Proceedings of the Special Senate Committee on
Anti-terrorism
Issue 2 - Evidence - Meeting of April 30, 2012
OTTAWA, Monday, April 30, 2012
The Special Senate Committee on Anti-terrorism, to which was referred Bill S-7, An Act to amend the Criminal Code, the Canada Evidence Act and the Security of Information Act, met this day at 1:30 p.m. to give consideration to the bill.
Senator Hugh Segal (Chair) in the chair.
[English]
The Chair: This is the fourth meeting of the Special Senate Committee on Anti-terrorism in the First Session of Canada's Forty-first Parliament. Today in our consideration of Bill S-7 we are welcoming officials from the Canada Border Services Agency, or CBSA: Geoff Leckey, Director General, Intelligence and Targeting, Operations Branch; and David Vigneault, Associate Vice-President, Programs Branch.
As we look at Bill S-7, the Combating Terrorism Act — which is a 30-clause bill that seeks to amend the Criminal Code, the Canada Evidence Act, and the Security of Information Act to better protect Canadians against terrorist activities — the committee has tried to meet with some of the critical national protection law enforcement and border protection agencies involved in aspects of the law's implementation should it be passed. In that respect we are delighted to have the Canada Border Services Agency with us. I understand Mr. Vigneault has an opening statement before questions. Welcome to the committee.
[Translation]
David Vigneault, Associate Vice-President, Programs Branch, Canada Border Services Agency: Honourable senators, I am very pleased to be here today. As you said, I am the Associate Vice-President at the Canada Border Services Agency. Mr. Leckey is the Director General of Intelligence Operations. We hope that we will be able to answer your questions here today.
[English]
As the committee is aware, the CBSA is part of the public safety portfolio, charged with upholding national security interests as they relate to border management. This committee has already heard from the RCMP and CSIS on the implications this bill will have on their organizations and their respective roles and responsibilities in combatting terrorism. While the CBSA's involvement with Bill S-7 is minimal, the agency supports counterterrorism objectives in its day-to-day operations. As such, I would like to focus my remarks today on the agency's role within the national security continuum so the committee may fully understand our role as a border management agency.
[Translation]
Born out of the events of September 11, 2001, the Canada Border Services Agency has evolved into an integrated border management agency, delivering its programs and services in a highly complex and dynamic environment. Effective border management requires close and productive relationships with law enforcement partners in Canada and abroad, to meet the dual objectives of keeping the border open to legitimate trade and travel, but closed to criminals and threats to Canada's health and safety.
[English]
The agency's border services officers are trained in interrogation, examination and investigative techniques and are responsible for enforcing the Customs Act, the Immigration and Refugee Protection Act and over 90 other different acts of Parliament. To echo the sentiments of my colleagues from the RCMP and CSIS who have appeared before you, the CBSA is supportive of the legislation as a tool to better assist the justice system and the law enforcement community in interdicting those individuals within Canada who would engage in terrorist activity.
The CBSA's role as a border security agency is key in Canada's counterterrorism strategy. While the agency is not directly mandated to investigate, identify or arrest terrorists we have two main roles: denying terrorists entry into Canada and collecting and reporting on counterterrorism targets.
The initiatives undertaken by the CBSA in this role include collaboration with CSIS, Citizenship and Immigration Canada on immigration security screening, inadmissibility screening of known or suspected terrorists. We also conduct intelligence-based targeting to assist in counterterrorism and strategic export controls of commercial shipments to provide the proliferation of weapons of mass destruction. We are also interdicting inadmissible persons prior to coming to Canada through our CBSA Liaison Officer network in many countries around the world. In addition, we have extensive development and training on the use of detection technology to enable CBSA officers to conduct effective, nonintrusive examinations where possible. As an example, the agency will be using digital fingerprinting machines to capture fingerprints and send them electronically to the RCMP, allowing for faster and more efficient front end security checks for those who may be criminally inadmissible to Canada.
The CBSA is also actively involved in international efforts, including the identification of emerging trends in irregular migration and document fraud, as well as preventing the proliferation of weapons of mass destruction.
[Translation]
The volume of travellers and goods entering Canada each year is staggering. By way of example, the CBSA processed 93 million travellers and 29 million vehicles and released 13 million commercial shipments last year.
Balancing a facilitation and national security mandate requires a layered risk-management approach to our intelligence and enforcement activities. By using risk mitigation, and by leveraging resources with our partners, such as Citizenship and Immigration Canada, the RCMP and CSIS, the Agency can more effectively focus on areas of high or unknown risk.
[English]
While effective partnership and targeting technology are fundamental, the agency's ability to turn the information it collects into intelligence about possible national security threats makes it a critical law enforcement partner. As part of its daily operations, the CBSA shares relevant information on border and national security issues with domestic partners, such as the RCMP and CSIS. Also, the implementation of the Beyond the Border action plan with the United States will assist the CBSA to further its efforts in ensuring that the border remains open to secure trade and travel but closed to crime and terrorism.
Our role is minimal under this proposed legislation. However, as I have outlined, the CBSA is an important partner in the national security continuum and in combatting anti-terrorism. It is within this context that we will continue to operate in the future.
[Translation]
At this point, my colleague and I are ready to answer your questions.
The Chair: Thank you very much for your opening statement.
[English]
If I could, I wanted to deal with your opening comments on page 4 where you say that while the agency is not directly mandated to investigate, identify, arrest or prosecute terrorists specifically, it has two main roles of denying terrorists entry into Canada and collecting and reporting on counterterrorism targets.
As you know, one of the key provisions of Bill S-7 is to be able to create a new offence under the Criminal Code of Canada for travelling abroad for the purpose of committing an act that would be a violation of the Criminal Code in Canada, namely association with, training with and support of terrorist organizations.
You seem to be focusing here on your role as the point of entry — people, goods, services coming to Canada — and that it is your job to police that process with reference to our immigration legislation, antiterrorist legislation, Criminal Code and all the rest. Should this bill pass, do you anticipate any role with respect to those exiting Canada?
I understand there is no legislative basis for exit control as we speak, but many of our allies have such. I think of the Japanese, for example. Many countries in Europe, at some level, do have exit control for non-Europeans. I wonder where the state of policy development in your shop might be on this issue.
Mr. Vigneault: Thank you, Mr. Chair. It is a very important question for CBSA and I have a few remarks on it.
First, as you pointed out, we do not have a specific role in exit control at this point. The CBSA's mandate is much more about protecting Canada and its interests from people and goods coming into Canada as opposed to exiting.
That said, we do have some specific authorities in terms of, for example, currency checks when people are leaving the country. We do that on behalf of FINTRAC and other organizations that might be interested in knowing if large quantities of money are exiting Canada or could help finance terrorism. Therefore, we do have some limited capacity.
As I mentioned in my remarks, the government has signed with the U.S. an action plan on the perimeter agreement — what we refer to internally as the "perimeter vision." Essentially, as part of that, there is a provision for the government to work with the U.S. to develop an exit control. That exit control would have two main elements: One would be at the land border where we would be exchanging information with the Americans to create records of entry and exit in each country, and it will also consist of an element where we would have information on people leaving the country by air or marine. We would essentially be able to collect this information. At this point we do not have this information, and this is a gap the government intends to look at.
The Chair: You are very straightforward in your opening statement to say that you gather information and that you share that with the various enforcement agencies, such as the RCMP and others as may be the case. I assume that is a two-way street. Can you just help us understand? Let us say in an investigation in support of the provisions that are now before us, should they become law, the RCMP or the Montreal police's anti-terrorist squad — or whoever — comes into information about individuals for whom they have probable cause to believe are about to leave Canada for the purpose of joining al Shabaab or some other organization that would be on our list. That information is transmitted to you, as well as the expected time of departure from Canada.
Would that produce any sort of execution on your part, or would you leave that to the law enforcement agencies themselves, should they deem it appropriate and should they have probable cause to be at the airport to interdict such movements should they think that is in the interests of protecting Canadians?
Mr. Vigneault: At this point we would not have the authority to arrest people. However, we would be able to provide information that we have collected through our partners abroad and share it with the proper authorities. If the bill is passed by Parliament, we will have to determine how exactly this will be operationalized. I think when he was here earlier the director of CSIS mentioned that there are a number of the operational elements of this bill that will have to be discussed among partners.
However, you could envision a scenario in which the interdiction or the arrest of the person trying to leave would be done by the RCMP or another law enforcement authority. However, it is quite likely that the RCMP, if it were to execute such an arrest, would rely on information they would have received from potentially CSIS, potentially foreign allies and also potentially the CBSA. If we are able to provide some of the patterns of travel of such an individual, that is the kind of element that an investigative agency like the RCMP would use to build a case by determining the nature of the travel of the individual to see if it would meet the threshold of the new legislation.
These are the kinds of issues that we will be looking at in the context of how to operationalize the legislation. At this point, no new powers are contemplated for the CBSA.
The Chair: There is no protocol of enforcement yet until such time as the law is passed, should Parliament wish to do so; is that correct?
Mr. Vigneault: That is a very succinct way of describing what I just said.
[Translation]
Senator Joyal: Welcome, Mr. Vigneault. Am I to understand from your answer to Senator Segal's question that you were not involved in developing this legislation?
Mr. Vigneault: The Canada Border Services Agency is part of the public safety portfolio. The Department of Public Safety is the organization that ordinarily develops policy. So through our various interdepartmental committees, CBSA's information and experience are included in the discussions.
In terms of Bill S-7 specifically, however, the Canada Border Services Agency was not involved proactively in developing the bill.
Senator Joyal: So you are not able to tell us today about the content of this cooperation protocol you would develop with the RCMP or the other intelligence services, to put the objective of this bill into practice? I am referring to enforcing the two new criminal offences created by the bill: attempting to leave Canada to participate in terrorist activity or training, or intending to leave Canada with that objective in mind. You still have in no way defined or determined how you are going to operationalize those two objectives in the course of your activities, is that right?
Mr. Vigneault: I would actually describe our involvement up to this point as minimal, but we have had discussions with certain partners.
When Parliament decides on the final legislation, however, we will have the opportunity to determine it specifically with our partners at that point. We already have protocols that are well-established for our work at airports, for example how we work with CSIS or how we work with local police services or the RCMP. Those protocols do exist. What will have to be done when the bill is passed is for us to determine how we will be able to participate more actively in these investigations.
Obviously, as I mentioned, given that the CBSA plays a much larger role when people arrive in Canada than when they leave the country, our role will always be to support our partners.
Obviously, as well, the agency has a mandate that allows us to conduct investigations and requires that we do that, inside Canada. These are investigations regarding people who might be inadmissible or who did not give correct information when they arrived in Canada. In those investigations, which are what we call inland enforcement, investigations within Canada, if we obtain information that is relevant in terms of national security, and in that case could suggest that an individual might intend to leave Canada to participate in training or a terrorist act, then we already have protocols that enable us to pass that information on. There are well-oiled protocols both here in Ottawa at headquarters and in the regions to enable us to pass information on quickly.
It will be more a matter of looking at certain details to see how we will do it, but the partnerships for doing that work are already in place.
Senator Joyal: Can you tell us more about what you are thinking of when it comes to sharing information, in particular with the United States, since the security perimeter essentially applies to travel to the United States? I mean in terms of exchanging information that would enable Canada to exercise some degree of oversight of Canadians leaving Canada to go to the United States. That goes without saying, since if someone leaves to go to England or France or some other destination that is not in the United States, there could not be any oversight at that point. Is my conclusion correct on that second question?
Mr. Vigneault: To answer your first question, what we are concerned about when we share information, in this case with the Americans or with any other government of Canada agency, or with foreign countries, is to make sure the information is accurate. There have been numerous cases documented that remind us that when we share information about individuals it is very important to make sure the information is accurate. So to answer your question, what we have in mind when we think about that is definitely accuracy.
Another point is that if there is an issue of national security, something that may be an imminent threat, then what we have in mind is to make sure the information is passed on to the right authorities in a timely manner.
Your first question relates to information that we might supply to the United States when someone leaves Canada. The protocol we are in the process of developing would mean that when someone leaves Canada by land, they immediately arrive at an American border post, and this means that the United States has the information before we do. The person would arrive in the United States, and Customs and Border Protection would give us a copy of that entry. The entry document to the United States that is shared with Canada would become the exit document from Canada. The same would be true when a person arrived at a Canadian border post: the copy of the document produced would be sent to the United States. The United States would then know that David Vigneault had left the United States and was now in Canada. That is how we will work at the land border. In the case of air travel, it is done through airline manifests.
Senator Joyal: You mean the no fly lists?
Mr. Vigneault: No, the manifest; the passenger list. As you know, at present, the passenger list is shared with the American authorities when someone has to go to the United States or fly over U.S. territory. They already have that information. That means that as we develop protocols in the entry and exit system, we would make sure we receive that information from the Americans. The information is shared in virtually real time for air travel and travel by land, given that we have a physical border, a border post. The information may arrive later and national security issues are still kept in mind.
Senator Joyal: In practice, the individual would leave Canada, would appear at a land border post, and the American authorities would be informed by the competent Canadian authority and would apprehend the person and return them to the Canadian authorities, or would the person be tried in the United States?
Mr. Vigneault: It depends on the case. Often, it is case by case. If the person appears at an American customs post and is suspected of terrorism, of course the person will be apprehended immediately by the American authorities. Depending on the specific circumstances, is it better for the person to be tried in Canada or in the United States? That is the kind of negotiations or discussions that take place between the law enforcement authorities, but generally, as we have seen in the past, the Americans want to take jurisdiction in those cases.
Senator Joyal: The Americans would take jurisdiction over the two offences provided for in Bill S-7, to lay a criminal charge in the United States under the provisions of clauses 6 and 8 of the bill.
Mr. Vigneault: If the only offence is one of the two offences provided for in Bill S-7, if the Americans have no other information for laying charges, they would deny the person entry into the United States and inform the Canadian authorities, and in that case the Canada Border Services Agency or the RCMP could apprehend the person suspected of intending to go outside Canada to commit a terrorist act, because Canadian law would apply within Canadian territory. Because it is a Canadian law that would apply, the Canadian authorities would lay the charges.
Senator Joyal: If the destination is not the United States, but somewhere else, what would happen to ensure oversight of a person who leaves Canada with the intent of attending a terrorist training camp?
Mr. Vigneault: Take the example of a person who transits through Great Britain on the way to Pakistan. If the Canada Border Services Agency or another agency of the Canadian government has information, there are two things that can be done: before the person leaves, they can be intercepted — the RCMP could arrest the individual directly — or, depending on the nature of the information, the RCMP may also decide to let the person travel in order to find out where the person is going and who the person is going to talk to, to investigate in a little more depth. If information is discovered once the person has left, the RCMP could ask the British authorities to intercept the person, and that would become a case for the Department of Foreign Affairs, to repatriate the person to Canada. Again, it always depends on the criminal offence in question, where it has been committed and the law under which charges would be laid against the person.
Senator Joyal: That is precisely the toughest legal question. The intent to leave with the idea of going to a training camp is formed in Canada. When the person has already entered the territory of a foreign country, the offence was committed in Canada, not in the foreign country. The question is who has the authority to lay charges and act on the complaint.
Mr. Vigneault: I would suggest that you put the question to the people from the Justice Department. I think there would be extradition issues that might come into the equation.
Senator Dallaire: Good afternoon. We met in another life. There has been a growing impression since September 11, 2001, that we are trying to build fortress North America. With all the years that have passed since then, we are starting to put some tools into practice that perhaps should have been adopted a long time ago.
What is the internal structure of your organization for developing people's expertise for working in intelligence, for gathering and analyzing information and knowing whom to send it to? What sort of training or exercises do you do with your colleagues in the United States or the European Union to be sure your methodologies are compatible and there is a degree of interoperability among all of you?
Mr. Vigneault: In terms of developing the human capacities within the agency, I would say there are two profiles: there are the people who come into the agency and are trained by us — and I am going to ask Mr. Leckey, who is responsible for intelligence operations, to expand on that subject; and there is also the intelligence community, the government of Canada's national security committee. These are people who have worked in other agencies and have a degree of experience in the intelligence field. We try to attract people with different experience, a different way of looking at things. That is how we are able to train teams that will be more effective in the areas of intelligence and national security.
On the question of methodology, we have very close relations with our American colleagues and our colleagues in Australia, Great Britain and New Zealand. We also have a new relationship that has developed in recent years with FRONTEX, an institution of the European Union that is responsible for law enforcement in relation to immigration. We share working methods and analysis methods with them, so we can learn. They have developed expertise of their own on geographic regions like North Africa that we do not necessarily have ourselves. Given the problems associated with the Arab spring, we saw a flood of immigrants arrive in North Africa. The European Union is directly affected. We had good discussions with them so we could be aware of how the flood of immigration was happening, so that in terms of our targeting operations and operations abroad, we could clearly understand the phenomenon and be in a position to allocate our resources to the right places. There is an entire system for sharing information, knowledge and experience among our allies in order to understand all these things.
Geoff Leckey, Director General, Intelligence and Targeting, Operations Branch, Canada Border Services Agency: If I understand correction, the question relates to training intelligence officers specifically, since my colleague has talked about the general basic training provided to all border services officers.
There is a basic training course that every officer who enters the intelligence program at the agency has to complete. We have two categories of intelligence officers: the officers and the analysts who each take a basic course and a specialized course.
The courses are constantly being expanded, developed and modified. We hold ongoing consultations with our colleagues in the intelligence community and outside Canada, for example with CSIS and the RCMP and also with the Privy Council Office, which offers a very thorough analyst training course that is very highly regarded. We also consult constantly with our colleagues from our closest allies: the United States, Australia and the United Kingdom.
Senator Dallaire: Given that it has been 11 years now since the events of September 11 occurred, I wonder about the maturity of the program in your agency — and in fact I would ask the others the same question — when it comes to increasingly sophisticated threats, for which more legislation is introduced, making things even more complicated.
Can you really operate with confidence at present or are you still in the learning phase? If you are still learning, that is not a problem, just tell us.
And at what point do you think you will achieve the level of the exchanges between your officers and the British and the others, to ensure the level of education and instruction, not just from the standpoint of intelligence, but simply to provide them with the broad perspective that is needed in order to understand these problems? Do you have a timetable so you can administer legislation of this nature?
Mr. Vigneault: In fact, I would say, without wanting to sound self-serving, that since September 11, 2011, the CBSA's capacities in terms of intelligence and analysis have grown exponentially. But that does not necessarily mean that we can rest on our laurels and not move forward.
You offer the example of new legislation. That is important, for us, and this is what I was saying to your colleague Senator Joyal: when the legislation is in place, we are still going to need continual training, and need to talk with our partners to see how our work is going to take shape.
As well, the threat is constantly changing, so even if we think we have a relatively mature system, our investigative methods have to continue to adapt. The number of partners with whom we share information — a threat may come from parts of the world where we do not necessarily have traditional allies. So we have to be capable of filling those gaps quickly by developing those new relationships. I will tell you, since I was just talking about numbers, 93 million people entering Canada, 23 million cars entering Canada, those numbers mean that we have to develop investigative methods that are more and more sophisticated, risk management methods, to enable our analysts and intelligence officers to better understand all of the information they receive and to be able to develop intelligence when they get it.
[English]
Senator Dallaire: Because we are in an unclassified milieu, you are giving us a lot of motherhood generalities but nothing specific. The only figures you have given us are the number of cars and people flying. What about the actual internal structures and how that is maturing, how you are collating the material, how often you actually meet and who is exchanging with you and the number of cases, and how you actually develop new doctrines, training, equipment and organizations to meet the requirement?
You brought in the National Risk Assessment Centre, the Advance Passenger Information/Passenger Name Record program and all these things. We have no sense of how you actually are progressing, and on top of things, all we are getting is, "Gee, we are doing a lot of things."
My real question is: If this was a classified briefing, would you be able to give us a hell of a lot more of what we are looking for in order to give me a much warmer fuzzy feeling that you are actually on top of it?
The Chair: The senator has asked a hypothetical question, and you are welcome to give a hypothetical answer.
Mr. Vigneault: I feel there is a land mine somewhere and I am about to step on it. I will probably refrain.
Senator Dallaire: I would like to correct the chair. This is not hypothetical. This is factual. The question is: If this was a classified briefing, would it be different?
Mr. Vigneault: There are a couple of things I could say. I think you are right. The nature of these proceedings means that I cannot divulge classified information.
That said, senator, I think you mentioned a number of elements that are available in the public domain, and I would be remiss if I were to not point them out.
For example, as we speak, we are in negotiations with the European Union to further refine our exchange of information in regards to the Advance Passenger Information/Passenger Name Record, the API/PNR that you mentioned before. We are in active negotiations with the European Union to further refine that.
We have developed a number of new relationships over the last couple of years. It is in the public domain that we dispatched officers to Southeast Asia when a number of illegal migration ventures were being launched, coming to Canada.
These are examples of active things we are doing to essentially be able to not only meet the threats but defeat the threat before it comes to our shores.
I do not know if Mr. Leckey has anything to add.
The Chair: I would say to our guests it is not your fault that we do not have access to classified information. You do not have to be apologetic about that. It is not your fault.
Mr. Vigneault: The previous witnesses from CSIS pled the fifth. I will do the same thing on that.
The Chair: Mr. Leckey?
Mr. Leckey: If I could add something, thank you for giving me the opportunity to talk about some of the enhancements we have made to the intelligence program in CBSA in recent years.
It is more than fair to say that compared to 10 years ago our intelligence program has reached a level of maturity that it certainly did not have before. We have done that by putting an emphasis, especially over the last three or four years, on enhancing the professionalism of our officers, and we do that by enhancing our training on a constant basis, by constantly consulting with colleagues both in Canada and abroad. We have full-time exchanges with CSIS, and I mean within the intelligence domain, and with three of our Five Eyes partners.
I believe that the CBSA intelligence program is becoming increasingly respected in the community, and that is evidenced by the fact that we get constant requests for our intelligence products, and we get very positive feedback on them.
Our program or a representative of it has been invited to join a number of fora we did not have access to just a few years ago, for example having to do with the specified persons list. We are fully engaged in the development of the Government of Canada intelligence requirements, which we were not just a few years ago.
Recently, we have established a national targeting centre here in Ottawa, which will do all targeting for people and goods in increments. It is being phased in over the next couple of years, but we will have officers posted full time to that centre from the RCMP and CSIS, and we are trying to invite other partners from other departments who we think would benefit from being a part of that operation.
[Translation]
Senator Dagenais: Mr. Vigneault, on page 4, you say that among your investigative methods, you use detection technologies, and even non-intrusive examinations where possible. You talk about using digital fingerprint machines. What I am going to say may be a little utopian, but the thing that makes us able to travel more freely to the United States is the famous NEXUS card, where you take the iris scan and digital fingerprints. Would it help you in your work to control terrorism if someday digital fingerprints and iris scans were required in order to obtain a passport? I understand it might be necessary to have agreements with other countries, but that might make controlling terrorism easier. People who have terrorist intentions would feel that they were subject to greater surveillance.
When you decide to take digital fingerprints, it is to follow up on investigations or targeted individuals, because not everyone has their digital fingerprints taken when they enter Canada. I would like to hear your thoughts on that subject.
Mr. Vigneault: It is to our benefit to have access to digital and biometric information, the reason being that fraudulent documents are becoming more and more sophisticated and it is very difficult to stay on the leading edge of the technology.
At the Canada Border Services Agency, we have a laboratory that conducts intensive research, not just to help us verify certain specific documents, but also to advance our investigative techniques. Obviously, the harder it is to forge information, the more that will help us.
In terms of Canadian passports, discussions are being held with Passport Canada and the Department of Citizenship and Immigration as we speak, to determine what the best methods would be of making the passports secure, so a Canadian passport will always be a valid document and at the same time can be used for a wider range of purposes. I would suggest that you put these questions to our friends at Passport Canada. Obviously, however, the discussions being held are positive for us and having this information in future could be extremely useful to us.
Senator Dallaire: When you take digital fingerprints for people entering Canada, I understand it is due to the fact that they have already been targeted.
Mr. Vigneault: Our colleagues at the immigration department are in charge of determining what the needs in relation to identity are when someone enters the country, and as a law enforcement agency, we are in charge of doing that work on their behalf. Under the Border Action Plan negotiated with the Americans, for certain approaches, we are going to have to take fingerprints from refugee protection claimants, for example, so that information can be shared with various countries and we can make sure that these people are not able to asylum shop. That is a concrete example of where that information might be extremely useful to us.
[English]
Senator Day: Is there a government reason why you are called an agency?
[Translation]
Mr. Vigneault: That is a good question, and I should know the answer faster.
[English]
I believe it is because we are part of the public safety portfolio, and so you have the public safety department, which supports the Minister of Public Safety. The other elements of the portfolio, the CSIS, RCMP, the CBSA and Correctional Service of Canada, are the agencies that form part of that portfolio. I think there is probably a more public policy answer that I can provide you later.
Senator Day: If you have something further, what I would like to get to is do you have an opportunity to generate some revenue for services rendered to other departments or agencies?
Mr. Vigneault: The only source of revenue we have that I am aware of that is outside is some of the revenue on the NEXUS program that comes back to the agency as opposed to the consolidated revenue fund, but we do not have cost recovery, per se, with other agencies that I am aware of.
Senator Day: Is it still part of your role to collect tariffs at the border?
Mr. Vigneault: Fortunately or unfortunately, depending on how you look at, it, we have collected about $23 billion in duties and taxes at the border. We are, after the Canada Revenue Agency, the second largest contributor to government revenues.
Senator Day: Part of the role of the Canada Border Services Agency officers at the border are as collectors of taxes and revenue, as well as all of these other security roles. There are a tremendous number of activities that you have outlined for us in your presentation.
Do you have to train all of your officers to do all of these things or do you have certain officers trained for one thing at the border and others trained for other things?
Mr. Vigneault: It depends at what part of the continuum. If you are an individual who will be working, for example, in an airport, you will have to be trained on the key acts that will have to be enforced at the airport. That would be the Immigration and Refugee Protection Act, the Customs Act, and we also have some of the acts related to food, plant and agricultural issues. We have a number of border security officers who are trained essentially to have a vast amount of knowledge on a large number of these issues.
When there is a more specific issue or problem that goes beyond their expertise, then we have experts, on location and also in the national headquarters here in Ottawa, who can then provide more specific advice.
We do work with other departments, again in the context of the food, plant and animal programs, who would be working, for example, with the Canadian Food Inspection Agency, who would be coming to provide us with specific technical knowledge that our officers will not have. That is one aspect of it.
We do have, within the agency, intelligence officers, criminal investigators and inland enforcement officers. These are people who go from a general curriculum to a more specific area of expertise, and these people then are formed with that specific activity in mind.
Senator Day: Let us talk about a border crossing. Do you have, 24 hours a day, seven days a week, somebody in there who is knowledgeable on terrorism and anti-terrorist activities?
Mr. Vigneault: The way it would work, you have either an airport, so someone coming from the air, or the land border from the U.S., and all of our border security officers have access to a number of databases. When the person comes in, they must present himself or herself to the officer and then will have to present some kind of identification. If that identification matches a target that was put into our targeting system, if it represents a lookout, for example, that CSIS would have provided us with information about a specific individual, then you match the name with that lookout.
All of that to say that our officers have a good knowledge of a number of the responsibilities they have, including counterterrorism, but they have all the rest of the CBSA operatives behind them when they are acquiring a name or certain information. In this way he or she does not have to be a specific expert on counterterrorism to be able to rely on the vast array of information at the disposal of the CBSA that would have been from allies or intelligence officers here in Ottawa, for example.
Senator Day: I want to stay at the land border crossing. We had heard in the past that some of the land border crossing stations did not have all of the technology and you were crying out for that. It is important to have. Are you telling us now they have it at all of the border crossings between Canada and the United States?
Mr. Leckey: It depends on the size of the border crossing. The major border crossings have full access to all important CBSA internal systems.
Senator Day: How many non-major border crossings do not have the technology that you need to do what Mr. Vigneault just described?
Mr. Leckey: I could not give you that figure today but I can follow up. As you appreciate, there are some very small border crossings.
Senator Day: Yes and the option is either to equip them with the digital-analytical equipment or close the border crossing. They would be the options.
Mr. Leckey: There is also the option of making sure the border services officers on duty have 24/7 access to the support of the criminal investigations and intelligence programs.
Mr. Vigneault: I would add to what my colleague mentioned, and I believe it was mentioned earlier, that as of April 1 we have stood up our national targeting centre, which is the 24/7 iteration of our operation centre. If they are in doubt, our officers, wherever they are, have the ability to reach back to this operations centre, where we have intelligence targeters, CSIS and the RCMP. If an officer is not sure about an individual, whether they should admit a person to Canada or not, as my colleague mentioned, there is the possibility to go back to headquarters and this happens frequently. I would not want to leave the impression that we are not providing a fairly tight protection when people try to come to Canada.
Senator Day: We would like to know what we can do to help you make it tighter. In relation to terrorism or potential terrorism, we are talking about whether there are smaller border crossings that do not have the equipment needed in order to access and make the assessments. That is obviously where someone might target to come across.
Senator Andreychuk: You indicated your level of "maturity" — and I find that a strange word to use — may be different from 2001 until now. I would think it would be the level of preparedness or the level of knowledge.
One of the difficulties, as you were telling me and this committee to this point, is that if there is already an alert or knowledge about someone crossing the border then you are well plugged into that system, you have protocols, you have operations in which you share information on those who have been identified either outside or inside of Canada. Am I correct?
Mr. Vigneault: Yes, you are correct, but I would add to that that we do indeed take all the information we have from both our national and international partners about potential terrorists, so we have access to that information. That forms part of the analytical base we would use to make the determination whether someone should come in or not.
If you go back to the experience you have when you come back from abroad and present yourself to a border services officer, you would essentially need to present your documentation. Then, depending on the number of indicators that the border services officer would have, he or she could ask for a more in-depth investigation. That is when you are sent to secondary.
As I mentioned, our border service officers are trained in investigative techniques, in searches and so on to be able to determine if you are indeed trying to oppose. You are an unknown person, we do not know who you are, we have no prior knowledge of you, but we find something unusual in your luggage or your travel pattern is unusual. You are coming for 24 hours and you are leaving again. You are coming with very little luggage or you are not able to give us any explanation of who you are coming to meet.
Some of these investigative techniques will allow us to determine whether there might be something more. At that point we can refuse you access to Canada or we can inform our partners in the RCMP or CSIS that there is something here on which they may want to follow up.
Essentially, with both the known people and the unknown, there are ways to try to determine if they do represent a threat to Canada or not.
Senator Andreychuk: Is that the situation you have identified just now?
Mr. Vigneault: Yes.
Senator Andreychuk: If we pass Bill S-7 and the focus is on someone leaving Canada with the intent to commit an indictable offence elsewhere — a terrorist activity, in other words — and we have some knowledge as they are leaving that they might commit this offence, we have the right to lay the charges and the process is laid out there. Obviously you do not have the right to lay the charges.
What part of that alert system are you to determine for the Attorney General that charges should be laid? Have you studied the bill to find out how you will make the change and what part of it will be yours? You are in a different position from the RCMP, other police authorities and the Attorney General.
Mr. Vigneault: As I mentioned earlier, we have done some preliminary studies of the bill. It is clear that the current way we are working with our partners would then be able to be replicated in this context. For example, there is the context of an inland enforcement investigation, where we have the mandate and we do investigate individuals who may be inadmissible to Canada because they have lied when they came in or subsequent information came to our knowledge. The information collected in the context of that investigation will then be shared with our partners. This is the kind of sharing back and forth within the partners that will allow, for example, the RCMP to determine if this person is associated with other people who may have connections to terrorism. That is the type of back and forth that builds a picture that will help determine if there is intent to go abroad.
We would not be making the arrest, but in some cases we provided some of the information and intelligence that allows the RCMP or CSIS to say they believe that person intends to go abroad to commit an act.
This is why it is so important that all of the national security organizations work very well together, as I mentioned earlier. When this bill comes into force, if it does come into force, we may need to specifically work with our partners on how that would be worked out.
Senator Andreychuk: I think that is the straight line. If you know about somebody and you follow them through, we have to ensure that you have all the pieces in place and all the protocols. However, will this not lead to a new kind of activity in the terrorist group? They will now know about this section and there will be those who are aiding and abetting, being part of a process of a terrorist activity elsewhere, who look very benign to you because you have never seen them.
How will you handle those situations? You see something in their luggage and something unusual but it is different now because they are not going to be carrying the things they have with them. They will have someone else carry a bit of something, including knowledge.
Mr. Vigneault: I think you are absolutely right to point out that the terrorists do adapt to any pieces of legislation that any government brings into place. This is why it is important for us to not only talking to our national partners but also for our partners abroad to understand how they work.
We have other organizations and governments that have mandates to collect intelligence abroad. They often bring back information that will help us understand these patterns. When it is a specific individual, which I believe the director of CSIS mentioned, who has not talked to anybody, has been self-indoctrinated, self-radicalized, is obviously a hard terrorism suspect to follow. You have certainly laid out the challenge for us.
Senator Andreychuk: Have you been involved in any cases where there has been similar legislation in another country? That is, has your agency ever participated in facilitating authorities with a person who was leaving another country for the purposes?
Mr. Vigneault: Not to my knowledge.
Mr. Leckey: Not to my knowledge.
Senator D. Smith: My colleagues may be tired of this, but I have been having problems at the airport lately. I thought I had solved it. I flew up here this morning and I got stopped again. She took about 12 minutes. She had the phone; however, they know who I am. I am not crossing a border, so who are they calling?
Mr. Vigneault: I would not want to speculate on this one, senator. I am not sure about the specific circumstances.
Senator D. Smith: David Smith is a common name. When we had the director of CSIS here, he said he had a brother-in-law by that name; maybe that is the source of the problem. However, I think he is an American. It has been happening a lot to me lately. It stopped about six weeks ago, but it happened again this morning at Porter.
I am curious about efficiency. If I had been flying to Boston, they would have phoned you, I guess, or your agency?
Mr. Vigneault: It depends if it is based on a name similar to yours being on the U.S. or the Canadian list. If it is on a U.S. list, it is not necessarily us that they would contact. I apologize.
Senator D. Smith: In terms of efficiency, are there two different agencies that are used when people, not because of a dishonest face — that certainly would not apply to me — but because of a name, have to be phoned?
Mr. Vigneault: Again, if it is a U.S. list they would be phoning U.S. agencies to determine who you are and why someone with a similar name as yours was on that list. They would not necessarily be phoning the CBSA.
Mr. Leckey: Not necessarily.
The Chair: Have you ever thought of taking the train?
Senator D. Smith: I have. I am wondering about efficiency here. If someone is going to do something dramatic, it does not matter if they are crossing a border; you do not want them on an airplane, regardless of where they are going. I am curious about how many agencies we have, if it was not you guys who were phoned this morning. Figure it out and tell me who I need to talk to. I almost missed my plane this morning.
The Chair: That is a general policy inquiry. Any advice you can share with us, perhaps as a follow-up to this meeting, I am sure would be very much appreciated.
Mr. Vigneault: Thank you very much, Mr. Chair.
Senator D. Smith: When you do call, do you then phone the Americans right away if it is someone who, say, did happen to be an American with a U.S. passport?
Mr. Vigneault: If it is a no-fly list, Transport Canada is the agency responsible for the no-fly list in Canada. You may want to direct your question to them because the issue here is the name similar to yours being on the U.S. list. Transport Canada, which is in charge of the specified persons list, might be able to help you here.
Senator D. Smith: If, for example, it was a passport from another country — to keep it simple, say from the U.S — you would be talking to them right away presumably?
Mr. Vigneault: It depends, again, on the specific circumstances. If you are trying to board a flight from the U.S. to Canada and your name matches the name on the U.S. list, in this case the transportation security agency, the TSA, would ask whoever maintains the list in the U.S. if it is the same person, and so on. It is different if it is a U.S. list or a Canada list.
Senator D. Smith: They might not have flown out; they may have crossed through a farm in Saskatchewan on foot.
The Chair: We have reached the end of our allotted time; we have witnesses waiting for the next section. We have three of our colleagues, Senators Joyal, Dallaire and Day, who want a second round. We could ask our colleagues to pose their questions seriatim and ask our guests to answer them so as to be time efficient and then we will try to catch up as best we can, but I want to be fair to the witnesses who are here for the second panel.
Senator Dallaire: It is essential that we finish at 3:30 because I have a pre-meeting with the next committee. If we are going to eat into the time for the next panel, I want you to be aware of that.
The Chair: I am also glad not to have a second round, but I do not want to be unfair to the colleagues who asked to be on the second round. I am in your hands.
Senator Day: I think we have to go on with our schedule.
The Chair: Senator Joyal, are you okay with that?
Senator Joyal: I am not sure.
The Chair: Will you ask the question? We will allow him to have one question.
[Translation]
Senator Joyal: In the 2012 budget tabled by the government, you have $143 million in budget cuts. According to the information that has been made public, I understand that 1,350 positions will be eliminated at the Canada Border Services Agency, 118 of them in Quebec. About 100 intelligence officer positions will be eliminated, representing half of the total number of officers, and in addition, 325 front-line officer positions will be eliminated.
As your colleague from the RCMP said, these cuts are not administrative efficiencies, that is, they are not changes to how paper is processed. These are individuals who deal directly with the millions of people and cars that arrive at Canada's border crossings every year.
How are you going to be able to achieve greater effectiveness and guarantee greater security with this significant staff reduction, in particular in the case of officers at border posts, the ones who have to be on the job 24 hours a day, or nearly that, to enforce the law?
Mr. Vigneault: Senator, if I may, I would like to correct a few facts. While more than 1,000 letters were in fact sent to people in the agency, that does not necessarily mean that 1,000 positions will be eliminated. We are talking about maybe a quarter of those people who will eventually lose their jobs. That is what we call the people who have been affected. Then the attrition process will mean that it will not be 1,000 people who are affected, it will be a lesser number.
You mentioned that it will affect more than 50 per cent of our intelligence officers. I would say that it is about one fifth of intelligence officers who will be affected. And the reason why we do not believe national security will be affected by this specific cut is that we are already working on prioritizing our intelligence activities. This will force us to do even more specific work on what priority we are going to assign to each intelligence investigation.
The number one priority, you can be certain, is anti-terrorism. In the context of the study of this bill, there will be no impact on anti-terrorist intelligence investigations.
[English]
The Chair: Colleagues, in adjourning this part of the committee I would like to express our collective thanks to our two guests from the Canada Border Services Agency for their frankness and direction under the provisions of what is allowed, relative to the disclosure of non-classified information. Could I ask that you express to your agents across the country the appreciation of this committee, the Parliament of Canada and all Canadians for the tremendous work they do, sometimes at great personal exposure and risk to help keep our borders and our country face. Thank you very much.
In our second session this afternoon, we welcome Dr. Wesley Wark, Visiting Professor, Graduate School of Public and International Affairs, University of Ottawa, a step up, I may say, from the University of Toronto. We also welcome, via video conference, Kent Roach, Prichard-Wilson Chair of Law and Public Policy, Faculty of Law, University of Toronto.
This afternoon, we are continuing our study of Bill S-7, the Combating Terrorism Act, which received second reading in the Senate of Canada, where it originated, on May 8, 2012. Bill S-7 is a 30- clause bill that seeks to amend the Criminal Code, the Canada Evidence Act, and the Security of Information Act to create new criminal offences that better protect Canadians against terrorist activities.
Dr. Wark and Dr. Roach, we are delighted to have you before our committee once again. The quality and the importance of the testimony you have given to this committee, in the past, had a very positive impact upon the recommendations that this committee made to government, and there are, in fact, some changes in the legislation before us that reflect not only those recommendations but also various court decisions about the balance between freedom and security. I know that that very much drives the nature of both the academic and the specialist work that you have been engaged in, as scholars, in this area.
We are delighted to have you with us. We look forward to your opening statements, and I will ask Dr. Wark to lead off.
Wesley Wark, Visiting Professor, Graduate School of Public and International Affairs, University of Ottawa, as an individual: Senator Segal, thank you very much for the invitation, and, honourable senators, it is a pleasure to be before this committee again. I appreciate that the time is short. I have four issues that I want to touch on in opening remarks, so I will race through these. My comments will be in English.
The first thing I wanted to indicate is my own general support for some of the key provisions of Bill S-7, the Combating Terrorism Act, and I want to explain briefly why I think these provisions are important. I will begin with the recognizance with conditions and investigative hearings provisions, which were originally contained in the Anti- terrorism Act passed in December 2001. They were subject to a sunset clause, which expired in March 2007 and were not reintroduced.
With regard to these two provisions of Bill S-7, I believe that these are potentially important tools in counterterrorism investigations, although likely to be rarely used. This is not least because they presume, at least in the case of recognizance with conditions powers, a kind of ticking time bomb scenario in which CSIS and the RCMP have last-minute, reliable intelligence about an imminent threat.
In general, intelligence and law enforcement agencies will continue to rely on accumulated intelligence and evidence about terror plots, developed over time, some of which will come from foreign services, as was the case with Momin Khawaja. They will also continue to rely on the use of informants or undercover agents, as in the so-called Toronto 18 plot. The supposition that these powers will be rarely used is not an argument against having them. It is a reassurance, I would say, backed by what I regard as the reasonable, stipulated limitations on the use of these powers, as well as the reporting requirements that have now been attached in the revised legislation.
In the case of investigative hearings, persons compelled in this way to give evidence cannot incriminate themselves in terms of future legal proceedings. In the case of recognizance with conditions, an individual held in detention under these powers can only be so held for a maximum period of three days before being either released or charged. Should a judge subsequently decide that a peace bond is warranted, such a bond cannot be extended beyond a period of one year.
With regard to criminalizing activities relating to travel outside Canada to participate in or facilitate a terrorist activity, this too I think is a useful provision and a useful legal power. This portion of Bill S-7 is new. It does relate to a known threat, including the knowledge that we have that Canadians of Somali descent, for example, have returned to Somalia to take part in the activities of an al Qaeda-linked organization called al Shabaab. The legal requirements to bring charges in these circumstances will be high, as Director Fadden noted in previous testimony in the committee. However, I regard this legal provision as having a useful and necessary deterrent effect and also a public education benefit.
Let me turn to the second point I want to make, which has to do with the terrorism threat environment, as we currently understand it. The Government of Canada continues to describe Sunni Islamist terrorism as the premier threat to Canadian national security. In reality, I believe this threat has evolved and subsided in the years since the 9/11 attacks. The terrorism threat has changed and diminished because of four factors: The first is U.S.-led counterterrorism efforts and, in particular, the targeting of the operational leadership of al Qaeda through drone strikes, among other means.
The second is the killing of Osama bin Laden, which had a significant impact.
The third is the declining appeal of the al Qaeda message, as well as internal disputes, in jihadist circles, over al Qaeda strategy and tactics, including the targeting of the so-called far enemy and the killing of Muslim civilians in terrorist attacks.
The fourth factor that I think has led to the diminution of this particular threat is the fragmentation of al Qaeda and the increasing attention now paid to terrorist groups with some link to al Qaeda but with their own regional agendas and a lack of a known capacity, or perhaps even an intention, to engage in attacks of global terrorism. The organizational threat posed by al Qaeda or al Qaeda-linked terrorist groups has increasingly been replaced by concerns about domestic radicalization to violence and by so-called loan actors. While these kinds of threats have clear relevance to Canadian national security, they present, to my mind, a lesser danger to Canada.
Let me turn, in that context, to my third point, which is to think about the larger threat environment in which we now operate.
Since 9/11, new threats to Canadian national security have emerged or have assumed a more prominent role. There is a danger that we will remain fixated on old threats at the expense of a proper investment in the intelligence, law enforcement, and policy tools needed to cope with the changing landscape of security problems a decade or more past the 9/11 attack. These new threats — or old threats in new clothes — include what I call cyber-aggression, foreign espionage, global WMD proliferation, global economic turbulence, fragile states, pandemics, natural disasters and extreme weather, and climate change security impacts, to name a few.
The final point I want to make has to do with accountability and resources, and it links to a question asked in the previous session. The provision of new powers and new requirements for law enforcement and intelligence activities begs questions about resourcing and accountability.
I would like to close these comments by indicating what I see as some potentially worrisome trends. In terms of accountability, the government has recently taken some steps that cast into doubt the seriousness with which ministerial accountability, for CSIS in particular, is taken. I refer here to the ministerial directives to CSIS on the handling of intelligence, possibly derived from torture, and on the determination to close the Office of the Inspector General of CSIS announced in last week's budget implementation bill, Bill C-38. It should be noted as well that the Security Intelligence Review Committee remains without a chair since the departure of Arthur Porter last year. No action has been taken on the O'Connor commission recommendations from 2006 regarding a capacity for an overall review of the Canadian intelligence community; and there is no action, again linking to previous comments in the last round, with regard to the creation of a dedicated parliamentary capacity to review the intelligence community.
On resources, the government is currently engaged, as you all know, in a major process of overhauling and cutting the costs of the federal civil service. Cuts to budgets and personnel are being handled sectorally without any apparent sign, in terms of the intelligence community as a whole, of a strategic plan. Canadian intelligence is particularly susceptible to boom and bust cycles because it has few champions in government. It suffers from such cycles because intelligence requires long-term investments in talent and technology. Some of the major investment that we did make in Canadian intelligence and law enforcement since 9/11 was in fact in the form of catch-up money to repair deficiencies that have accumulated since the end of the Cold War. I am not sure that there is a lot of fat to be cut in the post-9/11 world of intelligence. A former president of the Canada Border Services Agency used to say that for every $3 he had in his budget, he would like to spend $2 on intelligence. I am not sure that this is the current mentality of government.
I would close by urging a close inspection of the overall impact of budget cuts on the Canadian intelligence community as a whole, alongside the need for a well-thought-out strategic plan. I am not sure we are getting either.
The Chair: We will ask Professor Roach to make a brief opening statement. We look forward to your opening comments, Dr. Roach.
Kent Roach, Prichard-Wilson Chair of Law and Public Policy, Faculty of Law, University of Toronto, as an individual: Thank you, chair. It is an honour to appear before the committee again. It is significant that this important bill has been introduced in this chamber. My own work and the work of other Canadian and British colleagues has confirmed the important role that unelected upper houses have, in particular with respect to counterterrorism laws that deal with the rights of the unpopular. The best known parts of this bill reinstate investigative hearings and preventive arrests. I am pleased that the government has included reporting, review and sunset provisions that will involve a committee of the Senate in reviewing these extraordinary procedures.
I would have preferred, however, if the government had explicitly followed the Supreme Court of Canada's 2004 decision where the court had indicated that information obtained through an investigative hearing would not only not be used in subsequent criminal prosecutions but also not in any extradition proceedings or any immigration proceedings. It is true that the courts may apply this reading-in remedy from the courts but, in my view, it is always desirable for legislation to reflect the requirements of the Charter as they have been articulated by the Supreme Court of Canada.
I hope that authorities will use investigative hearings with caution. The Air India report found problems in the handling and protection of sources and witnesses. In many ways, it is proper handling of sources and witnesses that is more important than investigative hearings. There is a danger that the premature use of investigative hearings will make it difficult, if not impossible, to prosecute a person compelled at an investigative hearing should it later be discovered that that person was involved with terrorism.
I also have some concerns about potential adjournments of investigative hearings. Section 707 of the Criminal Code, as referred to in the bill, contemplates adjournments and the detention of witnesses for up to 30 days. Obviously, that would be in contradiction to the preventive arrest provisions, which are limited to 72 hours. The preventive arrest provisions are extraordinary in any democracy; but I must say that the 72-hour maximum is restrained by comparative standards. The U.K. and Australia both have 14 days. The U.S. does not have preventive arrests, but they do have an unfortunate history of abusing material witness warrants as a form of preventive arrest, as well as "pretextual" or Al Capone-type prosecutions. In my view, legality is always the better policy.
However, I would prefer that more guidance be given to judges, especially under section 83.3(7) when they exercise their discretion whether to extend the preventive arrest provision to the maximum of 72 hours.
We should not be too sanguine about what happens after the 72 hours. At that 72-hour point, authorities must either charge or release. I am aware that some concerns have been raised about some of the new so-called training camp offences that are triggered by people leaving Canada. Although these offences limit liberty and the rights of Canadian citizens to leave Canada, they are a reasonable limit in large part because they require proof of a high level of fault in relation to terrorism. That said, these offences will engender the whole range of problems revolving around the relationship between evidence and intelligence. They are not a panacea, but I do think they are a reasonable limit and, in general, prosecution is always the best policy where that is warranted.
My strongest criticisms of this bill are not about what it contains but rather what it does not contain. The bill has some tinkering amendments to section 38 of the Canada Evidence Act. However, the government has rejected the Air India commission's recommendations of a root and branch reform of that critical section to allow trial judges to make and revise non-disclosure decisions, as indeed occurred during the Toronto terrorism prosecutions. In upholding the two-court system, which is also upheld through this bill, the Supreme Court in 2011 made clear that it was concerned only with constitutionality, not efficiency and workability. Indeed, the Supreme Court strongly encouraged trial judges to stay or permanently stop terrorism prosecutions if they had any doubt that information that the Federal Court, a separate court from the trial court, ordered should not be disclosed and that the non-disclosed information may threaten the accused's right to a fair trial.
This is the correct approach if we retain the two-court approach, but, in my view, we need not maintain the two- court approach. Our trial judges can be trusted with secret intelligence and deciding whether it should be disclosed to the accused. This is done in the United States, in the United Kingdom, and in Australia. Even on a per capita basis, our record of successful terrorism prosecutions is much poorer than those other democracies. In my view, the government at least owes Parliament a better explanation about why it has rejected a central recommendation of the Air India commission.
In closing, and in the interests of full disclosure, I will note that — and I am sorry if I am repeating this because I did not hear the introductions — I served as Director of Research, Legal Studies, for the Air India commissions.
Thank you. I look forward to your questions.
The Chair: Thank you, Professor Roach.
Senator Joyal: Professor Wark, in your presentation you alluded to the fact that the government has decided to abolish the position of inspector general in relation to SIRC. In your opinion, what are the immediate consequences of that decision in the budget last week?
Mr. Wark: There are a couple of implications in the decision. One is that with the closure of the Office of the Inspector General, which has been in existence and reporting since 1984 with the passage of the CSIS Act, the government will lose a body of experience and expertise that in the past has proven valuable.
The second thing is that the Office of the Inspector General was created with a specific intent in mind and upheld over a long period of time. The intent was to provide the minister with an independent office — housed within the ministry, reporting to him directly in conditions of confidentiality — that would serve as what was often referred to as the eyes and ears of the minister. It was a way to resolve what is often a dilemma when you have a cabinet minister responsible for a secret organization with considerable powers and sensitive operations under way. That dilemma is you do not want the minister directly involved in the day-to-day operations of such a service. It has to have a degree of independence, but at the same time you do not want a minister kept in the dark.
The office was designed to ensure the minister would have the capacity to be able to reassure Parliament and the people of Canada that CSIS was behaving according to the law, according to ministerial directions and was acting to good effect. Removing that office lessens the capacity of the minister and his department to be sure that CSIS is being held properly accountable.
If I may add, the government's indication was that they were going to pass these powers over to the Security Intelligence Review Committee. There is no indication that SIRC will be given new resources to do these additional tasks, and I do not regard SIRC as the appropriate authority to serve as the eyes and ears of the minister. That is not why it was created. It is an external body meant to report to Parliament. It does not serve the minister.
Senator Joyal: If we eventually have a parliamentary committee that would have the mandate to follow up on the review of security and anti-terrorism activities in Canada, its capacity to assume its mandate would be weakened by the fact that it would not be able to rely on that information to go on with his mandate.
Mr. Wark: It is a hypothetical and I see the committee is chasing this dream, which I fully applaud. I think there would be a diminution of the capacity of any parliamentary committee to explore CSIS operations because it would not have access to the work done by the soon-to-be-abolished inspector general's office.
Senator Joyal: Mr. Roach, I would like to come back to your last comment about the recommendation of the Air India inquiry. I share some of your concerns that by splitting the authorities between two levels of court, the risk of having a stay of procedure is really there.
Why do you think the government has refused that key recommendation of the Air India report? If the risks are there and I think if you speak to any Crown prosecutors they will understand that.
Mr. Roach: Yes, and I have not seen any real explanation about why the government has not. I think that the Toronto terrorism prosecution — where the trial judge in Toronto essentially exercised section 38 functions — shows that trial judges can do this.
My worry is that sometimes it is very reasonable, at the start of a prosecution, to say there will be a non-disclosure order because of an ongoing investigation or vulnerable source. However, trials and defence lawyers being what they are, sometimes we only know in the middle of a trial that something has become critical.
By that time, even if the Federal Court does its job perfectly and efficiently, they will be functus. They will be over. The trial judge will be left in this very difficult position of perhaps ordering a remedy that is actually too strong, that is a stay of proceedings that stops the prosecution where the more appropriate remedy might be to revise the non- disclosure order so that the accused gets a little bit more work.
Comparatively, we have a lot less experience than other democracies in conducting terrorism prosecutions, and I think our security services have been somewhat late to the game in accepting that sometimes disclosure is going to be the price. This will be an issue with the new training offences because CSIS has told us that a number of people have gone to Somalia to be with al Shabaab and others. Someone will have to decide, do you continue intelligence on this person or do you arrest them at Pearson airport or Ottawa airport or Trudeau airport? If you arrest them, you will have to disclose your intelligence.
The other Air India commission recommendation — which the government also rejected without explaining — is that the Prime Minister's national security adviser should be the person to make that kind of difficult choice. There are interests on both sides. Sometimes it will be in the public interest to continue gathering intelligence to keep an investigation secret to protect sources but sometimes, it will be in the public interest to prosecute those people, as is indeed contemplated in this bill. What Justice Major said is that right now no one is calling the shots and we need someone who can call the shots. I think it is regrettable that, having appointed that commission and let it run for four years, that the government has really not given any reasoned explanation that I have seen about why it is rejected; perhaps the two most central recommendations that Justice Major made.
Senator Joyal: None of you made comments about the amendments to the Security of Information Act and the need to amend the act following some court decisions. Do you care to comment, or in your opinion does the bill satisfy your preoccupation in that regard, as drafted?
Mr. Wark: I am a critic of many aspects of the Security of Information Act, not least the definition of persons permanently committed to secrecy and the bureaucratic process. In theory, it underlines keeping records of who those people might be and the kind of impact this has on the possibility of Canadians knowing what they might need to know about past activities on the part of the intelligence community and so on.
When I had a look at the provisions included in Bill S-7 with regard to the Security of Information Act, I did not see these as having a kind of major impact. My memory is they extended some of the penalties for existing punishments under the act. They are tinkering amendments as Professor Roach referred to it. It certainly did not go to the question of the effectiveness the Security of Information Act. There are parts of the act that have been declared non-functional by the Ontario Superior Court. None of the key issues of the Security of Information Act are addressed here. This is a tinkering amendment.
Mr. Roach: I would only add that the failure to respond to the Ontario Superior Court decision also fits into the failure to include the gravamen of the Supreme Court's decision in 2004. Our courts are saying important things about what is wrong or what needs to be written in the law and this bill does not seem to be paying as much attention to it as it should.
The Chair: I should point out it was one of the recommendations of this committee's last report that the role of the senior national security adviser to the Prime Minister be actually legislated and there be a statutory base to define some of his or her activities as the case may be, particularly with respect to oversight and discretion on the some of the critical issues that Professor Roach mentioned a few moments ago. There is some consistency in that respect.
Senator Frum: Professor Roach, you explained that one of your concerns about preventive arrest is that there is no explicit provision about where a person's subject of preventative arrest will be detained. Can you speak more about that? I am trying to picture the facility in Canada that would be unacceptable in your opinion?
Mr. Roach: The legislation is simply silent on that, and as we have not had a preventative arrest there is no practice that I can look towards. However, other legislation, particularly the Australian legislation, is very explicit about no questioning during a period of preventative arrest. You can be visited by their inspector general, which is their equivalent of SIRC.
Although it is not the norm — indeed, our Supreme Court has rejected it as the norm — I would suggest that if someone will be detained for 72 hour, perhaps one safeguard would be to ensure that they can actually have counsel present during that time.
I wish I could give you more guidance on the practice, but the authorities never used preventive arrest. I do not think that is a reason for not enacting them, but I think other countries are a little bit more explicit about where the person is held and whether the person will be questioned during this period of preventive arrest.
Although 72 hours is, as I said, restrained on a comparative basis, it could be a long period of time for a person who is being detained and perhaps constantly questioned during that time.
Senator Frum: You were emphasizing the location where that person is being held or the type of place or room where he is being held. Is there any reason to have specific concerns about that? We do not have a Gitmo, is what I am trying to say. There is an inference that we will put them in Gitmo, but we do not have one.
Mr. Roach: No, and I certainly did not use that sort of language. However, I think it is important that people have access to counsel; investigative hearing provisions quite rightly recognize access to counsel.
As I said, I would go further and contemplate the person being able to actually have counsel present during questioning, given that we are arresting someone not on the basis of reasonable grounds in that they have committed an offence, which is our usual basis for arrest, but rather on the basis that we reasonably suspect.
Senator Frum: Professor Wark, I turn to you as well on the same issue. You said you did not in principle have a difficulty with the use of investigative hearings in recognizance, with provisions. Are you therefore satisfied that the safeguards in place in the legislation are sufficient?
Mr. Wark: Yes. I would bow to the expertise of my colleague Professor Roach on his comparative study on other legal systems that have more experience, particularly with preventative arrest. Broadly, though, I think these powers have a potential use and that use can go beyond the question of whether they are enacted or ever used; they can include a deterrent effect and public education benefit, which is a reason we have laws.
As I said in my statement, we rarely if ever used them, and that has been the experience so far. A lot of the public argument around these conditions has been "if we have not used them, why do we have them?" That is a fallacious argument. There might be rare and unlikely circumstances where we would need them in the future. There are circumstances where our experience with them with regard to counterterrorism operations might have some benefits in terms of other activities to protect Canadian national security.
Broadly, yes, I think they are limited powers. They are not the draconian powers that they are often referred to. I like in particular the fact, through this amendment process and the long period of time when these provisions have been out of operation, that we have come back with addition sunset provisions and with reporting requirements, including a reporting requirement that would have the Attorney General and the Minister of Public Safety say whether they think these powers are not needed in the future. That is valuable and it requires them to think about them and provide a public rationale.
[Translation]
Senator Dagenais: I would like to thank our two guests. My question is for Mr. Wark. I think I understood from your presentation that we also had to be concerned with —
[English]
Mr. Wark: My translation device is not working and I want to capture the precise nuances of the question.
The Chair: What number are you on? The clerk will give you a hand.
[Translation]
Senator Dagenais: I will repeat my question, Mr. Chair. In your presentation, you said we also had to be concerned with the various new terrorist threats. One of the things you mentioned was that terrorists could attack a country's economic performance. For some time now, we have known that in some European countries, economic performance has been, we might say, under serious attack. We also know that the banking system in the United States has recently suffered some very poor performance. Might we think that terrorism could, at some point, be the source of these situations? I would like to hear your thoughts on that.
[English]
Mr. Wark: Thank you. I will respond in English to ensure I can best capture a response.
Your question to me makes me out to be cleverer than I intended to be and I apologize for that. In listing this range of new security threats as I see them — or refashioned security threats — when I mentioned economic turbulence, I was thinking about economic insecurity that is affecting many countries and that might have security impacts if it drives a state into failed state status or if it encourages more organized crime, greater corruption, and things of that nature that could obviously impact on Canada and Canadian interests.
There is a debate among experts about whether organizations like al Qaeda have a genuine economic strategy, which is to say if they choose their targets and think about the possible impacts of their attacks with an economic outcome in mind. Some people will credit Osama bin Laden and the other operational planners of 9/11 with a kind of sophisticated notion about how they might bring down the American economy.
I am not of that view. I do not think al Qaeda and linked organizations have a particularly sophisticated view about the economy, the global system or economic impacts. I think they are fairly classic terrorists in that their objectives are to create terror, which might include a degree of economic terror. I might be underestimating them — I hope not — but I would not give them credit for being very sophisticated in terms of thinking about the economic implications.
Certainly it is the case that Osama bin Laden claimed credit after the 9/11 attacks for the great damage that had been done, at least temporarily, to the American economy. I see very little sign in what we know of al Qaeda planning before the 9/11 attacks to indicate that was actually his intention as opposed a belief that he would so shock the American superpower and shock its self-confidence such that it would suddenly be thrust into decline and open the way to al Qaeda's grand objectives.
Senator Dallaire: There is still a national security policy on the books that is dated 2004. The old regime put it in. However, we have been bombarded by a whole series of new strategies that seem to be very sectoral. This week it is this one, next week there will be another flavour, and we will try to pick up another one as we are going along.
We have been at this again in a hyper mode since 2001. We have invested billions in this, and we are still trying to put together a whole series of different acts and strategies without necessarily giving us a grander strategic focus on how this whole thing is supposed to work together. That would include, I would think, oversight parliamentary work and a national security adviser with power.
Do either of you gentlemen see in your realms that anybody is actually studying that? Do we see anybody in this government actually trying to put that together from that grander strategic version, or have they asked anybody out there to do it?
We always enjoy saying we have the Five Eyes, which we used to call the ABCA from where I am from, yet three out of the Five Eyes have established this. Therefore, what are we waiting for? Can you give me some insight?
Mr. Roach: Thank you for that question, Senator Dallaire. I was quite a fan and remain quite a fan of the 2004 strategy, perhaps more than my colleague Professor Wark.
The 2004 strategy, to my knowledge, has actually not been withdrawn. If you look on the Public Safety website, the last time I looked, there was a one-year update. It is still there, but there has been no updating or visible commitment to it. I think it is unfortunate.
When I looked at it internationally, the 2004 all-risk national security strategy was really ahead of the curve. The Americans moved in that direction after Hurricane Katrina, and the British have also moved in that direction. I think, in large part because of the 2003 SARS crisis in Toronto, we were a bit ahead of the curve. I actually think the 2004 strategy is still a sound basis.
The most recent terrorism-focused strategy that we have — I am sure Professor Wark can speak to this — is very influenced by the British CONTEST strategy, which is a good terrorism-specific strategy.
In terms of the issue of review and oversight, I do think we need to go back to the proposals about parliamentary committees and put them together with part two of the Arar commission, which again the government has rejected and not really provided an explanation of why. If you put those two documents together, I think we actually have a lot of the study that we need done; we just need to move on it.
As Professor Wark said, with this confluence of events, we are abolishing the inspector general; we are taking a long time to replace the head of SIRC — we introduced a bill in the last session — and the RCMP complaints commission fell woefully short of what Justice O'Connor recommended in the Arar commission. We seem to be in an environment where review is not a priority. I think that is a mistake, and I say that not only from a human rights perspective but I would argue also from an efficacy perspective. Effective review, particularly at the parliamentary level — I think as questions came, parliamentarians needed to have the raw materials from those perhaps closer to the coal face.
This oversight is really about making our security policy better, both from an effectiveness basis and also from a propriety or human rights perspective. I do think it is a little short-sighted that we are not articulating an integrated strategy that includes review.
Mr. Wark: That is a terrific question, Senator Dallaire. I have a slightly more jaundiced view of the contents of the original 2004 National Security Policy. I was among a small group of experts brought in to kick the tires of this document before it went out. I think it could have been a much more rigorous and in-depth examination of the nature of the security environment and give Canadians more information than it did.
Nevertheless, I applauded the intent behind it, which was twofold: first, to educate Canadians about the nature of the fast-changing security environment; and, second, in a way it was marching orders internally for the government to indicate how they would pull together its various often disparate activities in the national security and intelligence field and how it would be integrated. There were various proposals built in to the national security policy.
Incidentally, my understanding is that the national security policy was essentially organized within the Privy Council Office. The policy itself was hosted on the PCO website, and it has disappeared from there. It may still be floating around out there, but it has been abandoned by the Privy Council Office.
I would very much like to see the government fulfill the promise it made once upon a time, which was to update and revise the national security policy. This was actually part of, if I recall, an election campaign platform. The Conservative Party indicated it would do this. To my knowledge, for a time after 2004, there were discussions about what a revised strategic plan would look like, but to the best of my knowledge, that has been abandoned in favour of these more specific strategies like the counterterrorism and critical infrastructure strategies.
Senator Dallaire: It was in the 2008 Speech from the Throne. I can see we want to get on with things, but getting on with these initiatives without an overarching philosophy makes the whole thing rather disparate, which quickly brings me to the diaspora.
The increasing size of the diaspora from a variety of areas in the world, which a number of them are still in conflict and have potential conflicts that go beyond their borders, brings us to the question of how you actually implement, as an example, the new dimensions of this act with regard to people travelling and potentially being called upon to go into training or whatever in these far-off lands.
I am wondering whether or not we are bringing something in that actually cannot be implemented or could be a source of very negative abuses on individual rights, such as racial profiling in certain areas if people go to certain countries and the like; and whether or not you believe, no matter what we have heard so far, that juvenile protection laws will protect those under the age of 18 when they face charges of terrorism. The term "terrorism" seems to throw a lot of stuff out the window, and I am wondering whether you believe it actually will maintain its position regarding juveniles.
Mr. Wark: Mr. Chair, I would let Professor Roach respond to the question on juvenile protection because he knows the law better than I do, and I will come back to the other issues.
Mr. Roach: Senator Dallaire, that is an important and troubling question. I do think that the testimony you have heard, which I gather is that the Youth Criminal Justice Act will take precedence, is accurate as far as it goes. However, if adult sentences are sought, then I think there is danger of disproportionate forms of sentence.
Internationally, we lag behind many other countries because our official policy is that once a terrorist, always a terrorist. That is why convicted terrorists are all together in the SHU at Ste-Anne-des-Plaines Institution, and that is why the security certificates have lasted as long as they have.
I think the issue of a youthful person raises an issue that we should be discussing more generally, which is rehabilitation. In countries that I have been to, such as Singapore, where no one will say that Singapore is soft on terrorism, they take rehabilitation of terrorists very seriously, frankly because they have to. I think we can learn a lot about that.
With respect to the new offences, there is always the danger that offence will be applied in a disproportionate or discriminatory way. That was one of the reasons I was saying that passing these offences — too often as a society we think we pass a criminal law and, therefore, that deals with it. That is only part of the process.
I think in many of these cases, there will be high-level discussions between the RCMP and CSIS about whether one continues to keep tabs on this person, perhaps allow them to go to Somalia or wherever, or does one arrest them and then try to prosecute them there? The bill really does not tell us anything about how those decisions will be made.
The Chair: Professor Wark?
Mr. Wark: To come back to the intent behind the law, and I am not speaking to the question of protecting child offenders and juveniles, I think the intention behind the law points to a genuine threat, although I do not think it is a runaway threat. There is clear evidence that a small number of Canadians have been willing to be recruited to take part in terrorist activities overseas or are attracted by the idea of joining a jihad and engaging in terrorist training overseas.
I think for the purposes of Canadian national security in the sense that those people, if trained and if more experienced, might be welcomed back to Canada and do harm to us, but also it has to be said, in terms of reasonable expectations that our allies and other countries in the global community might have of us, that we have a responsibility to watch and control that process.
In practice, given that the requirement will be to be able to prove intent, to travel overseas to engage in terrorism or to train in camps, there will be a high requirement in terms of the evidence that the Crown would have to bring in a case like this. Perhaps this is where Professor Roach's comments about the challenges that will be present in terms of deciding whether to continue an intelligence investigation or to move to prosecution and how you translate intelligence into evidence all comes forward.
I suspect that prosecutions under this act will be quite rare and will be based on a good deal of accumulated information, and we should also keep in mind that it does have legitimate deterrent and public education benefits. It is sending a signal, in essence, to communities: you probably are not going to get away with this; do not be attracted by this because you may face significant criminal sanctions.
The Chair: Point of order?
Senator Joyal: I want to draw your attention, Professor Wark, to the fact that last week we heard from Mr. Fadden. Quoting his brief, page 2, at least 45 Canadians, if not 60, have left Canada in an attempt to go to Somalia or Afghanistan or Pakistan or Yemen to participate in training camps. The number is not insignificant, if I understood the testimony we heard last week.
Mr. Wark: Yes, I would agree. I guess the other part of the glass half full is that 45 or 60 is not a lot compared to the size of the country and the population, but perhaps one is one too many and the bill might have some impact on that.
Senator Andreychuk: I want a clarification from Professor Roach. I have read many of his articles, and he has testified before.
You were saying Singapore. We were talking about juveniles, and you said they put a heavy reliance on rehabilitation. I found that rather curious. Are you saying that the juvenile delinquent process in Singapore is better than the Canadian Juvenile Delinquents Act as it used to be, Young Offenders Act, Youth Criminal Justice Act, other than the ability to raise a charge to adult court here in Canada which I understand exists elsewhere?
Mr. Roach: Thank you for giving me an opportunity to climb back a bit from that.
A couple of years ago I was teaching in Singapore with my family, and I assured my teenage daughters that they would not be caned or anything like that. My point is simply that the people who are detained under Singapore's internal security act — which is certainly not an act that I support, and even Malaysia is trying to get rid of their internal security act — they do have rehabilitation from within Singapore's Muslim community, not only for the adult detainees but for the entire family, and I do think there is something we can learn from that.
I am not saying that we can just take and implement a rehabilitation module, whether it is from Singapore or Saudi Arabia or anywhere. It obviously has to be made in Canada, but I do think that we need to think about this process of radicalization. It is a process of radicalization. It does not necessarily have to be a permanent process because there can be a process of de-radicalization and education.
The Singaporean authorities, to my knowledge, have found people within the Muslim community themselves to be the best positioned to say to people, look, you may think that is what Islam is about, but let me tell you, Islam is really about peace and charity.
I do not have any simple solutions, and it is difficult for Western societies where we tend to want to separate, for good reasons, church and state; but I do think that there are issues of rehabilitation. Frankly, we have so few people in prison that we can ignore that issue, but eventually even the people who are imprisoned will get out, and I do think that rehabilitation is something that Western democracies will have to deal with, if not now then ten years from now.
Senator Andreychuk: Mr. Chair, I take the point of rehabilitation for those who are in custody. I ponder whether in our Canadian system or Western society we could reach out to the families to rehabilitate them, who are neither before the courts nor suspected of anything, and that would be a very, in my opinion, shocking thing to do, to encapsulate an entire family for the act of one member of the family.
Senator Day: You are thinking mandate as opposed to voluntary.
Senator Andreychuk: We have a lot of voluntary services in Canada.
Mr. Roach: It is a good point, yes.
The Chair: We are now in round two for the last question from Senator Joyal.
Senator Joyal: Mr. Wark, you mentioned in your presentation about the announcements or the government policy in relation to use of information that was obtained under torture. Would you care to comment more about your position in relation to that?
Mr. Wark: Perhaps I could at least begin. It is a complex issue, but I will begin by referencing or trying to explain what I meant by seeing the recently released or recently acknowledged ministerial directives on this issue to CSIS as suggesting a declining interest on the part of the government, the minister on accountability. If you have a look in particular at the final revision of the ministerial directive on the handling of intelligence possibly derived from torture, that essentially says that the minister is content that the CSIS leadership, CSIS director or even deputy director of operations should make those sensitive decisions and that there is no requirement in those ministerial directives that the minister necessarily be involved or informed about those decisions.
Given our past, painful experience with some issues where we have either been potentially complicit in the treatment of Canadians overseas because of instances of torture or have found Canadian citizens being tortured because of allegations against them, this is a matter that has to be taken extremely seriously by any minister and should not be subject to a decision to simply allow the CSIS leadership to make those decisions independent of the minister. This was not how previous ministerial directives read, and it runs counter, in fact, to previous government announcements about how they would handle such material. The reason I raised this is I find this a worrying retreat from ministerial accountability on that particularly sensitive issue.
There are many more complex issues around how does one actually deal with intelligence derived from torture that perhaps are a subject for another day.
Senator Joyal: Do you care to comment, Professor Roach?
Mr. Roach: I would only add that the abolition of the inspector general then eliminates another safeguard, so as Professor Wark says, there is nothing in the ministerial directive that puts it on the minister's desk. There is nothing about alerting SIRC. I guess the watchdog that we would have in the event of non-compliance with the ministerial directive has been removed. I actually disagree with the ministerial directive as a matter of policy but it is there. Now we will not even have the inspector general's report. This is, I believe, very worrying.
The Chair: I must say, my reading of the ministerial directive was not to encourage, anticipate or even indicate the appropriateness or the acceptability of information or evidence derived through the use of what we might all consider inappropriate means.
My reading of it was that when CSIS came into information, perhaps from other governments in other jurisdictions, that may or may not have been derived in that fashion, the veracity of that information was not to be set aside ipso facto, simply because of what might have been its potential source relative to that other question. I did not quite read it as any kind of explicit permission for CSIS to engage. In fact, I was of the view that the government was very clear that it neither authorized nor permitted that kind of activity by Canadian law enforcement or intelligence agencies, but that may be an unduly optimistic reading on my part of that directive.
Mr. Wark: If I can just comment, I am not disagreeing with that characterization at all, and there is language in the ministerial directives that indicated the government intends to uphold its domestic and international law obligations, particularly under the torture conventions.
The concern I feel about this, and I believe is shared by Professor Roach, is that there is no requirement for the minister to be involved in a process of decision making about how intelligence, where there is an indication of a greater than 50 per cent chance that it might well be derived from torture, is to be used. It is very unfortunate to disengage the minister from that sensitive policy decision and allow it simply to be a matter for the CSIS leadership to handle.
The Chair: Point well taken.
I want to, on behalf of the committee, express our profound thanks to Professor Wark and Professor Roach. Both of you have been sustaining witnesses in front of this committee over many years. Your advice has always been acute, constructive, balanced and fair. It has helped generate many of our recommendations. It is not your fault that all of our recommendations have not been accepted, but similar recommendations have been accepted and we are glad to share that credit with both of you and express our profound thanks for your presence and assistance here today. Thank you very much.
(The committee adjourned.)