Public Safety Committee on Nov. 15th, 2016

[Prof. Stephanie Carvin]

I agree with you that the stipulations for parliamentarians, should they divulge information, are very severe and very clear in this bill. I agree in the sense that those safe locks are there. I suppose where I would like to see more guidance is that you can always present an issue, but it depends on how specific you get with the issue.

For example, let's say there is an ongoing case. It's very rare, for example, that an intelligence organization would divulge the name of the people, or perhaps they would say it was in a city in a particular province. I think you could speak about an issue in sufficient generalities such that parliamentarians could still be briefed on an issue in more general terms, but it's not.... Do you see what I'm saying?

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

Yes, I understand. I guess our concern is that—with all due respect—it's more than a briefing, right? The idea is to prevent tragic situations like the Maher Arar one, for example. What I'm having difficulty understanding is why, confidentially, we would not allow these parliamentarians to have full access. One of the examples that was raised was Bill C-622, which was actually a Liberal bill that Joyce Murray presented in the previous Parliament and allowed full access to information.

A lot of folks are saying that is the model to follow, at least internally with the committee, so that they can appropriately do their jobs, because it's difficult to do oversight when you're having to go on a leap of faith with a briefing. I don't know if that makes sense.

[Prof. Stephanie Carvin]

Yes, it's a tough issue. I would suggest that, if nothing else, there needs to be more guidance. Right now, I think, as it stands, that particular line is not clear enough. It should be more specific. It might help if active “ongoing investigation” were more narrowly defined, because an investigation can last for two to three years, quite frankly.

Again, I think it's important to be clearer and provide more guidance in that particular piece of legislation. I don't have a line on hand with me, and I wish I did, but I understand your concern, and I certainly agree that where we should be erring on this bill overall is on the side of transparency, as opposed to not....

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

Thank you.

My time is just about up, but I want one last quick question about the election of the chair. The government has told us that there's no point in speeding it up and that it took the U.K. a long time to get there. I don't really think that argument holds much water. That is one of our amendments as well.

May we perhaps have your thoughts quickly on that? It does influence the report afterwards, because if the chair is answering to whoever appointed him, as opposed to the parliamentarians, I think that might cause a bit of conflict.

[Prof. Stephanie Carvin]

It's my understanding that in the U.K. now the chair is elected, and I think we're probably going to end up going there anyway and I would suggest that—

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

We just do it now.

[Prof. Stephanie Carvin]

—it does make sense going forward.

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

Okay. Thank you.

[The Chair, Liberal, Rob Oliphant]

Thank you very much.

I want to take a moment to welcome Justice Major. Thank you for joining us. Our apologies for the time problem. We're going to stop in the middle of our questioning, have a presentation from you, and then recommence our questioning.

[John Major, As an Individual]

Let me begin by apologizing for getting the time confused. I was labouring under eastern time, and I should have known better.

I will be very brief. The only comment of consequence is with respect to subclause 13(2), where the “information” includes information that penetrates the solicitor-client confidentiality. I don't think that would pass charter scrutiny. I don't think you can pierce the solicitor-client privilege. Perhaps you might consider getting legal advice on that.

The only other comment that I would make is with respect to subclause 21(2), on reporting directly to the Prime Minister. That seemed to be a little too narrow, but as I read further on I think you have provided for eventually getting the report to Parliament.

That's the total of my observations.

[The Chair, Liberal, Rob Oliphant]

Thank you. We'll continue. To give you a heads-up, I suspect you're going to be asked a number of questions on that, because I think the committee will want to hear from you.

We're going to Mr. Spengemann now for seven minutes.

You can question either Dr. Carvin or Justice Major.

[Sven Spengemann, Liberal, Mississauga—Lakeshore, ON]

Thank you, Mr. Chair.

Professor Carvin, thank you for your service as an analyst, and thank you for being here and for bringing your amazing students.

Justice Major, it's an honour to have you with us.

My questioning has two themes. One is to explore the nature of building trust, because I think public trust in government is one of the strongest assets that this committee is aimed at. I would like to get your views and a bit more detail on that. My second interest is in the relationship with defence issues. I serve on the Standing Committee on National Defence as well, and I think there are clear overlaps, and some teasing out of the details might be helpful.

I want to begin, Professor Carvin, by asking you, just generally, what do Canadians think and feel about national security? How up to speed are they? I know that there are a lot of things in the headlines, but understanding.... My anecdotal assessment is often not as detailed as it needs to be to fully harness or understand the opportunity that this committee represents. What challenges are there on the side of the Canadian public's understanding, and how can this committee work to close that gap?

[Prof. Stephanie Carvin]

Thank you for your question.

One of the issues that I think illustrated this was the debate over Bill C-51. A lot in Bill C-51 could perhaps have been criticized, but debate over it often came between individuals who were accusing those who did not want to support the bill as being in favour of child molesters, and, on the other hand, individuals who were accusing those who did support the bill of trying to create a 1984 surveillance state.

My concern is that the security environment in Canada has evolved considerably since the Cold War and I'm not convinced Canadians' understanding of that issue has. That's not to discredit the fabulous people working on this area, but let's just take the example of espionage. It's no longer about states trying to break into safes to steal designs for submarines or trying to steal the crown jewels of secrets. It's now about trying to get the health records of individuals through cyber-intrusions in order to use that information to exploit these individuals or to find out information on them where they may be vulnerable.

It's that kind of transition in terms of the scope of activities that we see some of these states doing that I think needs to be raised up. I would like to see this committee talk about the evolution of national security issues that this country faces and then communicate to the country what our services are doing in order to respond.

[Sven Spengemann, Liberal, Mississauga—Lakeshore, ON]

Maybe I'll ask two questions before turning to the committee.

How intertwined is the intelligence community in terms of data sharing and information sharing? I'm looking specifically at the Five Eyes, but even beyond that. Then, what are the changes that are most profound in terms of public perception of the sources of our intelligence?

Could you then add a quick comment on classification levels? How much of a constraint are they in terms of day-to-day work and in terms of what this committee could see and, most importantly, in terms of what this committee could or could not communicate onwards to Canadians?

[Prof. Stephanie Carvin]

These are some very interesting and challenging questions. With regard to data sharing, it's not.... I read an article yesterday which suggested that because the RCMP now has this operational centre they're sharing all their databases or bringing them all together. No, it doesn't work like that.

Services are bureaucracies, and they are very protective of their information and their people. They've been criticized in the past for not sharing information appropriately. I think there is a perception that it is a kind of free-for-all and that there is data sharing. I am supportive of putting more clarity on the process itself, such as, for example, in Bill C-51, even though that's not what we are talking about here specifically.

I also believe that there should be.... Perhaps this will get to some of your questions on defence. Craig Forcese, the professor at the University of Ottawa whose work I very much admire, talks about having a super-SIRC that would enable the organizations, or at least the committee or some body, to follow the information as it goes from one agency to another. I think there needs to be slightly more appreciation for the safeguards that are put in place within these organizations, as I understood them.

[Sven Spengemann, Liberal, Mississauga—Lakeshore, ON]

That's a fair point.

Can you comment on how much data and how much intelligence comes from open sources versus classified sources? We talk a lot about classification levels. Is that the tip of the pyramid? Or is most information actually classified and the Canadian public really cannot look over the shoulders of this committee to any greater extent than just a report that the committee may issue once a year?

[Prof. Stephanie Carvin]

On the issue of open-source intelligence within the community, I would suggest that.... I've seen statistics that say that as much as 70% of information used by intelligence agencies is actually open-source information. I'm not talking just about databases or anything like that; I'm talking about people reading The New York Times or other articles. There is actually a fair similarity between the jobs of spies and journalists in terms of collecting information using sources and things like that. I think that would be one of the things to be considered.

With regard to the committee, could you repeat that part?

[Sven Spengemann, Liberal, Mississauga—Lakeshore, ON]

If you're saying that's right, then the committee could presumably communicate a fair bit outside of regular reports to the public. It could find some mechanism—you called them “innovative techniques”—to engage the public more so that the public has a better understanding of what the committee does and what our security and intelligence agencies actually do on a daily basis.

[Prof. Stephanie Carvin]

I absolutely and fundamentally believe that. There was a really good example today in the Toronto Star. The RCMP brought in two journalists to talk about some of the challenges they're facing with regard to encryption and data. They brought them in and talked about the cases. They didn't go into specifics, but they gave examples. This is exactly the kind of work that I would like to see the committee engage in to communicate to Canadians.

You're absolutely right: open-source information could be used to achieve this.

[Sven Spengemann, Liberal, Mississauga—Lakeshore, ON]

That's extremely helpful to our committee. Thank you so much.

In the remaining one minute, could you comment on a potential relationship between the Bill C-22 committee and the NCIU of the Canadian Forces?

[Prof. Stephanie Carvin]

Again, this is where Craig Forcese says we need to have some kind of super-SIRC that overlooks all the bodies and all the ways that intelligence information is shared. Given the differences in mandate, I would suggest that perhaps the information sharing isn't as great as some people think it is.

Where the challenge is going to be for the committee, in particular—and perhaps this goes back to Mr. Clement's question—is having people with the expertise to understand how military operations work, and how intelligence is used in military operations and how it is used in domestic investigations, because it's very different. These are very different activities. This is my one concern with this kind of larger body that Professor Forcese has suggested. It's that you would need people to have a kind of expertise that transcended that. That would be a challenge.

[Sven Spengemann, Liberal, Mississauga—Lakeshore, ON]

That's extremely helpful.

Thank you so much, Mr. Chair.

[The Chair, Liberal, Rob Oliphant]

Thank you, Dr. Carvin.

Mr. Miller, you have five minutes.

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

Thank you, Mr. Chair.

Thank you, Ms. Carvin and Mr. Major, for being here.

Mr. Major, I want to ask you to enlarge a bit. You mentioned subclause 13(2) in regard to solicitor-client confidentiality. Can you enlarge a little on what exactly your concerns are?

[John Major]

The only absolute privilege that we have in Canada is the communication between solicitor and client. I think subclause 13(2) invades that, where they say specifically that:

The information includes information that is protected by litigation privilege or solicitor-client privilege

That invades the confidentiality of that relationship, which has been part of our legal framework almost forever.