Public Safety Committee on Dec. 5th, 2017

[The Chair, Liberal, John McKay]

I'm going to call this meeting to order. This is the 89th meeting of the public safety committee.

We have with us two witnesses, one of whom, at least, is very familiar with this process, Mr. Neve and MS. Carvin, professor at Carleton University.

I understand that, between the two of you, you cut a deal and Professor Carvin is going to go first.

We look forward to what you have to say.

[Professor Stephanie Carvin, Assistant Professor, Norman Paterson School of International Affairs, Carleton University, As an Individual]

I'd like to thank the committee for inviting me to speak on Bill C-59, the most comprehensive and far-reaching reform to national security in Canada since 1984. I would like emphasize that I am not a lawyer. However, I do have experience working in national security and intelligence, and I study this area for a living. Indeed, in the interest of transparency, I would like to state that from 2012 to 2015, I worked at the Canadian Security Intelligence Service as a strategic analyst.

My comments are, of course, my own, but they're informed by my research and experience as the national security landscape in Canada has evolved in a relatively short period of time. All of this is to say that today my comments will be focused on the scope of this bill and will address some of the areas that I believe this committee needs to, at the very least, consider as it makes recommendations.

First and foremost, I wish to express my support for this bill. I believe it contains four important steps that are essential for Canadian national security and the functions of our national security agencies.

First, it provides clarity as to the powers of our national security agencies. There's no better example of this than part 3, the CSE act, which gives our national signals intelligence agency statutory standing and spells out its mandate and procedures to a reasonable extent. Given that the first mention of this agency in law was the 2001 Anti-terrorism Act, this bill takes us a long way towards transparency.

Second, Bill C-59 outlines the limits on the power of our national security agencies in a way that will provide certainty to the public and also to our national security agencies. In particular, the bill clarifies one of the most controversial parts of the current legislation formerly known as Bill C-51, that is, CSIS' disruption powers.

While it might be argued that this is taking away CSIS' ability to fight threats to Canada's national security, I disagree. Having found themselves embroiled in scandals in recent years, it is little appreciated how conservative our national security agencies actually are. While they do not want political interference in their activities, they no doubt welcome the clarity that Bill C-59 provides as to these measures.

Let there be no doubt that the ability to disrupt is an important one, particularly given the increasingly fast pace of terror investigations, especially those related to the threat of foreign fighters. In this sense, I believe that Bill C-59 hits the right balance, grounding these measures squarely within the Charter of Rights and Freedoms.

Third, Bill C-59 addresses long-standing problems related to review, and in some cases oversight, in Canadian national security. I will not go over the problems of our current system, which has been described as “stove-piped” by experts and commissions of inquiries. I will, however, state that the proposed national security and intelligence review agency, NSIRA, and intelligence commissioner—in combination with the new National Security and Intelligence Committee of Parliamentarians, NSICOP—create a review architecture that is robust and that I believe Canadians can have confidence in.

Fourth, in its totality, Bill C-59 is a forward-looking bill in at least three respects. First, the issue of datasets is not narrowly defined in law. While this has been a cause of concern for some, I believe this is the right approach to take. It allows flexibility of the term, but at the same time it subjects any interpretation to the oversight of the intelligence commissioner and the minister. It subjects the use of datasets to the internal procedures of the national security agencies themselves—and limits who may have access—and the review of the NSIRA and NSICOP.

Second, it takes steps to enhance Canada's ability to protect and defend its critical infrastructure. Increasingly, we are seeing the abilities of states and state-sponsored actors to create chaos through the attacks on electrical grids, oil and gas facilities, dams, and hospital and health care facilities. Much of this critical infrastructure is in the hands of the private sector. This bill takes steps to ensure that there is a process in place to address these threats in the future.

Third, Bill C-59 puts us on the same footing as our allies by mandating an active cyber-role for our national signals intelligence agency. I appreciate the legal and ethical challenges this raises, especially should CSE be asked to support a DND operation. However, the idea that Canada would not have this capability is, I think, unacceptable to most Canadians, and would be seen as unfortunate in the eyes of our allies, many of whom have been quietly encouraging Canada to enhance its cyber-presence in the wake of cyber-threats from North Korea, China, and Russia.

To reiterate, I believe this is a good bill, but there's room for improvement. I'm aware that some of my legal colleagues, especially Craig Forcese, Kent Roach, and Alex, of course, will be speaking to certain specific legal issues that should be addressed to make the law more operationalizable and compliant with our Constitution.

I encourage the committee to seriously consider their suggestions. However, I'm going to focus on four areas that may be problematic in a broader sense, which I believe the committee should at least be aware of or consider when it makes recommendations.

First, I think it's important to consider the role of the Minister of Public Safety. To be clear, I believe our current minister does a good job in his current position. However, the mandate of the Minister of Public Safety is already very large, and this bill would give him or her more responsibilities in terms of review and, in some cases, oversight. At some future date, the scope of this ministry may be worth considering.

Having said this, I acknowledge a paradox. Requiring the intelligence commissioner's approval for certain operations, as is clear in proposed subsections 28(1) and 28(2) of the proposed CSE Act, and potentially denying the approval of a minister is, in my view, at odds with the principle of ministerial responsibility in our Westminster system of government.

To be sure, I understand why this authority of the intelligence commissioner is there. Section 8 of the charter insists on the right to be protected from unreasonable search and seizure. The intelligence commissioner's role ensures that this standard is met.

Why is this a problem? Canada has an unfortunate history of ministers and prime ministers trying to shirk responsibility for the actions of our security services, which dates back decades. Prime Minister Pierre Trudeau used the principle of police independence to state that his government could not possibly engage in review or oversight of the activities of the RCMP even though the national security roles of the RCMP are a ministerial responsibility. There is simply a tension here with our constitutional requirements and with what has been the practice of our system for decades. If this bill is to pass through, it will be up to members of Parliament to hold the minister to account, even if he or she tries to blame the intelligence commissioner for actions not taken.

Second, despite the creation of no less than three major review agencies, there's still no formal mechanism for efficacy review of our security services. We will receive many reports as to whether or not our security services are compliant with the law, but we still will not have any idea of how well they are doing it. I'm not suggesting we need to number-crunch how many terrorism plots are disrupted. Such a crude measure would be counterproductive. However, inquiring as to whether the analysis produced supports government decisions in a timely manner is a worthwhile question to ask. Efficacy review is still a gap in our national security review architecture.

Third, while I praise the transparency of Bill C-59, I'm also concerned about what I'm calling “report fatigue”. I note that between last year's Bill C-22 and now Bill C-59, there will have been at least 10 new reports generated, not including special reports as required. It is my understanding that some of these reports are very technical and can be automatically generated when certain tasks such as, hypothetically, the search of a dataset is done. However, others are going to be more complex. More briefings will also be required. Having spent considerable time working on reports for the government in my former work, I know how difficult and time-consuming this can be.

Finally, and related to this last point, it is my understanding that the security services will not be receiving any extra resources to comply with the reporting and briefing requirements of either Bill C-22 or Bill C-59. This concerns me, because I believe that enhanced communication between our national security services with the government and review bodies is important. As the former's powers expand, this should be well resourced.

In summary, the ability to investigate threats to the national security of Canada is vital. I believe that for the most part, Bill C-59 takes Canada a great step towards meeting that elusive balance between liberty and security. In my view, where Bill C-59 defines powers and process, it should enable our security services to carry out their important work with confidence knowing exactly where they stand. Further, the transparency in the bill will hopefully go some way towards building trust between the Canadian public, Parliament, and our security services.

Thank you for your time. I look forward to your questions.

[The Chair, Liberal, John McKay]

Thank you, Professor Carvin.

Mr. Neve, please go ahead for 10 minutes.

[Alex Neve, Secretary General, Amnesty International Canada]

Thank you very much, Mr. Chair.

Good morning, committee members. Amnesty International certainly welcomes this opportunity to appear before you in the course of your review of Bill C-59. I'd like you to know at the outset that I'm here on behalf of both the English and francophone branch of Amnesty International Canada, and thus on behalf of our 400,000 supporters across the country.

Amnesty International has a long history of frequent appearances before parliamentary committees dealing with national security matters, be that studies of proposed legislation or reviews of existing legislation. That's not because we're national security experts. Our expertise, of course, lies in human rights. Our interest in Bill C-59, therefore, comes directly from our mandate to press governments to uphold their international human rights obligations. Documenting and responding to human rights violations arising in a national security context and pressing governments to amend national security laws, policies, and practices to conform to international human rights obligations have long featured prominently in Amnesty International's research and campaigning around the world, long predating September 11.

National security is often blatantly used as an excuse for human rights violations, clearly intended simply to punish and persecute political opponents or members of religious and ethnic minorities. National security operations have frequently proceeded with total disregard for obvious human rights consequences, leading to such serious human rights violations as torture, disappearances, and unlawful detention. Without adequate safeguards and restrictions, overly broad national security activities harm individuals and communities who pose no security threat at all. In all of these instances, the impact is frequently felt in a disproportionate and discriminatory manner by particular religious, ethnic, and racial communities, adding yet another human rights concern.

These concerns are by no means limited to other parts of the world. Over the past 15 years, Amnesty International has taken up numerous cases involving national security-related human rights violations related to the actions of Canadian law enforcement and national security agencies. These concerns have been so serious as to be the subject of two separate judicial inquiries, numerous Supreme Court and Federal Court rulings, and several significant apologies and financial settlements totalling well over $50 million to a number of Canadian citizens and other individuals whose rights were gravely violated because of the actions of Canadian agencies. I think of Maher Arar, Benamar Benatta, Abdullah Almalki, Ahmad El Maati, Muayyed Nureddin, and Omar Khadr. This is why we bring our human rights analysis to legislation such as Bill C-59—to ensure that provisions provide the greatest possible safeguards against human rights violations of this nature.

In commenting on the bill, I will touch briefly on five areas: first, the need for a stronger human rights anchor in the bill; second, the bill's national security review provisions; third, positive changes in Bill C-59; fourth, concerns that remain; and fifth, issues of concern that have not been addressed in the bill.

The first area is the need for a national security approach anchored in a commitment to human rights. In the review that preceded Bill C-59, we urged the government to use the opportunity of the present reform to adopt a clear human rights basis for Canada's national security framework. That is an approach that is not only of benefit, evidently, for human rights, but truly lays the ground for more inclusive, durable, and sustainable security as well. Currently, other than the Immigration and Refugee Protection Act, none of Canada's national security legislation specifically refers to or incorporates Canada's binding international human rights obligations.

We recommended that those laws be amended to include provisions requiring legislation to be interpreted and applied in a manner that complies with international human rights norms. That was not taken up in Bill C-59 except for one very limited reference to the convention against torture. This is important in that it sends a strong message of the centrality of human rights in Canada's approach to national security. It is also of real benefit when it comes to upholding human rights in national security-related court proceedings.

Our first recommendation, therefore, remains to amend Bill C-59 to include a provision requiring all national security-related laws to be interpreted in conformity with Canada's international human rights obligations.

Second, we strongly welcome and support the provisions in part 1 of Bill C-59 creating the national security and intelligence review agency. Amnesty International has been calling for the creation of a comprehensive and integrated review agency of this nature since the time of our submissions to the Arar inquiry in 2005. This has been one of the longest-standing and most serious gaps in Canada's national security architecture. We do have three associated recommendations.

First, in keeping with the earlier recommendation I just made, the mandate of the review agency should be amended to ensure that the activities of security and intelligence agencies will be reviewed specifically to ensure conformity to Canada's international human rights obligations.

Second, the review agency must have personnel and resources commensurate with what will be a significant workload. We endorse the recommendation made by Professor Kent Roach that the provision allowing for a chair and additional commissioners numbering between three and six is inadequate, and would suggest that the number of additional commissioners be raised to between five and eight.

Third, we continue to be concerned about the review specifically of the Canada Border Services Agency. Unlike many of the agencies that will be reviewed by the new agency, the CBSA does not have its own stand-alone independent review body. The new review agency will have the power to review CBSA's national security and intelligence-related activities, but there still is no other independent agency reviewing the entirety of CBSA's activities, despite the growing number of cases where the need for such review is urgently evident, including deaths in immigration custody. This imbalance will inevitably pose awkwardness for the review agency's review of CBSA, and it underscores how crucial it is for the government to move rapidly to institute full, independent review of CBSA.

We'd like to highlight improvements. First, our concerns about the overly broad criminal offence in Bill C-51 of advocating or promoting the commission of terrorism offences in general have been addressed by the proposed revisions to section 83.221 of the Criminal Code, which would instead criminalize the act of counselling another person to commit a terrorism offence, which was already a criminal offence essentially.

Second, the threat reduction powers in Bill C-51, which anticipated action by CSIS that could have violated a range of human rights guaranteed under the Charter of Rights and under international law have been significantly improved. However, we think it needs to go further, and there needs to be specific prohibition of the fact that CSIS will not involve threat reduction of any kind that will violate the charter or violate international human rights obligations. We also welcome the changes made to preventive detention, but have some recommendations as to how that can be improved.

We remain concerned about the Secure Air Travel Act provisions, which we do not think address the many serious challenges that people face with the application of the no-fly list. Much more fundamental reforms are needed, including a commitment to establishing a robust redress system that will eliminate false positives, and significant enhancements to listing and appeal provisions to meet standards of fairness.

Because I know my time is limited, let me end with some provisions that remain unaddressed in the legislation.

One of the most explicit contraventions of international human rights in Canadian national security law, going back over 20 decades now, is the provision in immigration legislation allowing individuals in undefined exceptional circumstances to be deported to a country where they would face a serious risk of torture. It's a direct violation of the UN convention against torture. UN human rights bodies have repeatedly called for this to be addressed. Bill C-59 passed on the opportunity to do so. We would recommend that be taken up.

Finally, Bill C-59 also fails to make needed reforms to the approach taken to national security in immigration proceedings. There were very serious concerns about Bill C-51's deepening unfairness of the immigration security certificate process, for instance, withholding certain categories of evidence from special advocates.

There needs to be a significant rethinking and reconsideration of immigration security certificate proceedings, rolling back those changes that were made in Bill C-51, and addressing still the other areas of concern with respect to the fairness of that process.

Thank you.

[The Chair, Liberal, John McKay]

Thank you, Mr. Neve.

Ms. Damoff, you have seven minutes, please.

[Pam Damoff, Liberal, Oakville North—Burlington, ON]

I would like to welcome you both to our study of Bill C-59 and thank you for being here. I'm going to start with Amnesty International.

I'm just going to quote you. On your website, where you've written about Bill C-59, you say that you'd “also hoped that the government would act to address longstanding concerns about the failure to...reject torture in Canada’s intelligence sharing arrangements with other countries.” You've mentioned that here as well.

Ministerial directions were put in place in September, and those had obviously been a decade old since they had been updated. First of all, the ministerial directions prohibit sharing information if there is a reasonable ground to believe it could lead to torture. How did these improve on the previous directions, which I mentioned were decades old?

[Alex Neve]

Thank you very much for the question.

We did welcome the new directions that came after the earlier statement you're noting, which was our reaction to Bill C-59 when it was tabled in June.

[Pam Damoff, Liberal, Oakville North—Burlington, ON]

Okay. Thank you for clarifying that.

[Alex Neve]

We did highlight that we think they are a very significant improvement over the previous directions, which were of serious concern. We have highlighted that they do not go far enough. It's hard to please advocates, especially when it comes to something as fundamental as human rights protection and protection against such a crucial human rights concern as the absolute prohibition on torture. We're still concerned that there are provisions in the directions that do allow for the possibility that intelligence could be used, even if it has been obtained through torture.

We have made recommendations for further reform, but do welcome the steps that have been taken.

The issue that I highlighted today is a separate but related concern about the fact that in our immigration legislation—so again, it's this broad concern about being complicit in torture—we still have these provisions that would allow individuals to be deported to a situation of torture in extreme circumstances. We do very much call for that to be addressed.

[Pam Damoff, Liberal, Oakville North—Burlington, ON]

Thank you very much, and thank you for being with us again as well.

Dr. Carvin, I thank you for being here and for your testimony.

You had an article published yesterday in The Globe and Mail, along with our panellists who are appearing in the next hour. You had stated that:

C-59 also builds up the powers of Communications Security Establishment....

Even more critically, it finally tries to draw CSE into the constitutional tent by creating a unique independent approval system for its intelligence activities. We think there are some important amendments to be made in these areas....

I'm just wondering if you could highlight for us what amendments you would like to see in Bill C-59 to improve the oversight mechanisms of CSE?

[Prof. Stephanie Carvin]

Thank you very much for this question. That particular passage has been written by Craig Forcese, who will be speaking on that a lot.

[Pam Damoff, Liberal, Oakville North—Burlington, ON]

Okay.

[Prof. Stephanie Carvin]

I think his entire presentation will actually be on that, so I don't want to pre-empt what he is going to say. Again, it just gets to section 8 of the charter, making sure that people are protected from an unreasonable search in CSE's operations. As to the specific legal details, I don't like to defer but I will in this particular case. Thank you.

[Pam Damoff, Liberal, Oakville North—Burlington, ON]

That's fine, especially since they are here today. Thank you for that.

You've also called for better transparency for Canadians about what types of threats the government is presently facing. You referred to two models that the government could look at. I wonder if you could maybe explain for us what those two models are, and if you think that should be something that we legislate or if it could be done by regulation.

[Prof. Stephanie Carvin]

Thank you. This is an issue that I'm very passionate about. It's a great question.

One of the first examples out there is the worldwide threat assessment that's put out every year by the Office of the Director of National Intelligence. We used to call it the Clapper report. It will now be called Coats report.

What I would say is that every year they put out a 15- to 20-page threat assessment that lists what the priority threats are to Americans. It's a very useful report because it's indicative of where the security services are putting their resources and what the major concerns are. It also shows the shift over time. If you look at the reports over time, you can see that they've gone from putting al Qaeda—particularly al Qaeda in the Arabian peninsula—as the number one threat to now putting cyber as the number one threat.

It's interesting that we've seen that shift in the American national security landscape, and I think Canadians should know as well. Right now, the only way we really have of knowing these things is through the threat environment section in CSIS's annual report, but that's no longer an annual report. It now comes out every three years. Also, now it's not even really a report anymore. The last report was a YouTube video of the director sitting in front of a camera, and I don't think this is sufficient to explain what the national security threats are to Canadians.

First of all, I don't understand why that report is no longer an annual one. It absolutely should be an annual report. When I testified on Bill C-22, I said we needed to make sure that there are annual reports discussing what these threats are, along the lines of the worldwide threat assessment. I think that would be one area.

The other area that we have is the public report on the terrorist threat, which is again supposed to come out every year. I don't believe this year's report has come out yet; I'm not entirely sure why. That is the only inter-agency report we have on any threat to Canada, not just terrorism, and it's in just one area. We don't talk a lot about espionage and we don't talk a lot about cyber, and these are things Canadians need to know.

[Pam Damoff, Liberal, Oakville North—Burlington, ON]

I only have 20 seconds left—

[Prof. Stephanie Carvin]

Sorry.

[Pam Damoff, Liberal, Oakville North—Burlington, ON]

No, that's okay.

Did you say that it should be something that's legislated, or can it be done by regulation?

[Prof. Stephanie Carvin]

When I testified on Bill C-22, I suggested that it should be legislated and should be required every 365 days. I believe Canadians deserve that transparency.

[The Chair, Liberal, John McKay]

Thank you, Ms. Damoff.

Mr. Paul-Hus, you have seven minutes.

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

Thank you, Mr. Chair.

Hello, Ms. Carvin.

In your presentation, you said that Bill C-59 would change the powers of CSIS officers. It is often said that Bill C-51 gave CSIS too many powers. There have been many calls to change that, and I would like to better understand the reason for those requests. Since you worked for that organization, you are familiar with the field. I would like to know more about that.

[Prof. Stephanie Carvin]

Thank you for your question.

I will respond in English. Thank you.

I think one of the issues is that, without guidance, the security services do not know where to step. There is concern, for example, that with the broad scope of Bill C-51, knowing where the limits were was a challenge. One of the things that the service always worries about is another commission of inquiry. This is the number one thing you want to avoid because of the drain on manpower, resources, and these kinds of things. Without adequate oversight, without clear guidance as to where the lines are, the service becomes very scared about where it can actually proceed.

We've seen that, of course. Michel Coulombe and the new director have stated that they haven't really gone for the warranted powers in Bill C-51 that allow it to violate the charter, as far as I'm aware. You want powers that are clearly defined in law and that you know have the backing of the government and the backing of the courts, or else a kind of paralysis develops, in the sense that you don't want to do anything that could eventually end up with a commission of inquiry again. This is why I strongly support clearly defined disruption powers.

I believe disruption is important. One of the things I saw during my time was just the speed at which terrorism investigations sped up. They could go from being over two years to being a couple of weeks, when people saw the propaganda and would make the decision to leave.

These disruption powers are important, but I think grounding them in the charter and in interpretations of the law is absolutely vital to the actual operations of the agency.

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

Thank you.

In your statement, you also spoke a lot about the agencies' various review mechanisms or bodies. All we want in the end is to protect ourselves against various potential threats.

Do you think that once Bill C-59 is passed it will be effective in countering threats?

[Prof. Stephanie Carvin]

Yes, sir, I am. In particular, I am happy to see the cyber-powers of CSE legislated. Importantly, I think it signals to our allies that Canada is committed to a robust defence of, not only ourselves but also, for example, NATO operations and the Five Eyes agencies as well. These are things that we absolutely need. I think having these powers is important. Putting them on statutory footing, so that Canadians and our allies know that they are there, is going to make us more transparent but also a more reliable, dependable partner going forward.

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

Thank you.

Mr. Neve, I think you also wanted to speak to my first question.