Public Safety Committee on Nov. 26th, 2014

[The Chair, Conservative, Daryl Kramp]

Welcome, witnesses and colleagues, to meeting number 41 of the Standing Committee on Public Safety and National Security.

Today we have, of course, two hours of testimony and statements and questions. For the first hour we'll have three witnesses. For the second hour we'll have three witnesses also. In the second hour two of them will be joining us by video conference.

I would just bring to the attention of the committee that while of course we always have opening statements of up to 10 minutes and we generally limit them to that in order to allow time for questioning, I've been advised by one of our witnesses that his opening statement would be substantially longer. He has agreed to abbreviate his statement but he would like his full statement put into the record so that it is available to the committee to be evaluated. You're not going to hear his full statement. You'll hear his abbreviated version, and of course in Q and A you can ask him about anything. His full statement will be available to the committee for observation.

[See appendix]

Mr. Scott.

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

Mr. Chair, the full statement beyond what he says will be translated first before it's made available.

[The Chair, Conservative, Daryl Kramp]

Yes, absolutely. The only other alternative would be to lengthen the statement but then, of course, if we go full length with the statement, that will mean less time for the committee to be able to discuss with our witnesses. The chair thought that would be the best way to approach that, and I thank you for your cooperation.

So, we now have with us Craig Forcese, associate professor with the faculty of law at the University of Ottawa. We also have Wesley Wark, professor at the graduate school of public and international affairs at the University of Ottawa. From the Canadian Police Association we have Tom Stamatakis, president.

Gentlemen, we will go straight to your opening statements for this first hour.

We'll start off with Mr. Forcese, please.

[Prof. Craig Forcese, Associate Professor, Faculty of Law, University of Ottawa, As an Individual]

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.

[The Chair, Conservative, Daryl Kramp]

Thank you very much, Mr. Forcese.

We will now go to Mr. Wark.

You have the floor, sir.

[Wesley Wark, Professor, Graduate School of Public and International Affairs, University of Ottawa, As an Individual]

Thank you, Mr. Chair.

Ladies and gentlemen of the committee, it's a privilege to appear before you. I'm grateful for the opportunity. I'm the long-winded witness, so I'm going to read a condensed version of my statement.

Since the 9/11 attacks, the role of intelligence in Canadian national security policy has been revolutionized. Canadian intelligence has become more significant, more powerful, better resourced, more closely aligned with allied partners, and more globalized in terms of its operations and capabilities. As an important constituent of what is called the Canadian security and intelligence community, the Canadian Security Intelligence Service, CSIS, has undergone its share of revolutionary change since 2001. CSIS has become, de facto, a hybrid service, required to deal with an ever-expanding range of threats to national security and to operate both at home and abroad.

The issues that arise with regard to Bill C-44 reflect the fact that CSIS’ functions have changed enormously since the 9/11 attacks, and also, clearly, since the passage of the original CSIS Act itself, and have changed both in terms of the kinds of threats that CSIS must operate against and in terms of its geopolitical scope.

In my specific remarks on C-44 I intend to focus on what I think are its key provisions regarding CSIS overseas operations, including those targeting Canadians. C-44 would add clarifying language to section 12 of the act, indicating that in the performance of its security intelligence function it can operate both within and outside Canada. It further adds that Federal Court judges may issue warrants to allow CSIS to collect threat-related intelligence on Canadians abroad under its section 12 powers. C-44 also stipulates, in amendments to section 21 of the CSIS Act, that CSIS may apply for warrants to conduct section 16 operations, that is, the authorized collection of foreign intelligence within Canada.

To understand the key elements of Bill C-44 we need to put these in the context of a series of judgments made by the Federal Court with regard to CSIS extraterritorial warrant applications. This history begins in 2005 and follows a winding and complex path down to the present. There is not time in these hearings to adequately summarize this history, but let me note that the current stage was set by a ruling from the Federal Court of Appeal this past summer, which has been followed by an appeal by the Attorney General to the Supreme Court that remains pending.

In his application for leave to appeal, originally dated September 29, 2014, and unsealed in November of this year, the Attorney General summarized what was at stake as follows, “This case is about how the Canadian Security Intelligence Service (CSIS) may lawfully enlist the aid of foreign security agencies in monitoring the activities of that small number“ of Canadians who leave the country to engage in activities that threaten national security.

Whatever is ultimately decided by the courts with regard to the lawful enlistment by CSIS of foreign security agencies, there are other issues of principle and practice at stake. The most important such issue concerns sovereign control. To enlist the aid of foreign security partners, such as the Five Eyes countries, in intelligence sharing is one thing. To outsource intelligence collection to a foreign partner, no matter how close and trusted an ally, is another. Outsourcing means potential loss of control of an operation, loss of control of Canadian intelligence, and loss of control over outcomes. The Security Intelligence Review Committee commented on this matter by saying:

The risk to CSIS, then, is the ability of a Five Eyes partner to act independently on CSIS-originated information. This, in turn, carries the possible risk of detention or harm of a target based on information that originated with CSIS. SIRC found that while there are clear advantages to leveraging second-party assets

—that is, the Five Eyes countries—

in the execution of this new warrant power

—the so-called CSIS 30-08 warrants—

—and, indeed, this is essential for the process to be effective—there are also clear hazards, including the lack of control over the intelligence once it has been shared.

C-44 cements the evolution of CSIS into a hybrid agency that conducts both domestic security intelligence and foreign intelligence missions. Clarification of the legal standing of CSIS in these regards poses the danger of closing off discussion of the eventual need for a separate foreign intelligence service as a better solution to Canada’s intelligence needs, and a solution much more in keeping with the practices of our close Five Eyes partners.

More important than what C-44 does is the question of what it does not do. What it does not do is provide any sensible underlying definition of the kind of hybrid agency that CSIS has now become, and it does not provide any added controls, accountability measures, cooperative frameworks, or transparency measures around increased overseas operations by CSIS.

I want to conclude with a selection of some of the issues that I see arising from Bill C-44.

Bill C-44 applies legal band-aids to the conduct of section 12 and section 16 operations, only because we persist with a wholly artificial legacy distinction between security intelligence and foreign intelligence. CSIS officials used to make the distinction between security intelligence and foreign intelligence in terms of security intelligence being what Canada needed to have and foreign intelligence being a category of knowledge that it might be nice to have.

In a post-9/11 world, I would suggest that a distinction between foreign and security intelligence is meaningless for Canada, and the fact of its meaninglessness underscores the need for a more root-and-branch redrafting of the CSIS Act itself.

Having decided to appeal to the Supreme Court, the Federal Court of Appeal's ruling with regard to the Mosley judgment on CSIS' use of extraterritorial warrants, the legislative provisions of Bill C-44 may be rendered null or may require further amendments, depending on whether the Supreme Court agrees to hear the appeal and depending on the nature of its findings.

The Federal Court of Appeal's decision was available to the government long before Bill C-44 was tabled. Why the government decided go down two separate forks of the road, with partial amendments to the CSIS Act and with an appeal to the Supreme Court, when these two forks might well bring them to a collision at a future junction, remains a mystery to me.

Bill C-44 does not add any new provisions to the CSIS Act to ensure proper consultation between the service and its minister, the Minister of Public Safety, and the two departments most likely to be impacted by expanded CSIS overseas operations—the Department of Foreign Affairs, Trade and Development and the Department of National Defence. Both of these departments engage in their own overseas intelligence and information collection through dedicated branches.

Bill C-44 does not add any statutory requirements on the part of the CSIS director to inform the minister with regard to the undertaking of sensitive overseas intelligence collection. The most recent SIRC annual report found that CSIS needed to keep the minister more fully informed about foreign operations and section 16 investigations. SIRC, in a special study of what it calls a “sensitive CSIS activity” also urged that CSIS reporting to the minister be done in a “formal and systematic manner”.

These are indications that not all is well in terms of the relationship between the service and the minister, and that ministerial accountability for CSIS may be less rigorous than it should be.

Bill C-44 does not restore the functions of the Inspector General's office, originally established in the CSIS Act in 1984, and closed down by the government as part of an omnibus budget implementation bill in 2012. The role of the Inspector General as the “eyes and ears of the Minister” might be considered all the more critical in an age of expanding CSIS overseas operations. As the former long-serving CSIS IG, Eva Plunkett stated that the abolition of the IG function was a “huge loss” for ministerial accountability.

Bill C-44 adds no new clarifying mandate or resources for the Security Intelligence Review Committee, in keeping with the statutory provisions authorising CSIS collection under section 12 abroad.

Last but not least, Bill C-44 is silent on the issue of the need for a dedicated, security-cleared parliamentary committee to ensure the ability of Parliament to properly scrutinize the activities of CSIS and related Canadian intelligence agencies in an age of globalized operations and diverse threats to national security. Such a committee of Parliament was recently proposed by Joyce Murray in her private member's Bill C-622, and has also been proposed in the Senate Bill S-220 advanced by now-retired Senators Hugh Segal and Romeo Dallaire. And Wayne Easter of this committee earlier offered the House a similar version of proposed legislation, Bill C-551. The government continues to deny the need for such a new structure, despite all-party support for just this thing in 2005.

In conclusion, Bill C-44 in my view is a poor quality band-aid. It may also be a very temporary one, depending on a future Supreme Court ruling. It is unimaginative and it fails to address the most significant legacy issues around the CSIS Act, which is now 30 years old and was created for a different threat environment, in a different technological age, and in a different climate of democratic legitimacy.

It persists with an artificial statutory distinction between security and foreign intelligence, offers insufficient clarity about CSIS powers, and offers no new measures of transparency and accountability concomitant with the new and increased role being played by CSIS.

Thank you.

[The Chair, Conservative, Daryl Kramp]

Thank you very much, Mr. Wark.

We will now go to Mr. Stamatakis, please.

[Tom Stamatakis, President, Canadian Police Association]

Thank you, Mr. Chair.

Good afternoon, members of the committee.

I appreciate having the opportunity to speak with you all today, in person for a nice change, regarding your ongoing study of Bill C-44. I'm appearing today on behalf of the Canadian Police Association, an organization that represents over 54,000 front-line civilian and sworn police personnel serving Canada's communities from coast to coast to coast.

My opening statement will be quite brief this afternoon as I hope to leave enough time to answer any questions you might have. I'm going to focus particularly on the area of the protection of human intelligence sources by law enforcement in the course of our duties. That being said, this is my first opportunity to appear here in Ottawa since the tragic events that took place on October 22, which claimed the life of Corporal Nathan Cirillo only a few blocks from where we're sitting today. He was shot by a terrorist who would have claimed even more victims if not for the courageous actions of those who are sworn to protect Canadians. To members of the Ottawa Police Service, the Royal Canadian Mounted Police, and the House of Commons Security Services, I'd like to offer my personal thanks for their efforts that day.

I raise this, particularly in the context of my appearance here today, to highlight the need to adapt our laws in this country to provide law enforcement with the necessary tools to combat the rapidly evolving threats that can very clearly cause tremendous danger here in this country. That is why we're quite pleased to speak in support of Bill C-44 here today.

One of the most important jobs that have been given to our national security services, which would certainly include both municipal and provincial police, is the gathering of the necessary intelligence that would eventually help our members prevent attacks from taking place within our communities. Gathering that intelligence, however, has never been more difficult. Technology has given criminals and terrorists rapidly evolving tools that often allow them to appear to be steps ahead of those who are working to protect Canadians. Whether it is in the national security context or dealing with local street crime, finding and protecting informants is often an invaluable tool for police when it comes to levelling the playing field and obtaining the intelligence necessary; and I firmly believe that Bill C-44 and the provisions within it that deal with the protection of sources will be a positive step in protecting Canadians.

I should also note, particularly with respect to informants, that their use often goes beyond one single case, and that fact underscores their continued importance and the reason so many efforts are taken to protect their identities. Compromising their anonymity can not only put their personal safety at risk but also jeopardize months' and sometimes years' worth of investigations and police personnel time.

Furthermore, informants would often be reluctant to step forward to provide valuable information to law enforcement without as many guarantees as possible regarding their safety and anonymity, as they are often called on to testify against those who may know them best—their former and sometimes even current colleagues, family members, and other people with whom they've developed relationships.

As I mentioned, I did want to keep my opening remarks brief as I understand members may have questions regarding the current practices within law enforcement in Canada, and I'll try to do my best to provide that information.

Once again, thank you very much for the invitation to appear today. I look forward to any questions you might have.

[The Chair, Conservative, Daryl Kramp]

Thank you very much.

Thank you, gentlemen, for giving the committee time to ask questions.

We'll start the first round of questioning for seven minutes.

Ms. James.

[Roxanne James, Conservative, Scarborough Centre, ON]

Thank you, Mr. Chair.

I'm actually going to pass my time to Mr. Norlock.

[The Chair, Conservative, Daryl Kramp]

Fine.

Mr. Norlock.

[Rick Norlock, Conservative, Northumberland—Quinte West, ON]

Thank you very much, Mr. Chair, and through you to the witnesses, thank you for attending today.

I want to especially thank Mr. Stamatakis for the statement he just made, because my question was going to be based on human resource protection as it relates to criminal investigations, and in this case, protecting Canadians through intelligence sources. One of the key components in this legislation—and there are basically only three—has to do with protecting human sources.

I'm going to go through a few things. One of the complaints we've heard is that if you know who some of the players are, why are they not arrested? Would you agree with me that sometimes during the course of investigations you let the little fish go because you're actually trying to identify a bigger fish that will lead you to a better conclusion to the problem that you already have?

[Tom Stamatakis]

That's very true, and it's a practice that occurs every day in law enforcement.

[Rick Norlock, Conservative, Northumberland—Quinte West, ON]

You may have enough to charge an individual with some offence, but that offence is probably minor in regard to what you're really after, which is the kingpin, let's say, or the person involved in the investigation.

[Tom Stamatakis]

Often it's a higher-level player, particularly when you're dealing with organized crime or some of the activity we've seen more recently in Canada with respect to the recent incidents, one of which I referred to. The focus is always on making the greatest impact with the resources we have at our disposal to prevent, to be proactive, and to protect Canadians.

[Rick Norlock, Conservative, Northumberland—Quinte West, ON]

Drawing similar conclusions between the two, because they're almost one and the same, let's say you're doing some investigations within Canada over a certain type of crime—we don't need to get into the types of crime—and, through your human resources, it might lead you to the knowledge that some of the people you need to get information from are outside your borders. In other words, they're in other countries, there are people there who you need to talk to, and they may have information that might lead you to your ultimate goal.

Does it make sense to you—and I think in your opening statement it's quite obvious—that in order to protect those human sources of information, which CSIS does not have the legislative power to protect now, this piece of legislation gives them the kinds of protections the police have when utilizing human sources?

[Tom Stamatakis]

It makes perfect sense to me from a front-line law enforcement perspective, absolutely.

[Rick Norlock, Conservative, Northumberland—Quinte West, ON]

When you looked at this piece of legislation, would I be correct in saying that this is what you personally observed?

[Tom Stamatakis]

Yes. In fact, the comment I would make is that it probably doesn't even go as far as what the police have at their disposal locally. I think this is very much a step in the right direction in terms of protecting human sources—for sure.

[Rick Norlock, Conservative, Northumberland—Quinte West, ON]

We did hear from CSIS. CSIS commented on Monday that they would possibly have to drop cases if they were forced to give up their sources, as they are often sources for other investigations as well.

Do you think it would be advisable to have CSIS unable to assist in the following through on criminal investigations and prosecutions? Or would protecting the source of multiple future prosecutions be advisable?

[Tom Stamatakis]

Very advisable, and I think I reflected that in my comments.

[Rick Norlock, Conservative, Northumberland—Quinte West, ON]

Yes, thank you. I just needed to get a couple of these questions answered, because we hear various comments from different quarters that are wondering about the need to do these things.

If we can relate the protection of human sources of information, both locally and internationally, to what currently are accepted investigative procedures in Canada, I think it helps the average citizen. Because I try, at least, to make my messaging from Parliament not so much for the people who populate here, but for the people at home, so they can understand what we're doing and appreciate what we're doing in trying to protect them, in this case from events, as you rightly mentioned, like those on October 20 and 22.

I especially want to thank you for mentioning the great men and women of the parliamentary precinct who protect us, and who protected us, but I think the Sergeant-at-Arms, who is, quite frankly, I think, our collective hero right across the board in Parliament, is especially worthy of mention.

Mr. Forcese, I noticed that you saw some things in this legislation that you think we need to continue to do. Thank you for that.

I wonder if you've given some thought to.... I guess one of the protections that people have as far as protections go under the charter is that CSIS would still have to obtain warrants with regard to receiving or obtaining information from certain sources. I'll go back to some notes I made. You thought that was appropriate, but I thought you made a couple of other suggestions in regard to those warrants.

[Prof. Craig Forcese]

Yes, the CSIS Act, in its present form, indicates that the government or CSIS needs to obtain a warrant where there are reasonable grounds to believe that such a thing is necessary, which is essentially coded language for saying where there's a charter interest in play under section 8 or to immunize and intercept what would otherwise be a crime under part VI of the Criminal Code.

The problem is that this implicit trigger and its application outside of the country is unclear because we don't know when the charter will reach outside of the country. In fact, we have a Supreme Court case called R. v. Hape suggesting that many forms of police investigations, and presumably also CSIS investigations, don't trigger the same charter implications when they take place outside of the country.

If I were now left to ponder this provision, and I was asking when I need to go to Federal Court in order to obtain a warrant, I'd have to puzzle through that, and it wouldn't necessarily be very clear.

As I noted—I had some proposed language or sample language—I was proposing that there be an emphatic instruction inserted in the bill indicating when this foreign surveillance warrant would be required. As CSIS, when would you be obliged to go to court to get it?

[Rick Norlock, Conservative, Northumberland—Quinte West, ON]

What you're basically saying is that it should be more prescriptive.

[Prof. Craig Forcese]

I think it should be clearer; it should be more definite. Yes, absolutely.