Public Safety Committee on Nov. 26th, 2014

[Craig Scott, NDP, Toronto—Danforth, ON]

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?

[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.

[Craig Scott, NDP, Toronto—Danforth, ON]

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.

[Craig Scott, NDP, Toronto—Danforth, ON]

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.

[Craig Scott, NDP, Toronto—Danforth, ON]

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.

[Craig Scott, NDP, Toronto—Danforth, ON]

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.

[Craig Scott, NDP, Toronto—Danforth, ON]

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, Conservative, Daryl Kramp]

—I'm going to have to interrupt, Mr. Scott.

[Craig Scott, NDP, Toronto—Danforth, ON]

... 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, Conservative, Daryl Kramp]

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.

[John Carmichael, Conservative, Don Valley West, ON]

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.

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, Conservative, Daryl Kramp]

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.

[The Chair, Conservative, Daryl Kramp]

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.

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.

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.

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.

[The Chair, Conservative, Daryl Kramp]

Thank you very much, sir.

We will now go to an opening statement from Mr. Davies, please.

[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, Conservative, Daryl Kramp]

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.

[The Chair, Conservative, Daryl Kramp]

Mr. Leuprecht, you have the floor for an opening statement for up to 10 minutes, should you wish, sir.

[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.

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.

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 non-Canadians 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 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.

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]

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.

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.

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, Canadians, and Canadian interests. I value my freedoms, but I value my life and the lives of my compatriots even more.

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.

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 far-reaching 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, Conservative, Daryl Kramp]

Could you sum up then, please, Dr. Leuprecht?