Evidence of meeting #79 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 cbsa.
A recording is available from Parliament.
9:10 a.m.
NDP
Matthew Dubé NDP Beloeil—Chambly, QC
That's great.
On the question of the annual reporting that you spoke of, would it be appropriate, do you believe, to amend the law to have a statutory obligation to provide annual reporting, say, to Parliament, for example?
9:10 a.m.
Visiting Professor, Graduate School of Public and International Affairs, University of Ottawa, As an Individual
The short answer to that is absolutely. It seems to me it would fit nicely under the current government's transparency commitments. As you know, in Bill C-59 there are a variety of statutory requirements for agencies to provide public reports, and in some cases unprecedented public reports to Parliament and the public, for example from CSE. I think this would be very appropriate to build into Bill C-21.
9:10 a.m.
NDP
Matthew Dubé NDP Beloeil—Chambly, QC
That's great.
We talked about different words that are used that sometimes mean the same thing, depending on who's saying them: an independent complaints body or a watchdog or even a redress mechanism, and sometimes they don't. They're not always synonyms, but they can be, depending on what issue you are attempting to address.
I want to get your thoughts on that because one of the issues that came up with government officials from Immigration, Refugees and Citizenship and also from Employment and Social Development was that essentially the redress would be with them, so one of the stated objectives being for people vying for citizenship or people who are on EI and so forth. In those situations, do you believe there should be a redress mechanism directly with CBSA to contest the accuracy of the information that's being collected?
9:10 a.m.
Visiting Professor, Graduate School of Public and International Affairs, University of Ottawa, As an Individual
Monsieur Dubé, I would say that internal resolution mechanisms may be helpful but are always inadequate, so there is a need for independent handling of complaints, and there has to be a triage process to make sure that those complaints are serious. That can be built into the law.
To go back to part 2 of Justice O'Connor's report on the review of the RCMP's national security activities, he proposed at the time, in 2006, that there should be a new, independent complaints mechanism for the RCMP and CBSA combined. So far we haven't seen how the current government intends to proceed with any kind of independent complaints mechanism for CBSA. Such a thing is necessary, whether it's combined with another body and operated by CRCC, or however it's done, as a whole-of-government complaints mechanism of some kind. That's all open to debate, but something has to be put in place.
9:10 a.m.
NDP
Matthew Dubé NDP Beloeil—Chambly, QC
The committee of parliamentarians and what's being proposed in Bill C-59 is the first time we're seeing any kind of review for CBSA. In that context, if I'm not mistaken—I just want to make sure I'm understanding correctly what's being proposed—that would only be for issues related to national security. Is that correct?
9:10 a.m.
Visiting Professor, Graduate School of Public and International Affairs, University of Ottawa, As an Individual
That's correct, although national security, as you'll know, Mr. Dubé, is not defined anywhere in the law, so the definition could be stretched or compacted, depending on the need.
Bill C-59 doesn't specifically indicate that CBSA, as one of the principal security and intelligence agencies, would necessarily fall under the systematic review of the new National Security and Intelligence Review Agency. The only agencies that are listed in part 1 of Bill C-59 are CSIS and CSE, and the rest is left to a broad mandate where CBSA and others might be reviewed, but not necessarily.
9:10 a.m.
NDP
Matthew Dubé NDP Beloeil—Chambly, QC
I only ask the question because, with regard to Bill C-21, a lot of the reasons the information may be collected are arguably not for national security purposes when you hear the stated objectives of the bill. In that sense, would it be fair to conclude that these activities would not necessarily be subject to the review by these different bodies?
9:15 a.m.
Visiting Professor, Graduate School of Public and International Affairs, University of Ottawa, As an Individual
I think that would be a matter of experience. I take your point. My argument would be, hypothetically, that the most serious ways in which entry or exit information might be used probably bear on national security matters, although not always. It could be human smuggling and child abduction cases, and so on. The repeated matters of concern are likely to be in the broad national security field so that if you have some kind of review system in place for CBSA that primarily focuses on national security, my guess would be—and it's just a guess—it would capture most of what you really want to have reviewed.
9:15 a.m.
NDP
Matthew Dubé NDP Beloeil—Chambly, QC
The last point I want to get to is data retention. You said this should be left to experts, people like the Privacy Commissioner and so forth. Would it be fair to say that there should be more explicit schedules for retention of this data?
9:15 a.m.
Visiting Professor, Graduate School of Public and International Affairs, University of Ottawa, As an Individual
Absolutely. We're seeing this come forward, and I again refer to Bill C-59, which isn't yet before the committee, and some other aspects around CSIS data analytics and so on. I think this is crucial for public confidence. It's crucial for the organization of CBSA itself. I think when vast amounts of data like this come into the holdings of an organization like CBSA the default is to keep it forever, just in case. I think that's a bad default kind of response. I think there should be a very strict retention schedule built into the legislation that would distinguish between the vast bulk of innocent information, which should be disposed of quite quickly, and information that might be concerning, that could be retained for a longer period of time. I think that should be part of the legislation, not left to vague regulation that we might not see.
October 24th, 2017 / 9:15 a.m.
Liberal
Julie Dabrusin Liberal Toronto—Danforth, ON
It's been very interesting to hear you talk.
I'm going to pick up on a few things you've already been speaking about with Mr. Dubé. I was curious about the annual reporting piece you were discussing. To get a better sense, what would you be looking for in such types of reports, and how would you see it spelled out in the legislation, if that were going to be added in?
9:15 a.m.
Visiting Professor, Graduate School of Public and International Affairs, University of Ottawa, As an Individual
I think all you would need in the legislation is a requirement for an annual report to Parliament. Then Parliament, on the basis of annual reports, could decide how satisfied or not they were with them. I think the main substance of such a report would partly be statistical—what is the information flow and how effectively is it being handled. Some part of that annual report should refer to the value of this initiative and provide cases—without providing the details, necessarily—where it has paid off, really to prove that this, on top of all kinds of other measures we've taken since 9/11, is a valuable instrument. So it's efficacy, plus propriety around how the initiative's powers were being used.
9:15 a.m.
Liberal
Julie Dabrusin Liberal Toronto—Danforth, ON
Fair enough.
My understanding is that we've been collecting this kind of information already with respect to foreign nationals and permanent residents, so there's already an existing scheme. I was wondering if you've had a chance to look at how that has operated. Do you have a sense of what's been working or not working with the system that is already in place?
9:15 a.m.
Visiting Professor, Graduate School of Public and International Affairs, University of Ottawa, As an Individual
It's a good question. There is some publicly available information, particularly around the first phase of the rollout of entry-exit, where they were wanting to test how well they could digest relatively limited flows of information from the United States. There was statistical data provided, percentages of data that could be resolved relatively easily. Those looked good. Again, I think it would take someone more expert than I in what those statistics really meant to read them. I think the key thing to understand is that in addition to that sort of result in the first phase test and the privacy impact assessment in stage two, which has been released, we're just heading into new territory in terms of additional information and, in a way, more sensitive information on Canadian citizens that will be added in with Bill C-21.
9:15 a.m.
Liberal
Julie Dabrusin Liberal Toronto—Danforth, ON
So far, there are no specific flags that you would be able to raise for us, based on our past experiences of the previous system.
9:15 a.m.
Visiting Professor, Graduate School of Public and International Affairs, University of Ottawa, As an Individual
So far so good, it would seem.
9:15 a.m.
Liberal
Julie Dabrusin Liberal Toronto—Danforth, ON
All right. I was just trying to get a sense of that.
The Canadian Civil Liberties Association in some of their evidence had suggested adding reference to the charter in the preamble. Would that add anything or would it be purely symbolic?
9:20 a.m.
Visiting Professor, Graduate School of Public and International Affairs, University of Ottawa, As an Individual
You may have provided your own answer to the question. The CCLA has taken this approach to a number of pieces of national security legislation, arguing that a specific reference to the charter should always be built in. I can see its symbolic value. I also think, in strictly statutory terms, it's unnecessary, because the charter is the law of the land. It really is a matter of symbolic politics and up to parliamentarians to decide whether they feel that's necessary or not.
9:20 a.m.
Liberal
Julie Dabrusin Liberal Toronto—Danforth, ON
Thank you.
Talking about the complaints procedures, one of the things we've also raised in prior evidence is if there are errors with the information collected, how that gets reported back. You've referred to what the recourse procedures are as well, what's a review. They're slightly different. In fact, how do you say this information that's been collected is an error? Also, what if somebody wanted to contest how long information had been held, saying they felt it had been held too long or it shouldn't have been held? First of all, would you see that built into this legislation? You've been referring to Bill C-59 a fair bit. Do you see it built into another piece of legislation, and what would that look like?
9:20 a.m.
Visiting Professor, Graduate School of Public and International Affairs, University of Ottawa, As an Individual
I think I would just reference the fact that the government has been working on a complaints mechanism for CBSA. From my personal perspective, for what it's worth, I would give them time to work that out. They have consulted with outside experts and so on about how that might work. Hopefully, it won't be too long before we see what they're proposing. Then Parliament will have its say on that.
On the independent review of CBSA, my concern is just to kind of leave it vague, as part of a potential responsibility that might fall to the National Security and Intelligence Review Agency under Bill C-59, without CBSA being specifically referenced. Given the important role that CBSA is now playing, I would prefer to see it listed in the legislation somewhere that it will be subject to an independent review by somebody.
9:20 a.m.
Liberal
Julie Dabrusin Liberal Toronto—Danforth, ON
When you say “in the legislation”, are you talking about Bill C-21? I'm just trying to clarify it. Right now we're doing a review of this statute, and I want to make sure we're not....
9:20 a.m.
Visiting Professor, Graduate School of Public and International Affairs, University of Ottawa, As an Individual
Yes. It would be a crosscutting provision. It's really a timing matter, in a way. I think legitimately it should be in Bill C-59 and then referenced back to Bill C-21 in terms of coming-into-force provisions. Probably you folks around the table are more expert than I would be on how to manage that process. It should be in legislation somewhere. There could be a reference in Bill C-21 to that, cross-referencing another piece of legislation, I would think.
9:20 a.m.
Liberal
Julie Dabrusin Liberal Toronto—Danforth, ON
That's helpful. Thank you.
I don't have much more time here, but we were talking about the retention of information. That has come up a couple of times. You said that you would prefer it not to be left to regulations but to be within the statutes. You referred the SATA timelines but said they might be too short. Do you have any other reference points of what we would be looking at as proper timelines? What would be the references that we would look to?
