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.
Professor, Faculty of Law, University of Toronto, As an Individual
Yes, I would.
Conservative
Ted Falk Conservative Provencher, MB
You've also referenced that there could be implied confidentiality. Is that something we could inadverently do or unintentionally provide for someone?
Conservative
Ted Falk Conservative Provencher, MB
Can you expand a little bit on how we might address that or why you believe that to be the case?
Professor, Faculty of Law, University of Toronto, As an Individual
Sure.
Well, with reference in clause 2 of the bill, I can understand why “a promise of confidentiality“ was chosen. That is used in the jurisprudence. But in the 2013 Supreme Court of Canada case called R. v. Named Person B, the Supreme Court said it could also be an implied promise of confidentiality. My worry is that, if you're going ahead with a CSIS privilege, perhaps you should revisit that language, and talk about an explicit promise of anonymity.
My concern is that when CSIS agents go to talk to someone, it's almost always confidential. My concern is that this privilege will apply to virtually every human source that CSIS interacts with. I think it is important for there to be legislative guidance that narrows that privilege, because of the potential downstream effect of the privilege on the prosecution process.
I would also add that it might be wise to require some form of review or ministerial oversight about how this privilege works out if it is enacted. Because, as I said, rightly or wrongly, after four years of deliberation, the Air India commission certainly looked at this proposal, but on balance, rejected it because of concern that this might hinder terrorism prosecutions.
Conservative
Ted Falk Conservative Provencher, MB
Good. Thank you.
Mr. Davies, I have a question for you. Why do you think it's important for the CSIS Act to be clarified to give explicit authority to conduct investigations outside of Canada?
Associate Professor, Simon Fraser University, As an Individual
I think that right now the legal grey area that they're operating in is probably holding them back from the kinds of things that we would need from them in terms of gathering information. I suspect that it is limiting what they feel they can do. They're operating with one arm tied behind their back. I think the clarification is required for them to know they'll be safe in terms of the information that they're collecting.
Conservative
Ted Falk Conservative Provencher, MB
Good. Thank you.
Mr. Leuprecht, you've indicated in your interventions that you feel your personal rights and freedoms would take a second seat to national security issues. Could you expand a little further on how convinced you are of that statement?
Associate Dean and Associate Professor, Department of Political Science, Royal Military College of Canada, As an Individual
The precise nature of the statement was that I'm concerned that, when hard-pressed, we have a tendency in Canada to err on the side of individual freedoms, civil liberties, and privacy rather than on the side of public safety and security for Canadian society as a whole.
I would suggest that some of our allies have perhaps struck what I might term a bit more of a mature balance, because they have had to live with the phenomenon of terrorism much longer than we have. We need to recognize that there are certain collective obligations that the government has, and that, given the nature of the security environment in which we live, when forced to make a choice between the two, I would err on the side of peace, order, and good government rather than the side of necessarily protecting itemized individual civil rights and privileges if, as a result, the life, liberty, equality, and justice of Canadians and Canadian society as a whole may be called into question.
Conservative
Ted Falk Conservative Provencher, MB
This bill says that when CSIS or CSIS agents operate on an international level, they must operate within the scope of Canadian laws. Do you think this is an appropriate balance?
Associate Dean and Associate Professor, Department of Political Science, Royal Military College of Canada, As an Individual
I do indeed. Teaching at the Royal Military College, this is the framework in which the Canadian Forces are deployed. I think we have ample examples, not just of the Canadian Forces, but, of other government departments, conducting operations abroad, and doing so within the legal and constitutional framework that Canada applies and expects of those organizations.
Liberal
Sean Casey Liberal Charlottetown, PE
Thank you, Mr. Chair.
I'd like to start with you, Professor Leuprecht. At the end of your remarks you indicated that—and I'm paraphrasing here—the biggest weakness or the biggest error is an error of omission with respect to accountability—but not oversight, I think—and you cited the Belgian model as the gold standard. Could you talk a little more about the Belgian model and highlight the differences between what we have here and what we would need to do to get to what you think is the optimum model?
Associate Dean and Associate Professor, Department of Political Science, Royal Military College of Canada, As an Individual
The Belgian model came out of a catastrophic failure in the Dutroux case. I would suggest that one of the reasons we would want to look at accountability is precisely to avoid any risk of such catastrophic failure of a security system. I won't go into all the details, but I would be happy to provide the committee with the contact information of the senior judge who heads the organization in Belgium, who I know quite well. The key about the organization of Belgium is that the accountability is provided through a mechanism that is paid for by Parliament, and the mechanism is directly accountable to Parliament and not to the political executive. It has a staff of about 100 people. The key element of their accountability capacity is that they do not provide accountability just for files that are closed, but they have the ability to see files of any active investigation that is being carried out within the Belgian security framework. So it doesn't just provide accountability after the fact; it provides accountability in the actual process of investigations.
The challenge, I think, that we currently have in Canada is that we have annual reviews and after-the-fact accountability, but we don't have a mechanism that provides ongoing accountability in as effective a manner as we could have. We have a mechanism that reports to the political executive rather than being accountable to Parliament. The major change that would require is for members of Parliament to be security-cleared to have privileged access to the information they are being provided, and this would be a significant step for Canadian Parliament to take.
Liberal
Sean Casey Liberal Charlottetown, PE
But you feel it would be one that would represent the best practices internationally.
Associate Dean and Associate Professor, Department of Political Science, Royal Military College of Canada, As an Individual
I do think the Belgian model is perhaps one of the most effective in terms of the accountability it provides both in terms of the tack in operational accountability for the organizations in question and in the way that accountability is reported to the legislative branch.
Liberal
Sean Casey Liberal Charlottetown, PE
Thank you.
Professor Davies—and perhaps I'll get Professor Roach to chime in on this as well—yesterday the committee received a letter from the Privacy Commissioner of Canada. The Privacy Commissioner expressed concerns related to privacy issues, and the means by which information is gathered related to the extraterritoriality provisions of the bill. He also commented specifically on the adequacy of existing safeguards to ensure against the risk of such violations, including the risk of torture.
Could I have Professor Davies and Professor Roach offer any comments they wish on the concerns expressed by the Privacy Commissioner of Canada to the committee yesterday?
Conservative
Diane Ablonczy Conservative Calgary Nose Hill, AB
On a point of order, at our last meeting we had a discussion about the fact that the Privacy Commissioner put forward certain views but declined to attend to answer questions on the views. I don't know whether we made a decision about whether to deal with his views absent his appearance before the committee. Can you just clarify that for me?
November 26th, 2014 / 5:25 p.m.
Conservative
The Chair Conservative Daryl Kramp
The chair does recall that the Privacy Commissioner did not appear.
Mr. Clerk, was he invited?
The Clerk of the Committee Mr. Leif-Erik Aune
The Privacy Commissioner was not invited to appear before the committee for its study of Bill C-44.
Conservative
Conservative
The Chair Conservative Daryl Kramp
What I'm suggesting, then, is that obviously the Privacy Commissioner was not invited as a witness prior to...; however, he did send a letter, and the letter was received by the committee, but it has not been authorized to accept it as evidence, other than as having been received by the committee. It would take a motion by committee to establish it as evidence within the committee; otherwise, it is there for the committee's personal use.
Conservative
Conservative
The Chair Conservative Daryl Kramp
There has been an objection raised. It would be up to this committee now to decide whether or not they wish to.... It is in order unless an objection is made. If there is an objection, the objection can be sustained based on whether or not it's in order.
Conservative
Diane Ablonczy Conservative Calgary Nose Hill, AB
We're always happy to have information, but does that mean anybody can write a letter to the committee and then we have to consider it? That could get a bit messy, I would think.