THE STANDING SENATE COMMITTEE ON HUMAN RIGHTS
OTTAWA, Wednesday, November 30, 2016
The Standing Senate Committee on Human Rights met this day at 11:30 a.m. to monitor issues relating to human rights and, inter alia, to review the machinery of government dealing with Canada’s international and national human rights obligations (topic: available economic levers to enhance respect for human rights, including the Export and Import Permits Act).
Senator Jim Munson (Chair) in the chair.
The Chair: Good morning. I see that we have quorum, and I see that we have our two guests on screen from Toronto and Rotterdam. We will begin.
Before we get down to business, I would ask the senators to introduce themselves.
We'll have the senators here introduce themselves first and then I will introduce you. Then we'll have your opening statements. We're very glad to have you on this extremely important study that we're doing. We'll start with the deputy chair.
Senator Ataullahjan: Salma Ataullahjan from Toronto, Ontario.
Senator Nancy Ruth: Nancy Ruth from Ontario.
Senator Ngo: Senator Ngo from Ontario.
Senator Andreychuk: Senator Andreychuk, Saskatchewan.
Senator Omidvar: Senator Omidvar, Ontario.
Senator Gagné: My name is Raymonde Gagné, and I am a senator from Manitoba.
The Chair: I'm Senator Munson and I'm from Ontario.
In our first panel today, we continue our study on available economic levers to enhance respect for human rights, including the Export and Import Permits Act. We've had some fascinating discussion thus far and we're going to have a report on this.
Today from the University of Toronto, Munk School of Global Affairs, we have Ronald J. Deibert, Professor of Political Science. From European Digital Rights, we have Walter Van Holst, Vrijschrift, European Digital Rights, also by video conference. Whoever is ready to go, please go ahead.
Walter Van Holst, Vrijschrift, European Digital Rights: Thank you for your invitation to speak on behalf of European Digital Rights. European Digital Rights is an association of 28 NGOs in the field of human rights, specifically in the digital domain, across Europe, in about 19 European countries. It's not strictly confined to the European Union. We consider the Council of Europe as our area.
To go to the question of how export regulations may or may not affect human rights, the shared position of European Digital Rights and our members is that there is a clear need for the regulation of the export of technologies that affect human rights, specifically when it comes to surveillance technology, especially from our perspective from the current practices across Europe in the Wassenaar Arrangement and the current European Union regulations, which are under review. There is a clear need to reconcile a spectrum of human rights involved.
Primarily, there is the right to freedom of speech, including the right to freely govern information, which also clearly affects the right to a private life. There are also the rights of freedom of religion and freedom of conscience involved. A slightly overlooked aspect tends to be another aspect, the right of freedom of expression, which is the freedom to exchange knowledge. From our perspective, knowledge about security issues, especially when it comes to information technology, still falls under that.
When it comes to expert controls for surveillance technology, we feel that first and foremost, focus on such technologies should be on technical assistance for the implementation of such technologies and on so-called "brokerage services," with parties forming the role of brokers between technology suppliers and the use of them for what might be local surveillance in countries with a proper framework of the rule of law. However, sadly in practice right now, there is a significant amount of export of surveillance technologies from western companies through regimes that clearly cannot be labelled as democracies with a mature rule of law.
That is roughly, in a nutshell, our position on this topic.
The Chair: Thank you very much for that. Let's now go to Professor Deibert in Toronto.
Ronald J. Deibert, Professor of Political Science, University of Toronto, Munk School of Global Affairs: Thank you very much. I am the founder and director of the Citizen Lab at the Munk School of Global Affairs, University of Toronto, and my comments are drawn from the research of the Citizen Lab.
Our mission is to produce evidence-based research on cybersecurity issues that are associated with human rights concerns. We study how governments and the private sector censor the Internet, social media or mobile applications. We have done extensive reporting on targeted digital espionage on civil society, and we have produced detailed reports on the companies that sell sophisticated spyware, network monitoring or other tools and document their abuse potential to raise corporate social responsibility concerns. Our goal is to inform the public while meeting high standards of rigour through academic peer review.
One area we're particularly concerned with is the development, sale and operation of so-called dual-use technologies that provide capabilities to surveil users or to censor online information at the country network level. Our research into dual-use technologies has fallen into two categories, those that involve network traffic management, which would include deep packet inspection and content filtering, and those that involve technologies used for device intrusion for more targeted surveillance.
Turning to the first category of research around deep packet inspection and Internet filtering technologies that private companies can use for traffic management but which can also be used by Internet service providers to prevent entire populations from accessing politically sensitive information online or be used for mass surveillance, several of our reports have identified equipment and installations sold by companies to regimes with problematic human rights track records, including companies like Blue Coat, Websense, Fortinet and Netsweeper.
Since Netsweeper is a Canadian headquartered company and is featured repeatedly in our research on this topic, I will provide more details about our findings with respect to them.
Netsweeper is a privately owned technology company based in Waterloo, Ontario, whose primary offering is an Internet content filtering product and service. The company has customers ranging from educational institutions to companies to ISPs and telcos. Internet filtering is used widely on Internet networks such as these, but when it's used at a national level under state-mandated Internet filtering, questions around human rights, specifically access to information and freedom of expression, are implicated.
Over the last eight or so years, we have used a variety of technical methods, including in-country technical tests, network measurement and Internet scanning. Through this, we were able to positively identify Netsweeper installations in at least seven countries that have very poor human rights track records: United Arab Emirates, Yemen, Kuwait, Pakistan, Somalia and most recently Bahrain. We found Netsweeper services used in these countries to block access to a range of content, including political content, content critical of the regimes in power, human rights-related content and content concerning religious faiths, among others.
Included in these reports were letters with questions that we sent to Netsweeper, which also offer to publish any response from the company in full. Aside from a defamation claim filed in January 2016 and then subsequently discontinued in its entirety on April 25, 2016, Netsweeper has not responded to us.
The second category of research where we also apply the term "dual use" concerns the use of malicious software, malware billed as a tool for unlawful intercept. In the course of the last few years, we have documented numerous cases of human rights defenders and civil society organizations being targeted with advanced commercial spyware sold by companies like Italy-based HackingTeam; U.K., Germany, Swiss-based FinFisher; and Israeli-based NSO Group.
We've also been able to map the proliferation of some of these systems to a large and growing global client base, many of which are governments with notoriously bad records concerning human rights.
Although our research has had significant impacts in this area, which I'm happy to talk about, our findings are only really touching on a small area of what is a very disturbing larger picture. The market for dual-use technologies, including spyware, is growing rapidly and may be increasing.
Although our research at the Citizen Lab has not to date identified a Canadian-based vendor of commercial spyware selling to rights-abusing countries, we know that companies selling this type of technology do exist. Furthermore, the growth of the market, coupled with other circumstances, suggest it's highly likely that a Canadian vendor would at some point in the not-too-distant future face the choice of whether or not to sell its technology and services to a rights-abusing country, if that hasn't already happened.
Turning to what is to be done, I think this is where the Government of Canada can play a constructive role. Effective solutions that encourage respect for human rights will depend on two key components: transparency of the market and creation of an incentive structure to which private sector actors will respond.
Concerning transparency, the real impediment to progress regarding dual-use technology concerns is the lack of transparency in this market. Most of the companies we're talking about are not transparent about the full range of products and services they sell, or their clients, and the sector as a whole is shrouded in secrecy. Mandated transparency could take a number of forms but at a minimum will require dual-use technology providers that offer their products and services in the marketplace to self-identify and report as a matter of public record.
A model that might supply a guideline here would be the UN working group on mercenaries, which has drafted a proposed convention that may be applicable to the area of dual-use technologies.
Transparency can also emerge from research. As a complement to mandated transparency, the Government of Canada could encourage the type of mixed methods research that the Citizen Lab has done on dual-use technology through funding bodies like SSHRC and NSERC and the Canada Research Chairs Program. It could also develop legislation specifically designed to provide safe harbour for security research undertaken in the public interest and incorporating responsible disclosures.
In terms of incentivizing the private sector to respect human rights, as the UN Guiding Principles on Business and Human Rights makes clear, businesses have a responsibility to respect internationally recognized human rights. At present, however, there are few, if any, costs incurred by the companies that supply and service dual-use technologies when such technologies are used to violate human rights.
The drastic change in incentive structure necessary to curb the abuses of this industry will have to rely on a combination of regulation and policy and access to remedy.
In terms of regulation and policy, export controls are a first step in the regulatory process. The Canadian government currently has in place export controls around IP network communication surveillance systems and equipment, and also intrusion software.
One key problem with export controls, however, is designating the scope of the items to be controlled in an appropriate and predictable manner, avoiding both over- and under-inclusion. For example, with respect to items related to intrusion software, certain technologies anticipated to fall within the scope of the control are also used for legitimate security research. At the same time, the 2013 Wassenaar controls do not cover Internet filterings and other technologies, for example, so-called quality-of-service technologies that can have significant human rights implications. Lastly, I should point out that the Wassenaar Arrangement is now on uncertain ground after the United States signalled that it intends to renegotiate the agreement, which I'm sure will affect other countries.
A second challenge lies in the export licensing process carried out at the national level. Even when a dual-use technology is subject to control, the licensing process must be properly calibrated to address the end-users and end uses of concern from a human rights perspective. This accounting requires an ever-evolving assessment combined with the political will to both curb access within a broad group of countries, many of which might have strategic importance to Canada, and restrict the sales of domestic corporations.
For these and other reasons, export controls, while important, constitute only one means by which the Canadian government can help constrain the abuse of dual-use technologies. Such efforts can be complemented by additional regulatory and policy measures, including government procurement and export credit or assistance policies that require dual-use vendors to demonstrate company commitment to human rights due diligence, enhanced consumer protection laws and active efforts at consumer protection agencies to address the misuse of dual-use technologies, a regulatory framework for oversight and accountability specifically tailored to dual-use technologies, and structured dialogue with companies in civil society regarding the establishment of industry self-regulation.
Turning to the issue of access to remedy, when dual-use technology companies provide products and services that are used to undermine human rights, it's appropriate that those harmed by such activity may seek remedy against those companies. Canadian law could ensure that criminal or civil litigation is possible in such circumstances, including through the clear establishment of jurisdiction over actors that operate transnationally or may be state linked.
I will conclude by saying the Government of Canada is a vocal supporter of Internet freedom and human rights and is a member in all of the relevant international bodies in which such topics are discussed, but the fact that Citizen Lab has documented at least seven countries whose national ISPs use or have used a Canadian company's services to censor Internet content protected under internationally recognized human rights agreements is an embarrassing black mark for all Canadians.
While we have no evidence that a Canadian intrusion software, DPI or IP monitoring, vendor has sold its services to a rights-abusing country, that doesn't mean it hasn't happened necessarily or will not happen in the future. By proactively addressing the regulation of dual-use technologies in the ways I've outlined, the Government of Canada would align its actions with its words and ensure business considerations are not undertaken without human rights concerns being properly addressed. Thank you very much.
The Chair: Thank you, Professor Deibert and Mr. Van Holst. This study is the result of the efforts of Senator Ngo, so we'll have him lead off the questioning.
Senator Ngo: Thank you, Professor Deibert and Mr. Van Holst, for your presentations.
I have two questions, and the first question I'd like to ask Professor Deibert. Do you think that there are enough export restrictions and transparency standards in the authorization process to prevent Canadian companies from selling their dual-use goods knowingly or not to repressive governments who are infamous for quelling legitimate dissent? Should the Export and Import Permits Act require the government to conduct due diligence with targeted commercial companies?
My second question is for Mr. Van Holst. On September 28, 2016, the European Commission announced a proposal to modernize export control. The proposal incorporates a human security dimension into the European Union export control. The proposed change goes beyond the change to bring Canadian software export control in line with the revised requirement under the Wassenaar Agreement. Should Canada control the export of specific software when such systems have been exported to countries with problematic human rights records? If so, is there any specific human rights risk threshold at which such exports ought to be prohibited?
Mr. Deibert: Thank you, senator. As I mentioned in my comments, both in my oral and written testimony, I believe export controls are one important tool in a tool kit. You asked specifically if export controls are structured currently in a satisfactory way to capture the export of dual-use technologies that can cause human rights concerns.
I believe, as it stands presently, they do not. Canada is a member of the Wassenaar Arrangement, and after 2013, when modifications were made to the Wassenaar Arrangement to include IP network monitoring technologies and intrusion software, Canada added those categories to export controls.
One problem is that as it's currently defined those controls do not capture at least two other technologies that I would be concerned about. Of course, Internet filtering and Internet censorship technologies like that exported by Netsweeper, where we've documented numerous country cases where the technology is used to violate internationally recognized human rights, does not presently fall under export controls.
The second would be so-called "quality of service, deep packet inspection," which is specifically included from the Wassenaar Arrangement's definition of IP monitoring. But as we have seen in a disturbing number of country cases, that type of deep packet inspection technology can be used to throttle Internet traffic, to slow down Internet traffic, to prevent access to certain protocols associated with privacy and anonymity network tools.
To the extent that that will be an issue more in the future, which I believe is the case, then I think we need to consider modifying export controls to capture those two categories of technology.
Mr. Van Holst: Yes. As I understand the question, it is what specific technology definitions would we prefer, and what would be the human rights threshold, and at what point should there be export controls.
As far as specific technologies go, I would first say that we are probably in loud agreement with Professor Deibert that it should include censoring tools.
Second, I would also state that the current definition in the Wassenaar Arrangement of intrusion technology is deeply flawed in the sense that it both under and overregulates. It is unduly focused on what is called altering the normal path of execution of software, which is an over-broad definition that hampers legitimate IT security research.
I think it is fair to say that if we need a definition of intrusion software, it should be focused on the exfiltration of data. It's not necessarily the intrusion of a system that is the interesting part, but it is about the return of data through the intruder. Because it changes the equation dramatically when applied to security research and it still will deeply affect the export of these technologies.
As to the specific threshold of a risk of human rights infringement, in the context of the European Commission's proposal for a new regulation for export controls, actually one of the things we like about that proposal is by not naming a specific threshold but by putting a due diligence obligation on the exporters to look into whether there is a foreseeable risk of human rights abuse by those technologies.
Industry is not very happy with that, but I think that is a worthwhile avenue and direction of looking into this, putting an onus, because particularly you cannot say with a straight face that you're not aware that the situation in, for example, Bahrain with the Shiite minority is unheard of and unknown and that there is no issue there for exporting to that country. Anyone doing anything in the field of interception surveillance should know there is quite a high risk for that specific country, and the same for Ethiopia and other countries known to deploy Western supply technologies in these areas.
Senator Ngo: I would like to follow up with Mr. Deibert here. If that's the case, how should the Foreign Affairs department properly calibrate its assessment to address the end-users of such goods, as you say, from a human rights perspective?
Mr. Deibert: This is where I think that we have to consider export controls as one tool in a tool kit. I think part of the problem is that the very nature of this area is opaque, and that's because of the type of services that we're talking about, many of which could be sensitive, and the clientele. The purchasers of this equipment tend to be state security services and law enforcement agencies. So we know very little about the marketplace and who the clients are other than the research that is done by investigative reporters, NGOs and research done by Citizen Lab.
I believe that we need to look at this holistically. So when you ask what would Foreign Affairs do better to calibrate, I think part of that would require a prior step of ensuring that there is transparency in the marketplace, so we know which companies we need to think about first and foremost.
That transparency could be mandated by the Government of Canada in various ways, and I pointed out a model from the UN working group on mercenaries that would require companies to self-identify.
When it comes to calibrating in terms of export controls themselves, I think we need to move away from defining export controls around certain classes of technology, things, in other words, toward the end use and the end users. That's very important, because technology changes rapidly. We also found out, with the first iteration of the Wassenaar Arrangement, certain categories of especially intrusion software, as my colleague Walter pointed out, are used for legitimate security research. So there's a risk of over and under-inclusion.
If we switch the focus away from things towards end uses and end-users, it would put the onus on the companies to be more transparent about how their products are used, to know their customers, in other words.
Then in addition to that, we could have other levers that the government could use, including making sure that no government credits or no government support whatsoever is given to companies that do not comply with human rights regulations and policies.
For example, the company that I mentioned, Netsweeper, has benefited by government grants, has participated in trade shows in which the Government of Canada has facilitated the venue. Things that like are not appropriate when a company's products are being used to violate human rights that on the surface we're in favour of.
Senator Ataullahjan: I have a two-part question. Recently, there was an article saying that Canada has some of the worst oversight of our national intelligence agencies in how they're allowed to monitor citizens. Would you like to expand on that? I think it was a CBC article.
Mr. Deibert: Senator, was that addressed to me or to my colleague Walter?
Senator Ataullahjan: To you, Professor Deibert, considering that you uncover spyware and make international headlines almost every week.
Mr. Deibert: When it comes to the liberal, democratic or industrialized countries, the Five Eyes, as they are called — which is the alliance of signals intelligence agencies, of which Canada is a member — I do believe that we have definitely the worst oversight in terms of control over our signals intelligence agency — certainly nowhere near as robust, flawed as it is, as the United States' system may be.
We have a very well-resourced signals intelligence agency that presently, in terms of oversight, has an office of commissioner, the CSE commissioner, which does an annual review. This is not an audit; it's not looking over the shoulder of the operators. It's a review that looks at a selection of activities to verify that the government is in compliance with its own secret interpretation of secret laws.
As it stands now, other than the CSC reporting to the Minister of Defence, who reports to Parliament, there is no parliamentary oversight with respect to our signals intelligence agencies. They simply do not have to appear before committees such as yours if they choose not to, they don't have to answer questions, and there is no means for parliamentarians to require them to turn over information. I am grateful that the situation is being re-examined now. There is a bill before Parliament, Bill C-22, which would put together some kind of parliamentary oversight of our security agencies.
I think we need to go much further than that to ensure that our agencies, even though they do very important work to protect the safety of Canadians and Canadian interests, are not doing things that fall outside of what should be appropriate behaviour. Right now, we simply don't have proper oversight to ensure that is the case.
Senator Ataullahjan: My second question is that it seems we lose control of our permits once exports leave our country. A previous witness mentioned that the government needs guidance on this front because most exported technologies need back-end attention after they are sold, meaning they often require 20 years of service, engineering and upgrades to software to make the machine run.
How important is it for the government to keep monitoring the impact on human rights after the exportation is authorized?
Mr. Van Holst: First of all, when we talk about surveillance tools and censorship tools, the life cycle of those tools tends to be significantly shorter than decades; it's more in the order of several years. Nonetheless, it is extremely important for the operators of the software to keep on receiving updates and support. That is one of the reasons why in my opening statement I said that, first and foremost, we should focus on technical assistance.
A lot of the technology involved is actually relatively easy to cobble together a party that really wants to do so, based on openly available information. Most of these agencies involved, whether they are law enforcement or intelligence services, simply do not want the hassle; they want a turnkey solution that is kept up to date and maintained by their suppliers. That is a relatively easy spot for control, even after a sale. To make a long story short, yes, it is very important to keep on controlling the export of services of sale.
Mr. Deibert: I agree with my colleague, and I would add that it's not only important for the government to keep track of what happens after export, but also I think companies themselves have an obligation under existing international norms. UN guiding principles for business and human rights make clear that companies have an obligation to monitor how their products and services are used.
In our research, we've found that the situation can change quite dramatically. I will give an example. For many years we knew that Yemen Internet service providers were using Netsweeper to filter content. Of course, a civil war has been going on in Yemen for some time, and at a certain point during that armed conflict a group of armed rebels called the Houthis took over the capital, Sanaa, and, by extension, the Internet service provider YemenNet. They then put in place one of the most draconian Internet censorship regimes I have ever seen in my professional career. They required the blocking of access to any website, any domain ending in .il, which is the Israeli top-level domain.
When a situation changes like that on the ground, it is the obligation of the company to rethink their services, and I think failing to do so puts them in conflict with internationally recognized human rights norms. It's important for both the government and for the companies to be required to follow the trail of products and services after they leave the country.
Senator Andreychuk: I have a number of information items that I'd like you to address.
You talk about human rights, and just laterally we heard international human rights norms. I think this is the difficulty we have with nuclear technologies that we supply and virtually on any other field when we monitor.
Human rights violations occur in all of our countries; it's a question of the degree and complexity. Where is the cut-off when you say we should not be selling or when the company would have a responsibility to say that they either reported or in some way interrupt their services to that company? How do we analyze human rights?
I'm a bit confused by both of your testimonies. Are you referring to outright sales or are you talking about sales for dual use? The European situation is addressing dual use, and this has been a lot of the problem, that they say they're going to use it for one purpose and it ends up in different hands for another purpose. I'm wondering whether your testimony is only dual use, or have you incorporated all exports and sales? I address it to both of you.
Mr. Deibert: Thank you, senator. I'll address your first question, which is an excellent question and an important one.
When I look over the landscape globally — let's start with Internet censorship, although the same could apply to intrusion software — there are certainly legitimate reasons why countries would want to have in place the types of technologies we're talking about, and that's precisely why they're referred to as "dual-use technology."
When it comes to Internet censorship, I would point out that there are some circumstances where countries have in place Internet censorship at a national level; it's transparent, accountable, and citizens are aware that it's happening — for example, with respect to those countries that block access to material regarding the sexual exploitation of children.
There are other countries however, where there is no transparency or accountability and where the type of content that is blocked is considered protected under internationally recognized human rights agreements — so content related to news, to political information, to human rights organizations — or, in the case of Yemen that I just mentioned, content related to an entire country's domain registry. Those are extreme examples, but unfortunately they're the norm in a lot of countries around the world, and they are certainly the norm in the seven countries that I mentioned that Netsweeper provides its services to.
In those cases, I think it's pretty clear-cut that we're dealing with the facilitation of abuses of human rights in the product and service offering, and that's precisely why we need to look to find ways to regulate the companies, bring more transparency to the market, and have them report in a more transparent way about what they're doing.
One more example, it is not uncommon in some countries to have a blocked page yielded to a user of the Internet when they try to access banned content, and those blocked pages are a degree of transparency: Sorry, access to this content is forbidden, maybe, here's a link to the law and the ministry that made this law. I have seen cases where a blocked page will say that if you disagree with this, you can submit a petition to have the blocked page removed.
However, we have found circumstances where Internet service providers block access to information using Netsweeper services to yield what looks like an error page; in other words, the user is led to believe there is some problem with the Internet. In my opinion, this is a form of deceit. So it goes beyond blocking access to legitimate content to deceive the user that there is something wrong with the Internet, rather than information being withheld from them.
It falls on a continuum. There needs to be some judgment, but certainly there are extreme cases where most people can agree this is a human rights violation.
Mr. Van Holst: To the first question, this is about foreseeability to be used, and to go through a very clear example, the Hacking Team, the Italian supplier of intrusion software to, among other regimes, Ethiopia being one, the use intrusion software to a non-consenting counterpart is, under the Cybercrime Convention is forbidden; it is considered a criminal act.
In some jurisdictions, this may be used by law enforcement, but the very fact that the use of these tools by anyone else but the law enforcement and the proper judicial review, et cetera, under all the signatories of the Cybercrime Convention is a severe crime, should give the exports a pause, especially in light of the well-known problematic issues of the Ethiopian regime.
The fact that the very use of the technology that you're selling is, most likely, not legal for citizens in your own country, that's a pretty clear indication that something fishy may be done with it when it falls into the wrong hands.
To your second question about being focused on dual use or specific goods, so to speak, most information technology is dual use by nature. For example, the deep packet inspection can have valid uses for the diagnosis of the core elements of your network, if there are problems with that. But by and large the deep packet inspection is very often used for traffic shaping that may or may not violate rules or for outright censorship or surveillance.
So a judgment call is to be made and I would say, for the most part, there is a dual use aspect to all of it. However, I would, like Professor Deibert said, to move away from specific technologies more toward users.
Senator Andreychuk: We're talking about selling and servicing them later and the misuse of what this technology was intended for.
Do you have any cases of where the technology is pirated? In other words, it goes into a country, we know a lot of cybersecurity devices that have been purchased by other countries and then they find out the technology and they develop their own and then they move it to other countries or their own.
Is there that adaptability to pirate the intelligence of whatever equipment you're selling and then produce it as their own, so they don't need us anymore?
Mr. Deibert: As far as I know, I have not come across a case that fits precisely with what you're describing. However, I will say that the marketplace for both spyware and Internet monitoring and censorship technologies is growing rapidly. It's globallizing. There are other companies within other jurisdictions that compete with some of the companies we're talking about. The problem is that the market as a whole is very much shrouded in secrecy. So even to begin to answer your question is difficult because we know very little about how the marketplace operates.
For example, the trade shows where a lot of these technologies and their vendors are displayed, and where clients are courted, is not open to the public, typically. One has to be an accredited law enforcement or intelligence agency representative to get access to the trade show.
One point that may be relevant to what you're saying, though, that I think is worth highlighting is that there is a very extensive third-party reseller marketplace that is worthy of consideration.
If you look through the emails that were published on WikiLeaks regarding Hacking Team, one of the vendors we have been talking about, you can see correspondences between potential clients and Hacking Team's sales representatives, and within those email threads are discussions about third-party vendors, resuppliers and others. This is an area that requires further documentation and understanding, because it can be a way for companies to further remove themselves from responsibility and exercise some degree of plausible deniability concerning the end use of their product.
We had no idea it ended up in country X because it was a third-party reseller that delivered it to the country in question. For example, that was a case regarding research we did on the American company BlueCo, when it turned out their deep packet inspection technology was in Syria. After our report came out, and after other investigations were done, there was a congressional and a U.S. government investigation, which ended up levying a fine against a third-party reseller of the BlueCo technology to Syria.
The Chair: Mr. Van Holst, do you have a view on this?
Mr. Van Holst: I have a few remarks. It should not be a goal to preclude any possibility for sales of these technologies. It is worthwhile not to have Western companies actively exporting tools to suppress democratic values and the rule of law and fundamental human rights.
The Western industrialized democracies cannot prevent Russian operators from selling these tools, obviously. When it gets to pirated tools, piracy is something that cannot be prevented. However, to my understanding, several of these vendors actively tried to prevent that from happening, using digital rights management schemes, licencing schemes and service, and lastly your typical operator does not want to use pirated tools because the tool itself is about as important as the off-the-market service they receive. Unless the supplier who has been pirating the tool also supplies the services, law enforcement agencies and intelligence agency services will typically not be interested in those pirated tools.
Senator Omidvar: I have never heard of Netsweeper, and I'm on their website now, and I take your point about end user. Because they have a ticker tape on their website which tells you that in the last 24 hours they have blocked — I imagine that's what they're reporting out — 535 pages that were proponents of hate speech. They have 564 pages on substance abuse and 203 pages that they have blocked on abortion. I don't quite know what that means, whether it's for or against.
It's interesting when I look at this website; it's very cursory. We're not focusing on one vendor, but since that name has come up, there is nothing on their website that talks about values, and I find that interesting because most modern governance in Canada, at least most corporations, will have a statement of values, such as "we believe that our products will enhance the world," et cetera. There is not something like that here.
You stated we have to move our lens from the product to the end user, and we can do this through transparency on the one hand. You both talked about that at some length, but you also talked about incentives.
Could you give us some ideas about incentives and possibly deterrence? Fear is a great disincentive. Naming and shaming are some great tools. Could you fill in the picture on incentives and disincentives a bit more?
Mr. Deibert: Sure. I think that in terms of incentives, for both of these categories of technologies, the government could put in place regulatory and policy measures that penalize certain companies or structure their business dealings in a way that, for lack of a better term, forces them to deal with issues they seem to be avoiding.
I'm glad you pointed out the Netsweeper site. There is no mention whatsoever of corporate social responsibility or any type of due diligence. I would point out again, if you look at my written testimony, there are links to our reports. In some of those reports, we sent them very detailed questions concerning whether they have any due diligence and offered to publish their responses in full on their websites, and they have not replied to any of those questions to date, although they did launch a defamation suit against the University of Toronto and myself and then subsequently discontinued it in its entirety.
In terms of incentives, there are levers the government has, such as government procurement and export credit or assistance policies. Could we require the companies, if they want this type of tax credit, if they want to sell to the government — and I don't know to what degree Netsweeper products, to use that example, are used by government agencies. I know they are used extensively throughout public libraries. In order to be able to sell to government agencies at various levels, there must be a requirement that they have to go through some kind of explicit human rights due diligence process. Also, they should be ineligible for government contracts or support in any form, and by that I mean trade shows.
I think we could also have in place specific regulatory frameworks for oversight and accountability modelled on what I mentioned, the private mercenary and contractors’ forum, which would establish requirements for reporting, for enumerating prohibited activities and so forth. I think there could be some kind of requirement to have structured dialogue with companies in civil society. That's quite separate from export controls, which I think could certainly apply in this area and would be as simple as requiring companies like Netsweeper, if they want to sell their product to an Internet service provider in another country, outside of Canada, to show they have done some measure of due diligence around human rights considerations and publish that on their website.
The Chair: Thank you very much for that. Mr. Van Holst, do you have something to offer on this subject?
Mr. Van Holst: Yes. In terms of incentives, there is already quite a bit of precedent in public procurement rules in most industrialized countries, where in the case of a violation of anti-trust rules, such a company can be excluded from public procurement processes. There is a clear parallel there.
On transparency, I have to diverge a bit from Professor Deibert's views. The experience with transparency, in the case of Blue Coat, they actually received a lot more interest in their services when they became part of the limelight. They actually received more requests for quotations from even more unsavoury regimes than before.
I think the transparency focus should be on the permit process. If you have export permits, they should always be public. If you have export permits, they should always have a fairly short term and the possibility for redress in the public interest. Those are more the mechanisms I would be looking for.
The Chair: It is extremely helpful to have that testimony.
Senator Ngo: I have a question for both Professor Deibert and Mr. Van Holst.
I understand that identifying Canadian-based vendors that sell cybersecurity software to a human rights abusing country is very difficult, considering our current standard of transparency. We know that companies do sell this type of technology and that it exists, but the evidence is hard to find.
According to the OpenNet Initiative, authoritarian regimes in Asia, like China with its great firewall — last week they discovered censorship in Chinese live streaming apps — and in Vietnam with its Green Dam, maintain some of the most pervasive and sophisticated regimes in Internet filtering and information control in the world.
Do you think that the existing guidelines and policy provisions in the policy of Canada's export regime can help free and fair trade and the protection of human rights?
Do you have any recommendations for strengthening Canada's export control regime as it relates to the software that could potentially be used internationally for protected human rights?
Mr. Deibert: Thank you, senator. Your question is about whether export controls adequately capture the concerns that you have, and I can say very simply no, they don’t. If you're talking about Internet censorship, the two primary technologies of concern would be Internet filtering and deep packet inspection, quality of service type technologies.
We have Netsweeper, a Canadian company, arguably the world's leader in Internet censorship services, as documented by our extensive research, certainly a world leader when it comes to providing services to countries whose ISPs use that technology to violate human rights.
As it stands, export controls do not cover the sale of that technology specifically. There may be some areas around the export of encryption where they have to apply. I'm not exactly familiar with that, but squarely in terms of this product offering and its end use, that's not captured. I think it would require a revision in our export control regime to capture the end users and end use of Internet censorship and deep packet inspection technology where it's used to violate human rights.
I repeat that I would not specify in terms of a specific type of technology so much as the end use and end user of the service in question in order to properly capture it.
The Chair: Senator Ataullahjan will have the last question. Mr. Van Holst, if you wanted to answer that question after Senator Ataullahjan has her last question, please go ahead.
Senator Ataullahjan: Professor Deibert, you connect various Internet stakeholders, such as governments, security, engineers and civil rights activists. I learn something new all the time. I heard a new term, which I learned from my daughter, who happened to be in one of your classes. It's "hacktivism." Are you connected with each other throughout the world where you share information about what's happening and which countries are doing what? Is there a group that monitors what's happening on the Internet?
Mr. Deibert: I would say yes, there is very much a community of people who are self-identified as researchers, advocates, NGOs. My colleague and I — I'm sure he agrees with me — are part of that community. We exchange information. We try to collaborate where it's appropriate. We certainly benefit from some of the same foundations that support research and policy advocacy in this space.
I would say that the community is growing, but it faces extraordinary challenges these days, especially in the areas we're talking about: surveillance, censorship, militarization and weaponization of cyberspace. The obstacles to accomplishing progress in this area are only getting greater, but I definitely feel that I'm part of an extended community, and the Citizen Lab fills a small niche in that community around advanced research.
Mr. Van Holst: That is indeed a community. I would say that Citizen Lab is not really a small niche but a significant player in this space. I would also add that it is in many ways a vulnerable community. A lot of the research that is going on is often violating, to the letter, the cybercrime convention, which is already an example of over-broad regulation. At the same time, more of these, let's say, bad-faith actors who are in this market space are being hurt by their research and become targets themselves. Given their ties to regimes with less restraint, these people are becoming more and more vulnerable.
The Chair: I have one last question, Professor Deibert, very quickly. You talked about seeking remedies, those who may be against companies that may have abused their human rights. What kinds of remedies are you talking about, just briefly? Is that criminal, civil litigation, that sort of thing?
Mr. Deibert: Yes, senator. Specifically, I was speaking about the harms that are caused by spyware and the remedies that could exist for victims or targets of spyware where it's illegal. My colleague pointed out the cybercrime convention. Many countries have laws around interception, wiretapping and so on. Perhaps those laws need to be modified.
There are also refugee espionage laws in some northern European countries that might be relevant here, since in a lot of our reporting it is refugees or the diaspora population in other countries that are targeted by their home governments. The Ethiopia case is a good example: journalists in the United States targeted with western European spyware by the Ethiopian security services.
There is an ongoing legal case in the United States involving the Ethiopian government that could serve as a model, perhaps, and I would encourage senators to explore that more. There are links to it in my written testimony.
The Chair: We want to thank you both very much. This has been excellent for us in preparing our report. We hope to have a report out very soon, which will hopefully encourage the government in Canada to do more.
For our second panel today, we are continuing to look at gender-based analysis in the making of federal policy and legislation. We are happy to welcome the Office of the Parliamentary Budget Officer, Jean-Denis Fréchette, Parliamentary Budget Officer; and Peter Weltman, Senior Director, Costing and Program Analysis; and from the Department of Finance, Richard Botham, Assistant Deputy Minister, Economic Development and Corporate Finance Branch; Martine Lajoie, Senior Advisor, Economic Development and Corporate Finance Branch; and Harriet Jackson, General Director, Economic and Fiscal Policy Branch.
First of all, we want to thank Senator Nancy Ruth for leading the charge on this issue. We think it's extremely important. Senator Nancy Ruth retires soon. I know she won't like my saying it, but I hope our report is part of her legacy.
I don't know who would like to start, but I assume it's the Parliamentary Budget Officer.
The Chair: Welcome to the committee, Mr. Fréchette.
Jean-Denis Fréchette, Parliamentary Budget Officer, Office of the Parliamentary Budget Officer: Thank you for inviting me to appear before the committee to discuss gender-based analysis, a subject that is both important and complex. Joining me is my colleague Peter Weltman, Senior Director of Costing and Program Analysis.
When this analytical tool was introduced 20 years ago, the practice of using it was slowly taken up in the early years, but, as is often the case with certain new government approaches, the novelty wore off over time.
About 10 years ago, GBA was given a second life. That second life materialized in the form of two audits by the OAG, in spring 2009 and fall 2015, by a renewed government action plan in 2015, and, finally, more recently by a government commitment in the recent fall economic statement, from which I quote the following excerpt on page 37: The government
. . . will submit Budget 2017, and all future budgets, to more rigorous analysis by completing and publishing a gender-based analysis of budgetary measures.
I also took note that on page 34 of the same document, the government committed to renew the PBO's mandate to focus on costing and financial analysis, including analysis of the federal budget and the costing of election platform proposals.
A new legislation amending the Parliament of Canada Act still has to be tabled, which means we still don't know what this reform will exactly entail for the PBO. But no matter what, my team and I look forward to providing senators and MPs with additional analysis of the government's budgetary measures, which may include gender-based analysis, if Parliament so desires.
Furthermore, if election platform costing was added to the PBO's mandate, it is expected that certain political parties might require GBA to be conducted. For the time being, and despite limited resources, we have integrated GBA into the scoping process of PBO's reports.
To this end, the PBO senior manager's team has participated in GBA training offered by Status of Women Canada. We identify any gender-based analysis considerations that the project may raise and ensure that those considerations are reflected in the project's terms of reference, that is, if we do have access to all the required information or data.
Is it always easy? Of course not. The PBO's ability to conduct GBA depends on access to information concerning the gender-specific impact of fiscal policy choices. I hope that the government's commitment to examine the gender-specific impact of budgetary measures will mean that there will be more such data available to the PBO from agencies and departments.
I will take the opportunity to mention that our relationship and level of collaboration with Finance Canada has improved over the past few years and that it will be imperative to maintain fruitful communications if Budget 2017 includes a GBA of budgetary measures.
When we identify gender-based analysis considerations, we make an effort to incorporate the analysis in the reports we have initiated ourselves, as well as in reports that originated in requests from senators or MPs, no matter whether they ask the PBO to use gender-based analysis.
In particular, the PBO incorporated gender-based considerations in its analysis of the government's tax proposals, notably the elimination of the family tax credit, and recent changes to transfer programs, such as the creation of the Canada child benefit.
Likewise, the PBO's recent labour market assessment highlighted the differences in employment rates and hours worked among men and women, including trends for younger and older workers.
The PBO looks forward to being able to increase the use of gender-based analysis in its own work and to monitoring the government's inclusions of the results of the gender-based analysis in budget papers in years to come.
On that note, Mr. Chair, my colleague and I would be happy to answer any questions you may have concerning gender-based analysis by the PBO or any matter related to the PBO's mandate.
Richard Botham, Assistant Deputy Minister, Economic Development and Corporate Finance Branch, Department of Finance Canada: Thank you, Mr. Chair, for inviting me to address the committee today. As mentioned, I am the Assistant Deputy Minister of the Economic Development and Corporate Finance Branch at the Department of Finance Canada. I am also the gender-based analysis champion for the department. Joining me here today are Harriet Jackson, General Director of the Economic and Fiscal Policy Branch, and Martine Lajoie, who has been leading our department's work on gender-based analysis.
There is a renewed commitment to gender-based analysis, known as GBA or GBA+, within the federal government to ensure that GBA is integrated into policy, program and funding proposals brought forward for consideration by cabinet and through the budget process. Privy Council Office and Treasury Board Secretariat officials have been working with Status of Women Canada to ensure GBA is applied to proposals considered by cabinet. This commitment will help to ensure that all departments make implementation of GBA a priority.
More recently, in the 2016 Fall Economic Statement, the government committed to submitting Budget 2017 and all future budgets to more rigorous analysis by completing and publishing a gender-based analysis of budgetary measures. This is a new and important step toward ensuring that budgetary decision-making is based on more rigorous and inclusive analysis, factoring in gender and other diversity-related impacts.
Finance Canada has been considering gender- and other diversity-related implications in the development of policy and analysis of budget proposals, where appropriate and where data has existed for some time.
I am pleased to speak to some of the initiatives that have already been implemented in the Department of Finance, with respect to GBA analysis as well as more recent ones that support implementation of GBA in the budget decision-making process.
The Department of Finance is the government's primary source of analysis and advice on Canada's economic and financial affairs.
In certain policy areas, the department is the lead within the Government of Canada. The department has lead responsibility for policy development on tax and tariff legislation, major federal transfers to provinces and territories, the legislative and regulatory framework for the financial sector, and representing Canada within international financial institutions.
The department also provides analysis and advice on the economic merit and fiscal implications of policy and program proposals developed by other government departments.
Departmental officials serve as members of a broader team of federal officials from the Privy Council Office and Treasury Board Secretariat that reviews options for and the implications of, including gender implications, proposals that are presented to cabinet. These two roles, as the lead on certain policy areas and as a central agency, have shaped the department's activities with respect to gender-based analysis.
Gender-based analysis is a key policy tool for evaluating the potential impacts of proposed policies, plans and programs on people of diverse gender and other intersecting factors such as race, age, indigenous identity, education, language, culture and income, and to support informed decision making.
The Department of Finance has been preforming gender-based analysis on all new policy proposals, including tax and spending measures, where appropriate and where data has existed for some time.
Gender and other intersecting factors are integrated into all aspects of the federal budget process. Our pre-budget consultations are undertaken on an annual basis and solicit the perspectives of diverse stakeholders, including gender perspectives as well as that of other diversity groups.
In our challenge function role, the Department of Finance reviews budget proposals put forth by other federal departments and agencies and provides advice to the Minister of Finance on funding decisions. We require departments and agencies to consider all relevant factors, including gender, when developing a policy or program for budget consideration. When departments and agencies submit their budget proposals, we require their gender-based analysis as part of the proposed package.
For new policies, plans or programs that originate from Finance Canada, analysts in the department perform a GBA to determine whether the proposal will result in important impacts on diverse groups of women and men. This analysis can be brief if an initial assessment finds that there are likely to be no or few important gender impacts, or the analysis can be extensive if an initial assessment indicates that there may be significant gender impacts. The GBA can involve a statistical analysis or a fiscal simulation of the gender impacts. A summary of the results of GBA are included in the budget advice to the Minister of Finance.
With the government's 2016 Fall Economic Statement commitment, Budget 2017 will be the first to publish results of this analysis. The commitment complements well other efforts under way in the federal government. Coupled with these efforts, they will help strengthen the implementation of GBA across departments.
Finance Canada is leading on this commitment as part of its core responsibility to deliver the federal budget. The approach is currently being developed, and the department is working in close collaboration with Status of Women Canada given their considerable expertise on this subject. This will help us not only to meet the government's commitment in Budget 2017, but also to examine ways gender and other diversity-related issues can better inform budget decision making in the future.
Outside of the budget process, Finance works with departments and agencies to ensure that gender-based analysis has been fully considered during the development of memoranda to cabinet.
We have implemented a number of initiatives at the department to support the implementation of rigorous GBA and ensure that our gender-based analyses are relevant and appropriately prioritized.
For analysts and executives involved in the challenge function or in policy and program development, we have made mandatory the online course Introduction to Gender-Based Analysis Plus offered by Status of Women Canada.
We offer department-specific training for GBA so our analysts and economists are trained to conduct GBAs in the development of Finance-led proposals or when reviewing GBAs provided by other departments or agencies.
We have designed Finance-specific tools to use to perform a GBA on all budget proposals. These tools also incorporate the identification of demographic characteristics of diverse groups of women and men, such as race, age, indigenous identity, education, language, culture and income to broaden GBA to also include diversity implications.
We participate in interdepartmental GBA working groups both at the ADM and at the working level to ensure that we are learning best practices from other departments and agencies.
We also observe the government's annual gender-based analysis awareness week each spring with special communications and activities to further increase awareness and knowledge of gender-based analysis.
GBA commitments are integrated into the performance management agreements for all executives in the department. Specifically, executives are required to meet the department's GBA commitments to allow for ministerial consideration of the potential gender specific impacts of proposed policy initiatives. They are also required to ensure that employees, as appropriate, have taken the mandatory Status of Women Canada online course.
The Department of Finance was not part of the most recent audit on the implementation of gender-based analysis, but we were implicated in the previous audit in 2009. Since that time, we have been working to improve our GBA tools and processes, as outlined above, to ensure that we are fulfilling the GBA commitments we have made.
In the government response to the House of Commons Standing Committee on the Status of Women’s fourth report tabled in June 2016, the department, along with other central agencies, also committed to exploring ways to better communicate publicly the role and added value of its challenge function with respect to GBA. This is under way.
Our biggest barrier for performing gender-based analysis is gender disaggregated data. Our colleagues at Statistics Canada produce the Women in Canada report that provides some of the best gender disaggregate data on a number of topics like women's health, women in the labour market, and family and living arrangements that can provide evidence to use in our analyses. However, gaps remain.
Many departments and agencies also share this concern. We are exploring collectively how data collection can be improved and better accessed. For tax-related proposals developed within the Department of Finance, Tax Policy Branch analysts use a variety of data sources, including data that are linked to information allowing detailed analysis of gender and other diversity factors.
Another barrier is that departments and agencies are responsible for implementing GBA on proposals brought forward by their respective minister, and, as we know from the Auditor General's reports, it has been implemented unevenly and without consistency. From a challenge function perspective, this means that we receive input in different formats, styles and depths from each federal organization, which can make it challenging to incorporate that information into our advice in a meaningful way.
We have taken note of the new tools being developed by the Privy Council Office, such as the policy considerations checklist. As central agencies, we will be working together to try to align how we will ask departments and agencies to report on their GBAs given that we all use this information in a similar fashion to provide advice to the minister.
I hope that provides you with a clear picture of the Department of Finance Canada's mandate and role with respect to gender-based analysis. Through our collective efforts, we are ensuring that gender and other diversity-related impacts are meaningfully incorporated into ministerial and cabinet decision making and that those decisions are sensitive to potential impacts on diverse groups of men and women.
Senator Nancy Ruth: Thank you very much. I know it's a process. I know it has taken decades to get this far. I hope it takes just a few years to improve it.
The lack of gender disaggregated data is a huge issue. I know the PBO did some reports on single-parent families, but you didn't disaggregate the data, so I don't know how many are male-led or female-led families. I know Kevin Page toyed around with doing DBA way back when and didn't. One is always looking for improvements.
The Status of Women online training doesn't particularly turn me on at all. Not that the instrument is unworthy, but there is great difficulty in measuring what the outcomes are from that. You can educate people, and so what? What policies have changed? How is it done?
Assistant deputy minister, in your report, there are a lot of comments about leading and doing it and so on, but I don't know what it means. I'd be very grateful if you or some of your officials could tell me what is it that is actually happening, and whether it is the tax section of your department or some other section of your department. What is it that's happening, and what difference, if any, has this online course taken?
I also want to know — this is for the budget office, too — does Status of Women have the resources to assist you with, say, a tax question or a social policy question or something else?
I listened to the Deputy Minister of Health the other day talking about GBA in his department. What I understood, although we're in an email conversation now, was that the GBA was almost applied at the end of the policy development. This is absolutely absurd. If it's not in at the beginning of the policy development, it isn't going to work.
Another issue I want to know: Have you looked at what Argentina and Sweden are doing, and so on and so forth? I have a bunch of questions about how it actually works.
Mr. Botham: In essence, the way I understand your question, senator, is: Why are we doing what we're doing, and is it making a difference?
Senator Nancy Ruth: Yes. I do appreciate you don't have enough data to be as rigorous as we would all like.
Mr. Botham: Yes. First, I go back to one of the elements in my remarks around the kind of commitment that the department has undertaken.
From my perspective, for our department to be more effective —
Senator Nancy Ruth: I don't want to hear about commitments. I want to hear about outcomes.
Mr. Botham: Fair enough. What I'm hoping is that my remarks get you to outcomes, but if I don't answer the question satisfactorily, I know you'll follow up.
To be effective and to achieve outcomes, you have to identify something has as a priority. If it's not a priority, people will not act on it. That's why I start with the commitment.
So it has been identified as a priority. It's a priority for all executives in the department, and it has been identified as a priority for employees.
The second part to achieving an outcome is making sure that people have the tools available to follow through and to achieve that outcome. Really, the start of that is the online training. Without prejudice to the merit of that tool, it is the tool that we have available, and so, once we have identified for the department that these are things that analysts should be integrating into their day-to-day work, we have to make sure that they're capable of doing that, hence the online training and ensuring that all analysts have access to that. We've made it mandatory so that they actually take that training.
The third part in terms of the objectives and outcomes is how effectively we're going about the implementation of that, and your remarks on data and my remarks on data are only to highlight that this is a process that need to work through. Like any kind of policy advice we give to the minister, we start with what data is available. We find out where there are gaps, how we need to refine that process. It really is a process. It's one that we have integrated into our work but are more fully integrating this year and then in subsequent budgets.
You also mentioned the importance of integrating that analysis at the front end of the policy stage, so I think where we are doing that is in the two thrusts of our departmental activities that I referenced. The first is in our work as a central agency undertaking the challenge function, so that really is at the front end of the policy process. That is in the development of memoranda to cabinet that ministers are bringing forward.
That's integrated at the front and then also within our own internal work for those things that Finance Canada is uniquely responsible for within the Government of Canada. That's integrated into the front end of the policy process because that analysis informs our advice at the front end, when advice goes to the minister on specific proposals, either within the budget process or outside of it.
Senator Nancy Ruth: Could you just tell me a story, give me an example? It's a lot of words that you have said, but I still don't know what you mean.
Mr. Botham: I have a bit of difficulty giving you a real example.
Senator Nancy Ruth: Give one from two years ago or something.
Mr. Botham: Because all of our real examples on the budget process have to do with the budget. There are cases where there is a policy issue. Every policy issue gets looked at, so there are cases where it gets looked at. There is an initial assessment, and there is a determination that gender is not a large factor in that policy file. I may pick an example for which someone will be able to identify a gender impact that I'm not aware of, but, for a species-at-risk issue, if there is a bird that is at risk in some part of the country, generally, we would need to do a gender-based analysis for that. But our initial assessment would likely find no gender impact.
Another case could be a labour market issue. If it is a labour market issue related to training, there would be an initial assessment. I think that, in a case like that, there would be a clear determination that this is an issue that likely would have a gender-based implication. Then, our analysts are then required to do a much deeper dive to think about many dimensions of that issue from a gender perspective, to identify what those are, to find relevant data that would inform the minister about those various aspects. There is a long-form analytical piece that is completed and is integrated into our overall briefing on that issue, and that is provided simultaneously to the minister for consideration of that issue.
Senator Nancy Ruth: Can you tell us a little bit about this long form? What's in it?
Mr. Botham: We do have a standard template that is made available to all analysts. We also have training sessions so that they understand how to use that.
It starts with what the initiative is. It talks about whether or not a gender-based analysis has been performed by another department so that we can draw on that, whether it was satisfactory, whether issues were missed, follow up if we feel that we have information to bring to bear on that topic.
We identify who the target groups of the initiative are. Will this have a different impact on diverse groups of women and men in different ways? If so, how? Does the initiative improve the situation for all of these groups? Would there be unintended consequences, negative impacts? Are there barriers —
Senator Nancy Ruth: Are these checkoff boxes, or are they analytical paragraphs? What are they?
Mr. Botham: They are analytical paragraphs within a piece of advice.
Senator Nancy Ruth: I remember that, when Sheila Fraser did the first GBA audit, she wasn't very kind to the Department of Transport. The minister at the time said, "What's she talking about? Transport, that's gender neutral." I said, "No, women live in cities; the poor live in cities. If you're only building bridges and highways, you're not servicing the needs of the people of Canada."
Your first example, for me, is somewhat akin to building highways. Are we building new highways near the Pickering nuclear station so that we can move whatever, and how is that going to impact women? That's where I'm coming from; let me put it that way. I'm not sure I'm going to get anywhere with my questioning right now, so I'm hoping some of the other senators will pick up on it.
I did want to know from the PBO, though, you're under the jurisdiction of the Library of Parliament. Have you had specific instructions from the Library around GBA in your PBO?
Mr. Fréchette: No because we're under the Library of Parliament but only for administrative purposes. I mean by that just budget. The budget is coming from the Library of Parliament.
Our operations are independent within the independent Library of Parliament, so our operations are based on our own operating plans. As I mentioned in my presentation, the library has its own guidelines and so on. I was with the Library 20 years ago. We had training, and that's where my training began 20 years ago. The PBO operates ourselves; we have our own policies, our own guidelines.
You talked about the outcome. The situation of the PBO is a little different from departments. We're not into policy development. What I highlighted in my presentation about Budget 2017 is that we will need cooperation and communication with the departments, Treasury Board and Finance. They do have the information, as my colleague Mr. Botham mentioned. They do have briefings that they provide to the minister. Those briefings are not always public. For us, having access to those documents will be imperative in the future if we have to do analysis of the budgetary measures included in Budget 2017. That being said, if I may, Mr. Chair, I would like to add something. There is something important. We talk about priorities, access to information and data and so on. You can have all of the priorities, and the departments can have all of the guidelines, but you have to have leadership somewhere.
You mentioned the Library of Parliament. I share information with my colleague the Parliamentary Librarian, and she has shared with me some of the suggestions that you provided.
One of them says:
Committee chairs and executive committee members need to be "champions" for GBA and human rights and to make sure that it happens in their committee's work.
I work with committees, so I appreciate this because I need that champion. I cannot be the champion of GBA because I'm just a servant of parliamentarians. For me, this suggestion is imperative.
Senator Nancy Ruth: That's good to hear. If I may, chair, just two more things: I understand it's a priority. Of course, I'm looking for it to be a norm, not a priority, but I would like some reflection on Argentina and Sweden. Are there any lessons that the Department of Finance has learned in terms of their budgetary experience?
Mr. Botham: I'm certainly not familiar with those cases, but maybe one of my colleagues is.
Harriet Jackson, General Director, Economic and Fiscal Policy Branch, Department of Finance Canada: Thank you for the question. At the moment we are looking at a variety of things that other countries have been doing, including Sweden, in particular. They publish an annex to their budget each year and have been doing so since about 1988, I think, which has in it an analysis of the budget in terms of GBA as well as other data on how women are doing in a variety of different areas.
We are trying to get a hold of this. We've been working with Status of Women Canada closely on this, as well, and our understanding is we do not have a translated version; it's not available in English. But we are looking at what they're doing.
We're also trying to work closely with the OECD, which has a variety of suggestions about gender-based budgeting and reporting. We're still in the early stages of this and will be working with Status of Women Canada as closely as we can on what this report will look like and how we'll develop it.
Senator Nancy Ruth: And you might take a look at Argentina and avail yourself of resources available in Ottawa, by request from the ambassador, in briefing?
Ms. Jackson: Certainly, we'll take as much help and information as we can get in developing this.
Senator Ataullahjan: In the fall economic statement, the Department of Finance Canada indicated that it will complete a gender-based analysis of budgetary measures. Does the department have staff with specialized knowledge of equality rights and gender expertise? Will the gender-based analysis of budgetary measures include other intersecting forms of discrimination, such as that based on language, race and sexual orientation?
Mr. Botham: I will start and then turn it over to my colleague.
To the first question, I don't think it would be fair to characterize any of the employees in the department as having a specific, focused expertise in the area. It is for that reason that we are collaborating with Status of Women Canada; we really look to them as the centre of expertise. But at the same time, there are, as I've indicated, employees who are trained to apply those concepts and then, as Ms. Jackson mentioned, we're looking beyond Status of Women Canada with a new commitment because we recognize that there are best practices we can draw on from other jurisdictions.
Ms. Jackson: In our department, we have quite a few people who are very good at the deep economic modelling, working with data and looking at the implications of various policy proposals across different types of women and income levels. To the extent that we can find data we have models and tools available to us that we can use for this analysis.
At the same time, as Mr. Botham said, I would agree that we don't have people who are specifically focused on gender-based economics within our department. That's why we're working closely with Status of Women and together I think we have the modelling expertise and Status of Women can help us with applying an appropriate lens.
Senator Ataullahjan: I can sense Senator Nancy Ruth's frustration because we hear statements like "trained to apply." What does that mean? Is there any follow up to see that everyone is doing what they're supposed to be doing? I don't know. I'm not really getting answers. Why do you not have staff with specialized knowledge?
Mr. Botham: There are two parts to the question, as I understand it.
First, there is ongoing follow up. There is follow up to ensure people have undertaken the training, and there is an ongoing assessment about the effectiveness of that training, because what's required is for people to apply those skills in the development of analytical pieces.
That analysis is judged both in terms of its comprehensiveness and its application by executives in the department, just as any other analysis is judged and deemed to be comprehensive in terms of scope and in terms of detail and relevance. That's ongoing, just as all advice is assessed that way, and GBA is integrated into every single piece of advice for new policies and program development, so we certainly do that.
Why is it that we haven't developed or hired people with other expertise? I think at this point in time, we feel that we are capable of undertaking the commitments that have been made by the department.
We are entering a new phase in both the analytics and the public reporting of that with the commitment that was made in the economic statement, which we will carry through in the budget. It may be at that time we will find we do not have the expertise required to successfully carry through the commitments. If we were to find that then, absolutely, like on all policy issues, we would take the same approach. If we were not adequately providing a high quality of advice, we would bring in the expertise to make sure we can do that.
That may be something that the department will be confronted with in the next few months but I don't think we are able to make that assessment right now.
Senator Martin: You partly answered the question I was going to ask, but following up on Senator Nancy Ruth's question and what Senator Ataullahjan said, I was wondering if there is a constant lens through which you're looking at everything at all stages, and whether that would ensure that GBA is considered at all levels and on a consistent basis.
You said you work closely with Status of Women, but how regularly are you interfacing? Are you sitting down together? There is a lot going on all the time, but I wonder how often that sort of close interlocking is done.
Martine Lajoie, Senior Advisor, Economic Development and Corporate Finance Branch, Department of Finance Canada: We're part of a community or a network of representatives from the different departments that meet on a quarterly basis.
It normally is the GBA champion or representative for each department who meets with Status of Women Canada, the Privy Council Office, Treasury Board of Canada Secretariat and ourselves. That is basically to go over where each department is at in terms of the implementation of GBA, what barriers and challenges they are facing, and how we can build from lessons learned from other departments. It's a process of building a knowledge base for all departments.
In recent months and as a result of the renewed commitment, there is increased interest from all departments in ensuring we all learn from best practices.
Status of Women has just moved on from a regular quarterly meeting to sectoral meetings with different departments to ensure there are broader discussions on files that are relevant to a number of departments, but maybe not all, and we are participating in these meetings as well.
Senator Martin: Quarterly is not often, and regarding doing sectoral meetings, I know how busy every week is. I guess this speaks to a need to have somebody in the department that is always present. That's just my conclusion; thank you for that answer.
Ms. Lajoie: If I may follow up, these are the official meetings that take place but we are in discussion with Status of Women when we have an issue raised within our analysis. We have good collaboration with Status of Woman in ensuring we have the right tools and we understand the issues well, and I know that Status of Women Canada has been helping a number of departments as they develop proposals and helping to shape the GBA the departments are doing.
There are the official champions' meetings to follow up and take stock of where we are at, but, at the working level, there are discussions under way as people develop proposals.
Senator Martin: Okay, thank you.
The Chair: Thank you very much. We have about 15 minutes, and this is fascinating.
Senator Omidvar: Like my colleagues before me, all three of them, I think senators are experiencing a challenge in touching and feeling what you're doing in concrete terms, to understand government investment and its impact, so I'm going to ask you very concrete questions.
We have before us, in the Senate, to discuss sometime in the next few weeks, hopefully, Bill C-2, which is the bill that focuses on tax cuts for the middle class. Did your department do a gender-based analysis on this bill? That's the first question.
If so, can you share it with us as we deliberate on this bill? That would be helpful. I can touch and feel that.
My second question is: Can you give me an example of when you considered women's unpaid work in your analysis on, let's say, a social policy?
Mr. Botham: With respect to the bill, absolutely, there would have been gender-based analysis on the proposal before it was provided to the Minister of Finance because that would have been part of the budget process.
You've asked whether we can share that. Because it's part of our budget advice to the minister, it's covered as a cabinet confidence. So that isn't something that I can share.
Senator Omidvar: We can get it.
Mr. Botham: As to the last question you had, this unpaid work regarding social policy, I'm sorry. I don't work on social policy issues, and so I'm unable to give you a real, live example of whether that has been undertaken or on which particular file, just because I'm not as intimately familiar with the advice that's developed on social policy.
But, if the committee would like, I can follow up within the department and see if I have a specific answer to your question.
Senator Omidvar: Or a more complex answer would be fine, too, but if you could get back to us.
Mr. Botham: Absolutely.
Senator Nancy Ruth: I'd like to be assured that, when you're doing gender-based analysis, there is an understanding that women's unpaid labour is part of doing GBA always, always, always, on every policy.
I've got to ask the two women who are with you, have you ever seen it done in the Department of Finance?
Ms. Lajoie: As Mr. Botham, stated, I'm not familiar with the development of proposals that touch on social policy.
Senator Nancy Ruth: I'm talking about doing gender-based analysis. You can't do GBA without looking at the lives of women, or you do your GBA plus. But the lives of women include, to a large extent still, in this country, a great deal of unpaid labour.
You're both of an age where I'm sure you're doing a lot of it. I just want to be assured that that's counted in, and I suspect it isn't. I want to encourage the department to do so.
Mr. Botham: Mr. Chair, maybe that is something that I can follow up on, specifically regarding the issue of unpaid labour and when that may have come up and the extent to which it has been integrated into different analysis.
The Chair: Something tells me it will be in the report.
Senator Gagné: I am going to approach the issue through a different lens. I realize that the government has made a commitment in this regard and is making the issue a priority. Tools will be made available to make it easier for people to adopt the recommended approach. Measuring how effective the implementation is will be important.
Leadership is another issue. A government-wide change in corporate culture is needed in order to change behaviours and manage GBA-related changes differently. What can we do on a daily basis to make that cultural shift successful? I am referring to concrete steps that are in line with the values and attitudes we want to see.
Mr. Botham: I mentioned the tools made available to staff and the department’s priorities, but only the implementation of a new public policy approach will determine whether the approach is a success or failure. The department must provide for measures in the budget in support of that. That’s our next step.
Mr. Fréchette: I am going to use a less-than-perfect analogy, drawing a parallel with official languages. From a cultural standpoint, Senator Nancy Ruth expressed her desire to make it the norm. Gender-based analysis is part of people’s mores; it’s a reflex they have, but sometimes, they forget to think about it.
It would never occur to public servants to create a document that would not eventually become bilingual. They receive regular training to that end, so no one ever considers drafting a document that will never be translated. It took many years to bring about that change as far as respecting official languages is concerned.
That same change in culture will also happen for gender-based analysis, but it will take some time. It’s a concept that has been around for 20 years, so the process is still relatively young.
Senator Gagné: Thank you for that comment. You understood what I was getting at with my question. It ties into what Senator Nancy Ruth was saying in relation to the Minister of Transport not knowing how to deal with the issue. We understand the importance of bringing about a cultural shift within an organization or a government. However, structuring it the right way is key in order to take steps to manage and foster that change. It’s a good start, and I realize how much sustained effort is needed to make it happen.
Let’s consider pay equity, something I spent 30 years fighting for. The challenges still exist. The change in culture I was talking about hasn’t happened yet.
Ms. Lajoie: The department is conducting campaigns to raise awareness of the emphasis that has to be placed on gender-based analysis. Despite providing tools and training, it decided to make certain training courses mandatory, which speaks to its commitment. That is one way to bring greater awareness to the issue among the population while fostering that change in culture.
As Mr. Botham indicated in his opening remarks, we mark Gender-Based Analysis Awareness Week every spring. It is a week dedicated to awareness raising, and we hold activities for all employees to help them learn more about gender-based analysis. Today, tools are available, training is provided and analysts apply the approach daily in the course of advising the minister.
As Mr. Botham said, all briefing notes prepared for the minister contain a mandatory section laying out the results of the gender-based analysis. The analysis is supported by documentation in which analysts report on departments’ accomplishments or conduct their own analysis when drafting policies. It does require a change in culture, but we have the tools and mechanisms in place to further educate people about GBA+.
The Chair: Thank you. I have a couple of quick questions before we close. I remind senators that, when this public meeting is over, we will go in camera for five minutes on administrative rules.
I would assume the PBO and Finance have engaged with civil society to get some of their expertise to move towards GBA plus-plus, you might say. Have you done that? Has there been that engagement with those who may have stronger expertise than sits in Ottawa?
Mr. Botham: For our part, we are looking to Status of Women Canada as the centre of expertise within government. I'm not aware of our department having reached out specifically to particular groups to help us do gender-based analysis plus.
Peter Weltman, Senior Director, Costing and Program Analysis, Office of the Parliamentary Budget Officer: For us, it's project specific. When we were doing work on pensions, health care and veterans' benefits, we reached out to organizations that had the capacity to do some analysis on GBA.
The Chair: We can't live and work in silos. I think Senator Nancy Ruth has talked about this. I'm looking directly at the PBO boss. Parliamentarians, putting myself in this bracket, have to understand a bit more. I was just given a look at the online survey, and all I can say, for a person like myself, as a parliamentarian, is "help."
How are you going to support parliamentarians? We're asking departments to do all of these things. There are 105 senators and 338 members of Parliament. I think an online survey will help to start the process. Are you prepared to do that, and to have seminars and understanding, to have that kind of training for parliamentarians? At the end of the day, we have to pass legislation and implement GBA plus.
Mr. Fréchette: It's not the PBO that will provide the training, but for us it will be a challenge. As I mentioned, it will be a challenge in the upcoming years in terms of budgetary measures that will be based on GBA.
Training is an ongoing process within the office. It's a small office. We have 14 analysts. That's the organization. We're going to need more resources. That's why I hope that we'll have more resources when the new legislation will be tabled so that it will account for this new challenge that we will be facing with Budget 2017.
The Chair: Thank you very much. We're all in this together, and we really appreciate your being here today. I think it has helped us all. We'll soon have a report out that will incorporate some of the good work that the public service is doing. We can't forget about the public service and how much you do. We appreciate it very much.
(The committee continued in camera.)