Evidence of meeting #41 for Public Safety and National Security in the 41st Parliament, 2nd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was csis.
A recording is available from Parliament.
NDP
Craig Scott NDP Toronto—Danforth, ON
Thank you, Mr. Chair, and thank you to our witnesses.
It's important to know, as Mr. Garrison made clear on Monday, that these are very abbreviated proceedings for something that, with witness after witness, we're now learning is more complicated and involves a lot more need for attention than we're giving it.
This is our only day as official opposition to have two witnesses we specifically wanted to hear and they're getting part of one panel in one half of a two-hour session. This is really an inadequate process.
I am very grateful to the witnesses for making sure that the whole question of oversight and review has not been lost in this. The fact that the Inspector General is gone, and the fact that since the Arar inquiry we've known we need much better oversight and review mechanisms, including parliamentary review and much better co-ordinated oversight mechanisms for all intelligence agencies....It's just Intel Oversight 101 and yet a decade later we're still not there.
It's important to note that the Privacy Commissioner is supporting exactly what you're saying. In a letter he sent today, Mr. Therrien wrote:
Clear statutory rules should be enacted to prevent information sharing by CSIS from resulting in a violation of Canada's international obligations.
That's on the whole clarity point. It also, ultimately, has implications on the Wakeling case. He also wrote:
A balanced legislative approach would also, in my view, include in Bill C-44 measures to make the activities of all federal departments and agencies involved in national security subject to independent oversight.
He goes on to elaborate that a little bit.
People thinking about the implications of both clarifying and extending CSIS' powers are also saying that we shouldn't be doing this without a more comprehensive understanding of how oversight and review needs to catch up, not only with the problems in the past but with what's now happening in the bill.
I'd like to focus, Professor Forcese, if I could, on a couple of your points. On the warrants, basically clause 8 indicates that a new section 21(3.1) would say:
Without regard to any other law, including that of any foreign state, a judge may, in a warrant...authorize activities outside—
The activities that he or she authorizes are investigative activities. That refers to an earlier provision.
You've indicated that you're assuming this would only be confined to surveillance and not interrogation. Is there anything in the language that would suggest that's necessarily the case?
Associate Professor, Faculty of Law, University of Ottawa, As an Individual
No. There's the historical context; that is, the Federal Court cases that are the genesis of this bill have dealt with extraterritorial surveillance. But of course the CSIS mandate in section 12 is not confined to surveillance, covert or otherwise.
Of course, we do have instances where CSIS members have gone abroad to conduct interrogations. The most notorious example of that is at Guantanamo Bay with Omar Khadr. Presumably, in conducting that interrogation, they were acting within their section 12 mandate.
The issue, in my view, is what sort of supervision might there be in a context above and beyond surveillance for overseas activities. I think if we're talking about CSIS conducting interrogations overseas, the constitutional issues are potentially dramatically different in the sense that it's no longer a question of section 8 of the charter anymore; now it's a question of section 7, the very provision that was at issue in the Khadr case.
That's one reason, just to refer back to the comments about clarifying language, that I would hope the committee might consider including very specific language indicating that in every circumstance where the conduct of CSIS “may” infringe international law or foreign law, there be an obligation first to go and get this warrant. So it's not confined simply to overseas surveillance but every form of CSIS operation. Presumably at that point it's subject then to direct oversight by a court, that can presumably then impose conditions on the nature of whatever overseas operation might be involved, including, presumptively, interrogation.
NDP
Craig Scott NDP Toronto—Danforth, ON
I'll come back to that, because I'm not quite sure what it would look like to involve our courts in.... When CSIS comes and says, “We're going to do something that we think may, likely, or will violate international law, or foreign or local law, and now we want you, a domestic judge, to tell us we can do it”, I'm not exactly sure what tests they would apply to say “Here's your warrant”. We have to figure that one out, I think.
As well, when it says “without regard to any other law”, is this a term that means any other legal system, or does it mean any other law in Canada?
Associate Professor, Faculty of Law, University of Ottawa, As an Individual
That would be a question of—
NDP
Associate Professor, Faculty of Law, University of Ottawa, As an Individual
Well, it's not sufficiently emphatic to constitute a use of section 33 of the Charter of Rights. It's not an override of the charter. Presumptively, “any other law” would include the bill of rights, although, again, I'm not sure if it's sufficiently emphatic there.
My reading of this, my assumption, has been that “any other law” refers to international law. By including foreign law, we know that, for example, the law of the foreign jurisdiction is inapplicable—its rules on privacy, say, but also international law principles that might relate to sovereignty; those presumably would be inapplicable.
NDP
Craig Scott NDP Toronto—Danforth, ON
I do have some concerns about how unclear that is.
What about the question of foreign law, where the issue is that CSIS is going to do things that would not be allowable under the foreign law? The minister told us that's not an issue, because we have better laws than dictators do. Well, there are many other states where CSIS would operate that have perfectly functional systems where their own authorities may need to get warrants. We have heard in the past that CSEC, the Canadian security establishment, has on occasion done the bidding of foreign service agencies, if you believe some of what's in the famous book called Spyworld by Mike Frost. We may even have been involved in spying on cabinet ministers in the U.K. at the behest of the intelligence agencies there, because it would be against the law for them to do it. Whether or not this is true factually, it's a scenario.
I'm wondering what you would say to a judge if CSIS were completely forthcoming and said, “This is what we want to do. We want to do something that the foreign intelligence agency cannot do under its own law.”
Associate Professor, Faculty of Law, University of Ottawa, As an Individual
You can imagine that a Federal Court judge confronted with that prospect, and the prospect of being enlisted in an operation conducted by CSIS, would be a diplomatic firestorm if it were ever revealed. That Federal Court judge, I think, would be quite anxious to make sure that CSIS had crossed its t's and dotted its i's.
In net, I think, the fact that a Federal Court judge is invested in supervising these sorts of activities is a gain for accountability because of the anxiety that would likely be produced by being placed in this position. What a Federal Court judge might do in practise, it's hard to discuss outside of an immediate factual context, but I would imagine that Federal Court judge would rush to superimpose all sorts of conditions on the conduct of the operations, which would minimize the degree to which it violates the foreign law and would limit the prospect that it will have these knock-on effects that would embarrass both CSIS and the Canadian government.
Conservative
The Chair Conservative Daryl Kramp
Fine, thank you very much.
Thank you, Mr. Scott, and thank you, Mr. Forcese.
We'll now go to Ms. Ablonczy, please, for seven minutes.
Conservative
Diane Ablonczy Conservative Calgary Nose Hill, AB
Thank you.
Thank you to the witnesses for your thoughtful comment and analysis. It's very helpful.
As you know, the CSIS Act is about 30 years old, so it certainly has not kept up with the rapidly evolving pace of the threats to our country, unfortunately.
The purpose of this bill is fairly simple; in fact, I believe someone has called it the “Filling Gaps Identified in Recent Court Cases Act”. There have been some questions that the court has raised and this bill attempts to address that, to give authority for CSIS to conduct investigations outside Canada, to confirm that the Federal Court can issue warrants for such investigation, to give the Federal Court authority to consider only relevant Canadian law, and to protect the identity of both CSIS sources and employees. There may be other areas that will have to be addressed, but this is the purpose of this law.
I wonder if either of the professors can tell us what kinds of requirements are on the intelligence communities in our allies: the Five Eyes, or in the countries we cooperate with. Are any of these required to get court warrants before they undertake activities in other countries? How is our regime comparable to those of our allies?
Associate Professor, Faculty of Law, University of Ottawa, As an Individual
It's a bit of a mixed bag. Not purporting to have reviewed in detail the laws of hundreds of foreign countries, I would say this bill is unique in the degree to which it emphatically now authorizes a judicial officer to allow a Canadian executive agency to violate foreign law.
In other jurisdictions that I have looked at that have foreign intelligence operations, their laws are creatively ambiguous on that point. The reality, as we all know, is that spies spy and in the course of spying they may violate the laws of the countries in which they spy and international law in terms of state sovereignty.
Again, not having exhaustively reviewed all the comparative law, I am not aware of a statute that as emphatically indicates that a court may authorize spying in violation of international and foreign law.
I think also in the text of the document you were referring to earlier, I called it “courageous” at some level that the Parliament of Canada is prepared to put its stamp on a law that emphatically signals that we are prepared to violate the laws of foreign countries, potentially including allies, in conducting foreign surveillance.
That potentially has political implications, and I imagine there are people at the Department of Foreign Affairs who are quite exercised or potentially quite exercised about the potential fallout that this might occasion.
But to answer your question, in my albeit limited experience, this law is fairly unique.
Professor, Graduate School of Public and International Affairs, University of Ottawa, As an Individual
If I could just add to that, we could look at the Five Eyes partners, in particular, and I think we would find in that look that they all have different forms of judicial or executive authorization for surveillance abroad, and indeed for surveillance at home. They're probably all variations on a theme.
I think what makes the Canadian legislation unique is a product of the fact that we're trying to find a legislative scheme for an agency that is, as I've said, a hybrid. CSIS started out being a domestic security intelligence service and we fashioned laws to allow them to perform that function and to control that function in terms of possible abuses. Now it is, in addition, a foreign intelligence service in a way that there is no parallel among any of our Five Eyes partners.
All of our Five Eyes partners have separate foreign intelligence services and domestic security intelligence services. They have made those separations over time for reasons that they think are very good reasons, and I think they're reasons that stand up in terms of international perspective as being very good reasons.
They are very different skill sets, very different training regimes, very different resources, very different kinds of forms of internal accountability and external review that are required for those two very different kinds of operations, operating abroad versus operating at home.
We're trying to find a legislative fix-up for an agency that we've allowed to evolve into this hybrid model, without giving that evolution any serious consideration. That is the concern that, I think, Parliament and anyone interested in the functioning of the Canadian intelligence community should have.
Conservative
Diane Ablonczy Conservative Calgary Nose Hill, AB
Right. Well, it's always an interesting debate. That's why academics love this kind of thing. But it does have implications and I appreciate your letting them out.
Mr. Stamatakis, you mentioned the events of October 22, and of course the apprehension that Canada is vulnerable to these kinds of activities that threaten the security of smaller or larger groups in our country.
I just want to ask you where you see the need for tools for our security agencies heading in the future. As I mentioned, this act has a fairly limited scope, but we know that there has to be other tools provided to our security agencies. Can you comment on what those might look like, from your point of view?
President, Canadian Police Association
I don't know that I'm qualified to make any kind of comprehensive suggestions. My experience is limited to local Canadian law enforcement, and from our perspective, this is a step in the right direction in terms of the human source handling piece, the ability to gather intelligence.
I can tell you that municipal and provincial police, and the RCMP engaged in municipal and provincial policing activities in this country, are actively gathering that kind of intelligence from citizens who are obtaining information from the people they know and are engaged in relationships with. That's certainly an important tool.
I certainly think it's appropriate for our security services that are going to be engaged in those activities, internally and externally, to have the same sorts of tools that our local law enforcement has in terms of the ability to engage in activities and practices that allow them to get the best information in a timely way, so that they can be in a position to proactively prevent incidents or activities that pose a risk to Canadians.
I think that these are the kinds of discussions that we need to be having and we need to be moving forward on. But I'm not in a position here to make a lot of recommendations in that regard.
Conservative
The Chair Conservative Daryl Kramp
Thank you very much, Mr. Stamatakis.
We will now go to Mr. Casey, please. You have seven minutes.
Liberal
Sean Casey Liberal Charlottetown, PE
Thank you, Mr. Chair.
Witnesses, I expect that you were probably expecting to see Mr. Easter in this seat. I am not a former solicitor general, as he is. Usually I'm on the justice committee, so I'm not as well armed. If my questions appear to be less eloquent and clumsier, there's good reason for that. Although I will say that yesterday we went clause by clause through the victims bill of rights, and one of the decisions that was taken in connection with that bill was to not include victims of terrorist acts abroad, such as the 9/11 victims. So there's a peripheral connection.
I'd like to start with you, Professor. Towards the end of your remarks, you referenced accountability and you talked about the vacancies within SIRC. Could I ask you to expand on that a little further? As you know, Mr. Easter and Joyce Murray, as was referenced by Professor Wark, have championed parliamentary oversight, and Professor Wark went into some detail on that. But could I ask you to talk a little further about what needs to be done, in your view, to get the level of accountability that you referred to up to the international standards of our allies?
Associate Professor, Faculty of Law, University of Ottawa, As an Individual
Structurally at SIRC, ideal membership is five. Even when they are at five, they're part-time, and it's an enormous undertaking for a review of CSIS if you are full-time let alone part-time. They've been at three for some time. As you know, two chairs have resigned in controversy, and as a consequence the continuity of leadership has been uneven at SIRC.
Resource-wise, you can map the growth in operational funds of CSIS. SIRC's operational funds have also increased but not proportionately. And so what was always an auditing function.... SIRC when it reviews CSIS doesn't look at everything CSIS has been doing, it is piecemeal. And presumably, because its scale is now diminished relative to the scale of CSIS operations, it's even more piecemeal than it has been in the past.
It's a question of staffing it seriously and earnestly, of making the members full-time appointees and resourcing those members properly. Legislatively, it means reacting to the Arar inquiry's very important recommendations that there be the capacity for the three review bodies we have in essence to coordinate their review functions, so that they can actually follow investigations across institutional boundaries.
There was some reporting from The Globe and Mail earlier this past year suggesting that an informal effort was made by the commissioner of the CSE in one of his reviews to coordinate with SIRC, and the government response was to challenge the legal competency of the commissioner to do so. In fact, as I understand it, there was some threat that the commissioner might be in violation of his and his staff's secrecy and security obligations by coordinating. That requires a legislative fix and it's a long time in coming.
Liberal
Sean Casey Liberal Charlottetown, PE
With regard to parliamentary oversight, in your view is it necessary and what's the optimal model? If you agree that it is necessary, what should it look like?
Associate Professor, Faculty of Law, University of Ottawa, As an Individual
I believe it is necessary. I don't believe that the arguments that are made that it's redundant have resonance. I think the more eyes on the spies, the better, if you'll forgive my alliteration.
I also think it's important to enhance your ability as parliamentarians to understand the inner workings of the security services so there's institutional knowledge within Parliament itself.
The ideal model in my view is one where there is robust capacity on the part of the parliamentary committee to access the information they need.
If you look at the models that are deployed by the allies, U.K. and Australia being notable examples, there is some variability in terms of how much information the committee can actually extract from the security services. On one level the Australian model is better in terms of the way that it's structured, but it's not all that robust in terms of their capacity to compel the presence of information from the services. I would look as a primary ingredient of any parliamentary committee model for the ability of parliamentarians to access the information in question, subject to, obviously, secrecy obligations then that are imposed on parliamentarians themselves.
Liberal
Sean Casey Liberal Charlottetown, PE
Professor Wark, Professor Forcese talked about how the response that we get when we ask for parliamentary oversight is that it's redundant. You talked in your remarks in some detail about the decline of ministerial accountability and the measures that have been attempted to bring in parliamentary oversight. I take it that you've also studied or at least read the debates and the positions taken by the various parties on it.
I would invite you to critique the responses that we get when we ask for parliamentary oversight. So it's redundant. We already have adequate oversight. What's your critique of those positions?
Professor, Graduate School of Public and International Affairs, University of Ottawa, As an Individual
Mr. Casey, I think it's an excellent question.
Let me first give you my view of the nature of the critiques, and they're very close to the way in which you present them. One of the responses to any kind of measure to reform the nature of the parliamentary review of security and intelligence in Canada is an argument that existing departmentally focused, if you like, parliamentary committees can adequately do this job. This committee can adequately review the security and intelligence practices of the Canadian community.
It seems to me that there are two problems, perhaps more than two problems, but two problems that immediately come to mind with that.
One is that, in terms of parliamentary committees' construction focused on the activities of individual government departments, that's not how the Canadian security and intelligence community writ large is actually organized. It's an integrated or semi-integrated collection of different agencies operating under different departmental mandates and controls. One of the things that the Arar inquiry pointed out is that we lack any capacity with regard to an independent review body to look at that overall work of the security and intelligence community and, in regard to Parliament, we don't have that capacity at the moment to do that integrated kind of review. As my colleague Craig suggests as well, there is a deep problem in terms of access to the kind of information that a parliamentary committee or a committee of parliamentarians would genuinely need in order to scrutinize properly the activities of a secretive intelligence and security community.
There are models that have been made to work among our Five Eyes partners that are of long standing. The model that we have typically looked to post 9/11 in Canada has been the British model, the model for the intelligence and security committee, which is a rather unusual construction, admittedly. It's a committee of parliamentarians, not a standard parliamentary committee. It was built that way on the assumption that it would provide better access to classified information according to the provisions available to them and that it would also generate significant sustained, serious, non-partisan discussion of these issues if it was constructed in a certain manner.
I assisted Joyce Murray in the construction of her private member's bill, and we looked at various models very seriously, but I think the essence of what parliament needs is a dedicated committee that can look at the broad range of security intelligence operations that may need to require membership of both the House and the Senate. It would certainly need additional resources compared to what an ordinary parliamentary committee would have in terms of research staff and it would need—
Professor, Graduate School of Public and International Affairs, University of Ottawa, As an Individual
—a non-partisan atmosphere to work.
Conservative
The Chair Conservative Daryl Kramp
Fine, and thank you very much for the little overtime there. I think you can understand.
We will now go to Mr. Scott.