Proceedings of the Standing Senate Committee on
National Security and Defence

Issue 14 - Evidence - Meeting of March 23, 2015

OTTAWA, Monday, March 23, 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.


The Chair: Welcome to the Standing Senate Committee on National Security and Defence for Monday, March 23, 2015. Before we welcome our witnesses, I would like to begin by introducing the people around the table.

My name is Dan Lang, senator for Yukon. On my immediate 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, starting with our deputy chair.

Senator Mitchell: Grant Mitchell, Alberta.


Senator Dagenais: Jean-Guy Dagenais, from Quebec.


Senator Stewart Olsen: Carolyn Stewart Olsen, New Brunswick.

Senator Day: Joseph Day, New Brunswick, and to declare my interest, I'm a graduate of the Royal Military College of Canada, where one of our witnesses is a teacher.

Senator Beyak: Lynn Beyak, Ontario.

Senator Baker: George Baker, Newfoundland and Labrador. I'm not a member of the Defence Committee. I'm a member of the Legal and Constitutional Affairs Committee. I came today to have a listen and to ask a couple of questions, if the chair permits.

The Chair: A special welcome to Senator Baker.

You are fast becoming the dean of the Senate. We always appreciate when you come to impart your wisdom for the rest of us.

Colleagues, the Senate has referred to this committee Bill C-44, An Act to amend the Canadian Security Intelligence Service Act and other Acts.

As we continue our study of this bill, I'm pleased to welcome Christian Leuprecht, Associate Professor, Department of Political Science and Economics, Royal Military College of Canada; and Garth Davies, Associate Professor, School of Criminology, Simon Fraser University.

Gentlemen, thank you for taking the time to appear here to discuss Bill C-44. I understand that you each have an opening statement. I would invite Mr. Leuprecht to begin, followed by Mr. Davies.

Christian Leuprecht, Associate Professor, Department of Political Science and Economics, Royal Military College of Canada, as an individual: Thank you very much for the opportunity to appear before the committee. I think this is a very important act. I have three short points that I want to make. I don't have a written submission, but I'm happy to provide one subsequent to the discussion that might generate more detail that you may want us to answer.

The first point is that this bill is a little bit back to the future, as far as I can tell. People interpret this bill as somehow adding all sorts of new powers to CSIS. This is not the case. The practice at work here has really been a practice that the Five Eyes had instituted since the founding of the Five Eyes community. It is inherently involved by virtue of both the threat environment and the technological capabilities, but we're not really talking about anything fundamentally new when it comes to what is essentially being proposed here. In that sense, I see it as back to the future. As a result, I'm not as concerned about these as perhaps some other individuals.

I would also suggest that what brought us here today — I wasn't privy to the actual case, so I can't say whether CSIS misled Justice Mosley or whether Justice Mosley misinterpreted the circumstances. Justice Mosley has a very robust understanding of national security, but I would suggest that the bill also raises some interesting questions about the extent to which we need to ensure that the judiciary does not overreach on these types of matters.

I would like to bring two specific suggestions to the committee today. Both are suggestions that I will be making tonight in front of the House of Commons when I have an opportunity to appear with regard to Bill C-51.

One is that there is some concern about the review process around CSIS. My particular concern with regard to the review process is that currently the Security Intelligence Review Committee's remit ends at the boundaries of CSIS. When CSIS passes intelligence to other agencies, notably when the letters of disclosure that CSIS provides to the RCMP lead to the intelligence-to-evidence process, or intelligence is shared with other agencies, the Security Intelligence Review Committee has no purview to follow that intelligence. It has no ability to ensure that these other agencies — and there are 15 of them, as you probably know, if we exclude the Department of National Defence — actually handle that intelligence within the confines of the law and within the confines of the mandate under which that intelligence was either collected or was shared by other foreign partners.

I would suggest a slight amendment to CSIS's mandate to be able to follow intelligence as it is handed over to other agencies. I want to stress that I'm not proposing a super-SIRC. I'm not suggesting that SIRC have remit over the entire national security infrastructure. I am not proposing that SIRC be able to actually have any sort of remit over RCMP investigations. I think that's a red herring from a whole number of legal and operational perspectives.

I'm only suggesting that SIRC's remit should be to follow that particular element of intelligence that is passed on to another agency to make sure where it went, how it was handled and that it was handled in accordance with the law.

SIRC now can call the RCMP, CBSA and Department of Foreign Affairs. The problem right now is when SIRC does call them, the usual answer is, "You don't actually have any jurisdiction, and you can't force us to do this." By and large, they don't get anything back. There's a slight exception with CSE.

That is one of my concrete proposals, and I think it would require a relatively simple amendment in wording if the government is not predisposed to including that in Bill C-51. I'm hoping there might be a predisposition to included it in Bill C-44. It wouldn't require new resources, whole new acts or bureaucracies. I think it would substantially enhance the review process with regard to security intelligence within the government.

My other proposition is that, ultimately, there are people who would argue that the review process is somehow in tatters, and we need some sort of big new architecture.

There is an argument to be made for that. I think CSIS would confirm that SIRC has made it a much better agency because it's like a peer-review process. It's not just making sure you did everything by the books; it's making sure that your methodology, your professional development, all these capabilities are there, and where could you do things better? Where are some of the lacunae?

There is, perhaps, something to be said for the national security architecture more broadly, that a broader review process might be useful, but I'm not a big fan of having this across government. I think the five key security intelligence agencies they might want to focus on are CSE, CSIS, CBSA, the RCMP and the Department of Foreign Affairs; but I don't think this is desperately necessary in the current environment, because the other three agencies outside of CSIS and CSE are not engaged in the concrete practice of covert intelligence gathering capabilities. Much of what they do is open source or comes from other partners.

There might be an argument to be made for a more robust review, but I think this is not as big a challenge. CSIS is the most reviewed security intelligence agency in the Western world and therefore, by definition, in the world. We also need to make sure we find a balance between letting people get on with the job that they need to do but also making sure we hold their feet to fire.

To that effect, I would submit that the main challenge is not actually review. The main challenge is convincing Canadians that review is effective, that this is actually working. When Canadians ask the question, "How can the government assure me that my rights and freedoms have not been violated?" to that effect I would propose a U.K.-type process that would allow the opposition to submit names to the Prime Minister. The Prime Minister would be able to pick a couple of names for that list, would be able to clear those individuals. We would essentially set up a separate committee, because, as you know, in a parliamentary procedure we wouldn't just be able to use the current committee structure. We would set up a separate committee, and within that committee, by virtue of individuals having been cleared to "top secret" and having being sworn as Privy Councillors, which means that they would have to keep confidentiality, they would be able to read the SIRC report and the report of the Commissioner of the Communication Security Establishment. The commissioner and SIRC would come before the committee and have an opportunity to debrief that committee, and so afford those opposition members to also ask questions of the commissioner and of SIRC and to be able to do this on a somewhat reasonably regular basis.

Those members would not be able to talk about this inherently in public by virtue of the clearance and having been sworn in, but I do think we need a process that is essentially non-partisan. I know the government says that loose lips sink ships, but there are lots of experienced people within Parliament who understand the importance of classified material and that, if chosen prudently, we can get some very competent people asking very competent questions.

If the government were to adopt this proposition, which would require a change in legal wording, I would suggest that the list for opposition members be open not just to members of the House of Commons but also to members of the Senate because, of course, there's considerable experience in the Senate. That would also give the Prime Minister greater remit as to who he may want to draw on in terms of the composition of that particular committee.

That ends my remarks, Mr. Chairman.

The Chair: Thank you.

We will now turn to Mr. Davies.

Garth Davies, Associate Professor, School of Criminology, Simon Fraser University, as an individual: Good afternoon. Thank you very much for inviting me to speak here today. It is truly an honour to be here. Out of respect for the work of the committee, I will keep my comments very brief and hope they generate questions for afterwards.

I'm not a lawyer. I've been studying terrorism for about 20 years and it's in that capacity that I'm hoping to speak to you today. I will leave the legal nuances to people who are much better prepared than I to speak to them.

There are three points that I'd like to make. The first is that the danger posed by violent extremism is real. I'm seeing a lot of lip service being paid to it, but I'm not sure that everybody is truly embracing that we are experiencing a paradigmatic shift in what's going on in the context around us. I think that the dangers — the threats to Canada and the threats to Canadian lives — are real, and we need to proceed on that basis.

Without being alarmist about it, the challenges we face are unprecedented. We are moving into a time that we've not previously seen, including, for example, living in a hyper-connected world where borders mean very little to people with ill intent; rapidly expanding and evolving means of recruitment, radicalization over the Internet; increasing threats of particular types of home-grown terrorism, lone-actor terrorism; and the potential violence that may be associated with those who are returning from foreign wars, the so-called foreign fighters. All of these are things we've seen somewhat before, but not at this level of intensity.

These sorts of threats, and not limited to these, suggest and require that we modernize our approach to thinking about security intelligence to counterterrorism. I would argue that Bill C-44 is necessary as a part of that modernization process, is a part of the response that we recognize as the new reality that we find ourselves in.

My second point is that one of the most striking and challenging features of terrorism in the study that I've done over the years is the speed with which terrorist groups and organizations are able to adapt to various detection techniques, to what they are confronted with. They change tactics constantly. In fact, much of the history of terrorism and counterterrorism is playing catch-up, the back and forth of them being inventive and us trying to respond to that. I would argue that many of our current methods were not really intended to deal with the threat and have, as such, become outmoded.

For example, there is increasingly no group to infiltrate. There is increasingly no head of the snake to cut off. There's no one with which to negotiate. We're talking about a context that is fundamentally different than it has been. For example, at present, we're dealing with a very extreme version of Louis Beam's idea of leaderless resistance, taken to the nth degree, pushed to the far extreme.

The next question will be, "What comes next?" Because it will inevitably change. It's going to change and it's very difficult to predict what will come next. Some people have predicted, for example, that the next wave of terrorism will be technological terrorism, and we shudder to think about what that will mean and our capability to deal with that, where we're not necessarily talking about people who even have an identifiable ideology of any type.

What we do know is that there is learning taking place. We see that from current events. I mean learning on the part of those that wish us harm in terms of what they do, their strategies and tactics.

In all likelihood, the next attack, the next wave, will be different. It's unlikely the next attack will be rushing through security on Parliament Hill. It's unlikely it will be that. It will be something else. What it will be, I can't answer, but I think we need tools such as those proposed in Bill C-44 that will allow us to be adaptable and flexible in our approach as to how we address these problems.

My third point is that real-time information in this context is critical. It may be needed and it will be needed at a minimum to keep up with potential plots. We can envision circumstances that would require the need to privilege an informer or to share information.

The bill clearly includes measures that represent significant departures from past practices. I would submit that these measures reflect current realities and anticipate potential future contingencies.

Thank you for your time.

The Chair: Thank you very much for your presentations. As an observation in respect to Bill C-44 and the question of oversight versus the review process that's already in place and the bill itself and the issues that we face here, I want to remind senators that Bill C-51 will be coming. It will obviously be debated at some length in respect to the question of oversight.

There are specific sections in Bill C-44 that deal with our law enforcement agencies. I would just ask that you keep your questions in that vein — not to say that you can't get into oversight — as we should deal with the aspects of the bill to get the experts we have before us to give their observations.

Senator Mitchell.

Senator Mitchell: Thanks, gentlemen. This has been very interesting. I'd like to start with Professor Davies.

You said something that really piqued my interest, and that is how this changes and how tomorrow's attacks or threats will be very different. It's leaderless, so it is even more difficult to get a hold of.

One of the issues that some of us believe is the case is the lack of resources. I don't know how much your research has taken you into CSIS or the RCMP or other agencies, but if their budgets are being cut and they can barely find the resources, the 600 they've taken from other things in the RCMP to put on to day-to-day investigations, who's thinking about where the next phase goes and how to adjust the technological possibilities or cyber possibilities? Where is that happening? Who has the resources to do it?

Mr. Davies: It is happening, senator. I agree. There is clearly this juncture that we're seeing between what we're proposing as laws and capabilities on one hand versus the resources to actually carry them out. Even if we are riding on the resources, that's something that could potentially be remedied. We would still need the framework to do it.

To answer your question, routinely in conversation with INSET out in "E" Division, because I live at the far end of the world in Vancouver, somehow there are people working, whether it's off the side of their desk, on various projects that are still trying to get a handle on some of these things. They do feel as though it's unfortunate they are working off the side of their desk on various projects, developing, for instance, technology.

So I am talking to E-INSET about a set of algorithms we have been developing about how we might better optimize finding information on the Internet. That is coming to people's attention, so we're having conversations. It's a process of incrementally getting one person on board and then another and trying to move it up the chain.

As you say, all of that is in the larger framework of there not being enough resources or time and attention to be focused on it organizationally. Right now it seems to be the purview or the remit of a couple of people that are really dedicated and keep it moving forward.

Mr. Leuprecht: I have two thoughts on this. One is that if we live in a democracy that's premised on limited state prevention, ultimately the argument we're having is how much state intervention and powers we want and what costs we are willing to incur to have the benefits from that. We need to have a discussion not just about the resources but about the tool kit. I think some people are suggesting that we somehow need more resources for these agencies, but if I have a plumber who comes to my house with the wrong tool kit, or basically with a hammer and nothing else, to fix is a complicated plumbing problem, rather than calling in a second plumber who still doesn't have the right tool kit, I would prefer to make sure the first plumber has the right tool kit to do the job we want him to do. Ultimately, adding more resources, if we're concerned about individual freedoms, is perhaps a greater threat to freedoms because now we have agencies that are some of the most powerful in terms of potentially compromising people's freedoms with more individuals running around. I'd rather have the right number of people with the right tool kit instead of putting more money towards the problem.

Whether resources are a problem with regard to the RCMP, I have very strong views on this particular issue. One of the challenges within the RCMP is not that there aren't enough resources. One of the challenges within the RCMP is a proper professional development program so we can have people do the job that they're being asked to do.

The current professional development mechanism in the RCMP, if you mind me saying so, is not working. We could do with way fewer resources and have just as effective or better investigations if we had the people with the adequate training to do the very complex jobs they're being asked to do. A system that takes somebody from a local policing contract detachment and as a reward moves them to the white-collar crime in Toronto is not an adequate training mechanism.

I'm working on a separate project where I will be proposing we completely separate federal policing and create a genuine federal policing stand-alone mechanism under the RCMP mandate and genuine contract policing with no movement between the two.

The challenge here is not resources; it is making sure that we have the right people doing the right job. I think as hard as the RCMP tries and as much as there are very competent people within the RCMP, I'm not convinced that the current recruitment, training and development structure within the RCMP serves our national security needs as optimally as it could.

Senator Mitchell: I'd like to pursue that. That's a very powerful statement, and it's not one that will be lost on this committee or on the public. What you're essentially saying is you don't believe the RCMP is adequately trained to do the national security services or national security investigation, to some extent, that they're being expected to do under the current circumstances.

Mr. Leuprecht: I think the RCMP is being asked to do way too much. No other policing agency that I know of in the democratic world has a mandate as broad as the RCMP. There are challenges within their reporting structure, and you can't simply move people from white-collar crime to organized crime to contraband tobacco to human trafficking to child pornography, then move them back down to run a local contract and then put them on a national security investigation, or some of the very sensitive investigations that are currently under way. No other major federal or national police agency that I know of in the Western world operates in this particular fashion.

We could do that if we had highly trained and qualified people within the organization that have the skill set to be able to move readily from one element to another. However, an organization that has minimum qualifications at entry, still has the basic entry requirements of a high school diploma and no criminal record and then has an ad hoc where you do a few courses and work your way up, to me, that's not a coherent fashion of doing national security. I'm sorry.

Senator Mitchell: Another powerful point you made was that while you think there may be less need for concern about oversight than some would say, you made an important point about SIRC's inability to pursue what happens to information that CSIS might share, not only with the Five Eyes, which it inevitably does almost as a matter of course, but also with the 14 or 15 other agencies. Then you made a powerful point, as a lawyer would, about civil liberties and how much intrusion.

You are saying that we need to be able to, for sure, watch the sharing of information, are you not? And that would be in the context of the Maher Arar case where we didn't control the information once we lost it.

Mr. Leuprecht: We celebrate of the eight hundredth anniversary of the Magna Carta this year. This is the basic premise of the way we operate in a democracy. If you go back to the Roman times and Juvenal, who reminded us all about who is watching the people who are watching us, I think that's very important.

Senator, allow me to make one very clear distinction. I am not talking about oversight; I am talking about review. When we talk about oversight, we talk about a U.S.-type congressional system that politicizes ongoing investigations. I'm deeply concerned when people talk about oversight because we do not want to politicize. The last thing we need to do is politicize these highly sensitive agencies and investigations. I don't think there's any need to politicize them in an oversight fashion.

What we do need is a robust review mechanism that ensures that everything was indeed done by the book. I think, by and large, while we have at times failures within our system, as you rightly point out with regard to Arar, we have very good mechanisms to try to remedy those, and we need to make sure we don't extrapolate from one to somehow a broad trend. Arar was an RCMP challenge; it was not a security intelligence broader challenge.


Senator Dagenais: I have two questions. The first is for Mr. Leuprecht. Could you give me examples of how CSIS's work would suffer if the bill was not passed? The bill is meant to support the work that CSIS does. Could you give me examples of how that work would be hindered?


Mr. Leuprecht: The limitation within the current system is that CSIS conducts much of the activity outside of the country under its section 12 mandate. Within those confines, it is considerably limited in the ability to collect intelligence.

It becomes indispensable, I think, for a smaller country such as Canada to have an effective sharing mechanism with our allies, in particular within the Five Eyes community. If you think about the international security infrastructure, the Five Eyes community is at the top of that pyramid; being at the top of that pyramid means having a certain degree of reciprocity with your agencies to overcome the fallacy of composition so that the whole is, in effect, greater than the sum of the parts.

This bill, I think, reinstitutes and facilitates those positive sum gains that are necessary to maintain our position at the top of the international security pyramid.


Senator Dagenais: I assume you're familiar with the Federal Court of Appeal's decision in Re X. How did that decision affect CSIS investigations abroad?


Mr. Davies: I'm sorry, senator. I don't believe I'm qualified to give a good answer on that question.


Senator Dagenais: Do you have anything to add, Mr. Leuprecht? Are you familiar with the Federal Court of Appeal's decision in Re X?

Mr. Leuprecht: Are you referring to the Justice Mosley decision?

Senator Dagenais: Yes, precisely. How did that decision affect CSIS's investigations?

Mr. Leuprecht: Are you asking about the heightened value of the measures in Bill C-44? Is that your question?

Senator Dagenais: Yes, exactly.


Mr. Leuprecht: One of the challenges is that we have a foreign intelligence service but we do not have a human foreign intelligence service. Our foreign intelligence service is CSE, the Communications Security Establishment, our signals intelligence. So our main source for collecting international intelligence in the international realm is the ability of CSIS, for warranted investigations, to go to CSE and ask for certain types of information. I want to stress that this requires CSIS to obtain the requisite legal framework before it can go to the CSE to request that type of information. And it requires us to work with those countries, our closest allies, who do have human intelligence services and who, by virtue of their resourcing, are able to collect and analyze intelligence in the way that CSIS is unable to do, not just because of the current legal constraints, but also because of its funding envelope.

Now, would I personally prefer that the government take the step and write the $500 million cheque that's required and actually separate CSIS's foreign intelligence activities from its domestic intelligence activities? Yes, but — it's not just this government, it's also previous governments — when they see the bill for that proposition, they just simply say, "That's not on and just keep doing under section 12 and section 16 what you have been doing." So I think in light of our not having a human foreign intelligence service, the measures in this bill are absolutely indispensable to CSIS not only fulfilling its mandate to serve Canada but also our mandate within the Five Eyes community to bring the heavy lifting to bear that's required when you're a player in collective security intelligence.

Senator Stewart Olsen: Thank you, gentlemen, for coming.

I was happy to hear you mention the tools, because I agree with you; I think that the tools are essential and we need better tools. With respect to this bill, I'll just talk about a couple of them. One is improving cooperation between CSIS and the RCMP, and the other one is in regard to dual citizens and would allow for the removal of citizenship under strict conditions.

Can both of you comment on those provisions?

Mr. Leuprecht: I think CSIS and the RCMP have an evolving relationship. I can send you the references to the specific court decisions. There is now a straightforward, standard operating procedure of how CSIS and the RCMP cooperate, but there are legal impediments to having the full cooperation that is required. I think Bill C-44 remedies some of those impediments in that working relationship between CSIS and the RCMP as it has been laid out as a result of some very specific court decisions.

Senator Stewart Olsen: Thank you.

Mr. Davies: I would echo Dr. Leuprecht's comments with regard to the RCMP and CSIS. I know from my work with the RCMP that that relationship isn't as antagonistic as it once was characterized. I'm doing some work with RTIC, which is the Real Time Intelligence Centre, out in British Columbia. CSIS members are part of that or have access and the ability to be part of that, and there's a working relationship that is positive. I think this bill goes farther down the road of trying to clarify what some of those things are.

It would be interesting as to what comes out of Bill C-51 with regard to how far we change the mandate of CSIS and what has been referred to as their "kinetic powers" and to what extent that overlap starts to potentially butt those two groups up against each other out in the field and in legal terms. That's one of the things that is interesting about Bill C-44 and Bill C-51 being introduced at the same time. We're trying to keep all the balls up in the air. What's going to happen? Dominoes are falling at different times. It is useful in that regard, but there is still a lot to play out with regard to how that ultimately looks.

Mr. Leuprecht: I'm not hugely concerned about the dual citizenship provisions and stripping people's citizenship, with one exception. There are countries where you cannot renounce your citizenship, so the government needs to institute a process where somebody can, to the government, effectively renounce their other citizenship and essentially quasi hand in their passport for their other country. I do not think within our rule of law system we should penalize those citizens who would like to demonstrate uncompromising allegiance to the Crown but are unable to do that because their own governments will not allow them to renounce their citizenship.

Senator Stewart Olsen: I see. Thank you both.

Senator Day: Gentlemen, thank you very much for your submissions. You're leaving us with a number of interesting points to consider.

I have a point of clarification for you, Dr. Leuprecht. In relation to your second recommendation that SIRC have the power to review information that CSIS has passed on, you then made a comment that various organizations might have received information in Canada from one of the Five Eyes. That's what I wanted to clarify. Your recommendation, then, was just that SIRC would have expanded power to follow the information that was shared with other Canadian agencies by CSIS? Is that correct?

Mr. Leuprecht: Exactly, sir.

Senator Day: Something is not entirely clear to me, and you may be able to answer this fairly quickly. Clause 8 of Bill C-44 deals with section 21 of the existing CSIS Act and concerns the director, or any employee designated for the purpose, seeking a warrant on reasonable grounds. If you look at the front end of the bill, it clarifies the fact that CSIS can carry out its functions in Canada and outside of Canada.

Is it implicit that outside of Canada they would always go for a warrant? Or, as Dr. Leuprecht mentioned about going to the Communications Security Establishment to do this foreign information gathering, would the CSE require a warrant before they performed the work that CSIS is asking them to do outside of Canada?

Mr. Leuprecht: Any activity that concerns Canadian citizens is warranted activity, and any activity that concerns citizens of the Five Eyes community has to be warranted activity by other members of the Five Eyes. If that requires intelligence sharing with a Canadian service, essentially it will need to meet the Canadian legal standard for CSIS to be able to pass that type of intelligence. So we need to make the distinction between Canadian citizens, Five Eyes citizens and individuals who are not citizens. Permanent residents fall into a slightly different category, is the best of my understanding, but I'm not a CSIS lawyer.

Senator Day: Neither am I, but I understand the Canadian citizen aspect of this. It's just there are so many qualifiers on here about reasonable grounds being required. That's all in this section, is "required," but it doesn't explain what the requirements are.

Mr. Leuprecht: "Reasonable grounds," of course, is a higher threshold than most of the warrants that CSIS can obtain because most of the warrants are under reasonable suspicion. It is a higher threshold of evidence, and CSE can only share intelligence with CSIS on Canadian citizens when CSIS is able to demonstrate that this is warranted, what's known as warranted activity.

Senator Day: Thank you, that's helpful.

The Chair: To clarify that further, because I think Senator Day has raised a very serious point about the legislation, the minister's approval is also necessary. I think that's very important in respect to the checks and balances of the system as the warrant is being called for. Is that not correct?

Mr. Leuprecht: Indeed, this is something that I've pointed out repeatedly. First, of course, the warrant has to be prepared within CSIS as an institution. Then it goes to an interdepartmental committee which then vets that warrant. Then it goes to the minister for signature, and then it goes for judicial authorization.

We also need to remember that judges don't simply sign off on these warrants. Judges ask a lot of very hard questions, and judges can impose conditions on these warrants. The judge can say, "After you do this, you need to come back; you need to tell me what you did, how you did it, and you need to demonstrate to me that you actually did it within the confines of the law." So judges have a fairly extensive remit here.

I think the accusation that all that's involved is a judge signing off on this does not give credibility to the accountability process that's in place, ultimately ministerial accountability within the framework of responsible government. It gives short shrift to the incredible capacity that our judges, as gatekeepers, bring to our national security system.

The Chair: I just wanted to get that clarified for the record, colleagues.

Senator Beyak: Thank you, gentlemen, for excellent presentations. Your knowledge is superb.

I appreciated what you said about the tool kit, because I speak to the bureaucracies and the different departments from time to time and they say it's a misnomer that they're asked to do more with less, that actually they'd rather do better with less, with the right tools, with fewer taxpayer dollars. I appreciate all the observations you made with the way that we do things, and I hope we take them into deep consideration.

In relation to Bill C-44, could you tell me from your perspective whether you agree with the protection for human sources intelligence and what further measures might you recommend to ensure that CSIS can do its job of protecting Canadians while ensuring their privacy? That seems to be the biggest concern.

Mr. Davies: I think it's easy to conceive of situations where obviously the protections that they're talking about granting for informants could be abused or problematic. I would argue that it's equally as easy to imagine situations in fluid time where those things might be necessary as part of ongoing investigations. This harkens back to our points about information being sort of what drives the ship, as it were.

The limitations, which will be raised by constitutional lawyers and people about the privacy concerns, necessarily are beyond that that can be salvaged in the context of this legislation. It could be made to work and I think it is necessary.

Senator Beyak: Thank you.

Mr. Leuprecht: Senator, with respect to the tool kit, I think one of the challenges we have with this bill, and also Bill C-51, is that every Canadian has been to school. They understand education policy. Every Canadian has been to the physician. They understand health care policy. But when it comes to security, the worst most of us have done is gotten a speeding ticket somewhere on the highway.

As a result, I think the public has a very impoverished understanding of both how our security agencies operate and the constraints that are already placed on the security agencies. The problem is every time they hear something about a security agency, it's either because they watch American television or because they hear about what security intelligence agencies or federal national police forces do in authoritarian countries.

We paint with a brushstroke that is completely inadequate for the system that we have by superimposing popular culture and news snippets onto what actually transpires in Canada, and it could not be further from the truth. People who contrast what the NSA does with what CSE does, read the legislation.

I think this is why the issue with the tool kit is — we do this in all other policy areas. There some things work and some things don't. We change the things that don't. This is why we have democratic, elected governments. Some think we should have a little more state intervention. Some think we should have a little less state intervention.

But when it comes to security, where we would have a reasonably rational discussion in other policy fields, all of a sudden it becomes this extremely emotional, ideological discussion. So many folks don't understand and think CSIS is going to videotape them in their bathrooms, or something like that, and we will have government security agents somehow running around, completely unfettered, collecting intelligence and passing it off to the RCMP, who will then throw people in jail for indefinite periods of time.

The conversation that we're having is important so that people have a better understanding and a better public discussion about the tool kit that's in place and the tool kits that are required.

As I'm sure you've heard from the intelligence community, the protection of sources is absolutely vital to the business in which they are engaged. What's even more vital is that our Five Eyes community members know that when they pass intelligence to us, their sources are protected. Because if we compromise their sources or we compromise their methods of collection, they're not going to give us anything and we'll be out of the Five Eyes community so fast we won't even know what hit us.

I know this is a red herring, but I can't tell you from a legal perspective how we reconcile this. We can't compare protection for sources on the policing side with what we do on the intelligence side. They are just two completely separate frameworks and the cooperation is completely different. I think this is a very important dimension, but how exactly we reconcile this within our constitutional system I leave to minds much greater and smarter than mine.

Senator Beyak: Thank you for a very reassuring and complete answer. For those watching at home, I'm sure they understand a lot more than they did before you told us that.

The Chair: Perhaps Mr. Leuprecht could follow up on the reality that the law is there for the RCMP and their informants and is already in place for protection so they can utilize individuals for the purposes of their law enforcement agency. What is the difference between us now presenting that responsibility to CSIS when we've already given that authority to the RCMP?

Mr. Leuprecht: With the inchoate understanding that I bring to the table, the short answer to your question is Stinchcombe, 1991, and the requirement for full disclosure.

I think one of the red herrings is inherently intelligence that might be passed on to the RCMP as evidence, and CSIS will not pass along intelligence that might compromise its sources. We need to make sure that those sources on the CSIS side can continue to remain adequately protected.

That doesn't entirely answer your question, sir.

Senator Mitchell: But isn't the reverse a danger as well? If we give this assurance of anonymity or protection to an intelligence source too early and too easily, we can run into a problem later on, when it comes to prosecution, that that intelligence source can't be used to get a conviction, which is what happened in the Air India case. There needs to be a refinement of the way in which that promise explicitly is given for human source protection.

The police are very cognizant of the prosecution problem, and so they tend to use it, we're told, much more sparingly.

Isn't that what could be opened up if we're not very careful, with CSIS, and how they would use it? They could give it to everybody. In fact, there's a suggestion that it's implicit in the bill that it would go to everybody and then you wouldn't get prosecution.

Mr. Leuprecht: That's why we have a Security Intelligence Review Committee in place. This is one of the things that I think SIRC already looks at with regard to making sure not just that everything is done by the law, but also to find the weak points with regard to the issues in place. To some extent, I think we need to rely on SIRC to make sure this is done adequately and not in a way that might subsequently compromise.

Senator Mitchell: Would you agree that we should have explicitly in the legislation that SIRC has the power to review the decisions about who gets intelligence anonymity, source anonymity?

Mr. Leuprecht: I would say we would want to have a maximum remit of SIRC over CSIS's activities, especially in the absence — I was in favour of removing the inspector general's office from within CSIS, but I think in the absence of the inspector general's office, it is one more reason why we do need to have that remit and ensure that SIRC does have that remit.

Senator Ngo: My question is for either or both of you. Why do you think it's important for CSIS to expand its disruption activities?

Mr. Davies: Do you mean specifically, for example, the qualification that it now be allowed to operate overseas?

Senator Ngo: That's correct.

Mr. Davies: I think increasingly we're living in a world where borders mean very little, mean nothing. While we obviously have to respect the confines of territorial integrity of these places, many of these places don't respect our territorial integrity. So I would argue that it's no longer enough to just walk up to our border and say we can't go past this; we can't stop.

Increasingly, for example, we're seeing groups like ISIS — I hate to bring up the name — that have now taken over two parts of two countries and are moving into a third. We talk about what is their territory and to what extent we can operate in, for example, their realm. We are talking about people who are recruiting Canadians from those areas and being able to gather information — people who will never come here; people who are in areas such that they will never, ever set foot on Canadian soil.

I think being able to give CSIS the opportunity to address the reality of what that is and to disrupt behaviours, not just plots over here but plots that will eventually translate to being over here — the danger potentially of foreign fighters, people going there and then coming back, moving the whole process back to stopping them in the first place.

But if they get over there, that's another thing. How do we keep track of people: asking questions, being able to get information once they go over there? I think the changing nature of the phenomenon itself dictates that we think about these sorts of things more clearly.

Mr. Leuprecht: We still think in terms of 1648 and the Peace of Westphalia and the sovereign nation state, that if we build bigger walls and bigger moats, it's going to keep out all the bad things. One of the challenges with globalization, especially as a result of the communications and transportation revolution, is that it's just so easy to get to places and so easy to get information from anywhere. One of the challenges with information is the bubbles that people live in, which is that they only get information that reinforces their biases.

The approach that academics refer to as methodological nationalism, sometimes referred to as the territorial trap, of somehow thinking we can close our borders and stop all these threats at our borders, is simply not on. In fact, if we look over the last 130 years or so at how we do security — and I can trace this for you historically — we've consistently pushed borders farther out. I see this as a mechanism of essentially pushing our borders out as opposed to thinking about the line, thinking about where the threat actually originates.

This requires a complete rethink. The challenge we have is that the institutions of the states as we have them — I don't want to talk about nation state in the Canadian context — are not well suited to the types of flows and movements that we have in the 21st century. So the challenge is how we reconcile the institutions that we have with the flows, both legal and illegal, that we find across the world. I think the powers being proposed here are just part of the evolving phenomenon of adapting to that.

Let's remember that much of the disruption activity in which CSIS might engage will be perfectly legal. As a very simplistic example, within Canada, CSIS is not allowed to tell parents, under a strict reading of the act, that their kid might be talking to a recruiter and that they might want to talk to their kid because their kid is up to no good.

Much of what we consider disruption is not some massive plot. It's going to be very simple, straightforward ways of essentially telling CSIS that they are allowed to engage in this type of interaction.

These disruption techniques, especially ones that might require extensive traditional authorization, will be very rarely, if ever, used because CSIS is fully aware that these techniques are highly controversial, and the last thing CSIS wants is some big national inquiry about some interaction that CSIS might have had. I think CSIS will be extremely judicious in the use of the activities in which it engages, and I would submit that CSIS is already extremely judicious in the use of these measures.

I would say that the level at which CSIS recruits and trains and the professional development mechanisms within CSIS are already pretty good, although I think we could benefit from, for instance, a proposal that's been around for a long time, which is a national intelligence school, to ensure that we don't just provide a legal framework but also the socialization and the necessary institutional culture.

I work at the Royal Military College. There's a reason the military pays for its own university — not just for the added value that we bring in terms of particular expertise, such as the discussion that we're having today, but because it allows us to socialize individuals for almost four years into a certain type of mindset. I think we need to make sure that people don't just understand the law but also understand the broader values, norms and societal context such that a decision they might make today, that's tactically the right decision, could bring down the government tomorrow.

CSIS has been very judicious in its activities, but I think there's more to be done, especially if we're going to be providing more enhanced capabilities.

Senator Baker: Thank you for providing me with an opportunity to ask a question, Mr. Chairman. I'm not a member of this committee. I'm Deputy Chair of the Legal and Constitutional Affairs Committee. I'll try to be very brief, although it's very difficult because of the evidence that's been given.

First of all, the reference to Justice Mosley: Your comment after you mentioned Justice Mosley was that the judiciary should not overreach. I don't know how you came to the conclusion that the judiciary is overreaching in relation to matters concerning CSIS. If you read all of the judgments from Blanchard to Mosley to the Court of Appeal, I don't think there's any overreaching there; and I think the Supreme Court of Canada, which two weeks ago approved the appeal from CSIS, from the government, will deal with the question down the road.

Let me get right to my question or the chairman is going to cut me off.

You dealt with SIRC. First of all, would you have preferred that these new powers given to CSIS be given by a minister? In other words, if you look at the security establishment under the National Defence Act, they obtain warrants to intercept private communications and put listening devices in people's homes and cars, and so on, by authorization from the minister alone. They don't go to a court. They don't have to under the legislation. The same parameters, however, apply.

Would you have preferred that the government had gone that route here instead of having to go to the judiciary to obtain the same warrant that the security establishment can get by just going to the minister?

Second, as far as SIRC is concerned, the reason you mentioned Justice Mosley was because of his judicious intervention in a fact that happened in 2013, when the commissioner reported that there was something wrong, that CSIS should be notifying judges on what they intend to do with warrants, and that they can't get a warrant to search a car and then go search somebody's home. They can't get a warrant to search Canadians in Canada — just that warrant — and say they're not going to do anything else with it and then go and perform the same service overseas.

SIRC put out a report in 2013 that they had reviewed what CSIS was doing. It's entitled Review of a New Section 21 Warrant Power. It starts off by saying, in their annual report: "This review was SIRC's first examination of a new warrant power under Section 21 of the CSIS Act, which was originally authorized by the Federal Court in 2009." That's plain wrong. The commissioner saw what was correct and he recommended that from now on CSIS go to the judge and tell him what they intend to do.

We've got 673 warrants issued under what the courts now claim is unlawful authority. I don't know what's going to happen to all of the evidence they've accumulated — interesting question. Perhaps our next witnesses may be able to address that. They made a recommendation in their 2013report. SIRC found that while there are clear advantages to leveraging second-party assets — that's your Five Eyes — in the execution of this new warrant power — which they didn't have — there are also clear hazards, including the lack of control over the intelligence once it has been shared.

That's your point, isn't it? That's exactly your point, that they should be given that authority.

The Chair: Senator, can you get to your question?

Senator Baker: Yes. I think I've asked a couple of questions that the witnesses may wish to answer.

Is that where you got your idea that SIRC should be given that very power they asked for in 2013, given the fact that they were unable to realize that warrants were being issued unlawfully from 2009 up until 2013?

The Chair: Gentlemen?

Mr. Leuprecht: I don't want to get into the specifics of that. The issue with regard to Justice Mosley hinges on whether he felt misled by CSIS.

Senator Baker: He was misled by CSIS.

Mr. Leuprecht: Well, I think the CSIS argument would be that this had been standing practice and that CSIS was not required to go seek judicial authorization every time it engaged in this particular type of practice. Whether that is right or not —

Senator Baker: Supreme Court of Canada.

Mr. Leuprecht: I don't want to weigh in on who was right in this particular case. I'm no lawyer and I'm no judge.

There are, of course, two models. There's the ministerial warrant model and the judicial warrant model. I would prefer a judicial warrant model, I think, on this particular issue, but it's ultimately for the government and for legislators to decide which model they think is most appropriate in the Canadian context.

I would like to remind you that, in the context of our discussion, we're not just making legislation for the threats and the risks we face today. We're also trying to provide a system that can evolve with a threat environment that is evolving much more rapidly than either the capabilities within the national security environment or the legislative framework that we have in place. The bad guys are very good at exploiting the vulnerabilities we have in place.

On the one hand, we need to make sure that we actually think about tomorrow, not just today. On the other hand, we assume the status quo within Canada, but we want to make sure that in the unlikely event that a major event were to occur in Canada, rather than having to resort to all sorts of orders-in-council and whatnot to try to get a grip on the situation, we want to make sure we have a proper, robust legislative and review framework in place to be able to respond adequately and promptly in order not to assign too much power to the executive branch of how any one particular incident might be handled, and this requires certain types of trade-offs.

Senator Baker: You cut me off, chair.

The Chair: I would never cut Senator Baker off. You know that.

Colleagues, it's past two o'clock. On behalf of the committee, I'd like to thank our two witnesses for taking our questions today. You certainly brought forward a lot of information and dealt with a lot of issues that the area of public security has to deal with on a daily basis. We look forward to reviewing what you have said.

As we continue our study on Bill C-44, I would like to welcome back to the committee Craig Forcese, Associate Professor, Faculty of Law (Common Law Section), University of Ottawa; and Paul Copeland, Human Rights Lawyer, of Copeland Duncan, Barristers and Solicitors. I call on Mr. Copeland to begin.

Paul Copeland, Human Rights Lawyer, as an individual: I want to thank the committee for inviting me. I'd like to give you a brief background as to how I think I ended up here.

When the House of Commons committee was looking at Bill C-44, I contacted the committee and sought an opportunity to appear. They only had two days of hearings and I obviously didn't get into that hearing. I made some submissions in writing and then forwarded them to a couple of senators and as a result somehow magically ended up here today.

You have the written submissions I've prepared, but they're very much restricted to the issue of human sources.

Before I start on that, I just wanted to point out to you, assuming you received all the material I sent up, including a CV, the written submissions and then I sent some questions concerning the RCMP monitoring of Couture-Rouleau and I asked that a CBC report be produced. I want to touch on that briefly in my opening submissions.

Senator Day: I have one clarification. I'm sorry, Mr. Copeland, but I haven't got any of that material and I'm wondering if other colleagues are in the same situation.

The Chair: I just received the questions concerning the RCMP monitoring of Martin Couture-Rouleau. That's the only document I have.

Senator Day: So I guess you can't assume we've all had a chance to see it.

Mr. Copeland: Have you seen this one? It starts with something called questions concerning RCMP monitoring of Martin Couture-Rouleau. I had asked the clerk to reproduce a brief CBC report on it.

The only comment I wish to make is to ask you to read the Couture-Rouleau stuff. That was prepared in November. There was a later revelation before this committee, I think when you had Commissioner Paulson here, that at some point the RCMP thought they had a basis to arrest Couture-Rouleau and then got some legal advice saying, no, they didn't have that basis. I would urge everybody in the Senate and actually in the Commons to ask to have a copy of the legal advice that they received. As I say, in the questions I raised concerning Couture-Rouleau, I think they had a basis to arrest him. If they had arrested him in advance, he obviously wouldn't have killed Patrice Vincent and I'm not sure that the second murder would have occurred. That's not the subject of my submissions, but it's something that's been concerning me since last November.

The Chair: It's on the public record now.

Mr. Copeland: Thank you.

You have my CV. I have been mainly a criminal lawyer but I've been doing it for a very long time. I've been dealing with national security issues since the early 1970s, helping a couple of professors get into the country after they were refused on national security grounds. I've done a couple of cases before the Security Intelligence Review Committee. I appeared at the Arar inquiry and the Iacobucci inquiry on behalf of Abdullah Almalki and so I participated in those inquiries. I was counsel to Mohamed Harkat in the first security go-around with him. It ended up in the Supreme Court of Canada, where the legislation was declared unconstitutional. I then, which seemed like a bit of a surprise to me, got top secret national security clearance and became a special advocate for both Mohamed Harkat and Hassan Almrei, so I appeared on those matters.

I think I have four pages of submissions that I've provided to you. I've tried in those submissions to explain to the committee the difference between what happens with informants in criminal cases and what happens with human sources in the security certificate process. What I pointed out is that in the criminal process the informants are used to get wiretap authorizations and search warrants. They don't testify in the cases and their evidence is not part of the prosecution.

In security certificate cases, the human sources, some of whom and many of whom are being paid, provide information to CSIS agents. Those end up written down on a piece of paper that is then provided to the special advocates and to the court in the secret hearings in the security certificate cases. In those cases, if you have gone through the brief, you'll see that we made attempts to interview the human sources and made attempts to — if we'd ever gotten to interview them, I suppose — call them as witnesses. It was all information that very much affected how the person who was the subject of the security certificate was going to be dealt with and what decisions were going to be made with regard to him.

I have included in the material some reference to the decision of Mr. Justice Mosley in the Almrei case where he found that there was information provided by CSIS to the court about what a human source had provided, and there was other information that hadn't been provided by the government to the court but which my fellow special advocate Gord Cameron found in the 8,000 pages of material we got which totally contradicted that information. That's at the bottom of page 3 of my submissions to you.

In the Harkat case, it turned out that at some point as we were dealing with information from one human source — to be fair, perhaps the government lawyers found out that the human source had flunked a polygraph. They never bothered to tell us that. They would provide us with a source matrix which explained a little bit of the background of the human source, but they didn't say, "Oh, by the way, he flunked a polygraph." So there were hearings before Mr. Justice Noël on that.

At the beginning of the hearing he ordered that one complete human source be provided to us, and so we got to see that and got to know who the source was. At the end of the hearing, when he mostly exonerated CSIS for failing to tell the court the source had flunked the polygraph, he ordered that another human source file be provided to us. So we got to find out who the human sources were. We got to find out how much they'd been paid, their backgrounds and other aspects. It never made it out of the secret hearing. There has never been a breach of the confidentiality.

Yet what CSIS and the government are doing, in my submission, by the new section 18.1 and by some new provisions in Bill C-51, is trying to provide an immunity for the human sources so nobody will ever get to interview them and nobody will ever get to cross-examine them.

We dealt with this issue. Originally, Justice Noël found that the human source basically had the informant privilege attached to it. The Federal Court of Appeal and the Supreme Court of Canada said no, it didn't attach to it. The Supreme Court of Canada said if they want to have the informant privilege attached to human sources, it's up to the government to do it, not up to the courts.

They haven't done it in a direct way here, but the effect of what they're doing with this new legislation in part of Bill C-51 is to ensure that nobody in a security certificate process will get to possibly cross-examine human sources. It may be a matter of life or death for the person or the persons who are the subject of the security certificate.

Those are my opening submissions.

The Chair: Thank you.

Mr. Forcese?

Craig Forcese, Associate Professor, Faculty of Law (Common Law Section), University of Ottawa, as an individual: Thank you to the committee for having me here again to testify. I'm going to set up my views in brief and then make a couple of comments about Bill C-44.

At the Commons committee on Bill C-44, I expressed my support in principle for the proposed amendments to sections 12 and 21 of the CSIS Act that are now before you. I also pointed to three omissions in the bill that Parliament should correct. Since that time, the government has introduced Bill C-51 and has still failed to address these omissions.

I feel it necessary now to further qualify my support for Bill C-44 and raise doubts about its viability.

Before reaching that matter, I present here today also on behalf of Professor Kent Roach, who offered evidence on the informer-privilege aspect of Bill C-44 at the Commons committee. I wish to begin with informer privilege. Mr. Copeland has already addressed portions of this, but put briefly, Professor Roach and I believe that the new provisions in Bill C-44, by ignoring the recommendations of the Air India inquiry, risk making our most successful anti-terror tool, criminal prosecutions, less useful.

After four years after study, the commission concluded that CSIS should not be able to bestow a class privilege on informers. Justice Major stressed:

CSIS promises of anonymity to human sources might often be premature and could, if the promises were enforceable, jeopardize subsequent terrorism prosecutions.

The Supreme Court in Harkat also recognized that:

Police have an incentive not to promise confidentiality . . . because doing so can make it harder to use an informer as a witness.

CSIS, however, will have none of these incentives to be judicious in extending privilege.

In our view, the new privilege prioritizes CSIS intelligence objectives over the needs of terrorism prosecutions. This is a questionable choice. Intelligence is important in preventing terrorism, but so too are prosecutions. The Air India inquiry proposed solutions to the problems of reconciling these objectives, including closer executive oversight of decisions made about intelligence that may be deployed in prosecutions. The government has been inert on these recommendations.

More than this, Bill C-44 recognizes that the new privilege must be subject to an innocence-at-stake exception, but this exception in Bill C-44 is constitutionally under-inclusive since it does not reach use of the privilege in security certificate and perhaps other regimes that trigger section 7 of the Charter. As the result, Bill C-44 is myopic from a policy perspective and will inevitably result in another round of constitutional litigation that may cure some of its deficiencies but at the expense of years of uncertainty.

I turn now to the issue of foreign spying. In enacting the amendments in clause 8, you will be asking a court to bless CSIS covert surveillance that may violate international or foreign law. In our system, Parliament has authority to grant expressly powers that violate international law, so long as those powers do not then also violate the Constitution. I told the Commons committee that I saw no constitutional complaint, assuming we are confining our discussion to surveillance issues.

I must now amplify and qualify this view. I do so because in Bill C-51 the same formula of allowing CSIS to break foreign law is used and purports to extend well beyond surveillance issues. I must also qualify my remarks because the Supreme Court has agreed to hear the Re X decision. There, we should expect that the court will be asked to consider what it intended in its 2007 Hape decision when it wrote:

In the absence of consent, Canada cannot exercise its enforcement jurisdiction over a matter situated outside Canadian territory. Since effect cannot be given to Canadian law in the circumstances, the matter falls outside the authority of Parliament and the provincial legislatures.

One interpretation of this passage and its accompanying language is that this Parliament acts beyond its constitutional competence in authorizing physical action by a Canadian agency in a foreign jurisdiction done without the foreign state's permission.

If the court affirms this view, it will have the impact of rendering unconstitutional the extraterritorial aspects of Bill C-51 and potentially also Bill C-44. This will be a matter for the court to decide.

I wish, however, to focus on a first omission in Bill C-44 that may also rise in Re X. Specifically, it is not clear when the service will be obliged to obtain a foreign surveillance warrant. The existing statute speaks of "belief on reasonable grounds that a warrant is required." In a domestic surveillance operation, these grounds arise when a failure to obtain a warrant would violate section 8 of the Charter, which governs searches and seizures, but the applicability of the Charter to foreign surveillance is uncertain. As a consequence, the existing "reasonable grounds" threshold is unhelpfully ambiguous when applied to the new extraterritorial warrant powers in this bill. Because the bill is not emphatic, this question will need to be decided in litigation.

I strongly urge this committee, therefore, to pre-empt uncertainty by adding clear language on the trigger for seeking a foreign surveillance warrant. I have proposed language in an annex to my brief.

Second, since this bill was tabled, the Supreme Court has issued its decision in Wakeling. That case concerned the RCMP, but its holding extends in practice equally to CSIS. A majority of the court concluded that section 8 of the Charter applies to sharing between Canadian authorities and foreign counterparts of intercepted communications. To be constitutional, a reasonable law must authorize the intercept sharing, and a reasonable law is one that includes sufficient accountability and safeguard regimes.

Right now, there is no clear law on CSIS international intercept sharing. At best, there is generic, more open-ended permission, which seems unlikely to survive constitutional challenge. The risk is that CSIS's international information sharing, important, even elemental to Canadian national security, will be hamstrung. Shockingly, Bill C-51 does not cure this problem, even with its vastly overbroad information sharing law.

I would strongly urge this committee again to pre-empt years of litigation and uncertainty by codifying an express statutory authorization for intercept sharing that includes standards of the type likely to satisfy the Wakeling standard. Again, I have proposed language in the annex to my submissions.

Last, we are now past the tenth anniversary of the Arar commission. I note with profound concern that Parliament has failed to legislate any of the commission's critical recommendations dealing with coordination between the review bodies for CSIS, CSE and the RCMP. Instead, we have closer and deeper coordination between the security services, but review remains firmly limited to institutional silos.

As you know, in the wake of Bill C-51, these concerns are now acute. It is my earnest and most sincere belief that moving ahead with Bill C-44 and Bill C-51 without fixing accountability gaps would be reckless, and I would go so far as to label it the most ill-considered act by any Canadian government in the area of national security law since the findings of the McDonald commission.

Let me end there. Thank you.

Senator Mitchell: Thank you very much, gentlemen. It's tough to know where to begin. These are powerful presentations.

I'll begin, Mr. Copeland, with your concern about the human sources issue. I just want clarification.

Part of your concern is that the exemption for the case where revealing the identity would ensure somebody's exoneration, who otherwise wouldn't be exonerated, applies in this act only to criminal and not to security certificates and not to other immigration administrative tribunals and rulings that could, in fact, jeopardize somebody's life.

Mr. Copeland: In the criminal prosecution, I don't know of any cases — and I stand to be corrected — where they've actually brought a CSIS human source forward to testify. So I'm not sure I can comment on that very much.

Where I've seen it is in security certificate cases. Some of the security certificates are being done before the Immigration and Refugee Board, and they use special advocates for those. I haven't participated in one of those, so I don't know what the context is in that regard. I'm sorry I can't answer your question better than that.

Senator Mitchell: That's okay.

Mr. Forcese, you made a very powerful comment, and it directly addresses the concern about civil liberties versus tools for protection. What sort of oversight would you propose to solve the problem that you have so clearly articulated? What sort of oversight do you think would be adequate that we don't have, or is it simply the law can't be fixed or the bill can't be fixed?

Mr. Forcese: I think the bill can be fixed. I think Bill C-51 can be fixed, and I don't think it would require that much.

I actually do believe in a super-SIRC. Professor Leuprecht expressed some doubt. I think a super-SIRC is where we need to go. It would build on the experience of the Australians in terms of their Inspector-General of Intelligence and Security, and they have made that system work well on top of also having a very robust parliamentary committee on national security.

But appreciating that in the context of Bill C-44 it will be difficult to create an architecture for a super-SIRC that would have a remit over the entire all-of-government intelligence, at the very least there should be the so-called statutory gateways. The Arar commission suggested that there needs to be statutory gateways that would allow the three existing stovepiped review bodies for CSE, RCMP and CSIS to coordinate their investigations and to share secret intelligence so that they could better meet their review functions.

That doesn't require that much legislative language, and in the back of the envelope, I proposed some language in my brief. So that's the review equation.

I think there are steps one could make on the oversight side, so more the pre-authorization aspect of accountability, and here I'm thinking about the judicial warrant process.

One of the concerns with the warrant process, and it's a concern with Bill C-44 and also for Bill C-51, is that once the judge issues the warrant, there's no automatic feedback mechanism. This raises the Mosley preoccupation that was discussed in the prior panel, which is that the judge essentially found out through fortuitous circumstances that CSIS had exceeded the judge's view as to what the warrant permitted.

It seems to me that there should be mechanisms that require a more constant patter of feedback from the service to the judge. In other words, there should be a capacity on the part of the judge to task SIRC with follow-up.

We've talked a lot about SIRC. In principle, SIRC can do the follow-up. The problem is that it's so resource-constrained that it can only do seven or eight reviews per annum. CSIS receives, even in the current context domestically, more than 40 warrants. SIRC isn't reviewing all the warrants, let alone everything else that CSIS does. SIRC's capacity to actually engage in meaningful feedback right now is limited by its resource preoccupations.

Senator Mitchell: I have a follow-up directly related to that.

Dr. Leuprecht said, well, the warrant system is being underestimated, that the judge can, in fact, require as a condition of the warrant that he or she get feedback. I'm sympathetic to what you're saying, but how do you answer that argument?

Mr. Forcese: I would propose that the judge as a condition on the warrant, certainly in circumstances where the warrant may prove problematic, require that the minister request of SIRC a section 54 report on the service's performance under the warrant, and that that report also then be made available to the judge.

So it is possible, I think, to create such a regime in the present law, but I would have concerns on the part of SIRC that if this were to become a common practice, SIRC would be distracted by its focus now on these warrants and would no longer be able to conduct the sorts of reviews it might have on other matters, in the current resource context.

Mr. Copeland: Can I just add one thing to that? Gord Cameron was the amicus in the Re X case. It would seem to me, and he's presumably going to argue it in the Supreme Court of Canada, that in those cases where a judge has decided to have an amicus come in, they might have some report go back to the amicus so that the judges aren't trying to review everything that's coming out of the warrant. The amicus would presumably be familiar with what the warrant was for and how it was granted and other aspects of it.

Senator Mitchell: But follow-up and review remains the issue?

Mr. Copeland: Yes.

The Chair: To clarify the record, the way I understand this, the judge has the right and can take on the responsibility to ask for that follow-up if he or she chooses to do so. Therefore, the legal right is there if they wished to exercise it.

Mr. Forcese: For the purposes of a follow-up mechanism, I think it can presently be exercised under the current law, subject to my concerns about what that would mean for SIRC in terms of it being distracted from its other activities. Of course, that wouldn't answer the first point I made about the stovepiping of the review bodies in terms of their conventional review function.

The question was about improving review and oversight. Review needs to be fixed. Oversight in terms of a judicial role, I think you can make great strides under the current law, but unless you cure the resourcing problem so that you can invest SIRC in participating in that new system, I think you would end up with a net reduction in what it is that SIRC could do in terms of its other functions.

Senator Stewart Olsen: You have answered one of my questions on this speculation in your op-ed on the privilege provisions. I understand now what you're saying.

I'm not a lawyer, but I would speak to you from the average person on the street who says if we over-think so much of all of this, will our intelligence agencies ever be able to do anything if they have to go and say "I may be breaking this law; I may be subject to a Charter challenge"?

Do you see where I'm coming from? It's becoming so difficult from the legal standpoint that everyone is confused about everything. Certainly, when you need a lawyer, you need a lawyer, but I'm worried about the message that goes to our public, who want to be protected, absolutely; in absolute terms they want the government to protect them. They want our laws to protect them.

Would you not consider that moving forward, yes, you may make mistakes in the legislation and you do your best not to, but we have to move forward? The general testimony from most of our witnesses is that we must readjust to the current state of affairs today, with the global aspect of terrorism.

I give that to you from a state of confusion about your very articulate presentations, because you both have presented very strongly, and I would agree with Senator Mitchell, but I just want to say that for people on the street, it's not really where they want to see the government go.

Mr. Forcese: The government has legitimate objectives, and I think everyone in this room would share the objectives. The question is always one of execution. My concern is principally with Bill C-51, but to the extent that I've also noted these omissions in Bill C-44, there are foreseeable lacunae, foreseeable gaps and deficiencies in this legislation. If they come to pass, which seems likely, then the very situation you're describing, such as uncertainty in terms of what it is that CSIS can do and perhaps jeopardizing CSIS's effectiveness, all those things will come to pass.

It seems to me that a lot of these issues, in both Bill C-44 and Bill C-51, could be cured with more careful drafting and still achieve the government's objectives.

On Bill C-51 and Bill C-44, Kent Roach and I and others have proposed language that we think accommodates the government's stated objectives but also squares the circle in terms of ensuring that this rash of uncertainty doesn't then flow from these hurried bills.

In the past, one of the problems with Canadian national security is that it has been reactive. No one has done a renovation, and so what's happened is piecemeal efforts to cobble together solutions caused by inadequate law that's then struck down by the Supreme Court. This bill is about the Harkat case and what about Re X. It's reactive. A little bit more pre-emptive legislation that grapples clearly with the foreseeable problems would prevent us entering that cycle again.

Mr. Copeland: I would make two comments, one going back to what I originally presented to you about Martin Couture-Rouleau. If the present laws — and this is something you'll have to find out — were adequate, a whole lot of what is more in Bill C-51 than in this is not necessary. Again, it is more in relation to Bill C-51. The whole disruption mandate terrifies me. I was around long enough to see the McDonald commission. I had clients whose operations were disrupted. I had wiretaps on my office, and I carefully reviewed the Keable inquiry and McDonald inquiry and saw what the RCMP had done. I am very nervous about giving CSIS the powers to disrupt generally and occasionally to require court authorization to do some of the really egregious disruption.

It's clear that everybody in the country would like to ensure that nobody else is killed in terrorist acts in the country and there are no other incidents that jeopardize the safety of the citizens of this country. But I'm not sure that this legislation — and again, not so much this one, but the other one — has that effect.

Senator Stewart Olsen: I see. Thank you very much.


Senator Dagenais: Before I get to my question, I'd like to make a comment. I think we need to take the time to properly study legislation, both Bill C-44 and Bill C-51, but we need to keep in mind that acts of terrorism are still being committed. Just take Tunisia, for example. The devil is in the details, and it is our job to analyze those details. But let us not lose sight of the fact that attacks are still being perpetrated and Canada could once again be a target, perhaps even today.

My question is for Mr. Copeland.


We recently learned that the RCMP has had to wait 30 days before the courts would hear a request for a peace bond. What would you see as the impact of this on CSIS's resources? Would you agree that Parliament may wish to consider additional provisions to expand detention of high-risk individuals until a judge can hear a request for a peace bond application?

Mr. Copeland: There already is provision for that in the present legislation. As I understand it, it is Bill C-51, not this legislation, and they're lowering the standard to apply for a peace bond from "reasonable grounds to believe" or to "may engage in terrorist activity."

Again, I would like to see the legal opinion that the RCMP got saying that they couldn't arrest Couture-Rouleau, and then I may have a different view of the matter. But the provision which was brought in in 2002 lasted for five years, was sunsetted and then brought back in, has barely been used. So I'm not sure that something greater is needed. That would be my view of it at the present time, subject to seeing the legal opinion that the government lawyers provided.

Senator Dagenais: Do you have a comment, Mr. Forcese?

Mr. Forcese: No, I'm content with that.

Senator Day: There has been a lot of interesting and helpful information, gentlemen. Thanks to each of you. I have a couple of points for clarification

Mr. Forcese, could you tell me, if I go back and read what Mr. Roach had to say at the House of Commons — you indicated he had made a submission there — is it going to be that his view has changed somewhat like yours? You were a bit more enthusiastic about Bill C-44 prior to seeing Bill C-51. Now that you see where the government might be going, I understand from your testimony that you're a little bit less supportive of Bill C-44. Is that the same for Mr. Roach?

Mr. Forcese: At the Commons committee, Professor Roach focused exclusively on informer privilege, and his view has remained constant. I think, if anything, his concern has redoubled because now, of course, we don't just have the prospect of confliction because of CSIS overextension of informer privilege in terms of prosecutions; we also have the confliction problem raised by CSIS now engaged in kinetic measures, which might also have a bearing on how successful the RCMP can be subsequently in a prosecution. I think that confliction concern has redoubled for him.

For Bill C-44 in the Commons, I focused exclusively on the foreign spying issue. At that time the only consideration was this: Was CSIS operating extraterritorially in relation to conventional intelligence gathering? I was less preoccupied with that concept, and at that time the Supreme Court hadn't agreed to hear Re X. Now that it has, I think it will hear this case, aware of Bill C-51. There are a lot of issues that will be up in the air in that litigation.

Senator Day: Perhaps there's a reason we haven't seen the submission. We have a rule here that documents circulated to all senators have to be in both official languages, and I understand it might only have been in English. We'll get that in due course, but some of the proposed amendments you have made, are they exclusively yours or yours and Professor Roach's?

Mr. Forcese: Well, they're the same ones that I prepared for the Commons committee. I can't speak for Professor Roach, but I have no reason to believe he would disagree with them. It's my fault, incidentally, that they came in so late. I'm afraid I didn't get them in until this morning.

Senator Day: I'm not looking for fault. It would be helpful to review those in light of the information you've given us here today, and I look forward to receiving those.

Mr. Copeland, I suspect we have the same problem with a lot of the documents you referred to at the beginning. The only one I have is in relation to Mr. Couture-Rouleau. I just got it now.

Mr. Copeland: Did you not get the standing —

Senator Day: I didn't.

Mr. Copeland: That was sent up two weeks ago.

Senator Day: Could you tell us all of the documents that you feel we should have in order to understand your testimony? We'll make a list of them.

Mr. Copeland: Well, the questions concerning the RCMP monitoring of Martin Couture-Rouleau, there's a half-page document, a reprint of a CBC report from January 15. It's entitled "Martin Couture-Rouleau peace bond denied weeks before fatal attack." The main one is a submission that's four pages long with some attachments of the original legislation and the subsequent proposed amendments, and it's called the "Senate Standing Committee on National Security and Defence (SECD) on Bill C-44, An Act to amend the Canadian Security Intelligence Service Act and other Acts." As I say, that was sent two weeks ago, and I understood it was being translated and provided to the committee members.

Senator Day: In case they might have gotten lost along the way, we could make other copies.

The Chair: Senator, it will be followed up.

Mr. Copeland: I can leave my copies here, if you want. I can push a button on the computer and reproduce them.

Senator Day: I thank each of you for your very clear submissions.

Senator Beyak: Thank you, gentlemen.

I read your brief, Mr. Copeland, and it seems to me that it's all the more reason why we need Bill C-44 and Bill C-51 because their hands were tied. They couldn't do anything that they needed to do to apprehend him. At least that's the way I see it.

I share Senator Stewart Olsen's concerns with public perception; they want us to do something. Their eyes glaze over when they read these sections of bills that seem to contradict one another.

Mr. Copeland: Can I stop you at that point?

Senator Beyak: Certainly.

Mr. Copeland: If the government lawyer was wrong in his advice to the RCMP, then it presents a very different situation. I'm not convinced of the need for the two bills, but that question has to be answered, in my view, before you get to the next thing.

I've certainly dealt with a lot of government lawyers. Some of their advice I agree with and some of it I don't, but I should think you would want to look at it.

Senator Beyak: It's a shame.

Bill C-44 and Bill C-51 have been put together with the best of intentions, using the best from our allies, the Five Eyes. Could comment on Bill C-44's dealings with the good intentions of the other countries?

Mr. Copeland: I didn't prepare a brief in relation to that. I can tell you from doing the special advocate work where we saw material that was coming in from the Five Eyes, it comes in by way of information. There are caveats applied to it. It's all very secret. It can't be passed on to other people.

My own view is that there has been sharing of information going on between the Five Eyes forever. Canada was restricted from spying on Canadians, the NSA was restricted from spying on Americans and GCHQ I think had the same restrictions. My impression was that they were sharing information all the time and that trading was going on. Now I can't document that, but that was certainly my impression as to what has happened. I don't think Mr. Snowden's revelations put any additional doubt in my mind on that issue.

Senator Beyak: Thank you very much.

Senator Baker: Gentlemen, thank you for coming here. You both have made a great contribution to Canadian law in your respective capacities, and you've done that over the years. You've made Canadian law, and that's very impressive.

My first comment, which you may want to comment on, is regarding the sources. The government is right in the sense that sources have to be kept confidential. Don't you agree that your problem arises when the only information you have to initiate a proceeding or a warrant or a certificate is from sources? Whereas when you look at our laws in Canada and go back to Garofoli where it says you can't rely on just sources; you must have police investigation at least to verify the facts behind the sources. You just can't have the sources alone.

There is one sentence in this bill — Professor Forcese, perhaps you can comment on this, and I'll tell you why you should comment on it. It says, "Without regard to any other law, including that of any foreign state . . . ." Now, you, professor, said that is quite a courageous statement. That was the statement you made — courageous.

Now you tell the committee today that you've had a look at Hape, Supreme Court of Canada. Hape says you can't interfere with the sovereignty of another nation as far as their laws are concerned, and you're absolutely right. But the Supreme Court of Canada recently, six months ago, quoted you extensively in four paragraphs in a case called Kazemi Estate v. Islamic Republic of Iran. They quote a paper that you wrote back in 2007, I believe it was. They say this:

Just as foreign states do not want to have their executive, legislative or public actions called into judgment in Canadian courts, so too Canada would prefer to avoid having to defend its actions and policies before foreign courts.

They quote you, Forcese, paragraph 135. I went to paragraph 135, which you wrote many years ago, called, "De-immunizing Torture: Reconciling Human Rights and State Immunity," and your first sentence refers to simple reciprocity. Tit for tat, you said, retaliation of this sort would obviously impair international diplomacy. You're talking about reciprocity.

Now we're passing a law here which you say is perhaps unlawful, but the Federal Court of Appeal recently said it is lawful to interfere with the laws of another nation. Aren't you concerned more about reciprocity? We pass this law here that says we can do whatever we want on a warrant in the United States, listen to conversations, and then the reciprocity principle kicks in, as you claim, in your argument in 2007, so that we would then have the United States tapping our phones, listening devices in our cars and in our bedrooms in Canada without any authority to do it. Isn't reciprocity the real concern and not the legality of interfering in somebody's state sovereign laws?

Mr. Forcese: There's a lot there.

The article that you're referring to is an article I wrote on state immunity, which is quite a different concept. It's about the capacity of a state to be sued in the courts of another state. The reciprocity principle is quite acute, that is, that is the reason this bar exists.

The broader issue is about international law and spying, specifically peacetime spying, and their international law is creatively ambiguous. So when I appeared in front of the Commons committee on Bill C-44, having written another article on the ambiguity of international law when it came to peacetime spying, I wasn't prepared to say that in every instance peacetime spying by Canada on a foreign state would violate international law, and I'm still not prepared to say that.

What I am concerned about is that passage from the Hape case, which suggests that as soon as you stray into a more active involvement by your government in a foreign territory, what they call "enforcement jurisdiction," the exercise of physical force in a foreign jurisdiction, that's when you do violate international law. That passage in Hape, which hangs there without explanation, suggests that might be constitutionally impermissible.

That would surprise me, I have to say, because it would be a new understanding of our Constitution, at least as I have always understood it, but it is hanging there and it will be a ripe issue for Re X.

That issue is more acute for me for Bill C-51 because it authorizes a service to go overseas and do things physically in a way that Bill C-44 is, at least in principle, more about intelligence collection, although I do acknowledge that intelligence collection can be quite intrusive and quite physical in some cases.

The final point is on the Federal Court of Appeal in Re X. The Federal Court of Appeal didn't answer the question as to whether it would be permissible. They say, well, it hasn't been developed as an argument well enough. I'm not sure that will stop the Supreme Court from addressing the issue.

Senator Baker: Thank you.

Mr. Copeland, you have been very successful in some of your ventures in litigation. I was looking at one of them. You made a reference to it a moment ago. A sentence in that Federal Court judgment, Justice Mosley, paragraph 134 of the Almrei decision, says:

The content of that report was relevant to the merits of the certificate and to the motion by the special advocates —

— that's you —

— to quash the certificate on the ground of a breach of the duty of candour.

That is, of not giving all of your information to the issuing judge, or to the issuing person, not being forthright, totally truthful about what was happening.

The CSIS 2013 annual report talks about many judgments and warrants that have been issued that the courts say were unlawful. My question to you is this: Don't you think that any defence lawyer, if any of the information in all of those warrants that were issued — there are 673 that they say took place — will be challenged in any court in this country that's ever brought to trial, that the warrant should not have issued in the beginning because the application for the warrant did not represent candour to the issuing judge, and that that will become an issue?

Mr. Copeland: I would certainly expect that defence counsel, if some evidence comes forward as a result of the warrant — presumably you're talking about a warrant to intercept conversations, and then you're talking about putting in a conversation that the accused in the trial is having. In those circumstances, I would expect the defence counsel to try and attack the warrant.

I'm sorry. I'm not going to remember the case. There's one close to 30 years ago where the government actually gave up on the prosecution because they lied in getting an authorization.

Senator Baker: Oh, there are many of those.

Mr. Copeland: No, no, this was in a case that related to national security.

It will be attacked, certainly, or there will be an application made to exclude the evidence. Whether it's excluded or not depends on the presiding judge, and there's a balancing that's done under section 24 of the Charter.

Senator Baker: Section 24(1).

Mr. Copeland: In those circumstances, I don't know what a judge would do. If it's a question of their having forgotten to tell the court that they were going to use a foreign agency to get the information, I rather expect the judge will say that that isn't sufficiently serious to exclude the evidence of the wiretap because whatever conversation the person had may well be a very significant part of the prosecution.

So I don't know what the result will be, but there certainly will be litigation around it and Charter challenges in regard to the admissibility of the statement.

The Chair: Could I just interject here, colleagues? We get into this discussion between lawyers, and it's somewhat entertaining, but let's get down to common sense here. If somebody puts forward a warrant and knowingly doesn't provide all the information, are you not breaking a law to start with?

In this particular case, when it comes to public security, if the judge makes a decision that a warrant will be exercised, a warrant can be conducted, but he or she wants them to report back and continue to monitor what that warrant does, it would seem to me that this section is fine.

Mr. Copeland: The question that was asked of me was a criminal prosecution that results in information gathered in the warrant. It's very different from the issuing judge following up and seeing what they're doing with the authorization. It's a trial judge that's going to be making the determination on the admissibility of whatever intercept they made.

The Chair: That's a check and a balance in the system, then.

Mr. Copeland: Yes.

Mr. Forcese: Could I just refer to my initial comment, which is that the warrant will clothe the service with authorization, and if it exceeds the scope of the warrant, that's where we have problems. The issue, though, is that it's very unclear when a warrant will be required for extraterritorial intercepts because the trigger, which is implicit domestically, does not exist for the international side. For the sake of the service, it seems to me, it would be useful for Parliament to say that these are the actual circumstances where you have a reasonable ground to believe that a warrant is required.

The risk right now is that no one will really know until someone litigates the matter. Until then there will be uncertainty, and after that there will be a further scandal because the court may decide that the service has been acting inappropriately up to that point.

It seems to me that it is incumbent upon Parliament to signify in the legislation what it is that triggers the obligation of the service to go to the judge in the first place and seek a warrant in this context where it is inherently unclear.

Senator Baker: Morelli, paragraph 44, and Araujo, paragraph 46, answer the question. The Supreme Court of Canada will, of course, answer the question now in the appeal that they've agreed to hear as of two weeks ago. But under normal circumstances, any warrant from which evidence is obtained is challenged in a court of law when you're in a criminal trial. If information is found not to have been given to the issuing judge, then, as you say Mr. Copeland, the judge will have to determine whether or not the warrant would have issued with that new information that should have been given to the judge.

I think that when you go back to the historic record of these judgments, the court is just going to throw it out and you'll have 673 warrants, the results of them being thrown in the garbage.

Mr. Forcese: That's true in a police context, but only a finite number of warrants in the CSIS context ever end up anywhere near a criminal court. The person who is subject to a CSIS warrant will almost certainly never know they were surveilled, will never have an opportunity to challenge the legality of that measure, so we are dependent on SIRC having the resources to actually scrutinize what it is that CSIS did. As I've said, SIRC has a finite limit in terms of what it can actually scrutinize.

Senator Baker: Under a certificate or the application of a certificate, but I'm talking about a criminal prosecution under the Criminal Code.

Mr. Forcese: That's very uncommon with CSIS warrants.

Senator Mitchell: There's one other nuance. Maybe it's not that nuanced.

The argument was made to me by a lawyer the other day that what's really at stake in this warrant process which asks, in a sense — maybe explicitly — a Federal Court judge to authorize illegal activity in another country, which one could argue is problematic, is CSIS's concern that their agents won't have immunity if they break laws. If immunity is really the issue, why not just address immunity like they do in the British case, where they just address immunity, and get around a lot of this warrant problem as a result? Is that not a legitimate argument?

It seems to me that, at the basis of this, it certainly is. It's coming from CSIS, I think, that they're concerned about the immunity of their agents. This is a convoluted way of solving the problem, which creates more problems, and you just give them immunity.

Mr. Forcese: That's true. Of course, they're not going to be immune from foreign law. If they're caught in the actual conduct of a violation of foreign law —

Senator Mitchell: They're breaking Canadian laws as well.

Mr. Forcese: They could be breaking Canadian laws, but the issue is that Canadian law rarely goes beyond the borders of Canada, and even the Charter doesn't usually travel beyond the borders of Canada. To the extent that they are trying to clothe themselves with immunity, they're trying to grapple with ambiguity. My hope is that you clear that ambiguity by specifying exactly when it is that they seek a warrant.

You're right; the warrant would then clothe them in immunity from, say, prosecution under Part VI of the Criminal Code for an unlawful intercept of private communications.

Senator Baker: Part VI is excluded.

Mr. Forcese: It's excluded to the extent that they have a warrant, but if they acted outside the purview of a warrant and intercepted private communications, then the protections, the exclusion, would not apply.

The Chair: For the record again, in respect to that particular section, we've had evidence here that some proceedings haven't gone forward because immunity was not in place for those that would be involved, if they so choose.

Mr. Forcese: Is this informer privilege?

The Chair: No, this was in other testimony here before the committee in respect to this particular section of the bill. The fact that they don't have immunity now for those who are involved, that has been cause for concern because some people have said they're not prepared to participate because they don't know where they stand. So there's another reverse onus in respect to where the government's responsibility is to those who would help to bring forward cases that are in the public interest.

Mr. Forcese: No dispute at all.

The Chair: Therefore, I would say that this particular section is important and that it be considered for the purposes of passage.

Mr. Forcese: I agree, but again my concern isn't the existence of this provision; it's the absence of clear criteria as to when you go to seek the warrant in the first place. Once you have the warrant, you're clothed with the immunity.

The concern is that if it's not clear when you need the warrant, when do you know you have to get the warrant in the first place to receive the —

The Chair: We won't get into full debate here, but I wanted to follow this up a bit further, colleagues, because I think it's important.

We've had numerous witnesses before this committee speaking of how the threat is evolving and how it's escalating as days go by. There are so many new aspects coming in with respect to what our law enforcement agencies have to deal with.

In the legislation, you have to go to the court for various authorizations as a check and a balance in the system, as was explained earlier by a witness just prior to you coming.

What I'm asking you is in respect to not knowing what the future holds for us, knowing that it's evolving the way it is, and every day there's a new revelation, we have to be able to give some latitude to the law enforcement agencies. With a check and balance at the court, wouldn't that at least negate some of the problems you foresee in respect to the legislation going forward?

Mr. Forcese: It's that very dynamism of the situation and the necessity that Canada should be able to collect intelligence on persons who cross the border that justifies this provision. I'm suggesting that you need a "for greater certainty" provision that specifies when the service will have reasonable grounds to believe that a warrant is in fact required.

Not every circumstance will require a warrant, as is true domestically. Domestically you know you need a warrant as soon as you breach the Charter. Internationally it's not clear the Charter even applies, so when do you need the warrant internationally?

Until the Supreme Court clarifies the jurisprudence on the reach of the Charter overseas, the service is going to act with uncertainty as to when they have to go to a judge in the first place to get one of these extraterritorial warrants.

All I'm suggesting to this committee is that it prescribes, for greater certainty, that you have reasonable grounds to believe that a warrant is required in the following circumstances.

The Chair: I could carry on with this but I won't, colleagues.

It is past the time allocated for this particular portion of the hearing. I would like to thank our witnesses. We really appreciate you coming.

I would like to excuse the witnesses.

I think, Senator Mitchell, you had a point of order to raise.

Senator Mitchell: Thank you very much, Mr. Chair.

I know there is a desire to get this bill through. We all understand the importance of dealing with the issue at hand and that we have scheduled clause-by-clause consideration for today. I have some concerns with doing clause-by-clause consideration of the bill immediately after we've had witnesses, but particularly today because of the substance that we've heard.

These four witnesses were exceptionally good, very specific. They raised issues for which I feel we need some time. I certainly need some time to consider them in terms of the possibility of doing amendments at the clause-by-clause stage.

When you get down to the timing of the issue, we're not going to get through third reading until next week in any event. So if we did clause-by-clause consideration next Monday, it gives us the chance to consider this kind of powerful, specific, substantive testimony. I could list some of the issues that have been raised. Renouncing citizenship, which would be a very straightforward amendment, would be one. SIRC following up on the sharing of information is another one which would strengthen this bill.

Not only would we get the chance to consider amendments that have arisen out of this testimony that could strengthen the bill and alleviate certain concerns, but we would also not delay the passage of the bill at third reading because it's very unlikely that it's going to get to third reading this week anyway.

The Chair: Colleagues, we've heard the senator speak on the point of order. I would like to point out that the next order of business is to deal with Bill C-27. That's very important.

Secondly, we will be dealing with Bill C-44. If the majority of members agree to deal with Bill C-44, there will be a motion put on the floor for that purpose. I would submit that we should suspend for 30 minutes, come back and deal with the veterans' legislative measure, and then decide whether or not we're going to proceed with Bill C-44.

Senator Kenny: There's a motion on the floor, chair, that we can all speak to.

The Chair: It was a point of order.

Senator Kenny: Okay. That's a motion, and we can all speak to it.

The Chair: I was waiting for people to speak to the point of order, and nobody raised their hand.

Senator Kenny: You had something to say and I let you finish.

The Chair: Would you like to speak to the point of order?

Senator Kenny: Yes, please.

I think that when we have witnesses come and they talk to us about documents that they have sent to us that we haven't yet seen, to suggest that we're going to go ahead and deal with the bill in a final way for committee shows no respect for the witnesses who have provided the information. It would appear that some of the information was provided some time ago.

I think that out of respect for our witnesses and the integrity of the system, none of us want to appear to be rushing to judgment without having heard all of the material that's been brought before us.

Senator Stewart Olsen: I do take your points, but I think that the witnesses were extremely articulate in explaining their briefs. Even though we did not see them in advance, they were certainly able to present very clearly to us what they felt and what they thought. I would not see it as disrespect to witnesses, because we gave them full hearing and full listening. So I would submit that we should continue as we have on the agenda and go ahead. But I'm not sure we're there yet. That's going to come later, I think.

The Chair: Senator Day, on the point of order.

Senator Day: On the point of order, I want to first of all say that the witnesses today were excellent witnesses and they've given us an awful lot to think about. My role, and my whole reason for being a senator, is to try to do the very best I can to bring about the best legislation that is presented to us. In this particular case, some amendments — which we haven't seen yet — are recommended in the submissions by one of our last witnesses. Neither one of them could go over their entire submission, but they made reference to it.

We cannot do the job expected of us without reviewing that documentation and comparing it to what the witnesses had to say. I don't know what a half-hour would do. Without the documents, the half-hour won't help me any. I would propose that you rule on this particular matter at this stage, unless you have something else you wanted us to do during the half-hour.

The Chair: Colleagues, are there any other comments?


Senator Dagenais: Mr. Chair, when I was a police officer, I had a lot of trouble with defence lawyers, and that may be the reason why, as I listened to the witnesses, I felt like I was listening to two defence lawyers, who are constantly pointing the finger at police officers. That may be what rubbed me the wrong way.

It felt like they weren't analyzing the bill but, rather, putting CSIS and the RCMP on trial. It was hard for me to listen to them, and I'm becoming more and more convinced that we should pass Bill C-44, and perhaps even Bill C-51.

I appreciate what lawyers do, Mr. Chair. I don't mean to offend any lawyers at the table or in the room. They always say that the devil is in the details, and they comb through those details. These bills, however, are intended to protect us from acts of terrorism. In fact, suspicious envelopes were just received at the Centre Block and the Victoria Building. As attacks continue to be perpetrated, we are dissecting the work that police officers do. I just wanted to make that point.

I was prepared to go ahead with the clause-by-clause study today. I think we should stick to the agenda.


The Chair: Colleagues, I would like to make this observation: We do have an order of business, like I stated earlier when we began discussing this point of order. We do have another two pieces of legislation that we had scheduled to debate and discuss as far as the committee is concerned. One was the referral from the Veterans Subcommittee in respect to Bill C-27 that we should deal with. That's going to be the first item of business this afternoon.

Second, there is a motion that will be put forward as to whether we should proceed with the reading of Bill C-44. I think some members have stated their case fairly clearly, but we will make a decision at that time, so I would suspend until 3:45.

Senator Stewart Olsen: Fifteen minutes only.

Senator Day: Mr. Chair, I'm ready to go now to Bill C-27.

The Chair: I would like to suspend for 15 minutes, so we will reconvene at 3:35.

(The committee suspended.)


(The committee resumed.)

The Chair: Colleagues, I understand the first order of business is Bill C-27. Senator Day, you have the floor.

Senator Day: Thank you, Mr. Chairman.

On behalf of Senator Stewart Olsen, myself and the other members of the Subcommittee on Veterans Affairs, we'd like to thank this committee for sending Bill C-27 to the subcommittee. We had three meetings and heard from12 different witnesses in considering Bill C-27. As an aside, the new Minister of Veterans Affairs appeared before us on this particular bill. That was his first meeting before the Senate.

As a result of those hearings and the deliberations, we had a meeting to proceed with clause by clause. That meeting took place earlier today, and I am pleased to advise that the subcommittee adopted the bill unanimously.

I have a motion to make, Mr. Chairman, that this committee adopt Bill C-27, an Act to amend the Public Service Employment Act (enhancing hiring opportunities to certain serving and former members of the Canadian Forces) without amendment and that the chair report the bill to the Senate.

The Chair: Is there any debate on the motion?

Senator Stewart Olsen: Do you need a seconder?

Senator Day: Not at committee, but I think you should second it anyway.

The Chair: All those in favour?

Hon. Senators: Agreed.

The Chair: Unanimous.

Colleagues, we had one other order of business on our schedule. It was the clause-by-clause consideration of Bill C-44. We discussed the question of whether or not we should proceed earlier in the afternoon, after the last witnesses vacated.

Therefore, I want to put on the floor for debate, is it agreed that the committee proceed to clause-by-clause consideration of Bill C-44, An Act to amend the Canadian Security Intelligence Service Act and other Acts?

Senator Day: No.

Senator Stewart Olsen: Agreed.

Some Hon. Senators: Agreed.

The Chair: On division? Agreed. We'll proceed, then.

Shall the title stand postponed?

Hon. Senators: Agreed.

The Chair: Shall clause 1, which contains the short title, stand postponed?

Hon. Senators: Agreed.

The Chair: Shall clause 2 carry?

Senator Mitchell: I have an amendment to propose, Mr. Chair.

The Chair: Colleagues, Senator Mitchell has informed me that he has three amendments for three different sections of the bill. I would ask the page if she would circulate all the amendments, and then we can proceed accordingly.

Senator Mitchell: Thank you.

The Chair: I want to thank Senator Mitchell. He did give us advance warning in respect to the amendments, so there has been some time for preparation.

Senator Mitchell: Thank you, chair.

The amendment that I'm proposing to clause 2 is the following:

That Bill C-44 be amended in clause 2, on page 1, by replacing line 10 with the following:

"having received an explicit promise that their identity will be kept confidential, has".

The explanation for this amendment is that the concern that we've heard is, in one sense, ironic, and that is that while strengthening the ability of CSIS to give its informants anonymity and confidentiality, which stemmed from a ruling of the courts that they didn't have that authority as the police do now, the risk you run is that it's implicit in the bill that everybody gets this confidentiality. In the end, whereas the police are very careful about how they use it, because once given, it can ruin the ability to use that source in a prosecution, the concern is that if it's assumed to be a blanket confidentiality guarantee to a CSIS source, these sources may not be available for a court case later. In fact, it's been argued that one of the reasons a successful prosecution wasn't achieved in the Air India case was exactly that, that a confidential source wasn't able to present in the trial. The evidence, therefore, wasn't adequate and there wasn't a successful prosecution.

What this amendment would achieve would be to say that there isn't an implicit assumption that a human intelligence source for CSIS gets confidentiality and anonymity protection as a class, but that it has to be explicitly given. In fact, what that does is it gets the best of both worlds. It allows CSIS to do what the court case said it didn't have the power to do, while ensuring prudence so that the likelihood of a source one day not being able to be used in a prosecution is reduced.

We try to find a balance to get the best of both worlds with this amendment. It just makes common sense.

Senator Kenny: I should preface what I'm about to say by advising the committee that I generally support this piece of legislation, and the amendment that Senator Mitchell has brought forward really is an ironic and problematic issue.

I think we understand the need to provide for confidentiality, but if the process of doing that in a blanket way causes people not to be able to participate in a subsequent court action, we should be very careful as to whom that confidentiality goes to.

The implicit confidentiality is almost best described by an agent or, if we were talking about it in a criminal case, a police officer saying, "We'll take care of you. Don't worry about this. We have your best interests at heart." There is then an assumption that there is going to be some remedial action, which almost inevitably means providing them with confidentiality.

The concern I have with this is that there are some people within the system who don't know about other pieces of malfeasance that are coming forward that they may be jeopardizing. If there isn't a system that is created where the whole chain of command understands that there is an offer of confidentiality going forward, we could well find a situation where we have inadvertently hurt future court cases.

I'd ask that we all give that some consideration. I'm not doing this to try and hijack the bill. I'm doing this to try and make this bill a more effective piece of legislation that we won't regret subsequently.

Senator Stewart Olsen: I certainly hear your arguments. My major concern — and I'm pretty sure this was the major concern of CSIS and the people who drafted the bill — is that sources, if they are not granted confidentiality, will be very hesitant to disclose anything at all.

We're dealing with a different world here. I hear about prosecutions and, perhaps, a failure of a prosecution, but I prefer to allow the intelligence agencies to offer confidentiality so that the witnesses or the sources come forward with information that may protect Canadians without the people thinking their lives will be at stake if they come forward.

I think you have to consider that. I think that's the first step that CSIS is going forward with, that we have got to have the information. Down the road, we'll worry about the prosecution, but we need to have people disclosed to us so that we can protect. It's for the greater good, I think.

I would oppose this amendment.

Senator Day: It's really a question of clarification. The wording in the bill as it appears is "after having received a promise of confidentiality," and this wording is "having received an explicit promise." Is there a definition of "explicit" or what is intended by the word "explicit"? How would you anticipate that to be interpreted?

Senator Mitchell: There are two things. One is explicit promise of confidentiality, and the other feature is that their identity will be confidential. The amendment specifies further identity being confidential. What does a promise of confidentiality in fact mean? It specifies that further to their security, to provide them greater security.

With "explicit," you could put in a phrase such as "in writing," but there might be some problem with putting some of these things in writing, further creating a trail that might frighten somebody who's looking for this kind of security. The word "explicit" encompasses "in writing." It encompasses "we promise you that we will protect you." It gives some flexibility to CSIS to do it in a variety of ways.

Senator Day: I noticed that the identity of the human source is referred to in clause 7 of the bill and proposed section 18.1. They're getting into identity, which follows your amendment.

Senator Mitchell: Exactly.

Senator Day: It picks up the term "identity."

Senator Mitchell: It's not mentioned here. It's just a promise of confidentiality and not identity, which begs the question of what's being kept confidential.

Senator Day: Thank you.

The Chair: Colleagues, before I go to Senator Kenny, we do have staff from the department here. The general counsel of Justice Canada and the chief of the policy and strategic partnerships directorate are here with us if we do have questions. I want to make that available to you so that you know that.

Senator Mitchell: Sure.

The Chair: Senator Kenny?

Senator Kenny: Thank you, chair. When I heard Senator Stewart Olsen's comment, I felt I hadn't explained myself well.

Senator Stewart Olsen: No, no.

Senator Kenny: I didn't intend to be opposed to the granting of confidentiality. I am in favour of simply qualifying it by saying "explicit" because the problem to date on the criminal side has been "implicit." By the way that people are treated by arresting officers, there's an assumption sometimes that really isn't intended to be there. What we're really talking about is if there is going to be a promise — and I'm not opposed to it; I recognize what you're saying, that you won't get the person to talk unless they feel there's some confidentiality — the insertion of the word "implicit" here adds to the likelihood or ensures that there will then be a system within CSIS that will ensure that not only does everybody within the system know and understand, but there's an opportunity where there's an awareness of the implications for other court cases that that's taken into account. That's why having a more formal process, an explicit process, is a small change, but an important change.

The Chair: Any other comments?

The procedure, then, is that I will read the motion for the purposes of a decision being taken.

Is it your pleasure, honourable senators, to adopt the motion in amendment?

Some Hon. Senators: Agreed.

Some Hon. Senators: No.

The Chair: On division? Are we satisfied that the motion in amendment has been defeated? Agreed; it's been defeated.

This is a new procedure for me, colleagues, so bear with me.

Senator Kenny: It's new for all of us. I've never heard it like that before.

The Chair: Bear with me.

Shall clause 2 carry?

Some Hon. Senators: Carried.

The Chair: Shall clause 3 carry?

Senator Stewart Olsen: Carried.

Senator Day: Clause 2 was on division because there was a motion that was defeated.

The Chair: Clause 2, on division?

Hon. Senators: Agreed.

The Chair: Shall clause 3 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 4 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 5 carry?

Senator Stewart Olsen: Agreed.

Senator Baker: I wonder if I could ask a question for clarification concerning this clause.

The Chair: Of whom?

Senator Baker: Of yourself, the deputy chair or one of the experts in the gallery.

The Chair: Proceed.

Senator Baker: Mr. Chairman, I just looked at what was given to me by the clerk, namely the Canadian Security Intelligence Service Act, as it relates to clause 5. I noticed that the English version says "a corporation," and what we're now bringing into law in French is "les personnes morales."

I ask this question as to why because the Canada Corporations Act is "corporations canadiennes" in French and the Canada Business Corporations Act is "les sociétés par actions."

We have the CSIS Act where a corporation is called "personnes morales." I suppose some people would call it an oxymoron to say a corporation is a "personnes morales," but I like the term. I'm wondering why that term is used in this particular bill where "corporations" and "les sociétés par actions" are used in other legislation.

The Chair: Colleagues, we do have representatives from the department here. Perhaps one of the representatives could come forward and address that question.

Senator Day: Can you tell me what clause that was?

Senator Baker: Clause 5.

The Chair: Colleagues, I would like to welcome our witness. Would our witness please introduce herself?


Nathalie Benoit, General Counsel, Department of Justice: Good afternoon. I wasn't expecting that question.


Senator Baker: I'm sorry, I wasn't expecting to ask the question.

Ms. Benoit: This was modified by Bill C-44, so "personnes morales" was already in the act in 1984. It may have been amended because of the Code civil du Québec. In Quebec, "une personne morale" is any corporation or society. That is probably why you're seeing "personnes morales."

Senator Baker: But you haven't, though, answered my question. My question is, and if it was in the original act, "une personne morale" in the original act, "une."

Ms. Benoit: It's section 16 of the current CSIS Act.

Senator Baker: Yes, paragraph 16(1)(b). It's a matter of interest to me why we would have "corporations canadiennes" in the Canada Corporations Act called and "les sociétés par actions" in the Canada Business Corporations Act. In this case, the CSIS Act, it's "personne morale." Is there any significance to it in law that you're aware of?

Ms. Benoit: Not that I'm aware of. The explanation is probably because for the federal corporation, the act is a federal act and is named the Corporation Act. When they harmonized the act under the bijuridisme, at some point they may have changed this in the French version to reflect the bijuridisme in Canada, and "personne morale" would better fit with the Quebec Civil Code. In French it makes more sense to have "personne morale" than "corporation." That's all.

Senator Baker: Mr. Chairman, there's the answer. In French it makes more sense.

The Chair: Colleagues, perhaps I could ask the witness to stay at the table in case there are other questions as we go through the bill. Is that agreed?

Hon. Senators: Agreed.

The Chair: Shall clause 5 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Senator Day: I'm still trying to follow the last discussion.

Senator Baker: In French she says that it was "une personne" in the singular, and the only change is that she's making it plural.

I think that's what you were saying.

Ms. Benoit: The change in the act is not exactly "une personne morale." It's on the minister's signature, but the "une personne morale" encompasses both the corporation and —

Senator Baker: Yes, but the change is from singular to plural. That's what you're saying. We're still calling it "personnes morales," but in the original act you said it was "une." Is it "une," singular?

Ms. Benoit: Yes.

Senator Baker: And now it's plural. That's the only change you say, and you gave me an explanation as to why. In French it makes more sense to say "personne morale" than "corporation" that we have in Canadian legislation.

Ms. Benoit: That's correct.

The Chair: Senator Day, are you satisfied?

Senator Day: I'm more than satisfied.

The Chair: Shall clause 5 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 6 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 7 carry?

Senator Mitchell: I have an amendment for clause 7. I move:

That Bill C-44 be amended in clause 7, on page 3, by replacing line 24 with the following:

"establish the accused's innocence or to ensure that the proceeding is fair and conducted in accordance with the principles of fundamental justice, and that it".

What this does is broaden the scope of the protection provided for an accused who might be innocent. It strengthens this bill against a Charter challenge because it uses the words, as I understand it, from section 7 of the Charter — it adds those words — "to ensure that the proceeding is fair and conducted in accordance with the principles of fundamental justice."

I think this argument is quite critical. This law or bill is not in the realm of criminal law; it addresses the CSIS Act. So when you begin to establish an exemption for protection of somebody's identity, that can begin to have implications obviously for non-criminal things, one of which is this, but it doesn't specifically cover, for example, security certificate and other administrative immigration proceedings, if I'm not mistaken. So what this would allow is it would give a judge some flexibility in ensuring not only that the only remedy that he or she might have would be to reveal the accused's identity, but they might not have to go that far. They might, in ensuring fairness, simply need to open the process up to the special advocate or provide information to the special advocate.

So the argument that underlies this really is given those kinds of observations, that this protects this particular provision and the act from a greater likelihood of a Charter challenge.

Senator Stewart Olsen: In looking at this and your amendment, I think I understand where you're going, but I'm actually happy to leave that to the discretion of the judge.

Senator Mitchell: Could you say that again?

Senator Stewart Olsen: I don't want to really limit the judge's ability in this instance, so I would oppose this amendment because of that. It seems to be perhaps infringing a bit where we may not want to go.

Senator Day: I have a question of Senator Baker or perhaps our witness, and it's in relation to line 24, to "establish the accused's innocence," and we see that that is continued in the amendment. Normally in a criminal matter you just have to prove someone is guilty. If they're not guilty, they're not guilty, but to establish innocence, is that a different and higher test?


Ms. Benoit: It's the standard terminology being used.


It has been used in the police world with regard to informer privilege, so it's the same. It means that if the information is so important that if the accused won't get the information he will be convicted, then he or she should get the information. It's not a different threshold. It's just a term that's been used for centuries and is known to the criminal lawyer world.

Senator Day: Innocence?

Ms. Benoit: If it's at stake, yes.

Senator Baker: I think what's significant here is the wording proposed by the mover in that the proceeding — I'm quoting from the amendment — "is fair and conducted in accordance with the principles of fundamental justice." Those exact words are right in section 7 of the Canadian Charter of Rights and Freedoms. I think that's the significance of the proposed amendment.

Senator Mitchell: It establishes that there is more than simply or only establishing an accused's innocence, which might allow for — there are more reasons for the possible extension of this exemption for identifying somebody. That is, somebody could be identified for more than simply to establish the accused's innocence and that "more" being for greater fairness in the proceedings. It establishes the possibility of making sure that a proceeding that might otherwise be challenged as being unfair because the judge was limited on the basis of which they could exercise this exemption has been fair because the judge got to consider fairness explicitly outlined in the act, which has been derived from the Charter. It broadens the reasons under which the judge can operate, therefore ensuring a greater power to the argument that fairness has been exercised and, therefore, limiting the possibility of a Charter challenge. It's pretty logical.

The Chair: Does the witness have any observations to make?

Ms. Benoit: I would just add that it would in fact reduce the scope of the exceptions built into the act. It would reduce the protection afforded by the current scheme of the act and, in doing so, less human sources would be protected.

Senator Day: Why do you say that?

Ms. Benoit: Because in terms of immigration, for example, if someone can say they can't be assured that their identity will be protected because section 7 can be engaged, they may not come forward with information because they won't be afforded the exclusion of not having their identity disclosed. It will reduce the scope of the intent of the bill as tabled in Parliament.

Senator Mitchell: The flip side of that is that it will also reduce the likelihood of somebody who is innocent being convicted.

Ms. Benoit: The designated judge will always have the possibility to say they won't consider the information because under IRPA, the Immigration and Refugee Protection Act, the regime is a bit different. The judge controls the evidence and would be able to say, "If I cannot know his identity, I will not consider the evidence at all."

Senator Mitchell: So the person would go free.

Ms. Benoit: The liberty of the person would be safeguarded.

Senator Mitchell: I wonder if I should withdraw it. I'll withdraw it on that basis, yes.

The Chair: The motion has been withdrawn by the mover. Is that agreed?

Hon. Senators: Agreed.

The Chair: Shall clause 7 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 8 carry?

Some Hon. Senators: Agreed.

Some Hon. Senators: No.

The Chair: Senators, just on procedure here, I have to deal with clause 8 and then we will deal with the new amendment, which is not an amendment to clause 8. Is that correct?

Senator Mitchell: It's in addition to clause 8.

Senator Baker: Could I ask a question relating to clause 8? In view of the excellent answer given to the previous questions that were addressed to the witness, I searched in case law, Quick Law and Carswell, Westlaw, for the phrase "Without regard to any other law, including that of any foreign state," and I couldn't find a similar phrase in Canadian law. Have I missed something?

Ms. Benoit: I don't think so.

Senator Baker: Thank you.

The Chair: Senator Day, do you have a question?

Senator Day: I have a comment.

The Chair: That's not a question, but if you want to comment, Senator Day, the floor is yours.

Senator Day: My comment is that clause 8 of this bill, which is amending section 21 of the existing act, is one of the sections that Mr. Forcese from the University of Ottawa, who spoke here a half hour ago and is very knowledgeable in this area, very clearly indicated needs to be amended. Therefore, not having had the opportunity to review his submissions that haven't been circulated to us yet, I can't vote in favour of this particular section.

The Chair: Obviously, senator, you can put that position forward at third reading as well with respect to various sections of the bill.

Senator Mitchell: I'm just waiting to do my amendment on 8.1.

The Chair: Shall clause 8 carry?

Some Hon. Senators: Agreed.

Some Hon. Senators: No.

Senator Day: No.

The Chair: Carried, on division.

Senator Mitchell, I've been waiting breathlessly for this moment.

Senator Mitchell: All right. My amendment would create a new clause, 8.1. I move:

That Bill C-44 be amended, on page 4, by adding after line 39 the following:

"8.1 (1) Paragraph 38(1)(a) of the Act is amended by adding the following after subparagraph (iii):

(iii.1) to review the practices of the Service in relation to the giving of promises of confidentiality to human sources,

(2) Paragraph 38(1)(a) of the Act is amended by adding the following after subparagraph (v):

(v.1) to monitor any warrant issued under subsection 21(3) that authorizes activities outside Canada pursuant to subsection 21(3.1),".

The purpose of this amendment is to answer, in part, the testimony we've heard today and elsewhere in a limited way to give SIRC certain specific powers to follow up on the procedures and the application of those procedures with respect to providing promises of confidentiality to human sources; and, secondly, to follow up and monitor any warrant issued under this act. It strengthens the ability of SIRC, although it doesn't give SIRC new resources to do that. It strengthens the ability of SIRC and gives it the tools, to use the lexicon that we've been using, to ensure that these two practices at least have a review with greater force than they would without this amendment.

Senator Day: Agreed.

Senator Stewart Olsen: I hear you. In listening to the witnesses I can't say that I'm not in favour of reviewing SIRC, but I'm dealing with the legislation we have before us. I don't see the Senate adding to or rewriting the legislation before us. On that basis, I would say I'm going to vote against this amendment.

Senator Kenny: I have a question for Senator Mitchell, Mr. Chair.

Could you describe for us the consequences of not adopting this? What sort of things would happen?

Senator Mitchell: There would be no direct and explicit direction to SIRC to monitor warrants. Their case for resources to do that, for example, would be weakened, I would argue.

The idea that was presented was that while judges could require the follow-up themselves, that's not in the act anywhere and certainly would again limit the real oversight body that has expertise, SIRC. That would be one consequence. They just wouldn't have the force of power that this would give them to exercise.

It's not inconceivable that they could review practices of the service, but it's also not directed that they will with respect to extending confidentiality to human sources. So I would argue that it strengthens, specifies, directs and gives them greater argument to make the case to get the resources to do it and will have powerful moral suasion in the way that they set their priorities.

Senator Baker: Is the mover thinking about what has happened in the past? As you've pointed out, there are no new resources for SIRC to do this, but in 2013 SIRC did review some 34 warrants outside Canada of the 673 that were issued and did not find anything wrong with them at all. In fact, they thought that this had been authorized by a Federal Court judge, which it wasn't.

So are you saying that this would force SIRC to examine more closely these warrants outside of Canada to see what they're doing, what happens to the information and perhaps to use the limited resources they have to hire amicus curiae, in the plural? Obviously they didn't understand the warrant that was issued because it was contrary to what they said in their 2013report.

Is that your intent, to focus on that and to use the limited resources they have to hire the experts to look at those warrants? It's obvious that in the past they failed to do so.

Senator Mitchell: Exactly. The fact of the matter is that they did fail to do so adequately. There may well be many more warrants to be monitored. In fact, by the very virtue of the authority given under this act to the people authorizing the warrants, the warrants will take on a different tenor and significance as well.

I think it ups the ante and the significance, the importance, the potential incursion into the rights and liberties of these warrants. It behooves us, as legislators, to make sure that that isn't forgotten.

Senator Baker: Excellent.

The Chair: Is it your pleasure, honourable senators, to adopt the motion in amendment?

Some Hon. Senators: No.

Some Hon. Senators: Yes.

The Chair: Carried, on division.

Senator Stewart Olsen: No, it's not carried.

The Chair: Defeated, on division.

Shall clause 9 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 10 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 11 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 12 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 13 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Colleagues, shall clause 1, which contains the short title, carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall the title carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall the bill carry?

Some Hon. Senators: Agreed.

Some Hon. Senators: No.

The Chair: Carried, on division.

Senator Day: Chair, can I explain my "no"? I think it's important, when one is at a very congenial group like this, where we normally try to work on consensus, to explain why I cannot support this bill.

I believe that what has happened today is contrary to good practice of the Senate. It's a practice that has been established over many years where, unless there is absolutely a special reason, we should not proceed with clause-by-clause consideration immediately after having heard from witnesses. We heard from very good witnesses today who gave us indications that we should look at certain documents that they had produced. We have not seen those documents and therefore were not informed of proposed amendments by these witnesses. In particular, Mr. Forcese and Mr. Copeland made very serious recommendations that would improve the legislation. We've had no opportunity to look at those, and yet we proceeded with clause-by-clause consideration when there was no stated reason why we should do so. Therefore, I believe that my privilege as a senator — expected to do the very best for the people of Canada — has been interfered with by this procedure.

Senator Kenny: I'd like to elaborate a little more on what Senator Day had to say. It was all done in the face of no material harm coming to the legislation. Senator Mitchell pointed out that he felt this could be accomplished within a week, by next Monday. So there was no cost or consequence for this rush ahead, and it's unfortunate that the only argument that really came forward was, "We have the numbers." Well, sometimes when you have the numbers, you should weigh in the balance how important it is to you.

Senator Mitchell: I would just endorse the comments of my two colleagues. I think we could have had the best of both worlds. We could have had a week to consider very powerful testimony and at the same time not have delayed the bill. I think the bill would have been strengthened by at least the two amendments that I proposed and which were defeated, so my division at the committee stage reflects that.

The Chair: Colleagues, before we proceed, I'd like to put forward my position as chair and a member of the committee.

We've all been here during the course of the study of the bill. I think we've given very close examination with respect to the implications of the bill and the importance of the bill and what it does with respect to our law enforcement agencies, in particular CSIS.

I was satisfied that — even the witnesses today — the essence of the discussion that took place today was basically how Bill C-51 was going to be affected by this particular bill. This bill was crafted prior to the tabling of Bill C-51. It was being worked on by the various government departments over a long period of time prior to the incidents that took place both in Quebec and on Parliament Hill. Since then, we have heard all the various revelations week by week, month by month, in Canada and elsewhere, as far as terrorism is concerned.

I'm satisfied, as a member, that the bill before us meets the objectives of what it was meant to be. It was meant to be a technical bill to meet the day-to-day operations of CSIS and others and the courts in respect to ensuring that those individuals we're asking to do the job on our behalf have the necessary tools in the tool kit. That was clearly put forward by one of the witnesses earlier today in respect to this particular bill, quite forcefully — and, I might add, I thought was articulated very well.

I understand some of the concerns of members opposite. This is not a case of trying to push the legislation through at all costs. I want to make it very clear.

We had every intention of dealing with Bill C-51 at our next committee hearing. At this time, it's been put on hold. My hope is that we will get both ministers here for next Monday to start on Bill C-51, because that is the essence of the legislative framework in respect to moving forward in the area of terrorism.

This bill, quite frankly, is more of a technical bill. I feel that, because of our schedule, we should proceed with respect to the bill we have before us. Not to say that what was said here today will not be taken into account in Bill C-51, because in essence a lot of what was said can actually be put into Bill C-51, not necessarily Bill C-44. That was put forward and admitted, in part, in some of the evidence we heard today. From my point of view, I just wanted to get that on the record.

Senator Day: Mr. Chairman, you've mentioned Bill C-51. Bill C-51 is a bill that's still before the House of Commons. It's not before us, and we shouldn't be discussing Bill C-51 until it is before us. Half of your comments related to something that's irrelevant to Bill C-44.

The Chair: Then I would say to you, my colleague, that obviously gives more credence to what I've just put forward as far as the purpose of this debate. I would say to you that Bill C-44 is very important to the government if Bill C-51 weren't to go ahead, because of the essence of the bill we're dealing with.

Senator Day: It may well be important to the government —

The Chair: It's the public of Canada.

Senator Day: — but we have a role, as senators, to play. What we're doing is preventing us from doing the job that's expected of us. I don't care if it's important to the government or not. What I care about is that that bill was sent to us by the Senate Chamber to review and comment on any changes we feel should be made or reported back.

The Chair: Colleagues, I think I've stated my position.

Colleagues, shall the bill carry?

Some Hon. Senators: Agreed.

Some Hon. Senators: No.

The Chair: Carried.

Does the committee wish to consider appending observations to the report?

Senator Stewart Olsen: No.

The Chair: Agreed?

Some Hon. Senators: Agreed.

The Chair: Is it agreed that I report this bill to the Senate?

Some Hon. Senators: Agreed.

Some Hon. Senators: No.

The Chair: Agreed. Carried.

Colleagues, I will excuse the witness. Thank you very much. You've made a great contribution for the purposes of the clause-by-clause reading of the bill.

Ms. Benoit: Thank you.

The Chair: Colleagues, I would ask everyone if we could go in camera for a few minutes to discuss our trip to Toronto and any other issue that you'd like to discuss.

(The committee continued in camera.)

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