Information & Ethics Committee on Dec. 13th, 2016

[Michael Karanicolas]

Just to clarify my position and my organization's position, we're not necessarily opposed to repealing the law itself. As I said, I'm not necessarily sure that the case has been made for the law's necessity, but I just generally find that it's better to come to these things with recommendations in hand to improve the law as well, which is why I framed the issue the way I did. However, I don't think my statements should be construed as being broadly supportive of the law.

It's a bit of a straw man to frame the conversation the way you did, because I don't think that anybody around this table is opposed to information sharing in all circumstances. Obviously there are going to be cases where it's essential and important to share information, and we want our intelligence agencies to work together to protect Canadians. As my colleague said, it's important to have proper safeguards around that front and to make sure it's done with respect to our core democratic values. To frame the debate in that way, the security of Canada is also tied into our constitutional and democratic values, including our respect for human rights. That's a core part of who we are. That's what we're meant to be defending.

I think it's important to understand in the debate that nobody's arguing that Canadians should be under threat or face greater threats; it's just important to establish our response in a manner that protects core democratic values that have served this country for quite a long time, have seen it through difficult times before, and should be maintained.

[Micheal Vonn]

Just quickly, I'll say that the Canadian citizens I talk to are very concerned about the new terminology. “Threats to the security of Canada” is something we understand. That's embedded in our national security legislation and jurisprudence. As for “undermine the security of Canada”, when people read the list of what that includes, it includes ordinary public life, it includes the administration of justice, it includes the financial stability of the country, it includes undermining the security of other countries. People say, “My word, what does that mean?” We say, “We don't know.” Nobody knows what this means. It's a new definition. It hasn't been tested.

Clearly, the list that's included in the legislation is extremely broad, unprecedentedly broad, in terms of national security legislation. I think that is part of the essence of what concerns Canadians.

[The Chair, Conservative, Blaine Calkins]

Thank you very much, colleagues.

The shorter we keep the preamble to our questions, the better the chance of finishing within our allotted time.

We'll now move to Mr. Lightbound, please.

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

Thank you, Mr. Chair.

Ms. Austin, in a way you answered my question earlier when you said that national security agencies weren't necessarily included in the Security of Canada Information Sharing Act. However, over 140 agencies can share information. Even the Yukon Surface Rights Board can do so. There are 17 agencies that can receive information, including the Public Health Agency of Canada and other agencies whose roles are less clearly linked to national security.

To ensure these agencies actually have a role to play in national security, do you think there's a need to review, and limit, the number of agencies that can share information and the number of agencies that can receive information?

My question is for the three witnesses.

[Prof. Lisa Austin]

Thank you for that question.

More attention needs to be paid in SCISA to this incredible breadth, as I've been saying about so many agencies involved in potentially sharing information with a small group. As you said, some of them themselves have a tangential relationship with national security.

I would just point back to the Arar commission's report, which suggested that some of the existing exemptions in the Privacy Act—including the public interest exemption that says where there's a public interest that outweighs the privacy interest of the information, information can be disclosed—met all sorts of needs.

Again, my question around the overbreadth of this act is, why not...? Obviously I've said you should repeal it. If that's not the case, why not scale it down to a much narrower set of institutions that are sharing information? If it so happens that there's information that some other unrelated agency has that they think really should be shared, why isn't the public interest exemption perfectly adequate? It's already right there in the act. Again, in terms of justifying the overbreadth, I'm having trouble seeing that broad scope of the act, and a lot of the examples being offered as to why it's needed contemplate a much narrower set of information sharing, which I think you have a much greater chance of getting Canadians on board with.

[The Chair, Conservative, Blaine Calkins]

Go ahead, Mr. Karanicolas.

[Michael Karanicolas]

I'm still formulating it. Do you want to go first?

[The Chair, Conservative, Blaine Calkins]

Go ahead, Ms. Vonn.

[Micheal Vonn]

Certainly. Thank you.

I was just going to say that I would only be paraphrasing my co-panellist Professor Austin's remarks. I concur completely.

[Michael Karanicolas]

It's a bit of a challenge to define where the information should or shouldn't be, and who should or shouldn't be involved with sharing the information, particularly because, with the advance in big data, there is an enormous expansion in information that could potentially be relevant to security investigations. I suspect that would raise troubling questions for Canadians who think they're providing information to the government for a particular purpose and it ends up being processed in order to investigate crimes.

The things you mentioned in the discussion that just took place—the information entered into the MyDemocracy.ca website—is a good example of that. What if that fed into the RCMP, and people found some correlation between views on democracy and probability to commit a crime, and suddenly it was processed in that way? That's a strange example, but I think it's important to consider very carefully the relationship Canadians have with particular government agencies. If they're giving information that they feel is for a particular purpose, it might be troubling to them to know it's going to be used to investigate them or to process whether they're going to be suspected of any kind of wrongdoing.

Again, we're not necessarily hostile to sharing information, but I do think it's important to consider the relationship Canadians have with these government institutions and the way this principle that anything you say around anybody in government is potentially going to be used as part of an investigation against you will impact the relationship and the way Canadians interact with governments.

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

My second question concerns the civil immunity provision.

You spoke about it earlier, Mr. Saini. Ann Sheppard, who appeared before our committee as counsel for the Department of Justice, told us this provision was never meant to exempt the Crown from all prosecution.

[The Chair, Conservative, Blaine Calkins]

Excuse me, Mr. Lightbound. I'm sorry. I'm not getting any translation here. Is everybody else getting it?

You're all good.

My apologies, Mr. Lightbound.

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

I wasn't talking about you, Mr. Chair.

[The Chair, Conservative, Blaine Calkins]

I understand that.

Thank you.

You can keep going.

I'll need to figure out why my interpretation is not working.

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

I was saying that Ms. Sheppard told us the goal of this provision was not to protect the Crown, but only to protect the public servants. I want to know whether the witnesses interpret the provision the same way.

Ms. Austin, since you're a law professor, I want to know your view of the legal impact of section 9 of the Security of Canada Information Sharing Act.

My question is also for the other witnesses.

[The Chair, Conservative, Blaine Calkins]

Seeing that we have no takers and that we're well past the six-minute mark on your five-minute round, is there somebody who would like to give a quick response?

[Micheal Vonn]

I can certainly give a quick response. I thought there was a small glitch in the sound, so forgive my hesitation there.

I certainly read the clause as one in which the crown was waiving its own liability, and not civil servants. If failure to achieve clarity in that clause was evident to us, it will be evident to most Canadians, I would think.

[Prof. Lisa Austin]

I would add that because the word “person” is there, I would automatically assume it includes the crown. If it's not meant to include the crown, it would be a useful amendment to say that the crown can be liable.

Again, if you move to a necessity standard.... There was the question earlier about what happens with the civil servant who is worried about misjudging that line in terms of sharing information, so it seems useful to keep some provision to say that a good-faith interpretation of this isn't going to get you into trouble, as a way of maintaining a higher threshold, rather than having some kind of dual notion or keeping relevance.

I think this is a serious issue to clarify with respect to whether the government is trying to get out of liability, because then people are just thinking, “Oh, you want to make sure there's not another Arar”, but that's horrible, right? What happens if the same situation arises?

[The Chair, Conservative, Blaine Calkins]

Thank you.

We now need to move on to Mr. Jeneroux, please.

[Matt Jeneroux, Conservative, Edmonton Riverbend, AB]

Thank you, Mr. Chair.

I have one question for all the witnesses, but before that, Mr. Karanicolas, you brought up a great point. We just don't know what we don't know about the MyDemocracy.ca survey. It would be nice to get some of that clarification. I appreciate your putting that on record.

The one question that I have for all witnesses is this: do you believe there are any situations where the need to protect our national security might supersede the right to privacy?

I'll start with Mr. Karanicolas.

[Michael Karanicolas]

Just to clarify, that wasn't really an endorsement of the need to...of concerns with it—

[Matt Jeneroux, Conservative, Edmonton Riverbend, AB]

I heard what I heard, Mr. Karanicolas. I appreciate that again.

[Michael Karanicolas]

Okay. Just to clarify, I was using that as an example of information that's fed into the government, because it had just been mentioned.

In terms of balancing security, yes, absolutely, I think a core function of democratic systems is that they balance different interests against one another, and balancing security against privacy or security against freedom of expression is something that all mature democracies have to do.

There are going to be cases where security does trump the privacy of Canadians. We have warrants for investigation that involve exactly that kind of measuring. I think there are certainly going to be instances where that happens. I think no reasonable Canadian would say that people have an absolute right. It's just a question of how to balance rights in a way that fundamentally best protects Canadians, including respect for our traditional values.

[Micheal Vonn]

I can jump in after that. It's a very easy answer. The answer is, of course, yes, but our constitutional rights are framed this way: we have a right to be protected against unreasonable search and seizure, and that means that post hoc figuring it out is not the way to do it. The question is not, “Does security ever trump privacy?” Of course it does. The question is, does SCISA provide us with the constitutional protection that we require to be protected against what is unreasonable—not what is justifiable and reasonable, but what is unreasonable? That, I think, is the heart of the SCISA question.

[Prof. Lisa Austin]

I would add to that. I think section 8 jurisprudence is not about preventing state access to information; it's all about ensuring that when the state gets access to information for law enforcement or national security purposes, it's within a very protective set of accountability mechanisms. The devil is in the details about what those are.

I would also add that there is some support in the jurisprudence, although it's very undeveloped, for protecting privacy under section 7 as well, and then it's balanced against the principles of fundamental justice. There is a lot of balancing that goes on in the charter. That's why the questions about overbreadth, safeguards, protections, and thresholds all become really important in striking that balance fairly, but everyone agrees that of course national security sometimes means that you get access to it—absolutely.