Proceedings of the Standing Senate Committee on
National Security and Defence
Issue 14 - Evidence - Meeting of March 9, 2015
OTTAWA, Monday, March 9, 2015
The Standing Senate Committee on National Security and Defence, to which was referred Bill C-44, An Act to amend the Canadian Security Intelligence Service Act and other Acts, met this day at 1 p.m. to give consideration to the bill.
Senator Daniel Lang (Chair) in the chair.
[English]
The Chair: Welcome to the Standing Senate Committee on National Security and Defence.
Before we welcome our witnesses, I would like to introduce the people around the table. My name is Dan Lang, senator for Yukon. On my left is the clerk of the committee, Josée Thérien. I would like to go around the table and invite each senator to introduce themselves and state the region they represent.
Senator Mitchell: Grant Mitchell, Alberta.
Senator Dagenais: Jean-Guy Dagenais, Quebec.
Senator Stewart Olsen: Carolyn Stewart Olsen, New Brunswick.
Senator Kenny: Colin Kenny, Ontario.
Senator White: Vern White, Ontario.
Senator Beyak: Lynn Beyak, Ontario.
Senator Day: Joseph Day, New Brunswick.
Senator Ngo: Thanh Hai Ngo, Ontario.
The Chair: Colleagues, the Senate has referred to the committee Bill C-44, An Act to amend the Canadian Security Intelligence Service Act and other Acts. We are very pleased to welcome the Honourable Steven Blaney, Minister of Public Safety and Emergency Preparedness, to discuss the act.
We are also pleased to welcome back Michel Coulombe, Director, Canadian Security Intelligence Service; and François Guimont, Deputy Minister, Public Safety Canada.
Minister, as this is your first appearance before our committee, allow me to extend a welcome to you. I'm sure we're going to be seeing you in the near future as well. Although we're here to speak about Bill C-44, we invite you to comment on any other matters you feel important to our work and the work of Parliament.
Before you begin, I want to let you know that I believe Canadians appreciate your willingness to speak bluntly about the terrorist threats that face our country, and we hope such plain language will become the norm as opposed to political correctness.
The minister will be with us until two o'clock, and then his officials will stay until three o'clock.
Once again, I would like to welcome you, Mr. Minister. I understand you have some opening comments.
Hon. Steven Blaney, P.C., M.P., Minister of Public Safety and Emergency Preparedness: Mr. Chair, I certainly want to thank you and the honourable senators for welcoming me on my first appearance before the Senate committee and also acknowledge the great work this committee has accomplished over the years and the importance of the committee, and the Senate as well, in accomplishing for all Canadians.
[Translation]
Mr. Chair, I would like to thank you for welcoming me today. I am fortunate to know some senators personally. I thank you for your contribution to Canada's democracy and the important work you are doing on this bill, which is intended to clarify the powers of the Canadian Security Intelligence Service.
[English]
As you know, the "Protection of Canada from Terrorists Act" was originally intended to be introduced the very day Ottawa was attacked by a jihadi terrorist on October 22. I was thinking that we would be able to begin to work on that very day and table it that day, because during caucus day we are not sitting. I was expecting I would be able to table it on the Wednesday afternoon, but that did not happen.
This criminal singled out and attacked Corporal Nathan Cirillo, who was wearing the Canadian military uniform as he was standing on ceremonial guard at the heart of our nation's capital. Undoubtedly, this was a terrorist attack, a disgusting crime.
[Translation]
This was an attack committed in the wake of another that occurred in Saint-Jean-sur-Richelieu, two days earlier, and just before those that followed in Sydney, Australia, and in Paris.
[English]
These horrific attacks made it abundantly clear that we must do everything within our power to find and stop terrorists who are willing to do anything to hurt innocent Canadians. As I have said numerous times, Mr. Chair, we will not underreact to the terrorist threat nor will we overreact.
[Translation]
That is why it is important to ensure that we strengthen all four pillars we have for preventing terrorism.
[English]
Let me reiterate why I'm here today. I'm here for Bill C-44. The bill in front of us was already in the making, ready to be tabled even before those attacks occurred.
[Translation]
Our senators know this. Threats to the security of Canada do not stop at our borders. People travel, arrive and leave the country towards unstable areas of the world to take part in terrorist activities.
We must ensure that the Canadian Security Intelligence Service, which was set up 30 years ago, continues to have the necessary tools to investigate these threats and prevent any terrorist acts that might follow.
I would like to give you an overview of the bill.
[English]
Mr. Chair, let me repeat again that the bill before us today makes only targeted and limited amendments to the CSIS Act. This bill was in the making long before we had those terrorist attacks that shocked us all in Canada.
These amendments are necessary to address important issues raised by the courts and do not expand CSIS's mandate or alter its duties and functions. They simply allow CSIS to keep its efficient role of collecting information to protect Canadians.
CSIS has always had the authority to investigate threats to the security of Canada outside of Canada. Parliament always intended that CSIS be able to pursue its investigations wherever activities related to a threat to the security of Canada may occur.
[Translation]
It is inconceivable that Canada would provide that such terrorism investigations could be undertaken only outside its borders. What is at stake, however, is the fact that a recent decision of the Federal Court of Appeal raised important questions about certain aspects of CSIS's mandate and investigative powers. This is why it is important for us, as legislators, to ensure that the Canadian Security Intelligence Act clearly states, in black and white, that CSIS does in fact have the power to conduct investigations abroad.
This ensures that the legislation will make it very clear that the Federal Court will have jurisdiction to issue warrants authorizing the Service to undertake certain activities outside Canada when investigating threats to the security of Canada.
[English]
This legislation will also make it clear that the Federal Court needs to take into consideration all relevant Canadian law when issuing warrants for these types of activities. In other words, the courts will not have to consider the laws of the foreign nation where the activity will take place.
Mr. Chair, we believe that the Canadian Charter of Rights and Freedoms provides sufficient guidelines for the activities of CSIS. Asking them to abide by the laws of possibly failed states where the activities would take place, as some have suggested, is simply ludicrous.
Parliament did not intend for CSIS to have to meet this kind of threshold when the CSIS Act was passed, and this Parliament should not expect it to do so either.
[Translation]
Similarly to what is done in the various police forces, CSIS relies heavily on information provided by human sources during its investigations. As is often the case, police officers use informants to obtain the information they need to arrest and convict a criminal. They are able to access this information because the common law has long had strong protection mechanisms against the disclosure of identity of police informants in court proceedings. These protections allow officers to assure informants that their identity will not be revealed, except in certain circumstances.
[English]
You may have looked at the definitions in the bill and the importance of privacy and trust that is built between the agency and its sources to collect accurate information. CSIS must ensure a bond of trust with its sources.
In May 2014, the Supreme Court stated in its decision on Mohamed Harkat that the common law privilege protecting the identity of police informers did not apply to CSIS human sources. It upheld the decision on security certificates, but we need now to make sure that human sources are protected under Canadian law.
This creates a serious issue for CSIS. Their human sources may decide not to share information if they do not feel confident that their identity will be protected. For that reason, we are amending the CSIS Act to prohibit disclosure of the identity of CSIS human sources in legal proceedings, subject to certain exceptions to ensure consistency with Canadian law.
You can look at proposed section 18 of the bill where it clearly spells out how we intend to proceed with fully complying with Canadian law.
[Translation]
Finally, we are also making amendments that will help protect CSIS employees. At present, it is an offence to disclose the identity of a CSIS employee who is now or was in the past involved in covert operations. Disclosing this information is a criminal offence. However, the Canadian Security Intelligence Service Act does not have the wording needed to apply the same protection mechanism to employees who are likely to participate in covert activities in the future. We are thinking of the new generation of intelligence officers who might not have access to this type of activity because their names have been disclosed. We therefore wish to correct this situation by changing the wording in the legislation.
[English]
In addition to these changes, Bill C-44 contains amendments to the Strengthening Canadian Citizenship Act in order to allow provisions to come into force earlier than anticipated. This is a "speeding up" clause, if I can put it that way. These relate to the ability of Canadian authorities to revoke the citizenship of dual citizens who are convicted of terrorism, high treason, treason or spying offences, depending on the sentence received.
Canadian citizenship is a precious possession. Individuals who commit terrorism offences have shown they fundamentally reject the values of all other Canadians. They are betraying their oaths of allegiance. Our government fundamentally believes that we should not share our citizenship with someone who would cut off heads because of a difference of beliefs.
What neither we nor Canadians understand is why the opposition opposes these important measures. Recent events at home and abroad demonstrate the need for these measures to take effect sooner rather than later, and that's what you are suggested to support today.
[Translation]
Mr. Chair, Canadians expect the government to protect them against terrorist threats, especially those we face today. They expect to be protected against all forms of terrorism, but particularly the one we are facing today, international jihadism; they expect us to do that both here and abroad. This is why it is so important to clarify this.
We simply want to confirm the Canadian Security Intelligence Service's ability to operate here and outside the country; we want to protect intelligence sources and prohibit disclosure of the identity of employees who might well end up taking part in prevention and information exchange activities.
I will be pleased to answer your questions about the bill, and I hope to have the opportunity to come back soon to talk about other measures our government is taking to fight against terrorism.
[English]
The Chair: Mr. Minister, thank you for your overview of the bill.
If I could go back in history with our committee, as you mentioned earlier, over the last two years we have had a number of witnesses before our parliamentary committee: the Chair of the Security Intelligence Review Committee last year, the National Security Advisor, the Privacy Commissioner and others before our parliamentary committee. The question that has come up and is part of the political debate taking place in Parliament is the question of accountability of CSIS.
I have a question to start. Why did you not bring further review measures in this bill on behalf of SIRC so that it would complement what you are doing?
Mr. Blaney: I thank you for your question, Senator Lang. It is certainly important that we ensure the activity of the intelligence community is astutely monitored by an independent body.
There are many ways in which we can be proud of the Canadian model we have with which to hold to account our intelligence community and, more particularly, CSIS.
As you've seen in the process, every time CSIS is willing to commit activity that could infringe on the rights of Canadians, they have to seek a warrant, so judicial oversight is embedded in the process. Before they can do that, they have to see me, the Minister of Public Safety, where I evaluate their request. For that, I rely on the experts of the Public Safety Department, so that is a second level of monitoring as the process is ongoing.
You also are well aware that while we have those oversight mechanisms, we also have a strong review body, which is the Security Intelligence Review Committee. Their mandate is given to them by the government, and they see themselves as being the extension of Parliament. They are reporting to Parliament on the activities conducted by CSIS. They are independent, they have continuity and they have the expertise. This is certainly a very important tool that we have.
You may be aware that the Supreme Court stated in a court decision that SIRC is striking the right balance between privacy and the necessity to conduct intelligence activity.
I must tell you that no model is perfect, but we can certainly be proud of the Canadian model we have implemented. In this bill, as you know, there are already provisions to protect those who could face a trial when information that is provided could lead to accusations and to charges.
I will be more than happy to come back on Bill C-51, which is another bill we are debating today, where you will see that there are numerous ways in which we are increasing judicial oversight and mechanism review to ensure that the rights of Canadians are protected, and so are their freedom and their privacy.
Senator Mitchell: Minister, one of the unsettling features, generally, about the radicalization debate and, specifically, the debate about Bill C-44 and ultimately Bill C-51 is the tendency on the part of some to stigmatize and isolate a given group and to name names of people with unsubstantiated allegations of associations. Of course, it happens that often Muslim Canadians — who, like you and me, love their kids, want to build a great country and have helped us build a great country — have been singled out. It is leadership at your level and at the Prime Minister's level that can really change, alter and enlighten the climate of the debate.
I'm wondering whether you have said or whether you can get the Prime Minister to say as well that Muslim Canadians are part of the Canadian family, that we are all in this together, that they understand that and they are working with all of us Canadians to ensure that we deal with radicalization in a fair, open and effective way.
Mr. Blaney: Absolutely, Senator Mitchell, and I could not agree more. We are all together in this — all Canadians.
The fact of the matter is, as you know, terrorism is certainly a national security priority. It is our priority and it is my priority, but what we have seen is that high-risk travellers are increasing in number. That's why this is a Canadian challenge that we are facing: Canadians who were born here who could be willing to travel abroad to commit terrorist attacks.
Of course, Canada condemns all forms of terrorism from wherever they are coming, and both the bill in front of us today and Bill C-51 are targeted to better prepare and protect Canadians against those threats.
To get back to what you've just said, I clearly remember Prime Minister Harper, following the attack of October 22, thanking the Muslim communities who were condemning those violent terrorist attacks. I take part in cross-cultural round tables and meetings with members from all the ethnic communities, and it is certainly important that we keep on in this direction.
In a more broad approach, as you know, the bill we are talking about today is clearly a response to the invitation made by the court to clarify the legal authority. More broadly, if I may, we are engaged in fighting terrorism. It goes with preventing radicalization, identifying individuals who could be lured into radicalization and preventing them from acting or, if necessary, reacting. For the first time in history, we have developed and articulated a counterterrorism strategy where we are putting a lot of emphasis on prevention and developing a counter-narrative so that those who could be lured into radicalization have an alternate discourse where they can be prevented from going.
So, yes, we have a leadership role to play. The community also has a leadership role to play. As a Canadian, I find it important that we distance ourselves from any form of support of terrorism. As you know, this is part of Bill C-51 that we are willing to bring to this committee in the near future.
Senator Mitchell: I appreciate that answer. In answering the question, you established that clearly terrorism is a priority, but on Friday we heard the commissioner publicly state that he has now taken 600 investigators from what they were doing before and put them into terrorism. In one sense that is good, but he has done that in the context of a 15 per cent cut, and it's leaving at least 600 empty spaces looking at other features of crime. How is it that you can square the sense of this being a priority while at the same time cut budgets and lever resources that were elsewhere? Who is fulfilling those jobs?
Mr. Blaney: I am certainly appreciative of the RCMP adjusting to the evolving threat and reallocating human resources in the short term to face the terrorist threat.
As you know, our government has strongly supported both our intelligence agency — Mr. Coulombe is here today — and the RCMP. We have increased the budget of our police officers and intelligence by seven times, and like any other agency, they were asked to rationalize and optimize their efforts. I think this is what the taxpayer expects from any one of us.
That being said, the budget of the RCMP has increased by one third since we took office, and we are always monitoring and evaluating the resources needed so that the RCMP can fulfill their mandate. I agree with you that while we are putting emphasis and resources on the terrorist threat, it is also important that we keep pressure and sufficient resources in other areas such as organized crime, cybercrime and drug-related activity. We are constantly monitoring their needs.
But I must tell you that I appreciate at this time that this important reallocation of resources is telling of the current level of threat we are faced with and the importance that both police officers and we as politicians respond in a responsible manner.
The first thing is to give back the basic tool that our intelligence needs to keep us safe in collecting and sharing information with our allies, such as with France, Australia, Great Britain and the United States. We are currently blinded in some ways by the fact that we cannot share information. Especially when Canadians are travelling abroad, we are faced with a situation where we cannot, as we did in the past, exchange information with our partners. I think that is essential, and I think that is why your support for Bill C-44 is so important.
Unfortunately, we didn't get the support of the NDP, but we got the support of the Liberals for the bill. I hope we will get your support for the bill, which is important. We have a responsibility to make sure that we are legally providing the tools necessary to those who protect us so they can act. You can add a lot of money, but if you do not have the needed power, you will not achieve your goal of protecting Canadians.
Senator Mitchell: Thank you, minister.
In your speech on the second reading of Bill C-44, you mentioned that the counterterrorism strategy is based upon three strategies, one of which is building community capacity. Could you give us an idea as to what you are specifically doing to build community capacity beyond the point you made about a counter-narrative? Are you getting into communities? Are you providing services and support? What kind?
Mr. Blaney: Thank you for the question.
First, our counter-strategy for terrorism has four pillars. It's very easy: prevent, protect, detect and respond. This strategy was prepared by my predecessor. We didn't get the support of the opposition to bring that strategy, but we feel it is important.
Obviously this strategy has been carried by Public Safety, CSIS and also the RCMP. The RCMP is playing a key role in reaching out to communities. You may seek some additional information from Commissioner Paulson. Hundreds of activities have been held by the RCMP that involve reaching out to communities throughout the country where they have met with community leaders. As I have indicated before, I also met with many of them at our round table, as has my colleague Minister MacKay. We are working at the community level with the leaders, and we are certainly willing to improve the way we are reaching out.
I must tell you, we can be proud of the effort that has been devoted by the RCMP. They have a website where you can download their strategy on preventing radicalization and numerous activities. They have a record that is important, but we need to keep those efforts high because we can see the threat is there.
Although they are reaching out, I can give you an example that is not part of this bill today. As we speak, if there is a website promoting hatred, extremist ideology, we cannot shut this site down in Canada today That is why I am willing to come back to speak to the committee to see if we can fix that, but as of today, I am seeking your support for Bill C-44.
[Translation]
Senator Dagenais: We are aware that there is a list of potential terrorists. Right now, as we speak, have you updated this list of Islamic terrorists who are either in Canada or outside our borders?
Mr. Blaney: Obviously, those are operational issues. I would not want to cast blame on anyone. I will respond for the Royal Canadian Mounted Police, since it is not represented here today. A certain number of names were disclosed. The RCMP has stopped disclosing that information. What is important for us is to ensure that the agency has the tools and resources it needs to address that evolving demand. Mr. Coulombe can tell you more.
Michel Coulombe, Director, Canadian Security Intelligence Service: I would add that when that information was disclosed about a year ago, we felt it was important to provide an overview of the scope of the problem. Over time, I have come to think that it is not all that useful to disclose information that is constantly changing; this may have an impact on operations, reflecting the impact on our investigative capacity.
Instead of giving an exact figure, we would say that there is an increase, not a steep increase, but that this phenomenon is a problem in terms of the growing number of people who travel or who seek to travel, as Commissioner Paulson mentioned last Friday.
Senator Dagenais: Mr. Coulombe, I would go back to what Mr. Zehaf-Bibeau said. We know that he had a rather lengthy criminal record, and yet he moved freely between Seattle, Washington and Ottawa.
Will the new bill make it now possible to track the movements of suspected Islamic terrorists?
Mr. Coulombe: I cannot speak to Zehaf-Bibeau's specific case because there is an ongoing criminal investigation into his activities. First, Bill C-44, by confirming our ability to work abroad and also clarifying that the Federal Court may issue warrants authorizing operations outside Canada, definitely enables us to determine exactly what kind of activities these people are involved in.
[English]
Senator White: Mr. Coulombe, thank you very much for the response, but there is an importance for Canadians to understand the seriousness of the situations we're dealing with. I agree that 131 individuals may not be helpful, but I think we would agree that understanding that it is a growing problem and that there are in excess of a hundred is important as we try to prepare legislation as well.
Mr. Coulombe: Like I mentioned, if you remember the number that is floating around, it is around 140 to 150. It is growing incrementally, so it is not in the thousands today.
Senator White: Understood.
Mr. Coulombe: I'm reluctant now to give numbers because, like I said, people get fixated on that number, which tomorrow or in 10 minutes will be inaccurate. Also, continuously giving a number could actually reveal where we have to deploy resources, and I'm reluctant to do that.
Mr. Blaney: I do support this decision. Once you are dealing with a number, then you want to break down on the number. Are those travellers here? Are they abroad? Are they still alive? Numbers bring many issues.
What is important for us is also to bring the strategy, the tools and the resources necessary to tackle the issue. As Mr. Coulombe has indicated, the importance of this as we speak is we don't necessarily have the capacity to track those individuals once they have left because we have limited resources abroad. If we can share information with our allies, we will be in a better position to track and make sure that those individuals don't represent a threat if they were willing to come back into the country.
The Chair: I think this is a very important policy decision here and not necessarily outlining the scope and the magnitude of the threat that Canadians face. I recognize that these numbers do change on a daily basis, and that's fully recognized I think by most Canadians. But the reality of it was that last year, because those numbers were brought forward to this committee, it was brought to Canadians' attention that there was not only a threat but a real threat to Canada, and then the events started to play themselves out, which verified the scope of the threat.
Mr. Minister, would you reconsider at least some way of informing Canadians on a continuous basis, not every day, obviously, but some way so that we understand what the threat is but most importantly alert Canadians so that if they are paying attention and do see something they will make the call? If we don't know the scope of the threat, then you might not get that phone call. I just want to lay that on the table.
Mr. Blaney: Mr. Chair, I appreciate that. As you know, on a current basis we are always assessing the terrorist threat. There is a special unit within CSIS that assesses the threat and shares this information on an operational level with those who are involved in the security community.
As you know, every year we publish this report on the terrorist threat, which is widely used and is a reference. We can also make it available to members of the committee as well.
Senator Kenny: Once a year wasn't the point you were making, chair.
Senator Lang: That is correct, Senator Kenny. I wanted to make a point that on a quarterly basis Canadians be made aware. That way, on a continuous basis the Canadian public is made aware of the threat out there; they're paying attention. If we're not informed, then obviously two weeks from now a lot of us just go on with our business and don't necessarily pay attention.
At any rate, I will leave that with you and go to Senator White.
Senator White: Mr. Coulombe, in relation to the Target Approval and Review Committee, could you, without being specific — I understand that you cannot be specific — give us an idea of what we are seeing beyond ISIL and Boko Haram and others, whether or not there are other groups we are focusing energy on as well, related to terrorism specifically?
Mr. Coulombe: Obviously a lot of the focus in the last 18 months has been on the events in Iraq and Syria, so ISIL is at the forefront. The first thing I would say is that we shouldn't lose sight of the fact that al Qaeda, what we call the al Qaeda core, the bin Laden organization, is still a potent terrorist organization that is not just based in Afghanistan and Pakistan, but also has affiliate groups in Yemen with AQAP, in the Sahel and elsewhere. We can't lose sight of that.
To go back to ISIS, ISIS started in Iraq and Syria, but what we're seeing now — and you have seen it in media — it is spreading in Libya, Afghanistan, Pakistan. Boko Haram actually just pledged allegiance to ISIS. There also is this phenomenon of ISIS spreading.
There are also groups like Hezbollah, Shiite groups that are still terrorist organizations and that we are still preoccupied with in terms of activities, so it is not just ISIS. It is important not to lose sight of that.
Senator White: It is important that Canadians understand this isn't a new phenomenon for us and that it has been around for a while.
Minister, we heard from Commissioner Paulson last week, but to be fair, prior to October 22 we heard from police leaders, including the commissioner, in relation to the difficulty around peace bonds and timeliness.
We have heard from some Crown witnesses who would state that they believe in the system, that attending to the Crown, the Attorney General, to get permission is necessary. I'm not sure in today's world that we aren't in a place where maybe we need to be shifting toward allowing police agencies, specifically the RCMP, to obtain a peace bond more rapidly to protect Canadians. We heard it was an issue in relation to one of the people in October.
Do we anticipate a shift in the law or a change that would allow us to not have to deal with similar circumstances in the future?
Mr. Blaney: I thank you for your question. This question would address Bill C-51 more than Bill C-44.
Senator White: I apologize for that, minister.
Mr. Blaney: As you know, there are provisions and I expect to come back here to address what we feel is an important issue in terms of what we call lowering the threshold. We believe it is of the utmost importance that both police officers and our intelligence community act under all the Canadian laws and respect the Charter of Rights, as well as respect the privacy of Canadians. That is why in the bill that I hope to bring back to this committee there are provisions for not only robust judicial oversight whenever an activity could be conducted relating to a peace bond or recognizance with conditions, but also the consent of the Attorney General.
We believe that the bill that will be brought forward actually increases the rights and better protects the privacy of Canadians while at the same time, in a more practical manner, increases the capability of our police officers when there is an imminent threat to prevent it from happening and better protect Canadians.
Senator White: Thank you very much, Mr. Minister.
Senator Stewart Olsen: Thank you for being here. My first question is related to measures that would enhance security within the country, and I was looking particularly at the Canada Border Services Agency and their most-wanted list. Would you consider the same kind of thing for CSIS if it were solidly proven, if it weren't just wild allegations, but solid proof behind it, providing that to agencies in Canada so that people could know and be aware?
Mr. Blaney: Thank you for this suggestion. I received the suggestion made earlier of keeping Canadians well informed.
The experience we had with the CBSA most-wanted list was a huge success. There was a huge involvement of the public. We realize that every time we are given a tool so that the public can help our law enforcement and help us, it is a tremendous success. I will take your recommendation into consideration and share it with both my department and the intelligence community.
Of course, these lists are the result of a collective effort since many people are involved, but this is a worthy recommendation. As I indicated, it also helps Canadians feel that they are involved and they can do something.
What can sometimes be frustrating is that a terrorist threat is hard to tackle. What I also like about your idea goes back to the definition of a terrorist attack. In the definition of a terrorist attack, it is said to impress and to target for political purpose and commit violence. The purpose of a terrorist attack is to create damage and to impress the whole society. In that regard, I would certainly take into consideration this worthy recommendation.
Senator Stewart Olsen: I have a short point on Canadians being aware. We have heard a vast array of witnesses in this committee. What we found is the absolute devastation faced by the parents, relatives and families of those radicalized people. They didn't even see this was happening. The more information they can get to try to identify it is a much better thing for all of us because this faces all of us. That's what this committee has shown from people of all walks of life.
I want to ask you about the problem of foreign funding coming into the country and being used to radicalize people. Do you have any way of monitoring or stopping that?
Mr. Blaney: Yes. I welcome your comments and your questions. I feel they are totally accurate.
Unfortunately, this might not be the last time a public safety minister appears in front of this committee to tackle terrorism. Since 2001, our country has been engaged with many efforts to deal with this issue and adjust to its evolution. That's why we set up the list of terrorist entities.
The listing is critical and very important. Why? Because it cuts, at the source, the funding of those organizations. We have seen money being funnelled into Canada to go elsewhere and support terrorist entities. Now we realize what could be happening is money coming from the outside to fund potential terrorist activity. I welcome the work your committee is doing on this issue. I also understand that the Finance Committee is studying this issue. I'm looking forward to your recommendations. We must do everything we can to cut the sources of funding for those who would fund or support terrorist activity in the country.
To get back to your first question, which is what the RCMP rightly calls the sphere of pre-criminalization, a lot can be done in our country to prevent those who could fall into radicalization before they get criminalized. This is why it is so critical that this first pillar, the prevention pillar, be reinforced. There are elements in Bill C-51 that address this issue, for example stopping criminalization and criminalizing the promotion of terrorism where words have a strong importance and enabling our intelligence officers, once they have identified an individual who could be radicalized, to take action to reduce that threat. If we were able to prevent radicalization from happening instead of responding to a terrorist attack, imagine the magnitude of the impact and how we could dramatically reduce it.
Yes, we are engaged in this prevention effort and, yes, we need to see how we can better support families who are being impacted by radicalization. That's why, as you may be aware, our government and my department has invested in the Kanishka Project which is aimed at doing the necessary research to find out how terrorists operate. You have seen some initiatives, such as the extreme dialogue that came out of this project, which are aiming in the right direction.
Senator Beyak: Thank you, minister, for an excellent presentation and for explaining Bill C-44 to Canadians, who are pleased to see the new tools you are providing. Canadians are warm, diverse, welcoming and caring. We're not concerned with race or ethnicity but rather with the radicals amongst us. This bill gives us clear tools to identify that.
I wonder about two publications, the 2014 Public Report On The Terrorist Threat To Canada and Building Resilience Against Terrorism: Canada's Counter-terrorism Strategy. Both of them are very clear in their terms when describing the threat.
Since 2012, it has been a bit looser, and we're talking about extreme travellers. Can you assure me that your department, CSIS and the RCMP will go back to the clear terms that all Canadians understand so that we can report threats if we see them?
Mr. Blaney: Yes. I learned an English expression that says if it quacks like a duck and it walks like a duck, it is a duck, so yes, I fully agree with you that we have to call it a cat if it's a cat.
[Translation]
A French thinker, Albert Camus, said that naming things badly added to the misfortune of the world. It is important that we use the appropriate language to describe the threats we face, ensuring that we do not ostracize any segment of the population whatsoever and that we keep thinking clearly and realistically.
[English]
Senator Beyak: I also wondered, minister, if your department will also be able to continue performing due diligence on the people we work with. We know we have to ask the tough questions here in the Senate about people's affiliations, about who is funding them and what board members they have. Do you have a similar department that would do that as well?
Mr. Blaney: Yes, we do. It is always important to be careful in that regard. So far, I believe we have been taking the right direction.
My understanding is that your question is about ensuring that we do not support being endorsed or acquainted with undesirables or people that could be linked to terrorist activities. We certainly are aware of that.
Senator Beyak: Thank you very much.
Senator Kenny: Minister, I was pleased to hear your support for a program dealing with pre-criminal radicalization. Could you tell the committee how much funding you have allocated for this in addition to what has already been spent with Kanishka?
Mr. Blaney: I could get back to you with those numbers.
If I could speak to you in terms of the activities we have done, these are actually current activities held by the RCMP because they have been mandated to lead our pre-radicalization effort. I have a number here. The RCMP has delivered terrorism and radicalization awareness training to over 1,800 participants, including law enforcement and first responders, nationwide. We can also provide you with a list of all the organizations that have been met by the RCMP. I don't have it with me today, senator, but I can forward it to you. Hundreds of organizations have been reached by the RCMP throughout the country. They have taken part in a number of initiatives. They have also deepened dialogue with communities by holding dozens of sessions in communities per year. Important work is happening on the ground.
It is also important to mention that we are not alone. We are also working with our provincial and federal partners who are engaged in preventing radicalization. Federal, provincial and territorial ministers are committed to working together and preventing further radicalization.
While the Kanishka budget was held and managed by Public Safety, and my deputy minister is indicating to me it was $10 million over five years, there is also the ongoing resources that the RCMP has dedicated to preventing radicalization.
Senator Kenny: My question actually had to do with funding. I would welcome any information you can provide on that.
Mr. Blaney: Okay.
Senator Kenny: Also, some details of some of these numbers are quite astonishing. Perhaps we could have some indication of time frames and where these meetings happened and what was involved. For example, is it just a mailing list of 1,800 you're mailing out to? Is it a meeting that takes place in Ottawa or someplace else?
It would be interesting also to know how much of it is new and how much of it is incremental and has been added since the government first started to focus on that.
Mr. Blaney: I want to thank you for your question. You raised a very interesting question.
Last week I was meeting with community representatives in the city of Toronto and had the privilege to meet with Toronto police officers, who are also doing community outreach and are gradually implementing into their current activities counter-radicalization activity. I met a gentleman who was from Afghanistan who is now working in the police workforce. I can certainly provide you with a list of meetings with communities that have taken place by the RCMP throughout the country.
If you ask me, I think we will, yes, have to allocate special resources, but also we have to see those activities as being inherent in the work of the police officer in terms of crime reduction and reaching out to communities.
Yes, I will certainly make sure you are provided with this list. I don't have it with me. I have seen it a few times from the commissioner. I asked the same question you did.
Senator Ngo: To what extent are family members of the same religious background coming forward to identify radicalized individuals? How often and how common is this?
Mr. Blaney: If you ask about the support of the community, I can give you a famous example — the Toronto 18. This was one of the worst terrorist attacks we could have experienced in this country, and thanks to the Muslim leader, we were able not only to stop this attack but to charge the individuals. This is a vivid example of the importance of the support of the communities. I can't find any better example of how successful this has been in derailing a terrorist attack of, I would say, evil proportions.
On an operational basis, I would defer your question to those involved, whether local police activity or to the service.
I don't know if you want to add anything, Mr. Coulombe.
Senator Ngo: Do you know of family members coming forward to identify their son? In Ottawa we have Madam Walrond who did that, but are there any other cases? How common is this?
Mr. Coulombe: There have been other cases. It's hard for me to say how common it is because some of them will go to the local police, the RCMP. I'm aware of only a sample of this, but it is happening.
The Chair: Has any thought been given to having a designated telephone line for those who do want to call to disclose some information, knowing it is important to the authorities yet at the same time there's obviously confidentiality involved?
Mr. Blaney: I believe Mr. Coulombe wants to answer that question. Whenever you are contacting your police officer, whether in Lévis, where I come from, or in Yukon or anywhere, local police are working hand in hand with each other, so the information conveyed to the local police will be conveyed. Mr. Coulombe would maybe like to say something more.
Mr. Coulombe: I certainly don't want to talk for the RCMP, but I know they do have a tip line. Also, we have a phone number. If you want to pass information or your concern about an issue, you can go on our website and there is a way, either through email or phone, to contact us.
The Chair: I will go on the website and see if I can find it.
Mr. Coulombe: That's a good question because, as always, the issue is to make sure that it is known, first, and, as you said, it doesn't take half an hour to find.
The Chair: I'll let you know.
Senator Mitchell: We had two professors here last week, Dr. Dawson and Dr. Hiebert, who are excellent researchers into the causes and the possible catalysts for radicalization, because many people go through the same process and don't get radicalized. They and others are funded under the program that you just mentioned, Kanishka. That funding is up in a year. Have you given any thought to renewing that funding? They made the point that really we're at the early stages of understanding the process of radicalization and we need to do research in a structured and concerted way to find out more.
Mr. Blaney: Yes. I am glad you recognize the importance of the research that has been accomplished over the five years by the Kanishka Project. As you know, that was a result of another tragedy that occurred.
In the last five years, we have built this foundation of knowledge on how terrorists operate, how they actually lower, if I could use the expression, individuals, and the impact of it. So build on that knowledge. We I believe are now ready to move to a second step, which is to take more dynamic counter-radicalization and preventing radicalization initiatives, such as the one we have seen as the research for Kanishka, which is at the end of this five-year cycle, turning into action such as you may have heard of, the extreme dialogue initiative, which is applied research, where we have video. I was able to go on the web and see the reaction of a mother who has seen her teenager falling into radicalization, and ultimately he lost his life.
I believe at this point in time we need to turn all this foundation of research into action.
Senator Beyak: Thank you, gentlemen. You have answered most of my questions already today, but I did wonder about the United Against Terrorism handbook that we have had mixed messages on from various witnesses. If any of you could clarify for us, some have told the committee that the RCMP withdrew from the book because of its adversarial tone. One of the authors told us that, no, they didn't withdraw from the handbook or request that their logo be removed, and another told us that there are actually individuals listed in the book who have connections with radical Islamist groups.
If you could provide any clarification today or get back to the committee at some point in the future, we would appreciate it.
Mr. Blaney: Thank you. We will certainly do that.
I have also the tip line, Mr. Chair; it's 613-993-9620.
[Translation]
If people have information to report to authorities that will help track down terrorists, they can call this number and the information will be considered.
[English]
Senator Kenny: Is this a ministerial tip line?
The Chair: I'll put it in my BlackBerry.
Colleagues, I just have one other overall question, and it is in respect to Senator Mitchell's question and others in respect to going forward and how we're dealing with it; in some cases it would be within the Indian community, in some cases from extremists; there are other parts of the community and then obviously within the Muslim community.
When you take a look at the individuals who have come before our committee — I can name a few, such as ex-MLA Dave Hayer, ex-Premier Ujjal Dosanjh, Balraj Deol. From the Muslim community there were well-respected individuals such as Salim Mansur; Syed Sohail Raza; Michelle Walrond, who was the mother of an individual who has been involved in one manner or another; and Homa Arjomand.
I have an overall question. These are very courageous Canadians who have come before this public forum and the cameras here to give a clear understanding of how they see the day-to-day situation here in Canada. What I would ask of you, minister, and the various departments is what are you going to be doing in respect of giving them and their organizations the moral support they need so they are recognized within their communities, that the government sees them as reputable, honest, and bringing forward alternatives to combat what is a very real threat to Canada?
Mr. Blaney: I believe you are setting the path forward for the next step in our fight against terrorism, which is to articulate preventing radicalization and this counter-narrative. I believe the individuals you have just quoted are those leaders that we need to work with and articulate. I certainly feel that in my capacity of showing leadership in terms of addressing terrorism strategy, we certainly would be interested in reaching out and creating this network of experts who are credible toward those who could be radicalized.
You are giving me good advice on where we should move forward, senator, and I thank you for that.
The Chair: Thank you, Mr. Minister. We have taken little more time than the hour. We appreciate you coming forward and having this debate, and we look forward to having you here again in the very near future.
Mr. Blaney: I'm looking forward to coming back soon.
The Chair: I would like to once again welcome François Guimont, Deputy Minister, Public Safety Canada; and Michel Coulombe, Director, Canadian Security Intelligence Service.
I would ask you to introduce the other witnesses, Mr. Guimont.
François Guimont, Deputy Minister, Public Safety Canada: Ms. Girard is with Citizenship and Immigration Canada. She is here if there are some questions with respect to the advancement of certain provisions with respect to revocation of passports. Ms. Clairmont is Senior Assistant Deputy Minister with Public Safety Canada in the area of national security. Everybody knows Mr. Coulombe. Ritu Banerjee works with Ms. Clairmont. She's director responsible for security issues. Ms. Nathalie Benoit is legal counsel with Mr. Coulombe from CSIS.
Nathalie Benoit, General Counsel, Canadian Security Intelligence Service: I'm also legal counsel with Citizenship and Immigration.
The Chair: I understand there are no opening statements. We are dealing with Bill C-44.
Senator Mitchell.
Senator Mitchell: Thank you to all of you for being here.
One of the core features of Bill C-44 is the protective class, and it raises this anonymity for sources. That raises a couple of things. It raises the issue of how the RCMP and CSIS cooperate, in particular because the RCMP have a higher standard by which they will protect someone, because apparently they understand more specifically, or their needs are such that when it comes to prosecution, if they protected someone too soon or inappropriately, they may not get a prosecution.
On the other hand, CSIS is looking for information. It could be preventative, and that's good. In the Air India case, the prosecution was not successful because someone was protected too early.
How are you working that balance in this act? You will actually have the power to protect someone. Will you be utilizing that power in closer discussion and collaboration with the RCMP?
Mr. Guimont: Thank you for the question. I will start and then look to my colleague to finish.
Essentially what is being sought under Bill C-44 would bring CSIS employees to the same level of protection that the RCMP has under the Criminal Code, grosso modo. That's what the thinking is about, because at one point assumptions were made that that protection existed. We're just going to be clear that that protection can be provided to employees that are engaged now, were engaged in the past or are likely to be engaged.
I will let my colleague add to this.
Mr. Coulombe: You talked about the relationship with the RCMP, and you mentioned Air India. Over 30 years have gone by. I have been with the service for 29 years, and I have seen and in some way helped shape that relationship, and it is as strong as it has ever been. I think the proof of that is the number of successful prosecutions in terms of terrorism, and you can go back to 2004 with Momin Khawaja.
The commissioner testified in front of a parliamentary committee, for example, about this now joint operations centre led by the RCMP with partners like us, CIC and others to do case management. At the end of day, it means for each case what is the best way to go forward and achieve the objective where we have the common objective of safety of people. The cooperation and discussion between the service and the RCMP in terms of measures we're taking is to make sure it's not going to impede possible criminal prosecution down the road or when we are running parallel investigations. That is happening every day at the regional level and the headquarters level. So I really don't think what is in Bill C-44 in affording protection to our human sources will change any of that interaction between us and the RCMP.
Senator Mitchell: Bill C-44 gets into the issue of more powers and Bill C-51 even further. In the past, there was a position of inspector general that facilitated the reporting to the minister of what was CSIS doing. SIRC, the review board, has been critical of that process not working particularly well. One can only imagine that it will work less well without the inspector general. The argument used is that SIRC now has that responsibility, but they didn't get the $1 million to go with it and they don't have much of a budget anyway. How can we reassure Canadians that what CSIS is doing is being reported adequately, in a timely way and effectively, at least to the minister so we can have some assurance that there is at least some transparency, although I use that word lightly, in that relationship?
Mr. Coulombe: The last time I was here — a year ago, I think — I testified and I still truly believe that SIRC is a robust review mechanism that has made CSIS a better organization.
In terms of the inspector general and SIRC assuming the responsibility, for example, of certifying that my annual report to the minister is accurate and everything we have done is in conformity with the CSIS Act and the ministerial directive, I guess I will let SIRC speak through its latest annual report, where SIRC said:
Far from compromising its independence, however, this relationship has substantially added to SIRC's role in the system of accountability and has, if anything, deepened SIRC's ability to reassure Parliament and Canadians regarding the activities of the Service.
They said at the beginning, two years ago, they did have concern about assuming that responsibility, but now two years down the road, they are saying it makes them a better review organization.
Mr. Guimont: I would like to add as well, not to lose sight of the fact that the department also has a role to play vis-à-vis the roles and responsibilities of CSIS, that I, Ms. Clairmont and, certainly, through the minister, we have those responsibilities and we have discharged them, and I would make that observation. For instance, I have to approve warrants, the minister has to approve them and they have to be considered by the judge.
The last observation I would make is that SIRC is at the centre of the review capacity, but the Office of the Auditor General can at any time also review aspects of CSIS. So there is the department, the minister, my accountability, SIRC in the middle and the OAG, which, from time to time, may decide to review any aspects of CSIS operations.
I just wanted to share that. Sometimes we forget the front end, the role of the department and also the role of the OAG in the mandate of CSIS.
Senator Mitchell: As a follow-up to my first question, former Justice Major in his inquiry made the recommendation that extending protection, anonymity for a source, should not be implicit — and there is some fear that this bill does makes it implicit — that anybody getting protection is given it explicitly. That has not been considered as a necessary or acceptable amendment to this law, yet some pretty significant legal minds have said that should be the case. Otherwise, you will run into the problem of not being able to prosecute successfully because someone has taken for granted and can win the assumption that they have been given anonymity and protection.
Ms. Benoit: I can provide some clarification for this. The definition in Bill C-44 of "human source" provides that the individual must receive the promise of confidentiality. What we indicated is it does not need to say "explicit" in the act because it may rebut some sources, but the fact that the promise has to be given is sufficient in the definition of clause 2 of Bill C-44.
Senator White: Thanks to all of you for being here today. It is appreciated.
I understand there is one exception to the disclosure of source identity. Can you walk us through that exception and the impact it could have or even give an example for the viewing public?
Mr. Coulombe: Actually, there are two exemptions. If, in the course of a proceeding, one of the parties of that proceeding believes that the identity we're protecting is actually not a human source — so it does not fit the definition that will be in the CSIS Act — or if they believe the information we are trying to protect would infer the identity of that person, then they can apply to the Federal Court for an order to have that information disclosed. Now, there is a regime of appeal, but that's exemption number one.
When it's the prosecution of an offence in a criminal setting, if it is believed that identifying that source is crucial to establish the innocence of the accused, then that's the second exemption where the identity of the source could be revealed.
Senator White: Is there also an option in the second exemption for the Crown to withdraw the evidence of a source, rather than disclosing the source, as there would be in a criminal trial?
Mr. Coulombe: Yes, as always. I would say not just in the criminal trial. At any point we can withdraw information if we believe disclosure would be injurious to national security.
Senator White: In essence, this is very similar to what we would see in any criminal trial in Canada, with any police agency, except we're now giving the same authorities for a criminal trial for the purposes of a CSIS investigation.
Mr. Coulombe: Yes, it's more or less the same class privilege protection that would be given to an informant.
The Chair: I want to follow up because I don't have a legal background. I'm looking at the proceedings, and we are dealing with one of the most serious crimes that one could deal with when it comes to terrorism, if you look at the Khawaja decision in respect to how the courts viewed the seriousness of these cases. In situations where there may be requested to disclose who he or she is, can that be done in a closed court as opposed to open court to ensure that all aspects of the case are kept in context in respect to the seriousness of the situation we are dealing with?
Ms. Benoit: The provisions in the proposed amendment do provide that a Federal Court judge, a designated judge, would review the information, and the judge would decide if it will be a closed hearing or, if possible, to have an open hearing. It will be left to the discretion of the judge.
The Chair: Thank you.
[Translation]
Senator Dagenais: Thank you to our witnesses. Mr. Coulombe, how would the failure to enact Bill C-44 hinder the Canadian Security Intelligence Service's ability to carry out its mandate?
Mr. Coulombe: There are three ways, in my opinion. We talked about the protection of human sources. These people, especially when it comes to terrorism, work with CSIS, and in doing so, they risk not only their own lives, if their identity is disclosed, but also the lives of their family, and I would even say their extended family, if they have one still in their country of origin, for example.
In this regard, I would like to stress the importance of this protection. When the Supreme Court considered the Harkat case and ruled that the privilege protecting the identity of police informants did not apply to CSIS human sources, the Superior Court nevertheless said the following, and I quote:
[English]
That the practice of calling human sources before courts, even in closed proceedings, may have a chilling effect on potential sources and further recruitment.
[Translation]
Protecting people is not the only vital issue; the fact remains that if sources are routinely disclosed, it will be extremely difficult for CSIS to recruit people who want to work with the Service. This is the first way.
We also talked about protecting CSIS employees. The current law states that if CSIS employees are currently or were in the past engaged in covert operational activities, their identity cannot be disclosed. The bill proposes to extend this protection to employees who, in the future, will be involved in such activities.
For example, there are young intelligence officers who come to CSIS. If the fact that they work for CSIS is disclosed during their first year of service, it will be impossible to use these people in covert operations for the rest of their careers.
The third way in which the bill is going to help us, and we talked about it, is by clarifying the fact that we have the authority to conduct operations abroad and that Federal Court judges have the authority to issue warrants that have effect outside Canada.
Senator Dagenais: My question now is for Ms. Benoit. How has the Federal Court of Appeal ruling on Re X affect CSIS investigations abroad?
Ms. Benoit: If I understand correctly, your question is about the bill's provision that the Federal Court will have jurisdiction to issue warrants that have effect outside Canada.
Senator Dagenais: Yes, that's right.
Ms. Benoit: It is important to understand that the amendments apply only to the Federal Court's ability to issue extraterritorial warrants. This was necessary because, in the past, the Federal Court of Appeal decisions were not always clear. The fact that judges could issue warrants that applied abroad was not specific enough. This clarification will remove any ambiguity in the future, and judges will not have to wonder whether they can issue a warrant that may apply outside of Canada. This ends a long legal saga with the Federal Court.
Senator Dagenais: Thank you very much.
[English]
Senator Day: Thank you all for very much for being here. I confess to following the media and looking through the papers confusing Bill C-44 and Bill C-51. The attention seems to be pretty extensively on Bill C-51 these days, but we are dealing with Bill C-44. I will try to keep my questions to Bill C-44, but if I stray off into Bill C-51, you will help me out.
I see where Bill C-44 in proposed sections 12 and 15 of the act is basically confirming what CSIS is already doing in terms of inside and outside Canada. Where I need a little bit of help is with respect to the amendments to section 21 of the act. I'm wondering what triggers section 21 applications to a judge if the director or someone else who is designated believes that a warrant is required on reasonable grounds.
First, the reasonable grounds seems to be applied to thinking whether a warrant is needed or not needed, so I would like your guidance on what reasonable grounds would be applied by the department to determine whether they should or should not apply for a warrant. I see where it says "threat to the security of Canada," whether in Canada or outside of Canada, "or to perform its duties and functions under section 16," normal duties and functions as well as the higher standard of security.
Can you help me with this two-pronged or two-track approach under section 16? Do you have a protocol for the minister? The minister has to approve this as well before you go before the judge.
Mr. Coulombe: I'll try my best.
In terms of the reasonable grounds under which a warrant is required, the exercise we go through and what we have to demonstrate to the judge in Federal Court is that we have tried other means of obtaining that information. Either it is impossible through other means or we have tried those other means and it has failed, or it could also be because of the imminence of the threat — for example, if we had to recruit somebody, a human source, because of the delay. You have to demonstrate to the judge the reasonableness in terms of other means of obtaining that information, and we need a warrant to do it.
In terms of section 16, it is actually foreign intelligence, so the capability, intention or activities of a foreign state. It is really important to understand that in the act it is clear there are geographic boundaries to what we can do under section 16, meaning we can only collect under this section within Canada.
That collection can also be done through warranted powers. We would have to go through the same process, go to the Minister of Public Safety, go to the deputy minister and the minister, they approve, and then we go to the Federal Court to obtain warranted powers to collect under section 16, but it is limited to Canada in terms of that section.
Senator Day: You already have the authority externally, and you are drawing a distinction between foreign intelligence and security issues within Canada?
Mr. Coulombe: Yes. Security intelligence, which is section 12, threat related, there is no boundary; we can do it here or overseas. This bill is now explicitly saying in the CSIS Act that for section 12, we can conduct a threat-related activity investigation abroad. Nothing in this bill changes section 16. It is within Canada.
Senator Day: The final part of my question is with respect to the protocol you have convinced the minister of. Is that this reasonable grounds test we just heard about from Mr. Coulombe?
Mr. Guimont: The minister has to be satisfied that the warrant is properly packaged as to the right rationale.
The way it normally works is Ms. Clairmont's group will be in dialogue with CSIS as the file is being assembled. Ms. Clairmont will then sign off the package to me. I will sit down, be briefed, discuss and make sure from my vantage point it is as complete as it can be. The same will be done with the minister's office; a briefing will take place. It is a very iterative, tiered process where there is plenty of room for questions to be asked and answers to be given.
After the minister signs off on the warrant, it goes to a federal judge for essentially approval, but it can also be denied and/or modified. Generally speaking, the quality of our work, I would say, allows us to be able to obtain the warrants, but that is not to say that judicial overview or review is automatic. There is discretion on the part of the judge.
Senator Day: My next question flows from the question of confidentiality and human sources of information that the RCMP had and because of a court case you are not obtaining within certain limits in this legislation. However, we don't see anything about Foreign Affairs intelligence collection or National Defence intelligence collection, and I'm sure there must have been some broader discussion than just the departments or the agencies that you represent.
Is there a need to broaden this and should we be thinking about protection of sources for the other departments that are clearly involved in collection of intelligence?
Mr. Coulombe: Thank you for your question. Honestly, that is beyond the remit of the service, and it would actually start as a policy discussion best left for government and parliamentarians. I can't really talk for DND or Foreign Affairs.
Senator Day: The point I'm trying to get to is, when this decision was being developed, there must have been broader discussions. There must have been somebody putting his arms around all of this and asking who is collecting intelligence here, for what purposes, and do we need this kind of protection broader than just for CSIS? Or was it only developed from a policy point of view to deal with the Harkat court case?
Mr. Guimont: As you probably all remember, there was a legal case. A legal decision essentially put some questions around the capacity of the service to do what they have been doing for years. The premise is that we, the government, wanted to take an approach whereby we focused on that issue.
Just to be clear, as was said, this preceded October 22, meaning this thing had been in the mill for quite a while. We took a specific view of powers or capacities that the service had that were being challenged or questioned. We wanted to bring about clarification.
In our mind these are not new powers, if you wish. It's more about providing legal certainty, transparency; it is about predictability. In areas where it was judged it was not clear, fine, we did that. We took a very focused approach to these amendments.
To segue, the broader aspect of terrorism and the more comprehensive response of the government are more contained in Bill C-51 than Bill C-44, which is clarifying authorities that the Director of CSIS, the department, frankly, thought we had all along.
Senator Day: Thank you. That's very helpful.
Senator Stewart Olsen: If you could just clear up a question, I am confused. I am not a lawyer, but the current section 18 of the CSIS Act includes an offence for disclosing information that provides for interfering with the identity of a human source or a CSIS employee engaged in covert operations.
Clause 6 of the bill maintains the offence of disclosing information with a slight modification but appears to delete the offence related to the disclosure of information about a CSIS source. Does the bill maintain it as an offence? If so, where in the CSIS Act would that be?
Ms. Benoit: You have a good understanding of the CSIS Act. Bill C-44 proposes moving away from an offence and building a protection from disclosure in proceedings. The SOIA, the Security of Information Act, will create an offence for someone to disclose the identity of a human source.
We have better protection for human sources in proceedings where it was the most needed, and the offence has been in the SOIA since 1985, so after the first time the bill was enacted.
Senator Stewart Olsen: What would be the penalty for disclosing?
Ms. Benoit: Under the SOIA, I think it is 10 years, minimum.
Senator Stewart Olsen: And now?
Ms. Benoit: Now it is 10 years. It used to be 2. I can tell you that.
Senator Stewart Olsen: That's okay.
Ms. Benoit: It is in the current act, but it will be changed to a stronger offence.
Senator Stewart Olsen: What CSIS activities outside Canada would require a warrant?
Mr. Coulombe: At the moment, it would be the same type of activities that require a warrant in Canada. So when there is a breach of section 8 of the Charter, we require warrants.
Senator Stewart Olsen: Is it the same in the bill?
Mr. Coulombe: Yes.
Senator Stewart Olsen: Thank you very much.
Senator Beyak: Thank you all for your work on Bill C-44. It is comprehensive, balanced and excellent. I thank you for that. I have the same concerns as Senator Day, but I think you have answered them.
I wondered why you didn't feel the need to amend section 16 of the CSIS Act. Does the power outside Canada cover the Minister of National Defence and the Minister of Foreign Affairs if they needed your assistance?
Mr. Coulombe: You mean in terms of protection of sources?
Senator Beyak: Yes.
Mr. Coulombe: Those are two different issues. The issue of protection of sources, what is being proposed now in terms of protection of human sources for the service is sources supplying information for both 12 and 16. There's no distinction in terms of protection.
To go back to the earlier question in terms of protection of people who would cooperate not with us but with Defence, you have to remember that this is in response to the Supreme Court decision which dealt with protection of human sources for the service.
Senator Beyak: Thank you very much.
The Chair: We spoke about warrants in reference to how you go about obtaining a warrant successfully. Can you give us some sort of rough idea of how many warrants you would be dealing with in a year? Is this an ongoing basis where you have a warrant every day? In realistic terms, exactly what are we dealing with here?
Mr. Coulombe: Yes, that number is in the SIRC annual report, and I will refer to it because people I work with know I have a bad memory and I wouldn't want to mislead the committee. It is just a question of finding it.
The Chair: With the new legislation, will that increase or will that stay the same?
Mr. Coulombe: I don't see a drastic increase. The changes here give us the ability to have the warranted powers to do things overseas. It could increase, but I wouldn't see a drastic increase in terms of the number of warrants that we would go forward with to court because of this.
Mr. Guimont: It is probably accurate to say that since the legal certainty around the powers, vis-à-vis outside of Canada, we have refrained from seeking warrants for that component until such time as it was clarified.
That segment, if anything was decreased, so it will go back to status quo vis-à-vis the threat of today.
Mr. Coulombe: You have to realize, since the decision by Justice Moseley came in the fall of 2013, we have actually stopped warranted powers outside Canada, so it went down slightly. Like Mr. Guimont was saying, it will probably go back up to where we were in 2013.
That said, though, we're talking about the impact of Bill C-44. We're not talking about the impact of the increase in terms of volumes of people we are investigating, which is another story.
To go back to the beginning of your question, to give you an idea — and that can be found in the latest SIRC annual report — in 2011-12 we applied for 50 new warrants, and two years later, 2013-14, we applied for 85 new warrants. That is not counting renewals. Renewals went from 156 to about the same, 178. There was a much greater increase in terms of new warrants, which speaks to what I just talked about, the increase in volume in terms of people we're investigating.
The Chair: I am trying to be practical about the legislative measures we have before us. Looking back to 2013 and now, did you find that in view of the fact that we didn't have this legislative certainty that it weakened the position of your responsibilities vis-à-vis internationally to be able to obtain the necessary intelligence with our partners and on the ground? Did you feel that it was really a negative for your day-to-day work?
Mr. Coulombe: Actually, it had a huge impact on what we can do. With this phenomenon that we labelled "foreign fighters," once they left Canada basically we were unable to utilize warrant powers against those individuals to track them and to know exactly where they were, what were they doing and when they were planning to come back.
The Chair: So this is going to be a real added tool to your tool kit in respect to dealing with the serious situations we are facing right now.
Mr. Coulombe: In the current threat environment, this is an essential tool.
Senator Mitchell: I have three quick questions. The idea that foreign money is being funnelled into Canada institutions or groups somewhere that is being used explicitly to radicalize was asked of the minister. Do you have documented evidence of that? If so, why is it that we haven't seen any of that apparently acted on? Could you give us some statistics on that? Is it different from what FINTRAC is doing if you were to have acted on it?
Mr. Coulombe: I don't have numbers with me, but in terms of terrorist financing you mentioned FINTRAC. It is not just the service. Again, it is something that we work together with partners. It is FINTRAC, CBSA, the service and the RCMP working together in terms of stopping the flow in and out of money in support of terrorist activities.
I don't have numbers with me. If that's the will of the committee, Mr. Chair, I could provide some numbers.
Senator Mitchell: I would like to see data that says, "There is this kind of money going to this kind of group, there is experience with it, and you are on it." To this point it is an allegation. We haven't seen documented evidence.
My next question is a follow-up to a question from the chair to the minister about the hotline. He answered it saying there are at least two, one in the RCMP and one in CSIS. There's also evidence that some families, perhaps, are concerned about phoning the police or a policing-type agency when at the early stages of trouble with their child because they are afraid they will go to jail for 30 years. In the States they have started, if I'm not mistaken, hotline operations where there is a level before you have to go to the police. Have you thought about the possibilities this opens up, namely more people seeking help earlier?
Mr. Guimont: The minister was making references to Kanishka and also the work that Public Safety, the RCMP and CSIS are doing on preventing radicalization. Kanishka is essentially academia and other people working, either together or separately, on proposals they filed with the department with a view for us to better understand radicalization and terrorism activities writ large. That's the first observation I would make.
They're coming with interesting findings, including the point you are making, which is that some research work that has been carried out shows that often in situations of terrorist-type activities, members of the family — or if it's not family, acquaintances around an individual might be aware — are aware to a certain level of what is going to happen or the radicalization process that is unfolding. Your point about early intervention within families or communities is probably very important.
The second observation I would make is we have been active — Public Safety, the RCMP and CSIS — in taking action vis-à-vis communities and engaging in dialogue. When we think of preventing radicalization, we have three poles of action. The first one is training.
One senator here knows very much that law enforcement is used to a number of things. Their world is evolving quite rapidly, but radicalization is a different kettle of fish. Therefore training, by allowing law enforcement and first responders to acquire knowledge as to the triggers or elements or manifestation of radicalization, is very important. Training is the first pole of activity.
The second pole of activity is engagement. That's the one you are raising more directly. With that one, it is everybody's business: the family, the community and opinion leaders. We have a role to play, as do the RCMP and CSIS. In these informal settings, we try to build a dialogue so as to understand the narrative and to be able to offer a counter-narrative.
The third pole of intervention is what we call targeted interventions, where instead of going writ large vis-à-vis communities, we take a more systematic intervention with certain areas where there are higher priorities. This is something CSIS has done in the past. When we talk about preventing radicalization, these are the actions we take. We have a family of actions under those broad headings.
The last observation I would make is the minister, the department and our colleagues are part of this initiative and also interact with the cross-cultural round table, which is a group of individuals who are opinion leaders in Canada from various walks of life. This group has been meeting quite regularly and has been mandated with work so that we can get their best advice in furthering our work on a number of topics, including the prevention of radicalization.
That's a bit of the continuum of what we're doing on the prevention of radicalization at the present time.
Senator White: The U.S. happens to be in the middle of the trial right now of the Boston bomber. We know in that case that the local police were left out of the loop when it came to the FBI dealing with the individuals who ultimately ended up bombing the Boston Marathon.
There is always a concern in Canada that the same thing might happen, that local police authorities — and to be fair, the RCMP aren't a jurisdictional police service in either Ontario or Quebec, our two largest provinces — might be left out of the information loop, possibly because they don't have the clearances required to receive the information from CSIS or even from the RCMP in some cases.
Would the department support requiring police agencies across this country moving to a higher level of security clearance so that that couldn't happen unless it was a mistake by the authorities, rather than right now and the necessity of leaving them out of the information sharing?
This question is outside of C-44, but I saw it as an opportunity, Mr. Chair.
Mr. Guimont: Good question. I haven't discussed this issue.
Senator White: I would take a response later, if you wish.
Mr. Guimont: Yes. We will look into that, Mr. Chair.
Senator White: Thank you very much.
Senator Day: I am back to the issue of applying for warrants. I want to clarify this. I understand there's an ongoing court process as to the expansiveness of section 21. Are we waiting for the Supreme Court of Canada to determine whether it will or will not allow the appeal?
Ms. Benoit: The appeal is before the Supreme Court of Canada.
Senator Day: They have given leave for the appeal?
Ms. Benoit: Yes, they have.
Senator Day: I wanted to clarify that. That process is there. Now we have this legislative process. It will be interesting to see if they converge somewhere along the line. It is important for us to understand that it is there.
Section 21 is being amended here to make sure that it is within and outside of Canada, but subsection (3.1) is being added to section 21. It relates only to certain activities as opposed to the broader approach that appears in subsection (1). Why is it being restricted?
Ms. Benoit: We need to understand that the amendments do not change the current warrant regime as it has existed since 1984. The amendments will simply confirm that the Federal Court can issue warrants that will be applicable outside of Canada.
Senator Day: As well as inside of Canada?
Ms. Benoit: As well as inside. There have been ongoing court decisions that have questioned this authority.
Senator Day: That issue is now before the Supreme Court?
Ms. Benoit: There are two issues before the Supreme Court. It would be difficult for me to comment on these specific issues because they are before the court, but the issue of the section 21 judge being able to issue warrants outside Canada was decided by the Federal Court of Appeal. That's not an issue I believe that is before the Supreme Court. The two other issues would be before the Supreme Court.
Senator Day: The subsection you are adding, (3.1), why was that necessary if you have already, in subsection (1), that it is inside and outside Canada? Why is (3.1) necessary? It reads:
. . . a judge may, in a warrant issued under subsection (3), authorize activities outside Canada to enable the Service to investigate a threat to the security. . . .
Not foreign intelligence-gathering, but a threat to security.
Ms. Benoit: There would be two components to the answer. We needed this to be clear because when we're asking a court to issue warrants that will apply outside of Canada and saying, "Well, you don't have to consider international law, the law of the foreign country," it needs to be very clear. An aspect would be that if section 16 is not changed by this, it would be within Canada, as 16 stands. The changes we have made to section 21, the new (3.1) only applies to what we call section 12 warrants that relate to a threat to the security of Canada.
Senator Day: Unfortunately, I don't have the current act.
Ms. Benoit: If you look at the current section 21.3 of the CSIS Act, it already provides that a warrant can be issued, "Notwithstanding any other law but subject to the Statistics Act . . . ." That's because SIRC has to provide numbers, but it was already there. We're just clarifying to make sure that the judges don't question again their authority to issue such warrants.
Senator Day: The other question that I have flows from that. You indicated earlier that Bill C-44 was in the works prior to the October 22 action here on the Hill and at the War Memorial.
The citizenship aspect of this was passed not that long ago and what this legislation is doing is accelerating certain provisions of that. Does that fit within this, before October 22, or is the citizenship portion of this bill a reaction to October 22 saying that we need this to come along a little sooner than we had earlier planned?
Nicole Girard, Director General, Citizenship and Multiculturalism Branch, Citizenship and Immigration Canada: You are quite right. The provisions of the Strengthening Canadian Citizenship Act received Royal Assent in June of 2014, and the implementation plans to bring those into effect have been under way for quite some time.
In light of these more recent events, certainly there was a desire to speed up these provisions, as the minister mentioned in the first hour, and the objectives are consistent. It is about protecting the safety and security of Canadians.
Just to be sure that we understand one another, these are minor technical amendments to the Strengthening Canadian Citizenship Act. There are no substantive changes. It's simply enabling these particular provisions to come into force a little sooner than the rest of the provisions of the bill.
Senator Day: Had October 22 not happened, we wouldn't have this? This would have come in in due course as planned, in the spring of 2014?
Ms. Girard: I can't really speculate, but that's a reasonable premise.
Senator Day: Thank you.
Senator Ngo: The CSIS documents released under an access to information request show that CSIS targets are characterized as being terrorists, extremists, supporters or sympathizers. First, could you define each of these terms for the committee?
Second, could you explain the significance of CSIS's use of the level of sympathizer in order for the target to be investigated?
Mr. Coulombe: In terms of the definition for each of the terms, I will have to provide that later. From memory, I wouldn't do them justice.
Senator Ngo: That's fine.
Mr. Coulombe: What's important to understand is that there are two reasons why we have that lexicon. Number one is to ensure consistency throughout the organization when people are describing a subject of investigation. Also, it was something that was recommended through a commission of inquiry so that when we share information with partners, the description is consistent, accurate and clearly reflects the type of activities the individual is involved in.
When it comes time to target somebody, the definition itself is not important. What is important for us when we decide to target or not target somebody is the activities involved. Do those activities meet the definition and the threshold defined in the CSIS Act? Do we have reasonable grounds to suspect that Mr. X is involved, in the case of (2) (c), for example, in supporting or threatening or using violence to promote a political, ideological or religious objective? That's the criteria we look at in terms of whether or not we target somebody as a subject of investigation.
Depending on that type of activity, he will be defined as sympathizer, depending where he fits. If you have somebody who is actually involved in fundraising or logistical support, it is different from somebody who is actually in Iraq and Syria and getting training in bomb-making, for example.
But what is really important to understand is that the threshold to investigate somebody is based solely on the type of activities he's involved in and do they meet the threshold of the reasonable ground to suspect?
Senator Ngo: It means you only investigate these people after you label them as a terrorist, sympathizer or supporter; is that what you mean?
Mr. Coulombe: What I mean is that once they come to our attention and we make the determination, we will investigate somebody depending on the type of activities and where he fits. If possible, I will provide that definition.
Senator Ngo: I still don't understand. Let's say a person is a sympathizer and you start your investigation of that particular person. As a sympathizer, I don't know, I support the idea or maybe I don't have any activities.
Mr. Coulombe: I don't want to mislead because I don't have the definition with me. For example, we have information that somebody is spending all day long watching jihadist videos on the websites. He's looking at ISIS videos. He has a Facebook page where he's saying what ISIS is doing is good. Again, if I had the definition, he could be labelled as a sympathizer. Now, is that enough for us to start an investigation? Again, the test will be, does it meet the threshold of the reasonable ground to suspect that what that individual is doing is enough to launch an investigation?
If somebody is doing more, if somebody is actually planning and buying equipment to build a bomb, that's going to be a different level of activity.
I think it will be much clearer once you have those definitions.
Senator Beyak: Thank you again for your work on this. Our committee is as committed as you are to handling this correctly. Canadians who are watching this at home have great respect for CSIS and the work that you do and have concerns and are much more knowledgeable than I thought on the whole terror threat. The Target Approval and Review Committee, the CSIS body, chaired by the director and the other senior officials, examines and approves service officer applications to launch investigations. CSIS has three levels of investigations. Level 3 is the most intrusive and subject to the most stringent legal controls in management. Level 2 includes personal interviews and limited physical surveillance. Level 1is short duration and permits CSIS to collect information from open sources and records held by foreign police security or intelligence organizations.
Would you be able to explain in the time permitting how CSIS identifies individuals it believes to be security threats and then targets them in the security level?
Mr. Coulombe: Before I talk about how we identify them, maybe I could just make a correction. What you're describing is no longer the way it works. We now have two levels of investigation, level 1 and level 2, and there is no longer the targeting approval review committee. That authority to launch investigation was actually delegated down in the organization. So the description is a bit outdated.
In terms of how somebody comes to our attention, there are numerous ways. We were talking earlier about a member of a family or a community phoning the tip line. That could be one way. It could be foreign partners. A Canadian may be involved somewhere across the globe in what we believe are terrorist-related activities, and that foreign partner advises us. It could be through one of our human sources. There are a number of ways that somebody could come to our attention.
Senator Beyak: Would you clarify which section has been removed and whether it was under this bill or a previous bill?
Mr. Coulombe: What I'm talking about is actually not in the act. Those are internal policies of the service. When we actually change internal policy, and again it is in the CSIS Act, we have to consult with the deputy minister at Public Safety. We would obviously also advise SIRC that we're changing internal policy. It is not a change to the legislation; it is internal policy.
The Chair: I would like to ask one question. It has to do with Canadian citizenship and the dual citizenship of an individual who is obviously involved in a terrorism activity. I want to get a practical look at how this works. If a decision is taken that that individual should no longer have his or her Canadian citizenship, exactly how does that process work and how long would it take for that revocation?
Ms. Girard: Certainly it would depend on the nature of the case. There would be two decision makers. The Minister of Citizenship and Immigration or his delegate would decide the vast majority of cases, the more straightforward cases, particularly the ones involving the types of convictions that the minister mentioned earlier, whether it is a terrorism conviction or a conviction for treason, high treason or spying, depending on the sentence received. The minister would decide on those cases. Alternatively, those more complex cases involving a person who may be a member of an armed group or an armed force or organized armed group engaged in armed conflict with Canada, those citizenship revocation cases would be decided by the Federal Court.
In general, it is fair to say the decisions will take a number of months to reach. A number of safeguards in terms of fairness are built into the process as required.
In general, the process would proceed like this: The department would put together the case in terms of the evidence and would put that up to the minister to review. The minister will have to decide whether he is satisfied that that case should be pursued in terms of pursuing the revocation. If so, then the notice of intention to pursue revocation would be issued to the individual. They would be made aware of the formal allegations against them and on what evidence that is based. The evidence will be shared with the individual concerned. Then the individual will be invited to make submissions with regard to their case and whether they have any rebuttal, et cetera.
That information is put together. If it is the minister who is deciding, it is put before the minister. The minister will have to decide whether or not to have an oral hearing with the individual based on factors set out in the regulations. In any event, every individual has the opportunity to be heard on paper.
The minister will take their decision, if it's the minister deciding, as I outlined, and then those decisions are subject to review by the Federal Court if the decision is against the individual and the individual is choosing to pursue that type of recourse.
The Chair: Colleagues, I would like to thank our guests for attending.
Joining us on the next panel is Mr. Ray Boisvert, Former Assistant Director, Intelligence, CSIS. Mr. Boisvert has spent well over 20 years with the service and has practical understanding of the act and what the recommended changes will mean on the ground to someone who must follow the legislative measures once they've been put into effect.
Mr. Boisvert, welcome to the committee. I understand you have an opening statement.
[Translation]
Ray Boisvert, Former Assistant Director, Intelligence, CSIS, as an individual: Good afternoon, everyone. I would like to go directly to questions, because, in my opinion, this is really the best way to exchange ideas.
[English]
But being a person who doesn't normally like to be scripted, I'll still commit to that only in the first instance in the sense I wish to get on the record a few thoughts I have on the legislation and the context of working in a place like the Canadian Security Intelligence Service.
I left CSIS almost two and a half years ago, after almost three decades of work as an intelligence officer, as a manager, and then as a senior executive. I left as the assistant director of intelligence, as Senator Lang has mentioned.
During that time, I witnessed the service grow up as an institution or organization. I saw it adapt to the various threats and the environment that was changing rapidly around us as operators within that organization.
It went from the Cold War, involving spies and alleged subversives, to homeland issues of terrorism such as those involving Armenian and Sikh extremism events in the 1980s, several of which touched this city, including the assassination of a Turkish military attaché, Atilla Altikat, in 1982.
Of course, there are the insurgencies that reigned in Latin America, whether it be the Sendero Luminoso of Peru, the Sandinista threat in Nicaragua, or the advent of the Shia and Hezbollah types of extremism we saw in places such as Lebanon in the 1980s, leading in the 1990s, and then the Sunni extremism of the al Qaeda version that emerged prior to 9/11 and in copious amounts post-9/11.
During my tenure in national security, I have to look back and say that I have never observed the type of intensity and velocity of change we are seeing currently, as we face threats involving the will to use violence to achieve a political-religious objective.
Although I will focus my comments on counterterrorism this afternoon, I would be remiss if I did not draw the committee's attention to the fact that the current threat environment is much more than just al Qaeda, the Islamic State or the issue that is topical of late, which is homegrown radicalization.
Let me go through a couple of examples because I'd like to remind us all of the following: the importance and impact of devastating cyberattacks targeting our intellectual property. Let's remember the hack of the National Research Council just in the last year; the fact that in the U.S.A. every two seconds a person falls victim to identity theft, as commented on in the CNN Money Report this year; to the reality that our critical infrastructure is in the target zone, is part of fifth dimensional warfare and is a very likely target to be struck and, in my estimation, is not appropriately defended at this time.
Secondly, and as recently as sampled in some hot spots such as Ukraine, I believe we are re-engaging in a very strong "Soviet-styled" era of threat and engagement. The savvy, low-intensity "hybrid" war being waged on the West by the totalitarian regime in Russia is, I would strongly suggest, overlooked and underestimated at our peril.
China, which now measurably spends above GDP growth projections on military transformation, as quoted in the Economist magazine this month, and has been widely reported as one of the most aggressive perpetrators of cyber breaches, as well as being increasingly in league with the "kleptocracy" of Russia, will be a formidable challenge ahead on the national security front.
My point in underlying all these is to suggest that enhancements to the CSIS Act should not just be viewed as being of exclusive benefit to the country's counterterrorism programs. It is much broader than that.
Back to the principal matters of growing threat of terrorism in the 21st century, as recently noted in the Department of Homeland Security report, between 2007 and 2010 approximately 200 attacks linked to AQ and ISIS were perpetrated around the world. Available statistics for 2013 show that such attacks hit 600 during that year by the same organizations, which in fact is a threefold increase. Clearly, the trend line is not particularly positive.
Based on my professional experience, I would suggest that the threat environment is not likely to improve for the foreseeable future. As well, let's all recognize that the age of globalization applies to terrorism and cyberthreats in equal measure to those that affect manufacturing and the services industry.
I will now speak to the two most critical aspects of Bill C-44. Of primary import to me is the effort to extend legal protection to CSIS sources up to the same level afforded law enforcement informants in judicial proceedings, and secondly, to enable CSIS, with the assistance of partners both at home and abroad, to engage in uninterrupted surveillance of approved targets of investigation.
In the post 9/11 environment, CSIS was required to adopt a new operational doctrine in order to more effectively manage threats that were emerging at that time, but now, of course, on a global scale.
I will return to this theme in just a few moments, but I will say that the term "domestic threats" is badly misunderstood by the public. This approach became a doctrine that was driving the way we thought about things. We believed that we must engage the threat wherever it may emerge. This was seen as essential and proved to be successful in thwarting a number of threats targeting Canadians.
For context, it was recognized that, as in an ice hockey game, one cannot properly defend the goalkeeper if all the team's players had to remain behind their own blue line. So taking the offence to counterterrorism became a primary requirement for business post-9/11.
Another easy example and one that I experienced firsthand was the need to develop relationships with the full spectrum of partners around the world, not just the traditional Five Eyes and the Five Eyes Plus. That was an easy way to take offence outside of our domestic or traditional borders.
In other ways, it was also important to recruit sources to penetrate the most difficult to access organizations or cells. That meant in some cases moving them upstream to training facilities or training camps and, of course, complex and difficult operations to manage.
Hence, this is why human sources are so critical to CSIS. Human intelligence, or HUMINT, is the methodology that has been honed over decades and where Canada is seen as a most successful operator applying the methodology. I personally benchmarked that belief or observation against some of the best services in the world over a number of years.
It is thus an important factor in the evaluation of what Canada contributes to the intelligence alliance that this country leverages in day-to-day requirements. In other words, with an effective HUMINT program, Canada is a net contributor to the shared pool of threat intelligence around the world. However, absent an effective HUMINT program, Canadian decision makers can no longer benefit from a made-in-Canada intelligence piece. They are, as are Canadians indirectly, forced to rely on foreign agency intelligence with all the possible filters and biases they carry. Without getting into operational details, a fair question that deserves some form of an answer is: How is CSIS successful in managing human sources if what I say is true?
Well, through careful planning, significant vetting efforts, a purposeful validation methodology, effective ministerial direction and policies that ensure such things as the protection and the ethical treatment of human sources are most of the reasons this has been a successful program.
What places that program in jeopardy, in my opinion, is the inability to afford CSIS sources the same protection as law enforcement informants. In a world we know where CSIS and the RCMP must conduct "separate yet parallel" investigations, from Justice Dawson and some of the prosecutions around the Toronto 18 investigations, and specifically in the realm of counterterrorism, we must assume that increasing numbers of criminal prosecutions are likely. As such, Bill C-44 is a critical element to success of that duality between the RCMP and CSIS.
Outside of fair and reasonable compensation for risks and time taken, there is but one important driver behind these relationships between CSIS and its sources, and that is the protection of assets from exposure that may lead to damaged reputations or threats to their lives and those of their extended families.
In regard to the proposed enhanced ability to investigate persons in Canada and abroad, such as those covered under section 21 amendments to the CSIS Act, I will take you back to a previous reference I made to globalization and the fast-moving shifts occurring in this now increasingly complex threat environment.
There are few distinctions to be made between domestic and foreign threats, hence my comment earlier about the misunderstanding of domestic threats today. Unlike threat actors of old, including organized criminal activity in Canada, most now operate at the behest of or in league with foreign entities or their ideologies abroad. With conflict zones proliferating in the Middle East and increasingly elsewhere, threat actors, even those inspired locally, are increasingly moving offshore to commit acts of extreme violence or to support those who are.
Moreover, as we have witnessed, Canadian passport holders have been at the centre of some very tragic terrorist attacks, be it in Algeria or places like Somalia. The imperative for CSIS to seamlessly retain operational continuity and to continue the collection of likely actionable intelligence in various parts of the world is a reflection of the 21st century threat environment and the reality that exists within.
This is especially relevant in parts of the world where the possibility of pursuing a successful prosecution through the collection of evidence is slim or highly unlikely. Having intelligence insights, therefore, and policy flexibility to deal with those threats is then the next best thing, absent the ability to prosecute.
In closing, and as a former practitioner who has once been responsible and, frankly, accountable for positive outcomes in this very difficult threat environment, I state that I clearly support the proposed amendments to the legislation.
Conversely, I reject propositions made by some that Canada will be placing at risk Canadian interests and values by enabling a more effective intelligence collection capability abroad or by better protecting CSIS human sources. Rest assured — and, again, based on my personal experience — the lessons of Arar were learned by the intelligence community. I understand that organizations in this country have a point in raising this case, as well as a commensurate interest in doing so. However, based on my experience in the organization and within the intelligence community, I can tell you that information sharing is one of the most rigorous and well-tuned procedure sets CSIS was managing during my tenure there, and I suspect it has been improving since my departure.
In regard to the collection of foreign originated information, it has equally been a most well-managed area of activity, based on my previous experience. This reality was based on a number of imperatives: risk to the life of officers and their assets; embedded legal, policy and ethical boundaries; and the interests of ongoing operational success. These were the reasons why those programs were consistent and successful. As such, none of these were ever considered easy to sacrifice.
I thank you very much and I will be pleased to take any of your questions.
Senator Mitchell: Thank you, Mr. Boisvert. It's good for us to have a practitioner who has been in the trenches, as it were. I want to ask a general question. It's really a question of opinion and maybe it's not directly on point, so if you don't want to answer it you don't have to.
It is interesting how as soon as there is an ethnic component, a Muslim component, we refer to the act as a terrorist act, but nobody has referred to the shooter in Moncton who killed three RCMP as a terrorist. Nobody has referred to the young people in Halifax — in fact they were referred to as "murderous misfits." Why is it that as soon as it becomes Muslim, it's so unfortunately then referred to as terrorist activity, but if it doesn't include that component somehow it isn't?
Mr. Boisvert: Well, senator, I disagree in the sense that it is not because it's Muslim. There has to be an identifiable ideology that drives those particular actions and actors. The Moncton shooting is a great example of what I would evaluate as being a non-terrorist act because outside of having a seemingly deep dislike of those persons who wore a uniform or authorities, there is no particular ideology around that. I compare him to Anders Breivik in Norway who, about five years ago, set off some bombs in Oslo and then killed 69 people on an island dressed as a police officer. That man had a crazy idea of extreme Christian ideology, wrote a thesis and had his own ideology scripted. He was squarely a terrorist and that was a terrorist event. It is not about what you believe in or what your religious background is, it's what is behind your motivation. It is clear in terms of how we define terrorist activities in the CSIS Act and in the Criminal Code that help us make those judgments.
Senator Mitchell: Russia attacking Ukraine, is that not a terrorist attack? I'm just trying to get at the ideology behind that.
Mr. Boisvert: That would be an act of warfare. I am neither a lawyer nor a scholar in international law, but these are state-to-state hostilities. Some of the methods they could use, perhaps using some of their own militias or their own official forces such as the Spetsnaz troops that are allegedly embedded in that part of Ukraine, could be categorized — at least some parts of it. I have not seen specific cases come to mind, but if we looked hard enough, we could certainly find a number of them.
Senator Mitchell: That's very helpful.
I've asked this a number of times, but I would like to hear your take on the issue — and maybe that's too strong a word — of police protection of an informant but being cognizant of the fact that if you do it too soon, you might lose the chance to use that information or that informant in a prosecution, and the lower standard that probably CSIS needs to some extent because they are looking for information that might prevent something. Do you see how to make that protection of an informant work to minimize the problem of it then not being useful for prosecution later?
Mr. Boisvert: Adding degrees of separation between law enforcement work and the intelligent work, as you are hinting at, absolutely. I started my career in the RCMP and I did drug section investigations out in Vancouver regarding large conspiracies involving in cocaine and heroin. I cut my teeth in that world. I realized how distinct and different it was just in the way that you would target someone for recruitment and the way you would apply that informant or source for the work to be achieved.
To boil it down to a couple of quick thoughts, in the law enforcement world you would typically recruit a source to do two things: an access agent to get an undercover operator closer to the source of criminal activity, or you would recruit that person as an inside source who would then give testimony and go into witness protection. I'm oversimplifying it so as not to take too long.
Regarding the second part, with CSIS — and I went to that organization in 1984 when it was created — it was a very different approach with a painstaking selection process involving vetting and lots of validation along the road to see whether or not the source could be relied upon. Ultimately you rely on the person to be cooperative for all the right reasons, whereas sometimes in the law enforcement realm it could be that they are cooperating for negative reasons, such as being compelled to do so. Again, I'm really oversimplifying it.
If the question is more around affording protection to CSIS sources and whether there is a negative consequence out of that, I really don't see any in the sense that CSIS is not prone to identifying someone as a human source until they have been thoroughly vetted and validated over a period of time. It comes back to great events in intelligence history like where are the weapons of mass discretion, who is this curve ball source and why was he not vetted effectively? As I said before about the Arar case, in the world I used to live in with review, lessons were learned quickly and applied in the field immediately.
So I am confident that the work CSIS does on source recruitment is distinct from law enforcement. It's very specific and particular and I think it will forward the right kind of decisions around the designation of a source as being someone who is deemed worthy of protection under this new legislation.
Senator White: Thank you for being here. I was starting to go through a list of non-Muslim-related terrorism events here, but you did a better job. I thank you for that.
I have a question around the protection of sources. Could you walk through it? We heard of potential exceptions to the case from previous witnesses. Could you walk through the determination of a source versus an agent of the Crown, for example, so people understand the difference when it comes to receiving versus directing to receive?
Mr. Boisvert: I will walk you through a discussion I had with young officers at the service when I was there, whether I was speaking to a supervisor's course or later on as an executive giving the senior management team their marching orders in terms of expectations and their span of control.
At the end of day, CSIS is a HUMINT organization. Ironically, it is the largest signals intelligence or SIGINT agency in Canada in terms of the powers and the capability it has for doing investigations under section 21, which are significant. But those are almost exclusively to feed investigational leads for HUMINT operations and help manage the target sets.
I would tell young officers, "Now that you are an intelligence officer, you have to understand that every person you meet has value." The first level of value is someone with whom they can elicit a "Did you happen to see where that person went?" moment and someone who will get you the key for a front door or for a back door of a certain facility for an operation at three o'clock in the morning. The person will be an ambient, non-directed source that will call one day and say, "There are a bunch of people saying stuff that is scaring me," or "I think someone at this embassy is trying to recruit me, so I suspect therefore he must be an intelligence officer."
The next level up in terms of the types of sources CSIS would interact with is someone who is a trusted contact, someone they are in contact with frequently for the combination of those other three or four things I mentioned.
Finally, there is that moment in time when the investigative team says, "That person is an asset that we have to direct." There is that conscious decision and there will be test tasking and a number of things during that validation process to ensure the person can do the right things.
The CSIS experience is based on the experiences they had in the Cold War. It is the wilderness of mirrors; the double or triple agent effect; the need to know. There is so much complexity around source recruitment that that carried over to the counterterrorism environment in terms of it being specific in particular.
I remember attempting to recruit a highly paced individual in an organization. I was a desk supervisor then, so this was about 20 years ago. My director general said to me one day before he agreed to the plan — we had been courting this source for about six months, and it could have had high potential controversy had we failed in our pitch —"It's kind of like a marriage proposal. You have to know the answer before you ask the question." That stuck with me and I realized that it really spoke well of the methodology.
Senator White: Thank you very much for that. It was excellent. Each of those scenarios, including the directed one, would be afforded the exact same protection under Bill C-44?
Mr. Boisvert: The protection would extend beyond what we're currently doing. I testified at all of the security certificate cases over the last 10 years. In the last few years, my job as the director general of operational security then was to make the case about how important protecting tradecraft and assets was. In other words, we can tell you everything about the intel, but you have to afford us some protection in order to protect our human sources and the way we do our work, the "how" part of the job. It came right down to the wire and I knew there was really no protection in law for those sources. Ultimately, they could be compelled.
I was always really hard pressed to come up with a good reason as to what public interest that would serve. I understand there is protection of innocence. There's a need for that, to have at least some sort of button to press where there is a potential case where something has gone horribly wrong in this investigation and somebody has to be protected, but I hope that would be the most exceptional of circumstances. We do need to protect those, because there is only one thing a source is promised: protection of their identity and anonymity.
Senator White: Just to tighten the screw one more turn, unlike a police investigation where we have crime scenes and often the ability to gather copious quantities of evidence, in the case of CSIS, the number one asset you have is a source.
Mr. Boisvert: Absolutely.
Senator White: Without that asset, CSIS's ability to operate becomes not non-existent but extremely difficult?
Mr. Boisvert: Especially now in the post-9/11 environment. I've made this comment a few times. When I first joined CSIS, sometimes those investigations could last four years. You waited for the newly arrived Soviet intelligence officer who was typically the head of the trade area of the embassy, and then you'd spend three or four years doing all that workup as a small team. Really, the outcome at the end was, "Do we believe he's an intelligence officer or is he a suspect intelligence office?" That was the outcome, essentially.
There was the odd time we could then convince the Department of Foreign Affairs to remove that person, persona non grata, but you've changed that to today where there is a lot more potential. When I was the director general of the counterterrorism program, my doctrine was, wherever possible, our best outcome is a law enforcement outcome, so we're going to try as much as possible to get usable intelligence so we can help convert it into usable evidence. That is not an easy thing, and without source protection I think it will become less and less possible, because the outcome for the sources in this new environment can be, as I said earlier, death, end of reputation and maybe threats to the extended family.
Senator Stewart Olsen: I have a brief question. The Air India commission recommended much more cooperation between the RCMP and CSIS, and I would like your opinion. Is that happening and do you think that's escalated? Do you think it's good enough or could it be better?
Mr. Boisvert: That's an excellent question because it has been a challenge as long as I have been in CSIS. I'll take you quickly back through history.
In June of 1985 CSIS was not even yet a year old and Air India happened. As a result, the wheels came off the truck literally for both organizations, in my estimation. I was a very young officer. I was in my first year in the organization, but I understood the RCMP culture and I was immersed now in the CSIS approach to work. In fact, I worked in a very small rump; in fact, it was an area of unloved toys. I was in the counterterrorism branch of CSIS. In those days that was barely 10 per cent of the resources, because it was the heart of the Cold War and everybody who was anybody worked in the counter-intelligence. That was the nature of things. That's the transition CSIS had to make, and the FBI and others as well over the years.
We all learned and there's lots of scar tissue on the backs of many managers today at CSIS and many have left since then. Those were exceptionally difficult years. There was enough shame to go around for everybody, I think. Not to mischaracterize anybody, but I think there were lots of skeletons in the closet, and some former members of the RCMP hated the security service for the stain it brought on the force, disliked the new spooks on the block. The new spooks on the block disliked everything that the Mounties represented and so on. We were in transition bringing in new people. It was just not a great mix.
Fast forward to basically May 2006 and that would be the arrest of the Toronto 18. That was the culmination of years of painstaking work to reverse that paradigm and create a working structure. The structure wasn't easy because it's a very complex bit of choreography getting intelligence into evidence. Because of the Stinchcombe decision about full disclosure, everybody recognizes that we, the intelligence service, would not want to be the poison fruit of a successful prosecution. Of course, we would go to the mat to protect sources and methodologies. We would not want to have to pull that evidence at the last minute, so we developed a number of techniques and methods. Those have evolved. When I emerged a few years later as the lead of the principal counterterrorism area, I realized we had a good system.
We also ensured that we did lots of joint training. It's a good system, but it involves people. People feel tribal about their institutions, so you have to keep on working at that. The messaging from the senior leadership has to be — and I would be there with the head of the RCMP counterterrorism program, and we'd sit there and say, "Folks, failure is not an option. If we fail in our mission to work well together, people will die. It's that simple." This was for sergeants, staff sergeants, corporals, desk heads and intelligence officers. Part of that success was to make them understand that the CSIS people can't say much and in fact don't expect anything, but they can have very big ears. They can listen to everything. Just get over it. CSIS people, make sure you understand that whatever you can do for the RCMP has to be done with the right processes but done forthwith and be as helpful as possible. I think that constant sort of thing made it work better.
Do I think that we're immunized for the future? No, I think it's always going to be a work-in-process for the reasons I just mentioned.
Senator Beyak: Thank you for being here with us today.
Mr. Boisvert: It's my pleasure.
Senator Beyak: I have follow-up to Senator Stewart Olsen's question. We are delighted that you are here at this time and back then as well, because I think your knowledge and expertise will be invaluable to us.
How did the Sikh community react to the radicals in their midst at that time as opposed to the Islamic State and the Muslim Brotherhood today?
Mr. Boisvert: A great example. I think it's one that we have probably not spent enough time going back over because there are a lot of good lessons out of that. Thank you for that question.
Funny enough, too, when I finally moved out of the RCMP and into CSIS, that was one of the first desks I was on, because the issue in counterterrorism was Sikh extremism. We had just emerged out of the Armenian attempted assassination. I remember learning the ropes of running sources. I had a very good desk head. We went around and he had his whole trapline of contacts and ambient sources and direct sources and it was great to learn from him. Therefore, I immediately inherited a large coterie of established people we could trust. We would knock at doors and say it's important for the Government of Canada to know how the community felt at this moment of likely high stigma over the issue of Air India, as one prime example. It was their 9/11 as a community, absolutely.
It was through that ongoing dialogue — that's why I always bristle when I hear that some groups don't like when CSIS comes knocking. I always really dislike that. I had a discussion with somebody in a particular community event not that long ago, and I said, "There are two ways you can do it. In most parts of the world, usually intelligence services work very surreptitiously with microphones, cameras. They'll do everything that's covert. In Canada, nine times out of ten the first time CSIS does anything, it is knock on the door, show their identification and say, 'Hi, I'm with CSIS; I would love to talk to you. I would like to learn what your community thinks about this particular issue."' That's the best way to collect all that information.
Let me get closer to perhaps answering your question more effectively.
I think the community rallied around the idea that ultimately they were best to deal with this in the first instance. What they did most effectively was to ostracize those who were proponents or who advocated violence. We are seeing that as well in the various Muslim communities around the country. But I think the Sikh community was perhaps smaller and much more integrated, and I think it was easier to perhaps deal with that. We have a much larger and more extensive community involving several subsets of the Islamic community.
Senator Beyak: I have Muslim friends across Canada and the United States, male and female, families, and they're very concerned with the good ones and the bad ones, the radicals. We wonder how we know who to trust. We've heard witnesses from so many groups. Our job as senators is to ask who are you affiliated with, who are your associations, where is your funding coming from and how can we with trust you? Do you have any hints for us?
Mr. Boisvert: Probably my earlier comment about a wilderness of mirrors fits quite well in some ways. I would be cautious, though. It comes back to a couple of thoughts.
When I was the assistant director of intelligence, which meant I was responsible for the knowledge piece, what we knew about threats, I was briefing ministers, deputies and others about what we knew, whether it's emerging cyberthreats or things happening on the terrorism front, foreign interference — a number of things. One of the things that is complicated, outside of trying to explain foreign interference or the threat from state-owned enterprises — right at the top of my list of difficult complex issues — was the issue of how you designate or should you completely characterize one organization such as Hezbollah or the Muslim Brotherhood as a terrorist organization through and through? Well, that would be perhaps a comforting thing to say because it's easy and straightforward, but you really have to slice it up and examine, open things up and unpack them a little.
Some strands or lines of those groups are affiliated by name only and have a very different world view of certain things. That's putting the best light on it. Sometimes, though, if it walks like a duck, it's associated with ducks and is probably aligned with them as well.
By asking those tough questions, and I think probing and listening to them with as much candour as possible and recognizing that nobody is here to hunt down those who are deemed to be involved in the grey market of ideas, but we're here to find out who is really being clear and honest.
As I mentioned, in other places and times I have zero tolerance for intolerance. I would call out anybody who demonstrates any of that.
The Chair: I want to follow up, if I could, colleagues. It's an important area and one throughout our testimony that has come up in respect to the individual or organizations who represent certain aspects of a community, whether it be in the Sikh community, the Muslim community or the far right fundamentalist Christian community. The question that has come up is that with all good intentions, law enforcement agencies in particular are reaching out at the ground level of these communities to try to bring everything back together, to build a base of confidence and a sense of security for the vast majority within those communities.
Yet at the same time, we've been told of a number of cases where individuals who are coming forward to represent the community actually have an agenda other than the one that our law enforcement agencies have and the general public has.
Do CSIS and the law enforcement agencies have a process where they come back and check with CSIS? CSIS is supposed to have all the information, or at least a good part of the information, to give someone, an organization like the RCMP or otherwise, of who we are dealing with, who these individuals are. Just because they drink coffee with you doesn't mean they necessarily like you.
Was there ever a process in place where your office was contacted or somebody within your office was contacted to say, "Look, we're going to start this up and we'd like to run a file on this"? If not, will this legislation, and in the future Bill C-51, help us do that so there is an exchange of information? Then the right people will be approached in respect to trying to combat the threats we face.
Mr. Boisvert: I will give you two parts to the answer. To the first part I'll say abruptly, no, there is no proper mechanism or system. It's all very ad hoc, and I will explain why. There's a good reason for that. Partially it is the primacy of the lead investigating officer, the primacy of the investigator. They have the right to initiate contacts and seek out additional information.
I guess we could impose — I don't think there are any objections, and I'm not from the law enforcement community — a mechanism where there's an agreement between law enforcement agencies and CSIS that persons could or should be vetted.
I am strongly inclined that they absolutely should be. It extends beyond law enforcement. I think it extends sometimes to members of Parliament and others who are quite often called upon to meet members of their constituency and leading groups. Quite often they're solicited, as are members of the Senate and others, ad nauseam: Could you come here? Could you attend this? There's a fundraiser for this. Sometimes I'm unclear if the fundraiser is really legitimate. Is it really for widows and orphans, or is it for something else?
Getting down to the root, getting down to terrorist financing is a complex thing. Finding out the end use of that money sometimes can remain opaque right until the end.
To the last part of your question, I think Bill C-51, with the information-sharing capabilities proposed in that, and an ability to have a sense of greater security around protecting sources under Bill C-44, there will be more exchanges. Why? I can say that based on my experience over the years.
If you look at the succession of things: in 1982, the Charter of Rights and Freedoms; in 1983, the Privacy Act and access to information. The CSIS Act comes a year later in 1984. All those policies that emerged from that all had the same default: protect privacy above all. As a result, I think even the mere act of a police officer — I'm not sure whether or not I can go ask CSIS because that might be an infringement of that person's protection of privacy.
We were always reluctant to say certain things because this is not about charging anybody. If you're going to cast aspersions on an organization or individual, such as Canada's no-fly list, you'd better be prepared to deal with some form of appeal process. That's where it gets complicated.
Senator White: You talked about the sharing of information. We had a discussion with the previous witnesses, and we've had this discussion before, that one of our challenges in Canada with the give or take 66,000 police officers and 198 agencies is that outside of the RCMP, the vast majority of officers are not security-cleared to have that discussion with CSIS. Would you recommend that we look at legislation or regulations requiring police agencies to have their officers security cleared to a certain level so they could actually have that dialogue between our security agencies and our police agencies now?
Mr. Boisvert: I had never thought of that question in that sense, because of course mostly my interlocutors were the RCMP that typically had quite often at least a secret clearance. I do see a benefit, only because I think that being the purveyor of intelligence, as the assistant director of intelligence, we were quite often blocked with sharing usable, actionable intelligence because we assumed that the provincial entity or the municipal entity had no clearance so we couldn't share that information.
Given the tempo of the operational threat that I mentioned in my opening remarks, in the reality of the 21st century, I think I would concur. I think it would be very good value to do that.
Senator Day: Bill C-51 will come along and it may deal with the sharing of information between different entities.
I must say that I'm surprised to hear you say that there was not good cooperation between the RCMP and CSIS a year after CSIS was created, because my understanding is that virtually all of the officers in CSIS at that time were former RCMP officers. I would have thought there would have been lots of informal cooperation at least. I hear what you're saying. Of course the Air India inquiry helped to clarify and support your proposition on that.
My question relates to investigations that you might have been involved with under section 15 of the existing act. What triggered you to go to a judge for a warrant, and who would make that initial assessment that maybe you should proceed with a warrant application?
Mr. Boisvert: Specifically under section 15, the security screening?
Senator Day: Yes, if you want to give me other sections as well. I'm interested more in the process. But the purpose for the warrant, if that made a difference in why you decided it was reasonable to go before a judge, I would be interested in hearing about that.
Mr. Boisvert: Yes, I am happy to answer that question. Recognizing that I am permanently bound to secrecy under the Security of Information Act, some things about the trade craft I have to be careful of so as not to expose any operational details, but I think I have enough to satisfy your question in terms of the nature of the work.
With section 21 warrants, the warrant powers were seen from the earliest days as a young officer to later as being the ultimate power. I mentioned earlier the example when I was a young counterterrorism intelligence officer. We couldn't get any resources like that because all of the weight and the power and all the work that underlay all that was reserved for the really high-profile counter-intelligence operations during the Cold War against the Soviet intelligence service. That gives you an idea of how selective that process was even at the earliest days of CSIS.
It has also been shaped quite a bit by ministerial directives and covenants within the organization. That type of intrusiveness has to be commensurate to the level of the threat. This populated the entire targeting process at CSIS when I was there, and of course it reflects what Gordon Osbaldeston did in his study of CSIS in 1987. In that, he laid out 34 recommendations, which included the need for the director or head of CSIS himself to be responsible for all of the targeting decisions and all of those warrant decisions.
As a young officer, let's say typically you had a few targets to manage, and you had been able to go do the most benign things first — knock on doors, talk to some existing sources. You could get a higher level of authority if you proved that case, and then you could perhaps even request physical surveillance or something. You could do things that were a little more intrusive.
There was always a scale. It had to be reflective of how serious we thought the threat was. It was done for very selfish reasons, making sure we have our resources placed on the top flight or top categorized threats, but also in terms of protecting human rights and personal freedoms.
After a while, the officer could probably make a case, hopefully, or not, or maybe disprove his or her theory of the case, that the person is not a threat to national security, because after now six months, or two months, or three weeks, they were able to collect enough information to say, no, that original source information was wrong. That information came from a foreign agency, for example, two lines saying that Ray Boisvert is a threat and no context. Okay, we better have a look and see who this guy is and do a bit of workup.
Only at a point, though, if I did not disprove the theory of my case could I then put together a request to use some intrusive investigational methods, which meant getting a section 21 warrant. It meant hopefully the opportunity to intercept the person's personal communications. That's a serious intrusion in somebody's personal, private life. The threshold was very, very high.
I think back on the number of warrants we were trying to run through the time that I was the director general of counterterrorism. Robert Fowler and Louis Guay were kidnap victims in Mali and Niger. We had Amanda Lindhout in Somalia. We had half a dozen other kidnapping cases. The tempo and intensity in the branch was high. We had a number of emerging threats domestically as well. The number of warrants and the time and effort and the "facting" and the reviews of the "facting" and the subgroups and the team and the devil's advocate, the whole process was very elaborate, hundreds of pages long.
We always felt by the time we went to the Federal Court, and after we ran this also through the Ministry of Public Safety and through the minister's office, once we got to that stage, and by then satisfy the director and the warrant committee, we were in a position to then begin hopefully getting a warrant from the Federal Court.
I guess just to paint a fairly elaborate picture, it is a process.
The Chair: How long does this process take?
Mr. Boisvert: It has to be very quick if it has to be. If you had an emergency situation where — I will use a name. Abu Nidal arrived in Montreal. We were just told about that hours before by perhaps a foreign agency, or perhaps we identified this person. It sounds like an episode out of "24" or "Homeland." You would quickly have to be move and be able to get resources, and it would be a full-court press. I can't tell you how long it would take because that's an operational detail, but things can move quickly.
Otherwise, though, the default was to make sure we did it right, to ensure that we did not sully the reputation of the service, the government or do any undue harm to anybody we were targeting.
Senator Day: All of this is helpful. I have read what is required in the application under section 21. You wouldn't be doing all of that. You have just explained that from an operational point of view this is a lot of work. It's not the kind of work that you're accustomed to — a lot of paperwork, a lot of research. You wouldn't do that unless you felt you had to do that. For Abu Nidal who just arrived in Montreal, you can put resources on that without going for a warrant. What was it that triggered you to go to the minister and say, "We had better get a warrant on this?
Mr. Boisvert: It would be a judgment of the severity of the threat. That would cause the investigating team to make a proposal to indulge or engage in some serious investigative techniques, such as intercepting that person's communications.
Senator Day: Would the severity of the threat involve how radicalized the individual was or that you had intelligence that suggested some activity was going to take place?
Mr. Boisvert: Well, let me answer that with a scenario. It is not fictitious at all. It is one I have lived in time and time again.
It's very difficult to determine when that person moves from being even sometimes highly radicalized but just talks a great game. They just talk about doing horrible things. They tell everybody they meet all the terrible things they would do to people if they had the opportunity. But they're never specific. They never showed any capability. They never showed any ability to mount operationally something that could cause harm to others.
That's a constant dilemma. It's always in that analysis that there would be perhaps a tipping point in that. So we're getting some human source information. We're getting ambient information from other sourcing, perhaps allied intelligence information. But now, for whatever reason, we think that person is bent on serious acts of violence or extremism. Then I think you would have to move towards at least considering a section 21 application.
[Translation]
Senator Dagenais: Thank you, Mr. Boisvert, for your testimony. I have two questions that may seem repetitive.
I really liked your modus operandi, knocking on the organizations' doors to talk to potential sources. Are you capable of assessing to what extent terrorists have used charities to hide their activities?
Mr. Boisvert: I think that is a widely used method. The use of covert organizations, fronts really, dates back to the Cold War. Today, charities are very effective in mobilizing people or members of their community, showing them, for example, images of an attack or an event in the Middle East or in Asia, to explain afterwards that such an event certainly had a negative impact on the civilian population. There are ways to justify or to hide certain things by saying that the recipients are hospitals, schools or even the homeless. There are all sorts of reasons to say this is very effective. Indeed, terrorist organizations will use any available tools to receive funding and continue to stay under Revenue Canada's radar — or so they hope.
Senator Dagenais: We were talking about Montreal, my home town. Could they possibly use some of the mosques in Montreal to pick up and transfer those funds?
Mr. Boisvert: Yes, certainly, religious centres, community centres, the local bakery, places where you often see collection boxes. I suppose that is part of the same propaganda campaign when it comes to rescuing their fellow believers who are victims of the West's violence. I think this happens pretty much everywhere.
Senator Dagenais: You have worked a long time for CSIS. Should the bill not pass, how might this hinder the service's ability to carry out its mandate?
Mr. Boisvert: Ultimately, the greatest benefit under the new legislation is that CSIS would have an approved method to follow its targets from Canada to other countries. This would ensure continuity in logic and in the capacity of gathering intelligence against targets. This is important.
One of our problems, at this time, is that we do not know how many Canadians are in foreign countries and what they are doing there. We do not really have a way to secure our borders. They left the country with a certain objective. Will they still pursue that objective abroad? Will they continue their operational planning that could harm Canadian interests, and perhaps even take control of the lives of other foreigners, as we saw in Algeria in the case of two Canadians who were implicated? This is where the bill will make a significant difference, because the lines of investigation are now domestic and international. That is the problem.
[English]
Senator Kenny: Could you talk to the committee about the trade-off between funding and legislation? During the time you were a manager, did you occupy yourself with concerns about improving the legislation or getting more resources to hire people? Talk to us, if you would, about the stresses involved in making CSIS an effective organization but a law-abiding one as well, and where are the capacity limitations?
Mr. Boisvert: I will deal with the law-abiding one first, only because it reminds me of the reality of my years at CSIS. We used to joke inside the organization that we were an organization born out of a scandal, which was reflected through the McDonald commission inquiries in the 1980s. We were born into chains. In other words, we were the most reviewed organization of its kind in the world, barring the Australian Security Intelligence Organisation, ASIO.
We felt that in those first few years we were being continuously lambasted by those reports by SIRC when Ron Atkey was the chair. He set the tone that they would not be a lapdog. That served the country and Canadians extremely well, because we felt that as an organization we were better than most of our peers because we felt severely reviewed. Everything we did was subjected to possible review and serious consequence. As a result, that was good. We were very sharp because of review.
The issue about resources, though, is one where we went from being, in my estimation, a fat organization at the end of the Cold War, especially once the wall fell, to where we suddenly found ourselves in a situation where what really mattered anymore? The big events of terrorism had not occurred yet. The issues around counterintelligence continued for another five years, but luckily in some ways, or I guess it is what it is, but program review happened in 1992-93, right after the Cold War, and CSIS resources shrunk by a third. That was an opposite effect. For the first time as a young supervisor, I was laying people off. I had never done that.
We emerged a stronger organization because we did reverse order of merit. We did a number of things where we came out of the organization much stronger and better focused, but we struggled for resources. We really did.
The 1993 World Trade Center attempt was one of those early calls. A lot of those kidnapping cases in Lebanon and a number of events, we were already starting to brief government that it's no longer Shia Hezbollah extremism we have to worry about. This was new. It was ugly and growing fast. It had lots of resources behind it. It was similar to what we saw in ISIS development, in the space of six months being a reported JV team to being a real threat. That was very much the same sort of thing.
We ramped up. Post-9/11 was good for resourcing CSIS, no doubt about it. The budget grew tremendously. Our biggest challenge at the time was managing growth. With a five-year curve on developing young intelligence officers, that's pretty significant.
When I was the DG of the counterterrorism branch, at its peak, 86 per cent of the officers had less than two years of service. That was a very young cohort to manage. They were exceptionally talented. Most had graduate degrees, were worldly, experienced with computer networks. They were exceptionally strong, but they needed a lot of supervision to keep us safe, because the rules of engagement are strict. It would be so easy for someone to run amok if they were overly enthusiastic; back to my point about warrant acquisition and a number of other things in targeting. They were very challenging times.
Now I would say it is really a question of resources in terms of human resources and financial resources, because one begets the other in some ways. Changing legislation is very helpful. That's the first thing I would be worried about. I need the tools in the tool kit to do the job. The tool kit comes first with the mandate from the Government of Canada and the people of Canada.
The second thing is you need people. You need people that are well trained, and you need money to be able to have discretionary spending to do operations. It costs money to run operations. To do surveillance on one person is enormous. I would not be allowed to say how many people are involved, but it is a big operation, so money is important.
Running operations overseas is extremely costly. For example, the Afghan operations were exceptionally costly to the service, but they saved Canadian lives. Finding IED bomb-making teams saved Canadian soldiers. A number of other operations we were doing, such as going after al Qaeda senior leadership in Afghanistan and other places, cost tremendous amounts of money.
It is an ongoing process, but money and personnel matter most now.
Senator Kenny: When you are talking about resources, let's take an example. You may not want to give us specifics, which is fine, but let's say it takes about 30 people to follow an individual for an extended period of time. If it's going to go over a week, it may take 34, 35 people. You are running a regional office. The likelihood of you being able to follow more than one person is somewhere between small and nil.
How often do CSIS managers find themselves in a situation where a friendly country, a Five Eyes country calls us up and says, "Somebody is coming over to visit your country, and we would really like it if you paid attention to him for a while." Your instincts are yes, this is a friend, you're going to cooperate with this other country, but you don't have the resources because you are maxed out, and the friend is coming in two days.
Mr. Boisvert: No doubt we lived on the razor's edge when I worked in counterterrorism. I can't imagine how hard it would be now. We thought it was tough then in 2009-10 when I was there.
You do make some very difficult choices, and you question those choices constantly. You work off a threat matrix. You have people in the red zone, which you believe are the likeliest to strike. You have people in that middle yellow zone that could go either way. We used to refer to some of them as being really "inclined" but showing no indication of "doing." We often had to rethink. Sometimes we moved them up to that orange or red zone, and sometimes we moved them back down.
You had all these emerging threats. The 7/7 bombings in the U.K. were a great example of that. I spent time with my colleagues there. I know MI5 made difficult decisions, because their targets had overwhelmed the organization and still do. They talk about it very openly there. The 7/7 bombers were in the red zone, but due to other priorities, they were slipped down to less coverage.
Does that happen in other Western jurisdictions? Absolutely. I have no doubt about it. We are constantly rolling the dice. It is not just CSIS. It is clearly the RCMP as well.
On your point about cost, don't forget that because of our parallel existence, duality may sometimes involve two sets of surveillance teams: one for the RCMP and one for CSIS. One is collecting intelligence, the other is collecting evidence and never shall the two meet except to de-conflict. That happens on a daily basis to make sure that we're not exhausting or wasting resources but also not becoming that proverbial poison fruit of a criminal prosecution.
Senator Kenny: For us sitting here, and when we're dealing with ministers as we did earlier today, it is often difficult to really assess where the needs are. We see legislation going forward as essentially a no-cost event for a government. Obviously it takes people to draft the legislation, but there aren't necessarily going to be ongoing costs to the government when the legislation comes before us.
Suggesting that an organization actually needs more people can become a huge event, particularly if you are talking, as the RCMP have been over the past week, about shifting 300 or 400 people from one part of their operation to another. The message that's coming through, at least to me, is that somewhere in the system the RCMP is short-handed, and if we want them to deal with organized crime and terrorism, or white-colour crime and terrorism, they are going to need some more dollars. How can or should CSIS convey those needs?
Mr. Boisvert: I suspect the heads of the agencies, whether it's Commissioner Paulson or Director Coulombe — who are of course engaging the minister on those things, because that's first and foremost their touch point on all things resources. I left two and a half years ago, and I have no inside knowledge. I always try to stay separate from what happens in these organizations so that I can speak more objectively about them, just based on my experience while I was there. I'm inclined to believe that resources do matter, as I said, right now. Money does matter. Legislation is extremely helpful and is the starting point, but from that, based on my assessment from the outside of what's going on inside, I would think that resources are in high demand.
They are probably managing okay because they are risk managing, as I described, in using a matrix in dealing with the highest potential threats with the highest consequence of action. That means there are a lot of people in the mushy middle that could suddenly emerge.
When I was there, I found that the timeline from emerging as a potential threat to the attack sequence — the sound to the actual boom — was shrinking rapidly, and that continues to shrink. Years ago, it used to be months before we'd see something; then it got down to weeks; it could be days. I think we are not far from an environment where we could be hours away from identifying a threat suddenly and it being capable to be operational and hurt people. The only way to mitigate that is resources.
The Chair: I have one quick question about Bill C-44. In your experience within the intelligence service, did you ever have anyone turned down as a source because they weren't going to be provided legal protection?
Mr. Boisvert: I'm scanning my memory bank. I was responsible for the human source area some years back. I would say that, notionally, my thoughts are yes. I just can't think of a specific case. I probably should reserve my answer, because I cannot say with certainty.
The Chair: Secondly, because of the lack of legal protection, did you ever experience having to withdraw from serious prosecution cases that you would have gone ahead with?
Mr. Boisvert: Certainly a high point of discussion in all matters involving dual investigations, and even down to immigration matters involving security certificates and other things.
The Chair: So we actually did not proceed in some cases because of the lack of legislative protection, in part?
Mr. Boisvert: In a couple of cases that come to mind, we proceeded but then withdrew when it got closer to the bone.
The Chair: Thank you very much, Mr. Boisvert, for coming. Hopefully we will have you here again. You obviously bring a lot of experience and wisdom with you in respect to the area we are looking at.
Joining us for our final panel of the day are representatives from the Security Intelligence Review Committee: Mr. Michael Doucet, Executive Director; and Ms. Lindsay Jackson, Assistant Director of Research. Seated next to them are Mr. Daniel Therrien, Privacy Commissioner of Canada; and Ms. Leslie Fournier-Dupelle, Strategic Policy and Research Analyst, Office of the Privacy Commissioner of Canada.
Mr. Therrien, I gather this is your first appearance before the committee, so we want to extend to you a special welcome. We're glad that you're able to join us today to discuss Bill C-44.
I understand, Mr. Doucet and Mr. Therrien, that you each have an opening statement. I invite Mr. Doucet to begin, followed by Mr. Therrien.
Welcome. You have the floor.
Michael Doucet, Executive Director, Security Intelligence Review Committee: Thank you very much, chair.
Good afternoon, and thank you for inviting SIRC to appear here today. It's a privilege to address you, and I hope that my comments will lead to a fruitful and productive exchange.
I would like to begin by extending greetings from the members of the committee who could not be here today. I am pleased to speak for SIRC and share insight into the committee's work to further the discussion on the accountability of Canada's security intelligence activities.
[Translation]
The committee was established to provide assurance to Parliament that CSIS complies with the law in the exercise of its functions. In doing so, the committee ensures that CSIS does not undermine Canadians' fundamental rights and freedoms of the Canadian people, while carrying out its mandate to gather intelligence and provide advice on threats to national security.
[English]
SIRC is the only independent external body with the mandate and expertise to review CSIS activities. By "independent and external," I mean that SIRC is at arm's length from the government and does not report to any minister but, rather, directly to Parliament. Moreover, SIRC has the absolute authority to examine all of the service's activities, no matter how sensitive and no matter how classified that information may be. The sole exception is cabinet confidences. In my interactions with international colleagues, I can assure you that SIRC's power and access are the envy of many of our foreign counterparts.
SIRC was invited here today in the context of the proposed legislation currently before the Senate, Bill C-44, which introduces several amendments to the CSIS Act. These amendments, among other things, make explicit that section 12 (threats to the security of Canada) and section 15 (providing security assessments) investigations can be done within or outside Canada. What does this mean for SIRC?
First, CSIS's role and activities abroad have been expanding for years, as has SIRC's coverage of those activities. SIRC has consistently identified and reported on challenges to CSIS's overseas activities such as managing the competing demands that CSIS faces in relation to not only day-to-day administrative duties but key liaison functions and complex operational activities; the changing dynamic of how CSIS deals with foreign intelligence agencies; the requirement to work and deal with a limited pool of potentially problematic partners in certain areas of the world; increased and more lethal potential operational risks; and the importance of effective interdepartmental communication, especially between CSIS and DFATD, which is responsible for managing Canada's international relations.
SIRC has and will continue to examine these issues and activities. Each year, SIRC travels to and reviews one of CSIS's foreign stations. In the future, the committee may need to consider increasing the number of foreign stations examined annually.
Second, SIRC has and will continue to provide Parliament with independent and expert analysis and ensure that CSIS investigates and reports on threats to national security in a manner that respects the rule of law and the rights of Canadians. Nevertheless, SIRC must have the ability to keep pace with CSIS's operational realities in order to continue to provide effective review.
Following the 2006 O'Connor commission report, SIRC informed the government that section 54 of the CSIS Act could be opened and then broadened or recast to permit SIRC at the request of the Minister of Public Safety, with the concurrence of the appropriate minister, to undertake a review implicating an agency or agencies other than CSIS.
Where CSIS investigations overlap with other departments and agencies, it is often difficult to see the wider picture. SIRC believes that allowing joint reviews with other review bodies would provide the government with a more comprehensive understanding of national security activities.
While SIRC has unfettered access to all CSIS holdings, with the exception of cabinet confidences, SIRC still lacks in review the ability to follow the thread of a CSIS investigation or information into another government department or agency. Increased cooperation and information sharing is a key feature of contemporary intelligence, and SIRC must be able to follow up and effectively review CSIS activities when they cross over to other departments or agencies. SIRC must be ready with the legislative tools and matching government resource commitments to keep pace with CSIS's operational realities and to ensure that the checks and balances which were enshrined in SIRC's mandate remain relevant and effective.
I will end my introductory remarks here to allow time for discussion. In closing, I would like to refer to the royal commission that ultimately led to the creation of CSIS and SIRC in the early 1980s. In the report, there is a quote from former Prime Minister Lester B. Pearson that, although dated, is still relevant and insightful today. He noted the importance that "the protection of our security does not by its nature or by its conduct undermine those human rights and freedoms to which our democratic institutions are dedicated." Although the threats to our collective security have changed in nature and in scope in the past 30 years, SIRC very much adheres to this viewpoint in carrying out our work.
I thank you for the opportunity to speak to you this afternoon and later on will be pleased to invite questions from.
The Chair: Thank you Mr. Doucet.
Mr. Therrien.
[Translation]
Daniel Therrien, Privacy Commissioner, Office of the Privacy Commissioner of Canada: Good afternoon, Mr. Chair and honourable senators. I welcome the opportunity to speak to you about the possible privacy implications of Bill C-44, An Act to amend the Canadian Security Intelligence Service Act and other Acts.
Bill C-44 seeks in part to authorize CSIS to operate extraterritorially, including through the assistance of foreign states, following a judgment by the Federal Court of Appeal in Re X, 2014. In that decision, the authority under current law was the subject of certain qualifications by the court to request the assistance of foreign states. Such requests raise the possibility of broader information sharing amongst national intelligence agencies, an activity which, as demonstrated in both the O'Connor and Iacobucci commissions of inquiry, can lead to serious violations of human rights. Certain individuals have been tortured as a result of CSIS sharing information with foreign states. My office is concerned with the adequacy of existing safeguards to ensure against the risk of such violations. The Charter of Rights and Freedoms as applied by the courts is, of course, an important safeguard. However, Parliament, too, has an important role to play, and we think that legislation is necessary to ensure that Canada meets its international obligations in this regard.
On this matter, I would refer to a recent Supreme Court of Canada decision in Wakeling v. United States of America, 2014, which confirmed the importance of accountability and oversight measures to safeguard information shared with foreign states.
[English]
Specifically, Justice Moldaver suggested several means by which personal information sharing with foreign states could be protected from potential misuse. Furthermore, Justice Karakatsanis, writing for dissenting judges, intimated that it is Parliament's role to determine what constitutes appropriate safeguards and how they should be implemented.
Absent statutory safeguards, and if we rely only on the Charter, the protection of individuals against the risk of mistreatment would depend on the application of general constitutional principles which have not been defined clearly in the context of information sharing amongst national intelligence agencies. This would likely lead to years of litigation and uncertainty on the level of protection to which individuals are entitled.
Among the issues litigated would be the impact of subsection 21(3.1) of the CSIS Act added pursuant to subclause 8(2) of Bill C-44, which provides that the Federal Court may "without regard to any other law," including potentially international law principles, authorize CSIS to investigate outside Canada the threat to national security.
While the courts have a role in protecting individuals against violations of human rights, I would respectfully suggest that Parliament also has an important role in ensuring that the new powers to be conferred on CSIS are exercised in a way that respects Canada's obligations under international human rights law in general and, specifically, the convention against torture. Clear statutory rules should be enacted to prevent information sharing by CSIS from resulting in a violation of Canada's international obligations.
A balanced legislative approach would also, in my view, include in Bill C-44 measures to make the activities of all federal departments and agencies involved in national security subject to independent oversight. While Bill C-44 broadens the mandate of CSIS directly and that of the Communications Security Establishment indirectly, and while both are subject to independent oversight, there have been calls for several years to remedy the gaps in national security oversight first identified in the O'Connor commission of inquiry.
In conclusion, I would like to note that with the introduction of Bill C-44 and, more recently, Bill C-51, which greatly expands information sharing as well as the mandate of CSIS, I believe it will be important to examine the suite of anti-terrorist legislation as a whole to address this important issue and enhance the confidence Canadians have in the work of their national security agencies.
Thank you very much, and I would welcome any questions you may have.
The Chair: Thank you.
I would like to lead off with one question to you, Mr. Therrien, and it has to do with your capacity as the Privacy Commissioner.
The issues that we're facing in this bill and in Bill C-51 that will be coming to this committee are very important to the country and to the ability to provide our law enforcement officers with the tools to do the business we are asking them do, especially with the information that we have that the threat is ever escalating.
I have a question to you in respect to your evaluation of legislation when you take a look at court cases such as the Khawaja case with the Ontario Court of Appeal. I don't know if you had the opportunity to read that, but they put an act of terrorism or even planning an act of terrorism in such a category that they stated that we, the public, should not be surprised that 20 years-plus should be a sentence for such an offence; in other words, it's so serious as it affects the public.
As you weigh the drafting of this legislation vis-à-vis the seriousness of the crime and in concert with the privacy concerns you bring forward that we all share in respect to finding that balance, do you take that into consideration, recognizing it will not be a perfect world and that we are trying to find a balance we can all live with and ensure public security is in place?
Mr. Therrien: Thank you for that question, Mr. Chair.
I do not minimize at all the security threat that Canada faces. I'm currently Privacy Commissioner of Canada, but previously I was senior counsel for the Public Safety Department and several agencies, including CSIS, reporting to the Minister of Public Safety. I spent several years in that capacity. I know that the threat is real and should not be minimized.
I agree that your reference to the Khawaja case demonstrates that the courts take very seriously the risk of terrorism which leads them to impose heavy sentences for those who engage in these activities. So the courts also agree that terrorism is obviously a very compelling issue to deal with. But I think that shows in part that Canada is not without legislative or legal means to address the question of terrorism. Mr. Khawaja was convicted and sentenced to 20 years in jail for his actions. That obviously speaks to the fact that we already have, I think, a robust set of laws.
Does it mean that laws should not be further improved? Absolutely not. The threat evolves, the level of threat evolves and legislation should evolve according to the level of threat.
At the end of day, I think Canada has robust laws already. That does not mean that these laws cannot be further amended to deal with the modern aspect of the threat, but in doing so it must seek to achieve both security objectives and human rights objectives. One does not have to occur at the expense of the other.
Senator Mitchell: Thanks to our visitors. My first question is for Mr. Therrien as well.
I'm quite interested in your point that Bill C-44 and Bill C-51 should come with better oversight. Are you talking about parliamentary oversight, that is, some sort of high level, all-party committee, Senate and Parliament, or a SIRC-type organization that would oversee Canada Border Services, the CIC, the RCMP for that matter? What kind of oversight are you talking about?
Mr. Therrien: There are three types of oversight. First, on the issue of expert oversight of which SIRC is part, we need expert oversight that is responsible mainly to review the operations of departments involved in national security to make sure that these activities are lawful and reasonable. That's one type of oversight.
Bill C-44 deals with the mandate of CSIS. CSIS, of course, is already the subject of expert oversight in the form of SIRC. I recommend, in the context of Bill C-44, that oversight take into account that information is shared with national security agencies other than CSIS. Perhaps that is more directly relevant to Bill C-51, but Bill C-51, as you know, provides for the sharing of information between federal departments, to 17 other departments and agencies that have a role in national security. Of those 17 agencies only 3, including CSIS, have oversight or review by expert bodies.
If your question is Bill C-44 and Bill C-51 as a whole on the issue of review or oversight — it's more review than oversight, by the way — of national security agencies, I have a concern in that 14 of the 17 agencies which would receive information under Bill C-51 are not the subject of expert body oversight or review.
The second type of review is the one you were referring to, that is, parliamentary oversight. The existence of expert oversight which goes into the legality and appropriateness of operations does not mean that there is not a separate reason to have parliamentary oversight, which perhaps would deal with the issues more at the general policy level. Parliamentarians may or may not have the time, the inclination or the expertise to look at specific operations, but there is I think a clear role for parliamentarians to review the national security activities of various government departments for policy reasons. I think the two are necessary.
Finally, and here I'm referring to Bill C-51 in particular, I think judicial oversight is also deficient, particularly in that I have certain responsibilities with respect to the legality under the Privacy Act or the proposed information sharing act of collection and sharing practices of federal departments, but my findings are not binding on the government. I think it would be important and necessary that the courts be able to fill that gap and be able to order the federal government to act consistent with privacy principles enunciated in Canadian law and not limit review to my mandate, which is essentially to recommend that certain deficiencies be addressed but without binding the government.
Senator Mitchell: Very good answer. Thanks; very complete.
My next question is to Mr. Doucet. It is not unrelated to the question of review or oversight, but you mentioned that you lack the ability now to pursue "a thread" of a review issue into another organization like CBSA or like the RCMP. What would it take for you to have the ability to do that? Would it be combining SIRC with the RCMP's equivalent review mechanism — I think it's the CRCC — or would it be another body? How do you envision that?
Mr. Doucet: Thank you, senator. That's a good question. You are absolutely correct. Today when SIRC carries out a review we cannot by mandate, by legislation, go outside the confines of CSIS as the organization that we review. We cannot follow that thread of information from organization to organization.
There are a number of ways that that could be accomplished. One could be through legislative change to allow for that to happen. That would probably be a good way to do it, but we feel encumbered by the fact that as information is passing and continues to pass amongst organizations, we cannot see that thread through to the other organizations.
Senator Mitchell: Thank you.
Senator White: In follow up to that question and your response, that's true for all 198 police organizations and CSIS as well. You could not go to SIU and disclose your information to them nor have access to theirs in Ontario. It's not just the RCMP; that is true of all organizations. Legislation between two federal organizations would not change that for those provincially or municipally, would it?
Mr. Doucet: Not for the different levels of government, absolutely not.
Senator White: Thank you, but that was not my question. That was clarification.
In relation to protecting confidential human sources, under the policing today in this country we protect confidential human sources each and every day, and the courts only allow the source themselves to waive that right and breach their own confidentiality and identify who they are. The Canada Evidence Act has been clear in protecting sources. Would you agree that what we are really talking about in Bill C-44 does not go beyond that level of protection when it comes to CSIS sources either? You worked in the field, so I know you will know the answer. We are not asking for more protection of a source under CSIS than we would for any police organization using a source in a similar way.
Mr. Therrien: If the question was to me, I would agree with that. One part of Bill C-44 seeks to provide protection to CSIS human sources roughly in the same way as RCMP or police sources. In that fashion, yes, the protection would be equivalent to that of a police source.
Senator White: And for the same purposes, really; otherwise, you would not get human sources and the word "confidential" would not be used it would. It would be non-confidential human sources and make it difficult for policing and certainly for CSIS if we couldn't protect them in some way.
Mr. Therrien: Yes. I focused in my comments on information sharing more generally, but as it relates to the protection of human sources, you are correct.
Senator White: Thank you very much.
[Translation]
Senator Dagenais: My question is for Mr. Therrien. Today, with the Internet and new technologies, people expose a lot about themselves publicly and privacy is less protected. When it comes to terrorism, should we focus more on protecting Canadians' privacy at the expense of security?
Mr. Therrien: Absolutely not. In my view, we must pay attention to the two aspects, security and privacy. This issue is more related to Bill C-51 than to Bill C-44. My comments and recommendations on Bill C-51 are intended to ensure that security and privacy are respected and protected, but not at the expense of each other.
[English]
Senator Day: My first question is to Mr. Therrien. What you had referred to in your written submission to the House of Commons hasn't been made available to us. We can get it. It is a matter of record at the House of Commons, but could you help facilitate that?
Mr. Therrien: Absolutely.
Senator Day: I included a copy of a statement that "I, along with other federal, provincial and territorial privacy and information commissioners released in October." That would be attached to your statement?
Mr. Therrien: To the House of Commons committee, yes.
Senator Day: If you submitted it to us, it would become a matter of record for this committee, which I think would be helpful. In it, you called for, amongst other things, the federal government to adopt an evidence-based approach in support of new legislation. Are you implying they haven't been up until now and that this should be done in the future?
Mr. Therrien: You will recall that the statement made by commissioners, myself and provincial colleagues, followed the events of Ottawa and Saint-Jean-sur-Richelieu and preceded Bill C-44 and Bill C-51. The statement was advice to parliamentarians and others because there were certainly indications that the government wanted to legislate to increase security; so the statement was meant to be advice on general principles after the tragic events and before the two bills were actually introduced. It would be useful if the government explained in greater detail how the two bills that have been introduced would remedy any gaps identified in the context of the October events.
That being said, the purpose of the bill before you is to extend the jurisdiction of the security service overseas following certain judgments by the Federal Court. I don't have a problem with that in principle. Other Western countries have security services that have extraterritorial mandates. I don't have a problem. I have made certain comments on certain risks from an information-sharing perspective that I think Parliament may want to prevent by ensuring respect for international obligations.
But on the principle of whether the services mandate should be extended beyond Canada, I don't have a problem with that. As I have mentioned in my submission on Bill C-51, I don't have a problem at a certain level with increased information sharing to identify new security threats, provided this is done according to certain standards, protections.
On the principle of increased information sharing and on the principle of extending the jurisdiction of CSIS extraterritorially, I don't have a problem.
Senator Day: The record should show that our previous witnesses, including the minister, indicated that Bill C-44 was in the works before October 22, and other than the citizenship aspect in there, it was intended to deal with issues that were in existence, including the extraterritoriality aspect of it.
We are not yet dealing with Bill C-51, but undoubtedly we shall.
The second question I have, Mr. Doucet, is that the record should be clear on this: How many members are there on the committee you are representing and speaking on behalf of the committee?
Mr. Doucet: Thank you for the question. Currently, we have four committee members. That forms the committee. SIRC itself as an organization has 18 staff plus myself as the executive director.
Senator Day: Your total appropriation each year?
Mr. Doucet: Our draft appropriation for next year is in the order of $2.7 million.
Senator Day: That's roughly the same as last year's? It's in the estimates, I would assume.
Mr. Doucet: Yes. If you look at SIRC's budget over the last 10 years, it has been relatively flat, around the $3 million mark.
Senator Day: Legislation provides for how many when the committee is fully constituted?
Mr. Doucet: The CSIS Act calls for four committee members and a chair.
Senator Day: You are missing one person?
Mr. Doucet: At this point in time, yes, we're missing one person.
Senator Day: The other question that I had with respect to your activity relates to the same question I have been asking throughout this afternoon, and that's the decision to make a request for a warrant. Do you review those decisions made by CSIS? Is that part of your review of what they're doing, and what standard are you applying?
Mr. Doucet: Thank you for that. I'm happy to clarify SIRC's role as it relates to a warrant.
Number one, we're a review agency, so we look in the past. We review operations that have been carried out. We're not an oversight organization that is part of the decision making or tasking of the service.
When the service receives a warrant, at some time in the future we will potentially take a look at how they carried out operations under that warrant. Did they adhere to the warrant? Were there any privacy breaches or anything like that?
So we're not part of the warrant application process. We're potentially part of the review after the warrant has been exercised.
Senator Day: Just to clarify, overseeing would be as it is happening, reviewing is after the fact, as I understand it. Is that your understanding as well?
Mr. Doucet: That's correct, yes.
Senator Day: As part of your review, do you look at the activity that has taken place over the past period of time within CSIS and determine whether or not a warrant should have been applied for in this case?
Mr. Doucet: That's a great question, senator. We tend not to look at the warrant application process or whether it should have been applied for or not. We look at the operations that were carried out under the warrant.
Senator Day: Yes.
Mr. Doucet: Not to say we couldn't do that, but understanding that the service goes to a federal judge for the warrant. As you saw this afternoon, the explanation going through the department, going to the minister for the warrant, we don't look at that portion of it. We look at strictly the operations that were carried out under the warrant itself.
Senator Day: You could, you say. With a clarification with respect to activity outside of Canada, do you anticipate that there might be a change in relation to that aspect of looking at whether a warrant should be applied for or not?
Mr. Doucet: Nothing would prohibit us from looking at the warrant application process as long as there were not cabinet confidences within that process. But we would tend not to look if the warrant should have been applied for.
What we would do, however, is if we were reviewing a certain operation that was not carried out under warrant and it should have had a warrant, we would certainly comment on that.
Senator Beyak: Thank you, gentlemen, for your presentations.
Mr. Doucet, I wonder if you could help me. Currently there are people suggesting that you're not able to carry out your review, especially under Bill C-44 and the new mandate for CSIS, but your presentation seemed to me as though you have everything well in hand. Would you be able to comment a little further on that for me?
Mr. Doucet: Thank you, senator. That's a great question and one I anticipated being asked.
As you know, we carry out review, and we have a certain resource base with which to carry it out. In my humble opinion, I think we do a very good job doing that.
As the world changes, becomes more complex and there are more relationships both nationally and internationally for the service, my comment would be are we properly resourced to carry out the level of review that is required?
What I mean is today we typically carry out seven to eight reviews a year. As the service is doing more, are seven or eight reviews per year enough to cover the waterfront of their activities? I think that's a question that should be asked.
Senator Beyak: Have you raised this issue at all with your board members or the minister in the past year?
Mr. Doucet: We have certainly had that conversation with our board members as to what we can do with our current resources. I'm quite vocal in talking about SIRC's mandate and our ability to carry out that mandate and if we can cover that waterfront.
I'm searching my memory bank to remember if we discussed that with the minister, and I am not a hundred per cent sure that we did.
Senator Ngo: I would like to follow up on the questions by Senator Beyak.
Do you feel confident that you will be able to carry out your mandate given the change in Bill C-44?
Mr. Doucet: We can carry out our mandate. Our mandate is to review the service, handle complaints against CSIS under either section 41 or 42 of the CSIS Act. As well, we certify the director's annual report to the minister. I believe the director has spoken of that annual report.
Because of our resource base, we surgically determine what we're going to review in any given year. In March of this year, this month, we will actually have our review plan for the next fiscal year approved by our committee and move forward with our reviews next year.
We can carry out our mandate. The thing that we may want to discuss is with flatlined resources over the last 10 years. While our resources are flatlined, roughly 75 per cent of our funding goes to pay salaries. The amount of discretionary funding we have to do new or other things is diminishing in size.
Can we fulfill our mandate? Absolutely. We can handle complaints against CSIS, we can certify the director's annual report and we can carry out reviews. Is that enough in the future, given the complexity of the service's operations, is a question we would have to ask ourselves. If I were to comment on that, I would say we would be seeing, over time, a smaller slice of their activities on a yearly basis, presented from a percentage perspective.
Senator Ngo: That means the reviews, the eight or so per year, now given the change with Bill C-44 you're saying the amount might be more reviews per year, and that's why you need more support financially, personnel and so on?
Mr. Doucet: Bill C-44, if we look at foreign operations as an example, and as I mentioned in my opening comments, today we do one foreign-post visit a year. In the future, would one post visit be enough to cover the service's foreign activities? If we were to do more than one foreign-post visit per year, today we don't have the resources to do that, would be the simple answer to that question.
Senator Day: Mr. Doucet, you indicated that you do an annual report to the minister.
Mr. Doucet: We certify the director's annual report to the minister. In accordance with the CSIS Act, the Director of CSIS has to provide the minister with an annual report on CSIS activities. It's obviously a classified report that goes to the minister. We certify that report for completeness, accuracy, and so on. If you will remember, this was an activity carried out by the former inspector general at CSIS. When that office was folded, we took on that responsibility.
Senator Day: You also report to Parliament.
Mr. Doucet: That's correct, yes.
Senator Day: That, in part, helps establish your independence as a review body.
Mr. Doucet: Absolutely. Yes, that's correct, senator.
For every review that we carry out, we provide the Director of CSIS, as well as the minister, with a classified copy of that review. In our annual report you have the summary of our reviews that are vetted to take out any national security information, any secret information or information that would be injurious to the country. What you might see in the annual report is a page describing a review, whereas the minister, the department and CSIS would see a 30- to 40-page report that's highly classified.
Senator Day: I think we heard from somebody earlier on suggesting that SIRC considered itself an extension of Parliament in its independence of the executive.
Mr. Doucet: Yes, the minister mentioned that earlier today.
Senator Day: That's where we heard it. I knew I had heard the term, but it wasn't from you. I thought it was an interesting expression at the time but, to draw an equivalency, the Auditor General is an officer of Parliament. Could we refer to you as a committee? No, we can't call you a committee. You are not an agency, but an entity of Parliament to some degree?
Mr. Doucet: I hadn't heard the term "extension of Parliament" prior to today. I very proudly state, when I'm speaking publicly or in any forum that I can, about our independence and reporting to Parliament. That's how I view our organization, as highly independent — some might say fiercely independent — in that we decide on our review plan for the next fiscal year. We have it approved by our committee, but our researchers decide, and obviously I approve it, what that research plan is going to be.
Every year we take a close look at what we have done over the last five years and what's required in the next year's research plan. We may, in fact, do something during this current fiscal year; we may have a review that triggers us to do something the next year or the following year that's important to us.
That's how we go, and I'm quite proud of our independence because I think that's absolutely key to having review and doing our jobs the way we need to do them.
Senator Day: Two things flow from that. One is the issue of your budget. In order to be independent, and we've had this discussion with officers of Parliament, if the executive is setting your budget — the Parliamentary Budget Officer becomes to mind — then that will limit what you can do. How do you set your budget and what role does the executive have to play in that?
Mr. Doucet: That's a great and very topical question today. In the future, if we determine that based on legislation we need more budget to carry out our work, we'll go through a budget cycle where we would make a budget ask for resources.
Senator Day: To Treasury Board?
Mr. Doucet: We would go through Treasury Board, that's correct. We would make that ask and justify it based on what we would see that future landscape to be.
Senator Day: The second aspect flowing from your answer is the extension of Parliament. I suppose if the four members plus the chair were all parliamentarians that would make it even more an extension of Parliament.
Mr. Doucet: Yes. Today the composition of our committee is we have one retired member of Parliament, the Honourable Deborah Grey, and our other three members today were not parliamentarians, which is quite different. When I first came into the organization we had some members from provincial politics, provincial MPPs.
Senator Day: The name Ron Atkey was mentioned earlier today, a former parliamentarian who was mentioned in glowing reference.
The Chair: Could I make a request of Mr. Therrien? You mentioned in your comments that 14 agencies that were not subject to any oversight. Could you give us a list of those agencies and send it to the clerk?
Mr. Therrien: Yes. I was referring to agencies that would receive information on Bill C-51.
The Chair: Yes.
Mr. Therrien: They're found in Schedule 3 to Bill C-51.
The Chair: We will find that.
Colleagues, we've come to the end of our time. I want to thank the witnesses for appearing, and I will excuse them at this time.
(The committee adjourned.)