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 intelligence 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.
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.
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—
—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.
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-and-branch 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.
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.
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 long-serving 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.
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.
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.
