Public Safety Committee on Dec. 1st, 2014

[Diane Ablonczy, Conservative, Calgary Nose Hill, AB]

I will make three points. One is that just because no other country has done it doesn't mean we can't. Two, I don't think any of us truly believes that no other country conducts security operations in other countries in possible contravention of their laws. We're just going to be more honest about it, so good for us, I would say. Three, there will be countries that would never want Canadian security agents operating in their territory and would be quite happy, if this amendment passed, to pass a law saying no Canadian or no foreign intelligence agencies can go in there, and then our courts' hands would be tied. If there's such a provision in any country—and terrorist producing countries would have a lot of incentive to put that in place—then we have to stop at their border. How does this help keep Canadians safe?

I don't think it's a very practical amendment. I don't think it serves a useful purpose.

[The Chair, Conservative, Daryl Kramp]

Mr. Easter.

[Wayne Easter, Liberal, Malpeque, PE]

I think what Diane is talking about is really an operational decision: that a judge can authorize CSIS to do what I think we all feel CSIS needs to be able to do to do its job. But that specific wording, I submit to you, Mr. Chair, is wording that is going to come back time and time again to haunt Canada in international forums, whether it's in the United Nations or wherever, to have the wording in legislation “without regard to any other law including that of any foreign state”. I can see that being used in legislation. I can see that being used time and time against us.

I agree with the fact that CSIS, and they have been doing that.... We're putting in legislation, to a great extent in accordance with the court rulings, what CSIS has already been doing. Yes, they need to operate in a foreign state, and yes, sometimes they may have to violate the law of that country, but that happens operationally in CSIS. To have those words in legislation, I submit, will haunt Canada down the road. You don't need it for them to do their job.

[The Chair, Conservative, Daryl Kramp]

The only comment the chair would make is the court has said, yes, we do.

Ms. Ablonczy.

[Diane Ablonczy, Conservative, Calgary Nose Hill, AB]

Yes, you do, because if a warrant can't be given and if there's a law in another country that says foreign intelligence operatives can't come into that country, then we're contravening their law. Why would we tie the hands of our intelligence people that way?

[Wayne Easter, Liberal, Malpeque, PE]

I disagree sincerely.

[The Chair, Conservative, Daryl Kramp]

Mr. Garrison.

[Randall Garrison, NDP, Esquimalt—Juan de Fuca, BC]

With respect, Ms. Ablonczy, I think there's a difference between saying we're going to grant the ability to ignore every law of a foreign state every time and the responsibility of a judge to take into account existing laws of other countries. That's why I'm calling it an overreach.

We're not saying that in the scenario you raised a judge might not go ahead and issue a warrant for a very good reason. But what you're saying with this wording, again, as Mr. Easter says, I think will come back to haunt us because it says that you may at all times ignore international law. What the court did is it invited Parliament to create such warrants. It did not have any such wording like this in its decision. I still regard it, as I've said, as overreach.

(Amendment negatived [See Minutes of Proceedings])

[The Chair, Conservative, Daryl Kramp]

Amendment LIB-5 Liberal and amendments PV-5 and PV-5a will be removed as they are identical.

I believe Mr. Garrison has—

[Randall Garrison, NDP, Esquimalt—Juan de Fuca, BC]

I withdraw NDP-9. We've already dealt with the same substance of this amendment.

[The Chair, Conservative, Daryl Kramp]

Okay. Thank you.

My understanding now is if the NDP motion is removed ,PV-6 and PV-6a can now be moved should you wish to.

Ms. May.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Thank you.

As a matter of fact, the bizarre procedures with which I find myself here created by 20 identical motions in committees more than a year ago don't actually allow me to move anything. My amendments are all deemed moved, as I understand it, and then I'm allowed to speak to them before they're destroyed before my very eyes. It's an exciting possibility for me that some day, one of them might pass.

In any case, this one is dealing with the same problem the previous few amendments have attempted to deal with, which is Canada's responsibilities in the world, our reputation, and our ability to ensure that in dealing with our partners around the world they see us as respecting the rule of law. This amendment was suggested by one of the witnesses who was before this committee, Professor Craig Forcese. The proposal is to have a stand-alone section that will be inserted right after proposed subsection 21(3.1). As you can see, it would be within clause 8:

(3.2) For greater certainty, a warrant under this section is required for any investigation outside of Canada that

(a) involves an investigative activity that, were it conducted inside Canada, would require a warrant by reason of the Canadian Charter of Rights and Freedoms; or

(b) may be inconsistent with international law or the law of the foreign state in which the investigative activity is conducted.

This will clarify ambiguities. It will ensure that our actions are consistent with the Charter of Rights and Freedoms when occurring overseas. I do take the point that Ms. James made earlier; that is, earlier attempts to try to fix clause 1 in my Green Party amendment 4, lumped in both inside and outside. I just want to stress that this is only for those warrants that will be put forward to a court for an investigation taking place outside Canada. It certainly will make all of clause 8, if not perfect, at least more palatable.

[The Chair, Conservative, Daryl Kramp]

Thank you very much, Ms. May.

(Amendment negatived)

Now to Mr. Garrison and NDP-10.

[Randall Garrison, NDP, Esquimalt—Juan de Fuca, BC]

Mr. Chair, what we've done now in this bill is we have created these new warrants. We've given them exceptionally broad scope by leaving in the language, “without regard to” any other foreign state's law or international law.

What this amendment proposes is if we're expanding the power of CSIS to get these warrants, there should be additional accountability to go along with that new power. What we're proposing here is that SIRC, which does this in confidence, would receive a report every year on what warrants were applied for, were they granted, what actions were taken, and what results were achieved, so that we have some prospect of seeing whether this process is working from a body independent from CSIS, who have a tendency to say sure, they did it and therefore it must be good. We'll have an in camera process in the Security Intelligence Review Committee to look at how these warrants are working and see if we're running into problems. I think it's essential if we're going to expand the powers and create this new warrant that there be oversight and accountability for the use of those warrants.

[The Chair, Conservative, Daryl Kramp]

Mr. Easter.

[Wayne Easter, Liberal, Malpeque, PE]

This is a question to Randall on this.

Are you suggesting that this information be made public, in terms of names of countries, etc., or are you suggesting that it be kept entirely in camera? Or are you saying that in terms of its reporting to the public, SIRC, in its annual report, would say that this section of the act was authorized so many times? I think for a report to be public, in terms of what countries this was authorized to be used in, would be problematic.

[Randall Garrison, NDP, Esquimalt—Juan de Fuca, BC]

It is not specified that any of this information becomes public. It's up to SIRC to decide what things are appropriate to make public and not in its annual report.

It only requires the report to the review committee, so that we have independent expertise looking at the use of warrants and any possible problems: what's the value of these; what's achieved by these. Should we keep doing these, is really the question that I'm inviting SIRC to answer.

[The Chair, Conservative, Daryl Kramp]

Mr. Carmichael.

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

Mr. Chair, as I listened to Mr. Garrison's explanation, I'm uncertain.

As you proposed reviewing these once a year, the amendment appears to be unnecessary to me. SIRC already has the authority to review all of the activities of CSIS, including its annual reporting on the number of warrants issued and the type of activity that I think you're capturing or attempting to capture in your amendment. I think it's redundant and unnecessary.

[The Chair, Conservative, Daryl Kramp]

Ms. James, and then Mr. Garrison.

[Roxanne James, Conservative, Scarborough Centre, ON]

I'm okay.

[The Chair, Conservative, Daryl Kramp]

Mr. Garrison.

[Randall Garrison, NDP, Esquimalt—Juan de Fuca, BC]

Well, I think it's the same as the amendment that the Conservatives voted against earlier, where we asked the service to provide complete and accurate information in a timely manner. It creates a legislative obligation for the director to prepare such a report for SIRC every year. That becomes the duty of the director, and therefore, it takes some of the onus off SIRC to have to ask about each one of these. They will receive a report from the director. Again, it's creating an obligation on CSIS to be accountable to SIRC in a way that facilitates the review.

[The Chair, Conservative, Daryl Kramp]

Thank you.

Mr. Carmichael, for a response back.

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

To that end, and I hear you on it, SIRC is already responsible, as the governing agency, to go and get that information and expect that it's going to be delivered at an appropriate time as they lay it out. To my thinking, it's already established. I think we're just creating redundancy in the system. As opposed to demanding that CSIS feed the information up, SIRC is already demanding of CSIS that it be provided. I think it's already covered.

(Amendment negatived [See Minutes of Proceedings])

(Clause 8 agreed to)