Public Safety Committee on April 24th, 2018

[Scott Millar]

I don't know, John, whether you want to speak to the overall regime.

One thing I would say is just by way of background, obviously recent approaches to ministerial directives more broadly will speak to that. CSE is operated under a ministerial directive prohibiting us from contributing to torture or using information derived from torture—since 2012, I believe, although it might be 2011—and we've been reviewed every year on our compliance with that ministerial directive.

[John Davies, Director General, National Security Policy, Department of Public Safety and Emergency Preparedness]

I'll just add to that. As was already said, the law is already clear in the charter of rights, the Criminal Code, and international law, all of which are noted in the preamble in LIB-16, so we think the law in this area is pretty clear.

[The Chair, Liberal, John McKay]

Mr. Motz.

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

He's answered my question, Mr. Chair.

[The Chair, Liberal, John McKay]

We strayed a little close to asking officials their opinions about matters and I think they answered with facts, but the opinion part of it is usually that of their political masters as to whether we should or shouldn't have this sort of thing. Anyway, I think Mr. Calkins' and Mr. Motz's questions have been satisfied.

We'll have a recorded vote.

(Amendment negatived: nays 8; yeas 1)

On amendment NDP-42, we have Mr. Dubé.

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

Thank you, Chair.

If I may, I will read parts of this amendment, which seeks to amend proposed section 55 so that CSE is prohibited from knowingly entering into arrangements with institutions of foreign states or other entities suspected of engaging in torture and require approval of the IC to do so, and so we say:

The entities referred to in subsection (1) include entities that are institutions of foreign states or that are international organizations of states or institutions of those organizations but do not include entities that subject, or are suspected by the Establishment to subject, individuals to torture or cruel, inhuman or degrading treatment or punishment, within the meaning of the Convention Against Torture

And so forth.... The other piece that's important is, “The Minister must not approve an arrangement described in subsection (2) without the approval of the Commissioner.”

This is obviously complementary to NDP-41 in a way, where again we're seeking to maximize the legal protections and legal framework around the comportment of CSE and to ensure that we're not in a situation where we might be party to other state actors or organizations whose standards for human rights are far less great than our own.

I would also ask for a recorded vote on this, as well, please.

[The Chair, Liberal, John McKay]

Is there debate?

Ms. Dabrusin.

[Julie Dabrusin, Liberal, Toronto—Danforth, ON]

Here's the thing. In the interest of time, I do not have the ability to read in all of LIB-16. I'm not going to make us listen to it all, but I want to underline that we are going toward the same objectives here.

The reason we have adopted LIB-16 was to deal with the specific issue of torture and mistreatment, and I'll read the definition of mistreatment as it is incorporated within the act so there is no misunderstanding. Mistreatment under LIB-16 means:

torture or other cruel, inhuman or degrading treatment or punishment, within the meaning of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, signed at New York on December 10, 1984.

Mistreatment includes all of what's in LIB-16, which is that act. I want to make sure there's no misunderstanding. We have previously adopted an amendment that deals specifically with these issues and covers this ground, so I wouldn't want it to be misunderstood.

In addition, there's a question of the intelligence commissioner's role, which is to review authorizations but it's not to be reviewing CSE's arrangements with other entities, so there's a question of whether this even oversteps what we would see as the intelligence commissioner's role in this.

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

I'd like to ask the officials. China's international reputation is certainly known. Under this amendment would state-controlled companies be subject to what this amendment is suggesting? That's one part of my question.

[Scott Millar]

In terms of the interpretation around this wording, I'm not... I could guess at things in terms of how they would be interpreted. It would seem this would cover.... It's a pretty broad scope in terms of entities and institutions of foreign states.

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

The amendment to proposed subsection (3) says, “The minister must not approve an arrangement described in subsection (2) without the approval of the Commissioner”. I'm curious to know, this amendment seems to suggest that the commissioner is now in charge of the minister.

[Scott Millar]

It changes the role of the intelligence commissioner.

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

Okay. That doesn't work.

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

I want to make it clear that I do understand what LIB-16 is. It's great for definitions and preambles but at the end of the day, it concerns ministerial directives and allows wiggle room for another government, or even this government, to change those ministerial directives that are still permitted. My support is on the fact that it's a good first step, but if it's only going to be one step, with no other follow-up and no other legal framework around it, then it's not good enough. When we support things on good faith, hoping that we're going to keep going in that direction, that's one thing. When we use these things to pat ourselves on the back and say the job is complete when clearly more needs to be done with this expanding national security apparatus, and the fact that many of these situations involve state actors who—not to inappropriately paraphrase them but as Mr. Motz was alluding—have less than stellar reputations on the international stage, I think it is absolutely appropriate.

Again, I would happily put my amendment side by side with LIB-16, in front of anyone in the Canadian public, and be very comfortable with the fact that these go even further and do more than LIB-16 to protect Canadians' rights, and quite frankly, human rights, more generally speaking.

[Julie Dabrusin, Liberal, Toronto—Danforth, ON]

The important part of this amendment—and I think Mr. Motz covered it—is the fact that it goes beyond just adding prohibitions and changes the role of the intelligence commissioner fundamentally. That's an important piece to keep in mind.

We're talking about stand-alone pieces as we look through this act. We can't lose sight of the fact that there is a robust oversight system that has been put in place that covers this entire bill, C-59. We can't understate the role of NSIRA or the role of the parliamentary oversight committee that has been put into place. What fundamentally makes Bill C-59 a strong act, in my mind, is the fact that we have introduced such strong oversight. Sometimes we get lost looking at the trees, but we need to take into account that part as well, which is LIB-16 and the oversight, and the fact that this specific amendment oversteps what would be the role of the intelligence commissioner.

[The Chair, Liberal, John McKay]

Thank you.

(Amendment negatived: nays 8; yeas 1 [See Minutes of Proceedings])

We are now on NDP-43.

Mr. Dubé.

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

Thank you, Mr. Chair.

This amendment simply seeks to require the CSE to include in its annual report the number of defensive and active cyber operations conducted and the number of times that it has offered assistance to other entities. Once again, this is in the spirit of transparency. It's even more interesting because active cyber operations are a very new concept, as I said earlier. So it is important to understand the frequency of these cyber operations. It would be a great help to parliamentarians in their future work, in particular.

[Julie Dabrusin, Liberal, Toronto—Danforth, ON]

I've been talking about balance throughout the day. This goes back to the balance piece, which is that public disclosure of these statistics could reveal information to our adversaries about operations that were intended to remain covert. That would undermine CSE's operations and Canada's national security. We have to take that into account.

On the other part of that balance, CSE is already required to report to the minister on its active cyber operations and defensive cyber operations within 90 days of the expiry of ministerial authorization. A copy of these reports must be provided to the national security and intelligence review agency. That's the oversight piece. That's your balance.

I would submit that this isn't a feasible amendment.

[The Chair, Liberal, John McKay]

Is there any debate?

(Amendment negatived [See Minutes of Proceedings])

Next is CPC-21.

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

Thank you, Chair.

I move that Bill C-59, in clause 76, be amended by adding after line 35 on page 79 the following:

60.1 (1) Within the first four months after the commencement of each fiscal year, the Establishment must submit to the Minister a report on the administrative costs of meeting the requirements imposed on the Establishment under the National Security and Intelligence Review Agency Act and the National Security and Intelligence Committee of Parliamentarians Act for the preceding fiscal year.

(2) The Minister shall, within 15 days after a report is submitted under subsection (1), publish the report on its Internet site.

This was really brought forward to address issues raised by a number of national security experts with regard to, basically, a budget cut to our national security agencies. Under Bill C-59, the new reporting requirements, without new funding, effectively means a funding cut for CSIS and CSE, and could actually put Canadians at risk during heightened security threats.

With regard to Dr. Leuprecht, Mr. Boisvert, as well as Mr. Fadden, and based on other conversations that my office has had, I would propose that CSE and CSIS provide to Parliament through the minister—which is what this talks about—an actual accounting of the administrative costs with compliance, to ensure that we are informed as to how much the government has cut from national security.

[Julie Dabrusin, Liberal, Toronto—Danforth, ON]

This seems like almost a budget debate rather than going through the sections of this act, but NSIRA is essentially going to be replacing the office of CSE commissioner. It's not even putting on another layer of administrative burden necessarily, because it's in fact replacing what's already there, just elevating it as far as how it works, and I mean as to quality when I say elevating.

There shouldn't necessarily be an increase because of that replacement. CSE is already subject to existing reporting requirements as it is under its current system. It seems like having people drafting reports is, in fact, adding to an administrative burden there, so it doesn't actually serve that purpose.

[The Chair, Liberal, John McKay]

Thank you.

Mr. Berthold, welcome to the committee.

[Luc Berthold, Conservative, Mégantic—L'Érable, QC]

Thank you very much, Mr. Chair.

I am pleased to be here, dear colleagues. You work very hard in this committee. The bill you are studying is quite extensive and a number of amendments have been proposed, all in a spirit of goodwill. For someone who is beginning, I admit that it's quite difficult to dive into this all at once.

I'm a little surprised by the answer from my colleague on the importance of knowing how much the amendments and this new oversight mechanism will cost.

Ms. Dabrusin, if as you just said, it won't cost anything, we will have the opportunity to see that in the first report and to see the importance of the numbers. It's perfectly legitimate to add that to the act. We'll see how these new measures will affect the budget.

We want to improve national security, but it's important not to do the opposite by devoting the money that could be used to protect us from these threats to the surveillance of people who are working so that we don't face various threats. So I'm very much in favour of the amendment introduced by my colleague Mr. Motz.

I sincerely invite the Liberals to reconsider their thoughts on this amendment because it is legitimate and perfectly relevant when we are changing so much in a national security bill.

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

I would like to comment on Ms. Dabrusin's statement. If there are no increased costs, then it shouldn't be a problem to report them.

To the officials, currently—we don't know yet because it hasn't played out completely—NSIRA and the committee of parliamentarians can compel any information they want. There's no reporting down to NSIRA and the parliamentary committee. Is that correct?

[John Davies]

There's no reporting down. They're encouraged to co-operate and deconflict and so on. There is a way to move information that's necessary between them.