Public Safety Committee on Nov. 24th, 2014

[Michel Coulombe, Director, Canadian Security Intelligence Service]

Thank you, Mr. Minister.

In terms of the first part of your question of why it's not in the act at the moment, if you go back 30 years, at the time it was not envisaged that the service would be as involved as it is today in administrative proceedings or criminal prosecutions. The threat has evolved, and terrorism is taking a growing place.

I think it is pretty obvious why we need to protect our sources. We've talked about it in terms of nobody wanting to cooperate with us if they were putting their life at risk. But I think it's also very important that we shouldn't lose sight that when somebody is cooperating with the service quite often at the risk of their own security and with the promise of confidentiality, the state has a duty to protect that person and to protect their identity so that we can protect their security—and not just protect them but sometimes their family also.

We have to balance that in different proceedings with how we maintain fair proceedings. I think the bill has achieved that balance.

[Diane Ablonczy, Conservative, Calgary Nose Hill, AB]

I read an opinion that indicated that police evidence-gathering is different from CSIS' information-gathering, so CSIS sources don't need the same protection. Would you comment on that, please?

[Michel Coulombe]

It is true that the service is not an enforcement agency. We're not in the business of collecting evidence. But again, because of the evolution of threats, we're more and more indirectly—and sometimes directly—involved not in criminal investigations because we run parallel investigations with the RCMP, but just because of the nature of the relationship and exchange of information. At times service information will be used in criminal proceedings, or could be used regarding security certificates, for example. Although we're not in the business of collecting evidence, that's why our intelligence will either be challenged or there will be a request for more disclosure, including the identity of human sources.

It's just that the nature of the threat environment has changed and has changed the service interaction in dealing with those different proceedings.

[The Chair, Conservative, Daryl Kramp]

Fine. Thank you very much. Time is up.

Mr. Garrison, you have five minutes, please.

[Randall Garrison, NDP, Esquimalt—Juan de Fuca, BC]

Thank you very much, Mr. Chair.

I just want to stress again, Mr. Minister, that when you talked about this bill at the outset we had hoped the bill could be made effective, and we had hoped we could have all-party support for the bill. The attitude of the government is now making me very doubtful.

We share the same interest as you in making sure that our national security agencies maintain their quality and the reputation of their services, and we think that accountability is quite important to that. There is nothing in this bill on that.

You mentioned the challenge of transferring intelligence into evidence. I think those were your words. We share that concern about taking intelligence and making sure you can use it in prosecutions. I have a concern that the way this bill is drafted it may make it more difficult to do those prosecutions. When you talk about the protection of the identity of witnesses, the courts can protect the identity of CSIS sources on a case-by-case basis now. They didn't say that wasn't possible.

When you say they invited you to do this, I believe that if you read the decisions, they said that Parliament could do this. They didn't say it was necessary, and they didn't say that Parliament should provide this blanket protection; they said it was possible.

Why risk this change to limit the rights of the defence to challenge the use of intelligence information in prosecutions? Why risk a change that might either make it more difficult to prosecute, or might result in those provisions being declared unconstitutional?

[Steven Blaney, Conservative, Lévis—Bellechasse, QC]

I thank the member for his numerous questions.

The first response would be that some of the questions go beyond the scope of the law, and I have clearly stated that this bill is crafted to ensure it responds to the invitation of the courts.

All western countries are faced with the challenge of terrorism. I have here a press release from my U.K. counterpart, Theresa May, who is coming up with more than eight measures to tackle terrorism and says that time for new policies is required, and why? Because we need to adjust to this threat, that's clear.

I've clearly demonstrated this afternoon that we are doing it while respecting the Constitution with the amicus curiae in the protection of witnesses whenever someone is accused.

The member has asked a question on oversight. Clearly this is going beyond the scope of this bill, but we have a clear mechanism that is working and will ensure that while CSIS is protecting Canadians, there is robust oversight.

I would say, Mr. Chair, that to me it is clear that there is no liberty without security.

[Randall Garrison, NDP, Esquimalt—Juan de Fuca, BC]

With respect, Mr. Minister, all the commissioners who have looked into these questions have agreed with you on half of that. You forget the other half that they've said, and that is that we need improvements. If you're going to give more powers to national security agencies, especially in this time of technological change, then you need improvements in the oversight, so I think it is connected to the bill even though it's not here.

But I want to give you one more chance on this question of why you're risking making it very difficult to use intelligence information in criminal prosecutions by this very limited protection, this limited exemption in this bill.

[Steven Blaney, Conservative, Lévis—Bellechasse, QC]

This bill clarifies the powers of CSIS. It will facilitate the work of the courts because it eliminates the grey areas that existed when the legislation was applied, both with respect to protecting witnesses and to the capacity of the service to operate abroad and exchange information with our allies, including Great Britain, Australia, New Zealand, the United States and France. They are our allies, and they are facing the same challenges we are, which is monitoring individuals who travel from country to country, threaten the safety of Canadians and attack innocent people. That is exactly what this bill does. It restores the powers that enabled the service to be effective in the past. At this critical time, as we face a growing threat, it is all the more important to preserve the capacity of CSIS to protect Canadians.

[The Chair, Conservative, Daryl Kramp]

Thank you very much, Mr. Garrison.

Minister, thank you very kindly for coming here today.

We thank our guests as well.

We will suspend briefly just for a minute while the minister excuses himself, and we will welcome our new witnesses to the table.

[The Chair, Conservative, Daryl Kramp]

Colleagues, we are back in session.

We will welcome our new witnesses here today.

We have Lynda Clairmont, senior assistant deputy minister, national and cybersecurity branch. We have Ritu Banerjee, director of the intelligence policy division for the national and cybersecurity branch; and we have Mory Afshar, senior counsel, Citizenship and Immigration Canada legal services.

The three new witnesses are entitled to make a statement, should they wish. Otherwise, we will go directly to questions.

Are you all fine? Thank you very much.

We will go to rounds of questioning, then. We will start off with Mr. Carmichael, please, for seven minutes.

[John Carmichael, Conservative, Don Valley West, ON]

Thank you, Chair.

Thank you to our witnesses for attending today.

This is obviously a very interesting session, as we deal with concerns of Canadians from coast to coast to coast. As I've travelled through my riding, I've heard from Canadians on this issue since October 22, and the horror that...well, actually before that, because we had the tragedy in Saint-Jean-sur-Richelieu, with Warrant Officer Vincent. Then we were confronted with the horror of the terror attack here on Corporal Cirillo, and then in the House. Canadians have been very responsive to these issues, and our security and our safety is clearly something they hold dear and for which they have great concern. They ask how these types of acts can happen and what we can do to protect our shores and protect our borders.

What I'd like to ask you about first off—and I'll let you decide who is the best person to respond on this—is around the fairness of revoking the citizenship of dual nationals. At your last appearance, Mr. Coulombe, we talked about the number of citizens who have gone overseas, who are taking part with ISIS in Syria and Iraq, and those who have returned. We addressed some of the numbers and the concern of how we're going to deal with these people.

But I want to talk about the provision in the bill for the revocation of dual citizenship, where we have people who have been charged with terrorism or treason, served their time overseas, and then come back. Canadians have asked about the fairness around this particular clause. I wonder if you could comment on it. I won't go any further, as far as what I'm hearing is concerned. I'll leave it for you to perhaps comment on the importance of this issue.

[Nicole Girard]

Thank you very much for your question.

I would just note at the outset, as mentioned earlier, that the provisions in Bill C-44 are technical amendments that would not bring any changes to the provisions of the Strengthening Canadian Citizenship Act, which received royal assent in June earlier this year. They would enable the government to pursue an earlier implementation of the changes to the revocation provisions in the Citizenship Act.

Nevertheless, to come directly to your question, I think the first, most important point to make is that Canada is alone compared to like-minded countries and other democratic countries in not having this ability already to revoke citizenship for egregious actions that are done against the national interest, so the recent changes that Parliament made in June to expand the grounds for citizenship revocation limited to specific actions—namely convictions for high treason, treason, spying, terrorism, or being in the service of an organized armed group or armed force engaged in armed combat with Canada—is broadly in line with what like-minded countries already do.

I would also like to add that with regard to fairness there are many safeguards that are provided in the law and as a matter of procedure with regard to the revocation process itself. Those include: notice, the ability of the person concerned to know the grounds against them; to see the evidence; to have an opportunity to respond and make their submissions; to receive a decision in writing; to potentially have a hearing with the decision-maker; and of course, to seek judicial review if in the end that decision is against them and revoking their citizenship.

Thank you.

[John Carmichael, Conservative, Don Valley West, ON]

Thank you. Quite frankly, I think that is in line with the general consensus amongst Canadians today that citizenship is a privilege and should be respected as such. I appreciate your comments. Thank you.

I'd like to address this to Mr. Coulombe perhaps with regard to informants, and you can direct it elsewhere.

If an informant is involved with more than one investigation, they must have his or her identity released. It seems like you're left with a tough decision, a tough task in how to deal with that: give up their identity and risk losing intelligence that's been gathered from other ongoing investigations in hopes of getting a conviction, or risk losing that conviction to maintain other investigations.

Would this be an accurate portrayal of the situation, without having the similar protections afforded to informants by Canadian law enforcement agencies?

[Michel Coulombe]

It's actually a very accurate picture of what we're facing.

I would add one more thing. It is true at the moment that a judge can afford protection case by case, but because of that “case by case”, because of that uncertainty, it is more difficult to recruit or get people to cooperate because there is that uncertainty in terms of their protection.

[John Carmichael, Conservative, Don Valley West, ON]

The uncertainty is about their safety.

[Michel Coulombe]

Their safety, yes.

[John Carmichael, Conservative, Don Valley West, ON]

Once they've provided that information, they're vulnerable.

[Michel Coulombe]

Yes.

[John Carmichael, Conservative, Don Valley West, ON]

That's an important part of what we're dealing with today, clearly.

[Michel Coulombe]

For us it is crucial.

[John Carmichael, Conservative, Don Valley West, ON]

Monsieur Coulombe, without the assurance that their identity is being protected, has CSIS ever had issues with possible informants coming forward with information, and does that have a possible effect on the safety of the public? Added to that, is there a strong likelihood that without the security that informant will walk away from providing that information?

[Michel Coulombe]

There is always that possibility. I don't want to go into specifics, but again there's always a possibility that somebody with information, knowing that his identity could be revealed, would decide not to share that information.

[John Carmichael, Conservative, Don Valley West, ON]

Thank you.

[The Chair, Conservative, Daryl Kramp]

Thank you very much.

We'll now go to Mr. Garrison, please, for seven minutes.

[Randall Garrison, NDP, Esquimalt—Juan de Fuca, BC]

Thank you very much, Mr. Chair. I'm glad to see you back in the chair.

One concern I was raising with the minister is that, in fact, part of national security, protecting the country, is protecting the rule of law. I just want to go to something that Director General Girard said. In terms of the revocation of citizenship of dual citizens, she said there was the right to see the evidence.

I'm wondering how the provisions in Bill C-44 protecting the identity of CSIS human sources connect with the citizenship process. In other words, if evidence that's being used from CSIS sources is the evidence that is being used for the revocation of citizenship, then what provisions are there? The only exemption for defence here is about criminal prosecutions, not citizenship. Is there an intersection between the two bills there, or any exemption provided for use in those citizenship processes?