Information & Ethics Committee on May 5th, 2022

[Matthew Green, NDP, Hamilton Centre, ON]

Thank you, Mr. Chair.

I think Ms. Khalid, in her line of questioning, raised a very important point as it relates to creating a legal framework, and that is what I'll call “the duty of candour” from our security agencies, police, military and CBSA in how they're using these.

Through you, Mr. Chair, to Mr. Farooq, I want to note an August 31, 2021, Globe and Mail report on the court admonishing CSIS once again for the duty of candour. They noted some other cases in which breaches had occurred in the way they sought warrants and the way in which they sought to surreptitiously surveil Canadians unlawfully, quite frankly.

Through you, Mr. Chair, to Mr. Farooq, in your experience, doing the advocacy work that you do—because now we're on the human side of the application of the tool—could you perhaps share with us instances in which our security and public safety agencies may not have been forthcoming about the way in which they were surveilling members of the Muslim community?

[Mustafa Farooq]

Sure. I think that the pre-eminent most recent case of relevance for this committee was a decision of Justice Gleeson from the Federal Court about a year and a half ago. This was a stunning decision by Justice Gleeson, wherein he essentially eviscerated CSIS for a persistent habit of trying to mislead the court. Most of us recall that line, but as lawyers, we call it “breaching the duty of candour”. This has been a habit that has been noted not just by Justice Gleeson, but as well by Justice Mosley at the Federal Court in other sets of decisions.

Eventually the director of CSIS, David Vigneault, came forward to say yes, there may have been problems, but stunningly—and I think we've been clear on the record about this—and unfortunately this government chose to appeal that decision, which is still before the courts. I think it's a question of what we are actually going to do to challenge our national security agencies when they mislead folks that remains an open question.

[Matthew Green, NDP, Hamilton Centre, ON]

Thank you.

Through you, Mr. Chair, to Mr. Farooq, would it be your opinion that any contemplation of regulating the technical aspects of this must also include corresponding and ethical frameworks for government and law enforcement agencies in order to ensure compliance and full transparency in dealing with these tools?

[The Chair, Conservative, Pat Kelly]

Please answer very briefly.

[Mustafa Farooq]

I'm sorry. Would you mind repeating the question?

[Matthew Green, NDP, Hamilton Centre, ON]

Any contemplation of regulation of the technology within the context of this report ought to carry with it a compliance, oversight and accountability framework for the human actors, including our law enforcement and policing agencies, specifically to ensure the duty of candour.

[Mustafa Farooq]

Yes, absolutely.

[Matthew Green, NDP, Hamilton Centre, ON]

Thank you very much.

Those are my questions.

[The Chair, Conservative, Pat Kelly]

Thank you very much.

My thanks to all of our witnesses today.

With that, I'm going to suspend. We will resume in camera.

I'll ask our witnesses, with our thanks, to leave the room relatively quickly. We will carry on in camera in a moment.

The meeting is suspended.

[Proceedings continue in camera]