would be counter-productive and unduly emancipate parts of our security apparatus from the sort of system-wide accountability that is both real-time and integrated.
Senators, thank you for the opportunity to share my views today.
Wesley Wark, Visiting Professor, Graduate School of Public and International Affairs, University of Ottawa: Madam Chair and senators, thank you for the opportunity to appear before you to testify on Bill C-59.
The legislation has been through a lengthy gestation and was the subject of some changes in the other place that I believe helped strengthen the bill. My expertise is in the area of intelligence and national security policy, and from that framework, I support the rationale and need for Bill C-59. I believe it is important to consider both the changing needs of our security and intelligence community and the constant requirement to protect our rights. My view is that the legislation addresses some important potential capability gaps for the security and intelligence community, particularly in terms of intelligence collection, while also trying to safeguard Canadian rights. I hope your committee will also scrutinize the legislation from the perspective of what it adds to intelligence powers as well as how it defends rights.
The newest and most forward-leaning elements of Bill C-59 are Parts 1 to 4. They will have, in my view, the greatest impact in the future. It’s those parts, 1 to 4 of the bill, that I plan to address in these brief remarks. I’ll go through these parts individually.
Part 1 and NSIRA, the national security intelligence review agency: This legislation will fix Canada’s laggardly capacity for independent, external review of security and intelligence. NSIRA, in my mind, restores an innovative and leading Canadian review system that will be unique among our Five Eyes partners. That uniqueness, I would add, is nothing to fear. Change in the review system was long overdue, and NSIRA is an eminently workable solution to a heightened need for scrutiny of intelligence and security. It will make Canadian security and intelligence better in the long run and should make a substantial contribution to Canadian public knowledge of important national security practises.
In parentheses, I would support a comment made by the National Security and Intelligence Committee of Parliamentarians in their recent annual report that basically drew attention to what that committee believed was a significant absence of understanding on the part of the Canadian public about security intelligence matters.
Part 2, the intelligence commissioner: The intelligence commissioner injects into Canadian security and intelligence systems something entirely new and very significant: quasi-judicial oversight of aspects of the work of CSE and CSIS. It creates an oversight system in which certain activities of these agencies are subject to preauthorization in a dual-key system involving both the minister and the judicial authority. The challenge in such a dual-key system is to ensure that the role of the intelligence commissioner does not undercut the traditions and importance of ministerial accountability and is sufficiently focused to allow for successful and practical judicial oversight. The intelligence commissioner’s role is to determine that the conditions that allow the minister to issue a certain authorization for intelligence activities have been met. Nothing more than that.
The reasonableness standard applied in the legislation at Part 2, clause 12(b), to define the duties of the intelligence commissioner is, I believe, problematic. It is overly broad, may lead to erroneous public perceptions of the role of the intelligence commissioner as a controlling hand and may, in fact, imperfectly the success of the intelligence commissioner’s mandate.
Part 3 of the CSE Act: Communications Security Establishment has been around for a very long time but was given its first enabling legislation as part of the original anti-terrorism act passed in 2001. Bill C-59 provides not just stand-alone legislation for CSE, which is new, but also gives CSE a significantly expanded mandate. CSE’s current three-part mandate for foreign intelligence, cyber security and technical assistance would expand to five missions, with the addition of active and defensive cyber operations.
I believe these new mandate powers, and I know you’ve discussed them in your previous meeting and during the course of today, which are, it’s important to understand, targeted at operations in the global information infrastructure, not domestically, are necessary. These powers respond to the reality of the cyber realm and the kinds of aggression that is conducted by both state and non-state actors in that realm. Canada needs tools to deal with aggression in cyber space. These tools, these new powers, are also crucial, and I think that is an important point to understand, to the maintenance and success of Canada’s role in the Five Eyes alliance.
They are not war powers, but, I think it’s important to understand, are designed to enhance three things. This doesn’t leap out of the legislation because it can’t. These are policy matters. They are designed to enhance deterrence, the practice of naming and shaming of foreign adversaries who engage in cyber aggression against Canada and ultimately law enforcement and prosecution.
They are also a demonstration that if what’s colloquially called hacking back proves necessary on occasion, it will be a very good idea if that power proved to be a monopoly of the state.
Whether CSE’s legislation adequately protects Canadian rights depends, of course, on how the powers are utilized in the future. But the statutory framework set out in Bill C-59 does try to establish, in my mind, strong protections, notably at clause 22(1), which states that activities carried out by CSE in furtherance of any of its mandate components “must not be directed at a Canadian or any person in Canada and must not infringe the Canadian Charter of Rights and Freedoms.”
There are also references to privacy protections in Part 3 of Bill C-59, and I know that you’ve discussed some of those, including the question of publicly available information. There is also a backstop statement on privacy protections in clause 24 in Part 3 of the bill.
Senators will note that the intelligence commissioner’s oversight powers with regard to CSE extend only to scrutinizing the minister’s foreign intelligence and cyber security authorizations. They do not include ministerial authorizations for active and defensive cyber operations, and I’m happy to provide my own understanding of why that might not be necessary.
There are specific conditions required for the issuing minister in making an authorization for CSE with regard to both active and defensive cyber operations at clauses 34 and 35 of this complex bill.
The new NSIRA will have a mandate, of course, to review the conduct of all CSE operations. It’s worth noting CSE will also be required to publish an annual report for the first time in its long history that goes back to 1946.
Part 4, CSIS Act amendments: There are important amendments here regarding threat-reduction activities and in terms of immunity provisions, but I’ll focus my remarks on the data set regime, which is a complex one involving distinctions between publicly available data sets, Canadian data set and foreign data sets.
This was certainly a question in my mind when the bill was first introduced in the House back in 2017. The service, that is, CSIS, appears confident that it can draw boundaries around these three distinct sets, and there are provisions for doing so in the act, especially with regard to the determination of classes of data sets.
In my view, CSIS does require a data analytics capacity in order to draw useful intelligence out of the vast pool of information that may pertain to national security threats. This requirement was recognized long ago by the service when it first set up a data analytics capacity in 2006. Data analytics is standard practice among our Five Eyes counterparts. Bill C-59 attempts to provide a statutory framework to ensure that such activities are lawful, or clearly lawful, in response to recent review findings by SIRC and Federal Court rulings.
Going forward, and I think this is an important aspect to underline, it will be essential for the service to be able to develop rigorous performance measurements around the effectiveness of its data set regime. In other words, it’s going to have to prove that having these powers is indeed necessary to it, and that has to come about through performance measurements.
There are a variety of measures in Bill C-59 to try to ensure that the data set regime complies with the law. Compliance with the Charter is enshrined in the preamble to Part 4. The intelligence commissioner has a mandate to approve ministerial authorizations for the collection of Canadian and foreign data sets. In addition, judicial authorization, separate from the intelligence commissioner, is required for the retention, querying and exploitation of Canadian data sets.
More broadly, and this is a point that I think is again worth understanding, all classes of data sets can only be utilized in compliance with the mandate sections of the original CSIS act, that’s sections 12 and 16, including the very important reference to the strictly necessary provision around CSIS’s use of intelligence.
Are these protections sufficient? Only time will tell. But it is also important to note that the requirement for record-keeping on the part of the service for data sets and the role that NSIRA will play in reviewing the data set regime are both additional important safeguards.
I’m going to finish on the point that I was going to say, Senator, Hugh Segal made with regard to amendments.
Again, I very much share the view that the perfect can be the enemy of the good. I realize time is tight. I’m sure that, in an ideal world with much more time, many of us who came to testify before you would have a wish list that they would bring with them. I’m going to restrict myself to two proposals for amendments or even recommendations that the committee might want to put forward.
One I think is important, and I am very concerned around the wording of the mandate for the intelligence commissioner. As I said before, my fear is that that wording may be so vague and so broad that it imperils the success of the mandate of the intelligence commissioner or imperils the very idea of having an intelligence commissioner.
The second suggestion is very much in line — we didn’t share notes about this in advance — with what Hugh Segal had to say. The review provisions in Part 9 of Bill C-59 call for a review of this act after six years — after it passes into law, is given Royal Assent, after six years, which means in effect that the very earliest that a review would be completed of the act would be in the seventh year from its passage and probably later than that.
I hope that everyone around the table would share my view that that’s far too long a period in the context of a bill that does make very substantial changes, sometimes revolutionary changes, to our practices and where the threat environment is constantly changing and the technological one is as well. I think it would be a good idea and perhaps an easy amendment to make to shorten the review period.
I would note, incidentally, that when the Liberals were in opposition, when Bill C-59 was being tabled, they were quite happy to propose a three-year review of Bill C-51. Why we ended up with six-plus years for their bill, I’m not entirely sure.
Madam Chair and senators, thank you for your time.
The Chair: Thank you, Mr. Wark.
Senator Dagenais: My first question is for Mr. Wark. I would like to hear your comments on the veto power granted by Bill C-59 with respect to national security operations. What problems might this right of veto cause?
Mr. Wark: I’m not entirely sure what you mean by veto rights. You may be referring to the role of the intelligence commissioner in approving certain ministerial authorizations. Is that what you had in mind?
Senator Dagenais: You asked me a question about the veto power provided for in Bill-C-59. This bill will provide a veto on national security operations. I would like to know what kind of problems this could lead to.
Mr. Wark: I think we’re zeroing in on the intelligence commissioner’s mandate and powers, as I understand the question. There are two dimensions, just very briefly, I mentioned in this regard, and some of this has come up in questions in committee in the other place.
One is the question of a dual-key ministerial system for active and defensive cyber, which requires either the consent or the agreement of the Minister of Foreign Affairs for engaging in one or other of those operations. That could be a kind of veto, I suppose.
The other issue is the question of how the intelligence commissioner interacts, if I’ve understood the question properly, with the minister. The idea that is set out in law is that the intelligence commissioner has access to the information on which the minister made his authorization for a certain activity but is not empowered to question or delve further into the background to that ministerial policy. That may sound like a roadblock.
In my conversations about this and other matters with CSE officials, what they have said is that it’s important for them in Bill C-59 legislation that they have an explicit mandate, which is indeed there, to brief the intelligence commissioner not on specific authorizations but to give contextual briefings. I think their feeling is that that road opening up that contextual briefing for the intelligence commissioner will assist the commissioner in being able to make his or her determination on whether ministerial authorizations meet the conditions that they need to meet.
Senator Dagenais: My second question is for Senator Segal. First of all, I’m glad to have you here, Senator. We will have the opportunity to benefit from your extensive experience in national security. As you so rightly said, Bill C-59 is not necessarily perfect, but if there were one or two acceptable amendments that the current government could make to improve the bill, what would they be?
Mr. Segal: Thank you for your question, Senator Dagenais. First, I think the committee could change the review period from six years to five years, because of the problem that Mr. Wark pointed out. When it takes seven or eight years to do a six-year review, that’s too long. This is a long period of time without a parliamentary perspective on the effectiveness of this legislation. I suggest reducing the review period to five years. If the government were to do that, its ability to implement the bill wouldn’t be diminished.
My second suggestion would be how there is interaction between the Minister of Foreign Affairs and the Minister of Public Safety regarding actions outside Canada. We don’t want to see a situation in which the Department of Foreign Affairs has perspectives that aren’t always entirely related to national security interests. The Minister of Public Safety must be able to say that he has given his colleagues in the Department of Foreign Affairs time to consider the options, but that, after a certain number of days, we must act in the national interest. It would therefore be an amendment that would give the Minister of Public Safety the power to make a final decision after a certain period of time to strengthen the emergency needs identified in this bill.
Senator Dagenais: Thank you, Senator Segal. This is a clear recognition of your experience in the field.
Mr. Segal: Thank you.
Senator McIntyre: Thank you both for your presentations. Welcome back to the Senate, Mr. Segal.
Mr. Wark, you covered Parts 1 to 4. My question has to do with Part 2, the proposed intelligence commissioner. As I understand, you have concerns on the role of the proposed intelligence commissioner. I share those concerns and I’ll tell you why. The Department of Justice describes the proposed intelligence commissioner as an independent and quasi-judicial position. At the same time, the proposed intelligence commissioner could be removed for cause, would operate under a five-year renewable term and would be part of the executive. How can this proposed proposition meet the standard of judicial independence described by the Department of Justice?
Mr. Wark: Senator, thanks for the question.
My concern around the intelligence commissioner’s function is really around the mandate.
In terms of the staffing of that position and the maintenance of independence, I have less concern, except that I think it’s worth noting that it’s going to be a very difficult position to fill. In the current wording of the legislation, it is retired judges. It doesn’t include supernumerary judges, which restricts the pool.
But I think our experience certainly with the office of the CSE commissioner, whose appointment and staffing was very similar to that which would apply to the intelligence commissioner, has been that these commissioners may sometimes take a little bit of time to fully understand the business that they are scrutinizing but have always, I think, demonstrated genuine independence. I don’t myself have concerns about that.
I also think it would be wrong to extend the mandate beyond five years. It’s going to be a complex and demanding job for a retired judge in particular if we think about the kind of age span we’re talking about in that context. A five-year time span, I think, is all right.
I think independence of the function will be guaranteed by the stature of the individuals who occupy that position and, to be honest, by the seriousness of the business that will be at hand for them.
Senator McIntyre: As a follow-up, my concern has to do with the role Parliament would play into this. In other words, if the proposed intelligence commissioner and not the appropriate minister would have the authority to make the final decision about ministerial authorizations or determinations, how can Parliament exercise accountability over these decisions? That’s my main concern.
Mr. Wark: I’ll speak to that briefly. Perhaps Hugh would like to have a word on that as well.
I think this potential tension was something the government was well aware of in drafting the legislation. There have been discussions about preserving ministerial accountability in the Westminster system while adding in the intelligence commissioner.
I think it’s important to understand that the ideal circumstances in terms of a relationship between CSE, the minister and the intelligence commissioner is that CSE comes forward with a proposed ministerial authorization to the minister, which is as watertight as they can make it. The minister, him or herself, scrutinizes that ministerial authorization to satisfy him or herself, and it’s only at that point that a draft authorization goes to the intelligence commissioner. In other words, hopefully there are very few loose threads in it and areas of real concern before it gets to the intelligence commissioner. If the intelligence commissioner finds something wrong in terms of the authorization not meeting the conditions specified in the law, then that draft authorization goes back to the minister, and the minister can fix it, or the minister can raise hell with CSE or a combination of both.
I think it’s meant to be a kind of synergistic operation, and it’s certainly not meant to mean — although the language in Bill C-59 can give rise to this perception — that the intelligence commissioner has the final say. Far from it. The intelligence commissioner does not control CSE. That is a combination of the CSE chief and the minister. The intelligence commissioner is there with a very specific mandate in mind, which is to provide an extra set of quasi-judicial eyes on particularly sensitive operations.
I think the system can work, but I think the way in which the mandate is written needs to be clarified.
Mr. Segal: Senator, I had the great privilege of being the chief of staff to a Prime Minister under the old CSIS Act. From time to time, a request would come from CSIS for the kind of approval that was necessary for them to discharge their obligations while in violation of the Criminal Code. I look at this legislation as a step in the progress of the way in which we oversee security operations. Those recommendations go directly from CSIS to a senior minister of the Crown or the first minister. There was no commissioner involved. No one was involved to provide another level of judgment before it came up for ministerial approval. I see this process as a better process, a richer process, and I don’t see anything in it that limits the ability of parliamentarians, either in this place or the other place, to question a minister’s judgment, to call a minister to account, to make a motion about a departmental budget and to show that the principles of Magna Carta are alive and well, even if only from time to time. Those options are there, and I think this strengthens the overall regime or what has existed before it, with respect.
Senator McPhedran: Professor Wark, you’ve mentioned before that there’s some concern from allies about potential redundancy between the committee of parliamentarians and the review agency. Even so, this morning, the Privacy Commissioner told this committee that his office is still unable to share confidential information or otherwise collaborate meaningfully with the National Security and Intelligence Committee of Parliamentarians. Should the Privacy Commissioner be provided more formal authority to participate more fully with the committee of parliamentarians on concerns related to national security, in your opinion?
Mr. Wark: Senator, thank you for the question.
This issue came up in committee hearings in the other place as well. That is, Bill C-59 does not provide a very explicit role for the Privacy Commissioner as part of this new system of review and oversight.
There were some changes made to Bill C-59 — it’s not the connection you’re looking for — to indicate that it should be possible for NSIRA and the Privacy Commissioner’s office to work together as desired on the part of both of those bodies with regard to reviews that they are undertaking.
It’s a bit elliptical, but you can link that to the specifications in Bill C-22 that set up the National Security and Intelligence Committee of Parliamentarians, which called for a de-conflicting process to make sure that the National Security and Intelligence Committee of Parliamentarians and the new NSIRA would not be stepping over each other. So as the National Security and Intelligence Committee of Parliamentarians decides on its work plan alongside NSIRA, I think if the National Security and Intelligence Committee of Parliamentarians believed that there was a need to incorporate some of the advice and wisdom of the Privacy Commissioner, that could be done informally, or it could be done through, if you like, downloading that question on NSIRA, which has a more explicit mandate to engage with the Privacy Commissioner.
If I can speculate, I think the reason why there wasn’t a similar reference built into the mandate for the committee of parliamentarians is that is — and it’s shown in the mandate of the committee of parliamentarians — the intention of that committee was not to do really deep dives into the operational work of specific agencies where issues around privacy protections and threats to privacy would come to the fore. That’s more going to be in NSIRA’s mandate.
I’m not sure that I can really imagine a circumstance in which future NSICOP work and reporting would suffer from a specific lack and link to the Privacy Commissioner, but it’s something worth keeping our eyes on, and it may come up. There are always informal channels that can be utilized.
Senator McPhedran: Thank you. A supplementary question for both of you before moving to my question to Principal Segal would be — I think I know your answer, Professor Wark, but I’ll be more explicit — an amendment to this bill making it more explicitly permissible for the Privacy Commissioner to share information currently categorized as confidential within his framework, would that be a positive step or would that be an unnecessary step?
Mr. Wark: In my view, it would be a positive step. Again, in the context of not breaking the back of the bill through delays in amendments, I think this will happen informally. I would say that on the part of all the review bodies that currently exist, there’s great respect for the Privacy Commissioner’s special field of expertise, which extends well beyond national security issues. He has a small staff who deal with national security issues, and that staff is often engaged by the other review bodies, again informally, despite the lack of an explicit legislative statute that says he can do that. I think all of that will go forward.
I’d have to search out the specific language currently in Bill C-59 that allows for that link between NSIRA and the Privacy Commissioner, but when I last found it in the bill, it looked okay to me, but certainly worth scrutinizing again.
Senator McPhedran: Thank you.
Mr. Segal: Senator, it’s not for me to advise parliamentarians how to execute their responsibility in terms of the options they choose, but I would make the suggestion as a private citizen that a strong recommendation about strengthening the relationship between the Privacy Commissioner and NSICOP, and making sure it’s preserved with respect to NSIRA, may be as effective and would not in any way slow down the progress of the legislation.
The other point I would make, which is completely within the purview of this committee, is to indicate the matters upon which it will judge the effectiveness of this legislation and the way the law is put into effect. Those criteria are for this committee to define any way it chooses to do.
Your concern about the relationship with the Privacy Commissioner is relevant, because it’s my general understanding — and I agree with Professor Wark — that while NISCOP will be looking at broad policy questions overall in terms of how national security is pursued in this country by our legitimate agencies for so doing, there will be a more complaint-based analysis done by NSIRA because it is replacing the complaint-based work that SIRC used to do under the previous legislative framework.
I leave the instrumentality for parliamentarians to decide, but my own hope as a private citizen is that you would think about a discursive set of recommendations as opposed to an amendment, but that’s for you to decide.
Senator McPhedran: Thank you. Principal Segal, you told us today in your testimony that allowing CSIS to manage threat reduction and engage actively removes one of the constraints that divided intelligence from active measures and enforcement. I think you further said the lawful framework makes it doable, possible and constitutional.
I’m curious about your position regarding the CSIS threat reduction and the divide between intelligence and enforcement, because you seem to be celebrating that the functions will become available under one roof, but that goes against the main finding of the McDonald Commission, that they needed to be separated in response to concerns about dirty tricks and other issues that arose from having intelligence and enforcement conducted by the same organization. So help me understand.
Mr. Segal: By all means. I’m afraid I’m old enough to remember when the McDonald Commission came out. In fact, I was working for a young member of Parliament by the name of David MacDonald, from Egmont, Prince Edward Island, who was the one Member of Parliament to vote against the Public Order Act when it was brought in to renew the War Measures Act. So my early sensitivity on those issues came from a very good and inspirational source.
I think it’s important, if I may say so with respect, to look at the historical evolution of these particular approaches. The dirty tricks engagement of the McDonald Commission around what the RCMP was alleged to have done, and did do in many ways, was really about the lack of any thoughtful policy direction or accountability for RCMP activities. The notion was then made that, therefore, it is important for the analytical frame of national security, that which CSIS was given, to be separate from the executional frame, which was being managed within the old SNI division of the Royal Canadian Mounted Police, with some excess, I think it’s fair to say.
That is very different from the finding of the Major Commission of Inquiry on the Air India explosion and tragedy, where Mr. Justice Major was clear in saying here you had CSIS operatives seeing people exploding bombs in the woods to see if they work, without the power to do anything about it. They didn’t have the power to arrest. They didn’t have the power to interdict lawfully. All they could do was gather the information and share it, which we expect they shared with the RCMP and other local police. The RCMP and other local police have all kinds of other things shared with them on a regular basis, which may have great urgency.
The lack of that coherence between analytical intelligence and the ability to interdict lawfully before something terrible happens was pointed out by Mr. Justice Major as a serious weakness that had to be addressed. That was discussed in great deal in the Special Committee on Anti-terrorism, and that produced the recommendation to join these two capacities up in a fashion that, above all, lawfully prevented bad things from happening to Canadians because of institutional divisions between organizations. That was many years after the excesses that the McDonald Commission of Inquiry Concerning Certain Activities of the Royal Canadian Mounted Police filed its report, as you referenced so helpfully earlier.
Senator McPhedran: So we have a better system with better protections built in and we’re not going to see a repeat?
Mr. Segal: I would argue this bill builds in tremendous protections that heretofore did not exist, moreover. I think Mr. Gates said culture beats practice all the time. The culture this bill is setting up of a lawfully authorized interdiction of bad activities, based on solid data and a series of approvals that are themselves accountable, is a much stronger and compelling culture than that which existed before this bill was put before Parliament.
Senator McPhedran: Thank you.
Senator Gold: Welcome, Professor Wark and Senator Segal.
Issues around this bill, and more generally national security, are so often framed as a trade-off or a competition, a zero-sum game between protection of freedoms and rights, on the one hand, and protection of security on the other. This bill strengthens one at the expense of another, or so we’ve heard around this table or in the chamber. Sometimes it’s an opposition between oversight and review, on the one hand, versus efficiency on the other.
I would be interested in both of your comments as to whether you think this binary or zero-sum way is a helpful way of looking at this bill or the issues generally, or is there a better way to think through the issues of a bill like Bill C-59 and the challenges that it addresses?
Mr. Segal: Senator, thank you for the question.
There arise a series of governments around the world who have stringent, well-financed and intense national security operations, many of which would not meet the basic test of what we consider to be lawful, constitutional, fair and respectful of human rights and presumption of innocence that is fundamental to our way of life in this country. We don’t do security in this country the way Russia does. We don’t do security in this country the way the People’s Republic of China does. We don’t do security in this country the way the Iranian Islamic Republic does. We do it in a different way, and our evolution has been based on a series of substantial events in our history that have been profoundly educational.
I remember when the War Measures Act was applied. I remember when it was applied and brought into effect during World War I. I wasn’t there for that. Some of you may have been there. I was not there for that, but I remember the history. And I remember the difficult decisions the government made in imposing the War Measures Act in 1970 ,and I was one of those who thought that was an excessive decision that was an overreaction to a series of events that could have been dealt with through a temporary imposition of martial law or even through a temporary coroner’s warrant to get all the information necessary to find out why and how someone had died.
That being said, I think the Charter of Rights and Freedoms, which emerged from the pen of the same Prime Minister some years later, was not unrelated to what we learned from the War Measures Act, to the credit of that Prime Minister and those premiers and others who supported him in the constitutional reform of 1981-82 that brought it into effect. That very much affects the way in which we’re going about the shaping of national security now.
What I think is great about this bill, and I think the test that senators may wish to consider applying, is whether this bill reflects the appropriate balance, not the contradiction between the security and the freedom but the balance in the context of the values that define us as a society of laws and as a society of process.
I would argue while no bill is perfect, this does a better job of reflecting that balance than we have seen for many years and, therefore, progress with it, assuming by the way that provisions will be challenged in the courts once it becomes law and is proclaimed and therefore the full majesty of the Charter of Rights and Freedoms and other provisions will be brought to bear in judicial decisions. There may be a committee sitting here in two or three years that will have to make provisions to the bill based on those decisions. There is nothing dishonourable in that. In fact, it indicates the broad breadth of the kind of balance our society seeks to champion under governments of all affiliations, frankly.
Mr. Wark: Senator Gold, I would say first that that binary review, security on the one hand, rights on the other, which do we need to protect, is embedded in democracies, and it is to a certain extent natural. The question is, how can you escape from some of the worst impositions of it, or how can you move away from it a little bit?
The starting point is to say it is natural that we cherish our rights and less natural that we understand less than we should about our security and intelligence agencies and about national security threats. The first step that needs to be taken is a better understanding, through many channels, about the nature of the threat environment, which is constantly changing, and the activities, nature and mandates of intelligence agencies.
One of the strengths of Bill C-59 is that it will assist us in getting to that better place where we can understand the need for both security and intelligence capabilities and protections and rights protections. It will do that in large measure through the kind of enhanced stream of reporting that we will see from the intelligence commissioner, from the agencies, from ministers and from NSIRA as well as from NSICOP going forward.
Through legislative fiat, there will inevitably be a lot more information in the public space about all of these issues, and hopefully a better-informed public will result from that, which will move us away from the simplistic binary where we have sometimes been trapped. I would argue that even as recently as the Anti-terrorism Act in 2001 — and I can certainly remember the debate around that — that binary was present there, and to a certain extent it persists. However, I think we can move away from it. Bill C-59 will help us do that.
Senator Pratte: Professor Wark, I’d like you to elaborate on your concern relative to the mandate of the intelligence commissioner. You’re referring to clause 12, I suppose. Is that it?
Mr. Wark: Yes.
Senator Pratte: I’ve read it a couple of times since you said that earlier. I’m not sure I understand what your concern is.
Mr. Wark: I should preface this by saying I’m not a lawyer and the fact that I have concerns about this may reflect that fact. I don’t mean that just because I don’t understand the law but because I kind of stand in for other informed members of the public who are not lawyers who try to make sense of this.
The reasonableness standard is the issue, and it is embedded, as I understand it, in administrative law. To be honest, I don’t care whether it’s embedded in administrative law and I will never understand what that might mean and I don’t think administrative lawyers understand that either. The concern I have is that if we accept that it’s important that the intelligence commissioner functions well and clearly and be seen to function well and clearly, that mandate has to be more explicit than a suggestion that the intelligence commissioner is making a finding on the reasonableness of the reasonableness of the minister’s authorization. The reasonableness of the minister’s authorization also feeds out into calculations on the minister’s part about proportionality and about necessity.
This is a mess, I think, to be honest. I would do away with the reasonableness language altogether, whatever it means, and be very clear that the role we want the intelligence commissioner to play in this quasi-judicial oversight is not to comment on the reasonableness of the minister’s decision, which undermines ministerial accountability and references a previous question from another senator, but is directed simply at this question: As the intelligence commissioner scrutinizes the information available to the minister in reaching a draft authorization, have all the conditions specified by the minister been met? It is simply about certifying that the conditions under which the minister wants to authorize this sensitive operation have been met in the authorization itself.
I hope that’s some degree of clarification. My suggestion is let’s make sure this is about certification, not about commenting on reasonableness, which gets the intelligence commissioner into a wide space of policy and operational judgment, for which he or she will have no qualification and no real standing with regard to the CSE.
Senator Pratte: Yes, it does make it clearer. Thank you.
Principal Segal, I have only been in the Senate for three years now, so I’m still relatively new. You seem to be sending us a couple of messages, which in some way we will all have to weigh. One is, of course, that this is not a perfect bill but it’s an important bill and we should pass it ideally before Parliament rises because it’s so important.
On the other hand, you mention that you yourself would like some amendments brought to the bill, and there are other suggestions. For instance, the Centre for Israel and Jewish Affairs suggested amendments that would improve the bill, and we have many other possibilities. How should we weigh our role as a chamber of sober second thought in trying to improve bills, especially major bills like this one, and the necessity of passing it as early as possible, certainly before Parliament rises?
Mr. Segal: I hesitate to offer direction in that respect, but I will share with you the way I would have viewed it in your circumstance, and you can make your own judgment on that, senator.
My general view is when a piece of legislation that is of significance to the country is passed by the democratically elected legislature, the Parliament of Canada, the House of Commons, that creates a very strong bias in favour of the Senate doing careful analysis, asking questions, considering some modest amendments but not dealing with the core premises that are fundamental to that act as passed by the house. That would be my initial bias.
I would say while this is not a confidence measure per se and we are not in a confidence chamber, if you think about what national governments have a responsibility for, national security is very much at the top of the pyramid relative to what they have to do on behalf of all Canadians.
I would argue that part of what the committee may wish to consider is not how the bill can be improved or where changes might be made, all of which is completely within the purview of the committee to reflect and report upon. How you choose to report, however, is within your discretion. In other words, an amendment constitutes one way of expressing your view. There are also detailed recommendations about changes that need to be made or matters that have to be taken with very real care and concern or matters upon which the Senate would expect this bill to be judged in a very short period of time, once it’s proclaimed, or matters that have to be considered when regulations are drafted, because the law will only become real when the regulations are in place. That’s a pretty rich panoply of the Senate adding substantive legislative value to the consideration without getting in the way of the government actually taking the bill forward for Royal Assent.
That being said, I think you can categorize — I know this committee has done this before with other matters and with great skill — those amendments that are likely to tip a bill into potential death in the other place versus those amendments that will be seen as constructive and helpful. I would argue there are one or two areas where the committee would have full purview — and they have the right certainly now — but purview to do so without fear of contributing to the end of this important legislation. There are other areas where, by definition, there will be matters of such principle that the government would say, “We’re not there,” and then you’re into a whole other time frame both for yourselves and for the people in the other place. We are 70 days away, or seven weeks, from the end of Parliament, and I know that senators would take that as seriously as anybody.
Senator Pratte: Thank you. That’s very helpful.
Senator Manning: Welcome to our witnesses. Certainly welcome, Senator Segal, who I had the opportunity to share some time with in the chamber. Listening to your vigour today, I question the fact we have mandatory retirement at 75. I certainly enjoyed your advice and expertise over the years.
I’d like to talk about the comments you made, and I have questions to both of you in relation to the independent national security oversight. There is a requirement in Bill C-59 to have more than one minister review and approve potential CSE operations overseas. We know that there’s some concern now dealing with different governments in different places. Is it necessary, in your view, and does it increase the risk that timely operations may be inhibited when we have something we need to deal with in a short period of time?
Mr. Segal: Thank you for that question, senator.
I think my response to Senator McIntyre indicated that I was quite concerned about having a two-ministerial approval process, without suggesting that there isn’t complete coherence and solidarity within every cabinet all the time, every day, which on occasion apparently is not the case in any government. Let’s take an example. You might have a national Minister of Public Safety who is made aware by the commissioner of certain specific proximate national security threats in the short term. You may have a Minister of Foreign Affairs working with her colleague, the minister of trade, trying to negotiate a large trade agreement with a powerful country that may at the same time be the source of the national security threats that the Minister of Public Safety is addressed to deal with. Do I think the Minister of Foreign Affairs and their people should be consulted? Absolutely. Do I think you have to put a time limit on that so in the end national security trumps everything else? Absolutely.
A prescription that says consultation can go on for a fixed period of time, after which the authority of the public safety minister will actually be the one that is deployed, would be, in my view, a way of guaranteeing against untimeliness in the execution of the provisions of this act.
Mr. Wark: Senator, I would just add that I know this issue came up in the other place.
From my point of view, certainly, it would be both necessary and helpful for the Minister of Foreign Affairs and his or her department to be involved in providing consent on active cyber operations, which are probably the most sensitive operations in terms of international affairs and their impact, and the consultation of the minister — not consent — for defensive cyber operations, which would be conducted as abroad. I don’t see this provision in any way likely to delay decision-making or operations going forward. I think the benefit of it is that it makes sure that Global Affairs as a department, with all of its expertise and global knowledge, is intimately tied in with some of these most sensitive operations that the minister in charge of CSE may want to conduct but may not have a full view of the ramifications.
I would flip the question and say I think it would be dangerous to have these active and defensive cyber powers for CSE without a dual-key ministerial system.
Senator Manning: What would be the makeup of the new national security review and intelligence agency? We heard in the other place testimony from Richard Fadden in relation to the time it takes to bring some of the people who will be sitting among that group up to a level where they will fully understand the concerns that are out there.
Professor Wark, you mentioned the possibility of adding to the legislation certain criteria and standards that they would have to meet in order to be part of it to mitigate the time it will take for the learning curve. I’m wondering if you can expand on that and your concern with it.
Mr. Wark: Senator, thank you. I had a kick at this can in the other place; I’m delighted to have a second go.
I made a suggestion when the bill was being considered in committee in the other place in terms of the privy councillors who would be appointed to be essentially the board for the National Security Intelligence Review Agency that it might be helpful to ensure that there was a dedicated expertise on the part of that group. The appointed members should be drawn from people with a certain set of skills — in technology, national security threats, knowledge of intelligence and so on — in order to fully fulfill their functions while they’re serving as part-time members.
There’s a different kind of issue with regard to the secretariat, the staff of the National Security Intelligence Review Agency, but it is equally significant. It’s worth recognizing this challenge. The creation of NSIRA will involve a considerable expansion in terms of the staff needed to support the committee members. The numbers are fluid, but it might take the existing contingent from SIRC, numbering maybe 30, up to as many as 100. Where will those extra 70 people be found in the security intelligence community without either robbing the intelligence agencies of talent they need or getting the wrong kind of people in?
One of the recommendations on my wish list, which I didn’t talk about here, is that the staffing of NSIRA should not be restricted to members of the Public Service of Canada. In other words, it should not be restricted to personnel currently in the federal civil service. You could enrich the pool of resources and solve some of the problems of a quick expansion and getting staff up to speed with that very minor kind of change.
Senator Manning: Thank you.
Any comments on that, Senator Segal?
Mr. Segal: I would only comment that we are facing a challenge in all of our national security organizations, including the Department of National Defence, in making sure that we have the talent necessary on issues of cyber security appropriate to the task.
There will be a competition for good people, understandably. I agree with Professor Wark that limiting the choice to only existing members of the public service would be unfair and inappropriate in terms of the agency’s need to get running competently. That being said, the standards for security clearance and all the rest should be as strict as they are in every other circumstance, but the important part of making a national security enterprise work is to ensure that it, itself, has a diversity of skills.
I remember when the head of FINTRAC came to Massey College to talk about what FINTRAC does and its need to gather upright people to help them in their work. He said, “You may think I’m only looking for people with backgrounds in currencies and financial transactions. I actually need anthropologists; I need historians; I need linguists who can help us figure out the cultural framework within which inappropriate financial transactions might take place.” That kind of diversity will strengthen our national security agencies just as that kind of diversity in many ways, culturally and otherwise, strengthens our armed forces. I would hope the same principles would apply here.
Senator Griffin: I had a question for Professor Wark, but he said he isn’t a lawyer so he has dodged that bullet.
I do have a question for Senator Segal. This goes back to the election and disruption of our election, which is not that far away. It’s less than six months. Will this bill be fully enacted in time to play the role that you’re expecting it to play? Do you see that happening? What else needs to be done besides drafting and passing the regulations?
Mr. Segal: The result of the bill being approved by this chamber and going forward for proclamation and being signed into law and Royal Assent is that the work on the ground to make it fully operational can begin at a much stronger pace. I would be surprised and disappointed if our public servants had not been thinking about what they should be doing should the bill be passed. Certainly I know in the military, they have a strong traditional of planning for any contingency. That’s their duty, to serve the civil authority and to be prepared to so do.
Whatever needs to be done before the coming election is more likely to be done if the bill is passed. If the bill is delayed and, therefore, activities around tactical organizations, structural hiring and the rest are slowed, that only means we’ll be less able as a country to do what is needed to keep our democratic process free from foreign intervention. That capacity will be reduced if the bill isn’t passed. Whether everything that could be done would be done if the Senate did approve the bill remains to be seen, but my instinct is, knowing some of the public servants involved in national security, they are very keen on getting on with the job and protecting the country they serve with great loyalty and determination.
Senator Griffin: Great. Thank you.
The Chair: Professor Wark and Mr. Segal, I express our sincere thanks on behalf of all members of the committee. As usual, it was a very informative debate, and we are very appreciative of the time you’ve taken to spend with us. Thank you very much.
(The committee adjourned.)