THE STANDING SENATE COMMITTEE ON NATIONAL SECURITY AND DEFENCE
EVIDENCE
OTTAWA, Thursday, April 2, 2015
The Standing Senate Committee on National Security and Defence met this day at 1:30 p.m. to examine the subject matter of Bill C-51, An Act to enact the Security of Canada Information Sharing Act and the Secure Air Travel Act, to amend the Criminal Code, the Canadian Security Intelligence Service Act and the Immigration and Refugee Protection Act and to make related and consequential amendments to other Acts.
Senator Daniel Lang (Chair) in the chair.
[English]
The Chair: Welcome to the Standing Senate Committee on National Security and Defence for Thursday, April 2, 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 acting clerk of the committee, Cathy Piccinin, and 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.
[Translation]
Senator Dagenais: I am Senator Jean-Guy Dagenais from Quebec.
[English]
Senator Ngo: Senator Ngo from Ontario.
Senator Kenny: Colin Kenny, Ontario.
Senator Jaffer: Mobina Jaffer, British Columbia.
The Chair: Colleagues, we will have other members attending in a few minutes as they are in other business. I see Senator White from Ontario joining us.
Welcome, senator.
Colleagues, the Senate has referred to this committee Bill C-51, An Act to enact the Security of Canada Information Sharing Act and the Secure Air Travel Act, to amend the Criminal Code, the Canadian Security Intelligence Service Act and the Immigration and Refugee Protection Act and to make related and consequential amendments to other Acts.
Joining us in our first panel are officials for the Department of Justice: Mr. Donald K. Piragoff, Senior Assistant Deputy Minister, Policy Sector; and Mr. Doug Breithaupt, Director and General Counsel, Criminal Law Policy Section, Policy Sector.
From the Department of Public Safety Canada, we have with us Mr. John Ossowski, Associate Deputy Minister; Ms. Lynda Clairmont, Senior Assistant Deputy Minister, National and Cyber Security Branch; and Mr. John Davies, Director General, National Security Policy, National and Cyber Security Branch.
We are pleased to have you all here today to address specific questions on the bill.
Mr. Ossowski, I understand you have an opening statement.
[Translation]
John Ossowski, Associate Deputy Minister, Public Safety Canada: Honourable senators, I am pleased to appear before you to help in your study of Bill C-51, the Anti-Terrorism Act, 2015.
As the chair just mentioned, I am joined today Lynda Clairmont, Senior Assistant Deputy Minister, National and Cyber Security Branch; and John Davies, Director General, National Security Policy.
[English]
Bill C-51 is a comprehensive national security bill that contains a range of measures, including enhancing information-sharing for national security purposes, preventing terrorists from travelling abroad, providing law enforcement and intelligence agencies with the tools they need to address the evolving threat, helping to prevent attacks before they occur, and criminalizing the promotion of terrorism. In my time today, I will provide an overview of the measures that fall within the purview of the Public Safety portfolio.
The first component of the bill is the new security of Canada information sharing act. This act creates a clear authority for government institutions to share information with a limited number of government institutions when it relates to their national security responsibilities and mandate.
Currently, federal institutions undertake lengthy legal assessments that can delay or prevent the sharing of information with national security agencies. The new act will remove these barriers, allowing information to be shared in a timely, efficient and responsible manner.
It is important to note that appropriate safeguards are in place to ensure that the information under this legislation is handled responsibly. For example, institutions are not compelled to share information, and all information sharing will be done under the scrutiny of existing review bodies for CSIS and the RCMP.
It is important to note that federal institutions will use these new provisions in a responsible manner, one that respects fundamental rights and freedoms of Canadians.
Both the offices of the Privacy Commissioner and the Auditor General review the activity of federal institutions, including as it relates to information-sharing activities. Furthermore, all departments are required to report each year to Parliament on their adherence to the Privacy Act.
The second component of the bill is the secure air travel act, which will strengthen the Passenger Protect Program. Under the current program, the government cannot list individuals who are suspected of travelling by air to support or engage in terrorism-related activities. The proposed changes to the program will overcome a major gap in our ability to prevent terrorist travel. To this end, the proposed secure air travel act will give the Minister of Public Safety and Emergency Preparedness authorization to include those individuals who pose such a threat on the list.
Furthermore, the minister will be able to issue operational directions to disrupt their travel, including additional screening prior to boarding or denial of boarding. In order to further protect the rights of listed individuals, an enhanced recourse mechanism will be put in place to allow individuals who have been denied boarding to apply to the minister for reconsideration of their inclusion on the list.
The next component of Bill C-51 includes amendments to the Canadian Security Intelligence Service Act. Mr. Chair, CSIS currently does not have a mandate to take actions against threats to the security of Canada. It can only collect intelligence on such threats and advise the government. Bill C-51 would give CSIS a clear new mandate to undertake a range of actions to disrupt threats to the security of Canada, whether in Canada or abroad. The Minister of Public Safety and Emergency Preparedness has been very clear that these new powers will be carried out under the privacy and legal safeguards that have governed CSIS's collection activities for 30 years. In other words, CSIS would continue to seek the approval of the Minister of Public Safety and Emergency Preparedness followed by a court warrant before undertaking any intrusive activities.
Mr. Chair, the final element of the bill that falls under Public Safety Canada is the proposed changes to Division 9 of the Immigration and Refugee Protection Act, including security certificate proceedings. These proceedings are used when it is necessary for the government to rely on and protect classified information to determine whether non-citizens can enter and remain in Canada. That information could be injurious to national security or endanger the safety of individuals if released.
The proposed changes will guard against this disclosure in two ways. First, the bill would allow the government to appeal any order to publicly disclose classified information during the proceedings, rather than waiting until the proceedings are over. Second, the bill specifies the information that would form part of the cases, meaning relevant information that the government relies upon to make its case, as well as information that allows the person to be reasonably informed of the case against them.
[Translation]
In summary, Bill C-51 will strengthen Canada’s ability to detect and prevent terrorist acts, as well as help address the threat posed by terrorist travellers, all while ensuring proper safeguards and review.
Thank you, and I will be happy to answer questions from the committee.
[English]
The Chair: Thank you very much. I will now move to the deputy chair of the committee, Senator Mitchell.
Senator Mitchell: Thank you, everybody, for being here. It is nice to see you. Some of you I already met in my briefing, which I appreciated very much.
I would like to focus first on oversight. I know that's a sensitive issue. I'm hoping to stay out of the realm of politics because I know that's not the realm in which you can deal. The point was made to me that while there is a great deal of concern about the limited resources that SIRC has to monitor CSIS, to some extent some of their work has morphed or transitioned into the actual department. I wonder if you could tell us what amount of budget within the department is doing supervisory SIRC-like work in relation to CSIS.
Mr. Ossowski: Thank you for the question. With respect to that particular ratio, I would defer to my colleagues. John might have something on that level of detail.
John Davies, Director General, National Security Policy, National and Cyber Security Branch, Public Safety Canada: Thank you, senator. I don't have the exact budget here, but in my group there are about 15 analysts in the intelligence policy section of the national security policy directorate who deal directly with ministers' accountabilities under the CSIS Act. These would be analysts having day-to-day oversight functions relative to CSIS. That would equate to a budget of about $1.5 million in terms of salary and O&M.
Senator Mitchell: Would they be the ones essentially taking over the responsibility of the inspector general to report CSIS activities to the minister? If so, what is lost in the fact that they don't have the independence that the inspector general might have?
Mr. Davies: I don't think anything is lost in that because they work for the minister, just like the inspector general was doing. Some of the resources from the inspector general — full-time equivalents, FTEs, salary budget — moved to our group and some of it moved to SIRC.
Senator Mitchell: Mr. Ossowski, in your presentation you said:
For example, institutions are not compelled to share information, and all information-sharing will be done under the scrutiny of existing review bodies for CSIS and the RCMP.
But I know that SIRC doesn't have the power to pursue the transfer of information from CSIS to the RCMP or to any other agency, as I understand it. In fact, documents written by SIRC and tabled two days ago in the House of Commons explicitly made that point. They can't track information. Now we're talking about not just CSIS and the RCMP but also about information that can go to CSEC, the Canadian Food Inspection Agency, the CRA and all kinds of places. Will SIRC actually be able to pursue that information?
Mr. Ossowski: Certainly any information that comes to CSIS as part of their activities, SIRC would have access to. SIRC, as you know, is fully independent and is capable of reviewing everything that CSIS has, except for cabinet confidences.
Senator Mitchell: Who is tracking something that might go between CBSA and the CRA?
Mr. Ossowski: The Privacy Commissioner, the Auditor General and the regular internal processes we follow when we're respecting how information flows — information-sharing agreements with departments. To be clear, this bill will get rid of barriers to sharing information and will enable that information sharing to take place.
Senator Mitchell: If that's adequate for CBSA — and I'm reversing my emphasis on this because I think we need more SIRC — and you are saying that it’s adequate for the pursuit of information that might be transferred between two other agencies, then why do we need to worry about having SIRC supervise CSIS? Why is it that the Privacy Commissioner is good enough for everywhere else, but we have the Privacy Commissioner and SIRC overseeing CSIS? Why don't we have SIRC overseeing everything else as well?
Mr. Ossowski: Well, that's a hypothetical question in terms of what they could or could not do.
I believe that SIRC is well focused in its activities reviewing what CSIS does. As you are aware, in this legislation with respect to the activities being proposed, SIRC has said they're capable and absolutely able to fulfill this mandate that would be put upon them. That is appropriate for what the government has set this independent arm’s-length agency to do.
Senator Mitchell: Do you think SIRC will have enough resources to do the extra work that will be asked of it, such as the supervision of new warning procedures and, in particular, the review of disruption activities? That could be quite significant. SIRC, from what I understand, isn't getting any extra money and yet CSIS will have a lot of extra roles.
Mr. Ossowski: As time progresses and these activities start to come before the courts with the warrants that we're talking about in this new regime, if SIRC finds itself in a position where it can't do what it believes is necessary to do, there's a process they can follow to ask for more resources.
Senator Stewart Olsen: My apologies for being a few minutes late.
My first question is on the term “security threat,” which is not really well defined. Could you define that for me in terms of C-51?
Second, what would you consider “terrorist propaganda” in terms of the bill? Can you provide me a full definition of that?
Mr. Ossowski: “Security threat” is outlined in the bill. The definition is fairly broad because we don't know the type of things we could be encountering. So it is not as specific as it could be, perhaps, but we don't want to limit it unnecessarily.
Donald Piragoff, Senior Assistant Deputy Minister, Policy Sector, Department of Justice: “Terrorist propaganda“ is defined in the bill to include two things: one, material that “counsels the commission of a terrorism offence”, or material that “advocates or promotes the commission of terrorism offences in general”, the new proposed offence. That would be the definition as proposed in the bill for propaganda.
[Translation]
Senator Dagenais: I have two questions. The first is for Mr. Ossowski.
[English]
For the warrant as proposed by section 21, does the department agree that the judge will have the full powers to demand a follow-up report from CSIS on how the warrant was executed and ensure it complies with the terms of the warrant? What resources will a judge have for such oversight of warrants?
Mr. Piragoff: Senator, what is your question exactly?
Senator Dagenais: The warrant proposed by section 21.
Mr. Piragoff: Of the CSIS Act?
Senator Dagenais: Yes.
Mr. Davies: Senator, thank you for the question. You are correct; the judge can, at any time, add any conditions she would like to warrant under the proposed powers of threat disruption or the existing collection warrants. The Federal Court has the resources. If it asks for that, it will have the resources to undertake to ask the service to come back and report on the outcome of those warrants. It's not so much a resource question for investigations; it is more a question of asking the service to return and report on exactly what was followed in the warrant.
[Translation]
Senator Dagenais: Why not give the authority to deal with terrorist activities to the RCMP, instead of CSIS?
Mr. Ossowski: Thank you for your question.
[English]
CSIS has a very different focus than the RCMP. The RCMP is focused on criminal proceedings. CSIS has very different resources in terms of access to intelligence at the pre-criminal stage where they're often best-positioned, and they have a different footprint than the RCMP that would allow them to disrupt the threat at an earlier stage. So they're very different capabilities. It is just another tool in a different part of the spectrum that CSIS would be able to undertake.
Senator Kenny: I would like to know some details about how the transfer of information works. Pick an agency transferring information to another agency. Tell me when the Privacy Commissioner is involved. Is it prospectively, before you can share the information? Is it retrospectively, after? If Mr. Breithaupt wanted to give something to Mr. Piragoff, what would they have to do if they were subject to this act? How would it work?
Mr. Ossowski: Thank you for the question. The way it works, and it is envisioned in the act — first of all, I think it is really important to understand that no new information is being collected here. This is already in the hands of a department that has done a privacy impact assessment and has a regime for handling that information. Certain departments might find themselves in a position, more broadly, once this legislation is passed to update those privacy impact assessments. Assuming that's not the case, as I mentioned before, they're not compelled to share this information, but the act would allow that information to be shared with designated officials in the receiving institution.
It has to be relevant to the definition that's in place here in terms of the actual text that we have said. So it is very specific and targeted. The purpose here is to get rid of those specific prohibitions for sharing. The example that we often use is the Chemical Weapons Convention Implementation Act where it specifically says that it can't be shared.
As well, the enabling provision allows for this information to be shared with either CSIS, the RCMP or whoever it might be that would take advantage with respect to their existing national security mandate.
Senator Kenny: You didn't answer the question. The question was this: Describe what you have to go through to actually share the information and how is the Privacy Commissioner involved in this process? I specifically said: Was the Privacy Commissioner asked before or asked after? You didn't touch on any of those features.
Mr. Ossowski: Sorry, I misunderstood. What I understand is that the privacy regime that's in place for that information, since it is existing information, the privacy impact assessments, the whole management of that information, nothing is changing with that. The Privacy Commissioner would not be involved unless the department, with respect to the powers being put into place here to share this information, felt that they needed to update their processes with respect to these new powers. They might choose to update their privacy impact assessment and understand differently how they would manage this.
The act clearly says what is intended to be shared here, who can share it and the circumstances under which they can share it. So the Privacy Commissioner would be more concerned about the overall framework for sharing information as opposed to looking at it on a case-by-case basis.
Lynda Clairmont, Senior Assistant Deputy Minister, National and Cyber Security Branch, Public Safety Canada: I would just add that we have had discussions with the Privacy Commissioner and we will continue to have those discussions as this rolls out.
Senator Kenny: In essence, this bullet on page 4 is saying to us: It is the same situation that exists now, that the review takes place when information is received or made public, but the actual transfer of the information from one department to another isn't really relevant to the Privacy Commissioner. Is that what telling me?
Mr. Ossowski: Well, no. The Privacy Commissioner would make sure that the regime, first of all, is respected, that the management, the controls that are in place and the safeguards that are envisioned are respected, as opposed to — like you might get involved in terms of specific situations that might arise if there was a complaint, for example.
Senator Kenny: The Privacy Commissioner doesn't have to check off a box or sign off on each transfer?
Mr. Ossowski: No.
Senator Ngo: Thank you, Mr. Ossowski. My question is about the media and the people voicing opposition to Bill C-51, stating that it gives too much power to the security agencies in violation of the Charter. Why has the department recommended that the proposed legislation allows CSIS to violate the Charter with a judicial warrant? Could you explain that a little bit more?
Mr. Ossowski: Thank you for the question.
CSIS has been operating under a regime with judicial warrants for 30 years now. We regularly go to them when we're approaching a zone in terms of the activities that start to butt up against a person's Charter rights. So this is just a similar continuation of that with respect to these activities.
Not all activities that CSIS would undertake in terms of threat disruption would require a warrant. The simple example would be if they find out through their intelligence collection that someone is frequenting jihadist websites, they could, unlike now, go to the parents and say, “Did you know that your son is going to these websites?” That is not intruding on any privacy rights that would require a warrant.
As they get into more disruptive activities, certainly they would have to engage the courts and get that authorization before they could conduct those activities.
Mr. Piragoff: If I could just add to that, in the same vein, there's been a criticism that the bill would actually permit a violation of the Charter and engage the judge in a violation of the Charter. That's not possible because even judges are subject to the Constitution. Judges have to abide by the Charter just like everyone else.
The scheme provides that judges are to look at the activity and determine whether it can be undertaken in such a manner — reasonable, proportional, maybe subject to conditions — that you would be consistent with the Charter. That's what happens every day in court. Every time a judge issues a search warrant, the judge is essentially saying, “But for this warrant, that search would violate the Charter.” Every time a judge issues an arrest warrant, but for that arrest warrant there would be an unlawful detention, which violates the Charter. Every time a wiretap authorization is made, it's the same thing.
Judges also deal with other situations where the Charter would be engaged. For example, they can order that hate propaganda or child pornography be taken off a website. Again, but for the order, that would be freedom of expression.
Judges can order the media, for example, not to publish information that is testimony in a courtroom. That would be a violation of the media's freedom of expression, but for the fact that the judge has issued the order because the judge is weighing one interest, which is the individual's Charter rights, against other public interests. It's the judge's right to balance the public interest and to determine whether those interests can be both served in such a way by his or her order with necessary conditions, et cetera.
If it cannot be, then the judge won't issue the order. If the judge cannot come up with a way or the service cannot propose a way so that the judge feels comfortable that it is consistent with the Charter, the judge will not issue the order. The judge, like anyone else, is also subject to the Constitution.
So it's wrong to say that this authorizes judges to violate the Charter. Judges cannot violate the Charter. Everyone is subject to the Constitution.
Senator Ngo: You have answered my follow-up questions already. Thank you very much.
The Chair: Senator White?
Senator White: I'm okay. He's already answered my questions, thank you very much.
The Chair: Senator Jaffer?
Senator Jaffer: I would first like a clarification, if I may, regarding your presentation. You said that federal institutions undertake lengthy legal assessments. What do you mean by that? What are the steps for lengthy legal assessments?
Mr. Ossowski: Quite frankly, they have to look at what their act specifically prohibits them from sharing. They then often have to work with Justice Department officials to see if there is a way around that in terms of balance, trying to move forward with the information if they feel they need to do so, but often they can't. It's on a case-by-case basis. But as I mentioned in my remarks, there are certain acts we know about that we're going to be changing with this legislation in that there are specific prohibitions to sharing that we would like to correct.
Senator Jaffer: On average, how long presently do the assessments take?
Mr. Ossowski: I don't know. Do you have any idea, John?
Mr. Davies: Each part of the act had its own development process, some much longer than others. If you're talking about the proposed security of Canada information sharing act, certainly there is over a year or so of detailed legal analysis that went into this.
Senator Jaffer: Can I ask a drafting question of Justice? You chose to use the new definition of “threats to the security of Canada” instead of simply using the definition that already exists in section 2 of the CSIS Act. Will this not lead to confusion?
Mr. Davies: It has led to some confusion. We tried to deal with some of that at the House of Commons committee the other day.
In clause 2 of the proposed security of Canada information sharing act, the examples used you'll see from (a) to (i) list examples beyond terrorism like counter-proliferation, interference with critical infrastructure.
The important thing here was that we captured all of the mandates in the national security community. People may be confused that this is a CSIS-anchored law. It's not. There's CSIS, but there are 16 other national security agencies and departments that are scheduled to the act. They all have to see themselves here. They all need to have their mandate looked at, and the information they receive must be relevant to their mandate that's captured here.
The important thing here, though, is the preamble statement that the activity must undermine the sovereignty, security and territorial integrity of Canada.
Senator Jaffer: Following up “threat to the security,” it also includes lawful advocacy. I know you can't comment on that, but they may be removing that. If that is removed, should we consider amending the CSIS Act to reflect the concerns that led to its removal?
Mr. Davies: It was removed in committee the other day.
Senator Jaffer: Will you then consider it being removed from the CSIS as well?
Mr. Davies: Again, the CSIS Act has its own integrity and reason for being there.
Senator Jaffer: Thank you.
The Chair: I would like to follow up with a couple of questions, colleagues, before we start second round.
In the preparation of the bill, perhaps you could elaborate on who you consulted with as far as outside experts are concerned when it came to trying to determine the constitutional tests that were performed on the proposed legislation so it ensures, to the best of our ability, that this piece of legislation, if challenged, would be successful in the courts. Just exactly what was the constitutional test that you considered when you put the bill together?
Mr. Piragoff: There were no outside experts consulted. It was Department of Justice lawyers, in particular those lawyers who specialize in constitutional law. They were involved in providing advice to the Department of Justice but also advice to Public Safety Canada on a daily basis with respect to various options that were being considered and the various risk factors for each option. The government chose certain options, taking into account the various risk factors that the Department of Justice had put forward with respect to them.
Is the legislation consistent with the Charter? I think the minister has answered that already. The legislation would not be before Parliament if the minister had come to an opinion that it was not consistent with the Charter.
The Chair: And you're fully satisfied as well?
Mr. Piragoff: Yes.
The Chair: If I could just go to one other area, colleagues, I want to go over to the question of the hate crime provisions of the Criminal Code. We've been told that the present provisions provide enough scope to deal with the issues of hate and glorification. Yet as was brought forward in another hearing with representatives from your departments, it was discussed that there are very few if any prosecutions undertaken under the current provisions. In view of the threats Canada is facing, can we expect further vigorous prosecutions when necessary in respect of these particular provisions that are presently in the Criminal Code?
Mr. Piragoff: I can't comment on prosecution policy. The provisions concerning hate propaganda are the responsibility of the provincial Attorneys General, as well as the Public Prosecution Service of Canada. As you know, that's an independent agency. So they determine their prosecution policies.
Also, the police determine their investigative policies as to whether they will investigate and recommend charges be laid by the prosecution or proceeded with by prosecution services, whether it be provincial or federal. So I can't comment on prosecution policies.
The Chair: Who can?
Mr. Piragoff: The Attorneys General of the provinces or the DPP, the Director of Public Prosecutions for Canada.
The Chair: I would follow up with another question. It has been a concern of your department that so few prosecutions have been taking place in view of the threats Canada is facing and, perhaps in some quarters, what's being said.
Mr. Piragoff: That's one of the reasons we've gone beyond the current law and are proposing changes to the law to create a new offence of promoting or advocating the commission of terrorism offences in general. It is to try to fill a gap where specific offences may not actually be counselled but clearly from the circumstances and given the nature of the speech there is advocating or promotion of the commission of terrorism offences. Even though it may not be specified exactly whether it's a terrorist activity, an act of violence, the bombing of a train, or simply urging people to go on a plane or that someone should donate money, all of those are terrorism offences. Quite often there is language used on the Internet or in public speech that is nuanced and does not actually specify that a person should commit violence but that they should support the cause and should do something bad against Canada because Canada has a bad foreign policy, et cetera. So clearly there is an act of encouragement to do something, but it's not specified what is to be done, and the new offence is to capture that gap in the existing law.
The Chair: To bring this to a conclusion, can we expect to see more prosecutions in the future with respect to this particular area of concern? I know it is of concern to Canadians with respect to what's taking place. Can we expect a more vigorous prosecution on these offences?
Mr. Piragoff: Prosecution will follow if the police do investigate. It's also a question of police priorities. If the RCMP starts to investigate speech crimes more, then the prosecution service will then have to deal with those.
Senator Mitchell: Mr. Piragoff, I'm interested in your powerful point that warrants are all about making legal something that would otherwise be illegal. I have two related questions, so related that I'm going to make them one.
To the extent that warrants will be authorized for international activity by CSIS — I assume disruptive activity — will those warrants have to be restricted to authorizing still within the Canadian Constitution? Is that the case even if it is not a Canadian activity that will be disruptive in some other country? Does it all have to be within the Constitution, outside of Canada, whether it's directed at a Canadian or a non-Canadian?
Mr. Ossowski: Judges work in the context of Canadian law, and if the activity proposed in the context of the warrant bumps up against that, that's what they have to assess against.
Senator Mitchell: No matter where it's applied.
Mr. Ossowski: No matter where it's applied, domestically or internationally.
Senator Mitchell: You have, as you would probably have no other choice — I'm not denying your sincerity in any way — this feeling that there is adequate oversight. Yet, the office of the commissioner of the security establishment warned just this week, I think, that the growth of the CSE and the fiscal restraint of the commissioner's office, his office, is a constant concern. Maybe I'm reiterating what I said earlier, but this may be new information or re-emphasized information. SIRC has warned that the continued vacancies on its five-person board, the inability to investigate CSIS operations with other agencies, and delays in CSIS providing required information are resulting in key risks to SIRC's mandate. So what comfort can we possibly have that even the one area of our entire intelligence community, CSIS, and the other area of our entire 15, 16 agencies, CSEC, are being adequately supervised if the supervisory bodies themselves are saying they just don't have the resources to fulfill their mandate?
Mr. Ossowski: I thank you for the question. I suppose we could all do with more money to fulfill our mandates. I think that my experience in the community, both with the office of the CSE commissioner and SIRC, is that they are very experienced people. They have full access to the information. They know where to pay attention. They know, from a risk-based approach, where they need to focus their review activities.
That said, I note that the executive director of SIRC, when he was testifying before the house committee, said, “Can we fulfill the mandate? Absolutely.” So he's confident that he can. As I mentioned earlier, if the activities start to push up against what he believes he can reasonably do and not manage the risk properly, then he's able to come forward and seek new resources.
Senator Mitchell: So you can't answer it. But you wonder: When do we believe him? When he's before the committee or when he's writing a report?
My other question is concerns your statement about the no-fly list. The implication of that, in part, is that airline staff, a woman or man who's at the gate, may have to confront somebody on a no-fly list. I know that the airlines — and I'm sure you're aware — have been very concerned about the safety risk that that poses to their staff. Has any thought been given to how they're supposed to fulfill that mandate, that delegation?
Mr. Ossowski: That’s an existing situation for the airlines. Fortunately, John actually runs the Passenger Protect Program, so perhaps he can add some more to that.
Mr. Davies: The airlines have a right to be concerned in general, but I think, as Mr. Ossowski said, for the last seven years this program's been running and been running very well. What happens is that once there's an alert on the system, all that happens is the gate, the person at the check-in, calls Transport Canada's operations centre. They are wired in to law enforcement, airport security and so on. They take it from there. There's no confrontation. It's just something that you wouldn't even know is going on as the person checks in. Often that will happen way before they check in, so we'll know before they even get to the airport. There's not that moment of, “Oh, you're on this list with the Canadian program.” This is all done very quickly behind the scenes.
By the way, that process also helps a lot in avoiding false positives. It's a process of identity confirmation where very rarely, if ever, do we have cases of people missing their flight because of the identification check that's done. It serves a dual purpose.
Senator Mitchell: Why are you removing the definition of “designated taxpayer information” from the Income Tax Act in this bill? It has something to do with the transfer of information, and we're all very concerned. Subclause 6(2) of the bill removes this definition, which would have implications for the kind of information that can be transferred. The security of that information should be above reproach, one would think.
Mr. Davies: We'd have to get back to the committee on that. There were specific reasons that act needed to be amended, unlike the other acts, given the authorities it had. But we can get back to the committee on that.
Senator Mitchell: It would be really helpful if you did. Thanks.
The Chair: So you'll report back in the next couple of weeks, I take it.
Senator Runciman: I have a couple of quick questions. I raised this the other day with the Minister of Public Safety with regard to the proposed secure air travel act. Section 8, the list, doesn’t include photographs or images. I didn't get a clear answer the other day.
The reason I raise it again is that I heard a news report this morning — I think it's according to a United Nations’ report, a UN estimate — that there are 25,000 foreign fighters in Syria and Iraq, and at least 100 of them are Canadians. We've seen a couple of instances recently where we've had people slip out of Canada and land in Syria. Apparently, these are people who've had their passports removed, so clearly they're getting out of the country with fake documents. I think one could ask: If they can get out that easily, can they get back in that easily? This raises the issue, from my perspective, with respect to including in that section 8 list a photo or image. If we look at the use of facial recognition technology, it seems to me that that's a step we should take, especially when these people are returning to this country. We want to make sure that we know when they're coming through our borders.
Is that an administrative weakness, or do you see it as a weakness? If it is such, do we have to amend the act, or can it be done through an administrative change or through regulation?
Mr. Ossowski: Thank you for the question. Again, John is the expert here on the program.
Mr. Davies: Proposed section 8 of the act is how the list is created, the list that is shared with the airlines. So you'll see some data points there — her name, date of birth, her gender. The more data points you add, for example photographs and so on, the more potential privacy breach there is as we have to give the list to the airlines right now for them to do their own screening.
Under regulation, if there are matches to those data points, the airlines have to contact Transport Canada's operations centre, where they would have photographs, further details on passport numbers and so on, to make sure we've got the right person.
The reason for the numbers you've described of Canadians travelling abroad for terrorist reasons, the problem right now is that the program isn't equipped to stop those people. We can only list people linked to an imminent threat to aviation security. If we know they're leaving but we don't know there's a risk to that plane, I can't list them. The new act will allow us to do that.
Senator Runciman: I understand that, but that doesn't really deal with the folks who have been able to slip through.
Mr. Davies: But it could with the change.
Senator Runciman: No, I don't see that. The individual in Windsor, for example, had his passport taken and he disappeared. Obviously, he had a fake passport. I would think that's a fairly safe assumption.
The other criteria that you're mentioning, and other countries are using facial recognition technology, is this something that at least we're looking at?
Mr. Davies: Again, we'd have to talk to CBSA and so on and their plans and biometrics going forward; but with this program, that really wouldn't be realistic. This is just about having airlines ask another entity, a government body, to confirm who is there. If they're travelling on false documents, the Passenger Protect Program or a revoked passport would not stop that at the moment.
Senator Runciman: Probably we'll pursue it at some other time.
I want to move to another issue. I saw a comment in one of the national media this morning over concern about lowering the threshold for preventive detention. When I look at the terrorism peace bond section, it's not an insignificant test. What is required here when officials deem this a threat and want to act immediately? I'm wondering if you could speak to that continuing concern. I gather we're dealing with personal freedoms, but the safeguards in place seem more than adequate. Could someone speak to that briefly?
Doug Breithaupt, Director and General Counsel, Criminal Law Policy Section, Policy Sector, Department of Justice: Thank you for the question. I believe you're talking about recognizance with conditions when you're talking about preventive arrest.
Senator Runciman: That's right.
Mr. Breithaupt: The current test is twofold, which is reasonable grounds to believe that terrorist activity will be committed and reasonable grounds to suspect that the imposition of recognizance is necessary to prevent the carrying out of the terrorist activity. The proposal in the bill is to lower the threshold from “will commit a terrorist activity” to reasonable grounds to believe that a terrorist activity may be carried out and reasonable grounds to suspect that the imposition of recognizance is likely to prevent the carrying out of a terrorist activity. I guess the objective of the proposal is to facilitate the use of this preventive tool to better prevent the carrying out of terrorist activity.
You did speak to the issue of safeguards. A number of safeguards are built into this, including that it can only go forward with the consent of the Attorney General. The judge decides whether to issue the process at all and could simply release the person. As well, the judge can decide whether there ought to be any continued detention. If there is preventive arrest by the police, the provisions provide for the possibility of a 24-hour period of arrest or detention and then, as soon as feasible thereafter, taking the person before the court. That hasn't changed through these proposals.
There is a provision for increased judicially ordered detention. Currently, there's a possibility of 48 hours of additional detention. This bill makes provision for a possible additional two 48-hour maximum periods.
The judge can determine whether there ought to be continued detention based on strict grounds: whether it's necessary to ensure the person's appearance or to protect the safety of the public or to maintain confidence in the administration of justice. For the possible two additional 48-hour periods that could be judicially ordered, there's an additional ground that the judge would have to consider. The Crown would have to submit whether the investigation in relation to the person detained has been carried out diligently and expeditiously.
Finally, in terms of safeguards, there continue to be annual reporting requirements, and the sunset clause put in place through the Combating Terrorism Act, 2013, still applies.
Senator Runciman: Yet this doesn't seem to quiet the critics when you go over this. I think it's the usual suspects who frequently complain about the government lessening judicial discretion. Here is a case where it's actually providing more discretion, and judges are very much involved in overseeing what occurs.
Senator Kenny: Mr. Davies, I'm delighted that you're here and to learn that you're in charge of the Passenger Protect Program. This is a raggedy program. Folks have been caught in this program and not been able to get off it. We're not talking about terrorists; we’re talking about average, everyday Canadian citizens. What steps have you taken to ensure that Canadians who don't belong on a no-fly list have access to getting off?
Mr. Davies: I think you're confusing this program perhaps with another program.
Senator Kenny: Probably.
Mr. Davies: I can tell you that every 30 days, representatives from the national security community meet and we agree on the entire list. We go through it and put people on and take people off. Then the minister's delegate signs off on that list.
Perhaps you're referring to other problems and inconveniences that people have at airports that have nothing to do with the Passenger Protect Program.
Senator Kenny: Well, okay. I have two sons. One is a Crown in Toronto who's prosecuting a murder case today. He has been on the list for a number of years. Son number 3 is also on a list. Every time they go to check in, the flight attendant ends up calling the number you're referring to. They hang around while somebody at the other end figures out that they're not the guys they're after.
I've spent time on this. I'm not just raising it because it's my kids. The fact that it's my kids means I have a much more personal understanding of just how inconvenient it is for Canadians who get caught in this system. If it's not your list, what other lists are there that would cause people to be denied boarding until you check with the Department of Transport?
Mr. Davies: There are a whole lot of reasons. Airlines have their own concerns. Other countries have their programs. I can tell you that the problems you're talking about have nothing to do with the Passenger Protect Program.
Senator Kenny: Well, that's not what Mr. Baird said when we raised it with him.
Mr. Davies: For example, if someone at the gate was stopped because of the Passenger Protect Program, they would be handed a sheet that explains exactly what is going on, that because of the Passenger Protect Program, they will not be allowed to board the flight and they’re given the number for the Office of Reconsideration linked to the program.
Senator Kenny: It never happens.
Mr. Davies: It does if they are stopped under the Passenger Protect Program.
Senator Kenny: It never happens with the examples that come to my attention.
Mr. Davies: That's because they weren't part of the Passenger Protect Program.
Senator Kenny: I wish that was the case, but Air Canada says it's not them.
Mr. Davies: Again, it's not the Government of Canada's aviation security program known as the Passenger Protect Program.
The Chair: Could I just follow up on that, senator, just to get a clarification?
You say that names are added to the list and names are taken away from the list.
Mr. Davies: Yes.
The Chair: Can you give us an indication, say, in the last three years an annual accounting of how many names have been removed from the list and how many names have been added to the list? Not that we want to know anybody's privacy, but it would give an idea of the exact volume we're dealing with in respect of this particular program.
Mr. Davies: I cannot say for security reasons. We don't like to refer indirectly or directly to the size of the list and what's happening to the overall volume.
Senator Kenny: For what it's worth, chair, this is the same list that Senator Kennedy was on. A whole number of people have been on these lists, and clearly they are government-generated lists.
The Chair: To clarify, because we're not going to belabour this, who makes the policy decision that you're not going to release these numbers? Who actually makes that policy decision?
Mr. Davies: Well, the department made the policy decision —
The Chair: The department or the minister?
Mr. Davies: Well, right now the Information Commissioner has a complaint on this issue, so we're in front of the Federal Court on this issue over the summer.
The Chair: You didn't answer my question. Who actually makes the decision that you're not going to release the numbers on an annual basis? Is it the minister's policy or is it the department's policy?
Mr. Davies: Well, it's the department, but we work for the minister. Obviously, the minister would have a —
The Chair: So the minister could change that policy.
Mr. Davies: If he or she wanted to, yes.
Senator Runciman: To the CBSA, how does C-51 impact the front-line operations?
Mr. Ossowski: CBSA will be testifying in your next session.
Senator Runciman: We will deal with them on that.
That's the question I had ready, Mr. Chair.
Senator Jaffer: I want to go back to preventive detention and the investigative process. I understand one process has not been used. Is it preventive detention or the investigative process?
Mr. Breithaupt: I focused my remarks on the recognizance with conditions. That has not been used to date.
In terms of preventive arrest, the conditions remain essentially the same as before. It would apply where the grounds for laying an information exist, but by reason of exigent circumstances — for example, it would be impractical to lay an information under the subsection or an information has been laid and summons issued, and in both cases the peace officer suspects, on reasonable grounds, that the detention of the person in custody is currently necessary, but through these amendments, likely, in order to prevent a terrorist activity.
Senator Jaffer: I will ask you again: The investigative process has been used but preventative detention has never been used. Is that correct?
Mr. Breithaupt: The investigative hearing was invoked, but never, in fact, carried out. Recognizance with conditions has never been used.
Senator Jaffer: I had one more question to do with defining who is a terrorist. I'd like to hear from you. These are not convicted people. They are identified as terrorists? Can you clarify that please?
Mr. Ossowski: In terms of the definition under the CSIS Act?
Senator Jaffer: This would be who would not be allowed to fly or who you keep an eye on.
Mr. Ossowski: With respect to the secure air travel act in terms of who is a terrorist? In terms of the definition that's currently in the act, I think we have already gone through that, but in terms of the actual definition, John, if you want to add to that.
Mr. Davies: To be listed under the Passenger Protect Program there would have to be reasonable grounds to suspect that you are a threat to transportation security. No boarding would be reasonable grounds to suspect that you were an imminent threat to aviation. Under the new program, it would be the threat to transportation and security or travelling for the purpose of terrorism and a number of the provisions that are copied from the Criminal Code under terrorism offences.
The Chair: I would like to follow up on the question of disruption. That has been of concern to the general public, just exactly where would it would be utilized and how it would be utilized? There are concerns domestically that it may well be abused. How do you answer those questions to those organizations who are taking it upon themselves to have peaceful assembly and demonstrations and that that particular section would not be utilized for that type of activity?
Mr. Ossowski: Thank you for the question. The definition under the CSIS Act, as John explained earlier, is not changing.
With respect to the safeguards in place, first of all, if it does engage the individual's Charter rights, a judicial process will be undertaken to get a warrant to authorize that, as John explained earlier.
In case of threat disruption, the minister will provide ministerial direction on this. The act also specifies things that are specifically prohibited for the service to undertake as they do those disruption activities.
Then of course there's the review by SIRC and the other review bodies.
The Chair: I want to follow up in one other area and that's the question of disruption. Once again concern has been expressed that, yes, there are safeguards in the system between the court and the minister. But at the end of the day, when the warrant is issued, we may not know what the conclusion of that particular activity was, that the warrant was applied for. There is a school of thought that there should be a requirement that they report back to the judge in one manner or another. Why wasn't that included in the legislation?
Mr. Ossowski: Thank you for the question. The judge has discretion to ask for that information to come back to him. In addition, the act specifies that SIRC will be doing an annual review of all the threat disruption activities. There will be a meta review, if you will, in terms of all threat disruption activities on an annual basis.
Ms. Clairmont: And public reporting.
The Chair: Maybe the general public doesn't realize that it is implicit that the judge can ask for that.
Was any consideration given to require CSIS, upon the application of a request for a warrant, that they also outline within that request how they're going to report back to both the court and to SIRC so that we're ensured that the loop is fully connected at the end of the day when the activity is completed? Was any consideration given to that?
Mr. Ossowski: John, was that ever considered?
Mr. Davies: It was considered, but at the end of the day, as has already been said, it is expected that the judge will already ask some for reporting. Certainly if any warrants are being renewed, that's also implicit in new affidavits, that there's reporting on the success of those previous techniques or measures. As well, SIRC can look at anything at any time.
The Chair: I understand that.
Let's go back in the history of the current system, the way it is right now, when warrants are issued. Is it the normal course of events for the judge to request a report at the end of the activity that's been requested for a warrant? Does it happen 50 per cent of the time, a hundred per cent of the time?
Mr. Davies: I don't have the percentages. I don't know if that would be even possible to calculate, but I would say it happens very often. I would expect it would be very often, especially in the early days of these new powers.
Senator Runciman: I have a question regarding the terrorism propaganda takedown provision. It is not clear how broadly this applies. Does that include all Internet-based communications, including social media, and is it also restricted to just websites in Canada or beyond?
Mr. Piragoff: It includes any type of media, physical or electronic, in Canada. For things outside Canada, our law doesn't apply.
Usually, for example, in the child pornography area, even though our laws do not apply outside the country, if the ISPs are made aware of the situation, they often volunteer themselves. We’re hoping with this new law that ISPs themselves, where they are aware that there are outside sources of information, that they will deny access to their customers, just like they do with child pornography.
Senator Runciman: Can you talk about the burden of proof here as well?
Mr. Piragoff: For the takedown?
Senator Runciman: Right.
Mr. Piragoff: A judge has to be satisfied on a balance of probabilities that the material is terrorist propaganda. I know there's been some criticism that this is a secret hearing. It is not a secret hearing. In fact, it is really called “notice and takedown.” You are supposed to give notice to the person. You give notice to the ISP, but you also give notice to the person who posted it, if the person is known. It is courtroom proceeding. It is not in camera. The person can attend to defend him or herself as to why the material is not propaganda or the ISP can do that as well. But the law makes it clear that if they can't find the individual who posted, the court can go ahead and still order that it be taken down.
Senator Runciman: It is frustrating that these messages aren't getting out to the broader public.
Mr. Piragoff: As Mr. Davies said with respect to judicial discretion, if the judge wished to appoint an amicus curiae, a lawyer who is a friend of court, it is already within the court's power to appoint someone to argue the other side of the case if there's only one party before the judge. That's possible under the current law.
Senator Moore: Thank you to the witnesses for being here.
One of the main criticisms of this bill is the lack of oversight. That's been heard everywhere, in all media and from the public, all the people in the streets; they don't like this because there's no oversight.
But we have an answer. In the Senate we have a bill, S-220. Are you familiar with that? It provides oversight of the intelligence security establishment of Canada by establishing a parliamentarian committee. How do you feel about that?
Mr. Ossowski: Well, I believe that the current regime that CSIS has with SIRC is working well. I think it has been in place for 30 years. I think with the addition of the judicial regime where they have to apply for warrants if they're butting up against Charter rights, it works well. Judges have discretion to say no if they feel that it is not reasonable.
I think that the Privacy Commissioner and the Auditor General look at these activities and there is a good track record.
The trade-off is the independent arm's-length relationship that SIRC has. They come before a parliamentary committee; they provide annual reports. It is working well.
Senator Moore: So you would not be in favour of parliamentarians having oversight?
Mr. Ossowski: My personal view is that it could be complicated. Having an independent agency that is experienced, that has the relationships and understands the risks and where to focus their attention has proven to be very valuable over the years.
Senator Moore: Everybody has to start somewhere. You are talking about a parliamentary group of people who would know the file and be informed. It wouldn't be a bunch of school kids doing it.
The Chair: We have gone over time. I want to thank our witnesses for their patience. I appreciate your coming before us and giving your advice. Once again, thank you for attending.
Joining us on our second panel of the day, from Foreign Affairs, Trade and Development Canada, are Béatrice Maillé, Director General, Consular Policy; and Mark Glauser, Acting Director General, International Security and Intelligence.
From the Canada Border Services Agency we have Ms. Caroline Weber, Vice-President, Corporate Affairs Branch; and Mr. Geoff Leckey, Director General, Enforcement and Intelligence Operations.
I understand each of you may have an opening statement.
Mark Glauser, Acting Director General, International Security and Intelligence, Foreign Affairs, Trade and Development Canada: Mr. Chair, honourable senators, I would like to thank you for inviting the Department of Foreign Affairs, Trade and Development to speak to you today about the security of Canada information sharing act. I am the acting director general of international security intelligence, and you have already introduced my colleague.
A bit of context may help to understand the department's perspective on the act. As you are aware, this comes at a time when Canada is facing a wide range of threats to national and international security. We see those threats in many regions. We are particularly concerned about terrorism and proliferation of weapons of mass destruction. For example, Canada is gravely concerned about the threat to international peace and security posed by the so-called Islamic State of Iraq and the Levant, ISIL, and is participating in the coalition against this terrorist organization.
We remain concerned about other terrorist groups as well, in the Middle East and beyond. We are cooperating closely with many like-minded partners internationally to address the threat posed by terrorists and foreign fighters.
We are also concerned about the ongoing instability in Syria. One aspect of this is the Syrian chemical weapons program. We were pleased to work with our international partners to facilitate the removal of chemical warfare agents and precursors from Syria, and their destruction under the auspices of the Chemical Weapons Convention.
Beyond Syria, we continue to work with international partners to enhance measures aimed at controlling the export of materials related to the manufacture of chemical weapons and other kinds of weapons of mass destruction.
These examples highlight the work that the government is doing internationally to address threats to national and international security. Our international efforts are complemented by our work with partners within the government to advance Canada's national and international security objectives.
This act is designed to help the government improve how it deals internally with national security issues by improving national security information sharing domestically. The security of Canada information sharing act aims to ensure that the information relevant to national security is shared both effectively and responsibly.
Some federal departments and agencies share information for national security purposes every day. Consistent with our obligations under the Charter and the Privacy Act, the department is already able to share information that may be of national security interest with other Canadian government agencies and departments. We have established practices and arrangements to guide this sharing of information.
However, there are information-sharing issues that the security of Canada information sharing act will address for the department. One clear example is the Chemical Weapons Convention Implementation Act. That act establishes the legal parameters for sharing information collected under its authority.
The Canadian national authority at DFATD is mandated to implement the Chemical Weapons Convention Implementation Act. It gathers information pertaining to the production, processing, consumption, import and export of certain chemicals and related facilities.
This is important information from a national security perspective. Currently, information collected under the authority of the Chemical Weapons Convention Implementation Act can be shared with the Organisation for the Prohibition of Chemical Weapons, resident in The Hague, and for purposes related to the Chemical Weapons Convention. It can also be shared in the event of an emergency involving public safety or for the purposes of enforcement of the act. However, the department currently cannot share this information with other Government of Canada institutions for national security purposes because of limitations in the act.
The new act being discussed today would amend the Chemical Weapons Convention Implementation Act to permit DFATD to share such information where appropriate.
To be clear, from my department's perspective, the security of Canada information sharing act does not alter what information is collected by the department or how that information is collected. It also has no bearing on how the department shares information internationally. The act only deals with how information related to national security concerns is shared domestically.
The act would provide some other departments and agencies with a clear authority to request from DFATD information relevant to national security. This could include key information related to consular affairs and clearly identified as being relevant to national security.
These requests would continue to be considered using processes that the department has developed over the past several years to facilitate the sharing of consular information when issues of national security are at stake.
To be clear, processes and caveats are in place to ensure that only information that is relevant, reliable and accurate is shared, as a result of a specific request supported by a clear national security rationale.
The request must also be compliant with the legal parameters, including the Charter and the Privacy Act. The Government of Canada takes the sharing of information seriously. All sharing in this area is done in close consultation with our legal services.
One final area that I would like to highlight is the security of our missions around the world. The safety of our staff is of the utmost importance. Information relevant to the security of our missions can come from a variety of sources and through many different channels. Some information comes through formal established relationships within the federal government, but this is not always the case.
The act would ensure clarity for other departments and agencies that they have the authority to share with the department any information that might bear on the safety of our staff or the security of our missions.
In summary, the act would create possibilities for sharing information relevant to national security. It would not create an obligation to share specific information.
As I have explained, the department already shares national security information domestically. However, the department would benefit from the authorities provided in this act. It would allow the government to better address key national and international security interests related to terrorism and preventing the proliferation of weapons of mass destruction.
The Chair: Thank you.
Geoff Leckey, Director General, Enforcement and Intelligence Operations, Canada Border Services Agency: Good afternoon, Mr. Chair and honourable senators. We would like to thank the committee for affording us this opportunity to discuss how the changes being proposed by Bill C-51 impact on the Canada Border Services Agency and why the bill is important to the agency as a national security partner.
Let's consider the global risk environment. The CBSA was created in 2003, and it was given the responsibility for providing integrated border services across the full spectrum of border activities.
Mr. Chair, the CBSA must constantly evolve and adapt to keep pace with the global risk environment in which we operate. Over the past several years, this has included a different conceptualization of the border, namely, as a corridor where decisions are sequenced and made before people and goods arrive and not simply as the geographical boundaries of our country.
[Translation]
Therefore, modern border management is not limited to a physical presence at ports of entry across the country, but is necessarily dependent on working within a broader community. Information exchange is necessary in order to assess risks and protect the country.
What are CBSA’s current information sharing authorities? Information relevant to national security threats can often be found in different forms and places across the government, and must be pieced together to form a coherent picture so that appropriate action can be taken.
The ability to put this picture together when operating in the national security context is critical, and currently those requiring the information are dependent on the disclosure requirements of a number of different acts of Parliament.
[English]
With a few minor exceptions, the CBSA can now only share its information pursuant to the Customs Act or the Privacy Act. In the national security context, the CBSA can currently share customs information explicitly for national security purposes, under Customs Act paragraph 107(4)(h), to “any entity that has lawful authority to collect and use this information.”
Under the current information sharing framework, the recipient organization must have a national security mandate and information is provided upon request.
Paragraph 107(4)(h) of the Customs Act also authorizes the agency to disclose national security-related customs information to non-federal government entities, such as municipal, provincial or foreign entities or international bodies, as long as the entity has a lawful authority to collect and use this information.
With respect to non-customs information, such as immigration-related information, there is no similar provision under the Privacy Act that allows for the sharing of this information for national security purposes. Without the security of Canada information sharing act, or SCISA, no specific provisions to share non-customs information for these purposes exist. So what are the benefits of SCISA?
[Translation]
The proposed Security of Canada Information Sharing Act, or SCISA, contained within Bill C-51 is a tool that would allow the agency and other federal partners to share information essential to collectively respond when faced with threats to Canada. It would also allow for government-wide consistent practices on interdepartmental information sharing for national security purposes.
Under the act, while any Government of Canada institutions may disclose information related to the national security of Canada, only certain, specified government departments with a national security mandate are eligible to receive the information.
[English]
The mandate of the CBSA, as set out in section 5(1) of the CBSA Act, states that the CBSA will support national security by “providing integrated border services.” Therefore, the agency could be eligible to be a receiver of information but would be required to demonstrate how the information collected under SCISA correlates to its border responsibilities.
Like all federal partners, the CBSA would be bound by lawful restrictions in SCISA and existing information-sharing laws to which we currently must adhere to govern the further sharing of information under the act.
What does SCISA do for the CBSA? As a contributing organization, the SCISA would provide the agency with two new authorities: one, an additional authority to share customs information and, two, to allow sharing of non-customs information.
SCISA contains an amendment to section 107(5)(j) of the Customs Act to allow the CBSA to share customs information with Citizenship and Immigration Canada “for the purposes of administering or enforcing the law of Canada respecting passports or other travel documents.” Currently, there is no provision in the Customs Act to allow such disclosures. This amendment would allow the CBSA to provide, for example, information such as an individual's travel history to CIC for passport purposes.
The second amendment with respect to the sharing of non-customs information would allow the CBSA and Citizenship and Immigration Canada to overcome difficulties in sharing information collected pursuant to the Immigration and Refugee Protection Act, IRPA, for broader national security purposes.
[Translation]
When taken together, the SCISA provides a framework that would facilitate the sharing of relevant national security information across the federal government, addressing systemic barriers and reducing intelligence gaps, which would allow for access to critical information to detect and act when there is a perceived risk.
Now, I’d like to talk about the Secure Air Travel Act contained in Bill C-51. As the committee has heard from the Minister of Public Safety, Bill C-51 also seeks to amend the Secure Air Travel Act to provide the Passenger Protect Program, or PPP, with a mandate to identify, list and mitigate threats from those who are suspected of posing a threat to transportation security, and those who are attempting to travel abroad to support terrorism-related activities.
[English]
What this means for the agency is that it would be able to receive information pertinent to the no-fly list, alongside Transport Canada, Citizenship and Immigration Canada, the RCMP, CSIS and others as prescribed, and disclose information to the same partners.
The CBSA would also be authorized to disclose information it has obtained from air carriers' reservation systems and confirm to air carriers that there is a passenger name match with a name on the no-fly list. Only the Minister of Public Safety may disclose this information internationally, pursuant to a written agreement. As such, Public Safety would be the disclosing federal department, unless otherwise delegated by the minister.
I would like to say a word about privacy implications.
[Translation]
The CBSA understands that these changes bring concerns over privacy, and it takes those concerns seriously. The CBSA’s information sharing practices occur in the context of laws, regulations and policies. Review mechanisms exist for all disclosure activities under the current legal regime to ensure that a person’s reasonable expectation of privacy is not breached.
[English]
Reviews may be external, such as by the Privacy Commissioner, the Auditor General and the courts, and internal, such as by our internal existing audit, appeals and complaints mechanisms.
This concludes our opening statement and we would be pleased to answer any questions that you or committee members may have.
The Chair: Thank you for a very complete presentation, Mr. Leckey.
It's just after 3:00. The bells are ringing for a vote at 3:29, so I would recommend that we open the floor for questions until 3:10. That should give us enough time to go over to the Senate for the purposes of the vote. We'll suspend for that period of time and then come back to complete the panel.
Senator White: Is there any chance we could just pair up and stay instead of going?
Senator Mitchell: What's being voted on?
Senator White: It's a private member's bill. We could pair up and continue on, right?
Senator Mitchell: I'm good with that.
Senator White: It's up to you, Mr. Chair.
Senator Moore: What is the bill?
The Chair: Bill C-479.
Senator Moore: I know, but what is the substance?
Cathy Piccinin, Clerk of the Committee: I can read it out if you like. It's third reading of Bill C-479, An Act to amend the Corrections and Conditional Release Act (fairness for victims).
Senator White: It's a private member's bill. We can pair up. I don't know how the chair and deputy chair feel about that.
Senator Mitchell: I don't see that that would be a problem, pairing up. I would rather just stay and finish.
Senator Day: My guess is that the whips wouldn't be happy with that.
The Chair: I think that we should suspend at 3:10. I'm going to start with Senator Mitchell, if you would.
Senator Mitchell: We can stay because we're not whipped, because we're independent Liberal senators. We'll keep you busy.
The Chair: That's not what your colleague Senator Day said.
Senator Mitchell: He's old school in a good way.
It's interesting to me that CSIS has SIRC review and that CSEC has a commissioner. They also have all the other review mechanisms that you've mentioned and that were mentioned by witnesses previously. So is it that your information isn't as important as CSIS's to be reviewed by SIRC? And why would it be that you wouldn't be subject to some kind of a super SIRC review?
Caroline Weber, Vice-President, Corporate Affairs Branch, Canada Border Services Agency: Thank you for the question. I'm responsible for the recourse function at CBSA, so I'm going to be responding.
To start, the way we think about the world of review and oversight is that certainly all agents of Parliament have access to us: the Auditor General, the Privacy Commissioner, the Information Commissioner, et cetera. We both report to them and they have a complaints function there as well.
The RCMP comes in to investigate us if there's an issue. We have the usual reporting requirements to Parliament, because unlike some of the organizations that you've mentioned, we are in Schedule IV, so we are part of the core public administration. We have a very different administrative configuration than the other organizations.
Then there are appeals to the courts. I know that's always viewed as a heavy exercise. There are tribunals as well. There's access to tribunals, whether it's the Human Rights Commission or the Agricultural Review Tribunal.
Lastly, internally, there's always the opportunity to appeal to the minister, and we also have internal review mechanisms such as professional standards review and internal audit.
Then there's a legislated recourse and appeals mechanism. Within the Customs Act, within the Proceeds of Crime, Money Laundering and Terrorist Financing Act, the Agriculture and Agri-Food Administrative Monetary Penalties Act and the Special Import Measures Act, there are requirements to provide a recourse mechanism. So it's actually fairly well-defined in terms of time periods, how one goes about it, their regulations as well.
We have about 100 people in CBSA that respond to these kinds of appeals through these legislated means, and they're required. Currently, we need to deliver that kind of service in that way.
Also recognizing that people may want to have another kind of complaints mechanism, we've put in place an informal complaints mechanism. Again, it's internal, but we do have it centralized in the Corporate Affairs Branch so that we take it out of operations and keep track of where the complaints are coming from, how they're being replied to, et cetera.
I have statistics on this, if you would like to see some of them, because we do review this on a quarterly basis.
Senator Mitchell: Yes, we would like to see that.
The Chair: Can you table the statistics?
Ms. Weber: I don't have them with me, but if there's interest in that —
The Chair: You'll table them with the clerk?
Ms. Weber: Absolutely.
The Chair: Thank you.
Senator Mitchell: For DFATD, when you share information with another group, first, do you share it with other Five Eyes organizations, other countries? Second, no matter who you share it with, what control do you have over it once you've shared it? I'm thinking of the Arar case.
Mr. Glauser: Thank you for the question. In this context, I think the information that people are most focused on is the personal information of Canadians that comes to the department through exercising the consular function, and my colleague can speak to that directly.
The sharing of consular information in this context that already takes place between the department and the service, for example, is governed by the elements that I was discussing earlier. The Office of the Privacy Commissioner has the ability to audit the departments' sharing of this information in that context.
The caveats that I referred to are important in this context. The information provided by the department to the service or to the RCMP, for example, is internal to the government and not for onward sharing with anyone else without the expressed agreement of the director general of consular operations, which my colleague can speak to in more detail.
The Chair: Colleagues, I'm going to have to interrupt. We will suspend. I am making the assumption the officials will be here when we return. Please take as brief a break as possible.
We're suspended until the call of the chair.
(The committee suspended.)
——————
(The committee resumed.)
The Chair: Colleagues, I would like to recommend that we go with the panel for the next ten minutes because of the interruption we've had and knowing that we can call the witnesses if there's a need to return in respect of deliberations on the bill.
I’d like to start with Senator Moore.
Senator Moore: My first question is for Mr. Glauser. At the time that Edward Snowden made his revelations, we learned that the U.S. is monitoring Canada and other countries in cyberspace. Did you know that? Did you have any knowledge of what was going on there, as you talked about your international security intelligence?
Mr. Glauser: The Five Eyes, obviously the other agencies — the Government of Canada works closely with their allies. Some of the unauthorized disclosures of Mr. Snowden —
Senator Moore: Thank God he did it.
The Chair: Senator Moore, please let the witness respond.
Senator Moore: Sure.
Mr. Glauser: — have put some of that classified information into the public realm. Those parts of the Government of Canada working with their counterparts in the Five Eyes governments were obviously aware of some of the things that have been put out into the public realm. I wouldn't want to comment in any detail on the Department of Foreign Affairs, Trade and Development in this context.
Senator Moore: It points to the need for oversight.
My next question, chair, is with regard to CBSA.
I heard your comments, Ms. Weber. Your agency has quite an impact on Canadians and our visitors. There's no oversight to speak of. It's all internal. It's like having me mark my own exams. You've lost people in jails and they've died. We only found out about it after the fact when the media dug it out of the coroners’ reports. I have a bill before the Senate requiring oversight of your agency. How do you feel about that?
Ms. Weber: Thank you for the question. It's not for us to decide. That's an issue to be decided by elected officials. We are truly loyal public servants and we adhere to the laws. We follow the frameworks that we're given to follow by elected officials.
Senator Moore: Are you saying parliamentarians? Are you including the Senate in that?
The Chair: Point of order.
Senator Runciman: Mr. Chair, with respect to Senator Moore, that is an inappropriate question for a public official. They would be expressing a personal opinion. They are here to offer their views and expertise with respect to the legislation before us.
Senator Moore: That gives it oversight. Come on.
The Chair: Colleagues, Senator Moore.
Senator Runciman: You're asking for personal views.
Senator Moore: They're working for us.
The Chair: It is a valid point of order.
In view of the time — it's quarter to four — and we had that interruption, I'm going to call upon the next panel of witnesses.
Thank you for coming. I'm sure we'll call upon you again.
Joining us on our final panel are Professor Kent Roach via video conference, Professor Craig Forcese, Professor Christian Leuprecht, and Mr. Joe Fogarty, former security intelligence liaison between Canada and the U.K.
Gentlemen, welcome to the committee. I understand you have opening comments.
Once again, thank you very much for being here. We've certainly appreciated your efforts, and especially Mr. Forcese, and all the work and time that you spent on this bill in the other place. It doesn't go unnoticed by any of the members of this particular committee.
Kent Roach, Professor, Prichard-Wilson Chair in Law and Public Policy, Faculty of Law, University of Toronto, as an individual: Honourable senators, thank you for allowing us to appear before you again. As you well know, Bill C-51 is a complex omnibus bill that adds two new security laws and amends 15 existing laws, most notably the Criminal Code and the CSIS Act.
Professor Forcese and I have published to antiterrorlaw.ca both extensive commentary and a long table proposing many carefully considered amendments to the bill. We will not have time to go into all of them today, but we would obviously welcome any questions.
In the Commons, the government has made a few amendments, but they do not alleviate our concerns that the bill will have major implications for rights and unintended but harmful effects for security, particularly criminal investigation and terrorism prosecution. The bill still ignores or contravenes major parts of the 2006 Arar commission recommendations, the 2010 recommendations of the Air India commission, and the 2011 recommendations of the special senate committee chaired by Senator Segal. The bill's radical rejection of the evidence compiled by these commissions in large part explains the persistence of our critique of this bill.
Bill C-51, combined with Bill C-44, drastically changes Canada's security laws. It will transform CSIS from a pure intelligence agency into one that can take both warranted and unwarranted actions to reduce threats to the security of Canada. We fear that it may have the unintended effects of making prosecutions, including prosecutions under the four new terrorist fighter offences that Parliament wisely added to the Criminal Code in 2013, more difficult. In short, we have concerns that Bill C-51 will threaten rights and freedoms without making us safer.
The Senate, as the chamber of sober second thought, is the last chance to change this bill. Because of the unanticipated effects of the bill, as well as the dynamic threat environment, we would urge the Senate to require a three-year parliamentary review of this complex bill, a review that should have access to secret information that will be relevant to understanding the effects of this bill. Just in this session, this committee has asked for information about how many people are on the Passenger Protect list, and you have not received that information. It underlines the need to have access to that secret information.
We would also add that this review will only be meaningful if the entire bill, not just its preventive arrest provisions, is subject to a four-year sunset clause.
Moving on to the information sharing act, Part 1 of the bill recognizes, as indeed the Arar and all commissions did, the need for information sharing, but it goes well beyond the legitimate concern of terrorism by introducing the novel concept of activities that undermine the security of Canada. This is quite simply the broadest definition of national security interests that Professor Forcese and I have ever seen.
We welcome the exemption of all forms of protest, not just as originally proposed lawful protests only. Nevertheless, the government has still not adequately explained why such a broad definition of security is necessary and why existing definitions of threats to the security of Canada in the CSIS Act cannot be used.
This sort of broad information sharing and compilation of big data files must at least be matched by commensurate independent review as the Arar commission recommended. There is no judicial review of information sharing in Part 1, and as the Privacy Commissioner has indicated, there is no review of 14 of the 17 recipient departments. There is only stovepipe or siloed review for the other three, and as recently as last year, in a special report to Parliament on January 28 entitled Checks and Controls, the Privacy Commissioner expressed concerns that it did not have adequate review powers in the security field.
We also note that the new information sharing act does not include the Air India commission's recommendation for mandatory information sharing subject to enhanced oversight by the Prime Minister's National Security Advisor. We note that a Senate committee chaired by Senator Segal echoed this recommendation in 2011.
There is judicial review of the no-fly list but no provision for special advocates. The IRPA amendments also make it more difficult for special advocates to perform their constitutionally required role. This bill is characterized by complacency about the adequacy of Canada's existing review mechanisms and a sense that adversarial or independent review should somehow be seen as the enemy of security and the enemy of the people who do dedicated work in our security forces. We reject that. We all do better work with someone reviewing it.
Finally, I would like to talk a little bit about the speech crime, the proposed advocacy or promotion of terrorism offences in general. Despite Minister MacKay's appearance before this bill and the two-page notes that he tabled before this committee, we maintain that this offence is still overbroad and still violates freedom of expression.
The Minister of Justice has correctly noted in his testimony that advocating genocide has no defences, but genocide involves mass violence, while “terrorism offences in general,” which is the term used in this proposed offence, could include financing of the non-violent activities of a listed terrorist group.
The minister defends the knowledge requirement in this new offence with reference to the Hamilton judgment on counselling, but in the same breath, the minister says that this new offence is designed to be broader than counselling because that's why the existing counselling offences are, in his view, not adequate.
We still maintain that the higher wilful fault requirement and good faith defences that are found in the hate propaganda provisions, specifically in subsections 319(2) and 319(3) of the Criminal Code, are necessary. We also maintain that the existing instructing terrorist activity offence is a better tailored alternative.
The new offence will chill legitimate freedom of expression, and I would ask the senators to go no further than the last sentence in the first full paragraph in the report that the Minister of Justice tabled earlier this week before this committee. It talks about this offence targeting people, unspecified action that something bad should be done against Canadians or our allies or to do something to support extreme jihadism. That is staggeringly broad language of what will be targeted by this new offence. In our view, it will chill freedom of expression and may still impede our ability to work with those who hold radical views but who can be subject to legitimate de-radicalization through multidisciplinary intervention of the type contemplated in recent legislation in the U.K. The decision not to tie the offence to the established and constitutional concept of advocating terrorist activities opens up the possibility of prosecuting people who advocate sending money to a terrorist group or even to reporters who knowingly reprint a plea by another person urging people to join foreign terrorist fights while aware of the possibility that someone might do so as a result. So this offence either should be taken out of the bill or should have major reforms patterned after the hate propaganda provisions.
My colleague Professor Forcese will continue now with our joint submission.
Craig Forcese, Associate Professor, Faculty of Law (Common Law Section), University of Ottawa, as an individual: Thank you for giving me an opportunity to appear before you. I am happy to address, in questions, peace bonds and preventive detention, which we generally support, with provisos. I wish, however, to focus most of my comments on the very concerning CSIS Act amendments.
We begin by underscoring the security consequences of the new powers. We must all worry about the long-standing de-confliction difficulties between police and CSIS operations. We run a considerable risk that the new CSIS powers may end up overlapping, affecting and perhaps even tainting a subsequent police criminal investigation into terrorist activity. We worry whether our most successful anti-terror tool — criminal law — will be degraded by CSIS operations that muddy waters. Any veteran of the Air India matter must be preoccupied by this possibility.
We do not have time to raise other security implications of the sort that SIRC itself raised in 2009, when it reviewed CSIS's existing, much more banal, disruption practices.
But even if the government thinks that all the security downsides are worth the risk, we can meet the government's stated security objectives without opening the door so wide to possible mistakes by a covert agency. The government says it needs these powers so that CSIS can warn families that a child is radicalizing, something the service does already. But the bill reaches much, much further. There is a mismatch between government justifications and the actual text of the law.
We beseech you to amend the bill to remove any reference to the Charter being contravened by CSIS. The government persists in its novel legal theory that this is just a variation on what already happens. In Minister Blaney's words, when he appeared here on Monday, “nothing new under the sky.”
But this is more than new; it is radical. As the Canadian Bar Association points out, it is untenable. I wish to underscore, given Minister Blaney's comments, that the CBA is an accomplished 119-year-old organization representing 37,000 lawyers, judges, notaries, law teachers and law students. So let me be specific on the government's flawed legal logic.
The new proposed warrant power is very different from search and arrest warrants. Those warrants are tied to Charter rights that have qualifying language in the right itself. Section 8 of the Charter only guards against “unreasonable” searches and seizures. Section 9 only protects against “arbitrary” detentions. A search or an arrest warrant exactly satisfies this qualifying language, and therefore a government acting under such a warrant does not breach the Charter.
In comparison, most other Charter rights are not imbued with this built-in qualifying language. There is no concept of permissible free speech, or arbitrary cruel treatment, or appropriate mobility rights to enter or leave the country, or limited habeas corpus.
Such rights can only be trumped under section 1 of the Charter or if the government uses the section 33 notwithstanding clause, which it has not done in Bill C-51.
But we must underscore that section 1 issues simply aren't dealt with through the peculiar mechanism of a warrant in any other circumstance. Now for the first time judges are being asked to bless, in advance, a violation of any or all of the Charter rights, in a secret hearing, not subject to appeal and with only the government-side represented. What the government proposes is a “constitutional breach warrant.” It is a radical idea that contorts basic constitutional understandings and the role of the courts. It has correctly been compared to a stealth use of the notwithstanding clause in which judges, and not Parliament, are being asked to do the dirty work of abrogating rights.
On Monday, the minister repeatedly referred to section 25.1 of the Criminal Code as precedent. It is not. It does not authorize police officers to breach the Charter. It applies only to criminal investigations and not to the much vaster concept of security in the CSIS Act. More than this, section 25.1 has checks and balances absent from C-51. The police must publicly report when they break the law. They must, where the breach of the law is more than minor, also notify the target after the passage of a period of time.
The minister also suggested that the new CSIS powers simply replicate those deployed by allied agencies. We are not experts in foreign law. But we have now spoken to four law professors in the United Kingdom, two in Australia and several in the United States, some of whom have then subsequently spoken to security service personnel. I would also point to a report in Le Devoir on March 14. That story recorded the views of foreign embassy officials from governments, the minister says, that have C-51-style powers. The resulting responses do not bear out the Canadian government's claim that foreign services have the power to break domestic law or constitutions. Accordingly, I hope that this committee will ask the minister to produce his study, which would not be privileged by solicitor-client because it deals with foreign and not domestic law, detailing the basis for his claim. If made available to us, we would happily share with international colleagues for peer review.
In sum, the new CSIS powers amount to an unprecedented constitutional adventure with serious security downsides. With a simple line or two, this committee could eliminate the notion that our covert service will be violating the Charter. It could add new and reasonable limits on CSIS's powers, including, for instance, an emphatic bar on detention. We cannot risk a parallel system of detention by a covert agency able to act against people who have committed no crime.
But as the government itself acknowledged at in clause-by-clause consideration in the House of Commons, the limit on “law enforcement powers,” added at that time, does not close the door to detention. It also publicly acknowledged that the bill does not close the door even to rendition. Rendition, as you know, is a term used to describe a person being kidnapped from one jurisdiction and taken to another, sometimes for trial and sometimes, in past practice, for abusive interpretation. No country's laws should ever grant this much discretion to a covert service, especially a covert service that is presently subject to only modest review.
I will end with observations on SIRC and also on this legislative process.
Whatever the truth as to whether these new C-51 powers are constitutional or necessary, their introduction is breathtakingly irresponsible without a redoubled investment in our outmatched and outdated accountability system.
SIRC is no longer state-of-the-art. It is respected, certainly, but it is not, to paraphrase the minister, the envy of the world. Its constraints and design mean that it is capable of reviewing only a small aspect of CSIS's activities. We are only repeating concerns that SIRC itself has voiced. It has already told you that it is concerned about its ability to keep pace.
More than that, SIRC and other review bodies are unnecessarily hamstrung by legal limitations that prevent them from following the trail when government agencies collaborate, an increasingly common practice that C-51 will undoubtedly increase.
A few paragraphs of legislative language could create new powers of review bodies to collaborate as a stepping stone to a broader rethink of national security review.
And finally, I will hold out to you the precedent of the original enactment of the CSIS Act. On Monday, Minister Blaney seemed to suggest that the BC Civil Liberties Association and other groups raising concerns in 1983 about the original bill were, in the minister's words, “fear mongering“ and so were not credible on this bill. He misunderstands history. The first CSIS bill was introduced in 1983. It ignited stern concerns from civil liberties groups, including the concerns cited by the Minister from the BCCLA.
But the government in 1983 listened to many of these concerns. It let the 1983 CSIS bill die on the Order Paper because of these concerns. Instead, your predecessors established a special Senate committee. It worked through the summer, hearing many witnesses and making recommendations to create, in the Senate committee's words, “a more appropriate balance between collective and individual security.” Among those changes were stronger warrant provisions and wider powers of review for SIRC. Almost all of the Senate changes, more than 40, were accepted by the government, which then tabled a new improved bill. That bill became the CSIS Act, which has endured for 30 years.
We owe those who improved the flawed 1983 bill a debt of gratitude. If we were capable of such deliberations then, surely we are no less able now.
We thank you for your interest and for your work.
The Chair: Thank you.
Christian Leuprecht, Associate Professor, Department of Political Science and Economics, Royal Military College of Canada, as an individual: Security is like the air we breathe; you don't realize that it's gone until it is too late. We have already spoken at this committee about the challenge of the general public understanding national security policy because they don't have a lot of exposure to it.
[Translation]
I have also observed a certain hypocrisy on the part of the bill’s critics, given that they don’t realize the level of professionalism and accountability that our security forces already demonstrate. Furthermore, a certain degree of naïveté exists among some of the general public as far as the current security environment is concerned.
[English]
There are two particular revolutions I want to draw the committee's attention to. One is the communications revolution. It is just so easy to communicate with anywhere else in the world and obtain that communication and information. The other is the transportation revolution that has made the world a much smaller place. As a result, in the past we have been able to put our head into the sand and pretend that all these instabilities are far away from us, but now these have arrived on our shores.
We struggle with that challenge. We work with institutions, with legal frameworks of sovereignty that date back to the Statute of Westminster in 1648. We work with institutions that were in many ways set up in the 19th century, trying to deal with movements that are 21st century transboundary and transborder movements.
How can we reconcile the institutional and sovereign framework that we have with the global challenges that we face? In that regard, we need to consider how much we are willing to spend in terms of the trade-offs involved, not just in terms of the public treasury involved but of the rights and freedoms involved.
On the one hand we celebrate the eight-hundredth anniversary of the Magna Carta this year. On the other hand, the preamble to section 91 reminds us that the government has a duty and jurisdiction over peace, order and good government for the country.
As we discussed in a previous appearance before this committee, my preference is always to make sure that our security agencies have the right tool kits, rather than simply putting more money in these particular agencies. I think currently we have a challenge with regard to not having a sufficiently nuanced tool kit to come to grips with some of the challenges that we face, whether that's youth leaving the country to join extremist organizations or being manipulated by them to leave the country, whether it is lives lost, as we had in October because the RCMP was unable to get a peace bond on the individual, or individuals who are on the terrorism watch list and can board planes because they do not pose an immediate threat to aviation security. It could be individuals who can walk into our embassies abroad, in Beirut for instance, and request of a consular official to have emergency travel documents issued to them, despite having come in with a bullet hole through their shoulder, and that consular official not being able to communicate the concern to CSIS that that individual might be returning to Canada. There are good common sense reasons for making some of these changes.
We also need to protect individuals from themselves, in particular youth who are looking to travel abroad, and we clearly currently don't have enough to do that as the empirical evidence shows.
We also have international obligations not to export terrorism or inadvertently provide terrorism financing or material support. I would draw the committee's attention to the United Nations Security Council Resolutions 1373, 1624, 2178 and 2195, the latter two stemming from last year. Those are Security Council resolutions under Chapter VII and are thus legally binding on all member states.
These resolutions capture things such as preventing the radicalization leading to politically motivated violent extremism, prohibiting incitement of terrorist violence and recruitment for such purposes, disrupting financial support for terrorism and foreign terrorist fighters, and interdicting travel by foreign terrorist fighters.
The challenge we have here, which already came up in a previous discussion, is we can pass all the legislation that we want, if we don't actually have the skill sets and capabilities within certain dimensions of our national security framework to implement and administer these. I point here to a discussion we had 10 days ago, but also a discussion that we had two days ago in front of the House of Commons Finance Committee where I was asked to testify on terrorist financing along with Paul Kennedy. Paul Kennedy also reiterated the point that the RCMP is not set up to deal with the challenges of federal policing as we face it today. The RCMP is too distracted with contract policing, which consumes two thirds of the officers, and it is institutionally too autonomous with regard to the different regions. A significant revision with regard to the capabilities of our national federal police force and policing capabilities is necessary, not only to make sure that these provisions in the bill are administered, but that we forestall the pitfalls that my colleagues have just raised with regard to the administration of justice.
You are already familiar with my propositions of expanding the remit of SIRC to be able to follow intelligence once it is shared with other security agencies within the Government of Canada’s federal government infrastructure. I'm not proposing a super SIRC or a new remit with regard to SIRC, only to be able to follow that intelligence.
You are also familiar with my propositions of the U.K. system to clear some members of the opposition to be briefed by the Commissioner of CSE, as well as SIRC. That would reassure Canadians with regard to those who are asking whether their rights and freedoms have been violated.
I would also remind the committee, with regard to that review, that it isn't just about making sure that people do their job properly. It is also about helping them do their job better. CSIS will tell you that SIRC has made it a much better and more effective agency. In that regard, the security agencies that are not currently being reviewed, for instance CBSA but also the RCMP, which has very limited remit with regard to review, could stand the sort of peer review that SIRC offers.
How exactly is that implemented? We need to nuance the collection capabilities of CSIS and CSE that are different from the broader capabilities that Foreign Affairs, CBSA and the RCMP bring to bear, the remit of the 16 security agencies more broadly, and the separate mandate that the Department of National Defence has.
I don't think that one overarching architecture can capture all of these and we need a nuanced approach to review, but certainly there is a remit and possibility to do more with regard to the payoff of review.
Finally, I have two remarks in closing. We're not just making legislation for today; we're also making legislation for tomorrow. If or when we do have a major incident in this country, we don't want the Prime Minister having to run the security establishment with orders-in-council. We want to make sure we have robust legislation in place that can protect the continuity of the constitutional government in this country.
I would like to close on this remark: Let's remember that a terrorist only has to get lucky once. The people who are involved in counterterrorism have to get lucky every time.
The Chair: Thank you very much.
Joe Fogarty, as an individual: Thank you very much for the invitation to appear before the committee. I hope to keep my opening statement brief in order to allow as much time as possible for questions.
I am not a Canadian citizen but a citizen of the United Kingdom, a close ally of Canada and one that has a keen interest in helping to support Canadian public safety and national security whenever it can. It is in that spirit that I will be offering evidence today.
A few years ago, while I was posted here to Ottawa as liaison officer to the Canadian security intelligence community, I was asked if I would speak in private to a group of senior officers from the RCMP and CSIS. The question I was asked to address was why it appeared to be the case that the relationship between the police service and MI5 in the United Kingdom was so close, with such easy sharing of information and with such a consistently strong outcome in terms of arrests, prosecutions and convictions in national security cases.
At the time of that conversation, there had been approaching 30 terrorism-related arrests in Canada since 2001 and a small number of prosecutions were under way. In the same period in the U.K., there had been approaching 2,000 arrests and more prosecutions and convictions than I could remember — and those figures did not include Northern Ireland.
As a result of having had extensive experience in those operations, I was also asked if I could offer a view on what lessons, if any, Canada could draw from that experience. These lessons are directly relevant to Bill C-51.
A successful national security investigation will generally achieve three concurrent aims. First, it will identify threats to national security and to public safety; second, it will help to prevent them from materializing; and third and very importantly and often overlooked, it will do so while at the same time adding to or preserving the country's ability to tackle future threats with equal or greater effect.
In conducting these investigations and operations, it is also very important for them to be undertaken in a way that reflects the values of the society that they are seeking to protect. These operations should, therefore, contain actions that are proportionate to the threat, reasonably necessary, lawful, likely to be effective and likely to be efficient. If they are, then they can reasonably be considered to be ethical. If not, then they shouldn't be undertaken. Operational policy and national security legislation should ideally display these same qualities in order to provide the right framework within which the operational agencies can then undertake their activity in support of public safety and national security.
In discussion with that senior team of RCMP and CSIS officers, I offered the observation that a key difference at the time between the U.K. and Canadian operational systems was that CSIS and the RCMP had not been provided with a framework within which they could both share information extensively and also protect themselves from the disclosure of sensitive capability and relationships when encountering the criminal justice system. This had been the case since the creation of CSIS in 1984. It was apparent in the Air India investigation from 1985 onwards, apparent in numerous cases since then, most of which are not in the public domain, but which included subsequently the investigation of Jeffrey Delisle, the former Canadian naval officer who volunteered his services here to the Russians in Ottawa in 2007 and worked successfully for Russian intelligence undetected for a number of years.
As a result of the lack of a fully functioning framework for operational collaboration, I advised that the system could not be as effective in criminal justice terms as it should be. That framework could only reasonably be created by Parliament through legislation, as the U.K. Parliament had done very successfully in legislation enacted in 1996 to enable information both to be shared by national security teams with law enforcement and to be protected effectively from unnecessary disclosure. I will be very happy to describe that system in more detail for the committee during questions if you would find it helpful.
I felt that a significant complicating factor for Canada was that it had no parliamentary committee that could have classified discussions in camera about national security policy, operations and legislation. In the absence of that facility, and in the absence of parliamentarians having access to knowledge of what was actually happening in the covert operational sphere, the best that Parliament could do would be to legislate while remaining, at best, partially blind. It was no surprise to me, therefore, that Canada had so far not been able to solve the problem of the lack of information-sharing between CSIS and the RCMP.
Bill C-51, although very rightly highlighting the need to enable greater sharing of information, does not solve the fundamental problem in the information-sharing relationship between CSIS and the RCMP, nor does it demand action in that respect. A key factor in this, in my view, is that no one is able to tell Parliament what has actually been occurring in these investigations, nor can they explain to Parliament, without disclosing classified and sensitive material in public, the jeopardy being faced if Parliament fails to address these issues appropriately.
The Security Intelligence Review Committee, SIRC, with the very greatest of respect, has been unable to fill that gap despite an undoubted desire to fulfill its statutory role to the best of its ability. SIRC is itself unable to tell Parliament in a classified discussion what has actually been occurring in operational cases and with operational policy. It also has a limited remit, which does not enable it effectively to monitor operational activities that span organizational boundaries. The best that it can do, under present arrangements, is to present an unclassified annual summary of its activities that is insufficient to enable legislators properly to understand the key issues at hand.
I would be very happy to take questions on any or all of the above, and also on the question of the disruption powers being suggested for CSIS under Bill C-51.
Could I add one last thing, please, Mr. Chair? I haven't put this in my opening statement, but somebody with my background tends to be rather shy and retiring in public. I was invited to come here today, and I am very grateful for the opportunity to talk to you. Part of my next comment is for the media at the back of the room. Once I have given my evidence, I would be very grateful to leave and disappear off into the sunset, if that's okay.
The Chair: Sometimes we all feel that way.
Senator Mitchell: Thank you, all of you. It is excellent testimony. I should say to Professors Roach and Forcese that you are practically members of the committee now, you are here so often, so thanks a lot.
I'm very interested in oversight, and so I would probably, not to be provocative, disagree with Professor Leuprecht that there's enough of it.
I would like Mr. Fogarty, if you would, to elaborate on your comments about the need for parliamentary oversight and how it has worked in Britain. If Professors Forcese, Roach and Leuprecht would like to jump in on that, I would appreciate it as well.
Mr. Fogarty: This experience might not be unique, but it is probably quite rare. I have classified experience of the work of SIRC, and I have discussed a number of things with SIRC staff. I also have classified experience of the U.K.'s now parliamentary committee, the Intelligence and Security Committee. One of the key differences, in my view, is that the ability to engage with very experienced parliamentarians who have a variety of backgrounds — former foreign secretaries, the equivalent to a former Clerk of the Privy Council, et cetera — gives the operational agencies the ability to talk in-depth at a very highly classified level about what is really going on in the community and what is really necessary to solve operational problems.
With the greatest of respect to SIRC, that's pretty much an arm's-length conversation. It is very much more difficult for SIRC to then come back to Parliament and explain what has really been going on because even SIRC can't have the classified discussion in Parliament.
I'm no longer in my liaison officer function. If I had been, I would be talking about pros and cons of each system, et cetera, like a good liaison officer would. There is no doubt in my mind, absolutely no doubt whatsoever, that the ISC framework is distinctly superior to the SIRC framework and very much more effective in guiding the work of the agencies.
Can I say one last thing? It is sometimes overlooked. There's an issue of morale here as well. In the United Kingdom, the same as a number of other countries, you have a group of ordinary men or women working in these agencies who are putting their lives at risk regularly on behalf of their country. It is incredibly beneficial in morale terms when your country's Parliament, when you are seeking to defend your country's parliamentary democracy, has the extreme courtesy to invite you in to ask you in camera, in a classified conversation, to explain what is really happening and to be able to provide guidance to your work. It doesn't exist in Canada, and I think that's a real shame.
Mr. Leuprecht: Not to be misunderstood, I'm certainly in favour of more robust review. I have great concerns about oversight, especially if you talk about U.S. congressional-style oversight. I think what we understand by review and oversight might be perhaps two different things.
I'm also concerned that we're spending too much time focusing on issues with regard to CSIS and CSE, both of which are important because of their very particular mandate, but that we're not spending enough time thinking about those agencies that currently have virtually no review at all, such as CBSA. I think also people continually make reference with regard to Arar and in regard to the RCMP, but there's also a lot more that could be done for more adequate review of RCMP activities.
Senator Mitchell: That is a very powerful point. It is not just CBSA. It goes to DFATD and CIC. There are about 15 agencies now involved in intelligence. We have got SIRC, and we have got the CRCC over the RCMP, barely, after the fact, and we have very little else by way of ongoing review.
My next question would be a further clarification or to follow up on Mr. Fogarty's point. It is really interesting, but I'm not quite sure what you are trying to say. You said:
. . . as the U.K. Parliament had done very successfully in legislation enacted in 1996 to enable information both to be shared by national security teams and law enforcement and to be protected from unnecessary disclosure.
What you are saying is they could share it, and then they had mechanisms in place so it wouldn't get misused somewhere else, as in the Arar case. I think that's where Professors Forcese and Roach are going, to some extent. I don't want to put words in their mouth. So what is it that they're doing there?
Mr. Fogarty: It's an operational perspective, really. I'll try to be as brief as possible, succinct, because it's quite a complex piece of legislation. It's called the Criminal Procedure and Investigations Act, 1996.
The effect of this, from an operational perspective, is that it gives the agencies investigative certainty before they carry out their role. There are three pillars to it. I'm going to explain what they are and why they enable this.
The first pillar is that under that legislation all national security material is afforded third-party status in criminal proceedings as a matter of statute. That is hugely important for the national security team. It's a pillar that does not exist in Canada, and it hasn't been included in Bill C-51.
From an operational perspective, I would say it is crucially important as an operator to give your agencies that certainty. What that means is, for the national security team, it doesn't matter where that investigation goes. It doesn't matter what the national security team does. It knows from day one that, if there's a criminal case, it will have third-party status, which limits the disclosure of sensitive capability.
The second pillar, intimately associated with the first, is that for national security material, law enforcement, whether it be the police, customs or any other agency, not only makes no disclosure decisions about national security material, but it's not permitted to make disclosure decisions. That means, therefore, that the national security team needs no prior relationship of trust with law enforcement whatsoever in order to be able to talk extensively, all the time, about what's going on, where the threats to public safety are, who may require to be arrested, et cetera, safe in the knowledge that law enforcement can't make disclosure decisions without permission.
That leads, automatically, to a system of joint operation, not operation in parallel, as needs to be conducted in Canada because of disclosure consequences.
It is hugely powerful, and that, in itself, starts to account for why there now, I think, if you include Northern Ireland, have been more than 5,000 arrests since 2001, multiple prosecutions, because you have a very efficient system.
The third of these three pillars is that prior to a criminal proceeding in court, the entire national security holding is revealed to the prosecutor, and the prosecutor has a statutory obligation to go through that material. Anything in that material that undermines the prosecution case must be disclosed to the defence — quite rightly so — so that the defendant gets a fair trial. Anything in that material that tends to add to the defence case also must disclosed — quite rightly so — so that the defendant gets a fair trial.
There are two consequences of that. First, you get a very efficient criminal justice system because you don't have to have pretrial hearings, with the defence — quite rightly — having to go fish to see if there's material beyond this impenetrable wall, because they automatically get that material disclosed to them. The reason why that causes no difficulty at all to the security intelligence teams in the U.K. is because of the first two pillars. They've run joint operations with law enforcement already. Those operations are run very carefully, to an evidential standard, to make sure that nothing is happening that could undermine a future prosecution or add to a future defence case.
The results of all of that are that you can have multiple trials, and there is no need to disclose any sensitive capability because it isn't relevant to the trial. It's a wonderfully efficient system, and I'm not sure if, at the time, Parliament realized just how wonderfully efficient it is.
Those three pillars don't appear in Bill C-51. From an operational perspective, I would say that if you could possibly, by any manner of means, get them into this legislation, you will automatically significantly expand your national security capability as a country and your capability to protect the public.
At the minute — I said this privately before to CSIS and the RCMP and I said it at a CASIS conference in 2013 — with the greatest of regret, if you continue with the situation in which your security intelligence agency is reluctant, for very good reasons, to share with your law enforcement team, this is the equivalent of sitting on top of a tragedy waiting to happen.
I was asked this question a number of years ago, and I can't say who asked me the question. I was asked to have a look at which bits of the Canadian operational relationship I would incorporate into the U.K. because, as liaison officers, you were very acquisitive and looking for best practices all over the world. I said that with this particular regime, with the greatest of respect, I wouldn't incorporate a single aspect of it, at the minute, because it's dangerous.
Would you like me to continue or stop?
The Chair: I think we're running out of time.
Senator Mitchell: It's very good.
Senator Kenny: I would like to hear what he has to say.
The Chair: For another couple of minutes?
Mr. Fogarty: I'll be as brief as I can. I'm going to have to limit what I say because the real evidence of this is not in the public domain and I can't share it with you.
This doesn't properly answer the question, but it starts to hint at it. Even when you have very successful operations here, the Toronto 18 being one of the best and a very good job by the RCMP, considering how little they were told — I'm going to give you two examples. These are in the public domain, but people generally don't realize they are. Lots of things happened in this investigation. I'll talk about two.
During the course of this operation, CSIS discovered the location of a suspected terrorist training camp inside Canada. This is not an insignificant thing to discover. Having discovered it, knowing it has no executive authority of its own — it's not a police service and at the time couldn't disrupt — it decides not to tell the RCMP about it.
Now I said a while ago, privately, that if you take that sort of decision on an operation and are running up against fast-moving, sophisticated opponents, the consequences could be a tragedy. I gave an equivalent. If you go back, for example, to the 1980s, 1990s, imagine a situation in which an MI5 team discovers a Provisional IRA camp in the U.K. and decides not to tell anybody about it.
The second of many examples in this case is that later on in that investigation, CSIS realized that the RCMP was following the wrong targets. So having identified certain people who are believed, by that stage, to be threats to public safety, realizing that the RCMP was following the wrong people, CSIS decided not to say anything.
Imagine, going back to the 1980s or 1990s, that MI5 sees a Provisional IRA active service unit, realizes that the military and the police are following the wrong people, and decides not to say anything. It's a tragedy waiting to happen.
You have been remarkably lucky, as a country, that you have not faced fast-moving, sophisticated opponents since 2001 because you could have been living in tragedy here.
If I could reiterate, if you can get these three pillars into your legislation, you will stop that from happening, or you will leave the operational agencies with the ability to stop it.
The reason why CSIS didn't tell the RCMP about either of these things is perfectly understandable given the framework within which they currently have to operate. It isn't their fault. The reason why they don't is that they can't afford to be seen to be working jointly. Otherwise, in a criminal case, they will be subject to Stinchcombe-type disclosure. The U.K. solved this problem in 1996, so you couldn't have these sorts of events.
I beg your pardon for my length.
Senator Runciman: That was very interesting, to say the least.
Professor Leuprecht, in response to Mr. Fogarty, I think you mentioned in your submission that you have some concerns with respect to the kind of parliamentary oversight that Mr. Fogarty was endorsing. I am curious about that too. I'm not sure if you're the individual who wrote an op-ed in the Ottawa Citizen on this issue, but it talked about the parliamentary or the Westminster system not being compatible with that kind of oversight because there's not the separation between the executive and legislative branches of government.
I'm wondering if you could elaborate on your views with respect to that, your concerns about that kind of oversight, unless I misunderstood what you said.
Mr. Leuprecht: That was not my op-ed, but I have published in The Globe and Mail on this issue.
I think there are more sophisticated systems, but one simple way to remedy the current situation would be to essentially adopt a version of the U.K. system, whereby the opposition can submit names to the Prime Minister. The Prime Minister can pick a couple of names from that list, can have those individuals cleared, can have them sworn in as privy councillors, set up a separate parliamentary committee. I would suggest that that list could include members from the Senate and that that committee would be able to debrief with SIRC and with the Commissioner of the Communications Security Establishment, precisely to establish the sort of dialogue that we currently don't have. This is not just important for the substance of the dialogue. It is also important for the substance of those Canadians who are saying, “Are my rights and freedoms being violated?” We can then see more than just the political executive reassuring them that this is not the case. We also have members of the opposition that can affirm that the system is working as it should.
Senator Runciman: We heard Professor Forcese talk about the issue of Charter violations, and it's in complete contradiction with respect to what we heard earlier in the day from Mr. Piragoff of the Justice Department. What is your view with respect to that issue?
There are any number of activities where judicial authorization is sought to conduct things like searches and wiretaps, and the judge can authorize them or refuse them. The fact that they are judicially authorized makes them lawful.
To call this radical or dangerous, I guess I have a problem with that. From Justice we're talking about an assistant deputy minister, and therefore not a political individual, saying this. I'm wondering what your view is on that element of the legislation.
Mr. Forcese: Sure.
Senator Runciman: I was actually asking Mr. Leuprecht. I've already heard your views.
Mr. Leuprecht: I'm not a lawyer, sir. I think Professor Forcese will be much better placed to answer that question if you allow, senator.
Senator Runciman: He's already answered. He's given us his view, and that's why I was looking for another perspective on it.
The Chair: Senator, can we go for second round, if you don't mind?
Senator Runciman: Sure.
Senator Kenny: Mr. Fogarty, we had the Minister of Justice here earlier this week, and we talked to him about a parliamentary oversight committee. At the end of the day his answer was that he didn't trust parliamentarians to respect the oath that they might take, and he was concerned that because these were serious matters you couldn't have parliamentarians on such a committee.
What is the U.K. experience with leaks and what is in place to stop them from happening? I'll start there.
Mr. Fogarty: There haven't been any, is the short answer. It's a fascinating experience to have. I've had the privilege of talking to the U.K.'s Intelligence and Security Committee. It's not for me to comment on Canadian parliamentarians, I don't think. I don't even vote in Canadian elections, so I don't think it gives me the right.
What I can say is if you watch Question Period in the other place and then you compare that with Prime Minister's Question Time in the United Kingdom, it looks as though the Prime Minister and Tom Mulcair are the best of friends compared to the other arrangement.
There is some what I would call very productive partisanship in the U.K. Parliament. In public they will be remarkably partisan because they have political roles to fulfill, but there is none whatsoever in that committee. It is a fabulous discussion point. It is incredibly serious. There are no cameras. There is no gallery to play to. There is no election to be won. It's serious, it's sober and it works.
If there were something else, I would say, if you can, please do this in your country. Please do it because it really works. It is, with the greatest of respect, a lot better than the system you have here.
Senator Runciman: Supplementary.
Senator Kenny: I haven't finished my question.
Senator Runciman: It's on that same line.
The Chair: Senator Kenny.
Senator Kenny: How do you attribute the fact that there hasn't been a leak to date, and what would the consequences be if there was a leak?
Mr. Fogarty: The second question is a remarkably good one. I'm not sure what the answer is. It might well be prosecution. I think if the equivalent happened here, I believe what would happen is parliamentarians would have to sign up to the Security of Information Act and have a lifelong duty of confidentiality, I presume.
One of the reasons why it hasn't happened — and I don't think I'm being naive here, and I can only speak for British parliamentarians, obviously — is that this is a very serious business. It is the most important thing you can do on behalf of your country. There is a real genuine feeling of how important it is to keep these issues secret on behalf of your own country's national security.
It may be that I'm being naive, but I would be amazed if there was a parliamentarian who is committed to their own country and then decides to leak something. What could be the possible purpose of that? So there hasn't been an issue. I don't expect that there would be in future; not in that system, anyway.
I hope that answers your question.
Senator Runciman: My question was the same as that remarkably good question.
Mr. Leuprecht: Just a very brief intervention on this. We have very capable people sitting in Parliament who themselves have been cleared to a very high level of secrecy, including former members of the Canadian Armed Forces, the Solicitor General and Attorney General. We have people with a proven track record that they can keep things for themselves and understand the interests of nations and their country.
[Translation]
Senator Dagenais: Mr. Forcese, I listened closely to your presentation, and I have to admit I found your remarks a bit worrisome. Please correct me if I’m wrong, but you make it sound as though lawyers don’t trust judges to protect the public. According to what everyone is saying, we can no longer have faith in the police, CSIS, the police conduct board or the agency monitoring terrorist activity. So what do we do? Do we set up another organization that will also lose the trust of lobby groups as soon as it makes a decision those groups aren’t happy with? It’s as though we’ve hit a dead end, and the only option is not to protect ourselves from terrorists, who, let’s not forget, targeted Canadians on October 22. It didn’t come from abroad.
I’d like to hear your thoughts on that, because our opinions differ.
[English]
Mr. Forcese: On the first point, I agree with everything said about the accountability structure. I don't think necessarily we have to assume bad faith on the part of the services to ask for a robust check-and-balance system. Our system is predicated on checks and balances. CSIS has regularly said that SIRC makes it a better service. I agree with what's been said about the virtues of a parliamentary committee.
Other allies have made expert review, like SIRC, and a parliamentary committee work well together, so I am not taking the view that the service can't be trusted or that it acts in bad faith.
The fact of the matter is, though, that agencies make mistakes. Mistakes are often made or more often made in circumstances where there's less accountability and where there's the prospect that things will never be revealed. Again, it's a question about ensuring there are checks and balances.
In relation to judges, I'm asking this committee not to put Canadian judges in the position where they have to authorize unlawful and unconstitutional conduct. That puts them in an untenable position that is unprecedented. Again, I underscore that warrants that relate to search and detention are designed to ensure that the government remains on side with the Constitution, that they don't violate the Charter. We do not have a tradition of issuing warrants for other rights. There is no such tradition.
The point I'm trying to make is that we're asking judges to do something that they simply have not done before and puts them in an untenable position. There is no need, it seems to me, to ask the service to conduct affairs that violate the Charter rights of Canadians.
I think in some large measure Mr. Fogarty has persuaded me that this whole apparatus with disruption powers is in part motivated by what ultimately remains a key concern that CSIS has in terms of preserving control over its information, and that really is the explanation for this whole disruption routine or regime.
I don't know if Mr. Fogarty agrees with me or not.
[Translation]
Mr. Leuprecht: It’s important to keep in mind, however, that we now have many judges with experience in national security, in light of the various cases they’ve dealt with recently. I have faith that judges can make informed decisions on those difficult issues.
Senator Dagenais: That makes me feel a bit better.
[English]
The Chair: Colleagues, if I could, I would like to follow up with Mr. Forcese and Mr. Leuprecht in respect to the question of the judge, the warrants and the utilization of the warrants.
First of all I want to say to Mr. Fogarty, I've heard your observations on the Canadian system and the sharing of information and the fact that we are in harm's way here in Canada because of the system and the way it's set up.
We just returned from a visit to Toronto. We spent a day and a half with INSET in Toronto, between CSIS, the RCMP and other law enforcement agencies. I came away from there with a great deal of confidence that between the Crown prosecutor’s office, all the law enforcement agencies, the intelligence agencies and any other agency that was involved in a certain activity or certain place, that particular system we have in place is working, although they're having to work in a much more intensive environment in view of the threat we face.
I just want to say as a member of this committee and as the chair, and I think I can say for all members on the visit, that we came away very impressed with what our law enforcement agency and intelligence agencies are doing at the present time. That is not to say that we can't do better.
My question goes back to Senator Dagenais and the question of the utilization of the judicial system for the purpose of a warrant and the fact that if I'm not mistaken, Mr. Forcese, you made some observations that one of the reasons you had some concerns is because when a warrant was issued, you didn't really know what happened in most cases after they had been issued.
First, we just had evidence here before you came that in well over 50 per cent of the warrants that have been issued, the judge in question required an accounting for how that warrant was exercised and what occurred during that activity.
Second, I have a question specifically on that issue. Would you be satisfied if there was a Governor-in-Council regulation passed that a CSIS officer who was requesting a warrant, within that request would be a clearly stated system of reporting back not only to the judge but also reporting to SIRC so that the conclusion of that particular warrant was being followed both by the court and by the regulatory agency?
Mr. Forcese: Do I believe that would be an improvement? Absolutely. Do I think that's satisfactory? No, I don't.
Obviously I don't have access to the warrants. The warrants are never disclosed; they are secret. Obviously I'm not in a position to comment on their content or the proportion of them that do have feedback mechanisms.
I do, however, have access to the famous now Justice Mosley decision in which Justice Mosley was obviously not apprised of what was done pursuant to that warrant and only found out through — I won’t call it by accident — fortuitous circumstances exactly the range of conduct that the service was engaged in.
In relation more generally to trying to fix the warrant, again, I think warrants can be fixed so long as the warrants relate to Charter issues that are actually subject to the warrant. Effective warrants in relation to detention are one thing. Effective warrants in relation to surveillance and search or seizures are another.
It is simply not the case, however, that a judge should be charged with authorizing a breach of other Charter rights that are not qualified by the words “reasonable” or “arbitrary,” as is the case for “search” and is the case for “detention,” and asked to bless them in advance pursuant to some creative constitutional theory that sees the judge performing some kind of unique section 1 analysis. That is just not constitutional. It can't be fixed by regulation.
The Chair: You're talking to a boy from the country here, and you talk about the Constitution and you talk about the lawyers. But I want to ask you from a practical point of view, how are you going to do this? I've got a terrorist out there that is about to do something to the subway. I need legal authorization to do certain things in a very short period of time. You go to a judge, you get a warrant and you move and you take the necessary steps. I don't quite understand. It's one thing to talk about that, but how do you do it practically?
Mr. Forcese: My question is why do we have to have CSIS do this? Why are the police not able to do this? I haven't had a clear answer yet. Again, Mr. Fogarty, perhaps with his U.K. experience, could comment on this.
The Chair: I'm the chair, so I'm going to go back to Senator White.
Senator White: Thanks to each of you for being here and for Mr. Roach being with us online.
My question is to you, Mr. Fogarty, is in relation to sharing information. We're talking about that in this case, but we're actually not focusing our energy on sharing information with police agencies so much.
In Canada we have 198, give or take, police agencies across the country, of which only one of them is the RCMP, that would categorically meet the requirements from a security clearance perspective to even receive information from CSIS. Some of those other agencies have officers who are security cleared, but the vast majority do not.
Does the U.K. face that problem? I know you've reduced the number of agencies you have from 30 odd to a dozen, I think. If you don't have that issue around security clearances to receive information from intelligence, what did you do to cause that to happen?
Mr. Fogarty: No, there's no problem at all. Currently, from memory, 43 police forces in England and Wales and there's one now in Scotland. There used to be eight. There is one in Northern Ireland.
Because of those pillars I spoke about before in the legislation, there's no inhibition on information sharing anyway. Every one of those forces has security cleared staff in the first place. There are joint operational teams between the British Security Service and the police all over the country. The information sharing is daily. It needs to be in the interests of national security. There's no barrier.
What I think I'd say, hopefully helpfully in response to the situation here, is absolutely, without question, it would be very valuable to increase the number of police officers — municipally, provincially, territorially — who have security clearances, no question.
But the key issue isn't that, actually. The key issue is having the legislative framework in place that allows your security intelligence agency to talk to you in the first place. Just giving people security clearances won't solve that problem.
Senator White: Thank you very much for that. Are you telling me there's a national standard in the U.K. that requires police agencies to have resources cleared to receive the information in the first place?
Mr. Fogarty: Yes, it's historical, really. It's been inherited from the past. I won't dwell on this.
Senator White: It's okay.
Mr. Fogarty: The U.K. system grew up with Special Branches in every police force whose job is to support MI5. It originated from there. You've got to be security cleared in the first place. Every police force has to have them. It has just continued into the present day.
Senator Moore: My question is for Professor Roach. I am from Nova Scotia, the province of Joseph Howe, who gave us responsible government, gave us freedom of the press and gave us freedom of speech. If a bunch of Canadians decided to demonstrate in favour of Palestine being entered into the International Criminal Court, or for statehood for Palestine, even though part of the group is Hamas, even though Canada is against those two positions, would they be in violation of this bill?
Mr. Roach: No, I don't think that they would be in violation of the new offence. If, however, they had a placard that said “Give Money to Hamas” because Hamas might be the only effective government in the West Bank, then they would be in violation of the proposed new offence.
The government has been very clear that it doesn't want to tie this to terrorist activities; it wants to tie it to terrorism offences that includes things that may legitimately be criminalized, like terrorism financing, but don't involve violence. So that does, I think, open the door to this new offence subject to five years of imprisonment being applied to people who advocate terrorism offences in general that are not necessarily immediately violent.
Senator Moore: Very interesting. Thank you.
Senator Mitchell: I wanted to go back to your point, Professor Forcese, because I'm very interested in it to the extent that it is really key. It's seminal to protection of civil liberties. I'm not a lawyer, which is probably painfully obvious at this point. I want to ask this question for clarification because I'm quite sympathetic to what you're saying.
How is it that you would argue the police should act to take the action and that they're not breaking elements of the Charter, when if CSIS did it, even with a warrant signed by a judge, they would be? I don't quite understand the distinction and I really want to.
Mr. Forcese: I was responding to the hypothetical from the chair in which there was — correct me if I'm wrong — an imminent attack. In that circumstance, I assumed we crossed the line between criminal and non-criminal conduct. That's the point at which the police are free to intervene.
I am struck by Mr. Fogarty's example of CSIS not providing information concerning a terrorist training camp. Will CSIS's decision be, “We are not going to tell the police, but we are going to start doing some other stuff to disrupt”? That conduct of engaging in a terrorist training camp almost certainly crosses the bounds of one of our existing 15 anti-terrorism crimes. Why would they prefer a course of disruption if simply flipping the information over to the RCMP would enable the RCMP to investigate and bring successful criminal charges?
I am left with the impression that the preoccupation with disruption that we see running through this bill is largely an end-run around an unsolved problem in terms of information sharing.
Senator Mitchell: You might argue that the disruption is actually to be utilized when you can't prove that something is actually criminal that would warrant that kind of disruption. Is that right? It is lowering the standard for police activity, in a sense, to something below criminal.
Mr. Forcese: Certainly the disruption powers or measures, as they're called in the bill, will apply to the full range of CSIS's mandate under clause 2, which include not just antiterrorism but also subversion, espionage, sabotage and so-called foreign-influenced activities. It will reach a significant amount of conduct that is not in fact criminalized, so if we talk about certainly being outside the terrorism area.
Again, the question is: Have we reached the point in our society where we need a service to engage in measures whose only outer limit is no bodily harm, no violation of sexual integrity and no obstruction of justice potentially beyond the law and potentially beyond the Charter in relation to a whole host of security preoccupations and concerns? Frankly, the government has not made the case. The government has repeatedly said, “We need CSIS to be able to talk to families.” Fine; it does so already. In other circumstances, the true anti-terrorism issues, the current confines of the anti-terrorism law reach deep into conduct that was, once upon a time, simply pre-criminal.
I'm left puzzled why we don't first solve this information-sharing problem between RCMP and CSIS, which as Mr. Fogarty said, this bill does not do, before we engage in brand new adventures with so-called disruption tactics as a tool of anti-terrorism and invite the service to engage in conduct that may well violate the Charter if they can persuade a judge to sign off.
Senator Mitchell: You're saying if they could undertake disruption themselves, they would be less likely to share the information to get the RCMP to take the action.
Mr. Forcese: That would be my sense.
Senator Mitchell: A disincentive, in fact.
Mr. Forcese: I agree, yes.
Senator White: Other countries' security agencies have disruption authority because they're not joined at the hip with the police agencies in those countries nor are CSIS and the RCMP joined at the hip. In fact, we heard a description of the Toronto 18, with which I was familiar. I was the police chief in the GTA when we worked on that case. They weren't always joined at the hip.
The fact that in a moment something could happen, and without the authority to disrupt you actually could end up watching it happen, just as was described by Mr. Fogarty.
My perspective on the disruption piece is actually fairly clear. It will not be used as a replacement to sharing with the Mounties. It will be used when you can't share with the RCMP, sometimes because of timeliness. Doesn't that make sense to you?
Mr. Forcese: It does, but it is a question of what you mean by “disruption.” There's a definitional confusion here.
Speaking about this issue with colleagues overseas in the U.K., Australia and elsewhere — and Mr. Fogarty could probably give you a better sense on the U.K. situation — what they point to are specific enumerated tools that are prescribed by law, limited by law, which enable them to go beyond simply surveillance.
The Australian example now is the new ASIO power to interfere with a computer system pursuant to a warrant. It's not an open-ended invitation to do anything up to bodily harm, obstruct justice and violation of sexual integrity. Rather, it is a carefully prescribed tool.
My invitation to the Senate would be to find out what the service really needs and then set out exactly what it is the parameters of that power should be. In other words, enumerate the powers rather than simply opening the gate wide and saying, “Well, it is just whatever the service thinks is reasonably proportional.”
Senator White: You actually don't disagree that disruption might be necessary?
Mr. Forcese: No, I don't disagree with the concept of disruption. Professor Roach and I have tried to be clear about this. We're not disputing the government objectives. What we are concerned about, though, is the execution.
This bill, it seems to me, doesn't solve many of the problems. It creates a whole series of new conundrums, including the arcane constitutional issue we were debating earlier. It seems to us that with a little bit of effort, we could probably articulate a codified set of arrangements that would accommodate the security needs while at the same time curing many of the objections from a civil liberties perspective.
Senator White: Thank you very much.
Senator Kenny: There are two areas I would like to touch on. The first one is disruption.
CSIS has been involved in disruption since its inception. This has been part and parcel of how we have come to see it. Frankly, there's a pretty good argument that disruption is in some cases much more valuable than pursuing criminal solutions. It is certainly cheaper, and you may actually be preventing things.
I view the legislation as protecting the disruption that has been going on and ensuring that at some point a CSIS officer isn't going to be in front of a judge having to defend himself for doing something inappropriate, and that's the definition. Can I have a reaction to that?
Mr. Fogarty: On the point of principle about disruption, there is absolutely no doubt in my mind whatsoever that your security intelligence agency needs a disruptive capability. No question whatsoever.
The issue is a slightly different one, more nuanced than this, I think. Certainly in my experience, the overwhelming majority of activity seeks to lend itself towards the criminal justice system. The reason for that is you are then reflecting the values of the society you are trying to protect all the time, which is what your security intelligence agency should do. So it's not a question of the fact that you shouldn't have disruptive authority; it is a question of the extent to which you open up that possibility.
I will put it back in my experience, for example. If a U.K. parliamentarian were to come along and say, “Would you like to have the authority under warrant to breach the Human Rights Act or the Bill of Rights?” et cetera, the answer would be, “No, thank you.” The reason why is because if you have got that really good relationship already with law enforcement, you have solved 90-plus per cent of your problem anyway, and the measures that are available to you can generally handle the rest of it.
It is not a question of principle. It is just a question of scale. It's for Parliament to decide what scale you want to give to CSIS, basically.
Mr. Leuprecht: Our organizations within our federal government system have extraordinary powers, such as the Canadian Armed Forces. The Canadian Armed Forces have a cradle-to-grave professional development system to ensure that these are used appropriately.
One of the concerns I have is that the discretion that the disruption power affords CSIS is not matched either with CSIS's professional development system or with the national security sector code of government professional development system because currently we don't have one. We have little ad hoc courses and training.
If we're going to give that much more discretion, we also need to make sure we have the appropriate professional development to match that discretion that we afford agents.
Senator Kenny: My second question has to do with the inspector general.
Mr. Fogarty, I don't know whether you had experience with the inspector general when you were here. We don't have an inspector general anymore. What is your reaction to that?
Mr. Fogarty: I think Michael Doucet mentioned this in front of another committee. If the role of CSIS is expanding, there's a natural requirement to expand the ability to review that in everybody's interests, including CSIS's. To be honest, it is for SIRC to say, because SIRC inherited that inspector general role, whether they feel that is working properly. I come back to the fundamental point about whether that’s the right system in the first place, and where does your parliamentary review come in?
I'm not sure if that properly answers the question.
Senator Kenny: I have always viewed the inspector general as the last protection that the Minister of Public Safety had and that this was his canary in the coal mine, if you will. The idea of taking it away, I was astonished to see the minister of the day do that. It was his protection. So it seems to me if we want to ensure that this government and future governments have an early-warning system, that's it, and it's cheap insurance.
Mr. Fogarty: I would agree.
Senator Kenny: Those are my views. I'm interested in your views.
Mr. Fogarty: I'm not sure it necessarily means should you have an inspector general back. That's not necessarily the point. Do you want to have the capacity to have a fully informed review of what is going on? Yes, most definitely. If you are expanding an agency's remit, does it look like your current review mechanism is adequate? No, it doesn't.
Senator Runciman: I wouldn't mind getting a clarification from Professor Roach. I wrote something down that he said earlier, and I may have misheard, but I think it was dealing with the Criminal Code amendments and section 83.22(1), and as I quickly wrote this down, the new offence might capture reporters posting comments from jihadis or people advocating sending money to terrorists. Am I accurately quoting you there?
Mr. Roach: Yes, and I would be happy to explain how I would work that through the legislative language.
Senator Runciman: As I read this, the key words here are “knowingly advocates,” and I would think in a situation like that, if someone is knowingly advocating, for example, sending money to terrorists, I think we would all have a problem with that. You don't?
Mr. Roach: Well, no. My point was that the use of the word “knowingly” as opposed to “wilfully” opens up the possibility that a reporter would know that what is being published would present a risk, which is what recklessness refers to, that someone may commit some terrorist act as a result of the communication.
I did not go looking for this hypothetical, Senator Runciman. If the word “wilfully” had been used instead of “knowingly,” which is the word that is used in section 319(2) of the Criminal Code, the wilful promotion of hatred, then my hypothetical goes out the window. But because a decision was made, a deliberate decision, I assume, to use the word “knowingly,” I do something knowingly, even if I don't want something to happen, if I know there's a probability. That is my concern.
Senator Runciman: It is not one I share. I'm glad you did clarify that. Thank you.
Mr. Roach: Could I just add something? Mr. Fogarty and I have conversed about this. What he is describing, and I just want to remind the committee, is that this is the intelligence-to-evidence problem that Justice Major talked about in the other place and obviously in his 2010 report. I agree completely with Mr. Fogarty's analysis after having worked for four years in a classified environment on this very issue.
In fact, the government's new amendment that says CSIS does not have law enforcement powers actually aggravates this problem that, yes, there may be some range for disruption, but disruption is only a narrow part of a comprehensive counterterrorism strategy.
We have these four new offences, and that is why Professor Forcese and I have been consistently saying since this bill was introduced that it will not only harm rights; it will harm security because what it is going to do is give license to CSIS to continue to perhaps make rational decisions but not to tell the RCMP and other police forces about security threats. It confirms that CSIS will continue not to work to an evidential standard, whereas MI5, its counterpart in the U.K., does work to an evidential standard. This will create a parallel justice system — yes, a justice system that will have the sign-off of a federal court judge in a closed hearing, subject to heavily redacted judgments and warrants that we will never see.
But if at the end of the day you want to apply the 15 offences, if you want to demonstrate that Canada is opposed to terrorism but will do it fairly in a public trial, Bill C-51 is not about it. There is nothing in Bill C-51 that facilitates the transition of intelligence into evidence.
This government commissioned Justice Major, and he spent four years. He has serious reservations about this bill from a security perspective. So it is one thing to dismiss this as the usual suspects that are concerned about rights. But, frankly, I wouldn't be here making these pleas, and I said this when I appeared before the committee before, if I did not genuinely believe that this bill, combined with C-44, will have the unintended effect of making terrorism prosecutions more difficult. As Mr. Fogarty has reminded you, because you don't have access to classified information, you may not ever know that it may have this effect.
At the very least, if we're going to go down this road, at least have the humility to say that after three years we should review this.
The Chair: Colleagues, it is quarter past five. Before we close, I want to make an observation, and I want to reiterate what I said earlier in respect to how our agencies are working together and how we actually witnessed them working together. We all came away feeling much more secure than we were before we went there.
Senator Kenny: With due respect, I was going to comment on that and I restrained myself. But since you have gone back to it, a third of the committee wasn't present and it was the first time that the committee had visited a regional office of CSIS and the first time in INSET in over three years. So it is not like the committee has developed a great expertise in this.
The Chair: We're in the process of, obviously, learning about what our system is and the various agencies involved. I think we all agreed, and you will agree with me, that we came away feeling much more secure than what we did before we went. At least I did and any other member I spoke to, and I recall you actually said yourself —
Senator Kenny: I said there was a long way to go.
The Chair: It is twenty past five. I want to thank you very much for a very lively session. You have brought a lot of information to the public record here. It will be given due deliberation over the period of time that we're studying the bill.
Once again, Mr. Roach, thank you for spending the time in what I assume is a small room with a video camera. I appreciate your patience.
I will now excuse the witnesses.
(The committee adjourned.)