Public Safety Committee on Dec. 5th, 2017

[Alex Neve]

In a very complementary way, I was going to highlight that we too absolutely agree that the need for a much more careful delineation of CSIS's powers, when it comes to threat reduction, is essential. That's why there is this need to enshrine a clear prohibition—and the line absolutely needs to be drawn—to make it clear that actions that will violate the Charter of Rights.... Very importantly, we would add that Canada's international human rights obligations, which are binding and which take our actions into a global context, play a very important role there.

[Pierre Paul-Hus, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

I will continue on the topic of the charter.

One of our main concerns right now is balancing the powers, that is, finding a balance between what we can do and what the charter requires us to do to uphold the freedom of Canadians.

In terms of security and potential threats to Canadian citizens, to what extent should the charter be applied consistently and fully? Criminals don't care about the charter. Criminals and terrorists have no intention of respecting anything. For our part, we endeavour to uphold the charter as much as possible, while they couldn't care less about it.

In your opinion, is the charter the ultimate tool to which we should pay the greatest attention? What are your thoughts on that?

[Alex Neve]

It will probably not come as a surprise to hear from me that it should be protected in 100% of cases and we always add to that the surrounding context of Canada's binding international human rights obligations as well. In saying that, I think that it's very important to underscore that the human rights framework is, by no means, inattentive to security threats and other kinds of challenges that governments face in ensuring safety for their citizens.

In fact, the international human rights architecture is entirely based on a very clear understanding that governments do face those threats and then has specifically incorporated that into how human rights protection needs to be upheld, like some human rights international law, with freedom of expression being an obvious one. Therefore, in their very definition in international treaties, a balancing is incorporated. It's a very limited provision for restrictions or infringements, but it is there.

In international law, other rights are clearly recognized to be so absolutely important that no circumstance—torture is an obvious example here—ever justifies infringement, which recognizes that it's devastating from a human rights perspective. It is also counterproductive when it comes to security because allowing torture in the name of security only creates more marginalized community, keeps us more insecure, and leads to more terrorism.

[The Chair, Liberal, John McKay]

Thank you, Mr. Paul-Hus.

Mr. Dubé, you have seven minutes.

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

Thank you, Mr. Chair.

I'm going to try to get through all these points quickly because I only have the seven minutes.

Dr. Carvin, on the intelligence commissioner issue, I'm just wondering about the length of the term and whether five years is enough to have some kind of independence from the government apparatus. Given the fact that, potentially, they can be reappointed for a second term, would there not be incentive to have some kind of job security in that sense?

[Prof. Stephanie Carvin]

It's interesting, in that you want someone who is familiar enough with what's happening and doesn't lose touch, but you're right, there is that potential conflict. I think a lot of it is also going to depend on the people around the intelligence commissioner and the support staff they actually have.

The intelligence commissioner is going to have considerable responsibilities on review and oversight. I believe the advantage is going to be having someone who has recent experience and understands the context and things like that, but even more importantly, I think ensuring that the people around this individual are well staffed and well funded is going to make a difference.

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

That's on the institutional memory side.

[Prof. Stephanie Carvin]

Yes.

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

In terms of independence, does it cause potential conflicts by keeping the person as non-reliant on the executive branch as possible for their job security?

[Prof. Stephanie Carvin]

I have to believe that our judges are sufficiently pensioned such that this is probably not going to be that much of an issue. I'm going to refer to my friend Emmett Macfarlane, who has written considerably on the courts in Canada and has written passionately that the judges actually are independent. I'm going to base my expertise on him and the conclusions of his research.

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

The other question was on the part-time nature of the work. Again, that probably connects to how they'll be staffed. Is there any potential issue, especially given that it's actual oversight and not review? Could it cause any problems to have it on a part-time basis?

[Prof. Stephanie Carvin]

I think we're going to have to wait and see how a lot of these things operate in practice. I would hope that this committee would keep an eye on that, to make sure that the problems you may be suggesting aren't going to manifest.

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

Okay, great.

The last question is on the intelligence commissioner. Given that it's oversight and not review, there's obviously something novel in that, and that's important. I want to make sure I'm understanding correctly that we're looking more at general authorizations as opposed to specifics, in terms of the actions being carried out by different agencies. I want to make sure I'm understanding that right. They're not actually looking at a specific action being posed but rather at the reasonableness of a general direction that an agency might be going in. Am I understanding that correctly?

[Prof. Stephanie Carvin]

Right. I don't know if you've been referred to Craig Forcese, who will be on the next panel. He has developed a decision tree. It's actually more complicated than your daily Sudoku. He might be better placed to answer that question.

It's my understanding that, yes, it is general, but there are some very specific cases where the intelligence commissioner will have to make calls, in particular, in defence of critical infrastructure. This is where some of my concerns about ministerial oversight arise.

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

Great. Thank you.

The next question is for both of you, moving to the national security and intelligence review agency. The complaints investigation function omits agencies like Global Affairs Canada, which obviously has a huge role to play.

From your perspective in particular, Mr. Neve, when it comes to our international human rights obligations, what importance does that have? Is keeping it to three agencies, with the fact that we're keeping an information-sharing regime in place, problematic?

[Alex Neve]

No. We would definitely support a more expansive reach for the agency. I think we know from past instances—I highlighted some of the cases at the beginning of my remarks—that involvement, responsibility, and even culpability certainly go beyond those operational agencies that may be doing the daily work around a case. In cases like Maher Arar, and in the cases that Justice Iacobucci examined in his inquiry, Global Affairs is certainly implicated as well. There needs to be some review of those decisions and actions.

[Prof. Stephanie Carvin]

I would largely support that. There is something I didn't talk about in my testimony—and I'm going to use this as a quick aside. One of the concerns I have is that DND is not excluded from this. If you look at all the different kinds of intelligence that will be going to this review agency, one of the concerns I have is that the way intelligence is used at CSIS versus at the Department of National Defence is extremely different, particularly because the Department of National Defence actually has the legally authority to kill people.

When the review agency is looking at all the different agencies, they're going to have to develop the expertise in how intelligence is used in each agency. DND has never been through this process before. They've never had their intelligence reviewed before, so this is going to be some serious learning for DND. As well, one of the important things for the NSIRA is that it will actually have to learn to differentiate the different ways intelligence is used by different government departments in Canada. That is a concern I have going forward.

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

Thank you very much.

There is one last question I wanted to ask. You talked about the importance of having legal grounds for the operations that CSE does. There are different parts that I've been looking at. I don't have enough time to get into some of those details, but there is one I was asking them about with proposed section 24, about testing and studying information infrastructure. There's also proposed section 28, which is about the minister authorizing cybersecurity—essentially, authorization to protect federal infrastructure and non-federal infrastructure.

Could the bill benefit from more clarity as to what exactly CSE can be doing in those particular contexts?

[The Chair, Liberal, John McKay]

Answer very briefly, please.

[Prof. Stephanie Carvin]

Very briefly, I would say I am happy for the intelligence commissioner to have a good review and oversight discretion, particularly with the defence of critical infrastructure, because that is a very vague concept and our idea of what it is actually changes over time.

With regard to proposed section 24, I'm going to leave that to Craig Forcese, given the time.

[The Chair, Liberal, John McKay]

Thank you, Mr. Dubé.

Mr. Erskine-Smith, welcome to the committee.

[Nathaniel Erskine-Smith, Liberal, Beaches—East York, ON]

Thanks very much.

Thank you to you both for your testimony.

Ms. Carvin, you mentioned that in the total architecture of review you still had some concerns about efficacy. You mentioned Professor Forcese a few times. In a paper that he and Kent Roach wrote they talk about this three-legged stool and there is a parliamentarian committee on efficacy, there's a super-SIRC for propriety review, and then they talk about an independent monitor of national security law built on the U.K. and Australian model.

When we look at Bill C-59 and Bill C-22 together, do you see that largely meeting the overall review architecture?

[Prof. Stephanie Carvin]

That's a very interesting point.

When I testified on Bill C-22 I suggested that much of the focus of that committee should be on efficacy. One of the issues we have is that it's not really clearly defined yet what the differences are between what NSIRA and NSICOP are going to be doing, and that's a concern not just for myself but also other people who formerly worked in this area. You don't want them both going after the same thing.

It should be clear that the Bill C-22 committee should probably be taking a 60,000-foot view of what's happening and let the NSIRA get into the legal weeds. What I'm concerned with is that there is no division of labour, but where I think the efficacy review should be taking place is probably in the Bill C-22 committee.

[Nathaniel Erskine-Smith, Liberal, Beaches—East York, ON]

I would agree. That makes sense, which would suggest that maybe we don't have a gap in efficacy review with Bill C-22 on the table.

In any event, the new super-SIRC committee and the new commissioner don't have the exact same powers in replacing SIRC and replacing the current CSE commissioner. I have a note here, for example, that the CSE commissioner has certain authorizations under the Inquiries Act that the new commissioner would not have, that the reporting requirements for SIRC are more stringent in some cases, including the number of warrants that have been authorized for CSIS.

When we roll CSIS into this super-SIRC, when you roll CSE into the new commissioner role, shouldn't they have the same reporting requirements and the same powers? If not, why not?

[Prof. Stephanie Carvin]

I didn't see those limitations in the legislation when I read them as perhaps you put it. It seems to me that the NSIRA actually has an extremely broad mandate and that is a very good thing because they should be able to have that authority.

I know that Wesley Wark, who will be speaking today, is an authority on review. I would encourage you to ask that question to him as well, but in my understanding, I did not see that limitation necessarily in the—