Public Safety Committee on April 24th, 2018

[The Chair, Liberal, John McKay]

Is there further debate?

I'd like to recognize Madam May, so I will.

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

Thank you.

I'm required under the terms of your motion to be here to speak to my amendments, but since Pam has opened the door on the fact that these three are similar, we could talk about them as a cluster. I appreciate the chance to speak to that.

I'm really pleased—and I've seen this over and over in this committee—with the extent to which Liberal members have been listening to experts. With all due respect, I would never describe Professor Forcese as a stakeholder, but as one of the pre-eminent security and anti-terrorism law experts in Canada, he certainly played a very important role when the 41st Parliament was going through Bill C-51. He and Kent Roach both were involved in the Air India inquiry and have a lot of legal expertise. You've captured it quite well, Pam, but I want to go back to his evidence.

With all due respect to our experts here from the department, as he describes it, there's a technical problem, “the inevitability of incidental acquisition of Canadian information.” That's what we're looking at. We know that in CSE's access, it's only supposed to be looking at collecting foreign information. It's not supposed to be looking at Canadians at all, but when you're collecting metadata you just don't know. It's inevitable, as Professor Forcese says, that you will incidentally end up with Canadian information, so how do we protect Canadians from significant violations of our right to privacy and of section 8 of the charter?

I'm pleased with the language in LIB-30. I know the language in Matthew Dubé's and my amendments is stronger and covers off more of the possibilities, but certainly the legislation is stronger once any one of these three motions is accepted by the committee. That's my only comment on it. When we went through it with the drafters, we looked at the testimony from Craig Forcese and from Amnesty International and Alex Neve, and tried to satisfy the drafters and draft as closely as possible to the recommendation we had from those experts.

That's all I have at this point, Mr. Chair. Thank you for the time.

[The Chair, Liberal, John McKay]

Thank you.

Mr. Dubé.

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

Thank you, Chair.

I appreciate the points that have been made, but I would disagree that LIB-30 is the one that best encapsulates this for the simple reason that LIB-30 makes it very specific by saying, “or involve the acquisition by the Establishment of information from or through the global information infrastructure that interferes with the reasonable expectation of privacy”. On the other hand, my amendment and the Green Party amendment from Ms. May both say, “the acquisition of information in respect of which there is a reasonable expectation of privacy”.

The wording is not exactly identical, but suffice it to say that they do not limit it to information acquired from the global information infrastructure. I don't know why we would want to limit the types of information that are covered by this protection. As far as I'm concerned, a Canadian's information, where there is a reasonable expectation of privacy, should be all that information and not just information acquired in that way.

Moreover, given that we've heard numerous times both from the experts who are here and from members across the way that more specificity is not always good because it's the spirit and all these types of things, I don't know why we would suddenly be engaging in specificity if not to create loopholes that can be problematic for Canadians' rights and privacy.

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

I'd like to ask the officials a question, and I asked them a similar question yesterday. If we have a Russian spy operating in the Canadian network, does that mean that he or his activities will have a reasonable expectation of privacy? Would that be protected with this amendment?

[Scott Millar]

If he or she is located in Canada, we would not be directing our activities at that person.

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

Who would be?

[Cherie Henderson, Director General, Policy and Foreign Relations, Canadian Security Intelligence Service]

CSIS would be.

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

Are we speaking to all right now—

[The Chair, Liberal, John McKay]

Technically, we're only speaking to NDP-28, but Ms. May has expanded our definition of “technically”, as has Ms. Damoff. There is plenty of blame to go around.

Is there any further debate on this?

(Amendment negatived [See Minutes of Proceedings])

On PV-6, Ms. May, please go ahead.

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

Thank you, Mr. Chair.

In my amendment—and I know we've already opened the door to comparing amendments—unlike the LIB-30 amendment, I have language that looks at where there is the objective of “the acquisition of information in respect of which there is a reasonable expectation of privacy”. That language is crafted to be as close as possible to what Professor Forcese had recommended, which was the word “involve”. The drafters didn't feel that “involve” was a term that would work in the legislation to guide the application of a law on metadata. We're certainly moving beyond the narrow language that we currently have, which is if something violates an act of Parliament. There is a recognition in all three amendments that we need to go further to encapsulate and protect against the collection of information that was foreseeable but incidental.

I spoke to my amendment before, so I won't go on about it. I think my amendment is so close to the excellent amendment from Mr. Dubé that inexplicably just went down in defeat that I have no great hopes at this point for my amendment, but I submit it to you, eternally hopeful.

[The Chair, Liberal, John McKay]

Does anyone want to speak to Ms. May's hopefulness?

Ms. Damoff.

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

It's always a pleasure to have her here. I appreciated the correction she made on what I had said earlier—that they are experts and not stakeholders—because she is absolutely correct. They are the foremost experts on national security issues. I appreciate the correction on that one, but I still think LIB-30 is better.

[The Chair, Liberal, John McKay]

Is there any other debate?

(Amended negatived [See Minutes of Proceedings])

We are on LIB-30.

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

I don't I need to say a lot more. We've talked about it during the discussion on the other two. I think it's important that we ensure that Canadians have an expectation of privacy when they go on the Internet when there is metadata out there. I don't have anything more to say.

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

I just want to say that I've heard a lot about how LIB-30 is better, but I have yet to hear why the Liberal members of the committee feel it is appropriate to be so specific in the types of information that would be protected by their amendment, unlike the more open-ended version that both Ms. May and I proposed. I've heard it's better. I haven't heard why. I don't know if I will, but I'm stating that for the record.

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

I would like to find out from the officials if this really hampers any data collection or if it's just a superfluous word change.

[Scott Millar]

We operate this way already, that the ministerial authorization in terms of.... Again, I think I made the comment when I was here a few weeks back that this would make explicit implicitly how we would operate under ministerial authorization. When there is that specific state action of acquisition of information that's going to interfere and engage that right, that could only be collected by a ministerial authorization with the approval of the intelligence commissioner and not directed at Canadians.

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

If I'm hearing you correctly, then, sir, you're suggesting that upon further examination and review of this bill, this is what the officials came up with as amendments.

[Scott Millar]

I would say that this came up during committee consideration in terms of looking at what Mr. Forcese and others had recommended around making explicit what that implicit trigger is. We would already operate this way, so it's not inconsistent, in terms of it being put forward, with how we would operate under a ministerial authorization.

[Charles Arnott, Manager, Strategic Policy, Communications Security Establishment]

As Scott said, it was always the intent to operate in this manner. It wasn't explicitly included originally because the drafting convention is that you don't normally have to put charter obligations into a statute. We're always bound by the charter. But some folks, including Mr. Forcese, have suggested that maybe it's worth putting in explicitly. This just codifies that.

[The Chair, Liberal, John McKay]

Mr. Calkins.

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

No, I'm good.

[The Chair, Liberal, John McKay]

Is there any further debate?

(Amendment agreed to [See Minutes of Proceedings])

We'll now go to LIB-31.

Monsieur Picard.

[Michel Picard, Liberal, Montarville, QC]

Let's withdraw this one.