Information & Ethics Committee on Nov. 17th, 2016

[The Vice-Chair, Liberal, Joël Lightbound]

Perfect.

We'll now move to Mr. Erskine-Smith for seven minutes.

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

Thanks very much.

I want to pick up where my friend left off, on the standard. Obviously you've received information or have requested information under SCISA already. Can you give me an example in which information you have received was useful and added value, but wasn't necessary?

I still want to get at why we can't have a necessity standard. I get that Global Affairs might have a hard time doing it, but if the Privacy Commissioner is saying it, if the academic experts that we've heard have all said we should have a necessity standard, give me a specific example showing why a necessity standard would impede your investigations.

[Tricia Geddes]

I so wish I could answer that question, but I can't. Obviously we wouldn't be in a position to describe to you specific instances in which we received information and used it for a national security investigation. I'm sorry that I can't offer you a particular example of when that—

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

You don't have to give me the nuts and bolts of it, but give me an example. It could be a generic example of an instance where a necessity standard would impede your investigation.

[John Davies]

It doesn't matter whether you get a specific example or not. The point is that if you go up to the necessity standard, then there will more than likely be less information going to the national security agencies. Whether it's example A, B, or C, it doesn't really matter. There's likely to be less information moving. The viability of the act....

You would have to test. You would have to talk to the non-national security agencies that are probably most vulnerable to understanding what national security necessity is for those receiving it.

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

Presumably if you make the case for necessity to those bodies, and they in good faith disclose that information, then because we have the provision Ms. Sheppard mentioned, they wouldn't be in the position of worrying too much.

We talked about the review. You mentioned SIRC. Obviously the RCMP has a review body, as well. The Office of the Privacy Commissioner was before us many months ago, and they said they didn't have a whole lot of information with respect to SCISA and the information that had been shared under it.

Now offices are being opened. I appreciate that you're networking with the Office of the Privacy Commissioner. We're well over a year past SCISA being in operation now. When we talk about the review structure, and let's take CBSA as an example, you just have the Office of the Privacy Commissioner as the review body. Would that be fair to say?

[Robert Mundie]

It's not entirely fair to say, because many of the decisions that are taken by the agency in the realm of trade and in the realm of immigration are subject to external review by quasi-judicial and independent judicial bodies, for example.

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

I mean specifically with SCISA. If information is requested by CBSA or if information is disclosed to CBSA, is the review of the propriety of that sharing done only by the Privacy Commissioner? Who would be reviewing that?

[Robert Mundie]

It's the Privacy Commissioner's office, yes.

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

The Supreme Court has the Wakeling decision, where the law effectively says that information shared has to be governed by a clear law, there have to be reasonable safeguards, and it has to be done in a reasonable fashion.

Obviously, SCISA is the law. Can someone explain to me what the reasonable safeguards are?

[Ann Sheppard]

I think there are a number of them in the act. The compelling national security purpose is important.

SCISA is a very contextual act. It has one operating provision, which is section 5. The rest is context, because it applies to so many institutions. There are a number of features in it that you don't usually see all of in a piece of legislation. There are preambular clauses that speak of the importance of respecting the charter.

What's somewhat unusual are the guiding principles that are in the act.

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

Those aren't related. Those aren't proper legal safeguards. For the definition you mentioned, “undermine the security of Canada”, that concept would be the legal safeguard, effectively.

The preamble and guiding principles aren't legal safeguards, as it were. They are not legally enforceable in the same way as the definition “undermine the security of Canada” concept would be.

[Ann Sheppard]

Right, but they do help set the context of the act, and the courts would take them into account.

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

That's fair. Absolutely.

[Ann Sheppard]

The definition, as you point out, is a bit novel, so perhaps people aren't familiar with it, but as it was intended to apply to all institutions and to cover all the mandates of the recipient institutions, and to be evergreen and evolve with threats, it is conceptual. Its opening words are its full extent, as in threat to sovereignty, security, territorial integrity, or the lives or safety of Canadians. Those are all concepts that have a pretty high threshold.

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

There's been some—

[Ann Sheppard]

That was the idea behind the definition.

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

Fair enough. Let's get to that definition, then.

We've had testimony before us calling that definition a radical expansion over and above what is in section 2 of the CSIS Act. We've had testimony proposing and recommending to us that we go back to that definition.

I wonder what you would say to that.

[John Davies]

In my opening remarks, I talked about this a bit. The definition in the act is broader. The issue is whether all the other 16 departments and agencies would see themselves within the CSIS Act. As a national security agency, you have to look at whether they could see themselves within the CSIS Act.

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

Can you give a specific example of another agency operating under a different definition, and why we needed to expand the definition?

[John Davies]

I can only talk to the policy work that was done prior. All of the 17 were requested...in fact, anyone who thought they had a national security responsibility was requested to look at their activities, argue, and get their deputy head and minister to agree that they have a national security responsibility and that this definition that we're working on would fit for them. They had never been asked, so—

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

I'm probably out of time but—

[The Vice-Chair, Liberal, Joël Lightbound]

You have 45 seconds.

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

Okay.

I would ask with my last remaining time for something in writing to explain to this committee what agencies are operating with different mandates that would necessitate the expansion of that definition from—

[John Davies]

That would take a bit of time. That's policy work that we're doing in the context of the national security consultations—