Information & Ethics Committee on Nov. 3rd, 2016

[The Vice-Chair, Liberal, Joël Lightbound]

Members, I wasn't expecting to chair. If you would allow me, I have a few questions.

We've learned over recent years, mainly through the CBC, of various programs by CSE, such as EONBLUE, whereby captures were put at the Internet backbone and the impact and inspection was used to scan vast amounts of data that go through the Internet.

There are other programs like Levitation, if I'm not mistaken, which screened 10 to 15 million downloads for suspicious events and then transmitted the results to our security agencies.

Another one was Wi-Fi at a Canadian airport, where metadata of Canadians was stored and analyzed as part of a pilot project.

CSE gathers a lot of information. It's not supposed to spy on Canadians, but can inadvertently do so. When it has that information, based on SCISA as it's written, if a law enforcement agency wants that data about a Canadian, technically it would need a warrant, in the wake of Spencer and Wakeling.

[Prof. Craig Forcese]

This is an area of some confusion.

I mentioned briefly a few moments ago that there is a lot of uncertainty in this area as to how various statutory rules are being construed by the government. One area of uncertainty is over the practice of what's known as deminimization. CSE, as part of its foreign intelligence conduct and its activities, may acquire metadata and that metadata may include metadata from a Canadian source because of the nature of the Internet. It's not directing its activities at Canadians, but it's sweeping up some of this Canadian data in its operations.

Thereafter, when it shares its analytical work products dealing with that metadata, it is supposed to minimize Canadian identifying information. In other words, it redacts the Canadian identifying information. Those redactions can be lifted in relation to CSIS and the RCMP on request.

The question that remains unanswered in my mind is, what is the legal basis for that request? From what I've seen, it's clear that it has to comply with the Privacy Act in that all parties agree that it has to comply with the Privacy Act. There is an investigation, and CSIS is entitled to ask for the redactions to be lifted as part of its investigation.

What is unclear to me is whether they also come with a warrant, because if they don't come with a warrant, then information that CSIS could not lawfully collect itself is nevertheless put in play within CSIS by virtue of the inadvertent collection by CSE, and that CSE collection has never been supervised by an independent judge. Therefore, it's an open question in my mind as to whether, when CSIS or the RCMP comes looking for those redactions to be lifted, they comes supplied with a warrant. In other words, I don't know.

[The Vice-Chair, Liberal, Joël Lightbound]

Yes.

If you look at section 5 of SCISA, CSE could also volunteer information so long as it's relevant to the definition in section 2, so it's supposed to redact when it volunteers also.

I'm trying to understand. I'm confused as much as....

[Prof. Craig Forcese]

Does Kent want to respond?

[Prof. Kent Roach]

The volunteering under section 5 takes us back to “subject to any provision of any other Act of Parliament, or of any other regulation made under such an Act, that prohibits or restricts the disclosure of information”, so I guess it would depend upon that, although certainly if you're talking about Spencer and Wakeling, you're talking about the charter. Although section 5 makes no reference to the charter being an exception, I would think if we're going to respect acts of Parliament, then CSE should be respecting the charter, but that then brings you back to the question of how CSE's lawyers interpret the charter and how they interpret, say, the Spencer decision. One of the disturbing factors in the green paper is that the green paper seems to be asking Canadians what they think about Spencer, whereas most lawyers would consider Spencer to be settled law in saying that metadata, because of our interests in anonymity, is actually protected privacy.

We don't mean to be obtuse in answering these questions, but I think they are genuinely difficult questions that are made significantly more difficult by the rather convoluted drafting of, say, section 5.

[The Vice-Chair, Liberal, Joël Lightbound]

Thank you, Mr. Roach.

Go ahead, Madam Pillay.

[Sukanya Pillay]

I would agree with what my two colleagues said, and I wish to underscore the serious civil liberties concerns here. Not only are we concerned about how the lawyers of various agencies might be interpreting things or what charter rights are engaged, including sections 11 and 13, but also we're concerned even about the initial question, which is that we have collection by CSE of information and that very collection is what we question and what we're very concerned about.

As I mentioned, I had this discussion a few years ago with Bill Binney, and I don't think anything has changed. You have agencies like the CSE in Canada and comparable ones in the United States, which presumably have all this information at their fingertips on Canadians, and that is a serious concern to the CCLA.

[The Vice-Chair, Liberal, Joël Lightbound]

Thank you, and that's a concern not just to the CCLA.

I have another short question. On section 2, you've mentioned that terrorism is not defined anywhere, or is defined differently in various acts, such as the Criminal Code. Are there definitions of interference? For instance, if I look at paragraph 2(a), to your mind, that's a clear definition of what interference is. Interference comes back in paragraph 2(f). Mr. Forcese, are there working definitions of that?

[Prof. Craig Forcese]

No, they're not definitions. The definitions that apply to section 2...well, they have a definition of the people of Canada, which, if you read it, is itself extremely broad and somewhat uncertain, so “people of Canada” means the people in Canada. Could that be one person, or does it have to be more than one person?

On the definitions, some of these concepts are known to law. Espionage, sabotage, and covert and foreign-influenced activities are concepts that are found in the CSIS Act. Espionage and sabotage are Criminal Code concepts, so presumably you want to define them consistently subject to whatever rules of statutory interpretation you're applying. Terrorism, as I mentioned, has multiple definitions, so which one do you prefer? Then the other concepts, with the exception of the ones that are cross-referenced expressly to existing statutory provisions, are all novel concepts that would require some sort of understanding.

[The Vice-Chair, Liberal, Joël Lightbound]

As a quick recap, I know that Mr. Erskine-Smith has tried to do that, but if we look at the changes.... If we take SCISA and we want to offer recommendations that are useful, the first thing, as you've mentioned—and correct me if I'm wrong—would be to change the definition under section 2 to limit it probably to terrorism as defined in the Criminal Code. What would be the ideal amendment?

[Prof. Craig Forcese]

Perhaps Kent should speak to this, but for section 2 we essentially said to get rid of this novel concept of “activity that undermines the security of Canada”. Use the better-understood concept of “threats to the security of Canada” from the CSIS Act, as adjusted to accommodate, say, bona fide concerns about weapons proliferation that might not be captured by that CSIS concept.

[The Vice-Chair, Liberal, Joël Lightbound]

Perfect. Thank you.

Then for section 5, you would be adding necessity and proportionality for disclosure.

[Prof. Kent Roach]

Yes, and we also recommend that it be amended to make it crystal clear that recipients must operate within their existing mandates and legal authorities, because although we thought that was reasonably clear, the green paper actually makes it more ambiguous.

[The Vice-Chair, Liberal, Joël Lightbound]

As well, with regard to section 9 on immunity in civil proceedings, we would get rid of that altogether and leave that up to the court, correct?

[Prof. Kent Roach]

Yes.

[The Vice-Chair, Liberal, Joël Lightbound]

Is there something that I'm missing?

[Prof. Kent Roach]

Well, there's the issue of review. I think a unifying theme in all three of our testimonies is that you really need to look at information sharing in light of the adequacy of review. There are no perfect legal fixes here, but as I said, I think there may be a process fix that all Canadians can agree will govern us as these things continue to evolve over time.

[The Vice-Chair, Liberal, Joël Lightbound]

All right. I've given myself a liberal nine minutes.

I thank you all. That's...Bob, do you have a quick question?

[Bob Bratina, Liberal, Hamilton East—Stoney Creek, ON]

To Ms. Pillay, you've defended lots of controversial positions, and I wonder if you have a sense of the public perception of these issues.

I've been in a Communist country where the film was taken from my camera because I took a picture of a train and somebody spotted that and told somebody. This is the kind of life that we don't want to approach, and I think that's why we're concerned about this, but what would you say? Is the public as engrossed in this question that we're bringing forward today?

[Sukanya Pillay]

I admit that I may talk to people who tend to already be interested in this issue, but certainly I've talked to people who aren't.

However, I saw a coming together of Canadians on Bill C-51 and a concern about the scope of information sharing that I hadn't seen before in recent years. Based on that and based on the response that CCLA had to the application that we brought and the very specific grounds in our application that referred to SCISA in particular and also broadly to Bill C-51, my answer is that we had a swell of support among Canadians.

I would also point out that other colleagues among civil liberties organizations had petitions that were signed by hundreds of thousands of Canadians, so I think that Canadians are very concerned. We don't want an all-government all-knowing all-the-time society. We don't want an all-surveillance society.

We also recognize in this country that legitimate dissent and protest and disagreement and counter-speech are constitutionally protected rights in Canada, regardless of whether those opinions are directed at the Canadian government or a government anywhere else in the world. Provided that they don't engage in violence, these are activities that are protected. My view, based on the evidence of who signed up and who donated to the campaigns that we launched in this regard, is that Canadians are very much on board with protecting our privacy and making sure that any information shared is necessary and proportional.

[Bob Bratina, Liberal, Hamilton East—Stoney Creek, ON]

Thank you.

[The Vice-Chair, Liberal, Joël Lightbound]

That's all the time we have.

I want to thank all members and thank our witnesses for being with us today, and also for the work that you do. I think that holding the government to account and safeguarding charter rights is eminently patriotic. I thank you for it.

The meeting is adjourned.