Public Safety Committee on April 24th, 2018

[The Chair, Liberal, John McKay]

Mr. Millar, did you want to make a final comment?

[Scott Millar]

No, I just want to underscore again that we are there to preserve, and to support through advice, guidance, and services, cybersecurity for Canada, not to undermine that. We have strong relationships with the telecom sectors and other folks who work very hard to protect networks.

I don't want to give a sense that this is a breach or a new kind of thing, where we're working to undermine that security or to not work in good partnership with folks who are necessary to having a national and resilient system.

[The Chair, Liberal, John McKay]

Is there any further debate?

(Amendment negatived [See Minutes of Proceedings])

On NDP-33, we have Mr. Dubé, again.

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

Thank you, Mr. Chair.

This amendment deals with information acquired “incidentally”, which is under proposed subsection 24(4). What we're seeking to do here is to ensure that we're not retaining information. You could call it a catch-and-release principle. We understand that through the activities that CSE is engaged in, we don't want it to be illegal the minute the information comes into their possession, but we want to create a situation where there's an obligation to get rid of that information afterwards. It's allowing them to conduct their activities, but without retaining information acquired incidentally.

[Michel Picard, Liberal, Montarville, QC]

I would like to ask our panel two questions.

When we acquire foreign information and it concerns Canadians, isn't there already a procedure in place to destroy or not to retain this information?

[Scott Millar]

That's right. That information cannot be retained unless it's essential to international affairs, defence, or security.

[Michel Picard, Liberal, Montarville, QC]

So this procedure is already established.

[Scott Millar]

That's right, and that's reviewed annually by the CSE commission.

[Michel Picard, Liberal, Montarville, QC]

I will now go to my second question.

When we intercept a communication, is it possible to establish immediately, as soon as the information is captured, that one of the two people involved is Canadian?

[Scott Millar]

In terms of an interception, incidentally acquiring, ultimately, we are always looking at a foreign target. If that foreign target calls somebody it knows in Canada, we know it has called somebody in Canada, even though we're focusing on the foreign target. Again, if it is saying, “Say hi to whomever”, we don't need to keep that. If it is saying, “Let's organize a plot”, obviously, we're going to keep that.

[Michel Picard, Liberal, Montarville, QC]

But at the time you get the information, you are listening to the information and you don't have two speaker icons that this one is foreign and this one is Canadian. You have to—

[Scott Millar]

No. The way we structure the foreign intelligence collection program is to stay off those networks, and to target those areas where we're less likely to pick up on a Canadian. The way telecommunications move throughout the world, you could call me and that might route through another country before coming to me.

So yes, we don't have that a priori knowledge. Helping to understand infrastructures, how things move, collecting in accordance with intelligence priorities, and having information that lets us know if somebody is a Canadian, that helps us.

[Michel Picard, Liberal, Montarville, QC]

My conclusion is that it's not feasible, so we'll vote against that.

[The Chair, Liberal, John McKay]

Is there further debate?

(Amendment negatived [See Minutes of Proceedings])

Next is NDP-34.

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

Thank you, Chair.

This amendment would have gone with previous amendment NDP-18, which did not get adopted. It is to expand the activities that require approval by the intelligence commissioner, including cyber operations. Those are the subsections that have been added for the authorizations issue.

[The Chair, Liberal, John McKay]

Seeing no further debate, those in favour of NDP-34?

(Amendment negatived [See Minutes of Proceedings])

We're on to NDP-35.

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

Thank you, Chair.

Here we are seeking to ensure that the prohibitions from causing harm or subverting democracy, which are obviously important in the context of the activities being carried out, apply to all of CSE's mandates. This was a recommendation from Citizen Lab.

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

I'm concerned about expanding that, to be honest with you.

The activities listed already prohibit criminal negligence, bodily harm, perverting justice, so it's unclear how adding these clauses would actually change anything. I'm at a loss, and I would certainly defer to the experts, to see whether the language being proposed in NDP-35 would strengthen this bill.

[Scott Millar]

They were not added to those elements of our intelligence collection, because they were deemed unnecessary, given the nature of those activities that would be undertaken under those authorizations, as compared with the ones that would happen where, in fact, instead of intelligence collection, we would be called upon to achieve an outcome. It's that outcome element that triggers these prohibitions.

[The Chair, Liberal, John McKay]

Thank you.

Is there any debate? I'm seeing none.

(Amendment negatived [See Minutes of Proceedings])

We'll move now to NDP-36.

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

Mr. Chair, with this amendment, we want to strengthen the definition of democracy by adding the words “including in relation to any judicial proceeding or electoral process”. We want to make sure that the Communications Security Establishment will have the same limits on what it can do in a country that we don't think is a democracy. By adding these words, it's clear whether it's a democracy or not. We are making sure that we don't interfere in the activities of another country.

[The Chair, Liberal, John McKay]

Mr. Picard, you have the floor.

[Michel Picard, Liberal, Montarville, QC]

I agree with my colleague about the importance of specifying what a democracy is. However, I will make a bit of a zany comparison.

At this time of year, we have to file our tax returns, and I encourage everyone to do so. We don't say that tax returns are taxes because it is obvious that it is. The same is true when we talk about democracy. Judicial proceedings and the electoral process are democratic processes. So it isn't necessary to repeat in detail what the general term already includes. At this point, it doesn't seem necessary to repeat it in an amendment.

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

As I understand this legislation, I would suggest that it is already illegal for the CSE to participate in the activities being mentioned in this amendment, so I'm stretched to see why this amendment would be necessary. I don't know offhand, but do you know where in the act it says that the sorts of activities mentioned in this amendment are illegal?

[Scott Millar]

To get at your first statement with respect to the mention of obstructing the course of justice or democracy, we have been informed by the Department of Justice that judicial proceedings would already be covered within the ambit of that clause, so that does exist as it relates to active and defensive cyber operations in terms of the conditions around that. We would have to meet those. The element is that it adds an unnecessary precision when those kinds of things are already captured by the prohibition that's in there now.