Thank you for the opportunity to be here today.
The Canadian Civil Liberties Association is a non-partisan, independent, non-governmental organization that for 52 years has worked to protect rights and liberties and particularly to fight against injustice and wrongdoing. We support constitutionally compliant government action that provides effective security. I feel that this is an important context in which to begin my comments today.
We have serious concerns about the Security of Canada Information Sharing Act, which I will refer to as SCISA, and we are concerned by further confusions introduced by the green paper. I will outline five considerations here today.
First, information sharing is a critical component in countering terrorist activities, but such information sharing must be effective. This means that the information collected must be reliable and subject to constitutional requirements of necessity and proportionality and constitutional safeguards including caveats on use, retention, access, and dissemination. All of these, and legally enforceable provisions, are missing in the SCISA.
The scope of permitted information sharing is drawn from the definition in the act of “activities that undermine the security of Canada”, which we find to be astoundingly overbroad and which can capture all sorts of unnecessary and disproportionate information on legitimate activities, thereby effectively relegating Canadians to being potential suspects.
Further, the information sharing scheme superimposes vast information sharing on top of imperfect information-sharing structures already existent in Canada. In effect, there are 17 agencies, only three of which have any review structures, in over 100 departments. Again, this is information sharing with inadequate or non-existent review structures.
While we understand that the SCISA may have introduced some clarity for hesitating zealous officials who will now feel they have a green light to go ahead and share certain information, the scheme does absolutely nothing to ensure the reliability of the information or to ensure that constitutional principles of necessity and proportionality and the safeguards of caveats are observed.
Third, increased and integrated information collection and sharing powers are not matched in this act by increased and integrated review structures, and this is a serious concern for CCLA. Our country has witnessed the severe injustices of mistaken and faulty and even failed information sharing. Three federal commissions of inquiry—Arar, Iacobucci, and Air India—have provided observations and lessons that are not implemented or even, it seems, reflected in SCISA.
My second-last point is that SCISA engages section 7 of the charter rights of individuals. The definition of activities that undermine the security of Canada is unconstitutionally vague and can impact the security and liberty rights of individuals as found in section 7.
As the scheme is structured, violations can occur without the knowledge of an affected person, and even if there is knowledge, without an appropriate review structure there's nowhere to bring a complaint, given the absence of any one review structure with jurisdiction to review all the agencies empowered to share information.
In the past, government has stated that the Privacy Commissioner and the Auditor General have review powers, but their mandates and resources do not provide the jurisdiction and powers that would be required to properly review the information sharing that exists under the SCISA.
As CCLA has observed in its application, which is on hold before the courts, even the three existing review bodies for CSIS, the CSE, and the RCMP have no powers to compel the government to follow specific interpretations of the law. Further, the secrecy under which the sharing occurs renders any defence against illegal sharing illusory.
Finally, CCLA is seriously concerned that information sharing implicates section 8 of the charter as set out by the Supreme Court of Canada in its interpretations in Wakeling. SCISA permits a form of disclosure of information that is unreasonable within the meaning of section 8, and there are no checks and balances on such sharing.
Thank you.