I'd like to thank the committee for inviting us and for allowing me to appear remotely. I realize this isn't ideal.
First of all, as someone who worked on both the Arar and Air India commissions, I want to underline what my colleague said. We need to get information sharing right, and this act, which was hastily and very poorly drafted, does not get information sharing right.
With the Arar saga we see the dangers of sharing information that is not reliable and is not strictly necessary for the mandate of a receiving institution. That underlines the extreme dangers that can come from too much or inappropriate information sharing.
Just as importantly, however, the Air India commission showed the dangers of not sharing enough information. Indeed, one of things that is absent from this act was a recommendation by Justice Major that there be mandatory information sharing by CSIS about specific information relevant to the prosecution of terrorism offences.
Rather than devising a system that focuses on a particular form of information sharing, what we see in the Security of Canada Information Sharing Act is section 2, which is a radical departure even from the broad definition of threats to the security of Canada under the CSIS Act, which has been with us since 1984. In terms of amendments, one of the first things that should be looked at is trimming the overly broad definition of section 2.
I would underline that for Canadians to have confidence in this information sharing, there need to be more limits in the legislation and also more transparency about the information sharing, because as my colleague has pointed out, if over 100 departments can potentially share information under this act with 17 or more recipient institutions, all of this is done through legal interpretations that the public has no access to. It's very difficult to ask civil society and the public not to have concerns, and indeed suspicions, about information sharing when we have such a radical, broad definition of “activities that undermine the security of Canada”, including not only legitimate topics like terrorism but also, for example, an activity that takes place in Canada and undermines the security of another state. In my view, it's very important to go back to section 2.
Section 4 of the act has a number of guiding principles, and these guiding principles are fine as far as they go, although I would like to see more emphasis put on the reliability of the information that is shared. Justice O'Connor in the Arar commission report stressed that there need to be assurances that the reliability of the information is discussed, and also the respect for caveats, which is mentioned in section 4.
The problem with section 4 right now is simply that principles are placed out there, but there are no teeth, unless there's a requirement for protocols through regulations or through amendments of the statutes. The Privacy Commissioner has also noted this.
As my colleague has noted, sections 5 and 6 are extremely poorly drafted. They need to be made precisely clear, because unfortunately the green paper reflects a fundamental ambiguity in how this act is going to be interpreted.
Certainly the interpretation that we thought was the viable one and the preferential one, which was that this act did not have an independent trumping force over the Privacy Act, is partly negated in the green paper. The green paper gives us some idea of how government lawyers are interpreting this legislation, and unfortunately the interpretation, like section 5 and section 6, is about as clear as mud, so it is very, very important to address those two very fundamental sections.
Also, we would support what the Privacy Commissioner has said, which was that the issue should not simply be sharing of all relevant information but that there should be some requirement of necessity. We would just add that Supreme Court jurisprudence, like the jurisprudence in Wakeling, suggests that information sharing—not simply information acquisition, but information sharing, such as is authorized by this legislation—is subject to the charter, and so a standard of necessity or proportionality would be much more likely to withstand charter scrutiny than one of mere relevance.
I would also underline again why this provision and the CSIS threat disruption are probably the two most controversial parts of Bill C-51 in their reference not only to detection, identification, and analysis but also to prevention or disruption, so I think it has to be made clearer that this does not expand the mandates of all of the recipient institutions.
In addition, again on the theme of why so many people in civil society are rightly suspicious about this act, section 9 provides a very broad immunity from civil consequences. Not only does this raise the spectre of allowing the sort of information sharing that harmed Maher Arar and many other people, but it also puts yet another barrier to getting civil compensation should information sharing—and in particular I would stress information sharing about security threats—impose harm on people who may very well want to seek compensation for it and who may very well want to restore their reputation.
Just because Mr. Arar's reputation, at least in Canada, has been restored, we should not forget that this was because of the extraordinary event of a public inquiry. Perhaps one of the most objectionable parts of Bill C-51 is that it allows a very broad, overly broad, permissive regime for information sharing. It does so in an unclear, poorly drafted manner, and it does not ensure that there be mandatory information sharing about that information that is most relevant to direct threats to the real security interests of people in Canada.
Thank you very much.