Public Safety Committee on March 12th, 2015

[Marc-André O'Rourke]

Not necessarily, no. It's the broadness of “anything”. Again, as much as we want to do what we can, we want to make sure that we can.

[Roxanne James, Conservative, Scarborough Centre, ON]

Okay, thank you very much.

I just wanted to go back to a couple of things that I heard from the witnesses. One is with regard to a concern raised about the information sharing act, and some of the agencies that are listed as being able to share information are not currently under some sort of a review of the process for sharing that information. I just want to bring to your attention that the Privacy Commissioner can actually choose to review any concerns related to privacy issues, so they have that ability to be able to investigate and report back on those particular agencies that might be of concern.

I think I'm correct in saying that the Auditor General can also do a robust review of any agency and provide feedback as well on that.

I just wanted to state that.

[Prof. Craig Forcese]

Can I just respond to that?

[Roxanne James, Conservative, Scarborough Centre, ON]

Sure.

[Prof. Craig Forcese]

Just to be clear, the Privacy Commissioner issued a report in 2014 that indicated that in the national security area, their function was largely ineffectual because of their inability to access secret information. In other words, they do not themselves believe they are an effective review mechanism for national security information.

I think we also see that amplified in the Privacy Commissioner's concerns about Bill C-51 issued just a few days ago.

[Roxanne James, Conservative, Scarborough Centre, ON]

With regard to the information sharing act, however, this is not information that has been obtained through secret methods. It's information that has been obtained through an agency through the regular course of their activities—for example, an activity that might raise the red flag for an individual. We're encouraging them, enabling them, to share that information. It's not mandated. Nowhere in this legislation does it say you have to supply that information or all of that information. It's certainly not that the agency that is going to pass that information on to national securities is trying to dig any deeper or obtain information that they already don't have on hand.

As well, there has been a bit of misconception that somehow there will be this widespread database of people's information collected. That is not the case. That is clearly not in this bill.

To go back a bit, I know that my colleague Mr. Falk talked a little bit about information sharing, kind of explaining a little bit about the section where there has been some concern—that for greater certainty, this does not include lawful advocacy, protest, or dissent. I just want to speak for a few moments on that. I know that's been a concern that I've heard here today from our witnesses. I heard it this morning as well, and I had the opportunity to provide some clarification on that. I think it was very helpful, but I just want to go back and be a little more specific on this.

With regard to the term “greater certainty”, it is intended to reflect the fact that these activities are not otherwise captured in the definition. It's being very clear that these activities are not captured in the definition. That goes back to the definition as outlined in the CSIS Act.

I'll just go back to my page on this—

[Prof. Craig Forcese]

Are we talking about the information sharing act or the CSIS Act?

[Roxanne James, Conservative, Scarborough Centre, ON]

It's the information sharing act, not the CSIS Act.

My colleague Mr. Falk touched on it as well, that it goes back to the definition of what constitutes the enabling or encouragement of sharing information. It has to do with activities that undermine the security of Canada. It means any activity, including any of the following activities: undermining sovereignty, security, territorial integrity of Canada, or the lives or the security of the people of Canada.

I think you said that if that was the interpretation, you were more comfortable with it, but it's based on a national scale. When we say that this will in no way, if someone who has not received a municipal permit or anything like that to do a protest.... This does not mean to capture something that is based on Criminal Code or municipal bylaws or anything like that. It's—

[Prof. Craig Forcese]

No, I appreciate that, but—

[The Chair, Conservative, Daryl Kramp]

Very briefly, Mr. Forcese. We're already over time.

[Prof. Craig Forcese]

Sure.

There are circumstances where a protest could be on a national scale. It could, on a national scale, implicate, for example, critical infrastructure.

On the presence of the word “lawful”, as was the issue in 2001, the justice ministry took the view on the word “lawful” that an unlawful act could include a wildcat strike. It could include a street protest. That was the advice given by the Department of Justice in 2001. That's why the word “lawful” was omitted in 2001 from the definition of terrorist activity.

[Roxanne James, Conservative, Scarborough Centre, ON]

But the definition that's clearly outlined here—

[The Chair, Conservative, Daryl Kramp]

Thank you very much. You're well over your time. You can certainly have another opportunity to have a few words at another time, when someone else has the floor or when you do again.

Mr. Easter, you have the floor, sir.

[Wayne Easter, Liberal, Malpeque, PE]

Thank you, Mr. Chair.

Thank you to all the witnesses.

Mr. O'Rourke, I have just a quick question for you. I'm not sure if we're having other people from the airline industry on the witness list or not. This really relates to the question that Roxanne raised as well on proposed section 9, where the minister can basically direct an air carrier to do anything “that in the Minister’s opinion”....

You're concerned about that. Do you have a proposed amendment you could provide the committee, or could you at a later date provide an amendment to limit that or narrow that focus on what a minister can do?

[Marc-André O'Rourke]

In fairness to the section, it does provide two examples of what the minister may do, and it is my understanding that those examples should be, most of if not all the time, sufficient.

I welcome the opportunity; we could maybe come back to propose some specific language.

[Wayne Easter, Liberal, Malpeque, PE]

You could send the clerk a letter on how you would narrow it to satisfy the airline industry that it is not too broad. We'd certainly welcome it on this side. I'm not sure that the government is going to allow amendments.

[Marc-André O'Rourke]

I want to make the point that we're trying to help the government here. We don't want to be in a situation in which the government contemplates something, and just because it's not possible for us to do it—

[Wayne Easter, Liberal, Malpeque, PE]

In any event, if you have a recommendation, forward it to us.

[Marc-André O'Rourke]

Absolutely. Thank you.

[Wayne Easter, Liberal, Malpeque, PE]

I want as well to thank Professors Roach and Forcese for all the writing they have done on this subject, because I think it has opened up questions and has made people think. We can hardly keep up with reading it, let alone writing it; you have done a phenomenal amount of work.

There are two points that you have both raised.

Professor Roach, you said, “If everything is a security matter, [then]...nothing is.” Mr. Forcese said that this approach to everything, “risks...undermining our security”.

I take it you believe that from a national security aspect the bill is important but that it goes too far in many areas and therefore risks actually complicating security in some ways.

Can you expand on that a little further?

[Prof. Kent Roach]

Well, to go back to the security of Canada information sharing act, we recognize that the threat environment is changing. The UN Security Council has also recognized that. But we don't understand why you wouldn't plug in proposed section 2, in particular the terrorism-related mandate to section 2, with respect to information sharing.

Aspects of part 1 almost seem deliberately provocative, because it has such a broad definition. Concerning the exemption for lawful protest, as Professor Forcese said, we've been here. We had that debate in 2001, and Parliament recognized, after the bill had been introduced, that it was best to take the word “lawful”—the qualifier—out. I look at that and at the lack of regard for the Air India commission's recommendation about mandatory information sharing. When you think about how that is going to interact with Bill C-44, it means that any human source to whom CSIS has promised confidentiality will have an absolute veto about being a crown witness in a terrorism prosecution.

Professor Forcese and I are actually, on some of these matters, quite “law and order”. We think that those offences that Parliament enacted in 2013 are quite valuable offences, and we see the prosecutions that are ongoing in a number of our cities now. But we worry that the combination of Bill C-51 and Bill C-44 and all the new powers and privileges that they give to CSIS could have the unintended effect of making prosecutions more difficult and also affecting CSIS-RCMP cooperation. I say this as a person who for four years was director of research legal studies of the Air India commission.

[Wayne Easter, Liberal, Malpeque, PE]

Let me interrupt, Mr. Roach. I want to get to one other question on oversight. I have read that argument, and I think it certainly makes some sense on oversight or review, whatever you want to call it.

Earlier today we had both Ron Atkey and Barry Cooper testify that enhanced parliamentary oversight should be brought into place. You mentioned it as well. I wonder, from your two perspectives, as a super-SIRC or whatever it might be, whether it should include parliamentarians able to see classified information and be sworn to secrecy. And should it be broad and across the spectrum of all our international security agencies?

Second, if you have time, we had two ministers yesterday try to argue that judicial warrants are actually oversight. I believe they are no such thing.

Can you comment on those points?

[Prof. Craig Forcese]

On the issue of a committee of parliamentarians, yes to your questions. There should be such a committee of parliamentarians. Yes, it should have access to secret information. It is in fact a rarity now in western democracies not to have such a thing. In relation to your question about oversight, I'm prepared to say that judicial warrants are a form of oversight, but it is a limited oversight, and once the warrant walks out the door, there is not a feedback mechanism.

[The Chair, Conservative, Daryl Kramp]

Thank you very much, Mr. Forcese.

Thank you, Mr Easter.

We will now go to the second round.

Ms. Doré Lefebvre, you have the floor for five minutes.

[Rosane Doré Lefebvre, NDP, Alfred-Pellan, QC]

Thank you very much, Mr. Chair.

I would like to thank our witnesses for their extremely important testimony on Bill C-51.

Mr. Forcese and Mr. Roach, I will start with you.

My questions are on the new powers being granted to the Canadian Security Intelligence Service, CSIS.

On Tuesday, the Minister of Public Safety and Emergency Preparedness said that most of Canada's allies were already granting to their intelligence services powers similar to those provided for in Bill C-51, and that Canada was lagging behind.

According to your own research and expertise, is it true that our closest allies, I am thinking in particular of the Five Eyes, are giving powers to their intelligence services that are similar to the ones provided for in Bill C-51?