Public Safety Committee on Oct. 21st, 2016

[The Chair (Mr. Robert Oliphant (Don Valley West, Lib.)), Liberal, Rob Oliphant]

Good afternoon. I'm happy to call to order this 37th meeting of the Standing Committee on Public Safety and National Security in the 42nd Parliament. We are continuing our study of the national security framework.

In order that our guests and the public know, this is the first of two meetings today. At this meeting we have invited witnesses the committee would like to hear from, and they bring their expertise. In the evening, from 5:30 p.m. to 7:30 p.m., the public comes, again with expertise. Their expertise may be different from that of the so-called experts, but the committee equally wants to hear from them.

These are meetings numbers 9 and 10 of this week. We began in Vancouver on Monday, where we had two meetings. Then we went to Calgary, Toronto, and Montreal, and now we are in Halifax. This is fairly early in our study of the national security framework.

There are two consultations going on simultaneously.

The government is having a consultation. It has issued a green paper to the Minister of Public Safety and Emergency Preparedness. That green paper consultation is going on at a government and departmental level.

The parliamentary committee is doing its own study. We are obviously aware of the green paper, and it helps us frame our study, but we are not limited to that, nor are we from government. Even though some of us are from the government side of the House, others are from the opposition side.

I will simply have the members introduce themselves, starting at my far left, so you know who you are speaking to.

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

I am Matthew Dubé, member of Parliament for Beloeil—Chambly in Quebec.

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

I am Dianne L. Watts, from South Surrey—White Rock in British Columbia.

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

I'm Larry Miller, member for the riding of Bruce—Grey—Owen Sound in southwestern Ontario.

[The Chair, Liberal, Rob Oliphant]

I am Robert Oliphant, chair of the committee and member of Parliament for Don Valley West in midtown Toronto.

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

I am Pam Damoff, MP for Oakville North—Burlington.

[The Chair, Liberal, Rob Oliphant]

We have one other member who will be joining us. He's apparently stuck in traffic. He is Colin Fraser, who is a substitute for Marco Mendicino, who is away today. Colin will be here shortly.

We have two witnesses today, who will each be given 10 minutes. We will begin with Michael and then continue with Christina. At the end of that 20 minutes, we go through questioning. Questions can go to either of you as we continue.

Please go ahead.

[Michael Karanicolas, Senior Legal Officer, Centre for Law and Democracy]

Thanks so much to the committee for the invitation.

I'm here as a representative of the Centre for Law and Democracy, which is an NGO based in Halifax that works to promote foundational rights for democracy. Our particular emphasis is on freedom of expression, so I'm planning on providing commentary from that perspective.

I'll say at the outset that I support the recommendations of Craig Forcese and Kent Roach regarding improving oversight of the system, as well as regarding sharing evidence. I also share the concerns of the Privacy Commissioner regarding the expanded scope of information sharing.

First, regarding the offence on advocating or promoting the commission of terrorism offences, it is well established under international law that there is an important difference between mere advocacy or promotion of something regardless of its harmfulness, and incitement to a harmful result. International human rights standards require a very close nexus between a statement and the risk of harm before the former may be legitimately prohibited. This standard ensures an appropriate balance between protecting free speech and protecting against harm.

An academic work, for example, may be said to advocate in favour of something by extolling its virtues and by setting out and weighing its relative benefits and drawbacks, and yet it would be rare for an academic work to actually incite others to harmful results.

The media, which have a professional obligation to report in a timely and comprehensive manner on acts of terrorism, could be deemed by some to be promoting terrorism offences by doing so. The use by Daesh of social media to promote itself simply by distributing videos and images has been widely commented on. This provision could potentially be applied to media reporting on their activities. Similarly, a very strongly worded poem may advocate for something, and yet it would be rare for it to create a genuine risk of harm.

There is clear authority under international law for the need to maintain, at least in relation to restrictions on freedom of expression, a clear distinction between expression which incites, and expression which merely advocates, promotes, or praises. I cite in particular article 20.2 of the International Covenant on Civil and Political Rights, which calls for the prohibition of advocacy of national, racial, or religious hatred, but only where it "constitutes incitement”.

Article III(c) of the Convention on the Prevention and Punishment of the Crime of Genocide uses similar language. I cite the 2015 Joint Declaration on Freedom of Expression and responses to conflict situations by the special mandates on freedom of expression from the United Nations, the Organization for Security and Co-operation in Europe, the Organization of American States, and the African Commission on Human and Peoples' Rights.

There are also problems with the recklessness standard in the offence, which should be of particular concern to the media. The media would presumably rarely, if ever, report on terrorism with the intention of promoting it, but they might be deemed to have been reckless as to this possible result. We recommend that this provision be deleted, as it is unnecessary in light of existing anti-terror provisions in the Criminal Code and overbroad in its impact on freedom of expression.

Sections 83.222 and 83.223, which provide for the seizure and suppression of “terrorist propaganda” are also problematic insofar as they apply a substantially similar definition of what constitutes terrorist propaganda. Although seizing material is not as serious an infringement as arresting its author, the potential overbreadth of the restriction is of concern either way. Moreover, the standard for acting—that of there being reasonable grounds to believe it's terrorist propaganda—is a troublingly low threshold to cross. For a media outlet, having its material seized or suppressed for seven days and the requirement of going to court to obtain its release could lead to significant operational challenges, with the concomitant possibility of a chilling effect around legitimate speech.

We also note that unlike the 83.221(1) offence, which incorporates the protection of a mens rea requirement, there are no conditions or protections against abuse of the reasonable grounds standard. Given that this is analogous to an urgent action or interim measure, it should be incumbent on the legislator to include protective measures. These might, for example, require a clear risk of imminent dissemination of the material to be shown, along with a similar risk of incitement to an actual terrorism offence. In other words, this sort of measure should at the very least be treated as exceptional, and appropriate protections against abuse should be built into it.

Regarding investigative technology in the digital world, it's a bit troubling that the green paper treats the Spencer decision as a problem to be solved or circumvented rather than a definitive statement by the country's highest court to the effect that there is a significant privacy interest in Canadians' metadata. We agree with the Spencer decision, but the bottom line is that it is the law of the land and should be respected.

What is far more troubling is that the green paper appears to be opening the door to far more intrusive and problematic policies, such as requirements for intermediaries to retain the technical ability to decrypt information sent by their users. This should be a huge red flag to any Canadian who cares about digital security.

For years, authorities in the United States and elsewhere have sought a solution whereby official access could be enabled without compromising security. The technical community has been and remains unanimous in their position that this is not possible. It is impossible to build a back door that only the good guys can walk through.

Even if it were possible to limit access to state requests that followed a proper procedure, it is worth noting that we live in a world where many governments do not share Canada's lofty ideals. What would be the impact on global human rights if the governments of China, Russia, Egypt, and Saudi Arabia demanded a similar deal? If such a solution were to be developed, it would be impossible to keep it out of the hands of the world's repressive governments. Strong encryption keeps everyone safe.

The other highly problematic new proposal that the green paper contains deals with data retention requirements. Data minimization, whereby organizations seek to limit materials stored to what is strictly necessary, is a cardinal principle of modern digital security. Overstorage is one of the main reasons that the Ashley Madison hack and last year's hack of the United States Office of Personnel Management were so catastrophic.

The green paper mentions data retention requirements in Australia. It does not mention that in the run-up to their adoption, Anonymous hacked the databases of one of the country's largest ISPs as a demonstration of why the requirement is a bad idea.

The green paper also fails to mention significant resistance at the national level to the data retention directive in Europe even before it was struck down, including having been rejected by courts in Germany, Romania, and the Czech Republic. Sweden, among others, also flatly refused to implement the directive.

Although the online world certainly presents novel challenges to law enforcement, it is worth noting that the tool kit available to police today is vastly more powerful than their investigative tool kit 20 or 30 years ago. The idea of developing a digital trail that can be tracked back for weeks or months is only a novel challenge because police never had the ability to do anything comparable in the past. If a suspect came on the police's radar in 1993, there was no way for them to go back to track their movements and communications from 1992.

From this perspective, painting the modern digital landscape as an environment where law enforcement is increasingly powerless does not comport with reality. With modern data processing, the centralization of communications due to the spread of the Internet, and the proliferating digital trail that it leaves, law enforcement investigative techniques are more powerful, effective, and efficient then ever before, even if they are not as powerful as someone in law enforcement would like them to be.

[The Chair, Liberal, Rob Oliphant]

Thank you very much.

Go ahead, Ms. Szurlej.

[Christina Szurlej, Director, Atlantic Human Rights Centre, St.Thomas University, As an Individual]

Mr. Chair and honourable committee members, thank you for the opportunity to speak with you regarding Canada's national security framework.

At this point, I would like to commend the Liberal government for launching a public consultation to inform legal, policy, regulatory, and program-based changes to the national security framework. My testimony before the standing committee centres on the additional authority for domestic national security information sharing as established under the Security of Canada Information Sharing Act, hereinafter the SCISA, and its impact on the right to privacy under domestic and international human rights law.

Indeed, the most vital function of government is to ensure peace and security by protecting its populace and citizens abroad.

States are faced with the challenge of protecting human rights and fundamental freedoms while suppressing small groups of interconnected non-state terrorists who operate in detached networks and have the capacity to commit massive atrocities with minimal resources. These elusive factors amplify the risk posed to the state and members of the public by masking efforts to identify networks of individuals who are involved in or associated with terrorism, detect potential terrorist threats, and prevent terrorism from occurring.

This, however, does not negate the state's duty to respect, protect, and fulfil its domestic and international human rights obligations. Under the Canadian Charter of Rights and Freedoms, Canada's populace is guaranteed the “right to life, liberty and security of the person”, not life and security on the one hand and liberty on the other. These protections are interdependent and non-hierarchal.

Let us consider guidance from the International Commission of Jurists, urging states to:

adhere strictly to the rule of law, including the core principles of criminal and international law, and the specific standards and obligations of international human rights law, refugee law and, where applicable, international humanitarian law. These principles, standards, and obligations define the boundaries of permissible and legitimate state action against terrorism. The odious nature of terrorist acts cannot serve as a basis or pretext for states to disregard their international obligations, in particular, in the protection of fundamental human rights.

[The Chair, Liberal, Rob Oliphant]

Could I ask you to go another inch back from your mike, just for the interpreters' ears?

[Christina Szurlej]

I apologize.

The right to privacy is protected under article 17 of the International Covenant on Civil and Political Rights, to which Canada is a state party. Though there is no equivalent protection found under the Canadian Charter of Rights and Freedoms, the right to privacy is an enabling right to the fundamental freedoms set out under section 2, namely the “freedom of thought, belief, opinion and expression” and “freedom of association”. Privacy is likewise an enabling right for freedom of information and the “free unhindered development of one's personality”.

To exchange human rights, freedoms, liberties, and democratic safeguards for national security is not justifiable. “No law, no matter how well-crafted or comprehensive, can prevent all terrorist acts from occurring.” As such, the public must be mindful that the blind relinquishment of its civil liberties may not protect them from threats to national security.

A balanced approach is needed to ensure adequate measures are in place to prevent and address any such threats while protecting the fundamental human rights and freedoms of its populace. “When States fail to strike a balance between human rights and security in the context of countering terrorism, they risk impeding the very rights they purport to protect”, for what is national security without human security and what is human security without human rights?

According to the Special Rapporteur on the right to privacy, Professor Joe Cannataci, in limiting one's right to privacy in the name of national security, several factors must be considered, including the adequacy of oversight mechanisms, the distinction between targeted surveillance and mass surveillance, the proportionality of such measures in a democratic society, and the cost-effectiveness and the overall efficacy of such measures.

Introducing sweeping changes to the way in which personal data is shared among government agencies in Canada should be coupled with a commensurate review mechanism for ensuring the information shared is accurate, is done so within the limits prescribed by law, and is done so with minimal impairment to the rights and freedoms set out under the charter.

Distinguishing between targeted and mass surveillance is essential to preventing the net from being cast too wide and encasing innocent civilians undeserving of the erosion of their civil liberties. Failing to do so assumes in a sense that all are guilty until proven innocent, perverting a fundamental and long-standing principle of justice.

In terms of proportionality, there should be minimal impairment to the rights affected and the solution must not be worse than the problem. Has this test been met by the SCISA, wherein personal data can be shared across government agencies without any guarantee as to the accuracy of the information shared or express restrictions regarding the sharing of information with private actors and foreign governments? Much like a child's game of telephone, the original content of a message risks becoming distorted, potentially having significant consequences for the individual concerned.

In his first report to the Human Rights Council, Special Rapporteur Joe Cannataci expressed concern that:

the ordinary citizen may often get caught in the cross-fire [of mass surveillance] and his or her personal data and on-line activities may end up being monitored in the name of national security in a way which is unnecessary, disproportionate and excessive.

The final point regarding cost-effectiveness is not one on which I can comment as an expert, though from a common sense point of view, concentrating resources where they are most needed—i.e., on targeted surveillance—limits the risk of overlooking a potential threat due to an information overload. In other words, we must ask ourselves what utility is served by mass surveillance? Does it result in greater protection for national security, or does an information overload spread resources so thin that it renders government efforts less effective in responding to potential threats?

As mentioned, Canada has international obligations to respect the right to privacy under the International Covenant on Civil and Political Rights. A corresponding treaty body, the Human Rights Committee, monitors the compliance of state parties with provisions within the covenant. In its concluding observations to Canada's periodic report, the Human Rights Committee expressed concerns that:

...Bill C-51's amendments to the Canadian Security Intelligence Act confer a broad mandate and powers on the Canadian Security Intelligence Service to act domestically and abroad, thus potentially resulting in mass surveillance and targeting activities that are protected under the Covenant without sufficient and clear legal safeguards...including under the Security of Canada Information Sharing Act, an increased sharing of information among federal government agencies on the basis of a very broad definition of activities that undermine the security of Canada, which does not fully prevent that inaccurate or irrelevant information is shared....

In its general comment number 16, the committee has also clarified that:

Effective measures have to be taken by States to ensure that information concerning a person's private life does not reach the hands of persons who are not authorized by law to receive, process and use it, and is never used for purposes incompatible with the Covenant.

Before Bill C-51 was passed, the improper sharing of information by the Government of Canada led to serious human rights abuses against Canadian citizens, including Almalki, El-Maati, Nureddin, and Arar.

The SCISA develops further authority for the government to share personal data without developing corresponding legal safeguards to prevent the repetition of similar gross injustices.

Now that we have identified some of the inconsistencies between the SCISA and Canada's international human rights obligations, let us look to potential solutions.

[The Chair, Liberal, Rob Oliphant]

You have about one minute.

[Christina Szurlej]

I'll read very quickly.

Number one, clearly define the scope of activities that constitute a “security threat to Canada” under section 2 of the SCISA, as well as “advocacy, protest, dissent and artistic expression”, which are excluded from the scope of the act.

Two, strike out provisions within the act permitting inter-agency information sharing to prevent losing control over sensitive information potentially harmful to Canada's national security. If disclosing information sensitive to national security can be so harmful as to warrant the limitation of fair trial rights within the existing framework—i.e., non-disclosure of classified information to the defence in a criminal case—how is this risk mitigated by inter-agency information sharing among heads of agencies who are neither experts in the right to privacy nor experts in national security?

Three, establish an office of the national security adviser “to review all national security activity, and to ensure effective information sharing” from government agencies to CSIS and the RCMP.

Four, amend the Privacy Act to compel heads of agencies to share all information that will adversely impact Canada's national security with the Canadian service intelligence agency via the office of the national security adviser. It is problematic that discretion rests with the heads of agencies as to whether to disclose information regarding “activities that undermine the security of Canada”, as they are not traditionally experts in the field.

Five, introduce regulations to track what type of information has been shared, by whom, and for what purpose, via the office of the national security adviser.

Six, follow up on cases where an individual has been cleared and ensure all relevant government agencies and other entities with which information has been shared are aware of this.

Seven, set out clear access to a remedy where information shared has resulted in adverse consequences for innocent individuals or disproportionate consequences for guilty persons.

Eight, more intrusive information sharing should require authorization through the issuance of a judicial warrant.

If the SCISA continues to allow inter-agency information sharing regarding the activities set out under section 2, I likewise recommend that it ensure that revisions to schedule 3 adding or deleting a Government of Canada institution are accompanied by a clear justification, including an explanation of how the agency's duties directly relate to national security.

I wish to end with this final point: “...respect for human rights legal obligations is a prerequisite for effective security”, not a hindrance. Canadian domestic legislation should reflect this by striking an appropriate balance between the right to privacy and the protection of national security.

Thank you.

[The Chair, Liberal, Rob Oliphant]

Thank you very much.

We begin our rounds of questioning with Ms. Damoff, for seven minutes.

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

Thank you very much.

Thank you both for being here and testifying before us.

I want to talk about cybersecurity and technology that you were talking about. It has come up a few times. Metadata has come up during our testimony. When the RCMP and CSIS testified, they described it as the information on the back of an envelope. Other witnesses have said it's much more than that.

I'm wondering if you can explain this to us. No one wants to hinder the police or the RCMP or anyone from getting information needed for an investigation, but by the same token you have a certain expectation of privacy.

Under the Spencer decision, how do the police go about getting information, and what are they allowed to obtain on your cybercommunications or electronic communications?

[Michael Karanicolas]

First, it's worth noting that metadata can be defined in many different ways. Depending on how it's defined or how it's framed in the legislation, there are different levels to which it can be somewhat invasive or highly invasive. If you consider metadata to include, for example, a list of the websites that you visited, then even if you're not getting the content of the communications through a particular website, the fact that you go to a website can reveal a huge amount of deeply personal information.

In terms of our recommendations, depending on the definition—it does depend on the definition—metadata can be an incredibly invasive insight into a person's life.

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

Do you think our legislation should have a definition of what is allowed to be obtained during a search, or is that becoming too specific?

[Michael Karanicolas]

You do get a challenge because of the general rule that laws should be written in as technologically neutral a fashion as possible to prevent them from having to be revised or revisited every year or two.

The way that technology changes does lead to challenges. In terms of a good formula, criminal procedure is not my specialization, but I will endorse the lawful access provisions that David Fraser has put forward as a way of providing for proper procedure for obtaining warrants to access subscriber information.

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

On encryption, we also had another witness. The chair said we need to stop thinking about encryption in World War II terms, where you encrypted code and that allowed you access to state secrets. Now it's much different. He described how it was more dangerous to allow encryption then than the way it is now, because, as you said, you don't know who is getting in the back door.

Encryption is also a real challenge for law enforcement. Is there a middle ground on it, or is it either you live with it and you work around it or you allow certain access to it?

[Michael Karanicolas]

It certainly is a challenge. Whether or not there's a middle ground generally is a technical question. Again, my background is in law and human rights. All that I can do is look to what the technical community has said.

For years, governments have been saying—and the U.S. government has been prominent in this—that we need to find a way whereby the government can obtain a warrant to access encrypted communication that won't undermine the general security of the information.

Time and time again this has been suggested, and time and time again the people who work on this have said it is not possible. Any illicit means of access, any additional means of access, provides an additional weak point that increases the vulnerability of the system.

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

Okay. If you don't have any information on this, it's fine, but no one has talked about the financing aspect. I'm just wondering if either of you has any expertise on that aspect to comment on terrorist financing, which is in the green paper. Does either of you have any comment on that?

[Michael Karanicolas]

No, sorry.

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

That's fine.

When we were talking about promoting terrorism, do you believe the existing offences that pertain to hate propaganda are sufficient? Also, are any other countries using the same language that we use in regard to promoting terrorism? You're not the first ones who've talked about the issues with journalists. I had an email from people in my riding who have the same concerns.

[Michael Karanicolas]

There are many countries that have laws against promoting terrorism, including Russia and Egypt. They generally come from the areas of the world that I wouldn't want to see Canada trying to emulate.

What I can say is that the key in terms of international human rights standards is to find that nexus where you're outlawing speech that has a direct cause-and-effect relationship with the harm, whether it's terrorism, whether it's racial hatred. That is black-letter international human rights law.

Whenever you move beyond that and talk to the broader area of something that might potentially and directly be used by somebody to carry out a terrorist offence or inspire someone to do so, it takes you into very grey territory. Generally speaking, human rights standards are very clear about requiring that nexus between the cause and the effect.