Bill C-622 (Historical)

CSEC Accountability and Transparency Act

An Act to amend the National Defence Act (transparency and accountability), to enact the Intelligence and Security Committee of Parliament Act and to make consequential amendments to other Acts

This enactment
(a) amends Part V.1 of the National Defence Act to improve the transparency and accountability and provide for an independent review in respect of the operations of the Communications Security Establishment; and
(b) enacts an Act to establish the Intelligence and Security Committee of Parliament.

Protection of Canada from Terrorists Act

[Wayne Easter, Liberal, Malpeque, PE]

Mr. Speaker, I am pleased to have the opportunity to speak to Bill C-44, an act to amend the Canadian Security Intelligence Service Act and other acts. It is a bill the government really had to introduce following two adverse court rulings on the activities of CSIS.

In beginning, I want to just spin off a little of that last question and answer. I would speak directly to the minister. I would hope, in this instance, given the concern about the balance between national security and civil liberties, that the minister would push the committee to allow a full list of witnesses, not the kind of stacked list we get sometimes from the Conservatives, and a full hearing, an in-depth hearing, so the committee can do its proper job and come back with the best legislation possible. I support the point raised a moment ago by my colleagues.

There are some serious questions related to the provisions in Bill C-44 that need to be raised when the bill is before committee, and we intend to raise those questions and those concerns at that time.

The Liberal Party will be supporting this bill going to committee. However, I hope that the committee is really allowed to do its job and get in the proper expert witnesses and have the proper balance so that we can come back with the best legislation possible.

We have to look not just at this bill but at CSIS and its connections to the RCMP, CSEC, Canada Border Services Agency, and our allies we work with abroad.

There are three points I would like to raise specifically on this issue and this bill. One is tools. The minister is suggesting that this bill provides more tools, but there are really not many.

The second area is resources, the financial, human, and technological resources, for CSIS to do its job.

The third area is oversight and the need for proper oversight, and not of just CSIS. We have after-the-fact oversight, but there really needs to be parliamentary oversight of all our national security agencies. I will talk about that in a moment.

Before looking at the specific provisions in Bill C-44, it is necessary to place on the record our concern about the government's response to the terrorist threat to Canada and from within Canada. I would begin by asking the government a direct question. Why is it that the legislation currently in place, the provisions in the Criminal Code, some of which were put forward by the government in the Combating Terrorism Act, have not been utilized?

On October 27, in the House, the Minister of Public Safety admitted that the response of his office and his government to the threat represented by homegrown terrorists was not quite what it should be. According to the minister at that time, it is “time we stop under-reacting to the great threats against us.”

Yet the government still fails to act. I submit that it possesses the necessary tools to react. In fact, under section 83.181 of the Criminal Code, there is all kinds of authority for anyone who “leaves or attempts to leave Canada” for the purpose of participating in any activity of a terrorist group outside Canada.

There are four different sections there. The penalties are maximum terms in prison of 10 to 14 years, depending on the severity of the act.

The Minister of Justice stated publicly last week that the laws currently in place to combat a terrorist threat are “robust measures” that provide the police with the tools necessary to take action in response to a terrorist threat. The minister specifically referred to sections 83.3 and 810 of the Criminal Code, either of which would enable authorities to detain individuals under the provisions of a peace bond and could impose specific recognizance on individuals. In other words, action to limit certain individuals from taking action could be imposed. I ask the minister why those provisions have not been utilized.

The Minister of Public Safety has to this day failed to clarify a statement made before the public safety committee on October 8 with respect to the 80 individuals who returned to Canada after travelling abroad to take part in terrorist-related activities. He stated:

Let me be clear that these individuals posing a threat to our security at home have violated Canadian law....These dangerous individuals, some skilled and desiring to commit terrorist activity, pose a serious threat to law-abiding Canadians.

The minister also reconfirmed the following at committee:

...leaving or attempting to leave Canada to participate in terrorist activities is now a criminal offence.

The minister is quite correct on those points. There is authority under the Criminal Code to act. I have to again ask the question: Why has the government not acted with those authorities that are already there? Those authorities would not be changed in this particular legislation, other than confirming in law what CSIS already does.

I ask why section 83.181, which states that “Everyone who leaves or attempts to leave Canada” for terrorist acts abroad, is not being applied. It certainly was not in the case of the individual involved in the murder of the Canadian Forces member in Quebec earlier this month. According to public information, that individual had his passport revoked on the grounds of attempting to travel to Syria or Iraq to join known listed terrorist entities.

According to testimony by the Commissioner of the RCMP to the Senate national security committee on October 27, this individual was known to authorities to have intended to use his passport to leave Canada for Syria or Iraq to participate in “jihad”, yet the commissioner confirmed that the evidence the authorities had of this intent, while enough to have his passport revoked, was not enough to lay a charge. I ask the minister, and maybe he can answer this at committee, whether this bill will correct that shortcoming. I personally do not see it in the legislation, but I would ask the minister and his staff to come prepared to answer that question. Would this legislation correct that shortcoming the RCMP Commissioner seems to have outlined? We really do not know as yet, because the minister has not been specific on that point.

A great deal has been said by members of the government with respect to the provisions of the Combating Terrorism Act, which came into force in 2013. According to the Parliamentary Secretary to the Minister of Public Safety, one individual has been charged under the provisions of the Combating Terrorism Act. The minister confirmed, as well, when he testified before the public safety committee on October 8, that only a single individual has been charged under the Combating Terrorism Act.

However, what neither the minister nor the parliamentary secretary bothered to tell Canadians was that the single individual charged had left Canada six months prior to the charges being laid, and that individual's whereabouts are still unknown.

Could one of the reasons these provisions in the Criminal Code have not been acted upon be the limited resources available to our security and intelligence services? That was mentioned in a previous speech. What good are legal sanctions if our security agencies cannot utilize them? If the reason is that the current government has been starving those agencies' critical resources, who is responsible for the security failure?

I would submit that in many things that the current government has been doing in the last two years, it has been blindly focused. Good government requires it to provide services, security, and financial resources, and yes, it has to establish priorities. However, part of the problem with the current government is it is blindly focused on getting as huge a surplus as possible so it can throw out election goodies. Is part of the cost of doing that starving CSIS and the RCMP of the funds necessary to do their job? I really do not know, but it looks that way. Good government cannot be blindly focused just on achieving a surplus to provide goodies at the next election; it has to be focused on the needs and the services of Canadians. I see that as a problem.

There is another issue beyond this bill that the government must respond to, something that does not require legislation but requires the Minister of Public Safety and Emergency Preparedness simply to do the job assigned to him. The most recent annual report of the Security and Intelligence Review Committee, the only oversight body for CSIS, raised a number of troubling concerns. The Commissioner of the RCMP told the Senate national security committee on October 27 that there were now 93 individuals identified as high-risk travellers. The director of CSIS informed the public safety committee on October 8 that there were 80 individuals who have returned to Canada after having engaged in terrorist activities abroad, and CSIS knows where they are.

The problem there is that in terms of the RCMP doing its job, Commissioner Paulson said before a committee:

...we are reallocating the necessary funds and personnel from other priority areas to combat this threat. In recent months, and over the past week, over 300 additional resources were transferred in to enhance the capacity of INSET [Integrated National Security Enforcement Teams] from other federal policing priority areas such as organized crime and financial crime.

That tells me that the RCMP is indeed short of resources.

The deputy director of CSIS told the same committee on October 20:

...we work within the budget that is assigned to us. We do have to prioritize.

I would be foolhardy to say we have all the bases covered. We do what we can with the budget we have, sir.

There are clearly some concerns over financing.

There is another problem that the minister can deal with as well, and that is the operational mandate within CSIS. The most recent SIRC report, entitled “Lifting the Shroud of Secrecy: Thirty Years of Security Intelligence Accountability”, the annual report for 2013-14, said the following on page 16:

With surveillance teams spread across Canada all sharing identical job functions, SIRC expected to see solid communication among surveillance practitioners. Instead, SIRC found that, for the most part, regional surveillance teams operate in total isolation from one another and communicate only sporadically with their HQ counterparts.

That is worrisome, because if CSIS is not communicating properly within regions and between regions and headquarters, there is a serious problem. That is something that the minister can deal with.

The other point in the report that I just mentioned—and I am pretty sure that the minister knows this—is that at page 19, SIRC also found that with respect to the activities of CSIS:

...the Minister of Public Safety is not always systematically advised of such activities, nor is he informed of them in a consistent manner.

Those are two areas the minister can deal with without needing a bill. The minister just needs to ensure that the job is getting done within his own department.

The government has placed within Bill C-44 the enactment provisions of Bill C-24, which the minister talked about earlier. Bill C-24 would revoke the citizenship of dual nationals. We are concerned about that. The minister said in his remarks that it is included so as to enact that section faster. In an earlier question for the minister I said, and I will say again, that it is not enough to have something in legislation; it has to stand up to the courts. Some of us are concerned that this section just may not do that.

If the government, RCMP, CSIS, and other authorities are spending a lot of time on that particular area of taking away dual citizens' citizenship, it needs to be time well spent. I asked the minister to provide legal opinion to the committee to show that it is, in fact, charter-proof.

In an earlier question to the minister, I also raised the point that there is fairly strong wording in this particular bill. Subclause 8(2) reads:

Without regard to any other law, including that of any foreign state, a judge may, in a warrant...authorize activities outside Canada to enable the Service to investigate a threat to the security of Canada.

This would basically allow for a warrant to be issued to allow agents to break the law in a foreign country. We have checked the wording extensively, and similar wording is not found in the relevant legislation of our Five Eyes counterparts. I ask the minister why we need that specific wording when other countries do not, and I hope he could report the answer to committee,

An important part of the legislation deals with protecting our sources and informants abroad. At committee we would want to have more specific information on that aspect and know how it would be accomplished. I look forward to the government providing that information to the committee.

I will move on to the last point that I would like to make. I said first of all that I would deal with tools, resources, and oversight. One of the major shortcomings of this bill is the fact that the government did not bring accompanying legislation to provide proper parliamentary oversight to all of our national security agencies in Canada, as is done by all of our Five Eyes counterparts.

My colleague, the member for Vancouver Quadra, has a private member's bill, Bill C-622, as one option that the government could consider. I have a private member's bill, Bill C-551, which could be considered.

To find the balance between national security, civil liberties, and individual rights and freedoms in Canada, the government should be bringing in accompanying legislation that provides that parliamentary oversight. On the one hand, it would ensure that the agencies are doing their jobs, and on the other, it would ensure they are not going too far and violating the civil liberties of Canadians.

Privacy

[Joyce Murray, Liberal, Vancouver Quadra, BC]

Mr. Speaker, over the past year, information leaks revealed that the Communications Security Establishment of Canada spied on innocent Canadian air travellers and facilitated a massive U.S. spy operation on Canadian soil.

Last November, Justice Mosley revealed that CSEC kept the courts in the dark on how it shared Canadians' private data with foreign intelligence agencies.

Will Conservative MPs join us in standing up for their constituents' rights to privacy? Will the government commit to a free vote on Bill C-622, which would help protect both the privacy rights and the security of Canadians?

CSEC Accountability and Transparency Act

[Sean Casey, Liberal, Charlottetown, PE]

Mr. Speaker, I am pleased to rise today to speak to Bill C-622, proposed by my honourable colleague from Vancouver-Quadra. The bill, on a technical level, seeks to amend the National Defence Act to improve the transparency and accountability and provide for an independent review in respect of the operations of the Communications Security Establishment, and to enact an act to establish the intelligence and security committee of Parliament. It seeks to strike an important balance between national security, the privacy of Canadians, and parliamentary scrutiny.

There was justifiable concern earlier this year when Canadians learned that CSEC was monitoring Wi-Fi services at Canadian airports. In fact, there seems to be a bit of a preoccupation with privacy rights under this government.

If we go back to the Vic Toews bill, we all remember the e-snooping legislation, which fortunately did not see the light of day, but many of the provisions were then imported into a new piece of legislation and bundled with the rights of victims of cyberbullying in Bill C-13. The most recent example is the digital privacy bill, Bill S-4, which seeks to open the door a little wider, allowing the entities that can receive private information to walk through the door that had been opened by Bill C-13. The compromising of privacy rights in Canada has been a recurring theme under this government.

Mr. Speaker, before I get too far ahead of myself, please allow me to outline the role of CSEC for those following the debate and also for members of this place who may not be as familiar as necessary to adequately engage in the debate this evening.

CSEC, or Communications Security Establishment Canada, has a three-part mandate. First, it is responsible for the collection of foreign intelligence from the global information web. Second, it is the lead agency for cybersecurity for the federal government. Third, it can use its technological capacities and expertise to assist domestic law enforcement and intelligence agencies.

There is no argument that CSEC is a vital piece of Canada's national security puzzle. Additionally, CSEC functions within a global alliance known as the Five Eyes, an alliance of partner signals intelligence agencies within the United States, the United Kingdom, Australia, and New Zealand.

Following the 9/11 attacks in the United States, the mandate of CSEC was expanded. That was 13 years ago, and we are in a rapidly evolving world in terms of national security. It seems more than reasonable to assess the mandate, effectiveness, and accountability of CSEC and its activities.

My colleague, the hon. member for Malpeque, has been quite vocal about the need for parliamentary oversight. In his capacity as public safety critic, he has repeatedly pointed out the important fact that, although Canada functions within the Five Eyes alliance I just spoke about, it is the only country that does not have proactive parliamentary oversight.

In February of 2014, my hon. colleague from Malpeque asked a question that I think deserves an answer. I am not sure he has ever received a genuine or relevant answer, so I'll pose the question here again today. I am quoting from the member for Malpeque:

The key point here is that I really cannot understand the government's unwillingness to look at proper parliamentary oversight when two of its key cabinet ministers were in fact part of a report at one point in favour of such oversight.

We know that with this particular government, if an organization that depends on government funding comes out against the government, its funding will probably be cut.

The member went to great lengths explaining the Five Eyes and the other countries that are our allies in these issues. Where does the government get the idea that Canadians are less at risk of invasion of privacy and do not need proper parliamentary oversight, when all our allies do?

[Jack Harris, NDP, St. John's East, NL]

Mr. Speaker, I am pleased to have an opportunity to speak to Bill C-622. I have to say I am not surprised by the remarks I just heard from the government, but let me first talk about the bill itself.

I want to thank, once again, the member for Vancouver Quadra for bringing forth Bill C-622. It seeks to do two things, as has been pointed out by her. It seeks to change the nature of the intelligence agency CSEC and Parliament's ability to oversee its activities, which are two separate things, divided in two parts.

The Minister of National Defence has a lot of control over the activities of CSEC, and in fact can make things legal that would otherwise be illegal in such a way that we actually do not know what the rules are. That also deals with the issue of metadata. However, part two seeks to establish an intelligence security committee of Parliament, not of any particular House of Parliament but of Parliament itself and not a parliamentary committee, with members of Parliament and senators together to provide oversight. Those are the two separate parts.

We know that there have been plenty of warnings that CSEC needs greater oversight and that as we move forward with changes to greater security measures and powers, we also need greater oversight. It is pretty clear that the Conservatives have been refusing to act, and we heard the same thing today.

Under the Conservative government, the spying activities of CSEC and its budget have ballooned to four times what it was in 1998, yet Canada remains the only member of the Five Eyes intelligence alliance that does not have parliamentary oversight of its intelligence activities. By “parliamentary oversight”, clearly we are talking about members of Parliament to whom the government is accountable, having oversight over the intelligence activities of the executive.

New Democrats support the spirit of Bill C-622 to establish this parliamentary oversight, but we do not think the bill is robust enough. We also think that it should not include senators because that destroys the democratic legitimacy of the kind of oversight that we are talking about. Our proposal, which I mentioned in my question for my colleague from Vancouver Quadra, was a plan to have comprehensive parliamentary oversight by a committee of Parliament of all intelligence activities, not just of CSEC, crafted to take into account the modern realities.

We know something was done 10 years ago and things have changed since then, but we want the whole thing evaluated and looked at afresh to craft the best possible committee, taking into account the changes and modern technology and hearing from experts about what is the best way to deal with the technology that we have.

Given the indication from the other side that the government will not be supporting the bill, it is not likely to even get to committee, so we will not have the opportunity, unfortunately, to deal with the questions of the bill itself. However, I want to indicate that New Democrats support the measures included in it that would make a change, particularly in the role that the minister has in terms of authorities under the existing National Defence Act to allow the collection of metadata and other kinds of information without the oversight or even the knowledge of the Canadian public of what the authorities are.

It is easy enough for the commissioner for CSEC to say that in all of the matters that he reviewed the law was complied with. We do not even know what the rules were, but we do know that he did not review all of the things that CSEC did.

Although I know the member for Vancouver Quadra did not have time to deal with all the questions that I had, one area of significant concern is the relationship between CSEC and other agencies of government, whether they be law enforcement agencies such as the RCMP, the Canada Border Services Agency or provincial and municipal police forces.

Part of the role of Communications Security Establishment Canada, CSEC, is to provide technical and operational assistance to federal law enforcement and security agencies in the performance of their lawful duties. Although we constantly hear that CSEC is not allowed to spy on Canadians or look at the activity of Canadians, clearly under that provision, that is almost all it does, look at the activity of Canadians. Unfortunately, the bill does not go far enough to deal with that relationship.

We had an earlier report this year that the government agencies requested the involvement of CSEC on many occasions. This is something we need to have proper oversight of as well.

We do not get the right answers for this either, but we also found out that CSEC had a relationship with telecommunication companies, which is problematic. In fact, it was also reported that government agencies in general, including CSEC, requested user data from telecommunication companies 1.2 million times in 2011 alone.

When CSEC officials who came before the parliamentary committee, because this is one of the alternatives that was suggested by the Parliamentary Secretary to the Minister of Public Safety and Emergency Preparedness, were asked questions about the relationship with telecommunication companies and if they got information from telecommunication agencies, we were not given an answer. They refused to answer those questions. Therefore, we do not have oversight from parliamentary committees. There is not oversight by Parliament as a whole.

The Conservatives, who despite their claims of accountability and transparency, and in fact bringing in legislation when they became government, have refused to co-operate with parliamentary committees and the requests such as we are bringing forth now to have a more robust system of parliamentary oversight.

I do not think I will go into too many of the details, but I know that the model of the bill is based on former Senator Segal's work, who did a good job slightly adapting the U.K. legislation model, which has members of the House of Lords and members of the U.K. parliament not sitting as members of that parliament, but sitting as so-called parliamentarians outside of that parliament, and incorporating the terms “House of Commons” and the “Senate”.

However, that is not the model we like. It would not report to Parliament, but to the Prime Minister who would have the right to veto anything in the report before it would be tabled in the House of Commons or in the Senate on the grounds of his opinion.

In the opinion of the Prime Minister, it would be injurious to what? It is the three things that this activity is all about: injurious to defence, international affairs and security. If the Prime Minister had the ability to prevent a report from getting to Parliament on that basis, members can be sure that the report would be significantly truncated and not contain the kind of information that we would want. There needs to be some discussion about that.

The parliamentary committee that we are talking about would need to have significant security clearances, and perhaps members of the Privy Council. All this is a matter of discussion that would take place in the kind of robust all-party committee that would have the authority to compare and get advice from all parts, particularly our five eyes, the countries that we deal with on these matters.

However, we need more robust oversight of activity, because the job of our security agencies is to keep Canada safe and also protect our rights in the process. That requires good laws for the authorities and powers of the intelligence agencies. It also requires robust and comprehensive parliamentary oversight.

[Roxanne James, Conservative, Parliamentary Secretary to the Minister of Public Safety and Emergency Preparedness]

Mr. Speaker, I am pleased to rise in the House to discuss Bill C-622, introduced by the Liberal member for Vancouver Quadra.

This is a well-intentioned private members' bill, and the member's interest in this area is certainly understandable, given the recent threats to our national security posed by radical terrorist groups, such as ISIL. Unfortunately, rather than bringing forward ideas for new tools to keep Canadians safe, such as those brought forward by the Minister of Public Safety and Emergency Preparedness in the protection of Canada from terrorists act, the member has brought forward measures that are needless and duplicative in nature. That is why the government will be opposing the bill.

Our Conservative government's opposition is based on very practical considerations. I would like to spend some time on the notion to create a parliamentary committee to further scrutinize Canada's national security intelligence activities. I emphasize the words “further scrutinize” quite intentionally.

We have debated this issue in the House several times, and our government has been clear and consistent. A robust review of our security agencies already exists. In the case of CSEC, for example, it is already one of the most highly scrutinized federal government departments. Indeed, in 1996, the Commissioner of CSEC was established for two reasons: to review the organization's activities and to hear complaints against it. Further, CSEC is subject to review by the Privacy Commissioner, the Information Commissioner, the Auditor General and the Canadian Human Rights commissioner.

In the case of the Canadian Security Intelligence Service, its activities are subject to review by the Security Intelligence Review Committee, also referred to as SIRC, which has a similar mandate to that of the CSEC commissioner by focusing on the activities of CSIS.

Finally, in the case of the Royal Canadian Mounted Police, I would like to remind all members that in 2013, it was our government that strengthened the mandate of the Civilian Review and Complaints Commission to review the national security activities of the Mounties.

These external review bodies, all of which operate at arm's-length from the government, provide a review function that works extremely well. Notably, they provide a window into the activities of these organizations, activities that often must be undertaken outside of the public eye.

That fact is critical to our discussion today, given the current focus on the threat of terrorism and how national security agencies take action to keep communities safe. Importantly, these review bodies produce annual reports. I know the member talked about her bill and that it would create reports, but there are already annual reports that are submitted to Parliament, summarizing their findings and recommendations, providing assurance of the legality and propriety of operational activities undertaken by these organizations.

I would also note that in the 2013-14 annual report of the CSEC commissioner, Commissioner Plouffe confirmed that all of CSEC activities reviewed complied with the law. He asserted the effectiveness of the review of the intelligence agencies in Canada and that in the interest of transparency, he made public as much as possible about his investigations.

What is more is the fact that SIRC, the Communications Security Establishment Commissioner and the Civilian Review and Complaints Commissioner are well-equipped to carry out their important work. For example, each review body benefits not only from the skilled staff in their employ, but from unfettered access to the information held by the respective agency in review. Further, the Federal Court is another important element of the overall review system.

Now that I have outlined the robust system of review that already exists and works well, I would briefly touch on how Bill C-622 would depart from the current system and why we cannot support this private members' bill.

First and foremost, the proposed committee's reviews of national security-related activities would overlap with and be duplicate in nature to the system of review already in place. Additionally, this bill would not establish whether or how the committee would interact with the existing review bodies. In practical terms, the lack of such a mechanism over the committee's reviews could have serious implications, including gaps in accountability and inconsistent or different conclusions. This is clearly not in the best interests of national security, especially now, and it is certainly not in the best interests of Canadians.

Finally, I would note that this would also increase the cost to taxpayers. The government already spends approximately $14.8 million per year to review the activities of and hear complaints against CSEC, CSIS, and the RCMP.

Let me be clear. We believe this is money that is extremely well spent in support of the robust system of review that we have in place. However, the creation of the committee proposed in the bill, another committee, would require new expenditures, and as I have noted, would not provide added benefit to Canadians above what already exists. In fact, it could very well hinder the work of the existing review bodies.

One fact I would also wish to emphasize today is that the existing parliamentary committees are free to study issues related to national security and the related agencies as needed. In fact, as members in the House and those on the public safety committee recall, just a few weeks ago, the Minister of Public Safety, accompanied by the head of CSIS and the Commissioner of the RCMP, appeared in that committee and spoke candidly about the terrorist threat to Canada.

I realize that my colleagues opposite may say that in light of the recent SIRC report, we must take strong action to enhance the oversight of intelligence agencies. To that, I would say that SIRC plays an important role in ensuring that our national security agencies are held fully and publicly accountable. I would also like to thank it for doing its job and preparing that report.

CSIS is reviewing the recommendations and will implement those that will best keep Canadians safe, while protecting the rights and privacy of Canadians.

In closing, and in light of the recent terrorist attack that happened just steps from this House, I would be remiss if I did not reiterate that the first responsibility of any government is the safety and security of its citizens. We will not overreact. We have said it time and time again. We will not overreact, but at the same time, as legislators we must not under react to the threats that are upon us. We will never turn our backs on the fundamental Canadian values of respect for individual rights and the rule of law. This is imperative.

I can assure the House that at all times our Conservative government will bring forward legislation that ensures Canadians are protected from terrorists who would seek to do us harm, while also ensuring the rights and freedoms of Canadians are protected.

For all of these reasons, our government will not be supporting Bill C-622. We continue to be confident that the review system we have in place serves our government and indeed all Canadians extremely well.

[Joyce Murray, Liberal, Vancouver Quadra, BC]

moved that Bill C-622, An Act to amend the National Defence Act (transparency and accountability), to enact the Intelligence and Security Committee of Parliament Act and to make consequential amendments to other Acts, be read the second time and referred to a committee.

Mr. Speaker, it is indeed a pleasure to rise today to speak to my private member's bill, Bill C-622, the CSEC accountability and transparency act.

This legislation takes an important step forward in updating the framework for accountability and transparency for Canada's signals intelligence agency, and it tasks the public's representatives—that is, Canadian parliamentarians—with the responsibility to review and report on the intelligence and security activities of our government.

In the wake of the recent deadly attacks on our soldiers and on Parliament itself, all party leaders confirmed their commitment to protect the rights, freedoms, and civil liberties of Canadians, even as security measures are analyzed and strengthened. Indeed, Canadians expect these fundamental aspects of the very democracy being guarded to be respected, and that is the underlying intention of the bill.

I invite members of all parties to support sending it to committee for further examination and signal the authenticity of their commitment to these democratic freedoms.

Canada does have important guardians of privacy rights, both in law and in our provincial and federal privacy and information officers, and we have strong privacy protections in Canada, in general, although these must continue to contend with the fast pace of technological change.

Where they can be weak, though, is in the scrutiny of the activities of intelligence and security agencies like Communications Security Establishment, or CSE, and my bill aims to ensure sufficient privacy protections for CSE operations on the multiple fronts of its mandate, both abroad and at home.

As the federal and provincial privacy commissioners stated in a recent communique:

Canadians both expect and are entitled to equal protection for their privacy and access rights and for their security. We must uphold these fundamental rights that lie at the heart of Canada’s democracy.

I agree. In fact, the effective protection of individual privacy and the effective delivery of national security measures are not a dichotomy or a trade-off. They are complementary, and both are necessary.

The United States Department of Homeland Security is a good example. This department considers safeguarding civil rights and civil liberties to be critical to its work to protect the nation from the many threats it faces. This third-largest department of the U.S. government now explicitly embeds and enforces privacy protections and transparency in all the department's systems, programs, and activities.

Deputy Secretary Mayorkas confirmed in a recent speech that not only is this an integral part of DHS's mission and crucial to maintaining the public's trust, but it has resulted in homeland security becoming a stronger and more effective department. Bill C-622 reflects that very philosophy.

Now here is some information about Communications Security Establishment Canada. CSE is our national cryptology and signals intelligence agency. It functions within a global alliance of partners' signals intelligence agencies in the U.S., the U.K., Australia, and New Zealand, known as the Five Eyes. CSE intercepts and decodes foreign communications signals. It is the lead agency for cybersecurity for the federal government, and it uses its technological capacities and expertise to assist domestic law enforcement and intelligence agencies.

As its three-part mandate suggests, CSE is an important and powerful contributor to Canada's national security, and we want it to become a stronger and more effective department. Much of CSE's work today focuses on Internet and mobile phone communications between foreigners who might pose a threat to Canada.

CSE does not have the mandate to spy on Canadians, except when it is assisting other federal security and law enforcement agencies that have the appropriate permission, such as a warrant. However, its powers were extended in 2001 to allow it to inadvertently collect Canadian communications when it is targeting a foreign entity or conducting cybersecurity operations.

Here is the challenge: The capability of information and communications technologies has skyrocketed over the past 13 years. However, the laws governing CSE have not changed once in that time. That means that whether they are being used or not, CSE now has much greater powers to intrude into the privacy of people's personal lives and communications, unimpeded by the law.

It is time to update the law in this new environment of cloud computing and the Internet of everything.

This bill leaves in place all the important tools that our security agencies have available to them to protect Canadians. CSE has intrusive powers, but they are most often absolutely necessary.

However, Canadians want assurances that their privacy and the confidentiality of their communications will not be violated. Such violations would not even have been technologically possible just a few years ago.

One key concern of Canadians is government's access to their metadata, that is, their communication activities. It includes, for example, records of communications between one's electronic devices and the devices of others. On the surface, intercepting metadata may not seem terribly intrusive, but metadata is effectively the how, when, where, and with whom people communicate electronically.

As Ontario's Information and Privacy Commissioner, Dr. Ann Cavoukian, notes:

It has been said that the collection of meta-data is far more intrusive than reading someone's diary because not everything gets written down in a diary.

Last January, Canadians learned that CSE collected, tracked, and analyzed the metadata of unsuspecting passengers who logged into the WiFi at an Canadian airport. Because the law is so outdated, this was probably legal, but it was certainly not respectful of privacy rights.

Both CSIS and the RCMP are required to get court approval to enlist CSE's help in wiretapping a phone, but no such approval is needed to collect metadata.

In June of this year, the Supreme Court ruling, R. v. Spencer, was a strong endorsement of Internet privacy, including the privacy of metadata.

A second concern is the defence minister's quasi-judicial power to issue blanket approvals for CSE operations that would likely capture the private communications of Canadians without needing to explain his or her reasoning to anyone. These ill-defined and overly broad ministerial authorizations have been criticized by CSE commissioners for almost a decade.

A further concern is the absence of accountability or reporting regarding information sharing between CSE and other security and intelligence agencies. In a 2014 ruling, Federal Court Justice Richard Mosley found that CSIS and CSE kept the court in the dark about how they were enlisting foreign intelligence agencies to help spy on Canadians. He noted that the information CSE had shared, without legal authorization, put two Canadians at risk while they were travelling abroad. Justice Mosley's findings underscore the need to reinforce CSE's accountability not only to the courts but also to the minister, to Parliament, and to Canadians.

Finally, the grab bag of various kinds of oversight of various Canadian security and intelligence agencies, including CSE, and the absence of parliamentary oversight or review, puts us definitely offside with Canada's main intelligence partners.

How do we support CSE and our other security functions by embedding better democratic accountability, clarity, reporting, and review, an update that would bring us in line with our Five Eyes allies?

First, Bill C-622 would strengthen judicial oversight by replacing ministerial authorization for the interception of Canadians' protected information with authorization by an independent judge of the Federal Court. This is consistent with the process used by the National Security Agency, CSE's American counterpart. In addition, in this bill, metadata would be included in the new definition of protected information.

Second, the bill would strengthen ministerial oversight. It would require the Chief of CSE to inform the minister of sensitive matters likely to have a significant impact on public or international affairs and any national security or policy issues. The chief would also have to inform the minister and the CSE Commissioner of any operational incidents that may have an impact on the privacy of Canadians.

Each fiscal year a detailed report would be provided to the minister and the national security adviser to the Prime Minister on the activities carried out by the agency during the fiscal year, including any requests to share information with other Canadian security agencies.

Third, the office of the CSE Commissioner will be strengthened. The Prime Minister will be required to consult the opposition leaders before choosing a commissioner. The appointment process will therefore be more independent.

The commissioner will have to verify that CSE's activities are within the law and that they are also reasonable and necessary. He will have to submit public reports that are detailed enough that Parliament and Canadians are properly informed about matters of public interest. The only information that may be excluded is confidential information pertaining to international affairs, defence or security.

Fourth, the bill provides for oversight that is accountable to the public for all Canada's security and intelligence agencies. This integrated overview of the functioning of these sometimes siloed agencies would bring new solutions to strengthen security measures and privacy protections alike. The specific mechanism would be a multi-party committee of security-cleared parliamentarians, the intelligence and security committee of Parliament.

The mandate of this committee would be to review the framework for intelligence and national security in Canada, to review the activities of federal departments and agencies in relation to intelligence and national security, and to issue an annual unclassified report that the Prime Minister would submit to Parliament.

Former CSE chief John Adams supports such a review committee, noting that Canadians are more likely to trust an MP saying that Canada's spy agencies are not violating their privacy than they are to trust the heads of the very spy agencies saying the same thing.

I want to thank my Liberal colleague from Malpeque, retired Conservative senator Hugh Segal, and Senator Romeo Dallaire for their hard work in writing legislation to customize a very successful British parliamentary oversight model for our unique Canadian needs.

The scope and magnitude of CSE's surveillance power have increased. Its accountability to the public has therefore increased accordingly. The current system is outdated and flawed. Parliament cannot perform its oversight duties, and the Minister of National Defence has too much latitude when it comes to authorizing CSE to monitor Canadians' communications.

By passing my bill, Parliament will increase CSE's accountability and give Canadians privacy protections that are closer to those that the Americans and the British take for granted.

In essence, Bill C-622 seeks to modernize outdated laws and embed individual privacy rights within the framework of security and intelligence. Its accountability and transparency measures would restore Canadians' freedom to communicate with each other and with the world without the fear of unlawful or unethical access to their private communications.

The bill seeks to ensure that Canadians can have confidence in the work of CSE and can trust that the government's intelligence and security activities are held to account by the Parliament of Canada, whose duty it is is to ensure that Canadian democratic rights and interests are properly protected.

Public trust, the trust that our civil liberties are respected and that our rights and freedoms are embedded, are key ingredients in the strength and effectiveness of the critical work that security and intelligence agencies do to protect the safety and security of Canadians.

I would like to express my gratitude for the help and support of some of Canada's top experts in privacy, security, and intelligence, notably Professor Wesley Wark of the University of Ottawa and Stephen McCammon of the Ontario privacy commissioner's office, and the many others who helped me develop this essential step forward in protecting fundamental Canadian securities and freedoms.

Private Members' Business

[The Acting Speaker, Bruce Stanton]

The Chair would like to take a moment to provide some information to the House regarding the management of private members' business.

As members know, after the order of precedence is replenished, the Chair reviews the new items so as to alert the House to bills that at first glance appear to impinge on the financial prerogative of the crown. This allows members the opportunity to intervene in a timely fashion to present their views about the need for those bills to be accompanied by a royal recommendation.

Accordingly, following the September 23, 2014, replenishment of the order of precedence with 15 new items, I wish to inform the House that there is a bill that gives the Chair some concern as to the spending provisions it contemplates.

It is Bill C-622, An Act to amend the National Defence Act (transparency and accountability), to enact the Intelligence and Security Committee of Parliament Act, and to make consequential amendments to other Acts, standing in the name of the member for Vancouver Quadra.

I would encourage hon. members who would like to make arguments regarding the need for a royal recommendation for this bill or any other bills now on the order of precedence to do so at an early opportunity.

I thank honourable members for their attention.

[The Chair, Conservative, Dave MacKenzie]

Next is Bill C-622.

CSEC Accountability and Transparency Act

[Joyce Murray, Liberal, Vancouver Quadra, BC]

moved for leave to introduce Bill C-622, An Act to amend the National Defence Act (transparency and accountability), to enact the Intelligence and Security Committee of Parliament Act and to make consequential amendments to other Acts.

Mr. Speaker, I rise today introduce my bill, the CSEC accountability and transparency act.

The Liberal Party of Canada has a long history in establishing Canada's framework for national security. A Liberal government established Canada's first peaceful signals intelligence function by an order in council in 1946 and established the Communications Security Establishment Canada, or CSEC, in 2001, following the 9/11 terrorist attacks in the United States. However, the laws governing CSEC have not been updated since then and do not reflect the rapid advances in Internet and communications technology since 2001.

This bill aims to correct that situation. It would establish clear rules for judge authorizations and for the reporting, oversight, and review of CSEC operations. It would strengthen protection of Canadians' personal communications, including their metadata, by updating CSEC's legal statute and by providing intelligence and security oversight by a committee of parliamentarians, consistent with most western democracies. This bill would help improve transparency, an important Liberal value, and would restore public trust in this important establishment that is so vital to protecting the security of Canadians.

(Motions deemed adopted, bill read the first time and printed)