Thanks very much, and thanks to the committee for asking me to testify today.
I'm going to focus exclusively on the foreign surveillance aspects of the bill that is before this committee. Later today Professor Kent Roach will be appearing before you and he will be speaking to the informer privilege component.
These are my views in brief. I support the proposed amendments to sections 12 and 21 of the CSIS Act. That said, I think there are three omissions in this bill that this committee should correct. I see these corrections as necessary to pre-empt another half-decade of litigation, controversy, and uncertainty.
Clause 8 in the bill addresses the core confusion flowing from three Federal Court decisions. In enacting these amendments, you will now be emphatically asking a court to bless CSIS covert surveillance that may violate international or foreign law. In our system, Parliament has authority to expressly grant powers that violate international law so long as those powers do not then also violate the Constitution. I see no constitutional complaint, assuming we are confining our discussion to surveillance issues and not, for instance, including interrogation or other more aggressive forms of investigation.
As noted, however, I do see several critical omissions in this bill.
First, it is not clear when the service will be obliged to obtain a foreign surveillance warrant. The existing statute speaks of belief on reasonable grounds that a warrant is required. In a domestic surveillance operation, these grounds arise when failure to obtain a warrant would violate section 8 of the charter governing searches and seizures or Part VI of the Criminal Code. But the applicability of these two laws, and especially the charter, to foreign surveillance is uncertain. As a consequence, the existing reasonable grounds threshold is unhelpfully ambiguous when applied to the new warrant powers in this bill.
I think in the final analysis a warrant will be required whenever foreign surveillance involves covert interception of telecommunications. I also believe the amendments may be interpreted as requiring a warrant any time an operation may violate international or foreign law. These would be sensible standards, but because the bill is not emphatic, establishing these standards may require another round of litigation. Therefore I strongly urge the committee to pre-empt the necessity of another half-decade of uncertainty by adding clear language on the trigger for seeking a foreign surveillance warrant. I have proposed language in an annex to my brief, which I have supplied to the clerk, and which will be available to you pending translation.
Second, since this bill was tabled, the Supreme Court has issued its decision in Wakeling. That case concerned the RCMP but in practice the holding extends equally to CSIS. A majority of the court concluded that section 8 of the charter applies to sharing intercepted communications between Canadian authorities and foreign counterparts. To be constitutional, a reasonable law must authorize intercept sharing. A reasonable law is one that includes sufficient accountability and safeguard regimes, according to the court. Right now, there is no clear law on CSIS international intercept sharing. At best there is generic, more open-ended permission in the Privacy Act, which seems unlikely to survive a constitutional challenge.
I would strongly urge this committee to again pre-empt years of litigation by codifying an express statutory authorization for intercept sharing that also includes required safeguards. I have proposed language in the annex addressing this issue.
Last, we are now at the 10th anniversary of the Arar commission. I note with profound concern that Parliament has failed to legislate any of that commission's critical recommendations dealing with coordination between the review bodies for CSIS, CSE, and the RCMP. Instead, we have closer and deeper coordination among security services but review remains firmly limited to institutional silos, and indeed we have reported instances of the security services questioning and perhaps impeding the ability of review bodies to coordinate their review functions.
This bill gives CSIS a freer hand and will necessarily deepen its relationship with CSE and foreign agencies. The bill should also include provisions that augment the authority of the review bodies to keep tabs.
Again, I propose language in the annex that addresses this concern.
Let me end with a related plea. CSIS' review body, SIRC, is suffering the effects of neglect. Its membership has been below strength for a considerable period of time. It has been rocked by scandal at the leadership level, and its level of resourcing has not kept pace with growth in the operational budget of CSIS. For all of these reasons, I would ask this committee to move on the issue of accountability.
Let me end there.
Thank you very much.