Information & Ethics Committee on Dec. 6th, 2016

[The Chair, Conservative, Blaine Calkins]

Colleagues, could I get your attention, please? Thank you for your patience this morning.

Pursuant to Standing Order 108(3)(h)(vi), the study of the Security of Canada Information Sharing Act, otherwise known as SCISA, is continuing. We are pleased to have with us as witnesses, from the Canadian Muslim Lawyers Association, Ziyaad Mia, member of the legal advocacy committee, who I believe has been before the committee before, and Anil Kapoor, from Kapoor Barristers, who is here to offer his insights as well.

Gentlemen, neither of you is a stranger to committees. We have in our routine proceedings, our routine motions, that we hear from our witnesses for up to 10 minutes, and then we will proceed to our rounds of questions.

I will simply go in the order in which you appear on the agenda, as prepared for me by our clerk. Mr. Mia, if you would like to start us off, you have 10 minutes, sir.

[Ziyaad Mia, Member, Legal Advocacy Committee, Canadian Muslim Lawyers Association]

Thank you.

Good morning, everyone, and thanks for the invitation to be here today. It's a pleasure.

We're studying the Security of Canada Information Sharing Act, which, as you all know, was introduced as part of Bill C-51, Anti-terrorism Act, 2015, and it is now law.

My general concern with the Security of Canada Information Sharing Act, or SCISA, and the Anti-terrorism Act 2015 is that it was essentially it was broad and unnecessary legislation in essence. The entire piece of legislation, including SCISA, was unnecessary, and the justification for it was not there.

Our national security sector is in need of significant change and reform, and we do need to share information. Those things need to happen in Canada, but Bill C-51 and SCISA were not the correct responses to address those very real concerns that have been festering away. Mr. Kapoor can talk about some of the commissions of inquiry. We can talk about that, but some of our commissions of inquiry have made excellent recommendations identifying the problems in our national security sector, and for various reasons those recommendations have gathered dust now for 10 or more years, even the O'Connor inquiry.

That's the context in which I put my comments forward.

The other piece is that the Anti-terrorism Act, 2015, which, as you see, is called the “anti-terrorism” act, was styled as an anti-terrorism law and sold as an anti-terrorism law, and that's not what it was. It was and is a broad national security bill, and it's quite far-ranging. We can talk about some of that today in this piece of legislation, and I'm happy to talk about the other elements as well, if you like.

Again, it was not necessary, because what we needed to do was reform a number of things in national security. There were specific and focused items that we needed to deal with, and we still have not dealt with those. The Anti-terrorism Act, 2015 does not address those concerns. In some cases, it actually makes those problems worse and actually diminishes the capacity of our national security services to find threats and neutralize them.

In general, I think Bill C-51 and SCISA fail on three essential elements that I like to talk about: legality, accountability, and effectiveness. These are the cornerstone principles that I look at when I'm assessing law.

In terms of legality, that would be a sense of the rule of law, that law and policy need to be compliant with the rule of law and the charter, need to be necessary, and need to be proportional. There needs to be a public justification and an explanation of why we need law, because we don't just make laws that are not required, and we need to be compliant with our international human rights obligations as well. I think ATA 2015 and SCISA fail on legality.

Let's talk about accountability. You're all parliamentarians. All of us went to school here, I assume, and learned about responsible government. To me, that's the nub of accountability: that we have a government that's responsible. Public justification comes into it, so that citizens know why we are doing things. You as legislators explain that and are transparent in that.

Bill C-51 lacks that. Public justification is not sound. It doesn't introduce transparency into the national security sector or into the law itself. The public justification in that process itself was a little broken. Again, in terms of a culture of accountability across government and in the notion of responsible government, that culture of accountability also needs to be in the national security sector. That is clearly lacking in Canada.

What we ought to have is an evergreen process of accountability in Canada, in national security but in government generally. I think that would make our national security system work better, be more accountable, and have public confidence, and at the end of the day, I think we'd be safer.

The last piece in my principles assessment, the lens I look at things through in terms of law and policy, is effectiveness. Is it effective? Does it work? I actually think ATA 2015 and SCISA are not effective in getting to what we want. We want a national security system that identifies threats, keeps Canadians safe, and complies with the rule of law and the charter, and so on. They actually don't make things better. They make things worse.

We spend a lot of money on national security. I put it to you that some of that money is not money well spent, because when we talk about SCISA, we'll talk about how we may be chasing red herrings, collecting too much information, and missing the point. That might make people feel safer, but I don't think it actually makes us safer.

We do need to share information and national security—don't get me wrong—and we do need to investigate threats and get at them, but we need to do it in the right way.

Bill C-51 and SCISA are not the right way to do this. Again, part of effectiveness is necessity. Did you need this law? I'm still scratching my head as to why Bill C-51 was needed. Purportedly, it was in response to the acts committed, one of which was in Ottawa—the killing of Corporal Cirillo—and the other of which pertained to a gentleman in Quebec. Those were terrorist attacks, criminal attacks, but although Bill C-51 was sold in that context, there's really no link to how it addresses those issues.

Those are operational problems. We can talk about that, and those need to be fixed, but Bill C-51 does not address those incidents of 2014.

Again, I come back to evergreen accountability. When it comes to national security, the first thing we need to do is prevent. The second thing we need to do is investigate. You prevent as much as you can, and that's front-end work. Not a lot of people know that. That's either community relations or working to move people off the road to violence.

If that doesn't work—in some cases, obviously some actors are committed—you want to investigate and interdict. That's where police come in. I have some serious concerns about the CSIS disruption powers, but the police need to be involved in interdiction and prosecution. Then we need to review—that's an important part—and reform, to improve the system.

That loop is the evergreen process that I'm talking about. We do not have that working well in Canada, and that's what we need to think about.

I have three minutes, so let me talk a little about SCISA itself.

As I said, information sharing is needed in Canada. We need to do that in policing and in national security, but it needs to be done right.

Mr. Kapoor is here and Mr. Cavalluzzo was supposed to be here. Mr. Kapoor was involved in the Air India inquiry and Mr. Cavalluzzo in the Arar inquiry. Those are two ends of the spectrum.

As a Canadian of Indian extraction, I can tell you first of all that it was not acknowledged for a long time that Air India was a Canadian tragedy. There was a failure of information sharing and institutional egos. That's one part of the problem.

The flip side is Arar, where reckless information sharing led to disasters.

What we need to do is learn from those lessons and get to the middle. Again, I'm not against information sharing, but it needs to be done right. SCISA is the wrong way to do this. It's overly broad, unbounded information sharing.

I usually use the analogy that if we're trying to catch terrorists, it's like finding a needle in a haystack. SCISA is adding a couple of trailer loads of hay to that pile. God forbid there's a disaster, a terrorist attack or something to that effect, and we find out that we had too much information and that what we needed to look at snuck through. What we really need to be focusing on are the real threats.

I have about a minute and a half left, and I know you're going to keep me to the 10 minutes. I'm happy to talk about the details and I'm sure we will, but I'll close with the broader context.

What we really need to do is reform national security, as I said. One piece of that, as you've heard from others, is review, proper review. I know some of our agencies don't have any reviews. Some do. They're siloed. You've heard all of that.

You've heard Kent Roach, Craig Forcese, and others echo those concerns. I really am an advocate. I believe you have my submissions from Bill C-51 previously. I'm an advocate of a unified, independent, national security review agency, the Canada national security review agency.

If there's integration in national security intelligence and operations, you need that counterweight. We can talk in detail about that, but that's one piece that needs to happen, and there are other pieces.

I'll be idealistic and tell you, “Let's repeal the ATA 2015. Let's start again and find those fixed pieces.” If you're willing to do that, I'm happy to work with you on that. If you're not willing to do that, then SCISA really needs significant reform, as do other pieces of Bill C-51. The biggest piece for me is the CSIS disruption power. CSIS should not have those powers, full stop. Those powers should be repealed.

I'll stop there. I'm happy to talk about the rest of it. Thank you for the opportunity.

[The Chair, Conservative, Blaine Calkins]

Thank you very much, Mr. Mia. His name was Warrant Officer Patrice Vincent.

Go ahead, Mr. Kapoor.

[Anil Kapoor, Barrister, Kapoor Barristers]

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.

[The Chair, Conservative, Blaine Calkins]

Thank you very much, Mr. Kapoor. That was interesting testimony, and I'm sure we're going to have a very engaging discussion.

We're going to start with the seven-minute round.

Mr. Long, you're up first.

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

Thank you, Mr. Chair.

Thank you to our witnesses for coming today. It is a very interesting topic.

Mr. Mia, I want to start, I think, in a wide-ranging way.

I've done some reading of some of your articles in the paper and some other things. In one article I read, you felt or you suggested that Bill C-51 is so flawed that it should be scrapped. Personally, I question whether something like that should be scrapped, so I just want an initial comment. Do you feel that we should just throw that out and start again, or do you feel that we are able to tweak it and make adjustments?

[Ziyaad Mia]

Thank you for the question.

I think the bill itself—or rather, the law now—was so fundamentally flawed that whatever redeeming qualities it might have had were outweighed by the flaws. I usually use this example. If I bought a house that had a crumbling foundation, I wouldn't throw a few coats of paint on and say, “Let's keep this.” I'd say, “Let's start again.”

Let's go through some of the essential elements of Bill C-51.

The CSIS provisions give CSIS secret disruption powers to essentially disrupt people's lives and take actions that could result in disasters, as Mr. Kapoor said. They are a non-starter in a democracy. Things could happen to people, and they would never have legal recourse. They happen in secret. They would never see the light of day.

In a criminal context, police get warrants and they do have secret wiretaps, but ultimately it sees the light of day. You have a day in court. That's essentially our system. When the state acts against you, you have the right to defend yourself. When CSIS acts against you under these disruption warrants, you will never know and you will never have the right to defend yourself. Whether you're guilty or innocent, you won't have a shot to defend yourself.

Let's talk about promoting and advocating terrorism. First of all, the definitions in there are loose to begin with. The Criminal Code already has always had counselling offences, so when you're involved in criminal activity and encouraging it, you can be caught.

The Anti-terrorism Act, 2001 introduced criminalized actions that were removed from action, such as facilitating terrorism or encouraging someone to start committing a terrorist act. I had critiques about that, but it was still close enough to the act. In criminal law, what you want is to criminalize the act. Terrorism is essentially violent acts. They want to kill someone, so let's say it's killing someone. If I facilitate you to do that by encouraging you, giving you money, talking to you, I can be caught there. As a democratic society, we want to capture the act or something close to the act. If we get far from the act, we're starting to stray from our criminal law and democratic principles and we're starting to criminalize speech. What I learned in law school is that you don't pass redundant laws.

In the Anti-terrorism Act, 2015 we already had facilitating, which is close to the act. Then this must be something further removed from that, so now we're getting very close to criminalizing speech. I'm not saying I support people who say things that encourage terrorism. Of course, we all condemn that, but we live in a society where we tolerate some of that offensive speech.

The Immigration and Refugee Protection Act amendments in Bill C-51 essentially rolled it back, and Mr. Kapoor can speak to this in more detail because he is a special advocate. The Charkaoui decision said that in the security certificate process, secret proceedings where a judge sat alone with a CSIS lawyer were essentially unconstitutional. They introduced special advocates to represent the interests of the named party on the security certificate. Bill C-51 essentially rolls that back. IRPA was amended to say that the special advocates don't have access to all the information. It kind of undoes what the Supreme Court has told us.

Those are three pieces of it.

Let's talk about the no-fly list. We can debate till the cows come home whether no-fly lists—

[Matt Jeneroux, Conservative, Edmonton Riverbend, AB]

I have a point of order.

[The Chair, Conservative, Blaine Calkins]

We have Mr. Jeneroux on a point of order. Just make sure it's a point of order.

[Matt Jeneroux, Conservative, Edmonton Riverbend, AB]

Yes. I just want to make sure that we're sticking to the information-sharing aspect of it. We're going down a long list of Bill C-51. I would like to think that we could focus on just the scope of what the committee's looking at right now.

[The Chair, Conservative, Blaine Calkins]

Your point is taken, Mr. Jeneroux.

I do allow members of the committee to ask broad-ranging questions, but, Mr. Mia, please try to stay focused on what the committee's mandate is in this particular study, which is the review of SCISA.

[Ziyaad Mia]

I'm happy to do that. I understood that Mr. Long asked me about scrapping Bill C-51, but I can stick to SCISA.

In SCISA, as I said, information sharing needs to happen. We see the extremes. We see Air India and Arar. We see both sides of it not working.

It needs to work, but as Mr. Kapoor said, it speaks of activities that undermine the security of Canada, and then it lists a number of things in the act, which I'm sure you've all seen, and that is not the list. It is an open-ended list, given content by bureaucrats across government. Those are just suggestions about what undermines the security of Canada; it could include other things.

Essentially, the definition is the heart of the bill. You start with a fundamentally flawed definition and then you start to share information. There are no controls on how that information is shared. The door is open for sharing with foreigners, and that could include Saudi Arabia, and now, with the Trump administration talking about torture, it could be there.

Then I'll point out to you section 9. Section 9 says that when someone shares information and it harms a Canadian or some person—but let's say a Canadian, as in the Arar case—they're immune from paying out compensation or being sued for it.

It's essentially a busted bill. What we need to do is say that information needs to be shared, that it needs to be reliable, that it needs to be in compliance with the charter and the rule of law, and we need to make sure that CSIS actually works with the RCMP to move intelligence into evidence and get real terrorists off the street. The CSIS amendments actually are counterproductive to that.

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

Okay, I'll just jump in. Thanks for that. I know that question was wide-ranging, but I was trying to focus in.

Obviously we're trying to find the balance between government's right to know and people's privacy. We grapple with that.

There are some out there who believe that the Privacy Act should take precedence over SCISA. Do you believe it should?

[Ziyaad Mia]

My reading of it is convoluted. I believe you've heard Kent Roach, and I concur with Kent and Craig Forcese in their testimony that it's a bit of a dog's breakfast. Nobody is entirely clear, because the act uses very general terms—“will comply with” laws unnamed.

Then you read the green paper. I don't want to quote it right now because I don't want to delay us, but essentially it says we can share information subject to any prohibitions in law without naming those laws.

The suggestion is that the Privacy Act is there to protect people's privacy. You read the green paper and find that it says the Privacy Act has a number of exceptions, and rightly so. One is lawful authority: the police can come.... Then the green paper says that SCISA is considered to be a lawful authority.

Essentially, the Privacy Act is nullified by that reading. If that's the legal interpretation that government lawyers and staff have of SCISA, then I'd say the Privacy Act protections are not there.

[The Chair, Conservative, Blaine Calkins]

Thank you, Mr. Long. We're well past seven minutes.

Thank you, Mr. Mia, for bringing this back on track. It's much appreciated.

Mr. Jeneroux, you have up to seven minutes, please.

[Matt Jeneroux, Conservative, Edmonton Riverbend, AB]

Perfect. Thank you, guys, very much for being here today. It's important. We have limited time, so I want to make sure we're staying on the topic. We can then make this part of our report for SCISA. I appreciate your doing that.

I'd also remind my colleagues on the other side of the room that in fact Bill C-51 was supported by the Liberals at the time. Granted, I don't think any of you were there at the time, but it was certainly supported on your side.

[The Chair, Conservative, Blaine Calkins]

I'm the only one on the committee who was there.

[Matt Jeneroux, Conservative, Edmonton Riverbend, AB]

Yes.

Anyway, getting back on topic, I want to talk to you a bit about the Five Eyes and our allies across the world.

Given that we're a member of this group, and in looking at the threats towards national security, do you believe that these types of allied relationships are important to better protect Canadians?

[Ziyaad Mia]

Is that to one of us or both?

[Matt Jeneroux, Conservative, Edmonton Riverbend, AB]

It's to both.

[Ziyaad Mia]

Obviously we live in a globalized world on all sorts of levels, including intelligence and security, and the threats that are out there are obviously globalized threats. It is important that we have relationships, but I believe it is also important to keep in mind our values in how we interact with the Five Eyes allies.

Saudi Arabia is not a Five Eyes partner, but I've used Saudi Arabia or states like this as an example. SCISA says that activities that undermine the security of another state hit the radar here. Does that include Saudi Arabia? If we are talking about Raif Badawi or about trying to change the government in Saudi Arabia, does that get people here on the radar? That's problematic, but I'll leave it for a minute and go back to the Five Eyes.

We need to share with those allies. One real problem now is that Mr. Trump says that waterboarding is just the start, and that he will kill the families of people who are suspected terrorists. Essentially, he is negating U.S. obligations under domestic and international law. The U.S. is our biggest partner in terms of information sharing on national security. I would be worried about how we protect our values, which are to share but to comply with the charter, the Convention against Torture, and the rule of law, essentially. Canadians need to interact with the world, but we still need to be Canadian. We need to take our values with us. Those are important relationships, but we need to be careful about how we engage and what we share.

I'll give you Arar as a classic example where we were sloppy in our sharing, and that led to a problem.

That's my answer—we need to do it, but we also need to be very conscious of injecting our values, protocols, and protections into that interaction.

[Anil Kapoor]

We have to be a robust part of the Five Eyes. Culturally, we are all connected. Broadly speaking, we have the same sort of democratic structures and geopolitical positioning. I think the Five Eyes is a crucial alliance—if I can call it that—and we have to be a player in it.

[Matt Jeneroux, Conservative, Edmonton Riverbend, AB]

Great.

[Anil Kapoor]

I think you asked whether it was a good thing. I think it's a good thing.

[Matt Jeneroux, Conservative, Edmonton Riverbend, AB]

It's safe to say that you both think it's important that our Canadian national security organizations...that we have the same tools as our allies, essentially. Can I sum it up like that?