Public Safety Committee on Oct. 20th, 2016

[Dianne Lynn Watts, Conservative, South Surrey—White Rock, BC]

Okay, and what interaction would they have with the parliamentary committee of oversight?

[Paul Cavalluzzo]

That would be a question of practicality. I think what should happen is that they meet at least once or twice a year. There should be an interrelationship there, because you're going to be involved in the policy-making in respect of CSIS and these other bodies, and the on-ground experience that they have should be shared with you, so I would think there should be a number of meetings held during during the year.

[Dianne Lynn Watts, Conservative, South Surrey—White Rock, BC]

Back to your point there, if the goal is to develop our public policy without an interaction with the independent body that's doing a significant review, then there's such a huge gap, you're missing the whole point of setting up the whole committee structure.

[Paul Cavalluzzo]

That's right. You're going to have a wealth of experience there, and you should draw on it.

[Dianne Lynn Watts, Conservative, South Surrey—White Rock, BC]

Okay.

[Larry Miller, Conservative, Bruce—Grey—Owen Sound, ON]

Ms. Ataogul, when you talked earlier you touched on Bill C-51 and what have you. One of the concerns I have there is that no legislation, it doesn't matter what, is ever perfect. I believe it's put in with the best of intentions, and even Mr. Cavalluzzo pointed out some faults with Bill C-22. In order to give police or authorities the power to detain someone who they have a pretty good idea could commit terrorism, if the clauses in Bill C-51 aren't perfect in your belief, what could be there to still give police the powers to do what they have to do?

[Sibel Ataogul]

I want to be clear, I don't think my threshold is protection. My threshold is the Canadian charter, and that allows the legislator to draft in a number of fashions. Unfortunately, here I think the drafting is pretty clearly going against it.

There are already provisions in the Criminal Code that allow for preventive arrest. I'm not here to say whether they are okay or not okay, but they're already there, and they allow for preventive arrest if the agent believes that the person will commit a crime, and they have to get a mandate from a judge to do so unless they're unable to do so. That's already in place.

Now what we've done is change that threshold. Now I'm translating freely because I don't have the legislation in English in front of me, but it's if the person may commit.... That to me is not about protection; that is really too large. I think it's important to give law enforcement a clear indication of what they can and cannot do. I think what it does is actually create more problems for law enforcement because these will be contested. There will be legal procedures that stem from these, and then that's what the whole issue becomes. It doesn't become about security.

I think that's important when you're doing your work. My work is to see if there's a violation. Your work is to see if it is justified under section 1, and it's to ask what the necessity is to change it. When we're changing that, are we trying to actually stifle dissidents, or is there a risk that that's the way it appears? Are we really in need of it being more efficient? I don't think that demonstration has been made. I think it really goes too far.

[The Chair, Liberal, Rob Oliphant]

Okay, thank you.

I have to end you there. You're going to get another time.

Monsieur Dubé.

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

Thank you very much, Mr. Chair.

Thank you for your remarks on this, Ms. Ataogul.

I'd like to know the following in relation to information-sharing, especially in the realm of human rights.

Some people say that Canadians have less protection when they're outside the country. The example that obviously comes to mind is the U.S., with its information collection under the Patriot Act. People who are not Americans don't have the same legal protections in this regard. They have no protection for their private data, for example.

I don't know if you have any comments about information-sharing with other countries, even our allies, and the problems this can cause by virtue of the powers granted by Bill C-51.

[Sibel Ataogul]

I certainly have some comments on the subject.

It obviously ties in with what the Honourable Nicola Di Iorio said about best practices in this regard.

We must always bear in mind that although we can draw inspiration from these practices, there's not necessarily a Charter of Rights and Freedoms in other countries, even some very developed ones. So we must be careful when importing what we consider to be other countries' best practices. It poses a problem.

We saw with Mr. Arar, and with everything the commissions showed, that information can be obtained under torture. Such practices are prohibited in Canada. However, the information can be shared and used by CSIS against people. Moreover, with Bill C-51, a chain can be established. It can justify an arrest, because it's believed the person could commit a terrorist act. Charges can be based on information of dubious origin, using secret procedures.

In short, this is what happens.

If the threshold for the consequences is reduced, that means whatever information you get under torture or under conditions that aren't acceptable in Canada can lead to consequences that are much more grave for the person involved.

That, I think, is where the problem is. If information has been obtained through torture, we must be careful not to make the consequences even more grave. That's what Bill C-51 does.

Furthermore, Bill C-51 allows all agencies and all governments to transmit the information as well, even though we don't exactly know where the information is from. That's even more problematic.

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

Thank you.

My next question is for all the witnesses. It's the same question I asked our first set of witnesses. In my view, CSIS, among others, must show that it needs the powers, and that there's really something lacking.

Once again, the question is for all of you. Do you think that proof has been made, and that the powers granted by Bill C-51were necessary to ensure public safety, considering what existed before?

[Sibel Ataogul]

Briefly, I think provisions of this type are often enacted after an incident, in a way that's too hasty and not particularly well thought out, and at a time when people are afraid. I, for my part, have not even seen the beginnings of proof. When these powers are granted to CSIS, it's said that the RCMP is not effective enough, and that it's not able to provide answers. But I have never seen that, and there is no basis for the assertion. On the contrary, I think that with all the problems we've had with CSIS, we need clearly established limits, and that as Mr. Cavalluzzo said, there needs to be a good review and oversight process.

[Paul Cavalluzzo]

Let me respond in two ways. First of all, in respect of best practices relating to the sharing of information with foreign agencies such as the CIA and the FBI, I'd ask you to look at the Arar report. In 2006, Mr. Justice O'Connor made a number of recommendations in respect of the sharing of information, sharing of information with friendly nations such as the Americans or nations with poor human rights records such as Syria, Egypt, and so on. He talked about a number of restrictions that you should put on the sharing of information. There are two parts to the Arar report. If you look at volume I, it deals with a number of recommendations relating to the sharing of information.

Secondly, in respect of CSIS's powers and whether they need new powers, whether they need new powers they clearly don't need the powers that Bill C-51 gives them. Bill C-51 is unique in the history of this country, and indeed, in the history of any legal system similar to ours, in the sense that it attempts to empower a judge to authorize the violation of the Charter of Rights. That's what it does, and it's clearly unconstitutional. It gives CSIS that power. Certainly, CSIS doesn't need that power.

Whether it needs any new powers that are constitutional, I agree that what should happen is that we should be satisfied that the previous regime is inadequate. Did CSIS have adequate powers before Bill C-51? If it didn't, then those powers should be given to it under Bill C-51, but certainly not along the strain that Bill C-51 presently does, because as I said, it's just an unbelievable power that any constitutional lawyer will tell you is unconstitutional on its face.

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

Thank you.

I'd like to ask you one last question. You've spoken at length about Bill C-22. As the chair said, we will have the opportunity to study the bill, and I hope we'll be able to hear from you at that time.

Nonetheless, I'd like to take advantage of this opportunity to ask you a question, because I think it's important. You spoke about the importance of making the committee independent. A rather simple example, one that readily comes to mind, is the choice of a committee chair, which is made by the Prime Minister right now. We would propose to have the chair elected by the committee members, as is done in the United Kingdom.

Does this proposal make sense to you? Could it be an initial solution aimed at making the committee independent?

[Paul Cavalluzzo]

Certainly the ultimate purpose in having an independent committee is that it will have legitimacy with the public. The more independent the committee is from the government, the more legitimate it will be with the public. What that means is that what we have to be careful about—and I'm not suggesting that anyone is trying to give anyone arbitrary powers or anything—is what this committee is doing, who the committee is reviewing.

The committee is reviewing CSIS and the RCMP. CSIS and the RCMP and other agencies report ultimately to the Prime Minister, so the more separation there is between the Prime Minister and the executive and the parliamentary committee, the more independent it will be, the more accountable it will be to the public, the more transparent it will be.

[The Chair, Liberal, Rob Oliphant]

Thank you.

Mr. Mendicino.

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

Thanks, Mr. Chair.

Thus far, I think what we've heard from today's witnesses, and indeed from all witnesses who have spoken about accountability through oversight, has to do with a review of the options. The area I'm struggling with is mapping out the statutory gateways we need, both the committee and parliamentarians, to whatever final version this is going to be legislated in, along with whatever other independent expert review that will exist on the other side of the ledger, in order to reconcile those two notions.

The options I have written down thus far are these. First, we have just a committee of parliamentarians. I don't think anybody on this panel favours that option, although we heard from Senator Hugh Segal that this is what he prefers in the long run.

The second option would be to have a committee of parliamentarians and a series of independent review bodies, including SIRC, the Civilian Review and Complaints Commission for the RCMP, and the Communications Security Establishment commissioner. This would essentially be the existing apparatus on the other side, the two together.

The third option would be would be the committee of parliamentarians plus a super-SIRC, which would oversee all of the existing subject matter and independent review bodies.

The fourth and final option we heard a little bit about today from Mr. Cavalluzzo. This would be a committee of parliamentarians plus just a super-SIRC, which is what I think you are advocating. Am I right about that?

[Paul Cavalluzzo]

Yes.

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

When I look at the mandates that have been carved out for the committee of parliamentarians under Bill C-22, along with the existing mandates of all of the independent review bodies, what I'm having trouble with is how we get the two sides of the accountability coin co-operating together.

I took down from your comments, Mr. Cavalluzzo, that you see the committee of parliamentarians to be focused on efficacy, blue sky. As it exists, the mandate does say that one of the primary functions the committee of parliamentarians is to look at is the legislative policy and regulatory framework. At the same time, it speaks, in very broad language, about the new legislative body's ability to review the activities of any matter that relates to national security. The goalposts are very wide, in my opinion.

That overlaps with the existing mandates of all of the independent review bodies that currently exist as they have been statutorily rendered. What I want to hear from you, Mr. Cavalluzzo, is how you see us disentangling those two mandates. The best we have right now under Bill C-22 is under what would be clause 9, where we talk about co-operation for the purposes of reducing duplication of work.

[Paul Cavalluzzo]

That's one of the problems with Bill C-22. The stated purpose of the relationship between the existing bodies like SIRC and the parliamentary committee is to avoid duplication. That's the duty to co-operate in order to avoid duplication. I think you should be able to work together. One of the problems I see with what you refer to occurs in clause 8, which empowers the parliamentary committee to investigate national security activities. The problem is that the minister can say “No, you're not going to do that because it's injurious to national security.” The parliamentary committee has a very truncated jurisdiction. It's totally dependent upon the minister responsible.

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

Can I stop you there, because I think that's a separate conversation. I think we can study that more when we're looking at Bill C-22 specifically.

Having served as commission counsel on the Arar inquiry, I'm curious to know how you think Justice O'Connor...and you envisioned co-operation between a committee of parliamentarians and whether it's just SIRC or SIRC and existing independent bodies working. Again, just focus on the overlap in reviewing activities. In my view, the committee doesn't have a lot of help at this stage to map that out by way of a recommendation to the minister.

[Paul Cavalluzzo]

Just a couple of comments.

The Arar inquiry, the Air India inquiry and so on, are very good examples of a situation that shows the inadequacy of the present review system. For example, in Mr. Arar's case, SIRC couldn't have reviewed that situation. The RCMP complaints commissioner couldn't. You need a public inquiry. What we're looking at is a review body that would be very similar to the Arar inquiry, that would have jurisdiction over all the national security agencies, to do an effective review.

As to the interrelationship with a parliamentary committee, you're the elected people. You're accountable to the people. You're in a position where you should be making strong recommendations to the government as to what the national security legislation should be.

I think that there has to be a relationship between the review bodies. It's just like the Arar inquiry. It looked at a situation. It made a number of recommendations. I see the same thing with a review body, which is all across government having a similar relationship with the parliamentary committee in terms of the policy and systemic recommendations you would be making. I think you should be less involved in reviewing national security, so I would take that power away.

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

That's as close as we've gotten to what I think is some clear evidence on how we need to scope the different mandates of the committee of parliamentarians versus the other component of this, which is an independent subject-matter expert review.

Does either Monsieur Tassé or Madam Ataogul have anything to offer on the subject?

[The Chair, Liberal, Rob Oliphant]

Thirty seconds, please.

[Roch Tassé]

I want to re-emphasize that parliamentarians are very busy doing their job as parliamentarians. You have a lot of responsibility as legislators. You do not have the time, the energy, the resources, to do investigations around complaints. It took two or three years for the O'Connor and Iacobucci inquiries dealing with four cases, all within one single national security operation. You cannot go in depth like that with a parliamentary committee. You need an expert body that does exactly what those two commissions were able to do.