Evidence of meeting #41 for Access to Information, Privacy and Ethics in the 42nd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was scisa.
A recording is available from Parliament.
12:45 p.m.
Liberal
Nathaniel Erskine-Smith Liberal Beaches—East York, ON
Perhaps it could be when witnesses aren't here before us.
12:45 p.m.
Conservative
The Chair Conservative Blaine Calkins
I will enforce the rules. Every member of Parliament has the ability to do that, and I will safeguard those protections and privileges. Everybody at this table was duly elected and has these privileges. Whether and how they choose to exercise them is their prerogative, but I will uphold those protections for members of Parliament, as I am one.
Colleagues, we have a few minutes left. We have dealt with the motions that are before us. Mr. Long, I understand you had some questions, so if you would like to talk to our witnesses, we have about 10 minutes of the committee's time left.
12:45 p.m.
Liberal
Wayne Long Liberal Saint John—Rothesay, NB
Thank you, Chair.
Thank you to our witnesses, and I'm sorry for the delays today. My apologies.
Ms. Vonn, you're quoted as saying, “There is a crisis of public confidence in national security agencies that appear to break the law with no consequences.”
Two surveys were done, and I want you to talk to them if you can. A CFE survey said "Slightly more than 70% of respondents agreed that most Canadians are unconcerned or unaware about government surveillance.”
A CBC poll also said 77% supported police forcing someone to surrender encryption keys or a pass code as part of a criminal investigation.
I respect your positions and I know exactly where you're coming from, but I read these two polls last night, and I'm wondering if you could help square those for me.
12:45 p.m.
Policy Director, British Columbia Civil Liberties Association
Sure. Some aspects of the polls asked to describe.... In the ones that came out in the Toronto Star and the CBC, I believe, in the series they did and I participated in, rightly and unsurprisingly the kinds of things that Canadians say are exactly the sort of things we say, that there's more than one good. Sometimes, yes, we have to clearly accede to police or law enforcement having access to information, but the kinds of things they also said that I think were surprising to many people were that they understand what basic subscriber information is, as in the Spencer case in the Supreme Court of Canada , and they think you should get specific and meaningful pre-authorization for that.
These kinds of things again indicate that Canadians do appreciate that there's a balance, and they want the pre-stage protections to make sure that you have justification and authorization, and then by all means give law enforcement the tools they need to do their job. I don't think there's a conflict there when you look at specific aspects of what those tools would be. People have different opinions as to when the threshold will be met, but that there is a balancing is very clearly the view of the Canadian public.
12:45 p.m.
Liberal
Wayne Long Liberal Saint John—Rothesay, NB
Thank you.
There was one more comment you made in an article I read. You stated:
Instead, a discovery that national security agencies are breaking the law leads quickly to changes so that what was once illegal becomes legal — rewarding the violation, not punishing the violator. And this pattern of encouraging impunity has had a corrosive effect on public confidence.
Can you give me your comment on that?
12:50 p.m.
Policy Director, British Columbia Civil Liberties Association
Certainly.
We're very concerned when we hear the statement by Mr. Justice Noël, for example, in the Federal Court case that found 10 years of breach of the duty of candour by CSIS in relation to the illegal collection of metadata in their bulk data holdings. You will find in that 137-page judgment—very thoughtful, very considered—a kind of statement that you almost never see from a judge of the Federal Court, traditionally very deferential to national security needs.
He asks what it will take. Do we need to prosecute for contempt of court in order to get these findings of failure of the duty of candour before the court to be taken seriously?
That kind of statement from a Federal Court judge should alert us to what I am indeed calling—you are citing those correctly—a crisis of confidence that we have national security agencies, specifically in this case CSIS, operating within the law.
12:50 p.m.
Conservative
The Chair Conservative Blaine Calkins
Mr. Bratina, I seem to recall that you had some supplementary questions.
12:50 p.m.
Liberal
Bob Bratina Liberal Hamilton East—Stoney Creek, ON
Yes. Thank you.
Ms. Austin, what would your recommendation be with regard to this committee's recommendations on any usefulness of SCISA? Let me put it this way: what problems would be created if it were our recommendation to eliminate it, to just go back to the previous security protocols? What would you say to that?
12:50 p.m.
Prof. Lisa Austin
I would be open to the argument that this wouldn't be sufficient, but you would have to take a look at the evidence. The government hasn't implemented the Arar commission's recommendations. It hasn't implemented the Air India recommendations. Some of those were very strong on information sharing, saying that CSIS and the RCMP “must” share information, right? There's no “must” share here.
With regard to my comments that this measure should be repealed, it doesn't mean there aren't information-sharing issues that need to be addressed through the law. I would go back to those and ask two things: why isn't that sufficient, and where is the evidence that you need more than what those two very careful inquiries asked for? If the case can be made that, well, actually there's this other situation, then have a very carefully tailored amendment to whatever law you need for that.
It's just the sheer overbreadth of SCISA that's very shocking and, I think, unjustified. I think you could justify specific information-sharing practices and amendments in light of things like Arar and Air India.
12:50 p.m.
Liberal
Bob Bratina Liberal Hamilton East—Stoney Creek, ON
Okay.
Mr. Karanicolas, I'll give you the opposition question period question: “Yes or no?” What would your recommendation be to this committee with regard to SCISA?
12:50 p.m.
Senior Legal Officer, Centre for Law and Democracy
Regarding whether to repeal it or to amend it?
12:50 p.m.
Senior Legal Officer, Centre for Law and Democracy
We avoided taking a firm position on this for a reason, but generally speaking, I would probably be in favour of reforming it rather than revising it entirely. Now that we're having the debate, it might be useful to try to arrive at a proper solution so that this can hopefully be settled and doesn't recur in terms of new problematic legislation down the road.
That's probably the position I would take.
12:50 p.m.
Policy Director, British Columbia Civil Liberties Association
We favour repeal. To echo Professor Austin, if there are any needs for which the justification can be demonstrated, certainly those should be put in the Privacy Act, in our view.
12:50 p.m.
Conservative
The Chair Conservative Blaine Calkins
Thank you, colleagues.
The committee business that we could have done at the end of the committee meeting has already been dealt with, so I will take this opportunity to wish each and every one of you a very merry Christmas and happy holidays. I would like to extend that to the clerk, our analysts, and all of the folks who support us here so capably in the House of Commons. I wish you all a very safe holiday time with friends, family, and loved ones, and eagerly look forward to our return in January.
I'd like to thank the witnesses for their insightful comments today. They will be very helpful as we deliberate what to do with the review of the SCISA legislation.
Thank you, and I wish you all a very safe holiday.
The meeting is adjourned.