Evidence of meeting #49 for Public Safety and National Security in the 42nd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was decision.
A video is available from Parliament.
5:10 p.m.
Liberal
Pam Damoff Liberal Oakville North—Burlington, ON
I understand that. It was explained to me that it's like putting security cameras in someone's house all the time in case there might be a crime. People can relate to that.
I think when you're talking about data and associated data and metadata, it's like speaking a different language to people, but if you think of it in those terms, most people would say they don't want cameras in their house 24 hours a day just in case somebody might break in one day.
5:10 p.m.
Director, Canadian Security Intelligence Service
I totally understand that. My point here is that I am telling you, from the other side, that it can be useful. The decision to keep it, use it, or destroy it because of privacy considerations is a public policy decision.
5:15 p.m.
Conservative
Larry Miller Conservative Bruce—Grey—Owen Sound, ON
Gentlemen, thank you for being here.
Mr. Coulombe, I want to continue on the potential eventual destroying of the data, but before I do that, I want to read one of your last paragraphs in your opening remarks. You said, “CSIS, in consultation with the Department of Justice, interpreted the CSIS Act to allow for the retention of non-threat-related associated data linked to third party communications collected under warrant.”
Is any of this data stored or solely with the Department of Justice, or is it all within your department?
5:15 p.m.
Conservative
Larry Miller Conservative Bruce—Grey—Owen Sound, ON
Okay, that's good.
Have you any idea with respect to timelines, when the decision to destroy or not destroy will be made?
5:15 p.m.
Director, Canadian Security Intelligence Service
If I were going to give you a timeline...I can't at this point. It is a very complex decision.
5:15 p.m.
Conservative
5:15 p.m.
Director, Canadian Security Intelligence Service
I would hope that within six months we would be in a position to decide what shouldn't be destroyed and what should be destroyed.
5:15 p.m.
Conservative
Larry Miller Conservative Bruce—Grey—Owen Sound, ON
That's fair enough. I realize that there are a lot of factors.
Now, let's say that the decision is made to destroy it. I want to go to a scenario back when the long-gun registry legislation was changed. It was eventually ordered that the data be destroyed. The order was made, and we were told that it was, but it was very obvious to many of us that, after the fact, I'll just say that some provinces or some individuals obviously had a copy of it, or part of it—we don't know. The reason I say that—and I can get the data or information to back this up—is that too many related instances on firearms about individuals came out when they went to renew...this kind of thing.
Once the decision to destroy this information is made, how can the average Canadian be 100% sure that it's going to be destroyed? I'm not suggesting that you would do otherwise, but sometimes there are a lot of people who have their fingers on the button, so to speak, Mr. Coulombe, and you're not the only one.
5:15 p.m.
Director, Canadian Security Intelligence Service
That's a fair question.
That specific data bank is actually centralized in headquarters, and the number of people who have access to it to do the analytics is restricted. So, it's not accessible to all CSIS employees.
Again, SIRC has been tasked by the minister to monitor our response to the Federal Court decision. If and when the decision to destroy part of that data bank is made, I am certain that would be one aspect of, or reaction to, that decision that SIRC would review.
5:15 p.m.
Conservative
Larry Miller Conservative Bruce—Grey—Owen Sound, ON
Okay, just to carry it a little bit further, is it safe to presume that there's probably more than one copy of that information for safety reasons? It's like me renting a safety deposit box in a bank for important documents. Would the same kind of scenario apply to this case?
5:15 p.m.
Director, Canadian Security Intelligence Service
Yes, we have backup of that data bank in the event that, for example, something would happen in headquarters, like some natural disaster. Again, the procedure is that if we were to destroy the data, we would make sure that the backup banks are also destroyed. Again, SIRC, I'm sure, would look at that.
5:20 p.m.
Conservative
Larry Miller Conservative Bruce—Grey—Owen Sound, ON
To close out, approximately how many people within the department would be involved in safeguarding that information, or at least have the ability to see it? Is it limited to two, three, ten? Do you have any idea?
5:20 p.m.
Assistant Director, Operations Enablement, Canadian Security Intelligence Service
As Director Coulombe has pointed out, the one advantage we do have in being able to look at associated data is that it has been very much a centralized program. As Director Coulombe alluded, the information is within the walls of our HQ building, and we are very much aware of exactly where it is.
The exact number of users that we have in ODAC isn't actually representative of the folks who would see associated data because—as I return to my previous response—ODAC does more than just analyze associated data. Exactly how many people have access to the associated data? I'm going to put a number out there, but please don't quote me on it because it may be plus or minus a bit. I'm going to say probably twenty-ish.
5:20 p.m.
Conservative
Larry Miller Conservative Bruce—Grey—Owen Sound, ON
That's fair. That answers my question. Thank you very much.
5:20 p.m.
Director, Canadian Security Intelligence Service
If you want, Mr. Chair, if that number is really incorrect, we can come back to the committee with—
5:20 p.m.
Liberal
The Chair Liberal Rob Oliphant
Thank you.
I'm just going to take my prerogative to ask one question. It follows up on Mr. Miller's question.
It's really for Mr. Frater about a concern that I have. I have read the judgment in the redacted version that we have as a public document, and Justice Noël's five principal decisions are quite clear and unambiguous. The government has decided to not appeal the decision and has accepted the decision.
However, CSIS depended upon the legal advice of Department of Justice officials. They went to the lawyers who are paid for by the crown and by the people of Canada to give the best legal advice. A Federal Court judge has unambiguously said that your advice was wrong. I just need to know what confidence you have, as the chief general counsel, in the advice you are giving the government on these important issues, and what steps you have taken to ensure that future advice on the interpretation of an act that's as important as the CSIS Act is correct.
5:20 p.m.
Chief General Counsel, Department of Justice
Clearly, we always strive to give the government the best legal advice that we can. In this situation, as in every other, we reviewed the case law, came up with the legal position, and ultimately the court disagreed with us.
5:20 p.m.
Liberal
The Chair Liberal Rob Oliphant
But it was over a 10-year period, from 2006 to 2016. That's a long period of time to be giving advice.
5:20 p.m.
Chief General Counsel, Department of Justice
It's not that we were giving wrong advice continuously over 10 years. There was a question of the legality of what it was that CSIS wanted to do. We gave an opinion on that, and until it's litigated, as it was here, we continue to believe that we gave the best legal advice based on the law as we understood it at the time. But from time to time it happens that judges disagree with us. Laws are struck down sometimes when Parliament thought they were constitutional. We might have given advice that in our opinion it was constitutional.
5:20 p.m.
Liberal
Marco Mendicino Liberal Eglinton—Lawrence, ON
I think in fairness sometimes judges of the Supreme Court have differing views on constitutional matters, but I digress.
At paragraph 204 of the October 4, 2016, Federal Court decision on an application for a warrant, I do not know if you have a copy of it handy, but there's one thing I would like to clear up so that I haven't misunderstood the testimony today. I'll read from that passage right now, which states:
Presently, the CSIS must destroy [redacted] within a period of [redacted] from the time of collection, whether or not the communication has been assessed as threat related pursuant to condition 2 of the warrant.
That one sentence does suggest, unless I am reading it out of context, and sometimes context is difficult with redactions, that there is an expectation by the court that CSIS must destroy something within a period of time of collection. Can you provide some clarification about that?
5:25 p.m.
Director, Canadian Security Intelligence Service
What you're reading is part of the new warrant conditions that we were proposing—and correct me, Rob—but it is basically going forward. When you read the decision, the judge didn't rule on what we have now in terms of destruction.