Evidence of meeting #42 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.
4:50 p.m.
Conservative
The Chair Conservative Blaine Calkins
Things happen fast at this committee, sir.
Mr. Kelly, you have five minutes, please.
4:50 p.m.
Conservative
Pat Kelly Conservative Calgary Rocky Ridge, AB
Thank you.
We had discussion earlier about Canada's relationship with its partners and allies. I heard agreement about from all of our witnesses that it is necessary to share information with allies, that the security needs of Canada require us to share information. It had been reported in earlier testimony at committee that Canada is by far a net importer of information. I don't remember the exact number, but the researchers would have record of it. I think it was something like a factor of 100 to one in terms of information that Canada receives in its sharing agreements.
To go back to this question of appropriate levels, I would assume it's reasonable to expect that Canada would have information-sharing agreements within government that are somewhat approximate to those that we rely on for information sharing in other countries.
Perhaps each witness could comment a bit on the reciprocal nature of sharing information with our international partners.
4:50 p.m.
Partner, McInnes Cooper, As an Individual
One of the challenges we are going to face, particularly when you look at the Five Eyes, is that Canada is one of five countries that are part of this. I think it will be politically difficult for Canada to act alone, because it ultimately depends on reciprocal information flows.
4:50 p.m.
Conservative
4:50 p.m.
Partner, McInnes Cooper, As an Individual
Well, certainly, and we would lose the advantage. For example, if Canada were to adopt a position that we were not going to play the bulk collection game and would instead play the targeted collection game so that we're not hoovering up massive amounts of information that's irrelevant or is about innocent people, and then the other four countries didn't play along, then I think that would be difficult. However, I do think the growing international consensus outside of the national security complex is that this is the appropriate thing to do.
I don't have any problem with police and national security agencies doing the things they do. I don't have a problem with the fact that CSIS can get a warrant in a federal court with a designated judge that can allow a CSIS agent to break into a house and secretly and covertly install bugs and things like that. They absolutely need those powers to deal with the sorts of situations they deal with. The concern is the disproportionality in the technological collection of massive amounts of information.
We're very much joined at the hip with our Five Eyes partners, but I think it makes sense for Canada to take a stand.
4:50 p.m.
Conservative
4:50 p.m.
Executive Member, Privacy and Access Law Section, Canadian Bar Association
I want to make sure I understand your question. Are you asking if it's desirable that we have clear agreements with each of these international partners?
4:50 p.m.
Conservative
Pat Kelly Conservative Calgary Rocky Ridge, AB
I didn't phrase it in the form of a question so much as giving each of you the opportunity to comment on the reciprocal nature of information sharing with our partners, and the necessity of it being a two-way street and having similar arrangements internally that our partners would have. I would guess that's an expectation that our partners would have.
4:50 p.m.
Executive Member, Privacy and Access Law Section, Canadian Bar Association
Yes, I would think so. We may be a smaller player within the Five Eyes in terms of our intelligence, but I don't think that means we lack any bargaining power and I don't think it means that we sign on to whatever the largest members of Five Eyes do and agree to all those procedures. However, I do certainly think it would be unrealistic to expect that whatever arrangements we agree to would not be mutual. That just seems unfair as a starting point.
4:50 p.m.
Executive Director, OpenMedia
On the reciprocal nature, with regard to Canada being a net importer of information, we're dealing with, for starters, four other countries giving us information and our putting out just this one country's worth of information. Just by the very arrangement of the Five Eyes alone, we will be importing more data than we're exporting.
In terms of the reciprocal nature, there are the realistic expectations of what we can get and then there are the reasonable expectations of what we should actually be expecting and demanding. They're not always easy or convenient conversations to have, but just because we're able to get an incredible volume of information from the NSA, from the U.S., doesn't mean that we should be returning in kind just because that's the expectation that has been set for us.
I think there's a really principled stand that we keep hearing our community saying is really of concern.
4:55 p.m.
Conservative
The Chair Conservative Blaine Calkins
Thank you very much, Ms. Tribe.
We now move on to Mr. Erskine-Smith, please.
4:55 p.m.
Liberal
Nathaniel Erskine-Smith Liberal Beaches—East York, ON
Thanks very much.
I want to start with the definition of “activity that undermines the security of Canada” and get your views on whether we ought to maintain that definition or have a stricter definition.
I'll start with Mr. Fraser.
4:55 p.m.
Partner, McInnes Cooper, As an Individual
When you look through each of the individual clauses, it makes a whole lot of sense and hangs together, and certainly—
4:55 p.m.
Liberal
Nathaniel Erskine-Smith Liberal Beaches—East York, ON
It wouldn't be of concern that it's non-exhaustive?
4:55 p.m.
Partner, McInnes Cooper, As an Individual
I think that's something to be mindful of, and there are other kinds of limitations that talk about and are related to protected expression and things like that, so certainly it fits and is consistent within the whole scheme of the statute. I would identify the defects as being with the statute as a whole, rather than with just that particular provision.
4:55 p.m.
Liberal
Nathaniel Erskine-Smith Liberal Beaches—East York, ON
That provision is an incredibly important threshold, though, for information sharing, so it's actually, in my view, the only real protection we have, other than the relevance threshold.
4:55 p.m.
Executive Member, Privacy and Access Law Section, Canadian Bar Association
I don't think we have a particular issue with the scope of that section as drafted. To your question about it being non-exhaustive, I think it would be much more problematic if it were non-exhaustive, if it was just “including the following things” as an open-ended definition—
4:55 p.m.
Liberal
4:55 p.m.
Executive Member, Privacy and Access Law Section, Canadian Bar Association
Well, I don't think it is; it's of these 10 or so factors.
4:55 p.m.
Liberal
Nathaniel Erskine-Smith Liberal Beaches—East York, ON
No, it's including these factors.
In any event, Ms. Tribe, do you have a view on this aspect?
4:55 p.m.
Executive Director, OpenMedia
We think the threshold of “undermines the security of Canada” leaves it open for a huge amount of interpretation. I know that there's a lot of talk about how things like protests and activism are excluded, but when you look at things.... In B.C., we're looking at pipeline protests, and that's the economic security of Canada. Does that count? If that threatens the idea of the security of Canada, whose interpretation is that? I think we're seeing a lot of people who are feeling quite silenced by this provision and think that the provision is not accurately worded in a way that protects us or our privacy.
4:55 p.m.
Liberal
Nathaniel Erskine-Smith Liberal Beaches—East York, ON
Getting to the other protection, which is the threshold of relevance versus necessity, Mr. Fraser, you indicated that maybe the government hasn't made its case.
We had an official before us who said there was a problem they were trying to tackle that was referenced in a 2009 Auditor General's report, which was that departments had information they thought might be relevant, but they were hesitant to disclose the information, perhaps, because it wasn't clear to them that it was necessary.
They reiterated—and perhaps the legislation should be a lot clearer—that the recipient institutions remain subject to their own rules. In the case of CSIS, for example, they remain subject strictly to a test of necessity, and it's only the disclosing institutions that are subject to relevance. Is that something we ought to make crystal clear in the law, given that there seems to be a lot of confusion?
4:55 p.m.
Partner, McInnes Cooper, As an Individual
Certainly certainty is a whole lot better than confusion, both in the way you referred to and in the example you gave of hesitation in handing it over when they probably were lawfully able to do that in the first place, and also in the possible broad interpretation of relevance.
For example, CSIS might have limitations in some of its provisions related to “as necessary”. We've certainly seen how they interpreted that in the recent cases that have come out of the Federal Court. The RCMP doesn't have those sorts of limitations, and we have 14 other institutions , I guess, that are referred to in the act that would have different sorts of rules as well.
I do think that if you think necessity is too high a threshold, relevance is too low a threshold, and some—
4:55 p.m.
Liberal
Nathaniel Erskine-Smith Liberal Beaches—East York, ON
No, no. I'll cut you off just to maybe be clear about a proposal—not necessarily my proposal, but perhaps a proposal to fix this. If we clarify that the necessity standard is on recipient institutions, that the relevance standard is to disclosing institutions, and that when an institution receives relevant information that is not necessary to their mandate, they must destroy it immediately, would that be a fix that you would be comfortable with?
5 p.m.
Partner, McInnes Cooper, As an Individual
It's an interesting one. It is, I think, worth further discussion.
For the recipient organization, I think they should collect only the information that's necessary for their operations, the information that relates to their statutory obligations related to threats to the security of Canada. As an example, if there was a written request for particular information and the head of that institution, which is listed in schedule 3 of the act, certified that the information was necessary for their lawful activities, and each request was subject to scrutiny and oversight, it would be a very significant improvement on the act.