Evidence of meeting #90 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 privacy.

A video is available from Parliament.

On the agenda

MPs speaking

Also speaking

Daniel Therrien  Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada
Brenda McPhail  Director, Privacy, Technology and Surveillance Project, Canadian Civil Liberties Association
Christian Leuprecht  Professor, Department of Political Science, Royal Military College of Canada, As an Individual
Hayley McNorton  Research Assistant, Department of Political Science, Royal Military College of Canada, As an Individual
Cara Zwibel  Acting General Counsel, Canadian Civil Liberties Association
Lex Gill  Advocate, National Security Program, Canadian Civil Liberties Association

10:10 a.m.

Liberal

The Chair Liberal John McKay

I appreciate that time is the enemy here, but you're speaking so quickly that the interpreters are having difficulty keeping up.

10:10 a.m.

Advocate, National Security Program, Canadian Civil Liberties Association

Lex Gill

My apologies.

10:10 a.m.

Liberal

The Chair Liberal John McKay

Could you slow it down a bit, please.

10:10 a.m.

Advocate, National Security Program, Canadian Civil Liberties Association

Lex Gill

Absolutely.

The government has failed to demonstrate why this publicly available information exception as worded is necessary or proportionate, or what risks it's meant to mitigate in the first place. The CSE has identified a need to access reports on the global infrastructure as a justification for this provision, yet a more narrowly defined list of information types would easily respond to such a need.

While section 7 specifies that privacy must be considered, the nature of the protection is vague; the regulations setting out the scope of protection are likely to be secret, and the potential for invasive information collection and abuse is high.

The parallel term “publicly available dataset” in the CSIS Act remains undefined but appears to replicate the same types of problems.

Finally, we welcome the new accountability mechanisms in Bill C-59 and strongly support the creation of the new, integrated review body, and the introduction of an intelligence commissioner with the ability to exercise quasi-judicial oversight. However, we are concerned that significant gaps remain. The commissioner only issues reasons when rejecting an authorization. The reasons are kept secret from the public. There is no adversarial input. The authorizations will continue to be issued on a class basis, and there is no framework for appeal or review of decisions except by the minister and the intelligence agencies themselves.

Without amendments that strengthen the role of the commissioner, his or her ability to exercise meaningful oversight and control will be limited in practice.

We welcome questions from the committee about these issues and other aspects of Bill C-59.

10:10 a.m.

Liberal

The Chair Liberal John McKay

Thank you very much.

The first questioner is Mr. Fragiskatos.

I think the issue is kind of joined here with this panel, so if there is a will on the part of one of the other persons wishing to respond, you might get the attention of the questioner or me so that you can engage.

10:10 a.m.

Liberal

Peter Fragiskatos Liberal London North Centre, ON

Thank you, Chair.

Thank you to all of you for being here today.

My first question goes to Mr. Leuprecht and Ms. McNorton.

In a recent Toronto Star piece, you noted that the National Security and Intelligence Committee of Parliamentarians lacked a security background among the members that had been appointed. There are some members who have some experience in the realm of security, but by and large, you said there was a lack of experience and expertise.

I think you would agree that there is something to be said about an outsider's perspective, on the condition that there is advisory opportunity in the form of a secretariat to assist in the work and provide information, and that kind of expertise and background. You would agree that's a necessary thing.

10:10 a.m.

Professor, Department of Political Science, Royal Military College of Canada, As an Individual

Dr. Christian Leuprecht

I think one of the strengths of parliamentarians is that they are generalists and that they have to deal with wide ranges of legislation. My concern is that there is a lot disinformation and misinformation in this particular realm and it can be very difficult to understand, because most people have not worked in the actual community and don't understand.

10:10 a.m.

Liberal

Peter Fragiskatos Liberal London North Centre, ON

Point taken. I just wanted to offer that idea—we're on the same page—because there is something to be said about an outsider's perspective.

Staying with the committee of parliamentarians, you have argued, and others have argued, for example, Professor Wesley Wark, whom we heard from just the other day, that this committee will need research and advisory support in the form of an independent secretariat. The question is, where should the experts be drawn from? Wesley Wark said, “Are they too close to the security and intelligence community? Are they going to be too pal-sy? Too much a defender of the security and intelligence community?”

Is that a concern that you have? Go into that, if you could, because I think it's an interesting point.

10:10 a.m.

Professor, Department of Political Science, Royal Military College of Canada, As an Individual

Dr. Christian Leuprecht

There are always trade-offs, but I think the expertise is critical for the committee to ask the right questions and to know what information to ask for from the community.

I would also submit that we propose people, for instance, who are done with their careers, who have retired, so they have nothing at stake, per se, in the overall undertaking. These are folks who have decades of careers as professionals. If there is a community in the country that takes both their job and the need to absolutely respect the law 100% every time absolutely seriously, it is the security and intelligence community federally, provincially, and locally in this country.

10:15 a.m.

Liberal

Peter Fragiskatos Liberal London North Centre, ON

You don't see a danger in the same way that Professor Wark does, that perhaps there would be too much of a close relationship. As he said, are they too close to the security and intelligence community to offer the kind of independent advice and analysis that would be necessary for the parliamentarians to carry out their work?

10:15 a.m.

Research Assistant, Department of Political Science, Royal Military College of Canada, As an Individual

Hayley McNorton

There has been a precedent set with some of the existing intelligence accountability bodies that hire employees who have experience with the intelligence and security agencies in Canada. As far as I know, they have not had a problem with it. Additionally, there are also tests that can be employed to test the loyalty of employees.

10:15 a.m.

Liberal

Peter Fragiskatos Liberal London North Centre, ON

Would the Civil Liberties Association have a view on that?

10:15 a.m.

Acting General Counsel, Canadian Civil Liberties Association

Cara Zwibel

I don't think we have a comment.

10:15 a.m.

Liberal

Peter Fragiskatos Liberal London North Centre, ON

Okay.

Again, Professor Leuprecht and Ms. McNorton, you point out that you have a fear of overlap of work between the committee of parliamentarians and the NSIRA. Could you go into that in greater detail?

10:15 a.m.

Research Assistant, Department of Political Science, Royal Military College of Canada, As an Individual

Hayley McNorton

Considering the broad mandates of both NSIRA and NSICOP, there is a potential for overlap, especially in what they review for. They both could technically review issues related to efficacy, compliance, innovation of agencies.

They're geared toward different things. For example, the parliamentarians have a diversity of expertise, so they would be very useful in reviewing legislation. According to Bill C-59, NSIRA is made up of former SIRC members. They have the experience and intelligence accountability to look at things that are more geared to compliance. However, there probably will need to be some kind of delineating of responsibilities to prevent overlap and the minimization of duplication of work.

10:15 a.m.

Professor, Department of Political Science, Royal Military College of Canada, As an Individual

Dr. Christian Leuprecht

We also want to consider that every time one of these committees makes a request to the agencies, given there's no new money to the agencies to support all these new requests, this is effectively a cut in the budgets to the agencies themselves. We want to make sure that committees coordinate so that we also afford the agencies as efficient an opportunity to respond, rather than having to provide very similar things to multiple committees.

I think that the greatest payoff for the taxpayer and for parliamentarians and Canadians will be a clear division of labour among these entities based on the particular areas of expertise that they bring to bear. For NSICOP, one clear advantage is that now we finally have somebody who can advocate for changes in legislation. We know there are many pieces of flawed legislation. This government is addressing several of them in this parliamentary period, but when cabinet meets, they are never high enough to actually make it on the cabinet agenda. For years, we have had MCs, memoranda to cabinet, to make changes that don't actually ever make it through cabinet. Now, we actually have advocates. We have legislators and parliamentarians who can make sure the legislation is as effective as possible, both on the constitutionality and legality side and relative to a changing security environment.

10:15 a.m.

Liberal

Peter Fragiskatos Liberal London North Centre, ON

It's certainly a welcome development and an important one.

Professor Leuprecht, you have argued in the past that to meet the security challenges that Canada faces, we would need to “improve professional development mechanisms to build the skill sets and recruit the skill sets into our national security organizations”. There's a lot about skill sets there. In your view, are we doing that well enough, currently?

10:15 a.m.

Professor, Department of Political Science, Royal Military College of Canada, As an Individual

Dr. Christian Leuprecht

There are agencies that do it better and agencies that could benefit from some improvement. I think we have a very careful selection process and professional development process, for instance, among the Canadian Armed Forces, and within the Communications Security Establishment to a large degree, also within CSIS. However, on the law enforcement side, we also know that there is considerable opportunity for improvement on capabilities, capacities, and skill sets. For instance, while I respect the suggestions that CSIS should stick to it's knitting and, as far as possible, basically have other agencies deal with particular issues, I would submit to you that, yes, in the best of all worlds, we would want to have the RCMP do things, like disruption and whatnot. However, my submission to you is that the RCMP is struggling on so many fronts already that I think we also need to figure out where the relative advantage of different organizations lies and allow them to bring it up to speed.

10:20 a.m.

Liberal

The Chair Liberal John McKay

Thank you.

Mr. Motz, please, you have seven minutes.

10:20 a.m.

Conservative

Glen Motz Conservative Medicine Hat—Cardston—Warner, AB

Thank you, Mr. Chair, and thank you to both groups for being here today.

Mr. Leuprecht, you had said in previous testimony on Bill C-51, “CSIS is the most reviewed intelligence security service in the western world and therefore, I think we can safely say in the world as it is.” In your reading of Bill C-59, are there any new layers of review placed upon CSIS, and do you think those are helpful in helping CSIS fulfill it's mandate?

10:20 a.m.

Research Assistant, Department of Political Science, Royal Military College of Canada, As an Individual

Hayley McNorton

Under the new legislation, the NSIRA has a wider remit when it comes to reviewing Canadian intelligence and security agencies in general, and they do have the potential under a different mandate to not only review more but also help CSIS innovate in different ways. Therefore, yes, they are reviewed to a more...sorry, I didn't catch the latter part of your question.

10:20 a.m.

Conservative

Glen Motz Conservative Medicine Hat—Cardston—Warner, AB

Do you think those are helpful in CSIS fulfilling its mandate?

10:20 a.m.

Research Assistant, Department of Political Science, Royal Military College of Canada, As an Individual

Hayley McNorton

Yes. I definitely think that NSIRA has a greater potential to enhance the compliance, the efficacy, and the innovation within CSIS.

10:20 a.m.

Conservative

Glen Motz Conservative Medicine Hat—Cardston—Warner, AB

Thank you.

Dr. Leuprecht, the powers in Bill C-51 are not uncommon. You had said in your testimony, again on Bill C-51, “Canadians have a profound misconception of what disruption constitutes. CSIS being able to talk to parents to tell them that their child is up to no good is a disruption power.” I can go on with that, but with the changes proposed in Bill C-59, particularly in securing a warrant to conduct certain disruption activities, do you believe we are heading in the right direction with this legislation on that particular front?

10:20 a.m.

Professor, Department of Political Science, Royal Military College of Canada, As an Individual

Dr. Christian Leuprecht

The challenge is always, as my colleagues also pointed out, in reassuring Canadians that the activity in which the service engages is compliant with the Constitution and the rule of law. While I am personally satisfied that the service engages with the utmost professionalism when it comes to the use of its disruption powers, such a measure may be justified in some cases as a way to reassure Canadians about the expanded powers that CSIS has been given. Also, where there is controversy over whether these powers should reside with CSIS or with law enforcement—and I explained why I think, for better or for worse, for the time being they need to reside with CSIS—the warrant measures may be necessary to ensure the legitimacy and credibility of the activities in which CSIS engages.