Public Safety Committee on Oct. 17th, 2016

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

Thank you, Mr. Chair.

I want to continue on the topic of data because the Privacy Commissioner, at the first meeting that we had on this topic in Ottawa, talked about metadata and how the idea that data is not.... Many people perceive it as being the Nixon-esque clicking on the phone, and it's actually much broader than that. It speaks to the point you just raised about profiling and how much can actually be gleaned from the collection of metadata and, with all due respect, the public's lack of awareness of how much that actually entails and what's being collected. Could you speak to that point and how it fits in with the points you made in your presentation?

[Micheal Vonn]

Thank you for the question.

It was some years ago, maybe up to five years ago, at the politics of surveillance conference where I heard experts on policing in Europe say that European police were telling them that they're really uninterested in wiretaps at this moment. It might be why we've seen a decline in applications for wiretaps in Canada, simply because metadata was so much richer in terms of what it could tell them.

Metadata, again, is very attractive in a national security realm because it maps networks. Networks are what we often look to in terms of security intelligence. That's the good side for security intelligence.

The bad news is what happens when that results in the kinds of profiles that put you on, for example, the no-fly list or the slow-fly list, on the basis of evidence that you can never counter. The notion that we have access to data streams, data exhaust, data about our data, that reveals all kinds of intimate aspects of our lives that we don't even conceive of, is very much top of mind for the OPC.

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

Do you in some ways view the potential problems also have to do with some of the broad definitions that Bill C-51 had that became part of the law?

When we look at activities that undermine the security of Canada, it has that very broad definition, where it could be first nations protesting a pipeline or even the idea of promoting terrorist activities, which, again, is something that's been called far too broad. Do you consider that those two things are intrinsically linked, because not only are we making that profile, but we're also doing it with very broad definitions?

[Micheal Vonn]

Indeed, we're doing it with unprecedentedly broad definitions, allowing us to capture data that has very little to do with terrorism.

Let me just stress. There is no evidence that the kind of profiling that we're attempting to do in the national security realm is efficacious. It doesn't work.

If I could indulge you for just 30 seconds, I will explain why it doesn't work. If you are screening for something that is so vanishingly small in any given population, you will achieve a disproportionate number of false positives or false negatives. Adding data to the pile will not make the math work. It would be like screening for breast cancer from birth. You would simply get results that are not meaningful.

This is what it is to screen for terrorist activities in a country like Canada. It does not present enough of an affluent number in order to be effectively screened for. We know this because every single study that has been done has generated the same result. It doesn't work, yet we continue to compile this information in the hopes that somehow all of this math will bring us to some level of security. What it really does is increase the potential that you are going to be caught in a net that will imperil your own security.

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

Thank you for that.

Professor Whitaker, you talked about the idea that we're actually hampering, in some ways, counterterrorism efforts. There is an editorial from Messrs. Roach and Forcese in The Globe and Mail this morning, where they talk about this idea that this broad definition of promoting terrorism and criminalizing it can actually hamper counter-radicalization efforts. We're talking a lot about wanting to emulate a bit what's going on in Montreal, with the centre that exists there. As a New Democrat, we've called for the repeal, but we have to propose alternatives and find a solution, and that's something we've talked about.

Would you agree that by criminalizing an activity...? If the government is so keen on putting forward this centre of excellence for counter-radicalization...if anyone that you're going to be working with in there is basically thrown in jail, you're not going to be able to actually rehabilitate or prevent anything from going wrong in the future. I'm paraphrasing, and if they were here they might want to correct some of that, but is that vaguely something that you would agree with?

[Prof. Reg Whitaker]

I would. I haven't seen that particular piece yet.

I think that certainly, in general, there is a real concern that the counter-radicalization strategies.... Frankly, I certainly don't call myself an expert in this area, but I have looked at all this. I'm not sure that anybody has a really good answer here about what to do. Certainly, criminalizing, in effect, a whole range of opinions is not the way to win the trust of particular groups that you want to win the trust of. I think that it is, certainly, a real danger that it becomes a we-they phenomenon as opposed to law enforcement and security intelligence working with the responsible members of that community against the less responsible.

That is something we have to worry about.

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

I'd like hear, perhaps, from both of you on my last comment, which is about the importance of dealing with information sharing with foreign entities. I feel that hasn't been spoken enough about and there have been some stories lately that have come out, some ongoing issues with regard to the ministerial directives on information obtained under torture and so forth. Is this something we need to be focusing more on, and not only with what we're doing here Canada but also with Canadians abroad?

[Micheal Vonn]

Absolutely. I'm very concerned about the recent analysis that shows us that CSIS is relying very heavily on assurances when it comes their calculations about responsible information sharing and the concern that they are not doing a substantive analysis of the likelihood that those assurances will be honoured.

[Prof. Reg Whitaker]

I was actually an adviser on the Arar commission, through Justice O'Connor, and that was a pretty vivid example of what can go terribly wrong for an innocent Canadian citizen when data is shared indiscriminately and without the kinds of controls. There is, I think, a constant pressure to push against the constraints on that information sharing. I think, in all of these things, on the one hand, clearly, connecting the dots and putting information together and so on, we saw in 9/11, that the FBI and the CIA, etc., weren't talking to one another, and that trails had stopped and so on.

Information sharing is an important tool of counterterrorism. But you have to keep your eye all the time on information sharing that is carried out without the appropriate constraint and without an appropriate sense of what is actually sensible in terms of gathering data and what will actually contribute out of that data collection to effective counterterrorism.

[The Chair, Liberal, Rob Oliphant]

Thank you.

Ms. Damoff.

[Pam Damoff, Liberal, Oakville North—Burlington, ON]

Thank you both for your presentations.

Ms. Vonn, you mentioned that we need a careful, measured approach to this review that we're doing right now. Our previous witness said that doing a thorough review of the national security framework is daunting due to the breadth of the issue and also being able to gather all the information we need.

I'm wondering, do you both share that opinion?

[Micheal Vonn]

That it is daunting, I certainly do. I very much appreciate that this is a very complex field, and part of what has happened is that the field has become more complex in part because of Bill C-51, which was a radical revisioning of our national security landscape.

[Pam Damoff, Liberal, Oakville North—Burlington, ON]

But we're looking at more than just Bill C-51—

[Micheal Vonn]

Yes.

[Pam Damoff, Liberal, Oakville North—Burlington, ON]

—and at more than just what was in the green paper that was produced.

Professor Whitaker, what are your thoughts on that?

[Prof. Reg Whitaker]

That's a pretty big question.

[Pam Damoff, Liberal, Oakville North—Burlington, ON]

It's a pretty big issue.

[Prof. Reg Whitaker]

Yes, it's a pretty big issue.

I think you have to look at the bigger picture. On Bill C-51, I want to re-emphasize that my objections—and I think the objections of a lot of the critics of Bill C-51—are not just on the civil liberties, personal privacy, and all of those kinds of perfectly valid issues, but on the concern that it may actually render counterterrorism less effective. That's an important part of it.

A more holistic approach to these issues is certainly very much called for. I think it is one of the problems in the green paper that there is a bit of the continuation of the silo kind of thinking. That was what the Arar commission tried to really break out of in saying that co-operation across agencies and across boundaries and in the war on terrorism is an increasingly important aspect of how the counterterrorism is carried out and that, therefore, accountability has to be without borders as well. Also, it said that having accountability focused on the silos while the actual operations were happening on a much more integrated basis was a really bad plan. I think your committee really should be emphasizing that broader holistic approach to the problem.

[Pam Damoff, Liberal, Oakville North—Burlington, ON]

One of the things I've noticed when we have witnesses is that as you're appearing we don't have the opportunity to even touch on some of the issues that are in the security framework. One of them is cybersecurity, or as it is called in the green paper “Investigative Capabilities in a Digital World”.

Regardless of what we call it, in terms of getting the data that's out there, whether it's metadata, which is a term I don't like because I don't think Canadians really understand what that is.... I've heard in my work on the status of women committee about the need for basic subscriber information to be shared with the police, in that in order to investigate crime they need basic subscriber information, which they can't get now. I'm wondering what your thoughts are on sharing that data.

[Micheal Vonn]

It's quite unfortunate, I think, that we're having a discussion about a regular criminal law matter within the context of national security, because it does compound the complexity of our discussion vis-à-vis the green paper very extensively.

I was disappointed to see basic subscriber information reintroduced as an issue. The Spencer case at the Supreme Court of Canada told us what we need to know on this. It is critically important that we understand that this is information over which we have a reasonable expectation of privacy, and the notion that the police can't get it when they need it has been alleged for over a decade.

Privacy advocates have asked for the evidence that there is a substantive problem and have been unable to receive it—evidence that you could not get it through the appropriate channels. We hear this habitually, but again, when we ask what is the precise problem, what did it look like, did they not understand there were exigent circumstances, and how did this come about that this happened—

[Pam Damoff, Liberal, Oakville North—Burlington, ON]

That's the question we should be asking them.

[Micheal Vonn]

You should definitely be asking for the evidence, and not anecdotal. If something needs to be addressed, we need to have an evidence-based process.

[Pam Damoff, Liberal, Oakville North—Burlington, ON]

We've heard it here, and I've heard it in other places. That's why I brought it up.

When we're talking about the Privacy Commissioner and his or her ability to conduct reviews, I'm wondering if you have any proposals that would allow privacy issues to be brought into the whole framework, and in a short amount of time.

[Micheal Vonn]

I'm sorry, I'm not prepared for that question on the pop quiz.

[Pam Damoff, Liberal, Oakville North—Burlington, ON]

That's fine.