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.
4:30 p.m.
Liberal
The Chair Liberal Rob Oliphant
Okay. We'll make a note of that in the minutes. Thank you.
My thanks to all the witnesses for joining us today.
Thank you for your time and for your testimony. We'll take a brief pause as we change to go to the second hour.
4:30 p.m.
Liberal
The Chair Liberal Rob Oliphant
We're going to continue now with the second part of our meeting.
It was the committee's request to spend a little more time with officials from CSIS. We're very pleased that the director, Mr. Coulombe, is here with us, as well as Mr. Cousineau, who is here as the assistant director. We also welcome, from the Department of Justice, Mr. Frater, chief general counsel.
I understand that the director has a statement. Members should have copies of it.
We'll give them time to make a statement, and then we'll proceed to questioning.
Welcome.
4:30 p.m.
Michel Coulombe Director, Canadian Security Intelligence Service
Thank you very much, Mr. Chair.
Thank you for giving us the opportunity to talk about a very important issue today.
As Canada's national intelligence service, the mandate of the Canadian Security Intelligence Service, CSIS, is to identify, investigate and advise government of threats to the security of Canada.
To fulfill our mandate, we rely on a range of investigative techniques. Irrespective of the technique employed, operational activity must be authorized, reasonable and proportionate; this, in consideration of the nature of the threat.
When required, and with the approval of the minister, CSIS may make an application to the Federal Court to obtain warrants against subjects of investigation. These warrants, which are granted by the Federal Court, authorize the use of specific investigative techniques in accordance with specific conditions identified by the court as appropriate.
One such technique is the interception of communications. When CSIS intercepts communications, it obtains the content, as well as the associated data linked to that communication. Associated data is the context, not the content, of a communication. Such data is used by computer systems to identify, describe, manage, or route communications across a network. On its own, it does not identify individuals who are party to a communication.
Whereas CSIS analyzes the content of communications intercepted under warrant to determine whether or not it is to be retained or destroyed, and continues to do so, in 2006 CSIS adopted the position of retaining and exploiting associated data to enhance our ability to detect threats. It is important to know that CSIS collects this associated data legally, through warrants issued by the Federal Court. At issue, however, is the service's retention of associated data lawfully collected under warrant and, in particular, our decision to retain all such associated data, including that which may be non-threat-related associated data linked to third party communications.
The Federal Court also clearly pronounced on the service's duty of candour, finding that CSIS had breached its duty of candour by not informing the court of its position on the retention of associated data and the creation of the Operational Data Analysis Centre, commonly known as ODAC. I can assure you that this was not deliberate.
I agree that the court should have been informed earlier of our approach to the retention of associated data and the establishment of the program. Key government stakeholders were informed of these matters. Former ministers of public safety, the Office of the Privacy Commissioner, the Security Intelligence Review Committee and the Inspector General of CSIS were all briefed on the existence of ODAC and the value of data analytics to CSIS investigations. Clearly, the service was not attempting to keep our data analytics program a secret.
Mr. Chair, as I stated in my remarks on November 3, I accept the court's decision, and I have taken immediate action to respond. I acknowledge the court's serious concerns, and I am committed to continuing efforts to address them.
Immediately after the court decision was issued, CSIS halted access to and analysis of all associated data. While we did so out of an abundance of caution, the service has begun to allow access to and use of the associated data of threat-related communications. We did so because the service unquestionably has the authority to retain this information, and its use is necessary to protect public safety. Efforts are also under way to develop and implement appropriate policies and procedures that clearly address the court's concern. I would like to note that the decision acknowledged the value of data analytics to the service's investigations.
CSIS and the Department of Justice are also working together closely to develop measures aimed at ensuring that we meet our obligations to the court in matters of transparency and duty of candour. I would also note that, as indicated by the Minister of Public Safety, SIRC has been briefed and will be reviewing the service's response to this decision and submitting a report to the minister.
Mr. Chair, and members of the committee, let me be clear: CSIS, in consultation with the Department of Justice, interpreted the Canadian Security Intelligence Service Act to allow for the retention of non-threat-related associated data linked to third party communications collected under warrant.
Though it is now clear that the Federal Court disagreed with this interpretation, and we accept this, CSIS was not knowingly exceeding the scope of the Canadian Security Intelligence Service Act.
I wish to reiterate that CSIS recognizes the importance of compliance with the Canadian Security Intelligence Service Act, as well as openness and transparency with the Federal Court.
And with that, Mr. Chair, I will conclude my remarks and welcome any questions.
4:40 p.m.
Liberal
The Chair Liberal Rob Oliphant
Thank you, Mr. Coulombe.
We will start with Mr. Di Iorio.
You have seven minutes.
4:40 p.m.
Liberal
Nicola Di Iorio Liberal Saint-Léonard—Saint-Michel, QC
Thank you, Mr. Chair.
Thank you, Mr. Coulombe. My thanks to your colleagues as well for taking the time to prepare and present their remarks.
Mr. Coulombe, first, let's go to page 3 of your presentation. The first question that comes to my mind is: has the act changed?
4:45 p.m.
Director, Canadian Security Intelligence Service
Are you asking me if it has changed since the decision?
4:45 p.m.
Liberal
Nicola Di Iorio Liberal Saint-Léonard—Saint-Michel, QC
You wrote that the act allowed the retention of the data. As I read the paragraph, I get the impression that you are implying that the act has changed.
4:45 p.m.
Director, Canadian Security Intelligence Service
No. the paragraph reads: “…CSIS, in consultation with the Department of Justice, interpreted the CSIS Act….”
4:45 p.m.
Liberal
Nicola Di Iorio Liberal Saint-Léonard—Saint-Michel, QC
So the service came up with an interpretation that was approved by the Department of Justice at the time. Is that correct?
4:45 p.m.
Director, Canadian Security Intelligence Service
The service's interpretation of the act was based on advice from the Department of Justice.
4:45 p.m.
Liberal
Nicola Di Iorio Liberal Saint-Léonard—Saint-Michel, QC
So that advice went back to 2005 at least, if not even earlier.
4:45 p.m.
Liberal
Nicola Di Iorio Liberal Saint-Léonard—Saint-Michel, QC
My understanding is that that interpretation, which had been supported by Department of Justice officials, was rejected by the Federal Court.
4:45 p.m.
Liberal
Nicola Di Iorio Liberal Saint-Léonard—Saint-Michel, QC
Do any aspects of that ruling give you the right to appeal?
4:45 p.m.
Director, Canadian Security Intelligence Service
We had the right to appeal, but the decision was not to do so, and to accept the ruling of the Federal Court.
4:45 p.m.
Liberal
Nicola Di Iorio Liberal Saint-Léonard—Saint-Michel, QC
I am not asking this question to annoy you or to distance myself from the decision in any way at all, but so I can really understand.
Do you not think it would have been useful to have a clarification from the Supreme Court of Canada on a matter like this? If the nine justices of the Supreme Court had clarified the matter, Canadians would have had a more complete picture of the situation. Is there anything that would explain the reluctance to ask for that clarification?
4:45 p.m.
Director, Canadian Security Intelligence Service
Because that is a legal question, I am going to turn to Mr. Frater, if I may.
December 8th, 2016 / 4:45 p.m.
Robert Frater Chief General Counsel, Department of Justice
I prefer to answer in English.
There are many reasons to appeal or to not appeal, and this is a very long judgment that deals with a lot of subjects. A large number of the subjects dealt with were dealt with to our satisfaction. It was primarily about setting terms and conditions for warrants going forward. We were quite satisfied with that part of the decision.
With regard to the part of the decision dealing with the duty of candour, we acknowledged to the court that we had breached our duty.
Ultimately, I think what the court was saying was that there should, perhaps, be more clarity in the legislation, rather than seeking clarity.... We always have a choice about seeking clarity: should it be done through legislation or litigation? Our choice here, I think, is in some measure about what should be the subject of legislation and what should be the subject of further clarity through litigation.
4:45 p.m.
Liberal
Nicola Di Iorio Liberal Saint-Léonard—Saint-Michel, QC
Thank you, Mr. Frater.
Mr. Coulombe, let me go over the sequence of events again. Your service asks for advice about whether a project you are planning is in compliance with the act. As you have to collect and retain information, you want to know whether you are collecting and retaining it appropriately. I am summarizing, but the answers you received authorized what you were doing.
For how long did people act on the basis of that advice?
4:45 p.m.
Director, Canadian Security Intelligence Service
The analysis program was started in 2006 and Justice Noël's decision was rendered in 2016. So it happened over a period of 10 years.
4:45 p.m.
Liberal
Nicola Di Iorio Liberal Saint-Léonard—Saint-Michel, QC
It happened over a period of 10 years.
As I understand it, when the decision was rendered, your service changed its approach out of caution, correct?
4:45 p.m.
Director, Canadian Security Intelligence Service
Yes, that's right. As I mentioned, the decision deals with a section of the associated data we collect and retain. When Justice Noël rendered his decision, we stopped accessing and analyzing all the associated data, in order to analyze the decision more thoroughly and to put mechanisms in place that would allow us to resume the program with the data we can retain.
4:45 p.m.
Liberal
Nicola Di Iorio Liberal Saint-Léonard—Saint-Michel, QC
So, there were legal opinions.
At the bottom of page 2 of your presentation, you indicate that, at the time, the Minister of Public Safety, the Office of the Privacy Commissioner, the security intelligence review committee and the inspector general were all aware of it.