Public Safety Committee on Oct. 19th, 2016

[Alice Klein, President, Canadian Journalists for Free Expression]

I just think it's really important to understand that some of this is going to pertain to people who are freelancers in the field. Perhaps you are thinking of mandated journalists who are working for high-profile publications, but we've had the experience of freelancers in the field, and there's no precedent for what they have begun to work on, and this intentionality is not easy to defend if they've never published before, for example.

It really has to be understood that some of this journalistic work is is being done by people who are really willing to endanger themselves and to attract the double danger without protection.

[Tom Henheffer]

To build off that very quickly, I can give you a concrete example of this. The winner of our Tara Singh Hayer Memorial Award this year is a man by the name of Ali Mustafa. He was a Canadian citizen who was killed in Syria. He was one of the only photojournalists in Aleppo at the time the war broke out, and he was directly embedded with a number of different organizations, some of whom now, as the reality on the ground has changed, would be connected with ISIS or other extremist groups. But when he was on the ground, he was simply telling the stories of the people he met.

In terms of his intentionality, it is not beyond the realm of comprehension that he could be charged because he was spreading the viewpoints of these people simply as an objective observer on the ground. He was killed as a result of that, and he's getting our award this year. That's a type of situation that is overbroad and grey, and there are some real issues that come into it because journalism is a muddy job.

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

Thanks for that.

[The Chair, Liberal, Rob Oliphant]

Thank you very much.

We're going to take a brief pause while we change panels for our second hour.

[The Chair, Liberal, Rob Oliphant]

Thank you.

We're going to continue now with our second panel of the day.

Just a reminder to the public who have joined us, in between or during that first meeting, that this testimony at these hearings in the afternoon is coming from our invited guests. In the evening,everyone is invited. If you would like to speak, you will be given time at the 5:30 to 7:30 meeting of our standing committee.

I just want to clarify one thing that I didn't clarify in the first hour. These consultations are separate from, but not unrelated to, the government consultations on national security, so there are parallel operations. Parliament is separate from the executive branch of government.

The government has issued a green paper and is engaged in ministerial consultations. We have access, obviously, to that green paper and we are going to make comment on it, but we are not limited to the contents of that green paper in our consultations and we're not bound to report at any particular time. However, we do want to be helpful to the minister and the government in helping them understand the views of Canadians with respect to the national security framework. That is the purpose of these hearings.

This afternoon we continue on the panel. Thank you, Senator Segal. Ron Levi and Carmen Cheung are coming to us from the Munk School of Global Affairs.

We'll begin with you two and you're sharing 10 minutes, and then we'll go to Mr. Segal.

[Professor Ron Levi, George Ignatieff Chair of Peace and Conflict Studies, Munk School of Global Affairs, University of Toronto, As an Individual]

Thank you.

Chair and members of the committee, I want to thank you for this invitation to discuss Canada's national security framework and with it the 2016 “Our Security, Our Rights” green paper.

My brief remarks today focus on the importance of developing an evidence-based and “lessons learned” approach to national security. I'll be sharing my time with Ms. Carmen Cheung. Both of us are in the Munk School of Global Affairs in the University of Toronto, at the school's global justice lab. Each of us will be covering different aspects of the green paper. I will be discussing countering radicalization to violence. Ms. Cheung will be discussing accountability and secrecy. Our core message to you is the same: an evidence-based approach to national security should learn from local research, the experience of other countries, and evidence and experience in cognate fields, including crime and criminal justice.

The green paper identifies terrorism as criminal violence. It concerns itself with radicalization to violence. It has a theory of who might be at risk of becoming radicalized and with it a view of the process of violent radicalization. The green paper outlines the importance of working with communities, engaging youth and women, and promoting positive narratives as alternatives to violent, radical ones. It emphasizes fostering research on prevention and countering radicalization to violence.

I commend the Government of Canada on this approach. My own work has benefited from Kanishka project funding, and I'm pleased to serve on the executive committee of the Canadian Network for Research on Terrorism, Security and Society.

There are challenges to pursuing research in this field. Research approaches that one might pursue in other fields to build a policy-relevant knowledge base, such as experimental designs in criminology, are untenable here. Similarly, while any one case of terrorism is too many, the number of incidents does not always allow for the same sort of research we see elsewhere. Research access, methodology, and ethical review are more difficult in the context of radicalization to violence than in other areas. Yet there is a growing landscape of new research on radicalization and on terrorism, which, when combined with existing research on crime and criminal justice, provides us with an evidence base from which to work.

In the interest of time, I want to highlight just two sets of studies for the committee, since they relate directly to the green paper's theory of radicalization to violence, the importance of communities, and positive narratives.

The first is what we know about relationships between policing, community engagement, and embedded norms within communities. Research in the U.K. and the U.S. shows that when people judge law enforcement as fair and not singling out some groups, police are seen as more legitimate and residents are more likely to co-operate with the police and comply with legal rules. Social psychologists call this “procedural justice”, and this emphasis on neutrality, respect, and trust predicts the likelihood of co-operating with the police, both with respect to crime and with respect to terror.

In contrast, the political views of individuals who may be co-operating have limited impact. Research in Toronto suggests that the availability of counter-narratives to terrorism among youth is chilled. Existing counter-narratives are not shared widely in the community when there is a perception that the community is under targeted surveillance. Research in Los Angeles and other U.S. cities suggests something similar. Peers who notice early signs of extremism may be too fearful to alert law enforcement or others in the community.

On the flip side, research on gangs shows that having individuals with influence from the community—family members, faith leaders, ex-offenders, and other—provides moral messages that are valuable to the community, but the community disapproves at the same time of the behaviour. This seems to work in combination with positive opportunities for employment and engagement to reduce violent crime. If we take these puzzle pieces together, there is strong evidence that trust in state institutions can productively combine with a delegitimation of violence and of shared expectations of behaviour that encourage productive pathways for youth.

The green paper recognizes that different communities have different needs and priorities. As a result, one way of building resilience is to take an approach not exclusively or even primarily lodged in a law enforcement model, but instead, taking a broad view of community safety and well-being that integrates local concerns, including the needs of youth.

We are seeing work on countering violent extremism now move towards a complex public health model, where primary, secondary, and tertiary prevention, which I can speak about in Q and A, are engaged at the same time.

In the interest of time, I won't speak now about the need to broaden our understanding of radicalization to violence based on what we know about criminal offending more broadly. I am happy to discuss that in questions, but I want to say one last thing.

My point here has not been to provide detailed evidence about each issue. It is to echo the green paper's emphasis on the importance of fostering research, adding that we must pay attention to what we know already from related fields and from research on radicalization to violence specifically.

That brings me to a final point in my last few seconds. The green paper does not currently outline performance metrics of success in prevention. I recognize the challenges of doing so, especially with prevention distributed across agencies, and unfortunately, reducing the risk of violent extremism to zero is unattainable, but this makes discrete metrics that reflect prevention efforts and build resilience ever more salient. Incorporating appropriate metrics early on, matching the government's broader commitments to measurable outcomes would provide clarity for Canadians and for government on commitments to prevention and the building of resilience.

Thank you.

[The Chair, Liberal, Rob Oliphant]

Thank you.

Ms. Cheung.

[Prof. Carmen Cheung, Professor, Munk School of Global Affairs, University of Toronto, As an Individual]

Thank you very much, Chair.

Good afternoon. It is a privilege to be here before the committee again. Thank you very much for the opportunity, and thanks again to Professor Levi for generously sharing his time.

I'd like to build a bit on his remarks and on the importance of learning from comparative experience, so let me start with something this committee already knows, which is that we cannot talk about Canada's national security framework without addressing the urgent need to update our framework for national security accountability. The international experience shows that Canada is, quite frankly, lagging behind our closest allies when it comes to comprehensive national security oversight and review.

This committee is currently studying Bill C-22, which would create a national security and intelligence committee of parliamentarians. Political accountability is critical, and the move towards formalizing legislative review is a very welcome development; but as you will have heard from others, a modernized system of national security accountability requires more. Canada's system of independent expert review exists as a patchwork, in contrast to the consolidated model of integrated review that we see in countries like Australia.

The judiciary can play an important role in both oversight and review across a range of national security activities, from authorizing warrants for intelligence activities that might implicate constitutional rights to adjudicating claims arising from government actions. However, unlike in the United States, our courts play little role in authorizing foreign surveillance that might infringe on guarantees against unreasonable search and seizure. These are just a few examples.

This is of course not to say that there is a perfect model for accountability or even a best model. If anything, the value in comparative approaches is in seeing both what works and what does not work. We need not look any further than the recommendations from the Arar inquiry, or last year's extraordinary open letter calling for immediate reform to national security accountability, a letter that was signed by former prime ministers, senior security officials, and former Supreme Court justices. We need not look any further than to our own experts to know that the current system must be improved.

This national consultation we're taking part in represents an important moment of opportunity towards creating an integrated and comprehensive accountability framework, one that can evaluate whether national security policy and practices are effective, legal, and rights-respecting. International comparisons can help us build this framework.

Done right, a robust system of accountability enhances public trust. Also important for public trust is some measure of transparency in how government goes about protecting our national security. This is made complicated by the fact that national security activities will necessarily require some secrecy. Yet I would say that the experience has shown that government sometimes tends towards reflexive secrecy. The commissioners in both the Arar and the Air India inquiries concluded that the government over-claimed secrecy during the course of those two proceedings. Chief Justice McLachlin noted, in the 2014 Harkat decision, that government tends “to exaggerate claims of national security confidentiality”.

Excessive and unnecessary secrecy is problematic for several reasons. First, as Justice O'Connor noted in his report on the Arar inquiry, when government over-claims the need for secrecy, it “promotes public suspicion and cynicism about legitimate claims...of national security confidentiality”.

Second, Canadians should be able to understand and judge for themselves the nature of the security threats facing the country and the appropriateness of our responses to those threats. Excessive secrecy makes this sort of assessment difficult for ordinary Canadians.

Third, secrecy becomes normalized. We see this in new legislation allowing the use of secret evidence in closed courts, and judicial reviews of passport denials and no-fly listings. When processes are secret it's hard to know or hard to believe that they are fundamentally fair. The open court principle is foundational to the common law, and secrecy in the courts should be exceptional. In a democratic society we should always be looking for ways to make proceedings more transparent, not less.

So how do we balance fairness and transparency with the very real need to keep national security information from falling into the wrong hands? In the case of judicial proceedings, at least, we can learn from the criminal justice experience on how to protect sensitive sources and information in an open court, on which mechanisms are best for determining where the appropriate balance lies between confidentiality and disclosure, on how to go about gathering intelligence that can be presented in a court of law. The constitutional demands for a criminal proceeding may be different from those in administrative or civil cases; however, the presumption in favour of transparency and openness should not be.

Thank you again for this opportunity and we look forward to your questions.

[The Chair, Liberal, Rob Oliphant]

Thank you very much.

The floor is yours, Senator.

[Hugh Segal, Chair, NATO Association of Canada, Massey College]

Chairman, members of the committee, thank you for the opportunity to share my perspective with you. I am going to focus primarily on Bill C-22, the parliamentary oversight proposition, because I think it's central to the premise of accountability for our national security and intelligence services.

I think the Government of Canada is to be congratulated for circulating the green paper and discussion paper on the balance between national security and individual freedom, and seeking public input on the choices that are ahead. The new legislation creating a committee of parliamentarians on national security, closely modelled on the U.K. committee of parliamentarians, is also a constructive and overdue initiative.

As Ms. Cheung pointed out, Canada has been the only major NATO partner without a legislative oversight structure for national security and intelligence operations. This is an unacceptable anomaly, an unpardonable gap in the vital linkage between the democratic institutions of the country and the agencies committed to protecting national security, which also means they're committed to protecting democracy.

While ministerial oversight has been clearly established by the enabling legislation for organizations such as the RCMP, CSIS, CBSA, Communications Security Establishment, and some retroactive but limited oversight was provided by SIRC and the Inspector General at CSE, their capacity to provide forward-looking oversight, as opposed to dealing retroactively with complaints, was severely limited.

The model suggested in C-22, namely a committee of parliamentarians, chosen by order in council, as opposed to a parliamentary committee elected by the various parties in the House and the Senate, is the right choice and mirrors the initial form of oversight chosen by the United Kingdom in the Thatcher-Major era. Moving to where the U.K. committee of parliamentarians is now, after decades of operation and a proven track record on trust and discretion, would be a serious mistake and a threat to our national security operations.

For the oversight by parliamentarians to work well, and for the agencies being overseen to, along with Canadians as a whole, benefit from the dynamic of oversight, a relationship of trust between the overseers and operating agencies must be established. A five-year automatic review of existing legislation and C-22 will allow the nature and structure of the committee of parliamentarians to be revised and updated, based on real experience with challenges met and addressed in the Canadian context.

In my judgment, the committee, as now proposed, is too small. It should be no fewer than 12 parliamentarians, with eight from the House of Commons and four from the upper chamber. The new mix of independent senators being appointed affords the government a refreshing opportunity to have senators with previous experience in military, police, security, anti-terrorist, foreign affairs, defence, and civil liberties work considered by the government for service on the committee of parliamentarians.

The preamble of C-22 should specify that the oversight mission of the committee of parliamentarians is to be carried out in a fashion that does not favour partisan advantage or preference. Rather, it should promote the protection of Canadian civil liberties, essential freedoms and privacy, consistent with the Constitution and Charter of Rights and Freedoms, increasing the national security and safety of the residents of Canada.

It would be preferable for all security agencies to fall under the oversight of the same committee of parliamentarians. Separate civilian oversight for the RCMP, or none to speak of for CBSA, is not appropriate and it's unacceptable.

A larger committee of parliamentarians, with the freedom to appoint the head of the research, monitoring, and oversight operational structure underpinning its work, makes the most sense. Members of the structure serving the committee should not be appointed by the Clerk of the Privy Council, or any of the operational deputies in the relevant line departments. The organization serving the committee should be answerable to the committee, with fixed terms of service, appropriate security clearance protocols, and measured experience.

The clerk of the committee should have the rank and status of a senior deputy minister, with an order in council appointment of no less than five years, renewable by mutual consent. The operations of Canada's military intelligence should also be under the oversight of the committee of parliamentarians. The operational and committee support structure for the committee, and its meeting place in camera or otherwise, should be away from Parliament Hill in an appropriately secure facility, not adjacent to CSIS, the RCMP, CBSA, or DND.

Its enabling legislation should protect them from ATI requests, except as they might relate to expenditures, costs, travel, and normative operational administration.

Matters for review, testimony heard in camera, negotiations on agenda with the appearing agencies, reporting relationships between operational agencies and committee and/or its operational support unit should, by statute, be exempt from ATI inquiries.

The committee chair, already designated by the government, should have a Senate vice-chair of the committee. Unlike the requirement in the legislation with respect to the House of Commons, Senate members of the committee or a Senate vice-chair, who should also be designated by the government, need not be members of a partisan group in the upper chamber. Any federal body established in this area by statute—for example, on anti-terrorist missions such as deradicalization and community outreach—should be under the oversight of this committee of parliamentarians.

I'd be delighted to take any questions on this or other matters before the committee.

Thank you very much.

[The Chair, Liberal, Rob Oliphant]

Thank you very much.

The first round goes to Mr. Mendicino.

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

Thank you all.

My first question is to Senator Segal.

I read with interest your written brief, which has been provided to all the committee members today. What I take away from it is that you obviously broadly support the creation of a committee of parliamentarians, but that before we bestow on it complete independence from the executive, it should continue to report to the Prime Minister until such time as it develops public confidence through experience and infrastructure and natural evolution, as has occurred in the U.K., for example. Am I right about that?

[Hugh Segal]

That is essentially correct.

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

At the same time, you also appear to be advocating for the mothballing of existing civilian oversight agencies over RCMP and over CSIS with SIRC. Is that also true?

[Hugh Segal]

I'm generally of the view that those agencies have been restricted by three or four very serious constraints, which the committee and those serving it would not necessarily have to be constrained by. The fact that SIRC has been largely retroactive in its view, based on finding out about complaints that people have lodged, in my view, is insufficient scope. That's number one. Number two is that, certainly from the work I did in the upper chamber when we interviewed people such as the inspector general for the Communications Security Establishment, the notion that a judge and small staff could in any way provide oversight for the millions of messages that agency was intercepting for a whole series of constructive purposes is, frankly, laughable.

It wasn't for any lack of effort on the judge's part or his staff's part, but the quantum for what had to be addressed was insufficient.

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

What you're really talking about is the dichotomy between real-time oversight, which would pertain to operations, and review, which is essentially the function that SIRC fulfills right now in its mandate to review CSIS. Am I right in putting it that way?

[Hugh Segal]

Yes, what I'm saying is that, for better or for worse, the British concept of oversight, when established, was not about retroactivity. It was about operational reviews that actually saw heads of agencies appear on a regular basis before the committee of parliamentarians, talk about their priorities, talk about their budgetary realities, and talk about what worried them the most. They could then both socialize those issues with the members of the committee and also take very serious questioning either in public or in camera, depending on the nature of the discussion. That was a far better way of actually providing real oversight.

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

I suppose what I'm getting at is that I see some tension between the two submissions, namely that the committee of parliamentarians needs the time to develop the public's confidence, and in that transitional period, we wouldn't want there to be a lacuna of experience, which is currently being filled by SIRC, however imperfect you may think it may be. Are you taking the position that SIRC should shut down the moment we pass C-22 and there's this new committee of parliamentarians, or do you accept that there needs to be in essence a period during which there is some overlap? That's the first question.

The second question is this. I think you stand in relative distinction in advocating for this model, because most of the other experts who have written about this do talk about drawing on the experiences of existing civilian oversight. Indeed, we've heard from some who are advocating for a super-SIRC where we have dedicated, full-time subject matter experts. One of the reasons for that is a concern, which I think is not completely without merit, that these parliamentarians who will sit on this committee have other responsibilities. I would ask you to address both of those questions, if you could.

[Hugh Segal]

Let me first of all say, part of why I'm taking that view is because it's precisely the view that was taken unanimously by the Senate anti-terrorism committee in making recommendations to the previous government about the kind of oversight agency that should be established and what its terms of reference should be.

I believed it then and I believe it now that Bill C-22 is a pretty strong approximation of what those recommendations were. For me to desert that now would be a little disingenuous.

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

So you think that if Bill C-22 passes and therefore SIRC and—

[Hugh Segal]

That's your second question. Let me answer this one.

In the way in which governments proclaim legislation, as members of the committee will know better than myself, they can proclaim different sections at different times of any law and bring it into effect. There would have to be a managed phase-out for what SIRC now does, there would have to be a managed phase-out for the civilian oversight of the RCMP, all of which could be part of a two- or three-year transition process, but in the end, there would be one committee of parliamentarians with substantial resources.

By the way, the British model sadly makes the case that if you do get asked by the Prime Minister to sit on that committee, you're not going to have a lot of time for other parliamentary duties.

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

Fair enough. I'm going to ask you to stop right there, because I want to ask my last question to Professor Levi.

You mentioned metrics for success in counter-radicalization. Could you just elaborate on that briefly? In your opinion, what would metrics look like?

[Prof. Ron Levi]

That's going to require us to think about what the process of radicalization to violence is, in and of itself. If we are able to distinguish, which the green paper suggests, radicalization from radicalization to violence, those metrics of success will have to be somewhere along the radicalization to violence line and not on the radicalization line. So what might that look like?

If we think procedural justice between police and community members is part of that process, then we can see enhanced procedural justice as a metric to look at. If we think bonds to school amongst youth, commitments to education and things such as that—which I know from my own research tend to have a preventive effect for crime—are part of that process, the metrics would be there. However, this is going to require development of an analysis of what the radicalization to violence process looks like.

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

In addition to staying in school, fulfillment of educational aspirations, and training, what about other underlying issues such as housing and access to transit? Could you take a moment or two to talk about that?

[Prof. Ron Levi]

When I referred to a public health model, thinking of primary, secondary, and tertiary approaches to dealing with the problem, that is exactly the kind of complex problem that is high stigma for the people involved and high risk for outcomes that we're thinking about.

When it comes to, in a way, development questions for communities, it is about engaging with communities to hear their needs, about what they perceive as the needs they have, and the needs for their youth. It may be employment, it may be transit, and it is fulfilling those conditions that if we have an elaborated theory of radicalization to violence I would think of as part of it and part of the metrics involved.