Information & Ethics Committee on Dec. 6th, 2016

[The Chair, Conservative, Blaine Calkins]

Thank you.

Go ahead, Mr. Kelly, for five minutes, please.

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

Thank you, Mr. Chair.

Mr. Mia, in the briefing material you provided, there was a list of 16 questions that you had about the material. Your briefing was dated March 2015.

Have any of these questions—and if so, which ones—been answered since the time of your briefing?

[Ziyaad Mia]

I'll try to be quick without going through the whole list.

I think the amendments were essentially on lawful advocacy. I believe there was one other amendment, and it was to section 6, which says that information can be shared for any purpose. The complaint I had was that this was essentially completely unwarranted, even in this broad act. Once the recipient agency has it, it can then be shared anywhere, including with foreign agencies, for any reason. There was some amendment to that.

I don't think those amendments essentially changed the core of my concerns. I'll just quickly go through them.

The word “lawful” was dropped on the advocacy. That is fine, because the complaint was that people can be unlawful but not violent, just civilly disobedient, and do we want to pull those people into the national security net? I don't think any of us want to do that.

I believe that Professor Roach and Professor Forcese raised the issue of violence. I concur with them that you need to clean that definition up to make it a little tougher. It's a little loose now. It needs to mirror the Criminal Code's lawful exemption, where advocacy, protest, and dissent that are not violent are covered. They could be unlawful but not violent, and we would all probably agree on that.

I don't think the other amendment on section 6 actually changed anything. Some words were changed to say that sharing is neither allowed nor prohibited but must comply with law. The question was, which law? The green paper's legal interpretation of the Privacy Act is that SCISA is a lawful authority to override the Privacy Act. Essentially, section 6 still says that you can share with anyone, and it's not even linked to the purpose of SCISA anymore.

Essentially, those are the two amendments. I don't think they change my concerns with the bill.

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

They more or less all stand—

[Ziyaad Mia]

Yes.

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

—as prepared in 2015.

I guess I'll let either of you comment further. You've both already had some comment on the issue of effective oversight for abuse of information-sharing power.

I remain concerned about how any government agency's power is used, and I'll let each of you have a word on that.

[Anil Kapoor]

I think there are two components to any sort of after-the-fact oversight of it, rather than a real-time review. I've said before other committees that I think real-time review is kind of silly. You can't have an investigator out there trying to do his investigation and at the same time being required to show up before a review committee. That's just not going to work. It has to be after-the-fact oversight, and I think there are two components to it.

There has to be an expert component to it—that is, people who are expert in the area of national security—and there has to be what I would characterize as a parliamentary review, which is the committee of parliamentarians.

The committee of parliamentarians is very important because it has democratic legitimacy. It can bring concerns from constituencies to the agencies and can conduct closed hearings as well. I think there is a democratic legitimacy to the committee of parliamentarians, augmented by expert review, which can be.... Justice O'Connor recommended a sort of “super-SIRC” across all the agencies. To the point my colleague was making, we were certainly of the view on Air India that there ought to be a national security adviser.

The expert review has to be across all the agencies, and there needs to be a panel as part of that, but also an independent reviewer, as they have in the United Kingdom. In the United Kingdom, the independent reviewer is tasked often with particular instances, and I'll give one example for Canada: the tragic events on Parliament Hill. It might be important for the population to understand how this happened, what the intelligence agencies knew, and what they did not know. Was it something that could not have been prevented? An independent reviewer can dig in on an event like that in a way that no one, from a public consumption perspective, is actually doing.

From a public relations perspective, it is very important that the public understand what the agencies do. Frankly, a lot of what they do, they do very well. I think that oversight can deliver that message.

[The Chair, Conservative, Blaine Calkins]

We're at five and a half minutes already.

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

Okay.

That's fine.

[The Chair, Conservative, Blaine Calkins]

Mr. Mia, do you have a quick comment?

[Ziyaad Mia]

I will echo my colleague here. We've called for it for a long time. A committee of parliamentarians is fine. I think Bill C-22 needs some reform, but it's a step in the right direction to give some political accountability and public accountability linked to all of you who are elected.

The first thing is to have a national security review agency that unifies all the agencies, but it would not be separate agencies working together, which I think is too convoluted. You want one counterweight to the security agencies. It makes security better, makes them work better, and gives public confidence.

Second, we need well-resourced experts in the field who can build relationships with the agencies and have access to all information.

Third is that independent review of national security law and policy as they have in the U.K. That person would, in the case of Bill C-51, come and testify on that and give independent advice on it. That person would be able to have access to secret jurisprudence and legal opinions in government and be able to comment to the public and experts with some feedback on what the national security landscape looks like.

[The Chair, Conservative, Blaine Calkins]

Thank you, Mr. Mia.

We will now move to the last five-minute round.

Mr. Erskine-Smith, it's your turn.

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

Thanks very much.

I want to start with the definition at section 2: “activity that undermines the security of Canada means any activity, including any of the following activities, if it undermines the sovereignty, security or territorial integrity of Canada or the lives or the security of the people of Canada.” Then there is a long list of items, but of course that's a non-exhaustive list based on the definition.

Mr. Kapoor, you had noted this as a problem. Would an appropriate amendment be to limit information-sharing to the working definition of “threats” as understood under section 2 of the CSIS Act, or would you have a different proposal?

[Anil Kapoor]

No, I think that harmonizes it and rationalizes it to the national security remit.

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

Okay.

The second question, just following up on Mr. Lightbound's question, is that it seems we've thrown everything and the kitchen sink into government institutions under section 3 of the Privacy Act. There are 17 recipient institutions, including the Canadian Food Inspection Agency, and there's not necessarily an obvious relation to national security.

In both of your views, in a simple answer, should this committee make a recommendation to narrow the scope of SCISA to institutions and departments that have something to do with national security? Would that be fair to say?

[Anil Kapoor]

Yes, on the recipient side I would agree, but on the delivery side, if I can put it that way, I don't have any trouble with who knows what kind of information floats in through any different agencies.

This is about national security, so the hub has to be the lead agencies. They ought to be the main recipients.

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

Then you'd narrow the 17 recipient institutions, but you have no particular problem with 140-plus institutions being disclosing institutions.

[Anil Kapoor]

I don't, provided that the test is a necessity test.

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

Let's pick up on that.

You referred to the testimony of some officials, and Mr. Blaikie got into this to some extent. I understand from their testimony that a 2009 Auditor General's report identified a real concern over government officials being reticent to share some information, and that was a potential problem. The previous government's solution, which appears to be a pretty over-broad solution, was to say that we're going to have the relevance test, and everything can get out the door. You had mentioned that the necessity test is a matter of training, and that isn't appropriate now.

I want to push back a little. If we have 140-plus institutions that are disclosing institutions, there need to be individuals in those 140-plus institutions who are familiar with the necessity test. Do you still stand by those comments that we can train these individuals effectively?

[Anil Kapoor]

Yes. I don't see why not. As I said, it's not rocket science. I think it was somebody from the service who testified before you who said we have to educate them on relevancy.

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

With respect to oversight and review, we have Bill C-22, which will be in place soon enough. The committee of parliamentarians can be asked by the minister to engage in a particular review, including perhaps a SCISA review.

There was a Liberal amendment in the last session to suggest that all information shared under SCISA should be shared with the Privacy Commissioner and that the Privacy Commissioner should issue an annual report to Parliament on the nature of information sharing and identify any problems.

Perhaps if there were any problems with such information sharing, in the absence of a super-SIRC-type body, which I think both of you have referenced, would that be a palatable solution in the interim?

[Anil Kapoor]

Well, at least it's better than none. I suppose the Privacy Commissioner will have a particular sensitivity to the extent to which information is being passed on when it's not in accordance with this statute.

I don't have a visceral objection to it. I'm more interested in the efficacy of the national security information that's being harvested by our agencies. That's what I'm more interested in, and I think that's something that an expert national security panel can deal with on the privacy side. I agree that the Privacy Commissioner is the appropriate one to deal with that.

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

My last question is this.

We had Professor Roach and Professor Forcese before us, and they indicated some confusion with the drafting of this bill. I think Mr. Kapoor called it “immature”. It's unclear on a first reading that recipient institutions are still subject to their own mandates. There's a real worry, for example, where we have disclosing institutions subject to a relevance test and all the information gets out the door. Lo and behold, the RCMP and CSIS and other of the 17 recipient institutions now have the information before them.

Should we clarify in this bill that they're subject to existing mandates, that they require a warrant to access this information, that they still have to obtain this warrant before they can review the information and use it in a serious way? Should we explicitly put in this bill that if they do not have proper authorities within their existing mandates, they have to destroy the information immediately?

[Anil Kapoor]

On the warrant question, I think both Craig and Kent testified about how this is infirm in relation to section 8, to the extent that it connects to criminal law enforcement. In my other life, I defend and occasionally prosecute on the crime side. I would say that this bill needs to be amended in some way to preserve section 8 rights in the criminal prosecution realm, and there should be a requirement that a warrant be obtained.

What I'm concerned about is a factual situation in which at the national security joint operations centre, they're on somebody. They think there may be some information sitting in one of these 17 agencies or one of the hundred-and-some agencies. They pick up the phone, call down, and say, “Do you know anything about this guy Blogs?”, and the answer is, “Yes, we do.” They say, “Okay, I'm going to make a request.” Then they make a request and they get the information that way, rather than through a warrant.

I don't want it to be misused. I would want the warrant requirement to be preserved here. You can foresee that there will be litigation on that question, so why not just cross it off now?

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

Officials did say that they would be subject to the warrant requirement, but we perhaps have to put it in black and white.