Evidence of meeting #29 for Public Safety and National Security in the 42nd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was csis.
2:55 p.m.
Liberal
2:55 p.m.
Liberal
Pam Damoff Liberal Oakville North—Burlington, ON
Thank you.
Getting back to oversight, one of the recommendations from the Air India inquiry was a national security adviser. I just wondered what your thoughts are on that.
2:55 p.m.
Prof. Stuart Farson
You should ask Reg Whitaker when he comes because he worked more intimately on it than I did; I was only an expert witness to that commission. The national security adviser essentially replaced a body that was responsible for the security and defence policy, as I understand it. It came under a number of different names. What the national security adviser was meant to do, at least in my understanding, or what I would have recommended, was to be a bridge between the assessment of intelligence and the Prime Minister, so that he was on a regular basis informed on what—
2:55 p.m.
Prof. Stuart Farson
—he or she needed to know.
2:55 p.m.
Liberal
Pam Damoff Liberal Oakville North—Burlington, ON
You said that the Canadian public has not been so interested in security since the McDonald commission, and I'm just wondering why.
2:55 p.m.
Prof. Stuart Farson
No, I didn't say that. What I said was that they hadn't been as interested to the same degree about their concerns over civil liberties.
3 p.m.
Liberal
Pam Damoff Liberal Oakville North—Burlington, ON
Okay. Well, that's what I was going to ask you. Why do you think that is?
3 p.m.
Prof. Stuart Farson
The issues that came up in the nineties, for example, I don't think were a major concern. It wasn't until after 9/11 that you started to see concerns emerging. It's not really until after 9/11 that you see technological innovation impacting on privacy in any way.
3 p.m.
Liberal
Pam Damoff Liberal Oakville North—Burlington, ON
But it was a concern in the nineties, though. You said we had the concern in the nineties, and then we got—
3 p.m.
Prof. Stuart Farson
No, I'm saying that we had, at the time of McDonald, which is from the seventies and early eighties, this concern about civil liberties. I was asking Micheal Vonn about this, whether she thought my interpretation was correct. That's another question I think you could ask her.
3 p.m.
Liberal
Pam Damoff Liberal Oakville North—Burlington, ON
All right, thank you.
Do you have any comments on how we incorporate first nations into the whole security framework?
3 p.m.
Prof. Stuart Farson
They do intrude from time to time. Certainly they have done it with various elements of first nations, in Quebec, for example. The first nations are concerned about things that impinge on their claimed property, and they have been concerned when things like pipelines, etc., have been a topic that they seem to be losing out on, or on environmental issues more broadly. There is a real concern there and that is something that needs to be considered.
3 p.m.
Liberal
The Chair Liberal Rob Oliphant
I think we'll end there, and then we can have a full second panel.
Thank you very much, Professor. Thank you for your public service up until this point, and in the future.
We're going to take a few minutes to bring our next guests in. We'll just take a two-minute break.
3:05 p.m.
Liberal
The Chair Liberal Rob Oliphant
Thank you.
We'll continue our second panel. We have two guests with us. We're going to begin with Micheal Vonn from the B.C. Civil Liberties Association and then go to Mr. Whitaker, a professor at the University of Victoria and also with York.
Ms. Vonn.
3:05 p.m.
Micheal Vonn Policy Director, British Columbia Civil Liberties Association
Thank you for this invitation.
The BCCLA is on record as calling for the complete repeal of Bill C-51 and we have views on almost every aspect of the national security framework, which I would be very pleased to share with you. However, for the duration of my prepared remarks, I wish to make a substantive contribution to your deliberations on a topic that is receiving surprisingly little airtime given it's importance, and that is the new Security of Canada Information Sharing Act.
The unprecedented expansion of the surveillance powers in this act, along with the controversial new CSIS threat disruption powers, were the main points of opposition heard by the thousands of citizens who took to the streets to protest the introduction of Bill C-51. My discussion on the Security of Canada Information Sharing Act will focus on our new understanding of what is happening with the collection of datasets of personal information in the security intelligence realm.
If time permits, or perhaps during questions, I would be very pleased to unpack the ramifications of the act in further detail, including how it intersects with issues of profiling, but it is critical, in our view, that we first squarely set this discussion within the recent findings of unlawful data collection within the Five Eyes.
You will doubtless have seen today's headlines from the U.K. that the investigatory powers tribunal has ruled that British security agencies have secretly and unlawfully collected massive volumes of personal data in breach of article 8 of the European Convention on Human Rights, and that this unlawful activity has been going on for years and years.
The illegal data holdings include bulk personal datasets, which might include medical and tax records, individual biographical details, commercial and financial details, communications, and travel data. The ruling confirms that for over a decade U.K. security services unlawfully concealed both the extent of their surveillance capacities and the fact that innocent people across the country had been spied upon. This is an eerie echo of what we here in Canada learned only a few weeks ago about our own comparable intelligence data holdings.
Granted, unlike the situation in the U.K., it was not front page news. The media coverage of SIRC's just-released annual report focused on the review of the new threat disruption powers, which is, by no means, a surprise. However, largely unexplored in the public discourse was the report of SIRC's first-ever examination into CSIS data acquisition programs, including bulk datasets, and that report was an extremely damning one, very much in keeping with the situation that was recently disclosed in the U.K.
SIRC advises that within CSIS's own data classifications there are two types of datasets. The first type they refer to as “referential”, which, on the argument that they are openly sourced and publicly available, CSIS says are not collected under the authority of section 12 of the CSIS Act and therefore have to meet no standard of collection. SIRC does not comment on the legal interpretation that underpins this theory of collection that is not collection.
The second type of dataset is the “unreferential” datasets, which CSIS does consider to be collected under the authority of the CSIS Act and must, therefore, meet the collection threshold of being strictly necessary. Despite its characteristic calm and measured tones, what SIRC has to report in this matter is extremely alarming. The bottom line is this. SIRC does not agree that all of the publicly available, openly sourced data is in fact publicly available and openly sourced, so there are definitely red flags in that category. Even more troubling, however, as regards the datasets that clearly fall under the requirement for strict necessity, “SIRC found no evidence to indicate that CSIS had appropriately considered the threshold as required in the CSIS Act.”
It found no evidence of appropriate consideration of the applicable legal standard to bulk data collection of Canadians' private information. It is simply impossible to read this as indicating anything other than contempt for the need to abide by the applicable laws in this arena. This is so serious a matter that SIRC called for the immediate halt to the acquisition of bulk datasets until there can be a system to confirm compliance with the law. This, then, is the situation, one completely unmoored from the legal requirements in the CSIS Act, to which we add the near free-for-all of the information sharing act's powers.
You will recall that the Security of Canada Information Sharing Act applies to national security concerns defined so broadly that the definition has never before been seen in Canadian law. It constitutes a bar so low that there is hardly anything that cannot be argued to be within its purview. It spans far beyond public safety into ordinary public life, encompassing everything from the administration of justice to the country's economic or financial well-being.
There's no need, under the legislation, for individualized suspicion as the basis for individual information sharing, and indeed no impediment to entire databases of personal information being disclosed on the grounds that they may be relevant to an institution's mandate to detect, identify, analyze, prevent, investigate, or disrupt an activity that undermines the security of Canada—again, as defined so broadly in the act as to encompass huge swaths of ordinary public life. It is difficult to imagine a database held by a federal agency that couldn't be argued for on such grounds. Perhaps it was thought that a possible mechanism to prevent the obvious threat of inappropriate data disclosure might be, by virtue of the CSIS Act, that CSIS would be unable to collect, retain, or use such vast categories of Canadians' private information because they would not fall under the legal standard that CSIS is to apply to its data holdings. However, we have just been told, in no uncertain terms, that those legal standards are being ignored. It is anyone's guess for how long that situation has existed. As I say, this is SIRC's first-ever review of these data holdings.
Further, we need to keep alive to the fact that there was never a compelling case for the legislation in the first place. In their recent response to the government's green paper, Professors Roach and Forcese cite a CSIS briefing note of 2014 that sets out some concerns about the lack of clarity with respect to information sharing for national security purposes. The briefing note did not call for the wholesale revisioning of information sharing to address this concern about clarity but rather suggested, “With appropriate direction and framework in place, significant improvements are possible to encourage information sharing for national security purposes, on the basis [of] existing legislative authorities.”
Instead of the careful and measured approach called for, legislation of monumental overbreadth was enacted, which compounded the lack of clarity and paved the way for a massive increase in already illegal data holdings by security intelligence. Ordinary citizens thus have every justification for concern that their personal information can be disclosed under the vast sweep of the act, which the Privacy Commissioner of Canada confirms is unprecedented. Meanwhile, the security benefits of this approach are, at best, entirely speculative and infinitely more likely to actually undermine rather than enhance effectiveness. The act is so far from hitting the mark of what is needful for national security that, as Roach and Forcese note, “The Act allows the government to share just about everything while it rejects the Air India commission’s recommendation that CSIS must share intelligence about terrorist offences, if not to the police than to someone who is in charge and who can take responsibility for the proper use of the information.”
It was ill advised when it was introduced, and it is even more so now that we have some insight into the shocking state of the current data holdings. The act should be repealed and replaced with the careful, measured approach that was called for in the first place to ensure that needed information sharing for national security purposes can occur within appropriate and meaningful protections for lawful Canadians' personal information. Thank you very much.
3:15 p.m.
Liberal
October 17th, 2016 / 3:15 p.m.
Professor Reg Whitaker Professor, Department of Political Science, University of Victoria and Distinguished Research Professor (Emeritus), York University, As an Individual
I would certainly like to add my voice to applauding the initiative of opening up national security to wider public participation as with these committee hearings. It's certainly a contrast to the way in which Bill C-51 was carried through the last Parliament. A better-educated public is crucial to democratic decision-making, as is the enhanced role of Parliament as we see put forward in Bill C-22.
However, public consultation can be diffuse and unfocused, while the key agencies of government have their own sharply focused agendas, which are relentlessly pressed on governments of any political stripe. I see already evidence in the green paper and in Bill C-22 of this process at work. The agencies are acting as a kind of heavy anchor pulling in one direction, while counter-pressures from outside are much weaker.
I'm not saying there's anything inherently nefarious in this kind of bureaucratic behaviour. I'm assuming that the bureaucrats are trying to do the job they're assigned to the best of their abilities, but on the issue of the powers that they are granted and the protections in terms of privilege and secrecy for their operations, there is a clear public interest in limiting the agencies' capacity to act without accountability to the public and to Parliament, and as well, in limiting the scope of their powers to conform to the rule of law.
The agencies certainly have legitimate concerns about reforms. I think there have been some unrealistic concepts of accountability and oversight that have been put out there, such as the idea that there should be oversight of ongoing operations in real time, whether by a parliamentary committee or whatever, which would be unworkable and undesirable. However, the provision of extraordinary and unreasonable powers, even though the agencies have no apparent intention of actually using them at this time but might prefer to keep them in the back drawer, as it were, just in case, should not be tolerated, nor should excessive limitations on external oversight review just to make the bureaucrats' lives a little easier.
In the interest of time, I want to focus my remarks on one section of Bill C-51, what I consider to be the very worst part of what I would say is a very bad piece of legislation, generally badly conceived, badly drafted, and potentially pernicious in effect. I'm referring to the threat reduction or disruption powers awarded CSIS and the special warrants CSIS might seek for judicial authorization to break the law and violate charter rights. I will also try to touch on the closely related issue of the secret intelligence public evidence problem.
What is wrong with CSIS threat reduction powers? Well, I think, everything, literally. As someone who has co-authored a history of the security service from its late 19th century origins to its present post-9/11 era, from the RCMP to its present incarnation as CSIS, I would say unequivocally that threat reduction in Bill C-51 is dangerous to civil liberties and the rule of law, certainly, but it also threatens to undermine security and effective counter-terrorist law enforcement.
CSIS is a security intelligence agency empowered to collect intelligence on threats to security and advise governments. The RCMP, of course, is the law enforcement agency on national security matters. The security service was taken away from the RCMP in 1984 after the McDonald commission for good reason: the illegal activities in the 1970s, mainly in Quebec against Quebec separatists but also against various left-wing organizations in the rest of the country.
Violations of laws without accountability, no clear lines between violent versus legitimate political groups, the question of control by elected governments, and so on, was precisely what the McDonald commission reacted against, and CSIS was created apart from the RCMP, with no law enforcement powers and a mandate spelling out what it was authorized to do and what it was not authorized to do. All those things flowed from McDonald and we're seeing it threatened with a return back to that era, that scandal-filled era again.
I'll just skip over some of the credits and try to focus on each of the problems with this.
First of all, the special warrants allow law-breaking and charter violations, short only of murder, torture, and rape, to be authorized by a judge. They are not surveillance warrants, which are in effect judicial certifications that these acts are within the law and abide by the charter. Instead, they ask judges to enable law-breaking and unconstitutional acts. This is a radical revision of the role of the judiciary from protectors of the law and constitution to enablers of violations. This is a shocking assault on the rule of law and the independence of the judiciary, now turned into a tool of the executive. I expect most judges, if not all, would be quite appalled by this prospect.
The next point is that the warrant application is entirely secret, with no specified follow-up for the judge granting the warrant to determine if it has been carried out as promised, or what the results are. No reporting is required of warrants granted or turned down—no accountability of any kind.
The decision to seek a warrant—and this is an important point—is at the discretion of CSIS. If they decide that a disruption activity does not require a warrant, there appears to be no fallback accountability as to whether that decision is justified. That is unacceptable.
These threat reduction measures could involve detention, if you read this very carefully—not arrest but detention—and they could involve extraordinary rendition on the international stage. Of course, in the latter case, we could see the potential for somebody who is a Canadian perhaps being rendered to a country where torture is routinely practised.
All of these issues that I've been talking about are problems regarding the rule of law and the rights of citizens, and so on. However, it's also very important to realize that CSIS threat reduction efforts could impede rather than facilitate counterterrorism. This recreates the potential for conflict turf wars with the RCMP, as were tragically shown by the Air India commission. It opens up the possibility that CSIS, protecting its sources as a security and intelligence organization, could imperil convictions in court, and there's the distinct possibility that these activities could contaminate the evidentiary trail.
This brings us to the intelligence evidence conflict that the Air India commission addressed, in which the government did not take up any of the recommendations of the commission to deal with this problem. I can't go into this at any length, and certainly it's a topic best undertaken by lawyers, except to note that threat reduction or disruption activities can be useful, certainly. I'm not making the point that they should never be used. They can be very useful in counterterrorism, so long as they are undertaken with the goal always in mind of securing criminal convictions and putting dangerous terrorists behind bars.
The RCMP already does this, both in its criminal and national security investigations, if you look, for example, at the Toronto 18 case. CSIS does disruption as well, under pre-Bill C-51 law, and that's fine. I don't have any problem with that, so long as it does not interfere with the criminal law process and is rather supportive of the criminal law process.
A general point that I would like to make is that unlike the old Cold War era, the era of terrorism is one in which, given that the terrorist threat is against civilians, ordinary people, the priority must always be given to law enforcement and criminal convictions. CSIS has a role to play, but the notion that they have this role of slowly building a long-term picture of these networks like the old KGB in the Cold War has to be subordinated to law enforcement. The threat reduction powers and special warrants radically undermine this.
The last thing I want to say is that CSIS says it has not applied for any of these special warrants, and that presumably everything it has carried out, we can assume, has not required that kind of special warrant power, like the powers of preventive detention and investigative hearings in the 2001 Anti-terrorism Act, which were so controversial that time limits were put on them. They were actually allowed to lapse at one point and then were reinstituted by the former government, yet in all that process, they've never been used.
Are we seeing a repeat of the same kind of phenomenon?
In both cases, if they have never been used, why exactly are they needed? In the case of the threat reduction powers, perhaps CSIS had these foisted on them unwillingly by the government. In that case, then, we really ought to get rid of them. Or it may be another example of the unending pressure on governments to keep up powers that they might need “just in case”. That's a very bad case for keeping a bad law on the books to be potentially abused by less responsible people in the future.
3:30 p.m.
Liberal
3:30 p.m.
Prof. Reg Whitaker
My preference certainly would be that the entire section of Bill C-51 that deals with threat reduction powers be eliminated in its entirety.
3:30 p.m.
Liberal
The Chair Liberal Rob Oliphant
Thank you.
I should remind all witnesses that anything you want to submit in writing to the committee is always welcome. It will go into our deliberations.
Mr. Mendicino.
3:30 p.m.
Liberal
Marco Mendicino Liberal Eglinton—Lawrence, ON
Thank you, Mr. Chair.
Thanks to both of you for your testimony this afternoon.
You mentioned, Mr. Whitaker, the Toronto 18 case. I had the privilege of serving as prosecutor on that case, so I have some first-hand knowledge about some of the challenges the crown faced in taking on what at the time was I think the first post-9/11 domestic terrorism prosecution, or in any event, one of the first.
I want to focus on something you said, which is that you recognize that threat reduction can be useful so long as those measures will lead to criminal convictions. I'm wondering if you can elaborate on why it is you think that CSIS, in an era where threats are different than they were at the time of the McDonald commission, over time has not developed the skills and perhaps the aptitude to reduce threats in a way that takes into account the balance that is at the core of this discussion, namely, how to protect Canadians while at the same time safeguarding their individual liberties and their rights.
3:30 p.m.
Prof. Reg Whitaker
It's a very complicated question, and I'm not a lawyer. I know that, for example, there's this kind of two-court system with regard to evidence and intelligence. You have one court hearing a case and then potentially another court determining whether non-disclosure can be imposed on certain evidence in there. That has not worked perhaps as well as it might have.
3:30 p.m.
Liberal
Marco Mendicino Liberal Eglinton—Lawrence, ON
Let me stop you right there, because that has to do more with how the prosecution can bifurcate when there may be a question involving privilege of national security. I appreciate that at times it can lead and has led to delay.
What I wanted you to talk a bit about was why you think CSIS, in collecting information that is useful to Parliament in understanding what threats to national security exist, has not over time developed the skills to reduce threats through interventions that may not require a full-blown conventional criminal investigation and prosecution.