Standing Committee on Public Safety and National Security Wednesday, November 26, 2014 Chair

Standing Committee on Public Safety and National Security Wednesday, November 26, 2014 Chair
Standing Committee on Public Safety and
National Security
SECU
●
NUMBER 041
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2nd SESSION
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EVIDENCE
Wednesday, November 26, 2014
Chair
Mr. Daryl Kramp
41st PARLIAMENT
1
Standing Committee on Public Safety and National Security
Wednesday, November 26, 2014
● (1530)
[English]
The Chair (Mr. Daryl Kramp (Prince Edward—Hastings,
CPC)): Welcome, witnesses and colleagues, to meeting number 41
of the Standing Committee on Public Safety and National Security.
I'm going to focus exclusively on the foreign surveillance aspects
of the bill that is before this committee. Later today Professor Kent
Roach will be appearing before you and he will be speaking to the
informer privilege component.
Today we have, of course, two hours of testimony and statements
and questions. For the first hour we'll have three witnesses. For the
second hour we'll have three witnesses also. In the second hour two
of them will be joining us by video conference.
These are my views in brief. I support the proposed amendments
to sections 12 and 21 of the CSIS Act. That said, I think there are
three omissions in this bill that this committee should correct. I see
these corrections as necessary to pre-empt another half-decade of
litigation, controversy, and uncertainty.
I would just bring to the attention of the committee that while of
course we always have opening statements of up to 10 minutes and
we generally limit them to that in order to allow time for questioning,
I've been advised by one of our witnesses that his opening statement
would be substantially longer. He has agreed to abbreviate his
statement but he would like his full statement put into the record so
that it is available to the committee to be evaluated. You're not going
to hear his full statement. You'll hear his abbreviated version, and of
course in Q and A you can ask him about anything. His full
statement will be available to the committee for observation.
Clause 8 in the bill addresses the core confusion flowing from
three Federal Court decisions. In enacting these amendments, you
will now be emphatically asking a court to bless CSIS covert
surveillance that may violate international or foreign law. In our
system, Parliament has authority to expressly grant powers that
violate international law so long as those powers do not then also
violate the Constitution. I see no constitutional complaint, assuming
we are confining our discussion to surveillance issues and not, for
instance, including interrogation or other more aggressive forms of
investigation.
[See appendix]
Mr. Scott.
Mr. Craig Scott (Toronto—Danforth, NDP): Mr. Chair, the full
statement beyond what he says will be translated first before it's
made available.
The Chair: Yes, absolutely. The only other alternative would be
to lengthen the statement but then, of course, if we go full length
with the statement, that will mean less time for the committee to be
able to discuss with our witnesses. The chair thought that would be
the best way to approach that, and I thank you for your cooperation.
So, we now have with us Craig Forcese, associate professor with
the faculty of law at the University of Ottawa. We also have Wesley
Wark, professor at the graduate school of public and international
affairs at the University of Ottawa. From the Canadian Police
Association we have Tom Stamatakis, president.
Gentlemen, we will go straight to your opening statements for this
first hour.
We'll start off with Mr. Forcese, please.
Prof. Craig Forcese (Associate Professor, Faculty of Law,
University of Ottawa, As an Individual): Thanks very much, and
thanks to the committee for asking me to testify today.
As noted, however, I do see several critical omissions in this bill.
First, it is not clear when the service will be obliged to obtain a
foreign surveillance warrant. The existing statute speaks of belief on
reasonable grounds that a warrant is required. In a domestic
surveillance operation, these grounds arise when failure to obtain a
warrant would violate section 8 of the charter governing searches
and seizures or Part VI of the Criminal Code. But the applicability of
these two laws, and especially the charter, to foreign surveillance is
uncertain. As a consequence, the existing reasonable grounds
threshold is unhelpfully ambiguous when applied to the new warrant
powers in this bill.
I think in the final analysis a warrant will be required whenever
foreign surveillance involves covert interception of telecommunications. I also believe the amendments may be interpreted as requiring
a warrant any time an operation may violate international or foreign
law. These would be sensible standards, but because the bill is not
emphatic, establishing these standards may require another round of
litigation. Therefore I strongly urge the committee to pre-empt the
necessity of another half-decade of uncertainty by adding clear
language on the trigger for seeking a foreign surveillance warrant. I
have proposed language in an annex to my brief, which I have
supplied to the clerk, and which will be available to you pending
translation.
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Second, since this bill was tabled, the Supreme Court has issued
its decision in Wakeling. That case concerned the RCMP but in
practice the holding extends equally to CSIS. A majority of the court
concluded that section 8 of the charter applies to sharing intercepted
communications between Canadian authorities and foreign counterparts. To be constitutional, a reasonable law must authorize intercept
sharing. A reasonable law is one that includes sufficient accountability and safeguard regimes, according to the court. Right now,
there is no clear law on CSIS international intercept sharing. At best
there is generic, more open-ended permission in the Privacy Act,
which seems unlikely to survive a constitutional challenge.
I would strongly urge this committee to again pre-empt years of
litigation by codifying an express statutory authorization for
intercept sharing that also includes required safeguards. I have
proposed language in the annex addressing this issue.
Last, we are now at the 10th anniversary of the Arar commission. I
note with profound concern that Parliament has failed to legislate
any of that commission's critical recommendations dealing with
coordination between the review bodies for CSIS, CSE, and the
RCMP. Instead, we have closer and deeper coordination among
security services but review remains firmly limited to institutional
silos, and indeed we have reported instances of the security services
questioning and perhaps impeding the ability of review bodies to
coordinate their review functions.
This bill gives CSIS a freer hand and will necessarily deepen its
relationship with CSE and foreign agencies. The bill should also
include provisions that augment the authority of the review bodies to
keep tabs.
● (1535)
Again, I propose language in the annex that addresses this
concern.
Let me end with a related plea. CSIS' review body, SIRC, is
suffering the effects of neglect. Its membership has been below
strength for a considerable period of time. It has been rocked by
scandal at the leadership level, and its level of resourcing has not
kept pace with growth in the operational budget of CSIS. For all of
these reasons, I would ask this committee to move on the issue of
accountability.
Let me end there.
Thank you very much.
The Chair: Thank you very much, Mr. Forcese.
We will now go to Mr. Wark.
November 26, 2014
gence has become more significant, more powerful, better resourced,
more closely aligned with allied partners, and more globalized in
terms of its operations and capabilities. As an important constituent
of what is called the Canadian security and intelligence community,
the Canadian Security Intelligence Service, CSIS, has undergone its
share of revolutionary change since 2001. CSIS has become, de
facto, a hybrid service, required to deal with an ever-expanding
range of threats to national security and to operate both at home and
abroad.
The issues that arise with regard to Bill C-44 reflect the fact that
CSIS’ functions have changed enormously since the 9/11 attacks,
and also, clearly, since the passage of the original CSIS Act itself,
and have changed both in terms of the kinds of threats that CSIS
must operate against and in terms of its geopolitical scope.
In my specific remarks on C-44 I intend to focus on what I think
are its key provisions regarding CSIS overseas operations, including
those targeting Canadians. C-44 would add clarifying language to
section 12 of the act, indicating that in the performance of its security
intelligence function it can operate both within and outside Canada.
It further adds that Federal Court judges may issue warrants to allow
CSIS to collect threat-related intelligence on Canadians abroad under
its section 12 powers. C-44 also stipulates, in amendments to section
21 of the CSIS Act, that CSIS may apply for warrants to conduct
section 16 operations, that is, the authorized collection of foreign
intelligence within Canada.
To understand the key elements of Bill C-44 we need to put these
in the context of a series of judgments made by the Federal Court
with regard to CSIS extraterritorial warrant applications. This history
begins in 2005 and follows a winding and complex path down to the
present. There is not time in these hearings to adequately summarize
this history, but let me note that the current stage was set by a ruling
from the Federal Court of Appeal this past summer, which has been
followed by an appeal by the Attorney General to the Supreme Court
that remains pending.
You have the floor, sir.
Mr. Wesley Wark (Professor, Graduate School of Public and
International Affairs, University of Ottawa, As an Individual):
Thank you, Mr. Chair.
Ladies and gentlemen of the committee, it's a privilege to appear
before you. I'm grateful for the opportunity. I'm the long-winded
witness, so I'm going to read a condensed version of my statement.
Since the 9/11 attacks, the role of intelligence in Canadian
national security policy has been revolutionized. Canadian intelli-
In his application for leave to appeal, originally dated September
29, 2014, and unsealed in November of this year, the Attorney
General summarized what was at stake as follows, “This case is
about how the Canadian Security Intelligence Service (CSIS) may
lawfully enlist the aid of foreign security agencies in monitoring the
activities of that small number“ of Canadians who leave the country
to engage in activities that threaten national security.
November 26, 2014
SECU-41
Whatever is ultimately decided by the courts with regard to the
lawful enlistment by CSIS of foreign security agencies, there are
other issues of principle and practice at stake. The most important
such issue concerns sovereign control. To enlist the aid of foreign
security partners, such as the Five Eyes countries, in intelligence
sharing is one thing. To outsource intelligence collection to a foreign
partner, no matter how close and trusted an ally, is another.
Outsourcing means potential loss of control of an operation, loss of
control of Canadian intelligence, and loss of control over outcomes.
The Security Intelligence Review Committee commented on this
matter by saying:
The risk to CSIS, then, is the ability of a Five Eyes partner to act independently on
CSIS-originated information. This, in turn, carries the possible risk of detention or
harm of a target based on information that originated with CSIS. SIRC found that
while there are clear advantages to leveraging second-party assets
—that is, the Five Eyes countries—
in the execution of this new warrant power
—the so-called CSIS 30-08 warrants—
3
The Federal Court of Appeal's decision was available to the
government long before Bill C-44 was tabled. Why the government
decided go down two separate forks of the road, with partial
amendments to the CSIS Act and with an appeal to the Supreme
Court, when these two forks might well bring them to a collision at a
future junction, remains a mystery to me.
Bill C-44 does not add any new provisions to the CSIS Act to
ensure proper consultation between the service and its minister, the
Minister of Public Safety, and the two departments most likely to be
impacted by expanded CSIS overseas operations—the Department
of Foreign Affairs, Trade and Development and the Department of
National Defence. Both of these departments engage in their own
overseas intelligence and information collection through dedicated
branches.
—and, indeed, this is essential for the process to be effective—there are also clear
hazards, including the lack of control over the intelligence once it has been shared.
C-44 cements the evolution of CSIS into a hybrid agency that
conducts both domestic security intelligence and foreign intelligence
missions. Clarification of the legal standing of CSIS in these regards
poses the danger of closing off discussion of the eventual need for a
separate foreign intelligence service as a better solution to Canada’s
intelligence needs, and a solution much more in keeping with the
practices of our close Five Eyes partners.
More important than what C-44 does is the question of what it
does not do. What it does not do is provide any sensible underlying
definition of the kind of hybrid agency that CSIS has now become,
and it does not provide any added controls, accountability measures,
cooperative frameworks, or transparency measures around increased
overseas operations by CSIS.
● (1540)
I want to conclude with a selection of some of the issues that I see
arising from Bill C-44.
Bill C-44 applies legal band-aids to the conduct of section 12 and
section 16 operations, only because we persist with a wholly
artificial legacy distinction between security intelligence and foreign
intelligence. CSIS officials used to make the distinction between
security intelligence and foreign intelligence in terms of security
intelligence being what Canada needed to have and foreign
intelligence being a category of knowledge that it might be nice to
have.
In a post-9/11 world, I would suggest that a distinction between
foreign and security intelligence is meaningless for Canada, and the
fact of its meaninglessness underscores the need for a more root-andbranch redrafting of the CSIS Act itself.
Having decided to appeal to the Supreme Court, the Federal Court
of Appeal's ruling with regard to the Mosley judgment on CSIS' use
of extraterritorial warrants, the legislative provisions of Bill C-44
may be rendered null or may require further amendments, depending
on whether the Supreme Court agrees to hear the appeal and
depending on the nature of its findings.
Bill C-44 does not add any statutory requirements on the part of
the CSIS director to inform the minister with regard to the
undertaking of sensitive overseas intelligence collection. The most
recent SIRC annual report found that CSIS needed to keep the
minister more fully informed about foreign operations and section 16
investigations. SIRC, in a special study of what it calls a “sensitive
CSIS activity” also urged that CSIS reporting to the minister be done
in a “formal and systematic manner”.
These are indications that not all is well in terms of the
relationship between the service and the minister, and that ministerial
accountability for CSIS may be less rigorous than it should be.
Bill C-44 does not restore the functions of the Inspector General's
office, originally established in the CSIS Act in 1984, and closed
down by the government as part of an omnibus budget implementation bill in 2012. The role of the Inspector General as the “eyes and
ears of the Minister” might be considered all the more critical in an
age of expanding CSIS overseas operations. As the former longserving CSIS IG, Eva Plunkett stated that the abolition of the IG
function was a “huge loss” for ministerial accountability.
Bill C-44 adds no new clarifying mandate or resources for the
Security Intelligence Review Committee, in keeping with the
statutory provisions authorising CSIS collection under section 12
abroad.
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Last but not least, Bill C-44 is silent on the issue of the need for a
dedicated, security-cleared parliamentary committee to ensure the
ability of Parliament to properly scrutinize the activities of CSIS and
related Canadian intelligence agencies in an age of globalized
operations and diverse threats to national security. Such a committee
of Parliament was recently proposed by Joyce Murray in her private
member's Bill C-622, and has also been proposed in the Senate Bill
S-220 advanced by now-retired Senators Hugh Segal and Romeo
Dallaire. And Wayne Easter of this committee earlier offered the
House a similar version of proposed legislation, Bill C-551. The
government continues to deny the need for such a new structure,
despite all-party support for just this thing in 2005.
In conclusion, Bill C-44 in my view is a poor quality band-aid. It
may also be a very temporary one, depending on a future Supreme
Court ruling. It is unimaginative and it fails to address the most
significant legacy issues around the CSIS Act, which is now 30 years
old and was created for a different threat environment, in a different
technological age, and in a different climate of democratic
legitimacy.
● (1545)
It persists with an artificial statutory distinction between security
and foreign intelligence, offers insufficient clarity about CSIS
powers, and offers no new measures of transparency and accountability concomitant with the new and increased role being played by
CSIS.
Thank you.
The Chair: Thank you very much, Mr. Wark.
We will now go to Mr. Stamatakis, please.
Mr. Tom Stamatakis (President, Canadian Police Association):
Thank you, Mr. Chair.
Good afternoon, members of the committee.
I appreciate having the opportunity to speak with you all today, in
person for a nice change, regarding your ongoing study of Bill C-44.
I'm appearing today on behalf of the Canadian Police Association, an
organization that represents over 54,000 front-line civilian and sworn
police personnel serving Canada's communities from coast to coast
to coast.
My opening statement will be quite brief this afternoon as I hope
to leave enough time to answer any questions you might have. I'm
going to focus particularly on the area of the protection of human
intelligence sources by law enforcement in the course of our duties.
That being said, this is my first opportunity to appear here in Ottawa
since the tragic events that took place on October 22, which claimed
the life of Corporal Nathan Cirillo only a few blocks from where
we're sitting today. He was shot by a terrorist who would have
claimed even more victims if not for the courageous actions of those
who are sworn to protect Canadians. To members of the Ottawa
Police Service, the Royal Canadian Mounted Police, and the House
of Commons Security Services, I'd like to offer my personal thanks
for their efforts that day.
I raise this, particularly in the context of my appearance here
today, to highlight the need to adapt our laws in this country to
provide law enforcement with the necessary tools to combat the
November 26, 2014
rapidly evolving threats that can very clearly cause tremendous
danger here in this country. That is why we're quite pleased to speak
in support of Bill C-44 here today.
One of the most important jobs that have been given to our
national security services, which would certainly include both
municipal and provincial police, is the gathering of the necessary
intelligence that would eventually help our members prevent attacks
from taking place within our communities. Gathering that intelligence, however, has never been more difficult. Technology has
given criminals and terrorists rapidly evolving tools that often allow
them to appear to be steps ahead of those who are working to protect
Canadians. Whether it is in the national security context or dealing
with local street crime, finding and protecting informants is often an
invaluable tool for police when it comes to levelling the playing field
and obtaining the intelligence necessary; and I firmly believe that
Bill C-44 and the provisions within it that deal with the protection of
sources will be a positive step in protecting Canadians.
I should also note, particularly with respect to informants, that
their use often goes beyond one single case, and that fact
underscores their continued importance and the reason so many
efforts are taken to protect their identities. Compromising their
anonymity can not only put their personal safety at risk but also
jeopardize months' and sometimes years' worth of investigations and
police personnel time.
Furthermore, informants would often be reluctant to step forward
to provide valuable information to law enforcement without as many
guarantees as possible regarding their safety and anonymity, as they
are often called on to testify against those who may know them best
—their former and sometimes even current colleagues, family
members, and other people with whom they've developed relationships.
As I mentioned, I did want to keep my opening remarks brief as I
understand members may have questions regarding the current
practices within law enforcement in Canada, and I'll try to do my
best to provide that information.
Once again, thank you very much for the invitation to appear
today. I look forward to any questions you might have.
● (1550)
The Chair: Thank you very much.
Thank you, gentlemen, for giving the committee time to ask
questions.
We'll start the first round of questioning for seven minutes.
Ms. James.
Ms. Roxanne James (Scarborough Centre, CPC): Thank you,
Mr. Chair.
I'm actually going to pass my time to Mr. Norlock.
The Chair: Fine.
Mr. Norlock.
November 26, 2014
SECU-41
Mr. Rick Norlock (Northumberland—Quinte West, CPC):
Thank you very much, Mr. Chair, and through you to the witnesses,
thank you for attending today.
I want to especially thank Mr. Stamatakis for the statement he just
made, because my question was going to be based on human
resource protection as it relates to criminal investigations, and in this
case, protecting Canadians through intelligence sources. One of the
key components in this legislation—and there are basically only
three—has to do with protecting human sources.
I'm going to go through a few things. One of the complaints we've
heard is that if you know who some of the players are, why are they
not arrested? Would you agree with me that sometimes during the
course of investigations you let the little fish go because you're
actually trying to identify a bigger fish that will lead you to a better
conclusion to the problem that you already have?
Mr. Tom Stamatakis: That's very true, and it's a practice that
occurs every day in law enforcement.
Mr. Rick Norlock: You may have enough to charge an individual
with some offence, but that offence is probably minor in regard to
what you're really after, which is the kingpin, let's say, or the person
involved in the investigation.
5
Do you think it would be advisable to have CSIS unable to assist
in the following through on criminal investigations and prosecutions? Or would protecting the source of multiple future prosecutions
be advisable?
● (1555)
Mr. Tom Stamatakis: Very advisable, and I think I reflected that
in my comments.
Mr. Rick Norlock: Yes, thank you. I just needed to get a couple
of these questions answered, because we hear various comments
from different quarters that are wondering about the need to do these
things.
If we can relate the protection of human sources of information,
both locally and internationally, to what currently are accepted
investigative procedures in Canada, I think it helps the average
citizen. Because I try, at least, to make my messaging from
Parliament not so much for the people who populate here, but for the
people at home, so they can understand what we're doing and
appreciate what we're doing in trying to protect them, in this case
from events, as you rightly mentioned, like those on October 20 and
22.
Mr. Tom Stamatakis: Often it's a higher-level player, particularly
when you're dealing with organized crime or some of the activity
we've seen more recently in Canada with respect to the recent
incidents, one of which I referred to. The focus is always on making
the greatest impact with the resources we have at our disposal to
prevent, to be proactive, and to protect Canadians.
I especially want to thank you for mentioning the great men and
women of the parliamentary precinct who protect us, and who
protected us, but I think the Sergeant-at-Arms, who is, quite frankly,
I think, our collective hero right across the board in Parliament, is
especially worthy of mention.
Mr. Rick Norlock: Drawing similar conclusions between the two,
because they're almost one and the same, let's say you're doing some
investigations within Canada over a certain type of crime—we don't
need to get into the types of crime—and, through your human
resources, it might lead you to the knowledge that some of the
people you need to get information from are outside your borders. In
other words, they're in other countries, there are people there who
you need to talk to, and they may have information that might lead
you to your ultimate goal.
Mr. Forcese, I noticed that you saw some things in this legislation
that you think we need to continue to do. Thank you for that.
Does it make sense to you—and I think in your opening statement
it's quite obvious—that in order to protect those human sources of
information, which CSIS does not have the legislative power to
protect now, this piece of legislation gives them the kinds of
protections the police have when utilizing human sources?
Mr. Tom Stamatakis: It makes perfect sense to me from a frontline law enforcement perspective, absolutely.
Mr. Rick Norlock: When you looked at this piece of legislation,
would I be correct in saying that this is what you personally
observed?
I wonder if you've given some thought to.... I guess one of the
protections that people have as far as protections go under the charter
is that CSIS would still have to obtain warrants with regard to
receiving or obtaining information from certain sources. I'll go back
to some notes I made. You thought that was appropriate, but I
thought you made a couple of other suggestions in regard to those
warrants.
Prof. Craig Forcese: Yes, the CSIS Act, in its present form,
indicates that the government or CSIS needs to obtain a warrant
where there are reasonable grounds to believe that such a thing is
necessary, which is essentially coded language for saying where
there's a charter interest in play under section 8 or to immunize and
intercept what would otherwise be a crime under part VI of the
Criminal Code.
Mr. Tom Stamatakis: Yes. In fact, the comment I would make is
that it probably doesn't even go as far as what the police have at their
disposal locally. I think this is very much a step in the right direction
in terms of protecting human sources—for sure.
The problem is that this implicit trigger and its application outside
of the country is unclear because we don't know when the charter
will reach outside of the country. In fact, we have a Supreme Court
case called R. v. Hape suggesting that many forms of police
investigations, and presumably also CSIS investigations, don't
trigger the same charter implications when they take place outside
of the country.
Mr. Rick Norlock: We did hear from CSIS. CSIS commented on
Monday that they would possibly have to drop cases if they were
forced to give up their sources, as they are often sources for other
investigations as well.
If I were now left to ponder this provision, and I was asking when
I need to go to Federal Court in order to obtain a warrant, I'd have to
puzzle through that, and it wouldn't necessarily be very clear.
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SECU-41
As I noted—I had some proposed language or sample language—
I was proposing that there be an emphatic instruction inserted in the
bill indicating when this foreign surveillance warrant would be
required. As CSIS, when would you be obliged to go to court to get
it?
Mr. Rick Norlock: What you're basically saying is that it should
be more prescriptive.
Prof. Craig Forcese: I think it should be clearer; it should be
more definite. Yes, absolutely.
November 26, 2014
You've indicated that you're assuming this would only be confined
to surveillance and not interrogation. Is there anything in the
language that would suggest that's necessarily the case?
● (1600)
Prof. Craig Forcese: No. There's the historical context; that is,
the Federal Court cases that are the genesis of this bill have dealt
with extraterritorial surveillance. But of course the CSIS mandate in
section 12 is not confined to surveillance, covert or otherwise.
The Chair: Mr. Scott, for seven minutes.
Mr. Craig Scott: Thank you, Mr. Chair, and thank you to our
witnesses.
It's important to know, as Mr. Garrison made clear on Monday,
that these are very abbreviated proceedings for something that, with
witness after witness, we're now learning is more complicated and
involves a lot more need for attention than we're giving it.
This is our only day as official opposition to have two witnesses
we specifically wanted to hear and they're getting part of one panel
in one half of a two-hour session. This is really an inadequate
process.
I am very grateful to the witnesses for making sure that the whole
question of oversight and review has not been lost in this. The fact
that the Inspector General is gone, and the fact that since the Arar
inquiry we've known we need much better oversight and review
mechanisms, including parliamentary review and much better coordinated oversight mechanisms for all intelligence agencies....It's
just Intel Oversight 101 and yet a decade later we're still not there.
It's important to note that the Privacy Commissioner is supporting
exactly what you're saying. In a letter he sent today, Mr. Therrien
wrote:
Clear statutory rules should be enacted to prevent information sharing by CSIS
from resulting in a violation of Canada's international obligations.
That's on the whole clarity point. It also, ultimately, has
implications on the Wakeling case. He also wrote:
A balanced legislative approach would also, in my view, include in Bill C-44
measures to make the activities of all federal departments and agencies involved
in national security subject to independent oversight.
Of course, we do have instances where CSIS members have gone
abroad to conduct interrogations. The most notorious example of that
is at Guantanamo Bay with Omar Khadr. Presumably, in conducting
that interrogation, they were acting within their section 12 mandate.
The issue, in my view, is what sort of supervision might there be
in a context above and beyond surveillance for overseas activities. I
think if we're talking about CSIS conducting interrogations overseas,
the constitutional issues are potentially dramatically different in the
sense that it's no longer a question of section 8 of the charter
anymore; now it's a question of section 7, the very provision that was
at issue in the Khadr case.
That's one reason, just to refer back to the comments about
clarifying language, that I would hope the committee might consider
including very specific language indicating that in every circumstance where the conduct of CSIS “may” infringe international law
or foreign law, there be an obligation first to go and get this warrant.
So it's not confined simply to overseas surveillance but every form of
CSIS operation. Presumably at that point it's subject then to direct
oversight by a court, that can presumably then impose conditions on
the nature of whatever overseas operation might be involved,
including, presumptively, interrogation.
Mr. Craig Scott: I'll come back to that, because I'm not quite sure
what it would look like to involve our courts in.... When CSIS comes
and says, “We're going to do something that we think may, likely, or
will violate international law, or foreign or local law, and now we
want you, a domestic judge, to tell us we can do it”, I'm not exactly
sure what tests they would apply to say “Here's your warrant”. We
have to figure that one out, I think.
He goes on to elaborate that a little bit.
People thinking about the implications of both clarifying and
extending CSIS' powers are also saying that we shouldn't be doing
this without a more comprehensive understanding of how oversight
and review needs to catch up, not only with the problems in the past
but with what's now happening in the bill.
I'd like to focus, Professor Forcese, if I could, on a couple of your
points. On the warrants, basically clause 8 indicates that a new
section 21(3.1) would say:
Without regard to any other law, including that of any foreign state, a judge may,
in a warrant...authorize activities outside—
The activities that he or she authorizes are investigative activities.
That refers to an earlier provision.
As well, when it says “without regard to any other law”, is this a
term that means any other legal system, or does it mean any other
law in Canada?
Prof. Craig Forcese: That would be a question of—
Mr. Craig Scott: It could just be excluding the charter, for
example.
Prof. Craig Forcese: Well, it's not sufficiently emphatic to
constitute a use of section 33 of the Charter of Rights. It's not an
override of the charter. Presumptively, “any other law” would
include the bill of rights, although, again, I'm not sure if it's
sufficiently emphatic there.
November 26, 2014
SECU-41
My reading of this, my assumption, has been that “any other law”
refers to international law. By including foreign law, we know that,
for example, the law of the foreign jurisdiction is inapplicable—its
rules on privacy, say, but also international law principles that might
relate to sovereignty; those presumably would be inapplicable.
● (1605)
Mr. Craig Scott: I do have some concerns about how unclear that
is.
What about the question of foreign law, where the issue is that
CSIS is going to do things that would not be allowable under the
foreign law? The minister told us that's not an issue, because we
have better laws than dictators do. Well, there are many other states
where CSIS would operate that have perfectly functional systems
where their own authorities may need to get warrants. We have heard
in the past that CSEC, the Canadian security establishment, has on
occasion done the bidding of foreign service agencies, if you believe
some of what's in the famous book called Spyworld by Mike Frost.
We may even have been involved in spying on cabinet ministers in
the U.K. at the behest of the intelligence agencies there, because it
would be against the law for them to do it. Whether or not this is true
factually, it's a scenario.
I'm wondering what you would say to a judge if CSIS were
completely forthcoming and said, “This is what we want to do. We
want to do something that the foreign intelligence agency cannot do
under its own law.”
Prof. Craig Forcese: You can imagine that a Federal Court judge
confronted with that prospect, and the prospect of being enlisted in
an operation conducted by CSIS, would be a diplomatic firestorm if
it were ever revealed. That Federal Court judge, I think, would be
quite anxious to make sure that CSIS had crossed its t's and dotted its
i's.
In net, I think, the fact that a Federal Court judge is invested in
supervising these sorts of activities is a gain for accountability
because of the anxiety that would likely be produced by being placed
in this position. What a Federal Court judge might do in practise, it's
hard to discuss outside of an immediate factual context, but I would
imagine that Federal Court judge would rush to superimpose all sorts
of conditions on the conduct of the operations, which would
minimize the degree to which it violates the foreign law and would
limit the prospect that it will have these knock-on effects that would
embarrass both CSIS and the Canadian government.
The Chair: Fine, thank you very much.
Thank you, Mr. Scott, and thank you, Mr. Forcese.
We'll now go to Ms. Ablonczy, please, for seven minutes.
Hon. Diane Ablonczy (Calgary—Nose Hill, CPC): Thank you.
Thank you to the witnesses for your thoughtful comment and
analysis. It's very helpful.
As you know, the CSIS Act is about 30 years old, so it certainly
has not kept up with the rapidly evolving pace of the threats to our
country, unfortunately.
The purpose of this bill is fairly simple; in fact, I believe someone
has called it the “Filling Gaps Identified in Recent Court Cases Act”.
7
There have been some questions that the court has raised and this bill
attempts to address that, to give authority for CSIS to conduct
investigations outside Canada, to confirm that the Federal Court can
issue warrants for such investigation, to give the Federal Court
authority to consider only relevant Canadian law, and to protect the
identity of both CSIS sources and employees. There may be other
areas that will have to be addressed, but this is the purpose of this
law.
I wonder if either of the professors can tell us what kinds of
requirements are on the intelligence communities in our allies: the
Five Eyes, or in the countries we cooperate with. Are any of these
required to get court warrants before they undertake activities in
other countries? How is our regime comparable to those of our
allies?
Prof. Craig Forcese: It's a bit of a mixed bag. Not purporting to
have reviewed in detail the laws of hundreds of foreign countries, I
would say this bill is unique in the degree to which it emphatically
now authorizes a judicial officer to allow a Canadian executive
agency to violate foreign law.
In other jurisdictions that I have looked at that have foreign
intelligence operations, their laws are creatively ambiguous on that
point. The reality, as we all know, is that spies spy and in the course
of spying they may violate the laws of the countries in which they
spy and international law in terms of state sovereignty.
Again, not having exhaustively reviewed all the comparative law,
I am not aware of a statute that as emphatically indicates that a court
may authorize spying in violation of international and foreign law.
I think also in the text of the document you were referring to
earlier, I called it “courageous” at some level that the Parliament of
Canada is prepared to put its stamp on a law that emphatically
signals that we are prepared to violate the laws of foreign countries,
potentially including allies, in conducting foreign surveillance.
That potentially has political implications, and I imagine there are
people at the Department of Foreign Affairs who are quite exercised
or potentially quite exercised about the potential fallout that this
might occasion.
But to answer your question, in my albeit limited experience, this
law is fairly unique.
● (1610)
Mr. Wesley Wark: If I could just add to that, we could look at the
Five Eyes partners, in particular, and I think we would find in that
look that they all have different forms of judicial or executive
authorization for surveillance abroad, and indeed for surveillance at
home. They're probably all variations on a theme.
I think what makes the Canadian legislation unique is a product of
the fact that we're trying to find a legislative scheme for an agency
that is, as I've said, a hybrid. CSIS started out being a domestic
security intelligence service and we fashioned laws to allow them to
perform that function and to control that function in terms of
possible abuses. Now it is, in addition, a foreign intelligence service
in a way that there is no parallel among any of our Five Eyes
partners.
8
SECU-41
All of our Five Eyes partners have separate foreign intelligence
services and domestic security intelligence services. They have made
those separations over time for reasons that they think are very good
reasons, and I think they're reasons that stand up in terms of
international perspective as being very good reasons.
They are very different skill sets, very different training regimes,
very different resources, very different kinds of forms of internal
accountability and external review that are required for those two
very different kinds of operations, operating abroad versus operating
at home.
We're trying to find a legislative fix-up for an agency that we've
allowed to evolve into this hybrid model, without giving that
evolution any serious consideration. That is the concern that, I think,
Parliament and anyone interested in the functioning of the Canadian
intelligence community should have.
Hon. Diane Ablonczy: Right. Well, it's always an interesting
debate. That's why academics love this kind of thing. But it does
have implications and I appreciate your letting them out.
Mr. Stamatakis, you mentioned the events of October 22, and of
course the apprehension that Canada is vulnerable to these kinds of
activities that threaten the security of smaller or larger groups in our
country.
I just want to ask you where you see the need for tools for our
security agencies heading in the future. As I mentioned, this act has a
fairly limited scope, but we know that there has to be other tools
provided to our security agencies. Can you comment on what those
might look like, from your point of view?
Mr. Tom Stamatakis: I don't know that I'm qualified to make any
kind of comprehensive suggestions. My experience is limited to
local Canadian law enforcement, and from our perspective, this is a
step in the right direction in terms of the human source handling
piece, the ability to gather intelligence.
I can tell you that municipal and provincial police, and the RCMP
engaged in municipal and provincial policing activities in this
country, are actively gathering that kind of intelligence from citizens
who are obtaining information from the people they know and are
engaged in relationships with. That's certainly an important tool.
I certainly think it's appropriate for our security services that are
going to be engaged in those activities, internally and externally, to
have the same sorts of tools that our local law enforcement has in
terms of the ability to engage in activities and practices that allow
them to get the best information in a timely way, so that they can be
in a position to proactively prevent incidents or activities that pose a
risk to Canadians.
I think that these are the kinds of discussions that we need to be
having and we need to be moving forward on. But I'm not in a
position here to make a lot of recommendations in that regard.
● (1615)
November 26, 2014
Witnesses, I expect that you were probably expecting to see Mr.
Easter in this seat. I am not a former solicitor general, as he is.
Usually I'm on the justice committee, so I'm not as well armed. If my
questions appear to be less eloquent and clumsier, there's good
reason for that. Although I will say that yesterday we went clause by
clause through the victims bill of rights, and one of the decisions that
was taken in connection with that bill was to not include victims of
terrorist acts abroad, such as the 9/11 victims. So there's a peripheral
connection.
I'd like to start with you, Professor. Towards the end of your
remarks, you referenced accountability and you talked about the
vacancies within SIRC. Could I ask you to expand on that a little
further? As you know, Mr. Easter and Joyce Murray, as was
referenced by Professor Wark, have championed parliamentary
oversight, and Professor Wark went into some detail on that. But
could I ask you to talk a little further about what needs to be done, in
your view, to get the level of accountability that you referred to up to
the international standards of our allies?
Prof. Craig Forcese: Structurally at SIRC, ideal membership is
five. Even when they are at five, they're part-time, and it's an
enormous undertaking for a review of CSIS if you are full-time let
alone part-time. They've been at three for some time. As you know,
two chairs have resigned in controversy, and as a consequence the
continuity of leadership has been uneven at SIRC.
Resource-wise, you can map the growth in operational funds of
CSIS. SIRC's operational funds have also increased but not
proportionately. And so what was always an auditing function....
SIRC when it reviews CSIS doesn't look at everything CSIS has
been doing, it is piecemeal. And presumably, because its scale is
now diminished relative to the scale of CSIS operations, it's even
more piecemeal than it has been in the past.
It's a question of staffing it seriously and earnestly, of making the
members full-time appointees and resourcing those members
properly. Legislatively, it means reacting to the Arar inquiry's very
important recommendations that there be the capacity for the three
review bodies we have in essence to coordinate their review
functions, so that they can actually follow investigations across
institutional boundaries.
There was some reporting from The Globe and Mail earlier this
past year suggesting that an informal effort was made by the
commissioner of the CSE in one of his reviews to coordinate with
SIRC, and the government response was to challenge the legal
competency of the commissioner to do so. In fact, as I understand it,
there was some threat that the commissioner might be in violation of
his and his staff's secrecy and security obligations by coordinating.
That requires a legislative fix and it's a long time in coming.
The Chair: Thank you very much, Mr. Stamatakis.
We will now go to Mr. Casey, please. You have seven minutes.
Mr. Sean Casey (Charlottetown, Lib.): Thank you, Mr. Chair.
Mr. Sean Casey: With regard to parliamentary oversight, in your
view is it necessary and what's the optimal model? If you agree that
it is necessary, what should it look like?
November 26, 2014
SECU-41
● (1620)
Prof. Craig Forcese: I believe it is necessary. I don't believe that
the arguments that are made that it's redundant have resonance. I
think the more eyes on the spies, the better, if you'll forgive my
alliteration.
I also think it's important to enhance your ability as parliamentarians to understand the inner workings of the security services so
there's institutional knowledge within Parliament itself.
The ideal model in my view is one where there is robust capacity
on the part of the parliamentary committee to access the information
they need.
If you look at the models that are deployed by the allies, U.K. and
Australia being notable examples, there is some variability in terms
of how much information the committee can actually extract from
the security services. On one level the Australian model is better in
terms of the way that it's structured, but it's not all that robust in
terms of their capacity to compel the presence of information from
the services. I would look as a primary ingredient of any
parliamentary committee model for the ability of parliamentarians
to access the information in question, subject to, obviously, secrecy
obligations then that are imposed on parliamentarians themselves.
Mr. Sean Casey: Professor Wark, Professor Forcese talked about
how the response that we get when we ask for parliamentary
oversight is that it's redundant. You talked in your remarks in some
detail about the decline of ministerial accountability and the
measures that have been attempted to bring in parliamentary
oversight. I take it that you've also studied or at least read the
debates and the positions taken by the various parties on it.
I would invite you to critique the responses that we get when we
ask for parliamentary oversight. So it's redundant. We already have
adequate oversight. What's your critique of those positions?
Mr. Wesley Wark: Mr. Casey, I think it's an excellent question.
Let me first give you my view of the nature of the critiques, and
they're very close to the way in which you present them. One of the
responses to any kind of measure to reform the nature of the
parliamentary review of security and intelligence in Canada is an
argument that existing departmentally focused, if you like,
parliamentary committees can adequately do this job. This
committee can adequately review the security and intelligence
practices of the Canadian community.
It seems to me that there are two problems, perhaps more than two
problems, but two problems that immediately come to mind with
that.
One is that, in terms of parliamentary committees' construction
focused on the activities of individual government departments,
that's not how the Canadian security and intelligence community
writ large is actually organized. It's an integrated or semi-integrated
collection of different agencies operating under different departmental mandates and controls. One of the things that the Arar inquiry
pointed out is that we lack any capacity with regard to an
independent review body to look at that overall work of the security
and intelligence community and, in regard to Parliament, we don't
have that capacity at the moment to do that integrated kind of review.
As my colleague Craig suggests as well, there is a deep problem in
9
terms of access to the kind of information that a parliamentary
committee or a committee of parliamentarians would genuinely need
in order to scrutinize properly the activities of a secretive intelligence
and security community.
There are models that have been made to work among our Five
Eyes partners that are of long standing. The model that we have
typically looked to post 9/11 in Canada has been the British model,
the model for the intelligence and security committee, which is a
rather unusual construction, admittedly. It's a committee of
parliamentarians, not a standard parliamentary committee. It was
built that way on the assumption that it would provide better access
to classified information according to the provisions available to
them and that it would also generate significant sustained, serious,
non-partisan discussion of these issues if it was constructed in a
certain manner.
I assisted Joyce Murray in the construction of her private
member's bill, and we looked at various models very seriously, but
I think the essence of what parliament needs is a dedicated
committee that can look at the broad range of security intelligence
operations that may need to require membership of both the House
and the Senate. It would certainly need additional resources
compared to what an ordinary parliamentary committee would have
in terms of research staff and it would need—
The Chair: If you could sum up, please, Mr. Wark.
Mr. Wesley Wark: —a non-partisan atmosphere to work.
The Chair: Fine, and thank you very much for the little overtime
there. I think you can understand.
We will now go to Mr. Scott.
● (1625)
Mr. Craig Scott: Thank you, Chair.
I believe I have five minutes so I'll try to be short and also ask the
witnesses to respond as quickly as possible.
There are two things I want to look at. One is the lack of any
provisions in this bill for the kinds of consultations that both of you
raised, in particular Professor Wark. I think I'm correct that there's no
provision in this for the need for CSIS to have first consulted with
the Department of Foreign Affairs before they come to the court, and
no requirement that the judge requires that before he or she would
issue the warrant. It would have to be left to the good graces of
judges to say, “Wow, this is the kind of thing I think we need to
know a bit more about, what its implications are, and am I right the
person to judge it? Get the Minister of Foreign Affairs to weigh in.”
Am I correct on that, that there's nothing in the bill that would
require CSIS, now that it's formally and officially venturing around
the globe, to consult and coordinate with either the Department of
Foreign Affairs or, for example, the Department of National
Defence?
Mr. Wesley Wark: That's absolutely correct. There's nothing
explicit in the bill at all, and what the existing practice is in that
regard informally is a matter of official secrets.
10
SECU-41
Mr. Craig Scott: Professor Forcese also picked up on that theme,
and I'm not sure if he revealed a bit more than he wanted to, but he
indicated that it almost sounded to me like there were at least
rumours from the other side of Ottawa, at least in the Department of
Foreign Affairs, that people are not necessarily all that thrilled about
CSIS now being given this formal mandate in a way that's converted
it into an agency that may in practice had elements of, but was never
official.
Am I correct that Foreign Affairs would want to be more
connected to CSIS when it starts operating abroad, or are they happy
for CSIS to do whatever it wants?
Prof. Craig Forcese: That was entirely speculation on my part. I
don't pretend to have ears inside the Department of Foreign Affairs.
Mr. Craig Scott: But you were speculating for a reason, were you
not?
Prof. Craig Forcese: I was speculating only on the basis...I was
inferring from the context. That is, if you've got CSIS conducting
extraterritorial operations, it may violate foreign laws, and that then
becomes a matter of the record and suddenly it's on the front page of
The Washington Post. That then creates certain headaches for the
diplomatic corps.
Mr. Craig Scott: So then I'd come back to the question I said I'd
leave the last time, which is what would you want a judge to do,
keeping in mind there's an element of the dignity of the courts within
the framework of the comedy of nations where courts are basically
there to say to other courts, “we're not in the business of contributing
the violation of your laws”? However much international spying is
kind of internationally lawful unlawfulness, the question involving
our courts in this, especially where you said one of the triggers
should be any time CSIS thinks they might be breaching
international or foreign law, could you just indicate to me what a
judge would do with that? How would the judge say, okay, go ahead
and do it, even though that's the reason you're coming to me—you're
going to break foreign law and now I'm going to go on the record
saying you can do it.
Prof. Craig Forcese: Well, to be honest, I'm not in a position to
imagine what a judge would do in every individual case. I do note
though that the warrant provisions that would apply for both
domestic and foreign warrants require CSIS to demonstrate that this
is really a necessary undertaking, that there are no other means
available other than to engage in this practice in order to gather
information necessary for its investigation.
The best answer I can give you, Mr. Scott, is that I would imagine
a court confronted with this warrant application would be extremely
demanding of CSIS and already my understanding is that—if you
speak at least to the folks in CSIS, they will tell you this—the
warrant application process is quite an arduous one and the courts
are quite demanding.
Mr. Craig Scott: Internally....
Prof. Craig Forcese: Of course it's ex parte in camera
proceedings.
I would imagine that a Federal Court that risks the prospect to be
dragged into some international scandal would be even more
adamant that there was a necessity undergirding this investigation
and it would superimpose all sorts of obligations.
November 26, 2014
Mr. Craig Scott: Thank you, that's great.
I did want to return to the Wakeling case that just came down
roughly a week ago from the Supreme Court. You indicated that,
from the combined majority holding, already this law is going to
need at least an amendment with respect to much clearer legal
provisions on some of the aspects of what the warrant might
authorize, including sharing of the information that might be
produced by the activities authorized by the warrant. That's clear
from the majority reasoning. So this bill already needs an
amendment based on the Supreme Court case.
The dissent agrees with that but they went a bit further. I want to
read a passage and ask whether you think this as a policy matter is
something we as Parliament should take seriously:
However, when information is shared across jurisdictional lines, safeguards apply
and domestic investigations lose their force.—
The Chair: —I'm going to have to interrupt, Mr. Scott.
● (1630)
Mr. Craig Scott:
... The requirement of prior judicial authorization does not provide sufficient
protection against inappropriate future use.
i.e. with partners, intel partners.
Further, “The failure to require caveats” in the law itself “on the
use of disclosed information is unreasonable.”
The Chair: Sorry, Mr. Scott. Your time is well over and we have
no time for response. You were well into that. Thank you very much.
We have just about two minutes left for Mr. Carmichael.
Mr. John Carmichael (Don Valley West, CPC): Thank you.
That's generous.
Well, let me welcome our witnesses today. Thank you for being
here.
Mr. Forcese, I'd like to just start with you, if I could. That may be
as far as we go.
Clearly, we all recognize that terrorism is a global threat today and
Canada after last month's activities is not immune. In an article in the
National Post back in October, I believe it was you or your colleague
who was quoted, it said:
The new bill puts surveillance outside Canada on a clear legal footing. This is a
reasonable fix in a globalized security environment. Indeed, the bill is diplomatically
courageous...
—as you've already stated. You go on to say:
There do, however, remain outstanding issues: When CSIS investigates abroad,
the risks of misconduct, including complicity in human-rights violations, increase.
That behaviour would raise legal issues.
November 26, 2014
SECU-41
So I'm concerned. Or, confused, I guess, is probably closer. We
have the new act that we all agree is the right direction. We've talked
about our allies and some of the models. One of you referred to the
Canadian version as, I believe, a hybrid of those models. I'm just
wondering what the right fix is. I hear you on how we have warrants
and Federal Court inclusion. We have put in the safeguards that will
ensure that we do the job right ideally. What am I missing?
Prof. Craig Forcese: I guess I would just confine myself to the
solutions to some of the omissions that I addressed to my
presentation. That is, there is some clarifying language that might
accommodate some of these concerns that I've raised, which you're
pointing to. Again, indicating when the trigger point is for seeking
these warrants, and then also engaging the Federal Court judge in
supervision of overseas conduct that might be problematic....
And at the end of the day, I'll just harken back to the Arar report
that said that there are instances where we really can't engage in this
conduct. In the context of information sharing, there are circumstances where we simply can't share the information, and where the
human rights implications are so dire. There are legal fixes and then
there's also good judgement.
The Chair: Thank you very much. I know you'd love to continue,
Mr. Carmichael, but we have now expended our first hour.
On behalf of the committee, the chair would like to thank our
witnesses for your experience and your thoughtful comment here
today. Once again, it's a very serious issue. Public safety, the
protection of the public, there really is no greater responsibility of
parliamentarians, so we thank you for your contributions here today.
We will now suspend while we go to the second hour.
● (1630)
(Pause)
● (1635)
The Chair: We're back in session. We will now proceed with the
introduction of our witnesses.
We have Kent Roach, professor, Faculty of Law, University of
Toronto, welcome, sir; and by video conference, from Burnaby,
British Columbia, as an individual, we have Garth Davies, an
associate professor at Simon Fraser University, welcome, sir. We will
have joining us also by video conference, but it'll be another 15 or 20
minutes before he's live with us here, Christian Leuprecht, associate
dean of the Faculty of Arts and associate professor in the Department
of Political Science and Economics at the Royal Military College in
Kingston.
Ladies and gentlemen, we will start with opening comments.
We will go to you, Mr. Roach.
Prof. Kent Roach (Professor, Faculty of Law, University of
Toronto, As an Individual): Thank you very much, Chair. I'd like to
thank the committee for inviting me to appear here today.
The terrible terrorist attacks last month confirmed Parliament's
wisdom in 2013 in enacting four new terrorist offences that can
apply to foreign terrorist fighters. Unfortunately however, Bill C-44
may have the unintended effect of making it more difficult to apply
these valuable new offences to potential foreign terrorist fighters.
That will be my primary focus in my submissions.
11
My second focus will be that the “innocence at stake” exception to
the new CSIS human source privilege is required by the charter, but
it is unconstitutionally under-inclusive as applied to non-criminal
proceedings where section 7 charter rights are in play.
Finally, I will suggest that while it is correct that Bill C-44 gives
CSIS new powers to conduct investigations outside of Canada and
that this responds to the threat environment that we live in, there is a
concern that we need new and integrated review mechanisms as well
as better ministerial and parliamentary oversight of CSIS foreign
activities.
To move to my first point, Bill C-44 would overturn the Supreme
Court's recent decision in Harkat as well as reject the recommendations of the commission of inquiry into the bombing of Air India that
CSIS informants not be given the same privilege as police
informants. Both the Supreme Court and the Air India commission
stress the danger that because of its intelligence-gathering mandate,
CSIS may make premature promises of anonymity to informants,
which could hinder or even thwart subsequent prosecutions.
Clause 2 of Bill C-44 would give CSIS human sources a veto on
disclosure of any identifying information once they have received “a
promise of confidentiality” from CSIS. The courts have most
recently, in 2013, in the context of police informer privilege, said
that these promises of confidentiality may even be implicit. I have a
concern that virtually every human source CSIS talks to under the
proposed legislation would then have the benefit of the privilege and
a veto on any identifying information being disclosed, whether it's to
defend a search warrant in a terrorist investigation or to be called as a
witness in a terrorism prosecution.
These are not hypothetical concerns, and I should mention that I
spent four years as director of research and legal studies on the Air
India commission studying this question. In 1987 the prosecution of
Talwinder Singh Parmar, the alleged mastermind of the Air India
bombing, collapsed when an informer refused to allow his name to
be disclosed. Now, that informer was in a very difficult position, and
the crown attorney at the time said in open court that if he were in
that informer's position, he would make the same decision because
of fear for his life—as you have heard from earlier witnesses. But the
fact is, that prosecution fell apart because of the informer privilege
and the informer's ability to veto disclosing any identifying
information.
12
SECU-41
This legislation would have given the two informants in the
Toronto terrorism prosecution a veto on whether they would be
called as witnesses or on disclosing any identifying information
about them. As you heard yesterday, CSIS is not in the business of
collecting evidence, and it was for this reason that the Air India
commission warned it would have an incentive to promise
anonymity and confidentiality when necessary to fulfill CSIS'
intelligence mandate.
This is not an issue of CSIS deliberately abusing the privilege, but
simply because of its functions, it will have an incentive to promise
confidentiality. And then later on down the stream, perhaps months
or even years later, the police and prosecutors may have a very
difficult time dealing with the consequence of this near absolute
privilege that would be bestowed on all CSIS human sources under
Bill C-44.
● (1640)
The Air India commission was acutely aware that there is a
dilemma. Sometimes it is more important to have intelligence than
prosecution, but its solution was that this dilemma should not be
resolved unilaterally by CSIS or, indeed, by the RCMP, but that
decisions should be made in the public interest on the basis of all
available information, by the Prime Minister's national security
advisor.
The second point is simply that the “innocence at stake” exception
in paragraph 18.1(4)(b), as required by the charter, would apply in
criminal prosecutions. But the Supreme Court, in Charkaoui, has
made it very clear that section 7 also applies in the non-criminal
context, and in particular the security certificate context. It would be
my submission that you should consider expanding the “innocence
at stake” exception to allow judges to order disclosure that would
pierce the privilege whenever it is required under section 7 of the
charter.
Similarly, I realize that a policy decision to extend the privilege
may have been made, but I would also propose that when you go
into clause by clause, you should look at the section 2 language of
the promise of confidentiality. That language should at least be
limited so that it is only an explicit promise made by CSIS of
anonymity that would trigger this broad privilege that, as I
suggested, could hinder subsequent police investigations and
prosecutions.
Finally, my last point is that I agree that, given the threat
environment, CSIS needs to be able to conduct its investigations
outside of Canada. But I do have some concerns about the “without
regard to any law including that of any foreign state” language. I
have concerns that this may override the restrictions that the National
Defence Act places on CSEC or signals intelligence agency. I also
think there is a need for an integrated review, or at least statutory
gateways, as recommended by the Arar commission and as Professor
Forcese in his submission advocated to you, and indeed has
proposed some language to that effect.
I would also add that there is a need to ensure both ministerial and
parliamentary oversight as CSIS uses its new powers to act abroad.
Thank you very much.
November 26, 2014
● (1645)
The Chair: Thank you very much, sir.
We will now go to an opening statement from Mr. Davies, please.
Mr. Garth Davies (Associate Professor, Simon Fraser University, As an Individual): Thank you very much for inviting me
here today. I want to keep my comments brief.
I would echo pretty much everything that's been said up until this
point in terms of the need for ministerial oversight. I think we all
agree with that. I would think we would all agree that the context
we're talking about, in terms of the changing nature of terrorism, is
such that we need to allow CSIS to have the appropriate tools to
operate in an environment that is changing rapidly and is really, in
many ways, different from what we've sort of experienced
historically in terms of the level of threat that we're talking about
with regard to the foreign fighter problem, with regard to the nature
of groups such as ISIS, and trying to balance that with the rights and
freedoms that we all cherish so dearly.
I really wanted to be here today to try to be of assistance in any
way I could in terms of answering any questions people may have. I
wanted to minimize my time here and cede the floor to people who
had anything else they would like to say.
Thank you.
The Chair: Fine, and thank you very much.
We will give Mr. Leuprecht a moment to settle in and get
comfortable. He's actually a little earlier than we anticipated, so we'll
give him a couple of minutes and suspend for a minute or two.
● (1645)
(Pause)
● (1645)
The Chair: Mr. Leuprecht, you have the floor for an opening
statement for up to 10 minutes, should you wish, sir.
[Translation]
Dr. Christian Leuprecht (Associate Dean and Associate
Professor, Department of Political Science, Royal Military
College of Canada, As an Individual): Ladies and gentlemen, I
will give my presentation in English, but I can answer any of your
questions in either official language.
Mr. Chair, distinguished members of the committee.
[English]
I have entitled my intervention “Peace, Order and Good
Government: Parliamentary supremacy as the ultimate sovereign
constitutional responsibility”.
There is a ubiquitous claim that Canada does not have a foreign
intelligence service. This is a misunderstanding of Canada’s security
intelligence community. Given the legislated limitations on Canadian
security intelligence's areas of operations or AOR, beyond Canada—
CSIS' areas of operations beyond Canada—one might say that
Canada does not have a human foreign intelligence service, certainly
not one of the scope of the human services operated by some of our
key allies, especially in the Five Eyes—CIA, MI5, and ASIS, the
Australian Secret Intelligence Service.
November 26, 2014
SECU-41
Canada has a foreign signals intelligence service, the Communications Security Establishment, and a good and respected one at
that. Canada has compensated for AOR limitations on CSIS in
several important ways.
Two of the key mechanisms had been under specific conditions.
First, the exchange of certain human intelligence information on
certain Canadian citizens and residents—and some other individuals
with a direct bearing on Canada and Canadian interest—with allied
foreign HUMINT services, in general, and with the three aforementioned Five Eyes partners, in particular. The New Zealand Security
Intelligence Service, similar to CSIS, does not have a broad foreign
human intelligence mandate akin to that of the U.S., U.K., and
Australia.
Second, under specific conditions, the exchange of signals
intelligence on certain Canadian citizens and residents—and some
other individuals with a direct bearing on Canada and Canadian
interest—with CSE, the Communications Security Establishment.
As reported widely in the media, including The Globe and Mail in
November 2014, Justice Richard Mosley of the superior court of
Canada found that CSIS had not been sufficiently open about all the
surveillance alliances it planned to form. Five years ago CSIS had
persuaded him to sign off on a foundational eavesdropping warrant
to extend its reach outside Canada. Judge Mosley learned the full
extent of the information sharing between Canadian spy agencies
and foreign allies after reading the watchdogs’ public reports.
His ruling indicates he had never been told of this by Canada’s
intelligence agencies during five years of secret hearings. He took
the extraordinary step of reopening a case he had settled in 2009. In
the November 2013 ruling he rebuked CSIS and the Communications Security Establishment for breaching their duty of candour to
his court. A statement released by the court added that, despite
perceptions to the contrary, “the Court considers it necessary to state
that the use of ‘the assets of the Five Eyes community’ is not
authorized under any warrant issued.”
The case appears to be related to concerns about one particular
instance where CSIS failed to disclose to the court one specific piece
of information about a certain individual. The result of Justice
Mosley’s decision has been to blind CSIS once Canadians or nonCanadians with court-authorized surveillance leave the country.
The merits of Judge Mosley's decision, with respect to that
particular instance of disclosure to the court aside, raises at least two
fundamental issues. First, in light of at least 130 Canadian extremist
travellers who have left the country as reported in testimony before
this committee by the Director of CSIS, and another at least 80
returnees, this is problematic. CSIS now has trouble following
extremist travellers and their activities outside of the country. This
has second-order effects with respect to its ability to provide timely
and accurate advice to the administrative branch of government and
the political executive to which it reports, and the ability to liaise
tactically with criminal intelligence and enforcement agencies,
notably the RCMP and CBSA.
Second, what is and should be the purview of judicial supremacy
with respect to matters of national security? The committee will
already have heard plenty of testimony with respect to the former. I
13
shall not belabour the proximate implications of this point other than
to reinforce the point and concerns raised by others about the
deleterious tactical, operational, and strategic consequences of this
decision for CSIS, national security policy and enforcement, and
Canada’s political executive ability to make informed decisions with
respect to public safety and Canada’s national interest.
The second point, by contrast, has more distal implications.
Canada is a democracy. Its ideological foundations are premised on
those of small-L liberalism; that is, limited state intervention in
people’s lives with a core value of freedom and subsidiary values of
equality and justice. One of the hallmarks of this type of democracy
is the rule of law and an independent and impartial judiciary. By
virtue of being in this room we are all agreed on these basic
principles that underlie Canada’s Westminster constitutional monarchical system.
Constitutionally, Canada balances the premise of limited state
intervention with a small-C conservative ideological premise about
the role of the state, in general, and about the role of the federal
government, in particular. Quoting from the preamble of section 91
of the British North America Act:
It shall be lawful for the Queen, by and with the Advice and Consent of the Senate
and House of Commons, to make Laws for the Peace, Order, and good
Government of Canada, in relation to all Matters not coming within the Classes of
Subjects by this Act assigned exclusively to the Legislatures of the Provinces.
For our purposes at least two observations follow.
● (1650)
Insofar as security is demonstrably of national concern, it falls
within the purview of the federal government. Such is the case in
terms of national security intelligence and its interactions with
foreign security intelligence entities.
Second, the federal government has an overarching duty to ensure
the peace, order, and good government of Canada. That is, the
federal government has inherent obligations for the collective
security of Canadian society.
What exactly POGG denotes has been defined and circumscribed
by both the Judicial Committee of the Privy Council and the
Supreme Court of Canada and shall not detain us here. Suffice it to
say that Canada’s Constitution imposes limits on judicial supremacy.
Unlike Americans, Canadians are not inherently skeptical and
mistrusting of their government. This is readily demonstrable
empirically in terms of polling.
I shall skip over this section and it can be read into the record at a
later time.
[See appendix]
14
SECU-41
November 26, 2014
My point here is that people may have concerns about particular
issues, but by and large, confidence in our security institutions and
the federal government's handling of national security is very high.
Canadians, and Canadian interests. I value my freedoms, but I value
my life and the lives of my compatriots even more.
The security sector, of course, is one form of government
intervention. One might argue that it is actually the ultimate form of
government intervention precisely because it empowers the government to curtail freedoms in pretty dramatic ways. Critics like to cite
the case of Mahar Arar. As tragic as that case may be, a single case
does not make a pattern. To the contrary, it demonstrates the learning
effects in our security sector by virtue of the fact that a case like
Arar’s would be highly unlikely to recur given the changes in
policies now in place. Moreover, it is public knowledge that
intelligence from the Arar case came from the RCMP and not from
CSIS. And so to be sure, there are other cases where judges have had
certain questions about CSIS evidence but none of this has called
into question the professionalism and lawful conduct of the
organization. Similarly, CSE’s watchdog has repeatedly affirmed
the lawful and professional conduct of its activities.
By the same token, with respect to changes proposed to the
Strengthening Canadian Citizenship Act, I believe that the potential
for revocation of citizenship imposes an important deterrent against
bringing one’s citizenship into disrepute. After all, those who hold
dual citizenship have made a conscious choice to divide their loyalty.
As a naturalized dual citizen myself, I should know. Those who wish
to protect themselves against the eventuality introduced by this
amendment have the option to renounce their second citizenship.
Some countries make it impossible to renounce citizenship, so the
onus is on such citizens to conduct themselves in a manner so as not
to run afoul of the amendment being proposed. Canada’s administrative and judicial system would necessarily be sensitive to the
revocation of Canadian citizenship in circumstances where that
imposes demonstrable risks for an individual’s life. Ergo, revocation
is judiciable, and thus has a built-in review mechanism.
So where does the skepticism arise?
It appears to be driven by a curiously denatured interpretation of
the Canadian Constitution since the introduction of the Canadian
Charter of Rights and Freedoms that somehow the sole and primary
purpose of the Constitution is somehow to limit government
intervention in the lives of citizens. The result of this interpretation
would have it that privacy, civil liberties, and due process, as well as
judicial supremacy, should trump any and all other considerations.
As someone who has published on Canadian constitutional politics,
the conventional view is that of the Constitution that actually enables
government to do good in people’s lives, at least when it comes to
fundamental obligations such as peace, order, and good government.
At times, that means having to balance considerations of due
process with those of public safety and national interest. Confidential
informants may be an anathema to lawyers, but certain dimensions
of security intelligence would be difficult to carry out without such
confidentiality and the trust that we have as a result from our allies.
Again, here, is a section that will be read into the record.
[See appendix]
Allies such as the U.K., France, Germany, and Spain have had to
learn to live with terrorism for decades. As a result, their courts and
their societies have developed greater sensitivity towards the
protection of public safety. He who sacrifices freedom for security
deserves neither, Benjamin Franklin famously said. But what about
he who sacrifices security for freedom? Freedom and security are not
a zero-sum dichotomy. To the contrary, they are complementary. You
cannot enjoy one without the other. However, you cannot enjoy your
freedoms if you are dead.
CSIS exists at the fulcrum of public security. Critics concerned
about changes to Bill C-44 are also the ones who will be first to
complain why CSIS did not do more, should an extremist traveller
return to Canada and commit mischief here. Overall, they fail to
account for the possibility of keeping individuals safe in spite of
themselves, that sharing intelligence may allow for intervention
abroad to prevent individuals from harming themselves, Canada,
● (1655)
The current equilibrium needs rebalancing. Justice Mosley
deemed it within his purview to constrain certain types of
intelligence sharing activity, but he did so in a somewhat unusual
fashion. Often judges will give Parliament time to remedy these
types of deficits. Justice Mosley afforded no such opportunity to
Parliament. This, in my view, is disconcerting. While Justice Mosley
may have been within his right to render the decision he did, the farreaching implications of his decision could have let past practice
prevail for a limited amount of time to allow for a legislative remedy
to be introduced.
The Chair: Could you sum up then, please, Dr. Leuprecht?
● (1700)
Dr. Christian Leuprecht: In essence, I endorse the current
amendments, however, Bill C-44 does commit one sin of omission,
in my world. Many more expansive powers for security intelligence
should be balanced with robust parliamentary accountability, not to
be confused with oversight. My preferred model is Belgium's, where
two permanent agencies headed by judges are empowered to audit
not only past, but also ongoing investigations in real time and report
their findings directly to a select group of security-cleared members
of Parliament.
The Chair: Fine.
Thank you very much. We appreciate that and thank you for
closing off as well. We will now go to the round of questioning.
We will go to Mr. Carmichael who was so short-changed the last
time. It is seven minutes for you, sir, so you get the bonus.
Mr. John Carmichael: Welcome to our witnesses.
November 26, 2014
SECU-41
Mr. Davies, I'd like to start with you, if I could.
Today, I think we have universal agreement that terrorism is a
global threat and certainly last month's tragic events demonstrated
Canada is not immune to that threat, whether initiated overseas or
internally.
I wonder if you could tell us why it is important that CSIS have
the clear mandate to conduct investigations outside Canada.
Mr. Garth Davies: I think we have to consider these days that
we're increasingly talking about the issue of the foreign fighter
problem. I think we understand they constitute an increasing theat to
our country. There is evidence that while they don't engage in a
significant number of acts when they come back to their countries of
origin, the acts that they do engage in are increasingly problematic in
levels of seriousness.
I also think what has been lost in some of the discussion of the
foreign fighter issue is that by allowing these foreign fighters to go
overseas, we're continuing to supply these groups, ISIS. At least in
some instances, they appear to be increasingly dependent on foreign
fighters to maintain their operations and their tactics. I'm focusing on
one particular issue, but I think we need to be cognizant of CSIS'
ability from both perspectives. It's not simply a matter of their
coming back here, which is problematic, but we're providing a
pipeline for these groups, and we probably need to consider very
closely stemming that flow.
Mr. John Carmichael: Dr. Leuprecht, would you like to briefly
add to that?
15
Canada specifically. How do these amendments compare to laws
governing allied nations and security agencies? That's number one.
Also, are judicial warrants required for other western nations?
That's something I've heard about briefly today. As well, are they
held in such high judicial authorization?
● (1705)
Prof. Kent Roach: Well, certainly not in the United Kingdom,
where there's ministerial authorization, much as is available with
CSEC. In the United States, the Foreign Intelligence Surveillance
Court does grant warrants. I think there are some examples of a
judicial warrant and there are some examples of a ministerial
warrant.
Bill C-44 has decided to opt for the judicial model. I think that's
probably a wise choice.
Mr. John Carmichael: Some concerns we've heard are in regard
to the ability of the Federal Court to issue warrants within the scope
of relevant Canadian law when issuing warrants to authorize CSIS to
undertake certain activities to investigate a threat to the security of
Canada outside of Canada. Some may wonder why warrants would
not be more appropriate coming from the nation the activities were
taking place in, and clearly we've had some examples of that today.
Dr. Christian Leuprecht: If I may, I will read you one paragraph
that I skipped over that I think responds to your question.
Could you comment on why this is important? Some of those
countries may not exactly have a court system that can be
approached for a warrant. As well, there is the transnational nature
of these investigations.
I value limited state intervention, but I also value peace, order, and
good government. So when confronted with the rare and hard choice
between individual freedoms, civil liberties, and privacy on the one
hand, and public safety and collective security, it is within the federal
government’s constitutional purview and obligation to err on the side
of the latter, including foreign intelligence activity. The Canadian
public gives Parliament and the security agencies that report to
Canada’s political executive the benefit of the doubt.
Prof. Kent Roach: As you've heard from Professor Forcese, and
as we argued in our joint National Post piece, Parliament is being
candid about the reality that some of these warrants may actually
violate foreign law. It seems to me that one of the remedies for that
really has to be more political and ministerial than judicial.
Obviously, courts will have to grapple with this problem, but I
agree with Professor Forcese, in that I think we need some
ministerial oversight.
I would go so far as saying that given the current global security
environment, including the challenge of extremist travellers, the
federal government has an obligation to Canadians to pass precisely
the sorts of amendments that Bill C-44 proposes, and that those are
in the vital interest of Canada and Canadians. Tactically, operationally, strategically, and fiscally, this is the sort of way to compensate
for the limits on CSIS to engage in foreign human intelligence
gathering.
Of course, in our security environment—and this is part of the
general accountability problem—it makes a lot of sense to have a
whole-of-government approach to our security threat. The problem
is that too often we're still remaining in silos. One of my concerns is
that there might be a warrant granted under Bill C-44 that not only
should the Minister of Public Safety be aware of, but that his or her
cabinet colleagues in Foreign Affairs and Defence should also be
aware of. I do think it's necessary for CSIS to be able to act outside
of Canada, but I think the political risks of that are significant, and I
think Bill C-44 could be improved by having some form of
ministerial notification.
In light of the current global security environment, it is vital that
CSIS be able to conduct and have the capacities that are being
introduced in sharing with foreign human and security intelligence
so the Canadian government can realize its responsibilities.
Mr. John Carmichael: Thank you very much.
Welcome, Mr. Roach.
I'd like to just step back. It's important that the CSIS Act be
clarified for explicit authority for activities overseas and outside of
I would note that SIRC,, in its latest report, for 2013-14, has raised
concerns that CSIS is not always keeping the minister informed. I
agree that under a parliamentary system the responsible minister has
to be aware, but I think that in the post-9/11 environment, where we
have a whole-of-government approach to security, ultimately the
accountability must rest at the prime ministerial level.
16
SECU-41
November 26, 2014
That was one of the reasons why, after a lot of thought and
deliberation, the Air India commission recommended not what Bill
C-44 is enacting, which is a privilege for CSIS, but rather a privilege
for the Prime Minister's national security advisor, who the
commission thought would be in the best position to determine the
competing poles of promising confidentiality to get intelligence now
—and that's sometimes going to be the right decision—or not
promising confidentiality because we want to be able to prosecute
people after. These are very difficult tensions. There's no one-sizefits-all solution.
possible. That's why I would prefer a case-by-case judicial decision
and tailor it.
My concern about Bill C-44 is that it may mean that CSIS makes
even rational decisions at a preliminary stage of a counterterrorism
investigation that could actually have repercussions and prevent us
from being able to successfully prosecute extremist foreign terrorist
fighters down the road.
Mr. Craig Scott: To be fair to the way the government is thinking
about this, I'm assuming it's not just....Sometimes the issue is, it's
more important to have intel than to have prosecution. Yes, in a very
operational frame. In a broader frame, I suppose we could say the
decision that we have to be conscious is being made in the bill,
maybe, is that it's more important to have prevention than
prosecution.
The Chair: Thank you, Mr. Roach. Time is up, Mr. Carmichael.
Mr. Craig Scott: Is the case currently that under the class
privilege, the innocence exception applies in any case? It would
apply whether it's case-by-case or whether it's this broader class.
Prof. Kent Roach: Exactly.
Mr. Scott, for seven minutes.
Mr. Craig Scott: Thank you, Mr. Chair, and thank you Professor
Roach for being here.
If the government were to present it that way, at least we would be
conscious of the trade-off. Would you agree with that?
I wanted to follow up on the conversation you were just having
with Mr. Carmichael, so that everybody listening is clear. The issue,
if I'm correct, is that in this intelligence context there are not the
same overarching considerations or incentives for the intelligence
community to take care in giving promises to sources because they're
not thinking about down the road prosecution.
Prof. Kent Roach: Yes, although I do go back to what I started
with. I very much mean this and I've written this, not only for
domestic but for international audiences. I think Parliament was
ahead of the foreign terrorist fighter curve when they enacted the
four new terrorism offences in 2013.
That's the real difference, am I correct?
● (1710)
Prof. Kent Roach: That's right, and that is partly the story of Air
India. However, the Air India commission also looked at the
contemporary relationship between the RCMP and CSIS, and found
that there were still some problems.
Again, I'm not saying that this is a personal fault of either of those
two organizations, but you have organizations that have very
different mandates and sometimes those are conflicting mandates.
Mr. Craig Scott: Is there a way to deal with the concern?
It's true that the court said that there doesn't exist a current, in
common law, class privilege, and that's what now being accorded by
Bill C-44.
Is your sense though that the courts were more or less content with
the case-by-case qualified privilege? Is that what you think should
remain?
Prof. Kent Roach: Yes. The case-by-case privilege makes a lot of
sense because, certainly, CSIS will tell you this enables us to give an
ironclad guarantee to all our human sources, that there will never be
any identifying information. That's not quite right in law, I must say,
because the “innocence at stake” exception also applies to people
who become material witnesses or agents during a counterterrorism
investigation.
Given the breadth of terrorism offences, it may very well be that
CSIS sources may actually lose that privilege. It seems to me that, at
the end of the day, this is a difficult area. Absolutes are frankly not
I support those offences and the best way to deal with the foreign
terrorist problem....Sure, prevention would be great, but there needs
to be denunciation and incapacitation.
I know this is not the intent of the government, but my concern is
that one of the unintended consequences of this bill may make
prosecutions, under those very new valuable offences, more difficult
rather than less difficult.
Obviously, not all the information is out about what happened at
Saint-Jean-sur-Richelieu, but we have to ask ourselves the question,
why was there enough intelligence to take away that person's
passport, but not enough to charge him under one of the many
terrorism offences that we have in our Criminal Code?
Mr. Craig Scott: I'd like to move on to constitutionality. You
referred to the unconstitutional under-inclusiveness because the
provisions here are limiting the right to have the identity of the
human source revealed by a judicial decision after an application to
prosecutions, and not to all the other contexts in which that source
could be behind jeopardy for people's interests, whether it's
deportation or security certificates, etc.
I clearly understand that you've told us that this is a constitutional
problem for that, despite, I'd have to say, the minister telling us two
days ago that this is the most constitutional law the government had
ever put forward—so I appreciate that.
November 26, 2014
SECU-41
But there's another point. With respect to the applications either to
reveal the identity because it's necessary to make a defence for the
person being charged, or for this slightly more nebulous seeking an
order declaring an individual's not a human source or that the
identity of the—well, we'll leave it at that, that other provision. In
each case the hearing is held in private and in the absence of the
applicant and their counsel, unless the judge orders otherwise.
I have serious concerns about that, as does the Canadian
Federation of Law Societies. I'm just wondering if that's included
in your worries about constitutionality. Are you okay with that?
● (1715)
Prof. Kent Roach: I actually have been reading up on the case
law there, and I have to say that I'm a little less concerned than the
Federation of Law Societies—I hope they don't take away my
certificate to practise law.
The Supreme Court jurisprudence on this actually does suggest
that at the first level hearing, it does have to be done in camera,
which means with the public not there and with the other side not
there. That is because this privilege is viewed as such an absolute, or
near absolute, privilege.
On further reflection, I think that proposed subsection 18.1(7),
which you're referring to, would present problems if it didn't have
the phrase “unless the judge orders otherwise”. I think that gives the
judge enough leeway to follow the Supreme Court's instructions,
which are that closed hearings without the applicant being present
are sometimes necessary in order to preserve the privilege.
Once the person's identity is out, the person's identity is—
The Chair: I'm sorry, we're well past time.
We will now go to Mr. Falk, please.
Mr. Ted Falk (Provencher, CPC): Thank you, Mr. Chairman.
I want to thank all the witnesses for coming here today with their
interventions.
Dr. Roach, I'd like to start with you. One of the first comments
you made is that this proposed legislation adds new powers, and yet
we've heard from the minister and also from previous witnesses that
this act does not provide any new provisions. Can you perhaps
expand a little further on that seeming contradiction?
Prof. Kent Roach: The issue of whether CSIS has extraterritorial
powers is a matter that has actually been under litigation under the
act before Bill C-44. Justice Blanchard said in a decision that it didn't
have extraterritorial powers. Justice Mosley—and here my interpretation is a little bit different from Professor Leuprecht's—actually
said that it did have extraterritorial powers. He only drew it back
when he found out they were using the Five Eyes to exercise what he
had authorized as extraterritorial CSIS investigations.
When I say “new powers”, I mean this a matter of legal dispute.
Leave to appeal in the Justice Mosley decision is now, I understand,
being sought from the Supreme Court of Canada. It is possible the
Supreme Court of Canada will hear that case, we really don't know
right now.
When I say “new powers” I mean black letter law, new powers
that spell it out.
17
But you're right that the Attorney General of Canada has argued
that in the existing CSIS Act there are powers for CSIS to conduct
investigations outside of Canada.
Mr. Ted Falk: Right, and that this act just provides more clarity to
that. In general, would you agree with that?
Prof. Kent Roach: Yes, I would.
Mr. Ted Falk: You've also referenced that there could be implied
confidentiality. Is that something we could inadverently do or
unintentionally provide for someone?
Prof. Kent Roach: Yes.
Mr. Ted Falk: Can you expand a little bit on how we might
address that or why you believe that to be the case?
Prof. Kent Roach: Sure.
Well, with reference in clause 2 of the bill, I can understand why
“a promise of confidentiality“ was chosen. That is used in the
jurisprudence. But in the 2013 Supreme Court of Canada case called
R. v. Named Person B, the Supreme Court said it could also be an
implied promise of confidentiality. My worry is that, if you're going
ahead with a CSIS privilege, perhaps you should revisit that
language, and talk about an explicit promise of anonymity.
My concern is that when CSIS agents go to talk to someone, it's
almost always confidential. My concern is that this privilege will
apply to virtually every human source that CSIS interacts with. I
think it is important for there to be legislative guidance that narrows
that privilege, because of the potential downstream effect of the
privilege on the prosecution process.
I would also add that it might be wise to require some form of
review or ministerial oversight about how this privilege works out if
it is enacted. Because, as I said, rightly or wrongly, after four years
of deliberation, the Air India commission certainly looked at this
proposal, but on balance, rejected it because of concern that this
might hinder terrorism prosecutions.
● (1720)
Mr. Ted Falk: Good. Thank you.
Mr. Davies, I have a question for you. Why do you think it's
important for the CSIS Act to be clarified to give explicit authority to
conduct investigations outside of Canada?
Mr. Garth Davies: I think that right now the legal grey area that
they're operating in is probably holding them back from the kinds of
things that we would need from them in terms of gathering
information. I suspect that it is limiting what they feel they can do.
They're operating with one arm tied behind their back. I think the
clarification is required for them to know they'll be safe in terms of
the information that they're collecting.
Mr. Ted Falk: Good. Thank you.
18
SECU-41
Mr. Leuprecht, you've indicated in your interventions that you feel
your personal rights and freedoms would take a second seat to
national security issues. Could you expand a little further on how
convinced you are of that statement?
Dr. Christian Leuprecht: The precise nature of the statement was
that I'm concerned that, when hard-pressed, we have a tendency in
Canada to err on the side of individual freedoms, civil liberties, and
privacy rather than on the side of public safety and security for
Canadian society as a whole.
I would suggest that some of our allies have perhaps struck what I
might term a bit more of a mature balance, because they have had to
live with the phenomenon of terrorism much longer than we have.
We need to recognize that there are certain collective obligations that
the government has, and that, given the nature of the security
environment in which we live, when forced to make a choice
between the two, I would err on the side of peace, order, and good
government rather than the side of necessarily protecting itemized
individual civil rights and privileges if, as a result, the life, liberty,
equality, and justice of Canadians and Canadian society as a whole
may be called into question.
Mr. Ted Falk: This bill says that when CSIS or CSIS agents
operate on an international level, they must operate within the scope
of Canadian laws. Do you think this is an appropriate balance?
Dr. Christian Leuprecht: I do indeed. Teaching at the Royal
Military College, this is the framework in which the Canadian Forces
are deployed. I think we have ample examples, not just of the
Canadian Forces, but, of other government departments, conducting
operations abroad, and doing so within the legal and constitutional
framework that Canada applies and expects of those organizations.
The Chair: Mr. Casey, you have the floor, sir.
● (1725)
Mr. Sean Casey: Thank you, Mr. Chair.
I'd like to start with you, Professor Leuprecht. At the end of your
remarks you indicated that—and I'm paraphrasing here—the biggest
weakness or the biggest error is an error of omission with respect to
accountability—but not oversight, I think—and you cited the
Belgian model as the gold standard. Could you talk a little more
about the Belgian model and highlight the differences between what
we have here and what we would need to do to get to what you think
is the optimum model?
Dr. Christian Leuprecht: The Belgian model came out of a
catastrophic failure in the Dutroux case. I would suggest that one of
the reasons we would want to look at accountability is precisely to
avoid any risk of such catastrophic failure of a security system. I
won't go into all the details, but I would be happy to provide the
committee with the contact information of the senior judge who
heads the organization in Belgium, who I know quite well. The key
about the organization of Belgium is that the accountability is
provided through a mechanism that is paid for by Parliament, and the
mechanism is directly accountable to Parliament and not to the
political executive. It has a staff of about 100 people. The key
element of their accountability capacity is that they do not provide
accountability just for files that are closed, but they have the ability
to see files of any active investigation that is being carried out within
the Belgian security framework. So it doesn't just provide
November 26, 2014
accountability after the fact; it provides accountability in the actual
process of investigations.
The challenge, I think, that we currently have in Canada is that we
have annual reviews and after-the-fact accountability, but we don't
have a mechanism that provides ongoing accountability in as
effective a manner as we could have. We have a mechanism that
reports to the political executive rather than being accountable to
Parliament. The major change that would require is for members of
Parliament to be security-cleared to have privileged access to the
information they are being provided, and this would be a significant
step for Canadian Parliament to take.
Mr. Sean Casey: But you feel it would be one that would
represent the best practices internationally.
Dr. Christian Leuprecht: I do think the Belgian model is perhaps
one of the most effective in terms of the accountability it provides
both in terms of the tack in operational accountability for the
organizations in question and in the way that accountability is
reported to the legislative branch.
Mr. Sean Casey: Thank you.
Professor Davies—and perhaps I'll get Professor Roach to chime
in on this as well—yesterday the committee received a letter from
the Privacy Commissioner of Canada. The Privacy Commissioner
expressed concerns related to privacy issues, and the means by
which information is gathered related to the extraterritoriality
provisions of the bill. He also commented specifically on the
adequacy of existing safeguards to ensure against the risk of such
violations, including the risk of torture.
Could I have Professor Davies and Professor Roach offer any
comments they wish on the concerns expressed by the Privacy
Commissioner of Canada to the committee yesterday?
Hon. Diane Ablonczy: On a point of order, at our last meeting we
had a discussion about the fact that the Privacy Commissioner put
forward certain views but declined to attend to answer questions on
the views. I don't know whether we made a decision about whether
to deal with his views absent his appearance before the committee.
Can you just clarify that for me?
The Chair: The chair does recall that the Privacy Commissioner
did not appear.
Mr. Clerk, was he invited?
The Clerk of the Committee (Mr. Leif-Erik Aune): The Privacy
Commissioner was not invited to appear before the committee for its
study of Bill C-44.
Hon. Diane Ablonczy: Why do we have this information then?
The Chair: What I'm suggesting, then, is that obviously the
Privacy Commissioner was not invited as a witness prior to...;
however, he did send a letter, and the letter was received by the
committee, but it has not been authorized to accept it as evidence,
other than as having been received by the committee. It would take a
motion by committee to establish it as evidence within the
committee; otherwise, it is there for the committee's personal use.
● (1730)
Hon. Diane Ablonczy: Is this question in order, then?
November 26, 2014
SECU-41
The Chair: There has been an objection raised. It would be up to
this committee now to decide whether or not they wish to.... It is in
order unless an objection is made. If there is an objection, the
objection can be sustained based on whether or not it's in order.
Hon. Diane Ablonczy: We're always happy to have information,
but does that mean anybody can write a letter to the committee and
then we have to consider it? That could get a bit messy, I would
think.
The Chair: I will read from the paragraph that applies to this,
because it is open ball. It says:
There are no specific rules governing the nature of questions which may be put to
witnesses appearing before committees, beyond the general requirement of
relevance to the issue before the committee
Now, there is an issue of relevance, in that when the letter was
directed to the committee, it was relevant to Bill C-44. It is relevant,
so at this particular point, it would then be admissible and accepted,
according to the paragraph that is in here.
So yes, it is in order.
Hon. Diane Ablonczy: Thank you, Mr. Chairman.
The Chair: Carry on, please.
Mr. Sean Casey: Professor Roach, Professor Davies, are you
okay with the question? Do you need me to repeat it? Are you ready
to respond?
19
The Chair: I'm sorry, sir, but we are running out of time now. We
have about 30 seconds left.
Prof. Kent Roach: Just quickly, it goes back to the need for
parliamentary oversight and parliamentary access to secret information. Certainly, the resolution of the Afghan detainee case shows that
there are some problems there.
The Chair: Fine. Thank you very much.
The time is now over.
I have one little budget issue that I would like the committee to
deal with; however, I would excuse the witnesses and thank them
very kindly on behalf of all of the committee and its members.
Colleagues, I have a budget request that you have had sent to you.
[Disturbance in the audience]
Mr. Rick Norlock: On a point of order, Mr. Chair, this is an
interference in a parliamentary process.
The Chair: Excuse me. Could we have this gentleman removed,
please? I would like you to call security, please.
Colleagues, I have a budget request for witness testimony. Is it
approved?
Some hon. members: Agreed.
The Chair: Thank you. The meeting is adjourned.
November 26, 2014
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November 26, 2014
November 26, 2014
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November 26, 2014
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