Proceedings of the Standing Senate Committee on
National Security and Defence
Issue No. 41 - Evidence - Meeting of May 2, 2019
OTTAWA, Thursday, May 2, 2019
The Standing Senate Committee on National Security and Defence, to which was referred Bill C-59, An Act respecting national security matters, met this day at 1:34 p.m. to give consideration to the bill.
Senator Gwen Boniface (Chair) in the chair.
[English]
The Chair: Senators, I would like to start by asking senators to introduce themselves.
Senator Jaffer: Mobina Jaffer from British Columbia. Welcome.
Senator Wallin: Pamela Wallin from Saskatchewan.
[Translation]
Senator Pratte: André Pratte from Quebec.
[English]
Senator Oh: Victor Oh from Ontario.
[Translation]
Senator Boisvenu: Pierre-Hugues Boisvenu from Quebec.
Senator McIntyre: Paul McIntyre from New Brunswick.
[English]
Senator Richards: David Richards from New Brunswick.
Senator Griffin: Senator Diane Griffin, Prince Edward Island.
The Chair: I’m Gwen Boniface from Ontario.
Today we continue our study of Bill C-59, An Act respecting national security matters. On our first panel today, we welcome the Honourable Jean-Pierre Plouffe, Commissioner, Office of the Communications Security Establishment Commissioner; Guylaine A. Dansereau, Executive Director, Office of the Communications Security Establishment Commissioner; and Gérard Normand, Special Legal Advisor, Office of the Communications Security Establishment Commissioner. Thank you all for being here.
[Translation]
Hon. Jean-Pierre Plouffe, Commissioner, Office of the Communications Security Establishment Commissioner: Madam Chair, honourable senators —
[English]
— honourable members, I am pleased to appear before this committee on the subject of Bill C-59. I am accompanied by Ms. Dansereau, my executive director, and also by Mr. Normand, my special legal advisor.
[Translation]
I have been the Communications Security Establishment Commissioner for over five years, with the responsibility for reviewing the activities of the Communications Security Establishment, or CSE, to determine whether those activities complied with the law, including whether CSE protected the privacy of Canadians. My current term expires in April 2020, unless it’s renewed — it has been three times already — and at that point, I will be 80 years old.
[English]
During my previous appearance before the House of Commons Standing Committee on Public Safety and National Security, in January 2018, I suggested a number of amendments. I do not intend to repeat them today since I’m told they are available for your perusal.
[Translation]
I would now like to take a moment to further elaborate on the proposed role of Intelligence Commissioner. I have read the statements of all senators during second reading, and some comments have led me to believe that it is important today to explain what the role of the Intelligence Commissioner is.
[English]
My mandate will change completely from performing after the fact review of CSE’s activities to performing quasi-judicial review of the conclusions reached by ministers in issuing certain ministerial authorizations and determinations for both CSE and CSIS concerning intelligence activities. I emphasize the word “before” they can be carried out. I will determine whether the respective ministers’ conclusions to authorize these activities were reasonable, and if so, to approve them. This is a completely new role in Canadian law and, in my humble opinion, an important one. To accomplish that task, I will be advised and assisted by persons in my office having technical or specialized knowledge in the field of national security.
[Translation]
In essence, the notion of reasonableness to be applied by the Intelligence Commissioner, who must be a retired judge of a superior court, is somewhat similar to the notion applied by a court of law when undertaking a judicial review, i.e. the power of a court of law to review the actions and decisions of administrative decision makers. If necessary, I can come back to this notion of judicial review of reasonableness during the questions part of the meeting.
My quasi-judicial review will only apply to specific instances as described in Part 2 of Bill C-59 — this part covers sections 13 to 20. We are talking about seven activities: three related to CSE and four to CSIS. This role does not, for instance, provide a veto right to the Intelligence Commissioner over ministerial authorizations.
[English]
The Intelligence Commissioner will look at the facts and evidence presented to the minister by the intelligence agencies based on which the ministerial authorizations will be issued. This is what we will call the record. It’s a review on record.
Essentially, the reviewing mandate given to the Intelligence Commissioner means that they must be satisfied that the ministers’ authorizations are based on conclusions that are reasonable. If satisfied that they are reasonable, the IC approves them, if not, the IC does not approve them.
I trust that the latter clarification will help to establish a better understanding of the proposed role of the Intelligence Commissioner.
[Translation]
In conclusion, I am confident that the Intelligence Commissioner Act proposed in Bill C-59 will create a robust oversight process, aimed at achieving greater transparency, better accountability and bolster public confidence.
[English]
Thank you for this opportunity to appear before you today. I would be pleased to answer your questions.
The Chair: Thank you very much.
Senator Jaffer: Thank you for your concise presentation. You didn’t recommend this today, but I think in the House of Commons you recommended allowing active supernumerary judges to be eligible for appointment as Intelligence Commissioner.
Mr. Plouffe: Yes.
Senator Jaffer: I wanted to share with you what Professor Forcese mentioned to this committee about that.
. . . one of the reasons why the Intelligence Commissioner is anticipated as being retired rather than supernumerary judge is to avoid the awkward prospect of a supernumerary Federal Court judge serving as Intelligence Commissioner and then being reviewable in the same court.
Can you comment on that, please?
Mr. Plouffe: Indeed, thank you for your question, senator. When I was appointed five years ago, I was a supernumerary judge. Without that provision in the National Defence Act, I wouldn’t be here today. At the time, I suspect the reason why they indicated in that provision that either a retired judge or a supernumerary judge could be appointed is to make sure to find the right fit for the job. To find a retired judge at the time at the age of 75 who would come forward and accept the job to be a commissioner, or in this case the CSE commissioner, is a challenging task indeed.
The fact that in the National Defence Act you have the provision where a supernumerary judge could also be appointed would ease the recruitment of candidates, if you wish.
Having said that, the fact that you are a supernumerary judge when you’re appointed doesn’t mean that you will remain a supernumerary judge during the whole term. In my case, I think I stayed as a supernumerary judge for four months. After that, I retired. So I think it adds flexibility to the recruitment with regard to the appointment.
Let’s say I’m a supernumerary judge of the Federal Court. I’m from the Superior Court of Quebec. Let’s say hypothetically, I’m a retired judge on the Federal Court. I’m a supernumerary judge, and I’m appointed as Intelligence Commissioner, if my case goes on a review, the decision is subject to review by the Federal Court of Canada. All the judges who know me will recuse themselves. So they have to find somebody who doesn’t know me to preside over the case. This is happening all the time, in all the courts all over Canada. So I’m not concerned about that particular problem honestly.
For example, you could have a judge from the Federal Court of Appeal, would come down to the Federal Court in the first instance because we are all courts of Superior Court, as judges, and hear the case. So this could happen once in a while, and if it does, we have a mechanism to settle that or to look after that problem.
Senator Jaffer: There is also a discussion whether the judge should be full time or part time. The minister said that it is not a continuous process, so from that I understood that he was leaning towards a part-time judge. Maybe I misunderstood him. What is your opinion on that? Should a judge be part time or full time?
Mr. Plouffe: Well, if you want to find a retired judge to work full time, good luck. Now the law has been changed so that therefore we retire at an earlier age. We don’t retire at 75 anymore, not necessarily. If you’re 69, 70, 71, and you want to be appointed as Intelligence Commissioner, you will accept the job only if you are part time.
What goes with your question I also suspect is the fact that it’s very possible, when I enter the new role that I come to the conclusion that I have so many authorizations to look after, that I’ll have to suggest to the government to amend the law, and appoint a deputy Intelligence Commissioner. It’s very possible that the volume at the time will be so great that I will not be able on a part-time basis to look after all those authorizations that will be issued with that new role.
I expect that at the beginning of the process, I’ll receive many authorizations to approve. This will be challenging to start with. After a while, this will slow down and the authorizations will be spread out over the year. Again, in my office right now, all together we are 12 people. So if I come to the conclusion that I need more personnel, I’ll ask for more personnel and I was told that would not be a problem.
[Translation]
Senator McIntyre: Thank you for your presentation, commissioner. During your presentations to the House of Commons standing committee, you made several recommendations on Bill C-59. Of these recommendations, how many has the government accepted? In your opinion, which are the most important ones that have not yet been addressed?
Mr. Plouffe: Thank you for the question, senator. My staff and I have made many recommendations to the government. In fact, we have made 35. The government has selected only one, the recommendation regarding the annual report to be submitted by the Intelligence Commissioner. The commissioner must report annually to the public. If public trust is to be strengthened, it must be informed first. We said we would accept this recommendation. If I had to make one in particular, it would be a recommendation for amendment or modification with respect to the clarifications. Currently, the review I do is on files. When I was in the Superior Court, I had to review certain files of the Court of Quebec. It’s a paper-based appeal. There are no witnesses. It’s the same here. All the information before the minister will be provided to me. Currently, under the bill, I cannot ask questions, I cannot ask for clarification or additional information. I can see circumstances where, due to a lack of clarity, I may have to establish that the minister’s conclusions are unreasonable. As you know, our current system — under Bill C-59 with respect to the Intelligence Commissioner — is, in a way, copied from what is happening in Britain. We based ourselves on the British model. I have met my British counterpart a few times. There, they have the power to ask for clarification and may also request more information.
Let’s take a look at the details. The commissioner explained to me that, in some circumstances, if he had not had the power to ask for clarification, he would have come to think on a few occasions that the minister’s conclusions were unreasonable.
On the one hand, I suggested this modification to make the process more flexible. On the other, the fact that my recommendation is not retained doesn’t mean that the entire project is non-functional. In English, I would say “it’s not a show stopper.” It’s possible to work anyway with the bill as currently drafted, except that the process is less flexible and more difficult.
In addition, there is a way to identify the problem, and that’s what we are doing now. I am in communication with the various agencies and the minister’s office and we are doing practical exercises. In English, these are called “dry run exercises.” I am explaining to them how it works and what legal concepts should be applied. I explain to them what my role is and, from that, we do practical exercises.
If everyone is well prepared, the question of clarifications may become redundant. It’s the same with agencies. I explain to them that when they submit their request to the minister, if there aren’t enough facts to justify the legal thresholds that the minister must apply, their request will be refused. I explained it to them by saying, “It’s not business as usual anymore,” and that’s new. That’s why we must focus on the new legal concept and the new legal threshold. If we do, everything should work fine.
Senator McIntyre: Mr. Plouffe, you mentioned the new position of Intelligence Commissioner. One of the concerns with this position is that the new Intelligence Commissioner may not have any expertise in intelligence or computer security operations and may veto certain cyber operations under his or her new powers.
My question is this: To what extent do you share this concern about the expertise of the new commissioner? Should a certain level of subject-matter expertise be required to fill this position?
Mr. Plouffe: Thank you for the question. First, when we recruit the retired judge, we are looking in practice for a judge with some experience, either in national defence or national security. In my case, since I was a member of the Canadian Armed Forces and worked in the Office of the Judge Advocate General for 10 years, I have acquired some expertise in defence and security issues.
Take, for example, the recruitment of a designated Federal Court judge. There are about a dozen judges appointed to the Federal Court, and they preside over trials involving national security matters.
Second, as I said in my opening remarks, I have the national security experts in my office that I need. I am accompanied by Gérard Normand, an expert in national security law. He worked in the Departments of National Defence and Public Safety, and I recruited him. I also have experts who have worked at CSIS and others who come from CSE.
When I was a judge, I was instructed by all kinds of expert witnesses on different topics related to murder trials, whether it was about bloodstains found at a crime scene or whatever. I make this simple analogy to say that, even if I am not an expert in the field and even if I have some expertise, I have people who advise me and who are experts. I believe that, thanks to all this, I am in a position to make the necessary decisions.
Gérard Normand, Special Legal Advisor, Office of the Communications Security Establishment Commissioner: Senator McIntyre, I will simply tell you that the purpose is to conduct a quasi-judicial exercise; it is really at the legal level that the review will take place. Knowledge of the type of request is important, but it is the application of the principles that prevails.
[English]
Senator Wallin: Thank you. Just a bit more on the process of this. You have touched on the part-time position, and there is no way to really anticipate it, but the staff that you have — you have some expertise, obviously — but given that you will only see the information the minister has seen in print and perhaps not in other ways that he or she has been informed, what kind of research capability will you have in the office in addition to expertise? Will those people have enough time? Are there resources and enough people in the office to do that? Are you attempting to operate in any way in real time? If a minister makes a bad call, in your mind, what is your recourse? How can you respond and how quickly? If you don’t have veto power, how do you respond?
Mr. Plouffe: I’ll start at the end. It’s easier for me to answer. Bill C-59 gives me 30 days to render a decision. I have 30 days, normally. I’m not talking about in emergency circumstances, where it as soon as feasible.
Let’s say the Director of CSIS at times could issue an authorization in exigent circumstances. Then the law says that, in that case, I have to be available. My decision is a matter of hours and, at worst, days.
But with regard to what I would call the normal matters, I’ve got 30 days to do it.
With regard to the expertise, like I said, the reason why I have experts with regard to CSIS and CSE, it’s to understand the types of files or records I’ll be transferring.
Senator Wallin: I understand you have expertise in the area. That’s not what I’m trying to get at. I’m trying to get into the situation where perhaps there were exigent circumstances, and the minister has a made a call. But you don’t like the call, and you’re trying to figure out what can be done, if anything, or how you should respond. That’s one side. Then, second, if you don’t like it, what do you do about it? There is no public recourse. Do you —
Mr. Plouffe: Like the bill says, I have to determine whether the minister’s conclusions are reasonable. I have to apply a legal standard, which is called reasonableness. That legal standard — that’s why it’s a quasi-judicial review. That’s why they want to hire a retired judge. My title should be Judicial Intelligence Commissioner. This is one of the suggestions I have made, but it has not been retained.
But what I’ll be doing is akin to what a court of law is doing; it’s very close to what a court of law is doing, except I’m not a court of law. But I’ll be applying legal criteria. I’ll be looking at what the minister also has to fulfil or satisfy legal criteria. It’s very much a type of “legal review.”
I am talking about reasonableness; reasonableness, in due course — if you want a definition, I can give it to you. It’s just to show you that it’s very flexible.
So reasonableness implies that the IC will have to be satisfied that a conclusion reached by the minister in issuing an authorization falls within a range of possible outcomes that are defensible with respect to the facts presented in support of the written application and the law. In so doing, the IC recognized — this is very important — the knowledge and expertise of the ministers and of the Director of CSIS in the national security field — a factor requiring deference.
So it’s a legal criterion that is flexible, and it’s much more flexible, for example, as opposed to another criterion that is called “correctness.” The correctness has been discussed by some senators. They say, “Well, the IC should only look at whether the minister has met the condition set in the law. In law we call that “correctness.” I would look at the minister and say, “Has he applied the legal threshold in the proper fashion?” Answer, yes — bang, I approve it. Answer, no — I don’t approve it.
Senator Wallin: I would not be one of those people who think it should be constrained. Because we are looking at unprecedented situations. My concern here, at the base of my question, is you have to make that judgment based on reasonableness, but in the end you must defer to the minister’s judgment.
Mr. Plouffe: Not to the minister’s judgment, but to the minister’s experience in the field of national security.
Senator Wallin: Inevitably, their judgment.
Mr. Plouffe: I will give an example: I don’t agree with the minister. That doesn’t mean that the conclusions are not reasonable because I disagree. If the correctness standard would be applied, if I disagree with the minister, I have to disapprove him.
Senator Wallin: There is no way for this person to say, “We don’t think you reacted strongly enough, or we think you overreacted?” You are there to say did you meet the reasonable test, period?
Mr. Plouffe: That’s right. Also, my decision could be reviewed by the Federal Court of Canada.
Mr. Normand: The commissioner must write the decision. He needs written reasons in his decision. Your question about what happens after, well, the next day another authorization could be sent to the minister with those corrections. If the commissioner decides that, in that case, it is not reasonable because of this and that, then the next day the matter could be re-presented to the minister, as one of the officials who testified before the house mentioned.
Senator Wallin: In the end, it is the minister who makes the decision, and he or she is not required to change based on your advice.
Mr. Normand: If the commissioner comes to the conclusion it is not reasonable, then it can’t go forward. It has to be re-presented. It is a reasonableness test, not a correctness test, and that’s a huge distinction.
Senator Wallin: Yes.
Mr. Plouffe: Let’s say I come to the conclusion that the minister’s conclusions are not reasonable. I have to write grounds or reasons like a judge and send it back to the minister. The minister goes back to the intelligence agency, CSIS or CSE, and they are shown the decision. Then the agency — let’s say CSE — would start anew. They will present another application to the minister by taking into account the grounds or the reasons that I have given to the minister. Then that new application will be presented to the minister and come back to me. Obviously, in this particular case, I would most likely approve it; so it is not a veto.
Senator Wallin: No, that’s my concern.
Mr. Plouffe: It is not a veto. It has nothing to do with policy; I’m not involved in policy decisions.
Senator Wallin: I understand. That’s some of the misunderstanding that this is a role of this person to say, “Look, you should have moved more quickly or have done this because a terrorist incident was about to happen.” This is clarifying the role.
[Translation]
Senator Boisvenu: Welcome, Mr. Blais, and to your colleagues as well. I’m trying to understand, because there seems to be a lot of bureaucratic structure in information and intelligence. Do you want to tell me what your relationship is with the oversight committee?
Mr. Plouffe: The new committee, the NSIRA?
Senator Boisvenu: Yes, the new intelligence oversight committee.
Mr. Plouffe: In principle, there are none, because I am independent. I am not part of the new committee. The major distinction is that, in my case, I will make decisions before the fact, while the NSIRA, the new committee, as I do now, makes decisions after the fact. That is, my current role, and the role of the NSIRA, is to examine the facts after the activities, of CSIS for instance, and to say whether they are legal or not. Then we make recommendations to the minister. With my new role, I am part of the decision-making process; I act before the activity takes place. That is the major change. I act upstream, not downstream.
Senator Boisvenu: As a citizen, if I look at the name of your office, the Communications Security Establishment, I’m going to think you’re engaged in electronic eavesdropping. Is this the case?
Mr. Plouffe: Not me, but the agency, yes.
Senator Boisvenu: There are a lot of compartments in there.
Mr. Plouffe: That’s the old title.
Senator Boisvenu: Are we doing what the Americans did after September 2001? They brought together everything that was intelligence and internal security under one structure. Do we have the same model in Canada, or is the structure really fragmented?
Mr. Plouffe: That is what we are doing with the new Bill C-59. Currently, we have three or four oversight committees. With the new bill, there will be only one oversight committee. Currently, we work in isolation. I am in charge of CSE; SIRC is in charge of CSIS; the RCMP has another internal review committee. Everything works in isolation, and it doesn’t work. We thought it wasn’t sustainable. So it was decided that an oversight committee would be created; in English, its acronym is NSIRA, and in French, it is OSSNR. This committee will be responsible for reviewing the activities of all departments and agencies with a national security vocation. There are 17, if I’m not mistaken. It will be a single committee.
Senator Boisvenu: At the federal level, now, how will interaction with provincial agencies be carried out? I’m thinking of the Sûreté du Québec, which also has intelligence and listening services. How will these two levels interact, potentially involved in monitoring the same people, so to speak?
Mr. Plouffe: It’s important to remember that security issues are national in nature, and therefore federal, not provincial. Provincial services have police forces. I’m not expert in the field, but police forces collaborate with each other. For example, the Sûreté du Québec collaborates with the RCMP. They have all kinds of collaborative mechanisms. However, to my knowledge, the provinces do not have an intelligence agency.
Senator Boisvenu: However, it can become a gateway. You will understand that the Sûreté du Québec is present throughout Quebec and may, at some point, have information on someone who presents a risk and who will be monitored. I think that intelligence and surveillance is not only done at the federal level; it is also done in the regions, at the provincial level.
Mr. Normand: If I may, these mandates are different. The RCMP is an intelligence agency with an intelligence and law enforcement component. When we talk about monitoring, we are in a law enforcement context where charges can be laid. There is no oversight body for the Sûreté du Québec, there is no oversight body at the provincial level, to my knowledge. There may be, but there is no interaction with the federal government.
Senator Boisvenu: What I mean is that, for example, when the Sûreté du Québec intervened in cases, particularly those involving criminalized groups, they were aware that there were even links between the latter and certain terrorist groups.
Mr. Normand: Absolutely.
Senator Boisvenu: Because these groups are in the drug trade and human trafficking. There is no barrier between types of crime. There are links that must be made at some point, inevitably.
Mr. Plouffe: Currently, when there is a national security problem in a province, the police force will deal with existing services, such as CSIS. Remember that CSIS has offices throughout Quebec, Canada and even abroad. These people work together, they have coordination committees, for example. I agree with you that there must be some coordination, otherwise everyone works in isolation, and it isn’t effective.
Mr. Normand: There is coordination at the agency level with respect to law enforcement and information gathering. However, if you are talking about the review, it’s completely different. On the other hand, SIRC may certainly be called upon to examine a file in which the service has been involved with the Sûreté du Québec, for example. It won’t be able to make a recommendation to the Sûreté du Québec to improve its policies, but it may be called upon to examine what the service would have done with the Sûreté du Québec.
Senator Boisvenu: Thank you.
Senator Pratte: Good afternoon, everyone. I am trying to better understand the circumstances that could lead you to find that a minister’s decision would be unreasonable. As you said, you have stated the definition of “reasonableness” well, in that, in administrative law, it implies a high level of deference.
However, you are not going to verify the facts that the minister has in his or her possession. You look at the facts that the minister has received. You are trying to see whether the minister’s decision, based on those facts, is unreasonable. You are not going to investigate to see whether the facts are correct. You take the facts for granted; they are the facts the minister has before him or her, so you cannot challenge that. Moreover, the level of deference is high. So, we can well believe that the number of cases in which the intelligence commissioner determines that decisions are unreasonable will be relatively small.
Mr. Plouffe: That is possible. I do not deny that.
Senator Pratte: I am not familiar with the criteria in administrative law. What kinds of decisions could be found to be unreasonable in relation to the facts submitted?
Mr. Plouffe: Say, for example, that the minister makes a decision without giving any reasons. It is a little simplistic, but let’s say there is a case in which no reasons are given. Or the reasons he gives to explain his decision cannot be understood. I might conclude that the lack of clarity makes it unreasonable. The minister has to apply legal criteria. He must consider them. First of all, he must examine the request that the agency submits to him. If, in that request, the facts do not open the door to the legal criteria that the minister must apply, I feel that he will immediately send the request back to the agency and say that it is not sufficient.
If the minister is of the opinion that the criterion has been met, he will look at the request and conclude that there are enough facts to determine whether he must approve any activity or not. Once he has done that, he has to give me the reasons and convince me. After all, the act says that the intelligence commissioner must be satisfied. That is the legal threshold used in civil law. On the preponderance of the evidence, am I going to be satisfied that the minister is applying those legal criteria appropriately? Is that reasonable? Am I satisfied? I am giving you a general, overall definition of reasonableness. It must be said that the criterion will be refined as decisions are made
If we draw an analogy with a court, a criterion becomes more restricted, as a bank of case law is created . We have to have a general criterion, because if our hands are tied from the outset, we are going to have problems.
Senator Pratte: Can your decisions be appealed to the Federal Court?
Mr. Plouffe: Yes.
Senator Pratte: The Federal Court or the Federal Court of Appeal?
Mr. Plouffe: The Federal Court. This is a judicial review of the first instance. Afterwards, the decisions may go before the Federal Court of Appeal.
Senator Pratte: I am just trying to understand the process. Essentially, will the minister appeal if he is not happy with your decision?
Mr. Plouffe: Yes, or the agency and the minister together.
Senator Pratte: Is there a standard of deference?
Mr. Plouffe: Yes. The Federal Court hearing the judicial review of my decision must also apply the reasonableness criterion and, in my case, it will have to determine whether or not I am an expert in national security matters. Perhaps they will not grant deference in my case. Do you understand what I am saying?
They will apply the criterion of reasonableness. Have I properly applied the criterion of reasonableness, according to the definition that I have given you? That is the criterion that they currently apply themselves.
Senator Pratte: I am coming to the conclusion that the number of cases where you will determine that the decision is unreasonable will be very low. Perhaps that is a good thing.
Mr. Plouffe: Yes. It is quite rare for me to have to report non-compliance to the two ministers in question. For example, in the case of National Defence with the CSE, if I reach a conclusion of non-compliance, I have to inform the Attorney General of Canada and the Minister of Defence. Since 1996, that has happened only once.
Mr. Normand: It must be said that the two agencies work very well. I was a lawyer at CSIS. We made many presentations to the Federal Court and approval was very rarely refused. I feel this is a necessary stage because, with CSE, we had ministerial approval only and we were often attacked. For example, people wondered whether the approvals went against the requirements of the Charter. Adding the position of intelligence commissioner solves that problem. At the same time, when decisions are approved, it will mean that the people doing the activity will not be contravening the act. This is because the only cases that will be presented to the minister, and therefore to the commissioner, are those where the activities would otherwise be illegal. The system holds up well and protects CSE employees to a greater extent than at present.
Senator Pratte: Thank you.
Senator Dagenais: My thanks to our guests. Justice Plouffe, perhaps you could enlighten me. When major operations are being conducted by CSIS or by a police force, search warrants normally need to be approved by a judge or a justice of the peace. In the case of CSIS, if there is a major operation to conduct or a warrant to execute, does CSIS have to have the warrant approved by a judge or a justice of the peace? As I listened to you, you said that your role was to examine the facts after the actions have been taken and to determine if everything was done correctly.
Mr. Plouffe: Currently —
Senator Dagenais: Do you have to examine whether the judge who issued the warrant did the work correctly? One judge does not judge another judge, I assume.
Mr. Plouffe: No, not at all. I will let my colleague explain it to you.
Mr. Normand: For CSIS, you are right. Only designated Federal Court judges can hear applications from CSIS. Having worked there, I can tell you that there were urgent applications that we had to work on at night in order to go to court on the weekend. Essentially, the CSIS commissioner plays a role with the datasets. This is a system that is parallel to the information that the service keeps in its central bank. It is information that is not linked to a threat; it has been controversial for years. We had to establish a system to regulate it all.
The commissioner would not be involved in operational activities as such. Normal CSIS applications remain the prerogative of the Federal Court. The only cases in which the commissioner could be called upon for urgent action is when the datasets have not been approved for retention, because that is an internal process created by the act. It is when the service needs to do some quick research of the data because they could be linked to a person arriving on the weekend.
It is not directly related to an operation, but it will help the operation. The two criteria that have to be met under the act are (a) to preserve a person’s life or (b) to act quickly when not doing so would mean that the intelligence would cease to be useful. Those are the only emergency cases. It would not be about a CSIS operation, but about researching a dataset. That could be a collection of telephone numbers or dates of birth of people who could be coming into the country.
Senator Dagenais: Despite everything that is happening in the world, thank God we are still pretty well protected in Canada, and there have not been any attacks on our soil. However, CSIS, police forces or other national security agencies often have to act quickly in order to prevent an attack. I understand that people will no longer work in a silo and that there will be another body, but could creating one body above another hinder the work of national security agencies, and indirectly compromise the security of citizens?
Mr. Plouffe: I do not believe so. Perhaps we need to ask the agencies, and I think that the senators have done that. When I read your remarks, I saw that you had asked security agencies about it. Does Bill C-59 prevent you from functioning at an operational level? The agencies said no. To my knowledge, they say the opposite: That this new level of the system gives them more confidence in what they do, because there is more oversight. At this time, they find that the process is more transparent. They are pleased to have a supervisor.
This will increase the public’s confidence in them as well. The agencies are happy to have a supervisor. There is now one review committee instead of three or four, and an Intelligence Commissioner who will review departmental decisions and findings. This process is based on the British system, and it was imported from Great Britain, where it works fairly well and has been in effect since 2016.
Senator Dagenais: Just in closing, Mr. Plouffe, I am listening to you carefully because, perhaps you have read in my biography, I am a career police officer.
Mr. Plouffe: I know who are, don’t worry.
Senator Dagenais: I’m sure of that. This is the first time I have heard of a regular police officer being happy to have a supervisor; I had never heard that one before. Thank you.
Mr. Plouffe: Okay.
Senator Boisvenu: You are talking about England, but these are in fact two different systems. MI5 consists of armed peace officers within the meaning of the Criminal Code.
Mr. Normand: It’s a mix of both.
Senator Boisvenu: Whereas here, they are analysts. That is what people are telling me, it’s that having analysts rather than peace officers risks slowing down operations.
Mr. Plouffe: They are analysts at CSEC, but there are more than just analysts at CSIS.
Senator Boisvenu: Are all the people who do analysis peace officers with a mandate?
Mr. Normand: They are not peace officers at all, they are analysts. We were getting closer with Great Britain a little earlier with respect to the commissioner’s role. MI5 is the equivalent of CSIS here; its agents work in close collaboration with London police officers. So, there is a team that was created, but MI5 is made up of intelligence people, like CSIS.
[English]
Senator Jaffer: I have a question on cyber ops. You and others have recommended that, in addition to the Minister of National Defence and the Minister of Foreign Affairs, the Intelligence Commissioner should also be included in the approval process for all of CSIS’s activities and defensive cyber operations.
Last Monday we had a witness who said only the cabinet should decide whether to use cyber operations in the international context and that the intelligence commissioner should not play a role. Can you comment on that?
Mr. Normand: It is a matter of public policy, government prerogative, to decide the way they want to do this. There are some activities that CSE will undertake under active cyber operations that will also be asked in the context of a foreign intelligence collection authorization because the act provides for a number of ways to collect the information. Among those ways are ways that would be used for active cyber measures as well, which is mainly to disrupt things.
The government has decided that, with respect to the collection of information, the Information Commissioner should play a role but, with respect to the pure, defensive, active cyber measures, it should be left with the two ministers. It is really a decision made by the government.
Senator Jaffer: I understand that but I understood the suggestion was to also involve the Intelligence Commissioner. I wanted you to comment on why.
Mr. Plouffe: My approach at the time was to say to the government, well, if I am involved in all kinds of other activities, why not this one? You know? If you want a complete scheme of oversight, what’s the difference? Why, in this particular case, is it necessary for the intelligence commissioner not to be involved? I was not given any answer. I was just told, well, that’s the decision the government is taking.
I must add that, with experience, in a few years from now, it is very possible that the intelligence commissioner will be involved in those activities.
Mr. Normand: If you make a parallel with CSIS’s threat-reduction measures — in a way they could be similar to active cyber ops because these measures could be through cyber as well — they generally have to go before the Federal Court to get authorization to start, unless they are very futile measures. However, as soon as they can affect the Charter rights of people — because they mainly work in Canada but they could also be involved abroad — then they need to go to Federal Court. That distinction was part of our argument initially. For the service, it was a scheme leading toward Federal Court designated judges approving, authorizing these things. For the active cyber measures for CSE, there was no such third-party review.
Senator Jaffer: I understood cyber operations were a sort of last resort, if there is nothing else. That’s why it was felt that the Ministers of National Defence and Foreign Affairs should make the decision.
Mr. Normand: Obviously those ministers will be involved. That’s why the assistance mandate has been long in the waiting; that would have CSE providing assistance to DND and the CF, especially with respect to cyber. It is something they’ve been working on together for a number of years. They are very much waiting for this bill to be adopted so they can continue to work in this area.
The Chair: Let me express thanks on behalf of all senators for spending this hour with us. It has been very helpful. We appreciate it.
For our second panel today, senators, we have, from the Security Intelligence Review Committee, the Honourable Pierre Blais, Chair; Chantelle Bowers, Acting Executive Director; and Darryl Hirsch, Director of Research. Mr. Blais, you have the floor.
[Translation]
Hon. Pierre Blais, P.C., Chair, Security Intelligence Review Committee: Thank you for giving me the opportunity to appear before the committee to talk about Bill C-59, An Act respecting national security matters.
In February 2018, a little over a year ago, I appeared before Parliament to discuss this bill with your colleagues in the House of Commons. I had then stated, and I will say it again today, that Bill C-59 is a complex bill, but an extremely important one, which will provide new national security guidelines for Canada and accountability on this matter in the foreseeable future.
I am pleased to see that the bill is following the stages of the parliamentary process. I also see that my colleague Mr. Plouffe has addressed some questions that we may be able to discuss a little later.
[English]
I would like to begin by describing for you SIRC’s mandate and responsibilities.
SIRC was created, as you will remember, in 1984, at the same time and in the same legislation as the Canadian Security Intelligence Service legislation. SIRC is an independent, external review body, meaning that it is at arms-length from the government. SIRC does not report to any minister, but rather, reports directly to Parliament. SIRC operates through a committee of eminent Canadians.
[Translation]
I’m not the one saying that.
They are Canadians who have more extensive experience in national security and who come from diverse backgrounds in this sphere of activity.
[English]
Those people have diverse political and regional backgrounds; I am the chair of this committee. SIRC helps to ensure that CSIS discharges its mandate appropriately, lawfully and effectively, both domestically and abroad. In essence, SIRC’s mandate is to provide assurances to Parliament and, by extension, to all Canadians that CSIS investigates and reports on threats to national security and collects foreign intelligence in a manner that respects the rule of law and the rights of Canadians.
SIRC’s mandate translates into three core responsibilities, the first of which is to carry out in-depth reviews of CSIS’s activities. Second, SIRC is called upon to certify the CSIS director’s annual report to the Minister of Public Safety and Emergency Preparedness. Finally, SIRC investigates complaints from the public about the activities of CSIS and denials of security clearances.
The results of this work are tabled in Parliament each year in SIRC’s annual report.
[Translation]
Overall, the system worked well at the beginning. However, over time, SIRC and other stakeholders have been increasingly calling into question the efficacy of the silo-like nature of the accountability process and intelligence activities in Canada, a process that has been in place for over 30 years.
This issue was addressed by Mr. Plouffe a little earlier. The agencies were operating in silos, individually. This issue was raised for the first time in the context of the events of September 11, when the national security activities of several federal entities seemed to be intertwined in the wake of those attacks, but the agencies in place remained isolated.
In its annual report — and I am going back 10 years, to 2010-11 — SIRC indicated the following:
Yet Canada’s system of checks and balances, designed decades ago to ensure the accountability of individual agencies, has not kept pace with these changes. The existing review mechanisms — including SIRC — are neither configured nor equipped to examine fully Canada’s increasingly integrated national security activities.
This is a significant shortcoming in accountability when it comes to these activities. More specifically, each time we examine the service’s activities, with respect to certain operations carried out by the RCMP, the Canada Border Services Agency or any other department, for example, we are unable to follow the thread, “suivre le fil,” as we say in French. The bill addresses this issue.
[English]
At a high level, the bill before you would fix the problem. It would provide NSIRA a mandate to review any activity of CSIS or CSE, any activity carried out in any other department or agency that relates to national security or intelligence and any other matter related to national security referred to it by a minister, which is very broad.
This will bring dedicated national security review to a large number of other departments and agencies, including CBSA and the RCMP. SIRC is supportive of these proposed changes as they will address gaps in the system of accountability that we, along with many other groups, have been pointing out for years.
Canada’s deliberations about accountability are happening at a time when there has been a shift in thinking on accountability for intelligence agencies, translating into expectations of greater transparency among the public.
To that end, one of the great strengths of the bill is the provision that allows for the new review agency to issue special reports under subsection 40(1) of the act, when it decides that it is in the public interest to do so.
This mechanism will allow the new review agency to signal a significant issue to parliamentarians and the public in a timely way. SIRC is not currently able to do this with its sole vehicle being its annual public report. This has been a limitation for SIRC in its ability to present the results of its work in a timely manner. In light of the government’s stated commitment to transparency, this is an important provision.
[Translation]
During its previous appearance, SIRC proposed a certain number of amendments to the SECU — the Standing Committee on Public Safety and National Security — in order to improve and clarify certain aspects of the bill. I insisted on the most important of those proposals, the principle that the committee should determine its procedures itself. In doing so, this would ensure that the body has the power to determine the procedure to follow in exercising either of its responsibilities or duties, which is currently the case for SIRC. This proposal was selected and is in the draft that you are reviewing now. We are very pleased about this.
It is important because we are not only a reviewing body, but we also play a role as an administrative tribunal, because we have to hear complaints. This is unusual, and it transforms our role into that of a decision maker.
[English]
We have to make some snap decisions regarding recommendations based on complaints that we receive.
[Translation]
Even though not all of our recommendations have been accepted — which is normal under the circumstances — we are satisfied with the bill as tabled before you. I would still like to stress one important aspect: For 30 years now, there has been an error with the body’s name in French, the Office de surveillance des activités en matière de sécurité nationale, as in the case of the Comité de surveillance des activités de renseignement as it currently exists. We are not an oversight committee but rather a review committee, which means “de surveillance” must be replaced by “d’examen” in the French.
It is perfectly fine in English, but in French, your linguists will have to make this correction. In my opinion, this could be done without having to make an amendment. I would venture to say. I don’t have much recent experience in parliamentary proceedings, but I believe that this could resolve the problem. For a francophone like me, not correcting this irritates me a little and it should irritate everyone. For the “comité de surveillance,” this is not the case. Unless you give us the mandate of overseeing activities, which is not the case, and it is not the government’s intention. I hope that you understand. I am saying all of this with all due respect.
[English]
I think linguistic people in the Senate, House of Commons and maybe Department of Justice, maybe our people here could look at this without bringing modifications or amendments to the legislation. It’s just the title. It’s a question of language.
[Translation]
I am stopping here, Madam Chair.
[English]
Thank you for giving us the opportunity to present. I’m anxious to answer your questions.
The Chair: Thank you very much.
[Translation]
Senator Dagenais: Thank you very much, Mr. Blais. Before I ask my question, I have to tell you that you are right. The word “surveillance” in French is a little bizarre. You have been in politics for a long time.
Mr. Blais: Just a short time.
Senator Dagenais: You are modest. In politics, everything is a matter of perception, and people would be led to believe that the government wants to interfere in affairs of national security. That is the perception. That said, you partially answered my question about the few flaws that should be corrected before the bill is passed. In your opinion, would it be normal for the Senate to recommend this new control mechanism without politically ensuring that it is reviewed before the proposed period of five years, to ensure that the new provisions properly meet today’s needs? If I understand this right, a review period after five years will be proposed, but if there are any flaws, should we have to tolerate them for five years or make corrections before then?
Mr. Blais: Parliament is sovereign. It is always Parliament that decides, when the time comes, to repeal or amend an act. What I find interesting is that this is not new territory for us. The body that I oversee, SIRC, has existed for 35 years. Since the past can provide some guarantee for the future, one could say that the formula has led to good results. We have been able to oversee the work of secret services, their operations, how they complied with the act and how there could be things to remedy from time to time.
Like me, my predecessors have done this over the years by submitting reports, which have by and large been received favourably by the State and the public, as well as by the agencies. I recall the words of Pierre Coulombe, who left our service just about a year ago. He said, “We are better thanks to you.” When we address shortcomings, that means something. Broadening the mandate of 19 federal agencies that directly or indirectly deal with national security, does having our say to see if the work is well done really pose a risk? I don’t think so.
If Parliament decides, within the time limit — I don’t dare speak any further on this subject, but I don’t think that broadening the mandate of an oversight body to give Canadians more trust in their institutions is a big risk.
Senator Dagenais: I would like to come back to the question that I asked Mr. Plouffe earlier about national security agencies. I am going to draw a parallel with the Sûreté du Québec, where there is a Committee on Internal Economy, a disciplinary board and an ethics commissioner. This means that there are many bodies mutually overseeing one another. I understand that people will no longer work in silos, but don’t you think that adding another oversight body — I am even surprised that we are not talking about a round table or citizens assemblies — could create an obstacle for police officers doing their work? Furthermore, do you have the staff required to conduct this “review”?
Mr. Blais: Senator, I think that we are acting a lot with confidentiality, and we must also pay attention so as to not overstep — In our mandate, every year, we meet with secret services personnel here, and sometimes abroad. We always meet with what people call “secret service partners,” who are the RCMP, the Canada Border Services Agency and others. The police forces are always very happy to meet with us.
For example, during our investigations and research, if we go to Vancouver or Montreal — We went to Montreal not too long ago and we spent at least two hours with people from the Montreal police as well as the Sûreté du Québec. We did this with the police in Vancouver, Toronto and even in Washington last fall. These are partners who work with the services on security matters every day. Unlike what one might think, there is no turf war.
In general, I have to say that I felt a strong desire to collaborate from the intelligence community. This collaboration is there. I have heard Mr. Plouffe’s evidence earlier and the questions he was asked on this subject. There is excellent collaboration between the police forces and all people involved in one way or another. You are absolutely right in saying that, once people are arrested in Montreal, before they can get on the plane to go abroad, it is a municipal police force that was involved. The federal police force, secret services and border services are also involved. Everyone is working together.
If a mistake is made or in case of abuse, with NSIRA, we will be able to get an overall view of the event. This way, people won’t have to pass the buck to find out who made a mistake. We will have the necessary authority to give Canadians, Parliament first, you, the opportunity to speak in order to find out whether or not the services or agencies have acted in an exaggerated or disproportionate manner.
Senator Dagenais: You’re starting to convince me, Mr. Blais.
Chantelle Bowers, Acting Executive Director, Security Intelligence Review Committee: I am also convinced that the federal government will give us exactly what we need with respect to staff. We must not forget that we didn’t start from nothing. We already have a well-oiled system in SIRC, with the current staff and the members of our committee. We are off to a good start.
Senator Dagenais: Thank you very much.
[English]
Senator Jaffer: Thank you for your presentations. They were very interesting. I understand that you are in favour of NSIRA, so I have administrative questions of you. One is that Bill C-59 provides that NSIRA’s chair and vice-chair should be full time, but the other members can be part time. Can you comment on that? Will that meet the workload?
Mr. Blais: That’s a good question. I’m part time. As you know, I’m a former member of Parliament. We cannot really be paid for the job we do. Most of the former members of Parliament who were there, we have $4,000 a year if you spend — as I did, probably — around 60 days a year, just to give you an example.
So it’s difficult for me to say. This is the fifth and last year in my mandate. As a chair, I had to come over here, because I am like a deputy minister. The structure has changed. I am the CEO now. Before coming here, I spend my days on day-to-day operations on major issues of staffing and research and we discuss those aspects with all the senior staff.
For the future, it will obviously be more than what I already do. Whether it’s full time, it will be for the government to decide. It is difficult for me. I have my own experience, and experience of others that was limited.
Over the last couple of years we were working on the new NSIRA creation. We spent a lot of time meeting with the 19 new agencies — meaning all the players, stakeholders, all over the place. So I don’t know. Probably if you have a full-time chair, they will be able to keep him or her busy, no question about that.
The way they will manage that, I don’t know. The government didn’t provide me with the new reality. I know the four actual members will remain. We are five members, one whose mandate finished a month ago. They will have the possibility to add a couple of members. More members will probably be well received, because the tribunal role means that we have hearings. We meet with witnesses and we have to work with lawyers to go through the investigation.
Full time? I don’t know. They will probably make their decision in the best interests of the country. I can give you some idea of what I have done. You need someone who will be available, obviously, to chair in this context.
Ms. Bowers: I would like to add that our chair is always available. I would also like to add that the legislation is very flexible as well, so it allows for a chair and a vice-chair. That can be either part time or full time. So there is flexibility for the legislator to decide.
Senator Jaffer: The way I understand it is that the chair and vice-chair can be full time or part time, but the others will be all part time.
Ms. Bowers: That is correct.
Senator Wallin: Thank you very much. I do hope you are able to have that language changed, because I think it’s significant, and it’s probably good to have that corrected.
On that point, I want to come back and get your view on something that has been bothering me about this legislation. I know that, in general, you say that it’s fine. But it’s about wording, so that’s why I’m asking.
In the existing bill, we talk about every person who knowingly advocates or promotes the commission of terrorism offences. In this new bill, in Bill C-59, I think it’s a much narrower definition by saying “every person who counsels another person to commit a terrorism offence.” So it’s narrowing it and not really getting at terrorist networks or their ability to recruit, or any number of things.
How do you interpret that? Do you think that it’s narrower?
Mr. Blais: The words “terrorist” and “terrorism,” there have been discussions on that for decades, as you know. I did participate at the very beginning as a lawmaker and also as a judge, to look into the interpretation of those words. It’s not over yet. Terrorism, as it exists, has developed over the years in different areas and in different significance.
As far as I’m concerned, as I have seen the legislation, it doesn’t really matter for us. In fact, we don’t decide what CSIS or CSE are doing. We just look into what they have done and whether it’s within their mandate or whether there is a limitation from the Charter, for example.
Senator Wallin: I know it’s not specifically your mandate. It struck me because these words are important when it comes down through the system to interpret. I know you’re reacting on a different thing, but “advocates” or “promotes” versus “counsels.” It’s just an opinion from you that I’m interested in.
Mr. Blais: Yes. Well, it’s difficult for me to issue opinions on this. I’m still a lawyer, but I think I will reserve my opinion.
Senator Wallin: Understood. Thank you.
Mr. Blais: It is developing all the time. Those definitions will never be trapped in a real concept. Time will tell us, probably.
Senator Wallin: Thank you.
[Translation]
Senator McIntyre: Commissioner, I thank you for your presentation and I would like to ask you two questions. First, during your appearances before the House of Commons committee, you made several recommendations concerning the amendments to Bill C-59.
As you mentioned, the main amendment sought to enable the National Security and Intelligence Review Agency to determine its own procedures, and the government adopted it. Naturally, you are pleased with this amendment, which was adopted by the House of Commons.
Among your recommendations, are there still one or two that you deem important and that have not yet been followed up on?
Mr. Blais: I would say, senator, that I am pragmatic by nature. With around 40 years of experience in the area of national security, I know that we take things one step at a time. We made a certain number of recommendations and we still do not know how the operations are going to unfold. I am satisfied with where we are, and I have no further recommendations to propose.
Establishing our own rules will allow us more flexibility in how we respond. Moreover, we have already contacted all the bodies with which we are going to work. I am saying this because, to a certain extent, it allows me to answer the question indirectly. We have dedicated months of work to set up cooperation mechanisms with them. As you know, it isn’t always the regulations that guide us. We have to be able to work very closely with the bodies. I can tell you that our teams have met with representatives of the Privy Council and several other organizations.
I have personally met with several presidents of bodies so that they don’t have to be afraid of creating this new “bugbear,” if you’ll pardon the expression, and they see it instead as a new review body.
We have shown what we do for 30 years now. We have held multiple information sessions to ease concerns about the impact of the adjustments made to the act. We want to ensure that the National Security and Intelligence Review Agency will have free access to the information and operations of the bodies when it is a matter of national security. This is our concern.
I have to say that I am very satisfied with the progress made to date. There is currently what we call in French the “protocole d’entente.” This is what we are developing with each body to prevent the ones we are reviewing from being uncooperative.
In partnership with the Committee of Parliamentarians, we have developed a “protocole d’entente” with them because we do not want to step on anyone’s toes. We do not want people to show any resistance. This is why I am saying that we have evolved a lot in the last year, and we are very pleased with that. We currently believe that if the bill is accepted and approved by Parliament, everything will be done with a great deal of flexibility.
Senator McIntyre: In your speech, you spoke of our committee’s mandate. I understand that it is broken down into three main responsibilities. One of them is to investigate complaints about CSIS’ activities and security clearance denials.
Since you have held the position of chair, has your committee had to investigate certain complaints or denials? If so, are you able to tell us which ones?
Mr. Blais: First, when we are talking about investigations, these are general investigations. We draw up a plan, because we are the ones who decide which CSIS activities we are going to investigate. The second aspect of our mandate is the complaints involving the behaviour of CSIS employees or security clearances. This is a broad area, and I will exercise caution so as to not misspeak.
It may involve Canadians who have been denied a security clearance, or even foreigners who have had a security problem with Canada. I cannot tell you exactly how many complaints we receive. However, our annual report always mentions this.
We find ourselves in a strange situation, because, on the one hand, people don’t want this information to be known in general. That is why the act provided for this information to stay confidential. On the other hand, others would benefit from having this information made public and do not want it to be confidential. In any case, the legislation stipulates that this information must remain confidential, and we cannot reveal the content.
Senator McIntyre: In other words, you are walking the line between transparency and confidentiality.
Mr. Blais: Yes, and confidentiality is the law. The legislation stipulates that hearings must be held in camera and currently, some court decisions are dealing with the scope of confidentiality. If an issue is not settled before the committee, if we propose a recommendation and people are not satisfied, they can appear before the federal court and apply for judicial review.
The committee’s traditional position is that information must remain confidential, and that is what the legislation stipulates. However, there are other points of view that are now being heard, including that of the court, which does not entirely share my opinion. There are ongoing proceedings before the court and I cannot comment any further.
As you can see, I am jumping through hoops here. I cannot tell you anymore about it, or I am likely to get a slap on the wrist from my general counsel. You understand, right?
Senator McIntyre: I understand the mental hoops you are jumping through. Thank you.
Ms. Bowers: If you will allow me, I would like to give a concrete example of what we do with one of the recommendations originally made for the other part. The chair explained to you the protocols that we had put in place.
One of our suggestions at the time involved the RCMP, and since then, I can tell you that we have had several meetings with the RCMP External Review Committee. We have been able to resolve internally, through protocols and meetings, what we had put forward as legislative amendments at the time, and we are pleased to have found other means to do so.
[English]
Senator Richards: Thank you. You kindly answered my question when you answered Senator Wallin.
Accountability after the fact is what you do, but does this still cause problems? Do people feel that their hands are tied or this oversight ties them in any way? The fluidity of any situation could cause them to do things that might not seem proper during an accountability review but might at the time be extremely relevant. How do you deal with that?
Mr. Blais: Accountability exists outside the time —
Senator Richards: Yes, I realize that.
Mr. Blais: The question is more about when we enter into CSIS’s premises to look into their business.
We all understand, I think — and you probably do, as well — that it would be counterproductive for our organization to enter CSIS’s premises and say, “We want to look into what you did today and what you are doing in such and such a situation.” This is very critical sometimes. Their operations are — I can’t enter into details on that, but as you imagine, they are looking at people who could be a threat to national security. There are also threat-reduction measures that are in place.
By the way, in our reports, we comment on that. We look at what they have done, but we can’t really look into what they do. Mr. Plouffe explained a little bit about that. He mentioned precisely that. He is making decisions before and even within their operations. We cannot, and the mandate is not there.
What I tried to be over the years — I believe that we should be the more relevant. We can and be closer to their operations. We try to report earlier. Before we were too late in reporting. After the election, for example, we made a report in February or March about the year before. We were close to the end of a year when we did the report for the year. It was a year late. I said we cannot do that. So we changed a little bit and now we report a few months after, which gives Canadians and all of you a better understanding of what happened.
You should also note that, when we make our recommendations and our report to Parliament, we mention our recommendations and we mention how government reacted to it. You will notice, if you look into our reports, that the reactions were positive most of the time. We established a review of all those as well. It is one thing when CSIS says we agree with that and we will do this and we will correct this and that. Well, we also have a mechanism to review that. To say, by the way, you said last year that you were going to look into that. Well, we are going to look again to remind you that you should look at this. Sometimes it is complicated.
The metadata situation, that you all remember, a couple of years ago — we are the ones who raised the point that some metadata were kept by the service without authorization. It raised many issues with the federal court, and don’t want to enter into all those details, but to say that it was important to report. The minister gave us the mandate to clean it up somehow. Clean up the area to make sure that, in the future, that metadata will be taken pursuant to the law and pursuant to the respect of their legal obligations with Canadians.
This is the best we can do, but I cannot say that there are some bad reactions to the fact that we are not an oversight.
[Translation]
We don’t bother them.
[English]
Ms. Bowers: I think that’s very true. I would like to jump in to add something to what the chair is saying. We track these recommendations, but it is also important to note that our recommendations and findings are non-binding. The service can disagree if it chooses to do so. As the chair mentioned, we have in our annual reports a section where they can comment on the recommendations, how they will implement them, if they implement them and so forth. They have that opportunity. That will continue under NSIRA. The recommendations that they make are non-binding as well.
[Translation]
Senator Pratte: Mr. Blais, I have a very brief question. Earlier in your presentation, you spoke of the difference between review and oversight, which seems obvious to you. I would be interested in you briefly explaining the difference between the two, and why it is important to give the correct name to the committee or body, which would be a review body, and not an oversight body.
Mr. Blais: The term “review” assumes that we are reviewing after the fact, because oversight really gives the impression that the event is ongoing and is happening at the same time. This is the right word, and I will be careful with you, given your literary past. We are talking about contemporary events, whereas for us, our work doesn’t start when the event occurs. That might give the impression to French speakers that we are talking about contemporary events, which is not the case, and we could be blamed for not acting more quickly. It is not up to us to provide oversight, but rather to conduct a review after the fact. It is difficult to find the right word. Reviews are done afterward.
[English]
In English, it’s very clear that it’s “review.”
[Translation]
In French, it is not so clear. I imagine that the linguists had some trouble, because they didn’t correct it.
Senator Pratte: Have you addressed this issue with the government? The simplest way to make this change would be to have the government do it itself.
Mr. Blais: Yes, I wrote to the minister, but I don’t know if that will do it. The Deputy Minister of Justice might examine the issue with the linguists. It is rather a language issue. I am a little embarrassed to bring it up, but since I have written over 2,000 decisions in my life, I have paid attention and I have written them in English and in French. I always tried to find the right word, because in my tradition as a legal scholar, words mean something.
Your colleague Senator Wallin pointed out that a word may be important when it comes to terrorism. It’s the same thing here. Perhaps we’ll spend another 30 years thinking that it’s not the right word, but I thought it was the right time to mention it.
Senator Pratte: Thank you.
Senator McIntyre: I completely agree with you about the wording in French “office d’examen.” I have been chair of the New Brunswick Review Board for 25 years, which is subject to section 672 of the Criminal Code. In English, we call it the “review board,” so you are absolutely right.
Mr. Blais: Finally, I have moral support.
Ms. Bowers: From New Brunswick in particular.
Mr. Blais: I acknowledge New Brunswick.
Senator McIntyre: I support you in this matter.
[English]
Senator Oh: Thank you, panel, for being here. You mentioned that you only worked 90 days a year, earlier.
Mr. Blais: I didn’t count them, because —
Senator Oh: You told me just now when I asked you.
Ms. Bowers: He is always working.
Mr. Blais: I work in my office over 50 days a year, but I’m on the phone and, as a lawyer, as you know, we work when we are on the phone.
Senator Oh: So my question is, how many CSIS and CSE reviews or complaints do you do in a year?
Mr. Blais: Right now we do reviews only from CSIS. We don’t do the CSE yet. We will do that if the bill is passed. We will review the Canadian Security Establishment and the 19 other organizations. Right now we are reviewing CSIS.
We have around 15 reviews per year. Sometimes we have a review that goes over more than a year. This is under supervision by Mr. Darryl Hirsch. He is the director of research. We have teams made of researchers and lawyers. Lawyers are a little new, but given the complexity of the operations of CSIS, we have added a lawyer to each team of researchers to make sure that the review will be well done and will comply with the legislation. It is around 15. Sometimes we go over a year and we bring new reviews.
Senator Oh: Do you also take complaints from outside?
Mr. Blais: Yes, we have complaints also. We have around 20 complaints a year. We have even more than that, but some are excluded because —
Ms. Bowers: Because we have not determined jurisdiction.
Mr. Blais: We have a first step, which is whether we have jurisdiction to hear the complaint. Sometimes it is frivolous or sometimes there is another area.
If it is a labour issue, for example, an employee who has a problem, it has to be set first at the labour review board that you have at the federal level. Sometimes people are mixed up, or they will bring complaints to different boards. We also have to review that to make a decision. It takes time even to say that we don’t have the jurisdiction. We have around 15 or 20 every year. The four other members and I have to sit down as a little judge to make those recommendations.
Senator Oh: Do you have any concern that Bill C-59 will weaken our Canadian law on intelligence and your operations?
Mr. Blais: No, I would say the opposite, because it will help us to be more comprehensive. As I mentioned, we will not work in a silo. We will be able to follow the thread, if there is a problem. For example, there could be a complaint from someone who has a problem with immigration. It will begin as a problem with CBSA. He could have a problem with the RCMP and the service because it is related to national security. Before, we could not look into the matter. We looked into the matter of CSIS, but as soon as a CBSA employee was involved, we could not look at or comment on that.
Sometimes we had a little bit of access to it, but it would be outside our mandate to make a recommendation regarding another agency. We would be told that we would be outside our jurisdiction.
Senator Oh: Thank you very much. Now I know who to come to. Thank you, chair.
The Chair: Senators, I think that completes our questions.
Mr. Blais and your colleagues, we thank you very much for joining us today. It has been a very good hour, and we are very appreciative of your contribution to the committee.
(The committee adjourned.)