Public Safety Committee on Nov. 26th, 2014

[Dr. Christian Leuprecht]

In essence, I endorse the current amendments, however, Bill C-44 does commit one sin of omission, in my world. Many more expansive powers for security intelligence should be balanced with robust parliamentary accountability, not to be confused with oversight. My preferred model is Belgium's, where two permanent agencies headed by judges are empowered to audit not only past, but also ongoing investigations in real time and report their findings directly to a select group of security-cleared members of Parliament.

[The Chair, Conservative, Daryl Kramp]

Fine.

Thank you very much. We appreciate that and thank you for closing off as well. We will now go to the round of questioning.

We will go to Mr. Carmichael who was so short-changed the last time. It is seven minutes for you, sir, so you get the bonus.

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

Welcome to our witnesses.

Mr. Davies, I'd like to start with you, if I could.

Today, I think we have universal agreement that terrorism is a global threat and certainly last month's tragic events demonstrated Canada is not immune to that threat, whether initiated overseas or internally.

I wonder if you could tell us why it is important that CSIS have the clear mandate to conduct investigations outside Canada.

[Garth Davies]

I think we have to consider these days that we're increasingly talking about the issue of the foreign fighter problem. I think we understand they constitute an increasing theat to our country. There is evidence that while they don't engage in a significant number of acts when they come back to their countries of origin, the acts that they do engage in are increasingly problematic in levels of seriousness.

I also think what has been lost in some of the discussion of the foreign fighter issue is that by allowing these foreign fighters to go overseas, we're continuing to supply these groups, ISIS. At least in some instances, they appear to be increasingly dependent on foreign fighters to maintain their operations and their tactics. I'm focusing on one particular issue, but I think we need to be cognizant of CSIS' ability from both perspectives. It's not simply a matter of their coming back here, which is problematic, but we're providing a pipeline for these groups, and we probably need to consider very closely stemming that flow.

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

Dr. Leuprecht, would you like to briefly add to that?

[Dr. Christian Leuprecht]

If I may, I will read you one paragraph that I skipped over that I think responds to your question.

I value limited state intervention, but I also value peace, order, and good government. So when confronted with the rare and hard choice between individual freedoms, civil liberties, and privacy on the one hand, and public safety and collective security, it is within the federal government’s constitutional purview and obligation to err on the side of the latter, including foreign intelligence activity. The Canadian public gives Parliament and the security agencies that report to Canada’s political executive the benefit of the doubt.

I would go so far as saying that given the current global security environment, including the challenge of extremist travellers, the federal government has an obligation to Canadians to pass precisely the sorts of amendments that Bill C-44 proposes, and that those are in the vital interest of Canada and Canadians. Tactically, operationally, strategically, and fiscally, this is the sort of way to compensate for the limits on CSIS to engage in foreign human intelligence gathering.

In light of the current global security environment, it is vital that CSIS be able to conduct and have the capacities that are being introduced in sharing with foreign human and security intelligence so the Canadian government can realize its responsibilities.

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

Thank you very much.

Welcome, Mr. Roach.

I'd like to just step back. It's important that the CSIS Act be clarified for explicit authority for activities overseas and outside of Canada specifically. How do these amendments compare to laws governing allied nations and security agencies? That's number one.

Also, are judicial warrants required for other western nations? That's something I've heard about briefly today. As well, are they held in such high judicial authorization?

[Prof. Kent Roach]

Well, certainly not in the United Kingdom, where there's ministerial authorization, much as is available with CSEC. In the United States, the Foreign Intelligence Surveillance Court does grant warrants. I think there are some examples of a judicial warrant and there are some examples of a ministerial warrant.

Bill C-44 has decided to opt for the judicial model. I think that's probably a wise choice.

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

Some concerns we've heard are in regard to the ability of the Federal Court to issue warrants within the scope of relevant Canadian law when issuing warrants to authorize CSIS to undertake certain activities to investigate a threat to the security of Canada outside of Canada. Some may wonder why warrants would not be more appropriate coming from the nation the activities were taking place in, and clearly we've had some examples of that today.

Could you comment on why this is important? Some of those countries may not exactly have a court system that can be approached for a warrant. As well, there is the transnational nature of these investigations.

[Prof. Kent Roach]

As you've heard from Professor Forcese, and as we argued in our joint National Post piece, Parliament is being candid about the reality that some of these warrants may actually violate foreign law. It seems to me that one of the remedies for that really has to be more political and ministerial than judicial. Obviously, courts will have to grapple with this problem, but I agree with Professor Forcese, in that I think we need some ministerial oversight.

Of course, in our security environment—and this is part of the general accountability problem—it makes a lot of sense to have a whole-of-government approach to our security threat. The problem is that too often we're still remaining in silos. One of my concerns is that there might be a warrant granted under Bill C-44 that not only should the Minister of Public Safety be aware of, but that his or her cabinet colleagues in Foreign Affairs and Defence should also be aware of. I do think it's necessary for CSIS to be able to act outside of Canada, but I think the political risks of that are significant, and I think Bill C-44 could be improved by having some form of ministerial notification.

I would note that SIRC,, in its latest report, for 2013-14, has raised concerns that CSIS is not always keeping the minister informed. I agree that under a parliamentary system the responsible minister has to be aware, but I think that in the post-9/11 environment, where we have a whole-of-government approach to security, ultimately the accountability must rest at the prime ministerial level.

That was one of the reasons why, after a lot of thought and deliberation, the Air India commission recommended not what Bill C-44 is enacting, which is a privilege for CSIS, but rather a privilege for the Prime Minister's national security advisor, who the commission thought would be in the best position to determine the competing poles of promising confidentiality to get intelligence now—and that's sometimes going to be the right decision—or not promising confidentiality because we want to be able to prosecute people after. These are very difficult tensions. There's no one-size-fits-all solution.

My concern about Bill C-44 is that it may mean that CSIS makes even rational decisions at a preliminary stage of a counterterrorism investigation that could actually have repercussions and prevent us from being able to successfully prosecute extremist foreign terrorist fighters down the road.

[The Chair, Conservative, Daryl Kramp]

Thank you, Mr. Roach. Time is up, Mr. Carmichael.

Mr. Scott, for seven minutes.

[Craig Scott, NDP, Toronto—Danforth, ON]

Thank you, Mr. Chair, and thank you Professor Roach for being here.

I wanted to follow up on the conversation you were just having with Mr. Carmichael, so that everybody listening is clear. The issue, if I'm correct, is that in this intelligence context there are not the same overarching considerations or incentives for the intelligence community to take care in giving promises to sources because they're not thinking about down the road prosecution.

That's the real difference, am I correct?

[Prof. Kent Roach]

That's right, and that is partly the story of Air India. However, the Air India commission also looked at the contemporary relationship between the RCMP and CSIS, and found that there were still some problems.

Again, I'm not saying that this is a personal fault of either of those two organizations, but you have organizations that have very different mandates and sometimes those are conflicting mandates.

[Craig Scott, NDP, Toronto—Danforth, ON]

Is there a way to deal with the concern?

It's true that the court said that there doesn't exist a current, in common law, class privilege, and that's what now being accorded by Bill C-44.

Is your sense though that the courts were more or less content with the case-by-case qualified privilege? Is that what you think should remain?

[Prof. Kent Roach]

Yes. The case-by-case privilege makes a lot of sense because, certainly, CSIS will tell you this enables us to give an ironclad guarantee to all our human sources, that there will never be any identifying information. That's not quite right in law, I must say, because the “innocence at stake” exception also applies to people who become material witnesses or agents during a counterterrorism investigation.

Given the breadth of terrorism offences, it may very well be that CSIS sources may actually lose that privilege. It seems to me that, at the end of the day, this is a difficult area. Absolutes are frankly not possible. That's why I would prefer a case-by-case judicial decision and tailor it.

[Craig Scott, NDP, Toronto—Danforth, ON]

Is the case currently that under the class privilege, the innocence exception applies in any case? It would apply whether it's case-by-case or whether it's this broader class.

[Prof. Kent Roach]

Exactly.

[Craig Scott, NDP, Toronto—Danforth, ON]

To be fair to the way the government is thinking about this, I'm assuming it's not just....Sometimes the issue is, it's more important to have intel than to have prosecution. Yes, in a very operational frame. In a broader frame, I suppose we could say the decision that we have to be conscious is being made in the bill, maybe, is that it's more important to have prevention than prosecution.

If the government were to present it that way, at least we would be conscious of the trade-off. Would you agree with that?

[Prof. Kent Roach]

Yes, although I do go back to what I started with. I very much mean this and I've written this, not only for domestic but for international audiences. I think Parliament was ahead of the foreign terrorist fighter curve when they enacted the four new terrorism offences in 2013.

I support those offences and the best way to deal with the foreign terrorist problem....Sure, prevention would be great, but there needs to be denunciation and incapacitation.

I know this is not the intent of the government, but my concern is that one of the unintended consequences of this bill may make prosecutions, under those very new valuable offences, more difficult rather than less difficult.

Obviously, not all the information is out about what happened at Saint-Jean-sur-Richelieu, but we have to ask ourselves the question, why was there enough intelligence to take away that person's passport, but not enough to charge him under one of the many terrorism offences that we have in our Criminal Code?

[Craig Scott, NDP, Toronto—Danforth, ON]

I'd like to move on to constitutionality. You referred to the unconstitutional under-inclusiveness because the provisions here are limiting the right to have the identity of the human source revealed by a judicial decision after an application to prosecutions, and not to all the other contexts in which that source could be behind jeopardy for people's interests, whether it's deportation or security certificates, etc.

I clearly understand that you've told us that this is a constitutional problem for that, despite, I'd have to say, the minister telling us two days ago that this is the most constitutional law the government had ever put forward—so I appreciate that.

But there's another point. With respect to the applications either to reveal the identity because it's necessary to make a defence for the person being charged, or for this slightly more nebulous seeking an order declaring an individual's not a human source or that the identity of the—well, we'll leave it at that, that other provision. In each case the hearing is held in private and in the absence of the applicant and their counsel, unless the judge orders otherwise.

I have serious concerns about that, as does the Canadian Federation of Law Societies. I'm just wondering if that's included in your worries about constitutionality. Are you okay with that?

[Prof. Kent Roach]

I actually have been reading up on the case law there, and I have to say that I'm a little less concerned than the Federation of Law Societies—I hope they don't take away my certificate to practise law.

The Supreme Court jurisprudence on this actually does suggest that at the first level hearing, it does have to be done in camera, which means with the public not there and with the other side not there. That is because this privilege is viewed as such an absolute, or near absolute, privilege.

On further reflection, I think that proposed subsection 18.1(7), which you're referring to, would present problems if it didn't have the phrase “unless the judge orders otherwise”. I think that gives the judge enough leeway to follow the Supreme Court's instructions, which are that closed hearings without the applicant being present are sometimes necessary in order to preserve the privilege.

Once the person's identity is out, the person's identity is—

[The Chair, Conservative, Daryl Kramp]

I'm sorry, we're well past time.

We will now go to Mr. Falk, please.

[Ted Falk, Conservative, Provencher, MB]

Thank you, Mr. Chairman.

I want to thank all the witnesses for coming here today with their interventions.

Dr. Roach, I'd like to start with you. One of the first comments you made is that this proposed legislation adds new powers, and yet we've heard from the minister and also from previous witnesses that this act does not provide any new provisions. Can you perhaps expand a little further on that seeming contradiction?

[Prof. Kent Roach]

The issue of whether CSIS has extraterritorial powers is a matter that has actually been under litigation under the act before Bill C-44. Justice Blanchard said in a decision that it didn't have extraterritorial powers. Justice Mosley—and here my interpretation is a little bit different from Professor Leuprecht's—actually said that it did have extraterritorial powers. He only drew it back when he found out they were using the Five Eyes to exercise what he had authorized as extraterritorial CSIS investigations.

When I say “new powers”, I mean this a matter of legal dispute. Leave to appeal in the Justice Mosley decision is now, I understand, being sought from the Supreme Court of Canada. It is possible the Supreme Court of Canada will hear that case, we really don't know right now.

When I say “new powers” I mean black letter law, new powers that spell it out.

But you're right that the Attorney General of Canada has argued that in the existing CSIS Act there are powers for CSIS to conduct investigations outside of Canada.

[Ted Falk, Conservative, Provencher, MB]

Right, and that this act just provides more clarity to that. In general, would you agree with that?