Public Safety Committee on Oct. 6th, 2016

[Marco Mendicino, Liberal, Eglinton—Lawrence, ON]

Witnesses, thank you for attending today and for your testimony.

I want to draw your attention to what is now section 12.1 of the CSIS Act. It's a section that has attracted a lot of public dialogue and, to be fair, a lot of criticism, to put it bluntly. The section essentially authorizes the service to undertake certain measures that could potentially infringe on the charter.

I want to verify that the provision has not been used to date.

[Michel Coulombe]

That's correct.

[Marco Mendicino, Liberal, Eglinton—Lawrence, ON]

Was the service consulted by the last administration of the need for this particular provision?

[Michel Coulombe]

Yes.

[Marco Mendicino, Liberal, Eglinton—Lawrence, ON]

Are you at liberty to say whether the service's position was that this provision was needed in order for you to fulfill your mandate?

[Malcolm Brown]

There is a convention that advice to a previous government stays with the previous government, and most governments like it, particularly when they are no longer the government, which happens from time to time.

I would encourage my colleague to—

[Marco Mendicino, Liberal, Eglinton—Lawrence, ON]

—abide by that convention?

[Malcolm Brown]

—restrain himself.

[Marco Mendicino, Liberal, Eglinton—Lawrence, ON]

Okay.

The reason I'm asking the question is that, as part of this consultation, I anticipate that we will hear from a number of witnesses who will say that the section 12.1 provision that would authorize service personnel from undertaking threat reduction activities which could infringe their charter rights is not necessary for the purposes of CSIS fulfilling its mandate.

In the spirit of anticipating those questions, I wonder whether you might comment about whether there might be improvements made to that particular section in a way that is respectful of the charter.

[Michel Coulombe]

Of course, it can't infringe upon the charter.

I've just said that we've used the threat reduction measures about two dozen times now, so I cannot sit here and say that it's not useful. We've used it.

What I can say, though, is that the way that new mandate is articulated in our act could be looked at, could be changed, or could be left as it is. Again, that's a policy decision, and that's not for me to decide. The service will work with the tools it's provided with, but the tool itself, in the current threat environment, I believe is useful.

[Marco Mendicino, Liberal, Eglinton—Lawrence, ON]

Can I put it to you another way?

Prior to the introduction of what is now section 12.1 of the CSIS Act, was there a prevailing view that CSIS was not able to fulfill its mandate?

[Michel Coulombe]

Well, it depends on what you talk about as mandate. We were able to fulfill our previous mandate, which was to investigate and advise government. What we couldn't do was reduce the threat. Threat reduction didn't have any impact on the mandate we had until Bill C-51, which was to advise government.

What was felt...and in fact if you go back to 2010, SIRC raised this issue. The whole issue of the service not being able to disrupt a threat was raised at a special Senate committee on terrorism. It had no impact on our previous mandate to advise government, but it had an impact in terms of being able to reduce the threat in the current environment, where it's fast paced, there is much more volume, technology, encryption, and we just talked about going dark. Therefore, it's an additional tool that we can use.

[Marco Mendicino, Liberal, Eglinton—Lawrence, ON]

I should be a little bit more specific. What I'm referring to are those threat reduction activities that could potentially infringe the charter. If you look at that in the two subcategories, I'm really referring to the latter. I am looking at those activities which, under subsection 12.1(3), could infringe the charter. Do you have any views about that today that you're able to share?

[Malcolm Brown]

Well, Michel may want to add a bit. The minister and Michel have both said that it's never been used. I think the question is difficult for officials to respond to. There are scenarios that could be described, and the green paper—

[Marco Mendicino, Liberal, Eglinton—Lawrence, ON]

I'm sorry, but I'm going to have to interrupt because I want to get one last question in before I lose my time.

Do you take anything from the absence of having to use those powers since the last time we asked? Is there a trend developing that perhaps you don't need them as much as you did the last time you reported, or is it just happenstance?

[Michel Coulombe]

No, the fact that we haven't used them doesn't mean that we couldn't use them.

[Marco Mendicino, Liberal, Eglinton—Lawrence, ON]

I understand. Thank you.

[The Chair, Liberal, Rob Oliphant]

Mr. Brassard.

[John Brassard, Conservative, Barrie—Innisfil, ON]

Thank you all for being here today.

Commissioner Paulson, I want to pick up on something you ended on with Mr. Généreux, and the single most important issue that you face with respect to managing threats, encryption, and going dark. The green paper speaks to lawful access in the absence of a clear law governing access to basic subscriber information—name, address, IP, for example. It has made it difficult for law enforcement to obtain it in a timely and effective manner.

Some other countries allow police and intelligence agencies to obtain basic subscriber information without going to court. In your opinion, should we be looking at amending the legislation to allow law enforcement and intelligence agencies to obtain basic subscriber information without a warrant? I'd like to hear from all three of you on whether there are any other changes within the scope of this national security framework that we're looking at that law enforcement or cyber would like to see changed or amended.

[Commr Bob Paulson]

I'll start and say absolutely, yes. I have advocated publicly and aggressively for basic subscriber information without warrant, to my peril in many instances, but I think it's vital. I think the encryption discussion has not yet fully taken place, and the understanding of the implications for privacy concerns is not well distributed. In other words, people don't have a fair understanding of what we're talking about.

To use my colleague from the FBI's analogy, it used to be that the corner of the room was dark and we were all happy with that because we knew that, say, foreign governments or espionage networks were working in this very clandestine place where we couldn't see. But that darkness has crossed into the lion's share of the room now. Traditional criminality, like terrorism, organized crime, child exploitation, and fraud, is being advanced, supported, and accelerated by the availability of these commercial encryption programs.

It's devastating to counterterrorism investigations, and it's a big challenge.

[John Brassard, Conservative, Barrie—Innisfil, ON]

Mr. Coulombe, do you have anything you'd like to add to that?

[Michel Coulombe]

The only thing I'll add is that it's important to understand that the “going dark” issue is broader than subscriber information and encryption. It's that, but it's also intercept-capable networks, and datasets sitting in a foreign country that we don't have access to but that are used by Canadians. It is important to understand that “going dark” is a complex issue. It's multifaceted, and it needs to be understood.

I totally agree that it has a huge impact on our investigations. Some of our targets encrypt the vast majority of their communications.

[John Brassard, Conservative, Barrie—Innisfil, ON]

With respect to information sharing between not just domestic agencies but foreign agencies as well, are there improvements that need to be made in that regard that we should be looking at from a legislative standpoint?

[Commr Bob Paulson]

Well, my colleague from Public Safety addressed one of the government questions about MLATs, and so on. It's a cumbersome process. It's very legalistic. It takes a lot of time. We have to do better there, frankly. I've raised that with my colleagues at Justice. It is, by its nature, cumbersome, so we need to think it through. Never mind the assessments of the practices of the foreign country with respect to your other colleagues' questions, just the legal process of getting the evidence into Canada so we can use it in court is very cumbersome.

[John Brassard, Conservative, Barrie—Innisfil, ON]

The green paper also speaks of threat reductions, but in it there is no distinction between home and abroad. How would you classify that distinction?

Mr. Coulombe, obviously that question would go to you.