Information & Ethics Committee on Nov. 3rd, 2016

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

Ms. Pillay, go ahead.

[Sukanya Pillay]

Thank you.

CCLA has always taken the position that we didn't know why Bill C-51 was needed. We knew that we had had these tragic events. We all agreed that they were tragic, but we did not know what the gaps were in the October 2014 existing laws that Bill C-51 was remedying. What we do know is that Bill C-51 introduced a whole new set of problems, and very serious problems, and that's what we're concerned about.

I guess my summation would be that the open-wound problems we see in Bill C-51 need to be addressed. I would also completely agree with Professors Forcese and Roach, as they've said at other times, that the problems we have with respect to intelligence and evidence have to be addressed. It comes full circle, in a way, to the question you asked two questions ago and to what I referred to in my opening statement, which is that nothing in SCISA ensures that we have reliable information. If our goal is to keep Canadians safe and to protect against threats of terrorism and terrorist activity, we must have reliable information, and we don't have that.

We've referred in our submissions elsewhere to William Binney, who was a whistle-blower in the U.S. You've all heard this analogy before, but it's worth repeating today: if you're looking for a needle in a haystack, don't create more hay. I'm afraid that's what we've done, but it's not as benign as just more hay. There are also other problems.

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

Thank you.

[The Vice-Chair, Liberal, Joël Lightbound]

Thank you, Mr. Bratina.

Mr. Kelly, you have five minutes.

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

Thank you.

I'm going to continue in a similar vein and ask our witnesses to comment further on the various statutes and disclosures under certain circumstances.

I know that you both, Professor Roach and Professor Forcese, in your presentations mentioned that privacy law and information sharing is convoluted and patchy. Various statutes allow certain disclosures under certain circumstances, while others seem to limit them in similar cases.

What do you see as a way of reconciling disparate provisions in a comprehensive and reasonable regime? How would you launch a consolidation project to unite different provisions within one governing agency? Your analogy, Professor Forcese, is that it is wallpapering over cracks. You've made some comments already on this, but I'll allow you to continue on how you would rebuild rather than wallpaper or paint over.

[Prof. Craig Forcese]

That's a hard question, because it means going through a lot of statutes, and it's a lot of work. I would be hoping that the Department of Justice would help.

I'll give you an example within the context of the concept of terrorism, which obviously is a pertinent one for this conversation. There's a definition of something called “terrorist activity” in the Criminal Code. There's the concept of a “terrorism offence” in the Criminal Code. The Security of Canada Information Sharing Act talks about “terrorism”. The Immigration and Refugee protection Act talks about “terrorism”. Some of the provisions that relate to CBSA talk about terrorism-related activities. In other words, there's a proliferation of terms, and some of those terms, when they're applied in the context of actually ending up in front of a court, have been interpreted differently. The concept of terrorism in the immigration law has been construed differently by the Supreme Court from the definition of terrorist activity in the Criminal Code.

Imagine now that you have all these different terms, and you're the official who's trying to decide whether you should share information because of the invocation of terrorism in the Security of Canada Information Sharing Act. Which definition do you choose? My preference would be to have a consolidated definition of all the issues we think should fall within national security, one that is significantly less broad than what's presently in section 2, and to make sure that it becomes the hub in a bigger wheel. It would be the hub for the information-sharing provisions that exist in other statutes, so it would be a consolidated definition. That requires a lot of renovation, though, of the existing statutes, and that will be a lot of work, but it's probably a worthy endeavour, because I think it would simplify life.

I'll reiterate one of my core points at the outset, which is that even with the best legal language in the world, you're still dependent on people construing it, which means that you need independent review to ensure that those construals are reasonable.

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

Do you want to answer, Ms. Pillay?

[Sukanya Pillay]

I defer to Professor Forcese on this. I would say that I agree with him and just add that—this might be radical—I don't think we need to reinvent the wheel. We definitely need to have a consolidated definition.

When I say that we don't need to reinvent the wheel, this is something that has also been tackled elsewhere. We have had some thought given to it by the Supreme Court of Canada in Suresh, but we can also look to international laws in terms of how they have defined “terrorism” and “terrorist activities”.

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

Do we have time for Professor Roach to comment?

[The Vice-Chair, Liberal, Joël Lightbound]

Yes.

[Prof. Kent Roach]

In echoing that, I would add that no legal language is going to be perfect, but that's where the issue of integrated review comes in. I would hope that here a solution from the ground up would match information sharing with review, which I take to be the underlying principle that Justice O'Connor relied upon in the Arar commission.

[The Vice-Chair, Liberal, Joël Lightbound]

Thank you, Professor Roach.

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

[Wayne Long, Liberal, Saint John—Rothesay, NB]

Thank you, Mr. Chair.

Thank you to our guests for coming in today.

Obviously, as Canadians, I think we do want to find that balance between security and civil liberties. We are in a new era in which we have to wait longer at airports and so on and so forth, and I think we're all prepared to do that.

I've done a lot of reading on this over the last couple of days. A constitutional lawyer, Paul Cavalluzzo, said in an article that Bill C-51 is so flawed that it should just basically be blown up or should have many, many amendments. Do you agree with the statement that Bill C-51 should just be blown up and we should start from scratch?

[Sukanya Pillay]

I have an idealistic and a practical response to that. My idealistic response would be yes, that would have been great, and that's what we argued for when we had hearings on Bill C-51. My concern, though, is that we have an act in place now that's been operational for over a year, so how can we practically remove it?

I certainly do agree with the underpinning philosophy of Mr. Cavalluzzo, but I don't know where we are today. I think what we need to start with today are the serious problems that have been identified in our conversation this morning, including such things as a consolidated definition, such things as intelligence and evidence, and, very particularly, what I said in my opening statement with regard to the specific concerns in SCISA, where we have a definition that's overbroad, nothing in that act that ensures we have reliable information, no legally enforceable caveats, and two open potential charter land mines with respect to sections 7 and 8. If you're looking for practical fixes on this particular piece of legislation, I would say to please start there if you can't get rid of it altogether.

[Wayne Long, Liberal, Saint John—Rothesay, NB]

Thank you.

Professor Forcese, would you comment?

[Prof. Craig Forcese]

I would be more surgical in terms of the analogy to blowing up Bill C-51.

I think there are aspects of Bill C-51 that don't stand either a constitutional or a reasonableness test. The new speech crime of promotion and advocacy “of terrorism offences in general” is so sweeping that it encompasses speech that is potentially quite far removed from actual violence. There's no justification for it. Also, I think it underappreciates the extent to which speech that is closely affiliated with violence is already a terrorism crime under 15 or 14 existing terrorism crimes that existed before Bill C-51.

There are other aspects that are more complex, though. Take, for example, the CSIS threat reduction powers. You'll have different views on this. I am of the view that a case can be made that CSIS should have the capacity to act kinetically in limited circumstances—that is, to do more than be a watcher. How you craft that, though, is very different from the way it's been crafted in Bill C-51.

The other limit presently in Bill C-51 in terms of the circumstances in which CSIS can act is quite extreme. The prospect that CSIS, with a Federal Court warrant, could violate the charter is anathema to our constitutional tradition. More than that, it isn't actually responsive to the sorts of practices that one sees in other jurisdictions where they have deployed threat reduction successfully.

In the U.K. context, threat reduction by MI5 is generally spearheaded in a manner that facilitates criminal trials. Disruption in a U.K. context, based on what's in the public record, typically is that they make sure this person is arrested for not paying their local taxes. They may have a terrorism fear, but they can't act on it, so the police will bring a bona fide prosecution on some other grounds. Therefore, that's disruption. The criminal justice system is closely twinned there.

We haven't forced that twinning in the way that Bill C-51 has been crafted. The fear that Professor Roach and I have is that it could actually prove counterproductive. CSIS threat reduction could be counterproductive to a criminal law solution to terrorism.

[Wayne Long, Liberal, Saint John—Rothesay, NB]

Thanks.

I want to briefly talk to Bill C-22 and the oversight to get your opinions. Do you feel that Bill C-22 is adequate? Do you think that with parliamentarians having oversight of something like that, there's the expertise, experience, and resources to provide adequate oversight?

[Sukanya Pillay]

I think having a parliamentary committee would be a welcome move in Canada, but it is not a substitute for an independent reviewer of national security issues, so the two have to work together. Second, I think that Bill C-22 has ineffectual review, because at the end of the day there's discretion in terms of what can be withheld from the committee. That effectively undermines the whole objective, so that's problematic.

If I may add one thing, when I responded to Bill C-51, I stuck to the CSIS Act, but there are many other things with respect to CSIS, such as the references to the IRPA and the no-fly list, that I think need to be done, and they would also be very quick fixes.

[Wayne Long, Liberal, Saint John—Rothesay, NB]

Okay.

[Prof. Craig Forcese]

In the interest of full disclosure, Professor Roach and I are doing a doubleheader today. We're up in front of the standing committee on Bill C-22. Those thoughts are in the can, so to speak.

I would say that Bill C-22 provides a necessary remedy: that is, investing parliamentarians, for the first time in Canadian history, in a national security review function. That said, I would echo the concerns about the scope of information disclosure. It's not just that the government can, in certain circumstances, decline to provide information; there are actually mandatory exclusions, which are actually quite unusual as compared to our Five Eyes partners.

In the U.K. the exclusions of information are discretionary, and there's a protocol that the executive branch and the parliamentary committee have negotiated that says that those exclusions will only be used in the rarest of circumstances. In other words, they won't exercise their discretion to deny information.

In our system there's a whole cadre of information that will be ultimately excluded automatically. I would add that among the information that will automatically be denied the Bill C-22 committee are ongoing law enforcement investigations. It sounds sensible, except when you consider that the RCMP currently still has an ongoing investigation into Air India.

[Wayne Long, Liberal, Saint John—Rothesay, NB]

Right. Thank you.

Thank you, Chair.

[The Vice-Chair, Liberal, Joël Lightbound]

I will now move to our last questioner, Mr. Dusseault, for three minutes.

[Pierre-Luc Dusseault, NDP, Sherbrooke, QC]

Thank you, Mr. Chair.

I am pleased to be able to go back to a few points.

My question will be about whether the Privacy Act takes precedence over other legislation. That was mentioned by Mr. Forcese.

If I understood correctly, when the Security of Canada Information Sharing Act was passed, it was considered to be on an equal footing with the Privacy Act. But finally, the Minister of Public Safety and Emergency Preparedness stated in his National Security Green Paper that the Privacy Act takes precedence. Unless it was the opposite.

Can you correct me if I am mistaken?

[Prof. Craig Forcese]

I think the situation right now is quite confused. Section 5 of the new act says that it's subject to other existing acts that constrain or control the disclosure of information, which would suggest the Privacy Act. The Privacy Act itself has an exception saying that where some other active statute authorizes disclosure, then the Privacy Act rules don't apply, so you get into a bit of a circle. The new act says subject to other laws, the Privacy Act says subject to permission in new laws, so which prevails?

The green paper implies that the government views the Security of Canada Information Sharing Act as a lawful authority constituting an exception to the Privacy Act, and so they've opted for an exit off the merry-go-round, but it's not an exit that you can predict from the wording of the statutes. Again, I think the best we can say about the drafting is it's very confusing, and that's just one illustration of how confusing drafting could be construed inside government. We wouldn't necessarily know how it's being construed, and so we're left with the prospect that an ambiguous law is given definitional rigour by secret legal opinions that we can never see.

[Pierre-Luc Dusseault, NDP, Sherbrooke, QC]

Thank you for that clarification. It was very instructive, once again.

I would like to go back to a point which was mentioned by several experts, as well as by the Privacy Commissioner, which is that expansive information sharing opens the door to federal government surveillance.

Does the Security of Canada Information Sharing Act contain new means the government could use to collect information, or does it simply provide a framework for information sharing?

According to certain experts, this could increase the surveillance of citizens by the government.

Can you confirm that the Security of Canada Information Sharing Act contains new powers allowing the government to collect more information than what was already permitted by law?

Perhaps Ms. Pillay could answer that question.