Information & Ethics Committee on Nov. 3rd, 2016

[Prof. Craig Forcese]

Yes, and that, I believe, is the Privacy Commissioner's recommendation as well.

[Nathaniel Erskine-Smith, Liberal, Beaches—East York, ON]

Then we'd move to “or another lawful authority in respect of activities that undermine the security of Canada”. That we would have already fixed with respect to section 2, and then, “including in respect of their detection, identification, analysis, prevention, investigation or disruption.”

Mr. Roach, you'd mentioned clarifying section 5 to ensure that it must operate within its existing mandate. I wonder, are we worried about changing that specific language of “detection, identification, analysis, prevention, investigation or disruption”, or would we add a subsection, a “for greater certainty” sort of thing?

[Prof. Kent Roach]

I guess my understanding of “detection, identification, analysis, prevention, investigation or disruption” is that they're trying to include every possible activity that at least the 17 recipient institutions engage in. Perhaps with the change to necessity and proportionality, there will be a bit more rigour here, but the outer reach, as I understand section 5, is really supposed to be defined by the enabling framework for each agency.

I think this goes back to what my colleague Professor Forcese said, which was that rather than trying to paper over and provide a one-size-fits-all solution in the act, in some cases it may be necessary to go back to the enabling statute. For example, if you believe—as I do—that the case has not been made for CSIS to have disruption powers, then that might influence how you would go about structuring that final clause in section 5.

[Nathaniel Erskine-Smith, Liberal, Beaches—East York, ON]

But faced with this particular act, if we add a “for greater certainty” clause, that might be sufficient if we're just looking to cure this particular act and the deficiency that you noted with respect to the existing mandates of the government institutions.

[Prof. Kent Roach]

Yes, that's true, but what I would say is we already have a “greater certainty” provision in section 6, which says, “For greater certainty, the use and further disclosure, other than under this Act,”—

[Nathaniel Erskine-Smith, Liberal, Beaches—East York, ON]

Yes, fair enough, so you may as well just delete—

[Prof. Kent Roach]

—and it hasn't exactly increased certainty, because Professor Forcese and I were a bit baffled and surprised when we read the green paper. This goes back to the fact that this act has been so poorly drafted that we need a more fundamental reworking of it.

[Nathaniel Erskine-Smith, Liberal, Beaches—East York, ON]

With regard to reviewing information sharing—all witnesses mentioned this—we don't have a particularly adequate review body to review information sharing between agencies.

Mr. Forcese, you mentioned the siloed nature of the three existing review bodies that we have.

In the previous Bill C-51 debate, my understanding is that an amendment had been put forward that would allow all information sharing to be submitted to the Privacy Commissioner for review. The Privacy Commissioner would issue an annual report to Parliament as to whether the information sharing was acceptable. I wonder if you'd comment on whether that proposal is adequate.

[Prof. Kent Roach]

If that's addressed to me, obviously the Privacy Commissioner needs and has said that he needs more powers.

One of the reasons we mentioned dedicated national security review is that, particularly with the foreign information sharing and also with the evolving nature of security threats, you need to have some specialized expertise to really judge the information sharing.

One of the Arar commission's recommendations was that some of the people in the RCMP who were sharing information were not adequately trained in national security. If the Privacy Commissioner were to be the sole reviewer of the information sharing, I would also want to see the Privacy Commissioner develop expertise in the particularities of national security sharing, particularly its foreign dimension.

[Prof. Craig Forcese]

I would agree with that.

The problem we have right now with our current review structure is that we have three specialized national security bodies that are stovepiped to three different agencies that are constrained in their ability to coordinate. Then we have the Privacy Commissioner, who has a limited subject matter jurisdiction across all of government. Trying to get those bodies to work together would require some substantial reweaving of the existing law, but more than that, we have to ask what we would accomplish at the end if we empowered the Privacy Commissioner to perform this siloed subject matter jurisdiction in relation to simply information sharing.

I would echo Professor Roach's comment that information sharing is going to be intertwined with operational considerations that are specific to national security, and having a dedicated national security reviewer looking at the information sharing probably is more advantageous than using the Privacy Commissioner.

[Sukanya Pillay]

I completely agree with that, and I think I said in my comments at the outset that the current mandate of the Privacy Commissioner, while extremely laudable, means that he is constrained, and there is only so much that he can do. To change that mandate would have other implications, and I would rather see an independent reviewer.

[Nathaniel Erskine-Smith, Liberal, Beaches—East York, ON]

Thanks very much.

[The Vice-Chair, Liberal, Joël Lightbound]

That does conclude our seven-minute round, and we'll now move to the five-minute round with Mr. Kelly

[Pat Kelly, Conservative, Calgary Rocky Ridge, AB]

Thank you.

I was surprised, and I didn't know quite what to make of the comment that came after an earlier question about the information sharing between the Five Eyes, as well as the statistic mentioned about the RCMP receiving 75 times more information than it shares outwardly.

It wouldn't have occurred to me to think of whether these sharing arrangements are beneficial to Canada, based on whether it's a net positive inflow to Canada or not. It made me think and wonder whether our allies, with whom we co-operate on law enforcement and national security matters, are concerned that Canadian security organizations don't share enough. Is that a concern that's been raised, or a concern that we should have?

[Prof. Craig Forcese]

That's probably a question that's best asked of people within government. I haven't heard that in my travels.

The relative volume also has a lot to do with the relative size and scope of the security intelligence community within Canada. That 75-times figure that I gave you earlier was an RCMP figure from an affidavit filed in a federal court case decades ago, so if anything, that number is probably bigger now. That wasn't with just the Five Eyes; it was more generically.

My sense is that Canada is a valued member of the Five Eyes. We leverage certain skills, aptitudes, and assets, and we make a contribution. The contribution isn't necessarily measured in absolute volumes. As to how we're perceived by partners, that's probably a question best asked of government.

That's the best I can do. I'm sorry.

[Pat Kelly, Conservative, Calgary Rocky Ridge, AB]

Professor Forcese, in response to Mr. Dusseault's question about the necessity of the provisions of Bill C-51, were these necessary, or were existing laws in effect that were sufficient and allowed for sufficient sharing?

You mentioned the general override under privacy law, yet when a catastrophic crime such as Air India took place—and this was 30 years ago now—after the subsequent inquiries identified the failure in sharing between institutions, there was substantial outcry. In the event of a future crime of that scale, if it were discovered that law enforcement agencies had information in their possession but were unable or unwilling to share it, or feared to share it, I can only imagine the public outcry.

Sure, the public values privacy. We know that. We've heard that at this committee, and rightly so, yet the thought of law enforcement possessing information and failing to act on it would also be very upsetting to Canadians. If the override were good enough, I am not sure Canadians would agree with that. That act existed even 30 years ago.

[Prof. Craig Forcese]

The story behind the Air India issue wasn't about inadequate law but about operational practices.

As for the resistance to information sharing, first of all, the RCMP and CSIS are not really affected by the new act in terms of information sharing. Existing provisions that have existed for 30 years, as you indicated, allow for sharing information between those bodies. Frankly, this act does nothing to enhance or moderate or do anything for the information sharing between the RCMP and CSIS.

The question that is raised by your comments is why CSIS would resist sharing information with the RCMP, which has been a recurring issue as recently as the Toronto 18. That has to do with what is known as “intelligence to evidence”. CSIS is concerned that if it shares information with the RCMP, that sensitive information will be disclosable in court because of the scope of our Criminal Code and charter disclosure rules. It has nothing to do with this law. It has to do with the way we've structured this intelligence-to-evidence conundrum.

That is the reason the Air India commission recommended that there be a proviso putting in place a system for CSIS to disclose to a third party—they proposed a national security adviser—who would decide whether that information should be prioritized for intelligence purposes or for evidentiary purposes in a criminal trial. CSIS would not be making the decision at the end of the day. Someone outside CSIS would ensure that if there was a need for use in a criminal trial, it would be available.

This is Kent's area more than mine, so perhaps I'll leave him some room to talk too.

[Prof. Kent Roach]

Nothing in the Security of Canada Information Sharing Act requires CSIS, or indeed any other agency, to share information. This is a permissive regime. Without getting to the organizational, cultural, and legal difficulties that Professor Forcese has talked about, this is not going to guarantee, for a variety of reasons, that CSIS or CSE does share information that could prevent a potentially catastrophic act of terrorism. The government knew about Justice Major's very specific recommendation with respect to mandatory sharing, and that is nowhere reflected in this act.

[The Vice-Chair, Liberal, Joël Lightbound]

Thank you very much, Mr. Roach.

We'll move to Mr. Bratina for five minutes.

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

Thank you very much.

I've been going over the Chilcot report recently on the war in Iraq. In relation to information, it seems as if the old garbage-in, garbage-out regime existed and probably continues to exist. Is there anything in all the laws that we have, or in Bill C-51, that addresses the integrity of the information?

[Prof. Kent Roach]

The closest in this act would be section 4, which provides non-enforceable guiding principles. As I said in my original statement, it does not address the issue of the reliability of the information, which I think is what you are getting at with the reference to “garbage in, garbage out”.

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

Exactly. This seems to be the problem. However, the government of the day, in fairness, needed to respond to a public demand for a sense of more protection from things that were happening. We had the sad occasion at the National War Memorial as an example.

Mr. Forcese, in thinking over the actions of that day, is there anything within the legislation that we have or that is proposed that would have enabled a quicker response to that situation?

[Prof. Craig Forcese]

The honest answer to that is that we don't know. We have never had an accounting of the events of that day, other than some redacted reports from the police as to the security situation on the Hill. That can be juxtaposed with the Australian response to a similar incident in December 2014 and the British response to the murder of fusilier Lee Rigby in 2013, in which comprehensive reports were issued that looked at the landscape of security service actions and described where there were operational failures how they could improve.

In other words, we haven't done a “lessons learned”. That means it's next to impossible to look at the events of October 2014 and say definitively that if we had had this act at that time, things would have turned out differently.

My suspicion, based on what is on the public record, which is mostly journalistic accounts, is that the provisions of Bill C-51 were not responsive in any real way to the events of October 2014. I can't deny that in some of our work I've discussed how Bill C-51 not only overreacts in some of the ways we've discussed in terms of overbreadth, but also underreacts by not actually addressing the points that were raised in our last exchange about what caused the Air India disaster.

That is the awkward relationship between CSIS and the police, which means that we don't bring our A game to terrorism investigations. I like to call it “the tail wagging the national security dog in Canada”. The inability to reconcile those two agencies in terms of their information-sharing practices, I think, undergirds a lot of the workarounds that you see in various places in Canadian law, including Bill C-51.

The recommendation I would make to the current government is to fix that conundrum, much as the British have done between MI5 and the British police, which they did after the disasters of 7/7. Once we have fixed that, let's look and see whether there is a need for all these other measures that, on their face, seem so extreme.

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

We have a very high level of consultation right now on Bill C-51. What I am hearing is that there were already measures within the previous legislation that addressed issues of concern, so what should we do?

I'll ask you, if you were the king, how would you approach this? Can we set Bill C-51 aside and just work on filling the gaps, repairing the inappropriate definitions, and so on? What do you feel would be a good recommendation for us?

[Prof. Craig Forcese]

I'll take a stab at that, because I know that Ms. Pillay is going to have a view as well.

I think Prof. Roach and I would be in the camp of those saying that Bill C-51 was trying to address real problems but, as I've suggested, overreacted in some respects and underreacted in others.

In terms of what should be done, we have prepared a 37-page paper responsive to the government's consultation document and proposing some very concrete measures that have the effect of doing their best to renovate what's in Bill C-51 but also push the agenda on things like intelligence to evidence, which again we see as an undergirding conundrum for Canadian law.

We say fix the regime, because it was trying to address some real problems. That's not the universal view, though.