Evidence of meeting #88 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 c-59.

A video is available from Parliament.

On the agenda

MPs speaking

Also speaking

Greta Bossenmaier  Chief, Communications Security Establishment
David Vigneault  Director, Canadian Security Intelligence Service
Vincent Rigby  Associate Deputy Minister, Department of Public Safety and Emergency Preparedness
Monik Beauregard  Senior Assistant Deputy Minister, National and Cyber Security Branch, Department of Public Safety and Emergency Preparedness
Douglas Breithaupt  Director and General Counsel, Criminal Law Policy Section, Department of Justice
Commissioner Kevin Brosseau  Deputy Commissioner, Contract and Aboriginal Policing, Royal Canadian Mounted Police
Dominic Rochon  Deputy Chief, Policy and Communications, Communications Security Establishment

9:10 a.m.

Liberal

Ralph Goodale Liberal Regina—Wascana, SK

Thank you.

9:10 a.m.

NDP

Matthew Dubé NDP Beloeil—Chambly, QC

It goes on in proposed paragraphs 24(1)(a) and (b), with (a) “acquiring” the information and (b) talking about “infrastructure information for the purpose of research and development...testing”, and so on. Then, in 24(1)(c), it has “testing or evaluating products, software and systems, including testing or evaluating them for vulnerabilities.”

Is there not a concern that we can get a web of inference here and that, despite the publicly available nature of this, we can start going through someone's social media information that might be public, creating profiles of people who might not necessarily be national security threats, and having this data stored? That's my first question.

Second, what is meant by “disclosing”? Who exactly is that information being disclosed to?

9:10 a.m.

Liberal

Ralph Goodale Liberal Regina—Wascana, SK

Mr. Dubé, could I ask Greta, the chief of the Communications Security Establishment, to start?

9:10 a.m.

NDP

Matthew Dubé NDP Beloeil—Chambly, QC

Yes, certainly.

November 30th, 2017 / 9:10 a.m.

Greta Bossenmaier Chief, Communications Security Establishment

Thank you very much, Minister.

Thank you for the question.

With respect to this section, proposed subsection 24(1) does talk about how CSE may acquire, use, and analyze “publicly available information”. I think there are two things to perhaps first frame this conversation. Number one, it has to be in relation to our mandate. We are a foreign signals intelligence organization. We focus on foreign targets and foreign threats to Canada, so we don't have a mandate to focus on Canadians. We're definitely an organization that's focused on foreign threats to Canada.

In terms of the intent of this provision, it very much allows us to be able to conduct perhaps a basic research, I would say, with respect to our mandate. I will give you an example. For example, we might issue a foreign intelligence report or a cybersecurity report, and there might be publicly available information that would help complement that. For example, if we were talking about a security breach or a cybersecurity breach that happened, we might want to reference publicly available information that may talk about the nature of that breach and how it was reported elsewhere.

We don't have an investigative mandate. We don't have a mandate to focus on Canadians. Again, it's very much in association with our mandate: foreign signals intelligence and cybersecurity protection.

9:15 a.m.

NDP

Matthew Dubé NDP Beloeil—Chambly, QC

Fair enough, but if we look at proposed subsection 23(1), we see that it specifically mentions that the activities done by the centre “must not be directed at a Canadian or any person in Canada”, while proposed section 24 says, “Despite subsections 23(1) and (2), the Establishment may carry out”, and it goes on to what was already read. Essentially, we're saying that normally it wouldn't be against Canadians or any person in Canada, but now that's no longer the case, because it's specifically saying that it's “despite” proposed section 23.

Certainly, I understand the hypotheticals that are being offered, but does that section not allow for the retention and use of technology that can create these large webs that will inevitably catch people in Canada? We think of StingRay technology and things like that which can be used. Is that not going to be a potential...? The way this section is drafted, certainly it could, when we're looking at this:

acquiring, using, analysing, retaining or disclosing infrastructure information for the purpose of research and development, for the purpose of testing systems or conducting cybersecurity and information assurance activities on the infrastructure from which the information was acquired

To me, that seems to create a situation whereby you could be collecting information from infrastructure here in Canada, which obviously Canadians are using, without necessarily the same accountability that's created by omitting Canadians in proposed section 23.

9:15 a.m.

Chief, Communications Security Establishment

Greta Bossenmaier

Maybe I might add two additional points. I would refer to proposed subsection 24(1). In the actual first text there, it talks about “the following activities in furtherance of its mandate”. Again, our mandate is foreign signals intelligence and cybersecurity protection. That really is the overarching piece that would be associated with the rest of the subsections.

Also, just in terms of ensuring appropriate use, all of CSE's activities, including anything that would happen under proposed subsection 24(1), would be addressed and covered under the review mechanisms that the minister already spoke about in terms of the national security and intelligence review agency, and of course, the new National Security and Intelligence Committee of Parliamentarians.

9:15 a.m.

NDP

Matthew Dubé NDP Beloeil—Chambly, QC

Thank you.

My time is fleeing. I think that shows how an hour with the minister is perhaps not sufficient, considering that I've just spent nearly seven minutes on one section of the bill.

9:15 a.m.

Liberal

Ralph Goodale Liberal Regina—Wascana, SK

But an hour with Greta is more useful.

9:15 a.m.

Voices

Oh, oh!

9:15 a.m.

NDP

Matthew Dubé NDP Beloeil—Chambly, QC

Certainly.

Minister, I want to go back to the information sharing section. I want to understand, because this is what you said in the House: that there's a difference between the language of disclosure that's now there, versus the language of sharing that was there. I want to understand what legal grounds that has to create any sort of difference.

9:15 a.m.

Liberal

Ralph Goodale Liberal Regina—Wascana, SK

In the presentation of this section we wanted to make it clear that no new power of collection is being created here. This is all in reference to information that already exists.

9:15 a.m.

NDP

Matthew Dubé NDP Beloeil—Chambly, QC

Minister, if I may, just in that context—

9:15 a.m.

Liberal

The Chair Liberal John McKay

I'm sorry, Mr. Dubé. I was giving you a bit of a run there as it is.

Mr. Picard, you have seven minutes, please.

9:15 a.m.

Liberal

Michel Picard Liberal Montarville, QC

Thank you, Mr. Chair.

Mr. Minister, my thanks to you and your team for making yourselves available.

My question is about the Canadian Security Intelligence Service, or CSIS, and about the fallout from Justice Noël's decision.

That decision found problems with the types of information that can be investigated and kept, and with the extent to which it is possible to investigate. I would like to know how those obstacles have been overcome. As the judge said, it is impossible to keep information, even though it could be useful for investigations that are under way.

9:15 a.m.

Liberal

Ralph Goodale Liberal Regina—Wascana, SK

Justice Noël's judgment is very interesting. Obviously he was concerned about certain procedures and practices and he laid out his instruction as to how those practices were to be adjusted. Bill C-59 captures Justice Noël's advice and judgment for a procedure going forward dealing with the management of data and datasets. That is all articulated in a very elaborate set of rules that will apply.

However, Justice Noël also said this. I don't have the exact quote in front of me, but he said to bear in mind that the CSIS Act was written in 1984. Think back to 1984. If you had a cellphone, it was as big as a breadbox. The fax machine was cutting-edge technology. A lot has changed, and as you mentioned, Monsieur Picard, he said explicitly that maybe all of this needs to be revisited in light of all the technological change that has taken place since 1984.

There have been recommendations from the Security Intelligence Review Committee. There have been judgements of the courts. There have been findings by judicial inquiries into a whole variety of circumstances in terms of the collection, the analysis, and the utilization of certain datasets, and what should be permitted and what shouldn't be permitted. We've taken all of that on board and it is now embodied in the rules laid out in Bill C-59.

There was another dimension of Justice Noël's judgment where he suggested in some pretty blunt language that there needed to be greater communication and candour between the agency and the court.

David Vigneault is the director of CSIS. I would just ask him to comment on that issue with respect to candour.

9:20 a.m.

David Vigneault Director, Canadian Security Intelligence Service

Thank you, Mr. Minister.

Mr. Picard, let me give you an idea of the way in which we interpret Justice Noël's decision.

The service has a list of issues that can be raised when we go to court to get warrants. That means that the court has a number of issues about which it raises questions. We keep a list of all those issues. We go back to court to provide detailed explanations and we provide technical briefings. That is the openness that led to Justice Noël's decision in 2016. We have a kind of transparency and, in a way, partnership. Perhaps that is not the proper word, given that we are talking about a court, but the fact remains that we understand the obligations placed on the service and we work very closely with the court to try to address its concerns as best we can.

Recently, I have had the opportunity to sit down with the designated Federal Court judges and with other members of the judicial system. I gave them my view about how the service is going to behave in the future. To a large extent, I feel that a sense of trust has been rebuilt. The responsibility of keeping the trust of the court by being open and transparent towards it rests on my shoulders.

9:20 a.m.

Liberal

Michel Picard Liberal Montarville, QC

Transparency is often welcome.

That said, this gives you greater flexibility in gathering information and, as a result, in being able to have more and better quality information. The downside of that is the possibility of having information about third parties.

As of now, what steps are you taking to protect information about third parties?

9:20 a.m.

Director, Canadian Security Intelligence Service

David Vigneault

All information that the service gathers must be absolutely linked to our mandate, which is to monitor threats to the security of Canada. From the outset, the information we collect must be related to a threat to the security of Canada.

Bill C-59 sets out categories of information that are determined by the Minister. He tells me, as director, which categories of information we have the right to use. The men and women of the service will go and gather that information in an organized fashion. If the information is part of a Canadian dataset, the Intelligence Commissioner will have to assess the minister's decision.

With Canadian information, the Federal Court will have to determine whether we can use it and keep it. The way in which we use that information will be reviewed by the new National Security and Intelligence Review Agency and the National Security and Intelligence Committee of Parliamentarians.

The way in which the categories are determined by the Minister, the way in which we will use Canadian information, the role that the Federal Court and the Intelligence Commissioner will play, and the fact that any subsequent use of the information will be reviewed by oversight committees, all this will allow us to use information that is absolutely essential in confronting 21st century threats. Having been written 30 years ago, the law was showing its age, as Justice Noël said.

These measures will allow us, in 2017, to confront the threats appropriately, while being accountable for the protection of information on third parties, as you mentioned.

9:25 a.m.

Liberal

The Chair Liberal John McKay

Mr. MacKenzie, you have five minutes, please.

9:25 a.m.

Conservative

Dave MacKenzie Conservative Oxford, ON

Thank you, Chair.

Thanks to the panel for being here.

With all due respect, Minister, Bill C-51 was passed a few years ago, and I think that it received widespread support in the House. I believe you voted in favour of it. I think that it did make some changes that at the time were appropriate. Now in review three years later, we're looking at essentially a review. This is not a total rewrite, I think you would agree, of the original bill, but it does add some ingredients that are probably important.

When you mention the law expressly prohibiting protest and advocacy and so on, will the changes in the new bill result in charges that were not allowed for in Bill C-51? Have we enhanced the probabilities of prosecution in Bill C-59 over Bill C-51?

9:25 a.m.

Liberal

Ralph Goodale Liberal Regina—Wascana, SK

That's always difficult to predict, Mr. MacKenzie, as you know.

In the example I used in my remarks, I think my answer to your question would be, yes, in the tools that are available to deal with terrorist propaganda. The problem with the language in Bill C-51 was that it was very broad, and in the language of lawyers in court, it was so broad that it was vague and unenforceable.

If you recall, there was some discussion during the election campaign in 2015 that the language in that particular section might have been used to capture certain election campaign ads, which obviously wasn't the intention of the legislation.

We've made it more precise without affecting its efficacy, and I think we made it more likely that charges can be laid and successfully prosecuted, because we have paralleled an existing legal structure that courts, lawyers, and prosecutors are familiar with, and that is the offence of counselling. Clearly, it doesn't have to be a specific individual counselling another specific individual to do a specific thing. If they are generally advising people to go out and commit terror, that's an offence of counselling under the the act they way we've written it.

9:25 a.m.

Conservative

Dave MacKenzie Conservative Oxford, ON

I hope we would all agree that's an appropriate change. I think we do see changes in here that we agree with, and I think that for good reason you have a five-year review. I'm not sure if we need to go to five years. Maybe some of these things need to be reviewed more often than five years.

I look at many of these things that we talk about, and we talk about the collecting of information. For the people on the street who are enforcing these things and trying to keep Canadians safe, I would question why we get so involved in worrying about information we may collect from the public domain, such as social media. I think that Canadians would know that from the national media, we have been the beneficiaries of information obtained in other countries from social media where people were active, and I would use the example of the incident that occurred in southwestern Ontario, where the information came from another country, from information they had obtained through social media.

It would just seem to me that we are only fooling ourselves if we think we shouldn't be watching social media in our country for the benefit of Canadians, particularly.

9:30 a.m.

Liberal

Ralph Goodale Liberal Regina—Wascana, SK

Mr. MacKenzie, on that point, I might ask Kevin Brosseau to comment. I think you're referring to the Driver case at Strathroy. That critical piece of information that came to us from the FBI was actually an intelligence operation they were conducting. It wasn't via social media. It was another method that they were using.

But your point about the ability for them to share with us and us to share with them was absolutely crucial. The relationship between CSIS and their counterparts, the RCMP and their counterparts, is extraordinary. In that particular case, in the space of about eight hours, they were able to identify very precisely what was going on and stop a very significant tragedy from happening.

9:30 a.m.

Liberal

The Chair Liberal John McKay

Thank you, Mr. MacKenzie.

Mr. Spengemann.