Public Safety Committee on April 24th, 2018

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

I'm not worried about that. I'm just worried about the ones that start as an emergency and then become “Okay, we've done the five days. Now we're asking for an extension on that” or “We'll create a new authorization.”

[Scott Millar]

Okay.

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

Those are the ones that I want to make sure get captured by a review by the commissioner.

[Scott Millar]

Emergency authorizations cannot be extended. If we were going to continue those activities, we would have to do a ministerial authorization and proceed.

The other element that I think is important to underscore is that emergency ministerial authorization, even though it's not reviewed by the intelligence commissioner, still has to meet all the tests of a ministerial authorization, so the reasonable, proportionate necessity of the privacy protections all have to be in there and will all be reviewed.

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

I'm just wondering why then we would specify that there's no review by the commissioner.

[Scott Millar]

Again, it's only there for the extenuating circumstances.

The way the intelligence commissioner's role is laid out in part 2 of the act is that it is reviewing the minister's decision before CSE can undertake the activity. If we can't undertake that activity because the intelligence commissioner is unavailable and there's an emergency occurring, then there's a challenge around that.

The role of the intelligence commissioner is to review that authorization before CSE proceeds. This allows us to proceed under extenuating circumstances without that review. To Charlie's point, that's is coherent with the structure of part 2.

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

If my amendment says “subject to review”, isn't it a review after the fact anyway? It's not real-time oversight.

[Scott Millar]

It's a different role because what the intelligence commissioner does to address engaging section 8 of the charter is to review the reasonableness of the minister's decision. It's not oversight of CSE's activities. It's either a quasi-judicial review or I, as the intelligence commissioner, would have come to the same reasonable decision that the minister made, given all the tests that are required, but it does not review CSE's activities. That is the role of NSIRA, to review for reasonableness, proportionality, privacy, and compliance with the law.

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

Hypotheticals can be a dangerous exercise in this line of work, but if the minister is going forward with authorizing an emergency action or operation and then the commissioner gets the chance to review it afterwards, before authorizing other activities that would be subject to his authorization but that may be connected, would there not be a need for that narrative to stretch out, potentially, with connected activities?

As a follow-up question to that, how long would we be waiting before NSIRA would be reviewing it? It could potentially be far down the road, depending on what's on their plate.

[Scott Millar]

I would hesitate to comment on what the intelligence commissioner or NSIRA would or wouldn't do in terms of the pace at which they would do things. It does not appear to me that there's anything in Bill C-59 right now—I'm happy to be corrected by Public Safety—that would prohibit the intelligence commissioner from seeing the emergency ministerial authorization to inform, if there were a continuation of that kind of activity under a full ministerial authorization.

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

At the end of the day, there's no harm in this amendment having the subject to review. It just codifies something that's already doable anyway.

[Scott Millar]

I think the problem is that the nature of the provision is to allow CSE to undertake the activities without review. If you leave “review” in, at the end of the day, it appears to defeat or run contrary to why the provision or the section is there in the first place.

[The Chair, Liberal, John McKay]

Thank you. Is there any further debate on NDP-40?

(Amendment negatived [See Minutes of Proceedings])

Colleagues, we've been at this for an hour and a half. We have two and a half hours to go. I'm proposing a short suspension while we do whatever.

Mr. Calkins and Mr. Motz can check on their booking, and the rest of us can do whatever we need to do for the next five minutes. We'll have a five-minute suspension.

[The Chair, Liberal, John McKay]

Colleagues, let's resume.

We have some Liberal amendments here that Mr. Dubé wants to move. I think people already are talking.

Okay, we are back in session, and we are moving LIB-33.

Mr. Spengemann.

[Sven Spengemann, Liberal, Mississauga—Lakeshore, ON]

Mr. Chair, thank you very much.

This is the amendment that will provide the completion of proposed section 44. Proposed section 44 of the proposed CSE act allows the CSE to disclose “information that could be used to identify a Canadian or a person in Canada and that has been used, analysed or retained” under a foreign intelligence ministerial authorization under proposed subsection 27(1).

What this amendment does is bring in proposed subsection 41(1) as well, which is the disclosure of Canadian identifying information obtained under an emergency ministerial authorization. Without this amendment, a situation could result in which the CSE could not disclose Canadian identifying information obtained pursuant to an emergency authorization to designated persons in the event of an emergency such as an imminent terrorist attack.

I should also add that this is a very limited five-day emergency authorization, as discussed in previous amendments, that would only be used in truly exigent circumstances and when the intelligence commissioner is incapacitated or unavailable to render an approval.

[The Chair, Liberal, John McKay]

Thank you, Mr. Spengemann.

(Amendment agreed to [See Minutes of Proceedings])

Now we have LIB-34.

[Sven Spengemann, Liberal, Mississauga—Lakeshore, ON]

Liberal amendment 34 is an amendment that provides clarifying language. It adds language to proposed subsection 45(1) to clarify that the provision only applies to the disclosure of information relating to a Canadian or a person in Canada. Proposed section 45 is meant to provide an appropriate statutory scheme that would allow the CSE to disclose information in which a Canadian or a person in Canada may have a privacy interest when necessary to protect networks from cyber-intrusions.

This section is not meant to apply to any information that does not carry that privacy interest, so the language that is being provided in the amendment is basically to clarify that point.

[The Chair, Liberal, John McKay]

Thank you, Mr. Spengemann.

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

It's a good explanation. It's fine.

[The Chair, Liberal, John McKay]

It was all in the explanation.

(Amendment agreed to [See Minutes of Proceedings])

Now we have NDP-41. We'll see whether Mr. Dubé is as persuasive as Mr. Spengemann.

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

Thank you, Mr. Chair.

Some of the amendments are sometimes more difficult to read because we get into language about subsections and deleting lines and such. However, I think this one is worth reading into the record for those following along, since the folks who follow us don't see the text of all of the amendments. That can make the process challenging.

This amendment proposes that Bill C-59, in clause 76, be amended by adding after line 5 on page 75 the following:

47.1 (1) The Establishment is prohibited from

(a) disclosing information obtained in the performance of its duties and functions under this Act, or requesting information, if the disclosure or the request would subject an individual to a danger, believed on substantial grounds to exist, of mistreatment; or

(b) using information that is believed on reasonable grounds to have been obtained as a result of mistreatment of an individual.

(2) For the purposes of this section, mistreatment means torture or 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.

[The Chair, Liberal, John McKay]

Thank you, Mr. Dubé.

Is there debate?

Ms. Dabrusin.

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

I appreciate that we're taking on this issue of making sure there is no complicity in the mistreatment of people in torture. That was something that was a key to amendment LIB-16, and we put in all of these amendments at the same time, but we do have amendment LIB-16 and to speak to what Mr. Dubé raised, if I go back to amendment LIB-16 and part of the preamble, we, in fact, do refer specifically to the conventions in that. It says:

Whereas Canada is a party to a number of international agreements that prohibit torture and other cruel, inhuman or degrading treatment or punishment, including the Geneva Conventions, the International Covenant on Civil and Political Rights and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment;

Whereas torture is an offence under the Criminal Code, which Act also prohibits aiding and abetting the commission of torture, counselling the commission of torture, conspiring to commit torture, attempting to commit torture and being an accessory after the fact to torture;

It goes on. It's a fairly long amendment. I will not read out all of amendment LIB-16.

We did adopt that, and it captures what is being sought by NDP-41. It makes very clear what the process is and how we're going to ensure that there isn't complicity. I would state that this captures the field for the purposes of what we're talking about.

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

I would respectfully disagree with my colleague. As I said, I supported the amendment because it is a nice preamble and it's good to have it in law, but at the end of the day, LIB-16 also says with regard to directions—because that's what is being talked about, ministerial directions—that:

The Governor in Council may, on the recommendation of the appropriate minister, issue written directions to any deputy head in respect of

It then goes on to enumerate the circumstances under which information may have been obtained through the use of torture.

Again, I support that amendment because I'll support any effort of the government that is moving in that direction, but clearly NDP-41 is much stronger and more explicit that there is in law no way that CSE can neither obtain nor share information that has any connection to the mistreatment of people.

I would also ask to have a recorded vote on this, please.

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

For our officials, is there any reason that any member of this committee would suspect that currently the CSE actually acts or behaves in a way that would require this legislation to be implicit or explicit?