Evidence of meeting #33 for Access to Information, Privacy and Ethics in the 44th Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was rcmp.
A video is available from Parliament.
Conservative
Expert and Researcher on National Security and Intelligence, As an Individual
That's why the RCMP exists, to try to protect you because of these positions that you're taking. This is what we enjoy in our society, this capability of having outspoken elected officials who speak on behalf of our community, just like you do.
Unfortunately, at the same time, you might become a target, and that's where we step in.
Conservative
James Bezan Conservative Selkirk—Interlake—Eastman, MB
When we're looking at the overall use of technology—and I would say it's probably changed quite dramatically since you were working for CSIS—how do we ensure that it is being used for the correct applications? You said in your opening statement that you don't want this committee to get into the details and undermine operational capability, but at the same time, as you've said, we need to have transparency and accountability, and we need to know who is using this technology and how it's being applied.
Where is the counterpoint in this where it tips so that we're undermining the ability of our law enforcement agencies and national security agencies to protect Canadians?
Expert and Researcher on National Security and Intelligence, As an Individual
I think some of the evidence and testimony presented by Professor Deibert and others is on the right track; that is, with regard to having certain entities that would be capable of doing the checks and balances, the verification, and asking for the accountability that is necessary. I think yesterday what I heard—maybe some people have heard differently—was the RCMP<s being open to this accountability. Maybe it didn't come soon enough or the transparency didn't come soon enough in the opinion of certain people, but this is what democracy in progress is about. This is something that needs to be constantly verified.
Having been an officer on the front line, I'm absolutely in favour of the capability of—
Conservative
James Bezan Conservative Selkirk—Interlake—Eastman, MB
As an officer on the front line, can CSIS, as an intelligence agency, collect evidence that's not bound by the Canada Evidence Act or the Criminal Code? Can CSIS deploy this type of spyware without a warrant?
Expert and Researcher on National Security and Intelligence, As an Individual
No. CSIS will usually have to go through a warrant process in order to collect this kind of sensitive evidence and use this kind of technology.
Conservative
James Bezan Conservative Selkirk—Interlake—Eastman, MB
That's only if it's a Canadian. If it's a non-Canadian, they wouldn't be required to have a warrant?
Expert and Researcher on National Security and Intelligence, As an Individual
No. If somebody represents a threat to national security, CSIS can go against a foreigner. For example, there are diplomats who are not diplomats. They are foreign spies. We go after them.
Conservative
The Chair Conservative Pat Kelly
That's it.
Now, we'll go to Ms. Vandenbeld. Go ahead for up to five minutes.
Liberal
Anita Vandenbeld Liberal Ottawa West—Nepean, ON
Thank you very much.
I'd like to start my question with Ms. McPhail. When I was in graduate school I was on the board of the Alberta Civil Liberties Association, so I applaud the good work that you do.
When you gave your testimony, one of the things that you said at the very end was that there are more problems but also more solutions, and you didn't have time to outline all of them.
I think what this committee is very interested in are the solutions. Could you perhaps elaborate a little bit about what you see as some of the solutions and some of the ways in which the lawful, legitimate use of these kinds of technologies could be implemented without abuse and with proper accountability?
Director, Privacy, Technology and Surveillance Program, Canadian Civil Liberties Association
I think there are a number of ways to proceed with legal reform across a range of different laws that would provide an improved baseline of accountability and transparency.
Previous witnesses yesterday talked about making privacy impact assessments mandatory, and I do support that recommendation as a baseline requirement. Also mentioned was the idea, which I support, of including the existence of privacy as a fundamental human right in both our public and private sector privacy laws. That changes the nature of the balancing act that's necessary when we're deciding whether businesses or governments are allowed to engage in invasive privacy practices. It puts the right at the centre, in a place where it should be in those balancing equations.
It's also worth looking at part VI of the Criminal Code, which, to the best of my knowledge, had its last very significant amendments slightly more than 20 years ago. It could be that experienced defence counsel in particular would be of great use to this committee in recommending alterations to that, based on their experience with these kinds of contemporary technologies as their use emerges in criminal cases.
Finally, as one more concrete thing, the United States has created an entity list of banned spyware vendors. Canada should absolutely consider doing the same thing, which would provide some public assurance that our tax dollars are not going to support these dangerous and mercenary companies.
Liberal
Anita Vandenbeld Liberal Ottawa West—Nepean, ON
I appreciate that. Thank you very much.
My next question is for Monsieur Juneau-Katsuya. You mentioned in your testimony this need for balance. Certainly, we are all very much in favour of transparency, but you said in your testimony that even as we're here as a committee holding...to account, the bad actors are listening. I wonder if you could elaborate a little bit about how you achieve that balance while not providing information that could strengthen those bad actors.
Expert and Researcher on National Security and Intelligence, As an Individual
I think we have mechanisms making us capable—sometimes in camera—of receiving and asking difficult questions. The House of Commons has established a permanent committee now on security and intelligence, which is capable of going across the board in every department to follow the traces of certain cases. That is extremely important.
The challenge that we have is that the sitting members are elected—just like members of this committee—and at every election there are new members who come in with a new team, a new group that doesn't necessarily have the experience, the knowledge or the network to be capable of digging in as much as they should.
Should we have more committees like the SIRC, the security and intelligence committee, which went from watchdog to lapdog over time? They're not really doing as much work as they should be sometimes to observe, criticize and bring solutions to some of the problems.
That's the problem: Sometimes the political systems interfere with the work of the committee and the independence.
You mentioned in one of your earlier comments that you enjoy the non-partisan element of the committee and the work that has been done. That's what should be sought as much as possible because, at the end of the day, we should be working for this nation, not for our partisan interests.
Liberal
Expert and Researcher on National Security and Intelligence, As an Individual
If I may add one element, we're spending a lot of time talking about law enforcement, which is the leitmotif of this discussion, but one area that has been neglected is the private world. Private companies are using this kind of technology far more than law enforcement, which is much more surveilled.
Conservative
The Chair Conservative Pat Kelly
Thank you.
We can only deal with so much within the constraints of a single, short study, but, indeed, we have heard repeatedly over and over again of the need for modernization of the Privacy Act, which would apply to private interests and corporations.
Over to you, Mr. Villemure, for two and a half minutes.
Bloc
René Villemure Bloc Trois-Rivières, QC
Thank you, Mr. Chair.
Ms. McPhail, do you think law enforcement's use of this kind of spyware violates the Canadian Charter of Rights and Freedoms?
Director, Privacy, Technology and Surveillance Program, Canadian Civil Liberties Association
From what we've been told, in the way that these tools have been used, the RCMP has attempted to stay within the confines of the charter by ensuring that they get judicial authorization by using these for a small number of investigations and ensuring that it's only for crimes that are ostensibly particularly serious. The issue—
Bloc
René Villemure Bloc Trois-Rivières, QC
Sorry to cut you off, Ms. McPhail, but I have a limited amount of time.
Mr. Deibert, you mentioned in your research that Canada was this year's chair of the Freedom Online Coalition.
Would you say that, as chair, Canada has a duty to lead by example?
Professor of Political Science, and Director, Citizen Lab, Munk School of Global Affairs and Public Policy, University of Toronto, As an Individual
Yes, I do.
Professor of Political Science, and Director, Citizen Lab, Munk School of Global Affairs and Public Policy, University of Toronto, As an Individual
Like I said, I think that we need to have, from senior officials, from the Prime Minister, from the Minister of Public Safety and from the Minister of Foreign Affairs, clear, forceful statements that this industry that we're touching on in this committee is a threat to human rights, democracy and to our own national security and that we are going to take measures aligned with our allies in the United States, Europe and elsewhere to start holding the worst actors in this industry more accountable and be more transparent and publicly accountable ourselves if we're going to use it domestically.
Bloc