Public Safety Committee on April 23rd, 2018

[The Chair, Liberal, John McKay]

Mr. Millar.

[Scott Millar]

I'm looking at that in light of, as well, LIB-30, that looks at adding that expressed trigger around reasonable expectation of privacy, that element of when we acquire information, it could interfere with the expectation of privacy that would be included within the ministerial authorization. The only thing I would say there is that the spirit of clause 27 is certainly consistent with the charter statement around publicly available information being a low impact from a privacy perspective. I have no idea, as I'm not a legal expert, that by having that in the “publicly available information” definition, and should LIB-30 pass, whether having that in both places does an interpretation thing or not. But at the end of the day it does reflect the fact that this information has a low reasonable expectation of privacy, or that is the intent. Again, it's around ensuring the review agency will know that we are not directing our activities at Canadians when we do this stuff, so it won't really change the information collection side.

[The Chair, Liberal, John McKay]

Mr. Calkins is next.

[Blaine Calkins, Conservative, Red Deer—Lacombe, AB]

I have a question about the way the paragraph of the amendment is worded. It says “request, by subscription or by purchase. It does not include information in respect of which a Canadian or person in Canada has a reasonable expectation of privacy”.

Normally reasonableness is a test or bar that is measured by somebody sitting in the judge's chair, not somebody who is sitting in the defendant's chair or anywhere else. Am I reading this correctly that it's a reasonable test in an individual Canadian's opinion? Or is it a reasonable test before the court?

[Scott Millar]

In terms of section 8, the charter speaks to the element of reasonable expectation of privacy. So there's that charter principle and requirement. Some elements of the charter are baked into legislation and then some elements have to be confirmed by a quasi-judicial review or judicial review where section 8 of the charter in particular is engaged, and our ministerial authorization regime is constructed in that way.

[Blaine Calkins, Conservative, Red Deer—Lacombe, AB]

For the purposes of this amendment, any reasonable person reading this would suggest that this is a more limited definition, in the capacity of the information that the CSE would have. Yes or no?

[Charles Arnott, Senior Policy Advisor, National Security Policy, Public Safety Canada, Department of Public Safety and Emergency Preparedness]

I think the reasonable expectation of privacy is a term of art that is used in conjunction with section 8 of the charter. My sense is it's fairly well understood.

[Blaine Calkins, Conservative, Red Deer—Lacombe, AB]

That's fair enough.

I think the amendment as proposed—and we can discuss the intent all we want—because it's more clearly defined, puts a different bar or measurement on the information that could be reasonably expected that the Communications Security Establishment would be using for its intelligence. Would you agree with that statement?

[Scott Millar]

I'm not a charter lawyer and expert on legal interpretation. The way C-59 has been constructed is to reflect how we operate now in terms of the elements around publicly available information, when an MA would cover it, and they are what we are familiar with.

Again, by putting this language into the definition of publicly available information it coheres with the idea of what triggers a ministerial authorization, but having them in both spots, I'm not sure what that may or may not mean. It may mean nothing from legal interpretation or it may mean something.

[Blaine Calkins, Conservative, Red Deer—Lacombe, AB]

So there's no difficulty with this proposed amendment then, from an operational perspective, of how business is currently conducted?

[Scott Millar]

It`s difficult to foresee that right now.

[Blaine Calkins, Conservative, Red Deer—Lacombe, AB]

Thank you.

[The Chair, Liberal, John McKay]

Mr. Motz.

[Glen Motz, Conservative, Medicine Hat—Cardston—Warner, AB]

Thank you, Mr. Chair.

I may be splitting hairs on this but it's the last couple of words, or the second last line there: “does not include information in respect of which a Canadian or a person in Canada has a reasonable expectation of privacy”.

I'm going to throw out the scenario that we have someone visiting us from another country who arrived in Canada in whatever manner and does pose a threat to us and we have intercepted information. They're not a Canadian citizen.

As I'm reading this we aren't able to use it. Is that what I'm hearing or seeing?

[John Davies]

This is a change to a definition.

[Glen Motz, Conservative, Medicine Hat—Cardston—Warner, AB]

I can appreciate that.

[John Davies]

This is not adjusting functions or duties of CSE. They could have ministerial authorization through warrant powers and so on that would not preclude the scenario you're talking about.

[Scott Millar]

CSE does not direct our activities at anyone within Canada now. There are domestic investigatory bodies, intelligence agencies that deal with those situations under their lawful authorities, but currently we would not target anyone within Canada.

[The Chair, Liberal, John McKay]

Thank you.

I see no further debate.

(Amendment agreed to [See Minutes of Proceedings])

We're now moving on to NDP-25.

[The Chair, Liberal, John McKay]

Before I ask Mr. Dubé to speak to NDP-25, I was just shown a news report about the tragedy in Toronto. Nine dead and 16 injured. That's a pretty hard thing for the folks there.

I'll pass that along to colleagues because a number of us are from Toronto. I don't know if anyone else is interested, but for us it may be a little more personal.

Mr. Dubé, you're going to speak to NDP-25.

[Matthew Dubé, NDP, Beloeil—Chambly, QC]

With your indulgence, Chair, I think it's safe to say that even those of us who aren't from Toronto are thinking of you and are certainly hoping that the situation doesn't get any worse. Thank you for keeping us updated.

Chair, the amendment I'm proposing seeks to require that ministerial directions be published. This is something that the minister is a fan of, so we would be codifying in law something that he himself brought up during his testimony.

[The Chair, Liberal, John McKay]

Thank you.

Is there debate?

Ms. Damoff.

[Pam Damoff, Liberal, Oakville North—Burlington, ON]

Thank you, Chair.

You're right, the minister does like transparency. However, in this case, these directions often contain classified material, so publishing them could cause significant harm to Canada's national security. Therefore, we won't be supporting this.

[The Chair, Liberal, John McKay]

Mr. Dubé.

[Matthew Dubé, NDP, Beloeil—Chambly, QC]

I have just two quick points.

Again, as I said, the first is that this is something the minister is doing. We don't have to run around with access to information requests, as has been the case in the past, notably under the previous government with the ministerial directive related to information obtained under the use of torture. I'm just wondering.... I can't amend my own amendment, but while I would find it far from sufficient, if a member would propose an amendment adding wording that would protect information that “may be injurious to national security”, I would be okay with that, even though I don't think it's necessary. The minister regularly talks about directives here and directives there. We're not dealing with operational specificity, but just with broader guidelines.

Again, if someone wants to present that amendment to make it more palatable for the Liberal side, I'm willing to—I'm trying to find a new metaphor here instead of just the water in the wine—take a step back from going as far as I believe we need to go to at least get something in the bill to this effect.