Public Safety Committee on April 24th, 2018

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

I'd just like to add to that point. Certainly, while CSE's activities would be subject to review, it's important to remember that the commissioner is operating in real-time oversight. At least having the ability to review an extended, off-period validity for an authorization, as I said, means that, by the time the review agency gets the opportunity to deal with whatever authorization might be in question, we're talking way down the road. We're already keeping authorizations at one year, plus this extension without review, which is specifically exempt from review by the commissioner. This means that we could be talking years down the road by the time the review agency has the opportunity to review this type of authorization. To me, there is no blurred line there. I think it's pretty clear that the intelligence commissioner has a different role, to make sure that he's able to keep an eye on these types of authorizations that are clearly extending in this particular provision over a lengthy period of time.

[The Chair, Liberal, John McKay]

Any further debate?

(Amendment negatived [See Minutes of Proceedings])

We have Ms. May and PV-7.

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

Thank you, Mr. Chair.

This amendment deals with a different proposed section of the act in the case of the question of whether the decision of the minister is subject to a review by the intelligence commissioner. My amendment is similar to the one that follows from Mr. Dubé. In my amendment I delete the whole proposed subsection that specifically exempts that decision from review by the intelligence commissioner. I'm doing this based on evidence from Jean-Pierre Plouffe and from Citizen Lab at U of T. Basically, there's no reason to exempt that decision from the minister by review by the intelligence commissioner.

My approach just leaves it open. It doesn't say you must do it. It just says the exemption is deleted. It also opens up the opportunity for after-the-fact scrutiny by the intelligence commissioner, which is certainly wise.

[The Chair, Liberal, John McKay]

Thank you, Ms. May.

Prior to asking Mr. Spengemann to weigh in on this, if PV-7 is adopted, NDP-40 cannot be moved.

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

Thank you very much.

This amendment goes to the logic of an emergency authorization. In fact, these authorizations are typically only issued when the minister has reasonable grounds to believe that the time required to obtain the commissioner's approval would defeat the purpose of issuing the authorization. So this is a very quick process by which the minister says that, in the absence of the intelligence commissioner, emergency authorization should be granted. It's limited to only up to five days, and after that period has expired CSE would then require a standard commissioner-approved ministerial authorization.

Again, to subject this to review would more or less defeat the purpose of having the separate category of emergency authorizations.

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

I support my colleague's amendment. I proposed the next amendment, which, depending on the fate of this one, sought to, at the minimum, have review. My colleague's approach is just as appropriate and comes from a number of testimonies. She mentioned Mr. Plouffe. We also had Professor Wark and the Citizen Lab share the same concerns. I think that an emergency authorization without review is a pretty big loophole. When does that end? How many activities can be undertaken without review under this, on top of having extensions, as we were discussing in the previous debate, not being subject to review? There are quite a few loopholes suddenly that exist here with what the intelligence commissioner can approve and review, which is quite problematic.

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

If the effect of my amendment was as expressed by Sven, then I wouldn't be in favour of my amendment, either.

By deleting this section there is no requirement that before an emergency order can be put in place the intelligence commissioner has to weigh in. By removing the specific exemption from any review we create the opportunity to do what they do in the U.K., which is to look at it after the fact. The minister can make an emergency order. The intelligence commissioner can look at it and decide, should this emergency order continue? Was this a mistake?

As a matter of fact, our Communications Security Establishment Commissioner also suggested in his testimony that a review within five days might be appropriate. We're leaving open the door here, not requiring that the intelligence commissioner sign off before the minister can take action in an emergency. We're leaving open the door to the possibility that there be an ex-post review sometime after the emergency order. The emergency order might be something that we need to reflect upon and decide whether we can halt that action now, or whether it was appropriately taken.

By deleting the provision that exempts the decision from any review, we leave open the possibility that it will be reviewed after the fact.

[The Chair, Liberal, John McKay]

Is there any further debate?

Seeing none, those in favour of PV-7?

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

I don't know why they're not voting for me.

(Amendment negatived [See Minutes of Proceedings])

[The Chair, Liberal, John McKay]

PV-7 is defeated, in spite of the profound representations of Ms. May.

We move to NDP-40.

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

Thank you, Chair.

I don't want to repeat the great points that were just made my colleague, but this is indeed the point, understanding that national security does require quick action, at times, in emergency situations. The fact that the commissioner would be reviewing and not authorizing gives that nimbleness, if I may, to the minister in the types of situations that are being alluded to in this section of the bill. Again, if we want to talk about how we're listening to the experts and such, this is something that was raised repeatedly and is not something that would infringe in any way on the minister's ability to authorize, in emergencies, certain actions. This would simply make it reviewable after the fact, and I think, for the rest, Ms. May put it quite succinctly and appropriately.

[The Chair, Liberal, John McKay]

Thank you, Mr. Dubé.

Mr. Spengemann.

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

Chair, thank you.

It's essentially the same arguments as made under the previous amendments. I just want to add that any emergency authorization and any activities carried out by the CSE under that authorization are also reviewable under NSIRA and the national security and intelligence committee of parliamentarians as additional safeguards and backstops.

[The Chair, Liberal, John McKay]

Mr. Calkins.

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

Mr. Chair, if I may ask the officials, is it possible that an emergency authorization could somehow become part of an ongoing, annual cyber operation, in which case, if this amendment isn't accepted, we could end up having an authorization that has never been reviewed by the commissioner?

[Charles Arnott]

As much as I understand the intent as described, I think the issue from our perspective is that simply deleting that clause doesn't really make it clear what happens. It says that it's not not subject to review by the IC, but there are no matching clauses in the intelligence commissioner act to clarify exactly what the intelligence commissioner's role would be vis-à-vis these types of authorizations. It just kind of leaves that all open to interpretation. My sense is that the five-day limit would still apply, if I'm not mistaken.

I don't know if that answers your question.

[Scott Millar]

This is about a five-day limit at the end of the day—at the end of the five days.

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

This is a five-day authorization.

[Scott Millar]

You cannot continue without an authorization that has been reviewed by the intelligence commissioner.

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

That only has to happen within 30 days.

[Scott Millar]

He has 30 days to respond to the decision that the—

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

It's the five and 30 thing again, right? But it's going to happen.

What I want assurance on is that, for any authorization, whether it starts out as an ongoing annual authorization or as an emergency authorization, it's mandatory at some point in time along that chain that the commissioner will review that authorization.

[Scott Millar]

With respect to emergency authorization, it is only there for the extenuating circumstances exigent. There would not be a requirement for the commissioner to review that. He or she would certainly be free to opine on that. NSIRA themselves would review it. That would inform the intelligence commissioner in terms of going forward with any other kind of ministerial authorization.

Ultimately, the only reason this was created—and this isn't an elegant way to put it—is as a hedge. For extenuating circumstances, in an emergency, if you cannot get the intelligence commissioner—the post might be vacant or the commissioner might not be available—you need to proceed quickly.

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

I'm not worried about the five-day start and stop. It ends. It's over. It's done.

[Scott Millar]

Yes.