Public Safety Committee on Oct. 24th, 2017

[Wesley Wark]

Okay.

It's very difficult, because generally, up until very recently, we haven't seen such timelines. Governments of various stripes have been very reluctant to do this. They prefer the flexibility of having non-public retention schedules. It's often treated as a national security matter and a matter of secrecy to do so. I don't think that's necessary in this case.

The challenge here, and I think the reason that the government would prefer to have this in regulation, is that there are so many different objectives to the Bill C-21 initiative that might require different kinds of timelines around data retention. Despite that, I would still say that I think you could outline the different objectives and say the appropriate retention schedules for each of these different objectives, with some caveat around flexibility, should be x. The basic idea, as that concept might be worked through, would not be to just let this information sit forever, which is, I think, the default.

[The Chair, Liberal, John McKay]

Thank you, Ms. Dabrusin.

Ms. Leitch, welcome to the committee. You have five minutes.

[Kellie Leitch, Conservative, Simcoe—Grey, ON]

Thank you very much, Mr. Chair.

Thank you very much for presenting this morning, Professor Wark. Thank you as well for your public service on the advisory council on national security from 2005 to 2009. It's greatly appreciated when Canadians of your stature step forward to provide that public service.

[Wesley Wark]

Thank you.

[Kellie Leitch, Conservative, Simcoe—Grey, ON]

My questions have to with what you were speaking to with respect to regulations. Having had the experience of developing legislation and then dealing with the regulations, you're correct that we often don't have that degree of transparency. You spoke a bit about the retention of data and having a schedule. It would be helpful to know what you think the specifics of that schedule would be.

As well, with respect to information-sharing and transparency, what are some of those details that you think should be considered for the legislation as opposed to regulations? If the government chooses not to place it in legislation, give us some direction on what those regulations should be. Obviously, those will be hashed out at some point in time.

[Wesley Wark]

Sure. Thank you, Ms. Leitch.

On the transparency part first, I think that's the easiest one in terms of building a requirement in the legislation that there should be a public annual reporting to Parliament on the performance of Bill C-21. It would be one of the occasions on which CBSA would come before Parliament to really explain how they're performing. I think that would be important.

The retention schedule is, I think, a very complex issue. I don't have an easy answer for you. I have gotten as far as thinking, I must confess, that it would be important to have in the legislation guidelines on retention, with some degree of flexibility, geared to the specific different objectives as outlined in the backgrounder.

If I were looking for a timeline around this, I would say one to two years, maximum, and differentiated among the different objectives—but not 15, not 30, not 75; not an eternity.

[Kellie Leitch, Conservative, Simcoe—Grey, ON]

My colleague Mr. Motz brought forward the issue of the need for analysis, and you raised this as well, and the degree of our current capacity to do this analysis, whether it be at the border, whether it be the RCMP, or whether it be other agencies. What do you think are the three or four key components of analysis that have to be done now but are not being done?

[Wesley Wark]

Thank you. That's a great question. I'm always delighted to have any chance to talk about intelligence analysis as a function of government, because I think it is completely underrated and under-resourced, and this is a historic problem of long standing. We have a very small analytical capacity in the Canadian security and intelligence community. Most of the resources go to collection, which is not an uncommon phenomenon among security and intelligence agencies.

The problem for Canada is that there are certain key agencies that essentially hoard analytic talent for good and obvious reasons. So CSIS, the RCMP to a degree, CSE, and the Privy Council Office hold the talent pool. The talent pool is a key. CBSA is a newcomer. It doesn't really have access to that talent pool, which is very carefully guarded by the existing organizations. To the extent that they need to have a very significant analytical capacity—and I think this is the case—they don't currently have the talent to do that. They don't have the organizational structure. They don't have the interconnectivity with the security intelligence community. They don't have the resources.

I used to serve on the advisory committee to the president of CBSA in its first years from 2006 to 2010, I think it was. I always delighted in the remark of the first president of CBSA, who said that for every three dollars he had—he never had three dollars, as far as we can see—if he could, he would spend two on intelligence and analysis. But that has never happened for CBSA or any other organization.

[Kellie Leitch, Conservative, Simcoe—Grey, ON]

Do you think that's just a product of funding, or do you think it's also about developing that talent pool within our own borders? We see, in the basics of just the trades in this country, a lack of talent. What are those things that we should be doing to foster that talent? You say there are pockets of it throughout our government, but obviously there's a need for a larger number of individuals in totality, absolute numbers, to be able to do that. This shouldn't just be about dollars, but how do we deal with that talent pool?

[Wesley Wark]

It's about recruitment. It's about training. Doing intelligence analysis well is a real professional skill, and it should have a professional career attached to it, which isn't really the case in the Canadian federal government system at the moment, though there have been many efforts in that regard. Training is better; there is some training now. Recruitment is a little more systematic. But it's been a slow process and it's very, very incomplete. Some agencies, I have to say, have been on the outside of those initiatives, and I would put CBSA in that basket.

[The Chair, Liberal, John McKay]

Thank you, Ms. Leitch.

Go ahead, Mr. Spengemann.

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

Thank you very much, Mr. Chair.

Professor Wark, it's nice to see you again. Thank you for being here and providing your expertise.

I represent a riding just south of the Pearson airport and less than an hour away from the Niagara region land crossing. People in my riding are travelling to the U.S. extensively. We have snowbirds, we have students, we have business travellers, and we have vacationers. There's great interest, both in the efficacy side of the bill that you described and also in the privacy side.

I want to start by taking you back one more time to the question of how we set the line for the retention of data and put to you the cases of human trafficking and amber alerts, where in some cases, it may take quite some time until it's evident that there's a trail across the border. Without putting a number on it, would you agree that this is one of those policy objectives that should be most influential in deciding how to structure the retention of data when it comes to missing persons going across the border and being exploited, abducted, and potentially subject to other crimes, as well?

[Wesley Wark]

Mr. Spengemann, thank you.

My answer to that question would be yes, absolutely. But I think it also reinforces at least my sense that what we're dealing with, with those kinds of cases in particular, are matters of immediate concern and emergency measures, if you like, where you want to have the ability to track exit as quickly as possible. Coming back to retention schedules, it's not that you would need to hold that data for a year or two years. You need it right away, and you probably don't have to hold it for very long because it will ultimately be supplemented by all kinds of other information for law enforcement and prosecutorial purposes. Yes, it's very important, but it's really real-time information that you need to deal with those kinds of cases, and reflecting on retention schedules, it probably doesn't provide an argument for lengthy retention.

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

Thanks very much for that.

I wanted to take you to a different area of the bill that you haven't had a chance to discuss this morning. That's the inspection of goods leaving the country. That's proposed new subsection 95(1).

Canadians travel to the U.S. often with goods in tow. Students will study in the United States. Seniors will go to Florida with goods. The government has introduced legislation to legalize cannabis. What are your thoughts on the provisions dealing with the exportation of goods? You talked about the fact that the border would not be sticky, and yet we've got discretionary powers in the bill whereby an officer may, at his or her discretion, question somebody leaving the country. How do you see that evolving?

[Wesley Wark]

In a way, it's a challenge in Canadian-American relations, rather than a challenge for strictly Canadian border enforcement provisions. I think this is particularly true with regard to the legalization of marijuana. How that would be treated across the border is an issue that remains to be seen.

Again, I don't see in Bill C-21 measures that are going to make the export of goods or the movement of people more difficult. It's a question of how exit is going to be handled by the United States, particularly across the land border.

Obviously, we need to work very closely with the United States and try to convince them of the Canadian interests in this regard, but ultimately that will depend on their approaches.

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

I take it, then, that you have relatively little concern with the fact that, under the legislation, an officer has the discretion to question a traveller. The language is “may collect...information”.

Does that give rise to any other risks, in terms of profiling or some other concerns with the application of the legislation?

[Wesley Wark]

It doesn't give rise, in my mind, to significant concerns, insofar as that discretionary ability is surrounded by other strong protections in the law, not least the charter, and one hopes that it would be exercised in a common-sense way.

Where it comes back into play, in terms of our conversation, would be, again, in the importance and value of an annual report, which would detail problems of that kind, and the importance of an independent complaints mechanism to handle specific cases.

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

Very quickly, in the remaining 30 seconds, what are your views on the retention of data or the collection of data for the purposes of enforcing the Old Age Security Act? As you know, we have a lot of seniors who spend time in parts of the U.S.

Do you have any concerns there from a privacy perspective or from a policy perspective?

[Wesley Wark]

I am inclined to be frivolous about this—I know I shouldn't. I am now a senior myself, officially, although somehow I don't get to travel to Florida. I would hope that a Canadian value of common sense and moderation would kick in on this. I appreciate that we are leaving it to regulation. I can't see the value of spending a lot of resources and penalizing seniors in terms of OAS benefits. It's probably only a small category of seniors who are able to collect those benefits anyway, and they are probably not people who have the ability to travel regularly to Florida and so on.

[The Chair, Liberal, John McKay]

Madam Gallant, welcome to the committee again.

You have five minutes.

[Cheryl Gallant, Conservative, Renfrew—Nipissing—Pembroke, ON]

I believe that Dr. Leitch was going to start, and then if there was time left over, I would get it.

[Kellie Leitch, Conservative, Simcoe—Grey, ON]

I just have one quick question in follow-up to what we talked about before, with regard to data and analysis. Like you, I am a professor. Collecting a whole bunch of data, putting it in a data sheet, and not doing anything with it is not really valuable.

If you were going to do an allocation of data collection—which we do a great job of, but don't seem to act on, in government—versus the analysis component, which is for action that would benefit Canadians, what would be the allocation of resource funding and human resources for data collection versus analysis and implementation?

[Wesley Wark]

Dr. Leitch, thank you for the question.

My simple answer would be that the technological cost of data acquisition is coming down dramatically, virtually every minute of our lives. What has not changed is the challenge of making sense of that data, although there is always a kind of technological impulse to assume that there is some perfect equation, an algorithmic equation that's going to solve that problem for you.

I think the challenge is, in the face of the lowering cost of the technological component, to boost expenditure on the human talent that you need to say, “I have this pool of information on a computer in front of me, and I have systems that are screening it. Nevertheless, what am I making of this?” It's really the human talent part of the analytical challenge that I think is the most important. That requires a good analytical capacity—again, to come back to the things we talked about—human talent plus an organizational structure that makes sense.

[Kellie Leitch, Conservative, Simcoe—Grey, ON]

Would you say, then, a 1:3 or 1:4 ratio?

[Wesley Wark]

I would say 1:10—one to the technology, 10 to the human element.