Public Safety Committee on Oct. 21st, 2016

[Michael Karanicolas]

Sure, and this is not just against citizens on an individual level. It's about structural networks. It's about data minimization at the federal level so that the government does not act as a giant warehouse of information that there's no necessity for it to keep, because when you make yourself a big target like that and a breach eventually occurs, it is much more damaging. For that reason, we need data minimization, strong encryption, and strong security protocols.

Again, to bring it back to the debate about the green paper, data retention protocols and weakening encryption move us in the wrong direction from that perspective.

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

Right. I agree with that.

[Christina Szurlej]

That also raises the issue of losing control over what other states do with the information that we share with them, as we saw in the Arar case.

Yes, we're maintaining a strong partnership with the United States in doing so, but we also risk having that information misused once an individual has been cleared, and having no control over other states taking the same approach and accepting the clearance we've put forward.

[The Chair, Liberal, Rob Oliphant]

Thank you very much.

Monsieur Dubé is next.

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

Thank you, Mr. Chair.

Thanks very much for being here.

The first question I want to ask has two parts.

My feeling is that when we give such expansive, unprecedented powers to national security agencies, there has to be a need. First, do you believe that they need to demonstrate that need and that the burden of proof is on them? Second, has CSIS, among others, done that, in your view? The question is to both of you.

[Michael Karanicolas]

This brings us a little to what we were talking about with encryption before. In terms of the need, one of the things that is important to remember is that encrypted information is only useful if it's in an unencrypted form. When information is in that encrypted form, it's inaccessible to law enforcement, but it's also useless to its user. Everybody has to unencrypt the information at some point.

We've seen law enforcement in the U.S. target the information when it's in that unencrypted space, as opposed to trying to crack the encryption. I guess that's a little bit roundabout, because you were speaking about police powers generally, but as to whether or not that need has been specifically demonstrated, again, I stand by the idea that intelligence agencies have a bigger tool kit than they ever had before. I think the Internet has vastly expanded their capability to monitor what people are doing, and I think the capabilities of targets have been enhanced as well, but not at the same rate.

I think our intelligence agencies are more powerful than they were 10 to 30 years ago, and I don't necessarily know that the need has advanced beyond that.

[Christina Szurlej]

I was wondering if you could be a little more specific about part one of your question.

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

Some would argue that when you propose giving such unprecedented powers to these agencies, the burden of proof is on them to show that they need it and that it's not just happening in a vacuum.

In other words, does CSIS need to demonstrate that it actually needs these broad, expansive powers before our government puts them place?

[Christina Szurlej]

The short answer is yes, absolutely. The government needs to demonstrate that any action taken is reasonable and proportionate, particularly when it results in an infringement on charter rights. It must also demonstrate that the impact of more intrusive measures will result in a higher level of security.

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

Thank you.

My other question is again for both of you.

We're talking a lot about information sharing, and both of you mentioned information sharing with foreign entities. The Arar case is one of the most infamous ones, we should say, and tragic ones, but now we're seeing CSIS having information-sharing agreements with Global Affairs regarding, for example, Canadians who are detained abroad. It's important to specify that information for consular services is being shared with CSIS.

How concerned are you, since Canadians don't benefit from the same legal protections in other jurisdictions? Even in the United States, despite its being an ally, there's very little to no legal protection for Canadians' rights, including their right to privacy.

[Christina Szurlej]

One point I'd like to make is that there is another reason that information sharing, even with our close allies, is very problematic. My view is that these allies are not accountable to our voters, unlike our politicians here, who represent the best interests of Canadians. That is one issue.

Second, I do believe that any increase in government powers to investigate and act needs to have commensurate legal protections in place. These protections include review bodies, as well as mechanisms where individuals who are either innocent or who have faced disproportionate consequences can seek a remedy, as is required under international human rights law.

[Michael Karanicolas]

I'll just briefly add to that.

Yes, I completely agree with the statement about the privacy aspect. There's a global trend of countries tending to offer some privacy protection to just their own people. The U.S. is a really obvious example. There are some privacy protections that it offers to its people, and it offers virtually none to foreigners. This is particularly troubling when you think about intelligence-sharing arrangements. If Canada can spy on the British and on Americans, and the U.S. can spy on the British and on Canadians, and the U.K. can spy on Canadians and on Americans, and everybody's sharing information, then these sort of protections don't necessarily kick in. It kind of becomes a free-for-all.

There is one more thing I'll mention very briefly, because it's not my particular area of expertise. I referenced Roach and Forcese earlier in this meeting. I want to mention what they said about the problem of silent oversight, particularly when you have a large degree of inter-agency co-operation. If a particular oversight body is only looking at its agency and not potentially seeing the broader picture of what's going on, that can present a challenge.

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

That was one of Justice O'Connor's recommendations for the integration of oversight.

As one last quick question, you spoke about the definitions of “promoting terrorism” and how broad in scope and vague some of these aspects of Bill C-51 are, since it has become law.

One point that has been raised is how increasing the criminalization of different aspects and lowering thresholds can become a challenge for counter-radicalization. People who might want to raise a red flag and intervene with a youth who is becoming radicalized in any form of political ideology, and not anything specific, might not want to do that for fear of criminalization, given how open these definitions now are. Is that something you would agree with? Perhaps you could expand on that in the short time we have left.

[Michael Karanicolas]

Yes, certainly.

One of Daesh's main sales pitches is this idea that Muslims are under siege in North America and in the west, and that Muslims are being attacked. The increasing breadth of these laws and their inevitable application to groups that are marginalized groups is very troubling from that perspective, I would say.

[The Chair, Liberal, Rob Oliphant]

Thank you.

This gives me a chance to welcome Colin Fraser, MP for West Nova. He unfortunately was delayed, and because he didn't get to hear your presentations, I'm going to take over the questioning, and Mr. Miller is going to assume the chair.

[Colin Fraser, Liberal, West Nova, NS]

Thank you.

I'm sorry for being late. I'm very embarrassed, but it's nice to be with you.

[The Vice-Chair, Conservative, Larry Miller]

Mr. Oliphant, your seven minutes starts now.

[Rob Oliphant, Liberal, Don Valley West, ON]

I'm rusty at this. It's kind of fun.

Thank you for your work, and because Mr. Karanicolas is here, I want to spend a bit of time on the digital world stuff.

We're trying to scope out our big study on the national security framework, and one section is security in the digital age. We're not even sure what questions we should be asking, and I'm not sure. The green paper outlines four areas: basic subscriber information, interception and the requirement of service providers to allow that, encryption, and storage retention.

We've heard testimony on some of this. You haven't talked about basic subscriber information, or BSI. I'd be happy to have you comment on that, and also to have your comments on helping us frame our discussion.

Your work has been largely on access to information and making sure the public can get what the government has, and not as much on the government getting our stuff. Have you any comments on what we should be asking ourselves, or what questions we need to ask?

[Michael Karanicolas]

You're absolutely right that a lot of our advocacy—and I'll mention this at the outset—has been on access to information within Canada. That's been our focus, but as an organization, CLD works on foundational rights for democracy. We do quite a lot of work on freedom of expression, and digital security has been part of that. Privacy is increasingly part of that, as well, and yesterday I was at the parliamentary committee on the Privacy Act reform in order to talk about that issue. It does tie into this when you talk about things like data minimization and carrying out privacy impact assessments as part of standard government operations, and a requirement that government agencies should only collect and store information if there is a necessity that you can point to for doing that.

I'm not sure about commenting more broadly about what we should be thinking about with regard to how to frame the discussion about digital security.

[Rob Oliphant, Liberal, Don Valley West, ON]

Encryption would be one of the strong concerns, in that anything reducing encryption heightens our security problems, as opposed to solving our security issues. That's the trade-off we've heard from you.

[Michael Karanicolas]

Yes, absolutely. My expertise is in law rather than the technical side, but that is what you'll hear from the tech people.

[Rob Oliphant, Liberal, Don Valley West, ON]

Please comment on the basic subscriber information and how we work around problems of cyberbullying, child pornography, trafficking, or those kinds of things, and how you get the right to basic subscriber information or the right for interception.

[Michael Karanicolas]

The cyberbullying question is an interesting one. It's an area in which we've been engaged here in Nova Scotia. As I'm sure you are aware, we had the Cyber-safety Act here, and then that was struck down, and now they're considering different solutions.

Generally speaking, the problem we had with the cyberbullying law is that it was too broadly defined. It's a similar problem to what you find here. It's a cardinal principle of freedom of expression that any restrictions on speech need to be as carefully defined as possible, first of all to avoid any potential chilling effect, so that people have a clear idea of what they can do, but more than that, to ensure that they are catered to the necessity of the restriction. It's a cardinal principle, and it is in Canadian constitutional law, as well as internationally, that restrictions need to be carefully tailored so that they don't infringe on the right more than is necessary.

[Rob Oliphant, Liberal, Don Valley West, ON]

How is my time?

[The Vice-Chair, Conservative, Larry Miller]

You have a little less than three minutes.