Public Safety Committee on Oct. 21st, 2016

[The Chair, Liberal, Rob Oliphant]

That's it from our first round. We're going into the second round now. Thank you for joining us today. It makes the trip to Halifax worthwhile. We'll be coming up with the report, and I'm hopeful you'll see yourselves reflected in it.

We're going to take a brief pause as we say goodbye to these witnesses and welcome our next table.

Thank you.

[The Chair, Liberal, Rob Oliphant]

We're going to reconvene.

Thank you to the witnesses who are here for our second panel. I don't think you were in the room when we started, so this is just to put this into context.

We are doing a study on the national security framework of Canada, and that is a large study. It's being done at the same time as the government is doing a study. They've issued a green paper on national security and how we reframe it. Our study is related to that, but not part of it, so we're not here as government. The green paper informs our study, but it does not encompass our study. Our study can be broader. It can be more foundational.

We're already having the first piece of legislation to deal with, and that's Bill C-22, around oversight. We're anticipating more pieces of legislation, and as a result of this study we may be recommending legislative changes to the government. However, we are not doing their consultation. This is our consultation.

The members of the committee have been travelling. As I've said, we've been in Vancouver, Calgary, Toronto, and Montreal this week, and we are delighted to be in Atlantic Canada.

There was some miscommunication, but we'd like to give each panellist would 10 minutes, so I'd like to go to about 4:10 or 4:15, if that's okay with the committee, so that we can have enough time for questioning as well.

[Some hon. members]

Agreed.

[The Chair, Liberal, Rob Oliphant]

Perfect.

I'm going to suggest that we begin with David Fraser for 10 minutes, and then we'll go to Brian and Andrea. Thank you.

[David Fraser, Partner, McInnes Cooper, As an Individual]

Thank you very much, Mr. Chairman.

Thank you very much to this honourable committee for inviting me to provide my thoughts on this very broad consultation that the committee is undertaking, one that has obviously been influenced and affected by the green paper issued by the Department of Public Safety.

Though I have previously appeared before this committee on behalf of the Canadian Bar Association, particularly its national privacy and access law section, I am here today as an individual. I will not be speaking on behalf of my firm, any associations of which I'm a member, or any of my clients.

For some background, I am a lawyer in private practice with the firm McInnes Cooper, based in Atlantic Canada. I'm also a part-time instructor at Dalhousie law school, where I teach Internet and media law, and law and policy for e-commerce. I've also taught privacy law.

As you might be able to guess, my practice is exclusively devoted to privacy law and Internet law. In that capacity, I regularly provide advice to public sector and private sector clients from across Canada, and actually around the world, on their obligations under Canadian laws. That includes companies that are exclusively in the technology sector, the telecommunications sector, and other sectors. This means I'm often providing advice to my clients on interactions with law enforcement and national security agencies in Canada, where the police and national security authorities are seeking access to my client's customer information and information about others of their stakeholders. I have seen many things that inform the testimony I am about to give.

In my personal capacity, I am a strong proponent of a free and democratic Canada that is founded on the rule of law and rooted in our constitutional traditions. I am not associated with any political party, and I feel free to speak my mind on matters such as these from my heart, and hopefully informed by some serious, informed reflection.

I have some mixed feelings about where we are today. The current government campaigned and was elected on a platform that advanced scaling back Bill C-51, the Anti-terrorism Act. I would have hoped we'd be discussing a piece of legislation that would be doing that rather than continuing the long-standing discussion that I expect will extend into the next year.

The information-sharing and disruption powers that the act contains have now become the status quo. We've heard testimony from others, and you've certainly heard it reported in the media, that these powers are being used. We are told they are working, but since we're dealing with the RCMP, CSIS, and CSE, we're not being given any real information about how they are being used. We're being kept in the dark, as usual.

That brings me to my first point. Our national security apparatus in Canada needs effective, accountable oversight. I think Bill C-22 is critical. Our system of government is a parliamentary one, in which Parliament makes the laws that set the limits under which the national security agencies operate. Parliament cannot do this job if it has blinkers on or if it's only given access to unclassified information, and in that case even information that only those agencies deem to be appropriate for Parliament to see. A committee of parliamentarians should have unfettered access to all information it deems relevant to carry out this critical job.

I would, however, suggest that we may need an officer of Parliament to oversee all the national security agencies, something in the model of the Information Commissioner, the Privacy Commissioner, or the Auditor General, who reports to Parliament directly. It may look like a super-SIRC, Security Intelligence Review Committee, that would have oversight over all of the agencies, because the line between CSIS, the RCMP, CSE, and others only depends upon who signs your paycheque, perhaps, or what's written at the top of your paycheque. They collaborate hand in hand. This oversight agency needs to be fully independent of the agencies and has to have unfettered access to everything. It should have the power to report to Parliament on its own initiative and to take any questions before any of the designated justices of the Federal Court on any question about lawful activities.

Our national security agencies by necessity operate largely in the shadows. The only way that we as Canadians can have confidence that they're doing their jobs appropriately is if we have confidence in the organizations that oversee them. I'm not sure we yet have that.

We saw recently a case in which CSIS, with the approval of the Department of Justice, knowingly lied under oath to a Federal Court judge in order to get a warrant. We cannot allow that to happen. We saw a situation in which our federal police department was found to have created terrorists through entrapment. This can't be allowed to happen. Dozens of police officers every year are disciplined for inappropriate and unlawful access to CPIC, the Canadian police database. That shouldn't be allowed to happen. We need to be able to assume the good faith of the individuals who act on our behalf in our police departments and our national security authorities, but it's only through effective oversight and accountability that this can actually be done.

I read with great interest the green paper, and I read with great interest its backgrounder. I could tell who the author was. It was drawn directly from the wish lists of public safety bureaucrats, folks like Commissioner Paulson and the Canadian Association of Chiefs of Police.

It advocates, in a one-sided manner, a whole bunch of police powers that have been debated back and forth over the years and ultimately have been dismissed.

You'll recall that Canadians roundly denounced the lawful-access provisions, the interception capabilities, and other things that were embedded in the Modernization of Investigative Techniques Act that was tabled by Vic Toews and ultimately left to die on the order paper.

I found that the green paper and its backgrounder on advocacy was disguised as consultation, and it's clear that somebody was looking to revive these lawful-access powers, notwithstanding that the Spencer decision was pretty clear about access to basic subscriber information and rights of privacy that individuals enjoy on the Internet. We're still hearing advocates of this sort of thing talking about phone book information—and I'm happy to talk about metadata as well—which was thoroughly debunked by the Supreme Court in that case. The fact that this discussion is taking place in terms that fly in the face of what in fact is the last word on the supreme law of the land from the Spencer decision further reinforces to me that strong oversight is required.

I'm happy to talk about the topic of warrantless access to subscriber information, a topic that I've done a lot of research into, as well as the topic of going dark through encryption.

Ultimately, to allow additional time for questions to make sure that everything the committee wants to hear is heard, we need to be careful that this wish list doesn't come at the expense of our rights. We need to be very cautious, and this committee has a very important job. The threat of terrorism is a threat to our democracy, but we cannot create a self-inflicted wound by marching towards a police state or undermining our democratic values.

I very much look forward to the discussion we're going to have.

[The Chair, Liberal, Rob Oliphant]

Thank you very much.

Go ahead, Mr. Bow.

[Brian Bow, Director, Dalhousie University, Centre for the Study of Security and Development]

Thanks to the members of the committee for this opportunity to provide input to the committee's ongoing consideration of Canada's national security framework.

I'm here in my capacity as the director of the Centre for the Study of Security and Development at Dalhousie—the successor research centre to the Centre for Foreign Policy Studies—but the views I'll be expressing here are my own, rather than those of the centre as a whole.

One of our core projects now is a comparative study that looks at the way that cross-national networks manage different kinds of internal or homeland security issues in both the North American and European regional contexts. It's a very broad study that takes in a number of different policy areas, and today I'm going talk a little about one slice of that. It's going to take us a little away from the themes that have been covered in some of the previous presentations. The argument I want to make here is based on an interest in broadening our view of what security questions we want to consider here as well as making the case for broadening and balancing our focus and thinking about how we want to weigh counterterrorism operations against other kinds of security priorities.

I'm going to be focusing mostly on cross-border cooperation and on border control questions, particularly the policing of cross-border criminal activity, with special attention to the trafficking of people, money, guns, and drugs.

The main point I want to make here is that some of the mechanisms for coordinated surveillance and enforcement activities that were set up in the immediate aftermath of 9/11, which were important initiatives, have been undercut over the last 10 years by reallocations of resources and shifting priorities by some of the agencies involved, and that has led to a diminishing of some of those law enforcement activities, or at least the cross-border coordination of them. I want to make the argument that it isn't necessarily a bad outcome, as long as those initiatives are replaced with new ones that respond more effectively to what we understand about how some of these illicit transborder flows actually work and are based on a different set of strategic priorities, which I will try to explain.

After 9/11, the top priority on both sides was demonstrating that the border was as tightly controlled as possible and, on the Canadian side at least, also that this was being accomplished without massively disrupting trade and travel or undermining Canadian sovereignty.

That led to the creation of a number of technical working groups on a variety of issues that were designed essentially to create new standards and procedures for border control and border patrol activities. These were enormously complicated and important policy coordination efforts. They were also very slow-moving, and in many cases dull and technically not very exciting politically, and for the most part they didn't get a lot of political or media attention. We tended to focus on cross-border law enforcement activities instead, and particularly a small number of initiatives that were flagship efforts, I guess, some of which predated 9/11, but many of which had been played up in the immediate aftermath of 9/11 as representative of a new approach.

Here in particular I'm thinking about the integrated border enforcement teams—the IBET program—and the shiprider program. These were played up politically, mostly based on having a particular symbolic value that came out of showing highly integrated operations at the front line, which could be reassuring to people who were worried about the adequacy of those border enforcement efforts, and also because they consistently produced tangible results in the forms of arrests and seizures. They looked good and they seemed to represent that the problem was being resolved.

Over the last 10 years or so, those programs have been diminished. They still exist on the books and people are still operating on those files, but far fewer resources are going into them. Here in particular I'm thinking of personnel, and that's because a lot of the people who had previously been assigned to these things, particularly on the west coast, have been reassigned to other things, and that is representative of a larger reallocation of resources within the law enforcement community.

There are two parts of this that I want to highlight for you.

One of them is a shift of priorities in terms of the RCMP's overall strategy for Canada drug operations and a tendency to refocus away from catching that one guy with the pickup truck at the border and thinking more about this as being part of a larger criminal network. It's thinking about how cases can be built that attack transnational criminal organizations at the centre and thinking about it more in terms of finance and building cases based on intelligence that lead up to the top of the pyramid, aiming at the head instead of at the toes of the organization.

At the same time, within the RCMP there's also been a redirection of resources away from organized crime in general and towards national security files, in particular on the intelligence side. There's a shifting both in terms of money and also personnel over to the intelligence side on national security files. Obviously, there are good reasons for that to happen, but there are significant consequences to the withdrawal of those resources from the organized crime files.

On the American side, there have also been some developments that have changed the landscape a little bit as well.

The main one, particularly on the west coast, has been the withdrawal of agency commitments to the IBET program and reallocation of those resources to the BEST, the border enforcement security teams, which is a model that was originally developed on the U.S.-Mexico side and has been now transplanted and spread to other regional directorships. Whereas the IBET program involved a number of different law enforcement agencies on the American side, none of which had a kind of clear lead within the program, the Department of Homeland Security's HSI, Homeland Security Investigations group, really dominates the BEST program and organizes it in a way that makes sense for them as an organization. That has consequences not only in terms of how they do their business but also on the participation of different agencies from both sides of the border.

One of the main things is obviously that the HSI's focus is on border patrol activities and law enforcement activities that are focused on the border area, and the RCMP just has fewer incentives to invest resources in that than it did in the previous version of the IBET-driven border co-operation. That, in combination with the shifting of resources within the RCMP, has meant that there's been a withdrawal of the commitment on the Canadian side from the BEST-centred border control activities. That is not necessarily a bad thing, because as much as the IBET looks great symbolically, they were really very much focused on catching low-level distributors and smugglers, and they really didn't do much damage to any of these larger transnational criminal organizations.

Obviously there's still a continuing need to have law enforcement activity at the border to manage those things, and I'm not suggesting we would give up on that entirely; however, there ought to be a shifting of resources to other things. I think the RCMP's larger strategic shift toward combatting criminal networks as networks makes a lot of sense, but it has to be followed through with a substantial investment of resources to support that activity; otherwise it looks, as it does in the eyes of many of the U.S. agencies that participate in, for example, the BEST, as a cop-out or rationalization for the withdrawal of participation altogether.

I want to make the argument here that there needs to be a shift of resources back into organized crime co-operation and that this shift has to be adapted to the new reality and new strategic priorities of the agencies involved. That means thinking about more of a task force model that involves cross-border co-operation built around attacking particular patterns of flows or particular organizations, and mostly it's going to focus on tracking money and long-term building of intelligence-driven cases against the leadership of some of these criminal organizations.

This is a costly and demanding thing, and it involves all kinds of political obstacles based on the differences in our disclosure rules and privacy rules. There are all those kinds of obstacles, but none of those diminishes the need to work out some kind of an understanding and to have a renewed commitment to resources to back it up.

[The Chair, Liberal, Rob Oliphant]

Could you wrap up quickly?

[Brian Bow]

Yes, it's the very last sentence, actually.

I just want to make the point that in general there was this productive spillover effect in the immediate aftermath of 9/11, when resources that had been sunk into counterterrorism activities spilled over into other areas, such as organized crime, emergency management, and other things. That has diminished now. That wave has crested. What we are seeing is a kind of overall shrinking of the resource pie.

I want to conclude by saying that as much as it's important to sort out all of the complicated questions surrounding counterterrorism, all of that has to be done thinking about the way that the redirection of resources into the solving of those problems has consequences for other kinds of security challenges that are out there.

[The Chair, Liberal, Rob Oliphant]

Thank you.

The floor is yours, Ms. Lane.

[Andrea Lane, Deputy Director , Dalhousie University, Centre for the Study of Security and Development]

Thank you very much for inviting me today. It's really an honour to present to you. My name is Andrea Lane, and I'm the deputy director of the Centre for the Study of Security and Development at Dalhousie University, although today I am appearing in my capacity as an individual.

I would like to speak to you about research that I have conducted that seeks to contextualize the broader discussion of anti-terrorism legislation, radicalization, and counter-radicalization measures. This research was funded by a bursary from Public Safety Canada under the Kanishka research affiliate program.

My research examines so-called single-issue terrorism—that is, terroristic violence used in the pursuit of an issue, such as environmental protection or white suprematism or the outlawing of abortion. It blurs the lines between right-wing and left-wing extremism, and this kind of terrorism is very often understudied, with public attention and law enforcement attention directed more on Islamic terrorism.

In particular, my research examined why some activists choose to use terroristic violence as a protest tactic, and how those activists differ from their non-violent counterparts. More importantly, it asks how security agencies could tell the difference between violent and non-violent activists before the bang—that is, in order to prevent attacks.

My conclusions provide some suggestions as to how costly surveillance and law enforcement assets could be used more effectively. It's difficult to summarize a year and 120 pages of the research into 10 minutes, but I'm going to try, so bear with me.

My research was testing a sociological theory of mobilization—that is, of how people come to be involved with a particular social movement or group, in this case terrorist groups. The theory was that people only become mobilized into activism or terrorism when several conditions are just right for this to occur, and not, as is more commonly thought, when they start to have beliefs or ideas about an issue.

We tend to think about radicalization into violence as belief before action. The theory that I was testing actually posited instead that it's actions before beliefs, so that people's beliefs, radical or otherwise, actually come about only after their participation in an activist group.

People who are at a turning point in their life—and it doesn't have to be a negative crisis, and it could be something as simple as moving to another city for a job or obtaining a divorce—who come into contact with an activist group, almost on a lark or accidentally at a time in their life when they're more receptive to certain ideas or new people, can be mobilized. Both of those conditions have to be met. If they have contact with a group while they are not at a turning point in their life, they're not mobilized. If they are at a turning point but they don't have contact with a group, they are not mobilized.

I tested this theory using the 1980s Canadian terrorist group called Direct Action, also known as the Squamish Five. I compared them with members from non-violent groups whose issue areas overlap those of Direct Action, including anti-nuclear and anti-resource development groups. I conducted interviews and collected evidence from court proceedings, newspapers, and groups members' own writings to see whether the theory of mobilization held true and could explain the difference between violent and non-violent radicalization.

My research found three things that are important for members of this committee to know as they go forward with a review of Canada's national security framework.

The first finding is that activists are moulded by the groups to which they belong. A group like Greenpeace or the Canadian Centre for Bio-Ethical Reform is not only a political group but also a social community with its own sets of traditions regarding the way its members should think about an issue and a corresponding set of traditions regarding protest behaviour.

For example, the CCBR believes abortion to be a social justice issue like slavery in the U.S., and it advocates for its supporters to use leaflets, bumper stickers, letters to their newspapers or MPs, and seminars to spread its message. Greenpeace, on the other hand, believes raising public awareness is key in effecting environmental change, and it encourages its members to participate in high-profile public stunts. This means that current members of non-violent protest groups are highly unlikely to commit terroristic violence because they are extensively socialized against it. In that case, violence is almost unthinkable for them because it violates the social rules of their group.

That brings me to my second point. Activist groups like Greenpeace, Earth First!, and Idle No More, who use what could be termed violence against property, are in fact valuable assets in the efforts to prevent violence against people. The conflation of violence against property and violence against people in terms of legislation or in crime prevention efforts does more harm than good, because in fact looking at non-violent groups that don't advocate violence against humans but that might advocate violence against property, for instance, is one of the best ways of finding out who within their larger groups might actually be at risk for being radicalized into violence against humans. If you alienate those groups by conflating property destruction and actual intentional violence against humans, then you lose a valuable asset. Those are my second and third points, because I recognize that I'm running out of time.

Thank you very much for your attention. I look forward to answering any questions you might have about my research or any other aspects of single-issue terrorism in Canada—which I gather isn't the sexy form of terrorism these days—and radicalization into violence more generally.

Thank you.

[The Chair, Liberal, Rob Oliphant]

You do have more time if you want to take it, but we also can move to questions.

[Andrea Lane]

It's really difficult to know which parts of my research would be most useful to what you're talking about.

[The Chair, Liberal, Rob Oliphant]

Then I suspect that the questions will evoke that.

We'll begin with Ms. Damoff.

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

Thank you very much.

Thank you to all three of you. It's been really interesting, and you've brought some different points of view to us, which is also much appreciated.

Ms. Lane, you said activists are moulded by a group. There's the violence against property versus people, but what was the third one?

[Andrea Lane]

The third finding is that in lieu of spending a lot of money looking at activist groups from the outside and attempting to decide who among them might be willing to commit violence, it would be more useful and much less expensive to develop relationships with these mainstream non-violent groups like Greenpeace or even Earth First! in order to be able to say to them “we recognize that your members, as they stand now, are not likely to commit violence, but you might have the best sense or information as to who might have left your group recently because that person was expressing radical views. You might know of members who have gone through a life change in the course of which they may have come into contact with people who advocate violence.

If you were going to embed an RCMP officer in a group long term, that would be incredibly expensive and would raise concerns among the public. Instead, you could say that you don't like that they advocate for vandalism, for instance, but laying that aside, you're primarily interested in stopping people from dying in those kinds of attacks, so you could work together. You want to develop a relationship in which they are free to say that they had a member last year who went through a really hard breakup and moved to Windsor and they want you to know that the member may have been in contact with people who do advocate for more extreme violence.

It's really about picking battles.

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

That would require quite a bit of trust between the group and policing, right? How do you raise that level of trust? I would suspect that people would say, “I don't want to tell you about that, because you're going to come after me for the vandalism”, for example.

[Andrea Lane]

Yes, there are really two ways of thinking about that. One is that it starts as a bottom-up process in which you engage in low-level interactions. The alternative mechanism could be a top-down thing, in which you go through anti-terrorism legislation very closely and say that right now, as it stands, people who might be advocating hard-core vandalism and might accidentally injure somebody are treated the same way as a terrorist group that is actually advocating shooting people directly, putting it within the legislation that there is that finely grained detail as an opening statement to groups that might be less willing to participate.

I recognize we're talking about the difficulties of making a bridge between law enforcement culture and activist culture. I'm not under any illusion that it would be easy to do, but there are ways to make a venue for that kind of narrative to develop.

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

Mr. Fraser, you were talking about our cybersecurity, and it came up briefly with Mr. Oliphant in the previous panel. I'm on the status of women committee, and one of the things we've been looking at is cyberviolence. We had the chiefs of police come asking for the same things that the RCMP and CSIS were requesting when they appeared before us.

When we talk about the basic subscriber information—and I'm not a lawyer—they say they can't get it, but when we had the BC Civil Liberties Association appear before us when we were in Vancouver, they said there is a way for law enforcement to get that information. People always seem to perceive this issue differently when you bring in the issue of cyberviolence against women, but we do want police to be able to perform their jobs, whether it's in that context or in a terrorist context.

Is there a way under that Supreme Court decision that the police can get that information?

[David Fraser]

Absolutely, and it just requires judicial authorization. That's what it takes. Before the Spencer decision, there was a patchwork system. A number of Internet service providers decided that if the police said it was an investigation into a child exploitation offence, then the Internet service provider would hand over the customer information when provided with the IP address by the police. Every Internet service provider in Canada followed that except for two, both of which are based in Atlantic Canada.

Investigations were able to proceed here because we have been able, for the last 10 years or longer, to go to a Justice of the Peace and obtain a production order that requires the Internet service provider to hand over that information. That process was actually made easier under Bill C-13. That bill is best known for dealing with the non-consensual distribution of intimate images, but it also lowered the threshold for a number of production orders that allow a Justice of the Peace to provide that information.

I find it surprising that I hear from law enforcement that it's now more difficult.... Well, it is more difficult, because you used to just ask and get it, but it was in only a very small subset of cases that they were able to get it. They're saying it takes longer to get it from the Internet service provider, when in fact a production order includes a timeline that's a court order. Before it was just voluntary, and they were hopping to it.

They can get access to this information, and if there is a problem with the amount of time or paperwork or whatever that is required for them to get it, the solution is to have more Justices of the Peace and to create a streamlined process or to fine-tune or tweak what's in Bill C-13, rather than throwing the charter out the window.

They say they're only looking for basic subscriber information, a customer name and address, but as the Supreme Court of Canada decision said, they're looking to connect that name and address with an activity that's unlawful, such as trading child pornography, cyberbullying, or something like that.

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

This applies to terrorism as well, right?

[David Fraser]

It absolutely would. Certainly one can get a production order under a terrorism offence, and CSIS could also get a warrant under the CSIS act from a designated justice of the court.

One final point is that they can require this information without a warrant if there are exigent circumstances or there's imminent risk to somebody's life or property.

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

Because the Internet is international, concerns were expressed about treaties as well as about the 18 months it takes to get information from other countries. Do you have any comment on that?

[David Fraser]

I'm not sure that anybody is in a position to circumvent that. A Canadian court order is not effective against a U.S. company, and in the United States it simply can't be enforced.

Canada has, among the community of nations, negotiated treaties for mutual legal assistance in criminal matters. We have one with the United States and with most of our other allies. Maybe we can tweak that process, or we can expedite it for certain kinds of orders in connection with our multilateral obligations for cybercrime conventions and things like that.

It may become that you don't have to go through Global Affairs Canada for these kinds of warrants and you will just go from one justice department to another, but it's an important check, because the alternative without that is that Chinese courts could order access to Canadian information, as could Iranian courts, Egyptian courts, and others. “International” cuts both ways.

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

Thank you very much.