Thank you.
First of all, thank you very much for the invitation. It's a pleasure to be before you.
I've had the opportunity to read the testimony from your previous witnesses and I hope not to repeat what others have said.
I want to contextualize my remarks and my evidence before you in the following way. Information is the lifeblood of all intelligence agencies. Without information, there's no intelligence. I'll repeat that: without information, there's no intelligence. In order to effectively have a proper security intelligence apparatus, you must have information.
In these times, you all know that we're swamped with information. Everywhere you go, there is information. The government collects an astounding amount of information on every one of you; on every aspect of each of your lives, the government has information. The ability to maintain all these bits and bytes of our lives poses a huge challenge for our society in the private sector and certainly for government in the public sector.
I can tell you that as commission counsel on the Air India public inquiry, I had a front-row seat to a failure of information sharing that had catastrophic consequences. When I led the evidence of the victims' family members in part 1 of our inquiry, as counsel—I do a lot of trial work and a lot of appeal work—it was amongst the most challenging evidence I've ever had to lead. The impact on those folks was real and remains so today. It remains tangible today.
Similarly, although not as commission counsel, I acted in one of the closed proceedings in the Arar matter. I was involved with some of the folks who did that. I can tell you that the failure to have a proper, regulated flow of information has had similarly catastrophic consequences for that person, but not only for Mr. Arar: it also has had catastrophic consequences for the agencies involved, and if the agencies come before you and say it didn't, I'm here to tell you that it did. No agency wants to be complicit in such a thing.
It becomes even more important now when we have a change in administration in the United States. The CIA is a vast organization that collects a tremendous amount of information and floods the intelligence community with information. If that agency begins to be more aggressive, what are our agencies going to do when the information floats into our data set? How are we going to vet it? How are we going to protect against it?
What I'm most interested in is trying to orient this committee, if I can, to take an approach to this legislation that is, for lack of a better phrase, a grown-up approach. This legislation is immature in a number of ways, and I want to underscore particularly this point. None of us wants the agencies that are charged with protecting us to be starved of important, necessary information. None of us wants that, but we all must also want a refined approach to information sharing that, in my respectful submission to you, more properly balances privacy with necessary information sharing. This legislation doesn't. You've heard from my colleagues, Professor Roach and Professor Forcese, and you've heard from the Privacy Commissioner. The evidence of all three of those folks I agree with entirely.
I want to underscore something about one of the problems with this piece of legislation. It is about a lack of accountability. I mean particularly this. As I said at the outset, lots of information is gathered on each and every one of you. Under this legislation, one of the problems is whether or not the phrase “activity that undermines the security of Canada” is constitutionally compliant. In other words, is it so vague that it would be a violation of section 7 of the Constitution?
Leaving aside esoteric notions of legal theory, the practical concern is that vagueness in that legislation is a gateway for bureaucrats to pass information. Also, it's deployed almost entirely by representatives of the executive branch, without any serious prospect that anyone outside the executive would know what's happening or how it's being applied.
For example, not one of you will know that information about you is passed from one of the 17 agencies to CSIS. You just won't know. You'll have no recourse. Even assuming that you had some information somehow, there is no place for you to go with it. There's no specialized review body. There's no court process. There's no way for you to hold the government to account.
I know we have limited time, but I want to conclude my opening remarks with this notion that I urge upon you with as much force as I can: fundamental to any democracy is the ability to hold government to account for its actions. That can mean in court, at the ballot box, at an administrative tribunal, or in a review or oversight body.
However, blind faith and trust in government is not a virtue. Blind faith in CSIS, the RCMP, and all of these other agencies is not a virtue.
Instead, each one of you must have at your disposal the ability to call government to account for its excesses. Given the ubiquitous nature of information and the extent to which it reveals our tastes, preferences, and inner thoughts and beliefs, any regime that authorizes the sharing of information must be refined to regulate sharing that is necessary to protect national security. All of this requires—in my respectful submission to you—more conservative definitions and a more conservative approach to protecting information and ensuring that information that's necessary is delivered to the agencies so that they can discharge their duties.
In closing, then, the relationship between the citizen, his or her information, and the various government agencies is something that needs to be recalibrated in this piece of legislation.
There are a number of different ways it can be done. You have heard from some witnesses who have indicated changes in definitions. Those are all useful. I appreciate, though, that it may be beyond the remit of this committee. The notion of an independent reviewer is necessary, as well, as part of the framework of oversight and review in the national security environment. A committee of parliamentarians also may be able to do some work in this area, depending on how that committee is structured and staffed.
Really, in this moment when we have such upheaval around the globe, when various intelligence agencies are forwarding information to our intelligence agency, and when information is being domestically being harvested, we cannot not take this opportunity to apply a rigorous standard. If we don't, sadly, what might happen are events like the two horrific events that have happened already: Arar for the agencies and for Mr. Arar, and Air India for all of those folks.
Those are the comments I wish to open with.
Again, I thank you very much for the opportunity to address you.