Public Safety Committee on Nov. 30th, 2017

[The Chair, Liberal, John McKay]

Good morning, everyone. I'd like to open the 88th meeting of the Standing Committee on Public Safety and National Security.

Our first witness is well known to the committee, the Honourable Ralph Goodale.

Mr. Goodale, I'm assuming that you're going to introduce all of those colleagues who are with you. The floor is yours.

[Ralph Goodale, Liberal, Minister of Public Safety and Emergency Preparedness]

I will, Mr. Chairman. Thank you very much to the members of the committee for their work as they are about to begin clause-by-clause study of Bill C-59, the national security act.

I am pleased today to be accompanied by a range of distinguished officials in the field of public safety and national security. David Vigneault, as you know, is the director of CSIS. Greta Bossenmaier, to my right, is the chief of the Communications Security Establishment, and the CSE is involved in Bill C-59 in a very major way.

To my left is Vincent Rigby, associate deputy minister at Public Safety. I think this is his first committee hearing in his new role as associate deputy minister. Kevin Brosseau is deputy commissioner of the RCMP, and Doug Breithaupt is from the Department of Justice.

Everything that our government does in terms of national security has two inseparable objectives: to protect Canadians and to defend our rights and freedoms. To do so, we have already taken a number of major steps, such as the new parliamentary committee established by Bill C-22 and the new ministerial direction on avoiding complicity in mistreatment. That said, Bill C-59 is certainly central to our efforts.

As I said last week in the House, this bill has three core themes: enhancing accountability and transparency, correcting certain problematic elements in the former Bill C-51, and ensuring that our national security and intelligence agencies can keep pace with the evolving nature of security threats.

Bill C-59 is the product of the most inclusive and extensive consultations Canada has ever undertaken on the subject of national security. We received more than 75,000 submissions from a variety of stakeholders and experts as well as the general public, and of course this committee also made a very significant contribution, which I hope members will see reflected in the content of Bill C-59.

All of that input guided our work and led to the legislation that's before us today, and we're only getting started. When it comes to matters as fundamental as our safety and our rights, the process must be as open and thorough as it can possibly be. That is why we chose to have this committee study the bill not after second reading but before second reading. As you know, once a bill has passed second reading in the House, its scope is locked in. With our reversal of the usual order, you will have the chance to analyze Bill C-59 in detail at an earlier stage in the process, which is beginning now, and to propose amendments that might otherwise be deemed to be beyond the scope of the legislation.

We have, however, already had several hours of debate, and I'd like to use the remainder of my time to address some of the points that were raised during that debate. To begin with, there were concerns raised about CSIS's threat reduction powers. I know there are some who would like to see these authorities eliminated entirely and others who think they should be limitless. We have taken the approach, for those measures that require a judicial warrant, of enumerating what they are in a specific list.

CSIS needs clear authorities, and Canadians need CSIS to have clear authorities without ambiguity so that they can do their job of keeping us safe. This legislation provides that clarity. Greater clarity benefits CSIS officers, because it enables them to go about their difficult work with the full confidence that they are operating within the parameters of the law and the Constitution.

Importantly, this bill will ensure that any measure CSIS takes is consistent with the Charter of Rights and Freedoms. Bill C-51 implied the contrary, but CSIS has been very clear that they have not used that particular option in Bill C-51, and Bill C-59 will end any ambiguity.

Mr. Paul-Hus, during his remarks in the debate in the House, discussed the changes we're proposing to the definition of “terrorist propaganda” and the criminal offence of promoting terrorism. Now, there can be absolutely no doubt of our conviction—I think this crosses all party lines—that spreading the odious ideologies of terrorist organizations is behaviour that cannot be tolerated. We know that terrorist groups use the Internet and social media to reach and radicalize people and to further their vile and murderous ends. We must do everything we can to stop that.

The problem with the way the law is written at the moment, as per Bill C-51 is that it is so broad and so vague that it is virtually unuseable, and it hasn't been used. Bill C-59 proposes terminology that is clear and familiar in Canadian law. It would prohibit counselling another person to commit a terrorism offence. This does not require that a particular person be counselled to commit a particular offence. Simply encouraging others to engage in non-specific acts of terrorism will qualify and will trigger that section of the Criminal Code.

Because the law will be more clearly drafted, it will be easier to enforce. Perhaps we will actually see a prosecution under this new provision. There has been no prosecution of this particular offence as currently drafted.

There were also questions raised during debate about whether the new accountability mechanisms will constitute too many hoops for security and intelligence agencies to jump through as they go about their work. The answer, in my view, is clearly, no. When the bill was introduced, two of the country's leading national security experts, Craig Forcese and Kent Roach, said the bill represents “solid gains—measured both from a rule of law and civil liberties perspective—and come at no credible cost to security.”

Accountability mechanisms for Canadian security and intelligence agencies have been insufficient for quite some time. Bill C-22 took one major step to remedy that weakness by creating the new National Security and Intelligence Committee of Parliamentarians. Bill C-59 will now add the new comprehensive national security and intelligence review agency, which some people, for shorthand, refer to as a super-SIRC, as well as the position of intelligence commissioner, which is another innovation in Bill C-59.

These steps have been broadly applauded. Some of the scrutiny that we are providing for in the new law will be after the fact, and where there is oversight in real time we've included provisions to deal with exigent circumstances when expedience and speed are necessary.

It is important to underscore that accountability is, of course, about ensuring that the rights and freedoms of Canadians are protected, but it is also about ensuring that our agencies are operating as effectively as they possibly can to keep Canadians safe. Both of these vital goals must be achieved simultaneously—safety and rights together, not one or the other.

Debate also included issues raised by the New Democratic Party about what is currently known as SCISA, the Security of Canada Information Sharing Act. There was a suggestion made that the act should be repealed entirely, but, with respect, that would jeopardize the security of Canadians. If one government agency or department has genuine information about a security threat, they have to be able to disclose it to the appropriate partner agencies within government in order to deal with that threat, and you may recall that this has been the subject of a number of judicial enquiries in the history of our country over the last number of years.

That disclosure must be governed by clear rules, which is why Bill C-59 establishes the following three requirements. First, the information being disclosed must contribute to the recipient organization's national security responsibilities. Second, the disclosure must not affect any person's privacy more than is reasonably necessary. Third, a statement must be provided to the recipient attesting to the information's accuracy. Furthermore, we make it clear that no new information collection powers are being created or implied, and records must be kept of what information is actually being shared.

Mr. Chair, I see you're giving me a rude gesture, which could be misinterpreted in another context.

[Some hon. members]

Oh, oh!

[Ralph Goodale, Liberal, Regina—Wascana, SK]

There are a couple of points more, but I suspect they'll be raised during the course of the discussion. I'm happy to try to answer questions with the full support of the officials who are with me this morning.

Thank you.

[The Chair, Liberal, John McKay]

It was not as rude as it could have been. Thank you, Minister.

Our first questioner is Ms. Dabrusin.

[Julie Dabrusin, Liberal, Toronto—Danforth, ON]

Thank you, Minister, for coming today.

The security framework is something that is very important to my constituents. As part of the consultations that took place, I held a meeting in my riding to which many people came. It was well attended. What came through were some very strong concerns about ensuring privacy rights and charter rights. That frames a bit of what I'm getting at with some of the questions I'm asking today.

The first is one you touched on briefly. Many people have come and asked me why do we not simply repeal the former Bill C-51 from the prior government, the prior Parliament. Why is any new legislation required? Why not just repeal it and leave it as it is?

[Ralph Goodale, Liberal, Regina—Wascana, SK]

The short answer, of course, is that Bill C-51 as a single piece of legislation no longer exists. It is now embedded in other pieces of law and legislation that affect four or five different statutes and a number of different agencies and operations of the Government of Canada. It's now a little bit like trying to unscramble eggs rather than simply repealing what was there before.

Based on the consultation that you referred to, we meticulously went through the security laws of Canada, whether they were in Bill C-51 or not, and asked ourselves this key question. Is this the best provision, the right provision, in the public interest of Canadians to achieve two objectives—to keep Canadians safe and safeguard their rights and freedoms—and to accomplish those two objectives simultaneously?

We honoured our election commitment of dealing with five or six specific things in Bill C-51 that we found particularly problematic. Each one of those has been dealt with, as per our promise, but in this legislation we covered a lot of other ground that came forward not during the election campaign but as a part of our consultation.

[Julie Dabrusin, Liberal, Toronto—Danforth, ON]

Just for clarity, would you be able to list those five items?

[Ralph Goodale, Liberal, Regina—Wascana, SK]

Yes. I can certainly get the list from our platform. They include making sure that civil protest was no in any way compromised; making sure that the Charter of Rights and Freedoms was paramount, particularly with respect to the threat reduction measures; making sure that there would be a review of the legislation after a certain period of time, with the legislation providing for a five-year review when all the security framework of Canada will be re-examined; and clarifying a number of definitions, like the one about terrorist propaganda that I referred to. There are also the no-fly corrections that we undertook.

We also said that we would create the committee of parliamentarians. That's done. We said that we would create the office for dealing with counter-radicalization. That's done. With the passage of Bill C-59, all of the specific elements that we referred to in the platform will be accomplished.

[Julie Dabrusin, Liberal, Toronto—Danforth, ON]

Thank you.

The other piece that's come up more recently—we heard it as a question raised in Parliament—is the breadth of this legislation. It is quite a read. Can you perhaps help us to understand how all the new legislative changes are linked? Why is it important to make all of these changes at the same time, in one piece of legislation?

[Ralph Goodale, Liberal, Regina—Wascana, SK]

It's because they do come together as a comprehensive, coherent package. Again, that is a product of the consultation. Never before has a government gone out to Canadians to say, “Have your say about national security. Tell us what works. Tell us what doesn't work. Raise the issues you want to raise.” We had a discussion paper to stimulate the conversation, but there was nothing off limits for Canadians to raise. The issues they raised, some more strenuously than others, and some in a larger volume than others, are the issues that are included in Bill C-59. They are all interconnected.

To give you one example, some people have asked about the CSE provisions here and about whether it's directly relevant. Well, CSE was one of our campaign commitments. CSE is a topic that was raised during the consultation. One of the new innovations that we're bringing in the legislation is the creation of the intelligence commissioner. The intelligence commissioner deals with CSE issues, with CSIS issues, and with other issues, so it makes sense to do them all together as a package.

A great many cross-cutting issues like that lead one to conclude that you need to debate this package as a comprehensive package rather than in bits and pieces, where the continuity would not be obvious.

[Julie Dabrusin, Liberal, Toronto—Danforth, ON]

I only have one minute, so perhaps this becomes a very short answer.

Another issue is CBSA oversight, which is a question that comes up in my community. People ask about it.

There isn't any independent oversight under our current regime. Under the Bill C-59 regime, is there CBSA oversight?

[Ralph Goodale, Liberal, Regina—Wascana, SK]

Yes.

Insofar as CBSA deals with national security and intelligence matters, it is covered by Bill C-59, just as is CSIS or CSE or the RCMP, or any other security intelligence or police organization at the federal level. Their activities in relation to national security and intelligence are covered by Bill C-59 and the new national security and intelligence review agency.

What's still missing with respect to CBSA is an individual complaints mechanism for officer conduct unrelated to national security. We will be bringing forward a proposal to deal with that. That is one gap that remains in the architecture, and it will be subject to separate legislation.

[The Chair, Liberal, John McKay]

Thank you, Ms. Dabrusin.

Mr. Motz.

[Glen Motz, Conservative, Medicine Hat—Cardston—Warner, AB]

Thank you, Mr. Chair.

Thank you, Minister Goodale, for being here this morning, and to your team.

I want to compliment you and the ministry on bringing this to committee before second reading. I suppose I'm naive in my newness about the intent behind that, and I hope to understand that better, appreciating the fact that it will give us, as a committee, an opportunity to look at the bill in its entirety without being locked into the scope, as you mentioned before.

One of the things I find encouraging is that the bill looks at a number of factors that I guess were not considered fully in Bill C-51. This is a complement to that, which is very good. When you decided to bring this back to committee before second reading, it made me feel as if there were some things you recognized as a ministry that we can make better. We can maybe do some tweaks to it that hadn't been done when it was first drafted.

Is there anything that comes to mind that you would ask us, as a committee, to pay particular attention to that hasn't already been dealt with?

[Ralph Goodale, Liberal, Regina—Wascana, SK]

Mr. Motz, we listened very carefully to the public reaction and the parliamentary reaction when we tabled the bill in June. By and large, it was favourable.

However, with a piece of legislation this large, there will be differing perspectives and points of view. Over the course of the summer, there's been some elaboration on that. Some academic papers have been written, and various people who were involved in the consultations have come back to raise a question about this or a concern about that.

There are two areas that I would mention in particular. One is the provisions around SCISA, the Security of Canada Information Sharing Act, and whether those provisions can be improved or upgraded. Some of the experts, for example, Professors Forcese and Roach, have made some suggestions in that regard, which we're prepared to take a very careful look at. That is a critical mechanism here for agencies to be able to share information, but to do so on the proper legal basis, properly protecting privacy. The Privacy Commissioner made some observations as well. That's one area.

With regard to another area, you may have noticed that, earlier in the fall, I issued new ministerial directives to the security agencies about how they deal with information sharing with foreign entities. People have noted that a ministerial directive, by custom, has the force of law. It may be valuable to take that concept and find a way to put it in legislation so that there is a legislative anchor or hook for the ministerial directives.

Those are just two possibilities that we could consider, and I hope by the end of this conversation, you will agree that your optimism is not misplaced.

[Glen Motz, Conservative, Medicine Hat—Cardston—Warner, AB]

We'll see. I remain optimistic.

One of the things that did strike comments from many people who study this was the appreciation that the protection of national security and the whole idea of national security is a non-partisan team sport and that we all need to be on the same page with how that plays out.

What's also unique about Bill C-59 is that it's more prescriptive than what our allies have. We have a lot of the regulations that could be regulations inside this bill.

You mentioned before, sir, that one of the things you want to see is the ability to ensure national security is kept nimble and able to keep pace with changing threats. If everything is prescribed in a bill and we only have a five-year review cycle, we all know that sometimes bills take a long time to change. I wonder if we would be in a better spot to take some of the good things we see in Bill C-59 and move them into the regulation scheme, so if we have to change things and be nimble to changing threats, we can make those adjustments in a more efficient fashion.

[Ralph Goodale, Liberal, Regina—Wascana, SK]

I would be interested to look at any specific suggestion you might have to make, where something is better done by regulation than actually in legislation. That's completely possible, because we're doing the legislation in the way we're doing it by having this discussion in committee before second reading. If there's a suggestion or an idea about it that you'd like to bring forward, we'll take a look at it.

Your comment is the opposite of what we usually hear, which is to not leave it to regulation but to put it in the bill. I think it would depend on the specific proposal.

[Glen Motz, Conservative, Medicine Hat—Cardston—Warner, AB]

The only reason I say that is that the face of terrorism is changing and sometimes we get locked into things from a bill perspective, and they're not easily adjusted. That's all I'm getting at.

[Ralph Goodale, Liberal, Regina—Wascana, SK]

There are a number of places where approval procedures are put in place where we have made arrangements for emergency situations and exigent circumstances so that the necessary approvals can be obtained, but that doesn't stand in the way of agencies taking the action they need to take in an emergency.

[Glen Motz, Conservative, Medicine Hat—Cardston—Warner, AB]

You indicated that Bill C-59 was an attempt to clear up some ambiguity in language. In some of our preliminary conversations as a committee, we've already identified some ambiguity and how the language might have been used. We definitely want to make sure we're consistent in that, and we may be proposing some adjustments to, for example, “sharing” as opposed to “disclosing”, “reasonable and probable grounds” as opposed to “is likely to”, and those sorts of things. We want to be consistent with how we apply it.

[The Chair, Liberal, John McKay]

I'll have to reserve that answer for some other occasion.

Mr. Dubé, you have seven minutes, please.

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

Thank you, Mr. Chair.

Minister, thank you for being here.

I want to point out a couple of things for the record before we get going.

A lot has been made about our ability to study the bill more thoroughly by doing this before second reading, but at the end of the day, we still only get you for one hour on a 138-page bill. Certainly, I want to express some disappointment about that. At the end of the day, beyond the question of scope of amendments, it doesn't necessarily allow us more space to study quite an extensive bill, as you can see from the size of our binders.

The other thing I want to mention in this notion of unscrambling eggs is that certainly I have no doubt of the ability of the justice department to do what my colleague Randall Garrison did in his Bill C-303, which is on the order paper right now and which repeals in its entirety all of the provisions that were brought in by former Bill C-51. I would argue the notion that it is unfeasible is incorrect, because we have been able to develop such a bill.

Those things being said, I do have questions.

The first one I want to get to is the changes to CSE in part 3 of the bill, in proposed subsection 24(1), in paragraphs (a) and (b) specifically, where we talk about “acquiring, using, analysing, retaining or disclosing publicly available information”. That section specifically mentions “Despite subsections 23(1) and (2)”, which are the subsections that are specifically protecting those actions from being done to Canadians and in Canada. Therefore, my understanding is that it obviously means that, for any of this data being acquired in this way, these actions can be done to Canadians and in Canada.

I just want to understand here, because certainly the argument can be made that it's publicly available information and that's too bad for people who maybe don't manage their social media very well. However, a few things are of concern, specifically language like “disclosing...information”, and who that—

[Ralph Goodale, Liberal, Regina—Wascana, SK]

Can you refer once again to the exact section you're looking at?

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

It's in part 3 at proposed subsection 24(1).