Information & Ethics Committee on Nov. 22nd, 2016

[Daniel Therrien]

I think all departments involved in national security should be the subject of independent review. Should it be one or several bodies? That's a mechanical issue of a certain importance, but my point is that all departments involved in national security should be the subject of expert independent review.

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

Thanks very much.

[The Chair, Conservative, Blaine Calkins]

Thank you very much.

Go ahead, Mr. Kelly.

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

Thank you.

You've been clear that you prefer, it would seem, the various other authorities that authorize the sharing of information, as opposed to SCISA as it is.

[Daniel Therrien]

No. It's not a question of preference. Information sharing for national security makes sense. It's necessary as a concept. Before SCISA, we did not have an absence of legislation. There was legislation. It's not that I prefer the other legislation; I'm just saying that, before you legislate further, you should look at whether the previous legislation was sufficient.

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

To make sure I understand your position clearly, you believe that the previous authorities such as they existed, the various enabling acts of other institutions as well as common law, were sufficient to ensure that the correct sharing of information—

[Daniel Therrien]

I'm not even saying that. I'm saying that there were several authorities that authorized a considerable amount of information sharing. I think it is up to the government to demonstrate why this was insufficient. I haven't seen the evidence. I'm just saying there's an absence of evidence.

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

We heard some evidence at our last meeting that many people who work in intelligence gathering and law enforcement were concerned about the implications of the Privacy Act. Their concern, perhaps rightly, perhaps not, was that the Privacy Act may have trumped other authorities that they would otherwise have looked to historically to share information.

What would you recommend as the best way to ensure that the fear of violating the Privacy Act doesn't prevent an important disclosure or an important piece of sharing between intelligence gathering and law enforcement?

[Daniel Therrien]

I think the government should think hard about it.

Let's assume—and it is probably true—that there is fear among certain officials that they do not have the authority. I'll assume that. I'll accept that. I think the government then has two courses of action available to it. One, we, as the government, are going to explore whether there is validity to these fears or not. Does the law actually prevent information sharing? They have experts in government who can actually look into the question and determine if the fear is valid or not.

If it is valid, you ask, how is it that the previous law created impediments? Then you craft your legislation to address the real impediments, not the feared impediments.

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

The law is one side of it. There is also institutional culture—

[Daniel Therrien]

Yes.

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

—which you cannot expect to immediately change ever, in any situation, just by changing your law in Parliament. The behaviour of people who work on a day-to-day basis is not going to immediately change, no matter what you do with your law.

[Daniel Therrien]

If the issue is culture and fear, not substance—and that may well be, and it's all right—I'm suggesting to you that to address a cultural issue, legislation may not be the best solution. It may be guidance, information.... But there may be substance to this fear. Then the government should identify what the substance is and the legislation should address the substance.

[The Chair, Conservative, Blaine Calkins]

Are you good, Mr. Kelly?

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

Yes.

[The Chair, Conservative, Blaine Calkins]

It's good if you are, because we can get one more in.

Mr. Lightbound, go ahead, please.

[Joël Lightbound, Liberal, Louis-Hébert, QC]

Thank you, Mr. Chair.

Mr. Therrien, I have two questions to ask you. I asked these questions last week when we met with representatives of different law enforcement and intelligence agencies.

I understand that a warrant from a judge is required when, for example, the RCMP wants to obtain certain information as part of an investigation of a suspect. However, the person has a reasonable expectation of privacy regarding the information since it's protected by the charter.

What happens when the information is disclosed voluntarily because it's relevant to the Security of Canada Information Sharing Act, but the institution would have otherwise needed to obtain a warrant to collect the information? I've tried to obtain an answer to the question, but until now not much light has been shed on the subject. I don't know whether my question is fundamentally clear.

[Daniel Therrien]

I think the question is clear.

I'll refer you to the recent Federal Court decision of Justice Noël in the case involving CSIS. In a section of the decision, Justice Noël mentioned that, since the adoption of Bill C-51, CSIS is now obtaining information from the Canada Revenue Agency that previously required a warrant. At this time, CSIS is obtaining the information without a warrant because the Security of Canada Information Sharing Act makes this activity possible. That's what we see in practice. Some cases used to require warrants, but they don't anymore.

From a legal standpoint, to answer your question, the issue of whether the information sharing involves interests protected by the charter needs to be reviewed on an individual basis. Sometimes it will be the case, but not always. When it's the case, an analysis pursuant to the charter would be necessary. We would need to identify the protections and check whether a reasonable search can be conducted within the meaning of the charter. In addition, very often—I would say in most cases—the information will not involve interests protected by sections 7 and 8.

[Joël Lightbound, Liberal, Louis-Hébert, QC]

Okay.

My second question concerns the provision—I don't remember the section number but I think it's section 8—regarding the immunity granted when the information is disclosed in good faith. The answers we received last week indicated that the provision doesn't protect the crown and that it simply protects employees by granting them a certain level of immunity when they disclose information. Do you share the same interpretation of this provision?

[Daniel Therrien]

Do you mean the interpretation that the provision doesn't cover the crown?

[Joël Lightbound, Liberal, Louis-Hébert, QC]

I mean the interpretation that the crown doesn't have immunity and could be targeted. For example, Maher Arar could have obtained compensation despite this provision.

[Daniel Therrien]

I don't have the answer to this question. We can get back to you later if you wish.

The issues regarding crown immunity and the impact of crown liability are somewhat complex.

[Joël Lightbound, Liberal, Louis-Hébert, QC]

I would appreciate it, if you can do so.

[Daniel Therrien]

Okay.

[The Chair, Conservative, Blaine Calkins]

Yes, thank you very much. If you can, Mr. Therrien, that would be great.

We have one last one-minute question from Mr. Blaikie.

Colleagues, you all have a budget in front of you. After Mr. Blaikie's question, rather than suspending, we'll proceed right to approving the budget while the witnesses change. Then we'll hop right back into the rest of the committee.

Mr. Blaikie, go ahead.