Public Safety Committee on Feb. 15th, 2017

[Peter Edelmann]

My concern is what we're not aware of—in other words, what no one is aware of, because there is nobody, beyond perhaps the Minister of Public Safety.... But even the Minister of Public Safety doesn't necessarily have an overview of everything that's happening. Perhaps that's a question to ask Minister Goodale. Otherwise, there is no entity that would know, or that would necessarily have that information.

[Tony Clement, Conservative, Parry Sound—Muskoka, ON]

What about the proposed parliamentary oversight?

[Peter Edelmann]

They would be able to look into it once they're up and running, presumably, if the scope of their mandate is broad enough to encompass.... Right now, the scope that is set out in Bill C-22 is a third definition of national security. In other words, it doesn't refer to either the CSIS Act or the Security of Canada Information Sharing Act's definition of national security, and that was one of our criticisms of Bill C-22. We need a coherent definition of what it is we're talking about when we talk about national security. Right now, we don't have one. We used to have one that was referred to in general by legislation, which was the definition in the CSIS Act. Now we have this other definition and potentially a third one. How they play together is unclear and, in our submission, not helpful.

[Tony Clement, Conservative, Parry Sound—Muskoka, ON]

How much time do I have, Mr. Chair?

[The Chair, Liberal, Rob Oliphant]

You have two minutes.

[Tony Clement, Conservative, Parry Sound—Muskoka, ON]

Dianne, do you want to speak?

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

Maybe you can clarify this. This is regarding no-fly lists. When we were doing our hearings across the country, that topic was brought up on a fairly regular basis.

Because most of the references made were to the U.S. no-fly lists—and I'm pretty sure that the United Kingdom and Germany and other countries around the world would also have those no-fly lists—how do we come together and have a common-sense approach when we talk about people not being able to fly into different countries? I ask because we're typically talking about the U.S.

I don't know who wants to answer that.

If I got on a plane in Vancouver to fly to the U.K., I'm not going over U.S. air space, I'm not coming into contact with U.S. officials, but I would expect that they would have a no-fly list.

[Peter Edelmann]

If this is a practical question about how the no-fly lists work, each country implements its own no-fly list. The challenge that we have, and I think that was being addressed earlier, was that many flights in Canada that begin and end in Canada, fly over U.S. air space. That's one of the challenges. But if the flight doesn't go into U.S. air space, then the U.S. no-fly lists, in my understanding, are not relevant.

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

I understand that, but then you'll have other no-fly lists. As you're saying, every country has a no-fly list, so I would suggest that it wouldn't just be problematic going into the U.S. but into other countries as well—but we're focused on the U.S.

[Peter Edelmann]

I believe that that focus is for geographical reasons. It has to do with the flights that begin and end in Canada that go through U.S. air space, but otherwise the no-fly lists—

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

There are no problems anywhere else.

[Peter Edelmann]

There are problems, but those problems would arise anyway. If you want to get into the United States, you're going to need to adhere to their laws, whether their laws are reasonable or not. Whether we agree with their laws or not is somewhat irrelevant, in the sense that they're going to enforce their laws and deny people entry. As we've recently seen with the executive order, whether we agree or not, the people who are covered by the executive order aren't going to be getting on the planes.

[The Chair, Liberal, Rob Oliphant]

Thank you. I'm afraid we need to end it there.

Monsieur Dubé.

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

Thank you, Mr. Chair.

I apologize to the witnesses and my colleagues for my tardiness. I have no one else I can substitute for me here, so that's a reality I have to deal with.

I would like to ask a question about the border; it goes to both the Canadian Bar Association and the National Council of Canadian Muslims.

Obviously, this subject is very much in the news these days. In general, do you have concerns with the expansion of powers at the border or with the border becoming more integrated, as was mentioned this week? How should we proceed in this situation, particularly in terms of bills C-21 and C-23?

[Peter Edelmann]

The Canadian Bar Association is in the process of studying bills C-21 and C-23. We will have some proposals for you once they have been approved. Currently, they are at the revision stage.

We do indeed have concerns with how the measures proposed in those bills will work, as well as with the integration of the borders. Communicating information, co-operation and oversight of our national security agencies are also questions that I brought up previously.

That is precisely what the Arar Commission focused on. Mr. Arar’s experience was actually the result of a complex co-operation problem, specifically with regard to the information that was communicated.

[Ihsaan Gardee]

Our organization is also looking at it and reviewing Bill C-23 and Bill C-21. We will be putting together submissions on that.

At the same time, we recognize that the U.S. is a sovereign nation that is able to determine who is or is not able to enter its jurisdiction. At the same time, some of the discriminatory and intrusive treatment that has been reported by Canadians is problematic. We're looking, really, for assurances that the government will go to bat for its citizens. We're calling on the public safety minister to reconsider proposed legislation that would grant further powers to American border officials in questioning and detaining Canadian travellers. This kind of pre-clearance law will erode the rights of travellers, including those of Canadian citizens and permanent residents. The agreement, which was negotiated during the previous American administration, takes on a whole new meaning in this new era.

Canadian Muslims in particular are deeply concerned and anxious about travelling to the U.S. This is troubling, as many Canadian residents have family and work commitments there. This climate threatens to unfairly infringe on their freedom of movement.

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

Thank you for that.

To the Canadian Bar Association, the question of metadata was raised. In view of Justice Noël's recent decision on CSIS' bank of metadata, what do you see as the solution going forward?

I asked the minister about this, and there doesn't seem to be a commitment one way or another, whether to continue this program in some shape or to legalize it, if I can phrase it that way. There is also the issue of what needs to be done with the data that's already there, because they still have it. It hasn't been destroyed or anything.

I'm just looking for your thoughts on where they should be going, moving forward, and if it should be a legislative solution or otherwise.

[Peter Edelmann]

The first comment I would make with respect to the decision of Justice Noël is that the underlying problem—which we see across the board in our national security agencies—is a lack of transparency. What would be very helpful to a discussion about national security issues is transparency of the law as it is being applied within the agencies.

What we have right now is a body of what we would refer to as “secret law” that is being applied within the agencies in terms of how the law is being operationalized. What we have in Justice Noël's decision is an interpretation of metadata and associated data that was being applied by CSIS for many years but that nobody knew was happening. Nobody knew that's how they were interpreting the law. Justice Noël took the view that this was not an accurate or an appropriate way to interpret the law. These mechanisms and the way that the law is being applied ought to be made transparent so that these discussions can happen in a more open way.

With respect to the issue of metadata specifically, again we're in a bit of a difficult situation, because we have a limited understanding of exactly what is being done, how that metadata is being used, and why. That's understandable to a certain extent, but there is also very good reason for us to have a better understanding of the overall legal infrastructure as it is perceived and being applied by these agencies and how these things play out.

Our position would be along the lines of the Supreme Court decision in Spencer, that there is a privacy interest in metadata or a reasonable expectation of privacy in metadata, and those interests ought to be protected and ought to be given significant weight in decisions on balancing how that metadata is used and collected.

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

Thanks for that.

Mr. Gardee, you talked a bit about the work to reach out to communities, and the government's talked about having this counter-radicalization coordinator. What would you be looking for in that person's role and in the kinds of projects they could work on going forward?

[Ihsaan Gardee]

I think it's important we recognize that efforts at community engagement to combat radicalization toward criminal violence do link with the effort to combat discrimination within mainstream society as well, along with the effort to promote integration of Muslim youth. We also have to recall that violent extremism is not the exclusive franchise of any one particular community, as we have so recently seen. It's important for that office, and for the adviser in that office, to have credibility, to look at radicalization to extremist violence of any kind.

It's also a concern that it's increasingly politically popular to demand that Canadian Muslims adapt and demonstrate fidelity to “Canadian values” without concomitant assurances of security, inclusion, and equality. One police officer who works at the Ottawa Police Service says something that I cite regularly, that inclusion is the key to public safety.

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

Thank you.

[The Chair, Liberal, Rob Oliphant]

Thank you.

I'm going to ask a question. I don't usually do this as chair, but I want to follow up on something by Mr. Dubé and Mr. Di Iorio, particularly to Mr. Edelmann.

I have a little concern that you use “oversight” and “review” interchangeably. We're struggling a little with understanding whether there is a difference between those concepts. I don't want to get into that, except that you referred to a body that is more independent of Parliament, an expert body of review, though you didn't use the words “super SIRC”. Noting that you're speaking to parliamentarians, to whom they would be accountable, why would there be a more important body than Parliament to report to, in terms of the oversight of our security agencies?

[Peter Edelmann]

I'm sorry. When I say “independent of Parliament”, I should be clear that the suggestion isn't that they're not reporting to Parliament, or are somehow supreme with regard to Parliament, or more important than or separate from Parliament. The issue with the committee of parliamentarians is that the parliamentarians are not.... As much as this committee spends a great deal of time dealing with national security, for the most part the members have many other responsibilities and concerns, and are not subject matter experts in your careers and engagement with these issues.

When we're talking about dealing with SIRC or with other oversight agencies, these are full-time institutions that deal with these issues on an ongoing institutional basis. They can undertake long-term studies, have an institutional memory, and can engage with respect to oversight.

I use “oversight” and “review” interchangeably. I apologize for that. I should speak about review. What I'm talking about is review, in the sense that it's used, for example, by Professors Forcese and Roach. They make a specific distinction between those two.

With respect to review, having what's been colloquially referred to as a “super SIRC” serves a different purpose than a committee of parliamentarians. The committee of parliamentarians has a very important role, just as this committee does. This committee, although it could do a lot of the work that the RCMP complaints commissioner does, would be overwhelmed if it were to undertake the work that the RCMP commissioner does with respect to the RCMP. However, any of the things that it does presumably could be done by this committee.

[The Chair, Liberal, Rob Oliphant]

I guess I would be concerned that you could have, in a relatively small pool of experts.... For the committee of parliamentarians, the proposed budget is several million dollars larger than the U.K.'s budget for a similar body. They will hire experts.

I worry about a group of former CSIS directors or so-called experts who are bureaucrats actually doing this oversight. I would challenge the bar association to think that maybe parliamentarians are better—well served by a bureaucracy, a secretariat, but perhaps better at doing that.

That's just to get that off my chest, as a self-interested parliamentarian.

[Peter Edelmann]

To be clear, our suggestion is not for either one or the other. Our suggestion is for both. Our proposal is that both are necessary, much like this committee and the RCMP complaints commissioner both serve important purposes in the oversight of the RCMP.