Public Safety Committee on Dec. 12th, 2017

[Professor Kent Roach, Professor, Faculty of Law, University of Toronto, As an Individual]

Thank you very much for inviting me to appear before the committee.

My colleague Craig Forcese has already addressed you and has focused on parts 2, 3, and 4 of the bill. I will focus on the other parts of Bill C-59.

Part 1 providing for a government-wide super-SIRC has been widely praised. In my view, it implements the important principle, if not the precise details, that animated the Arar commission's report; namely, that review should expand with the state's national security activities and that review strengthens rather than weakens security.

Improvements can still be made. I recommend that the new and very much welcome super-SIRC be somewhat supersized. In my view, it should contain a minimum of five members and up to eight members. Amnesty International has endorsed this recommendation, and you've heard some very interesting proposals about strengthening the new super-SIRC both from Professor Wark and Mr. Fogel.

We should think about having more diversity in appointments and not simply focusing on the consultation with leaders of political parties, which is very much a holdover from the original 1984 Cold War era CSIS Act. We could also include people with expertise in privacy, as you heard from the Privacy Commissioner. I think it is also important that there be representation where possible from communities that may be disproportionately affected by national security activities.

The mandate of the new review agency needs to be better defined. On my reading, the reference to “department” or “corporation”, which is incorporated in the new act, does not include the RCMP. This should be very clearly spelled out. It should be clear that the new committee can review the national security activities of the RCMP, hear complaints about the national security activities of the RCMP, and have full access to classified information that the RCMP has on the same basis that it will have access to classified information that CSIS, CSE, and other agencies involved in national security have.

Moving to part 5, I remain of the view that the SCISA part of Bill C-59 remains the weakest part of the bill. I would advocate that the definition of threats to national security in section 2 of the CSIS Act be the default trigger for information sharing, subject to carefully tailored and justified additions in cases where that may be inadequate. The novel Bill C-51 definition of activities that undermine the security of Canada was grossly overbroad. Even after the amendments in this bill, it would remain overbroad.

When I talk about overbreadth, and I know that some members of this committee have read the Air India commission report, I refer to overbreadth not only from a civil liberties perspective but frankly from a security perspective. If everything is a security threat, effectively nothing is a security threat. I think we really should tighten the definition with respect to information sharing.

On the subject of Air India—and here I'm going just a touch beyond Bill C-59—I must again reiterate my objections to the CSIS human source privilege that was enacted in the Protection of Canada from Terrorists Act. If it is not repealed, at least I would recommend that, as an urgent matter, there be a study of whether CSIS's practice of granting anonymity to witnesses is hindering terrorism prosecutions.

The Privacy Commissioner has made a strong case to you that the standard for receiving agencies under SCISA should be raised to “necessity”. I agree. I would also not be troubled by having that same standard with respect to sending agencies. The Privacy Commissioner raised the issue that sending agencies may not have experience with security, but they also maybe don't have the same incentive that receiving agencies may have to keep, perhaps unnecessarily, the information that they receive.

In this regard, a critical feature of the new review agency is that it will be able to examine the legally privileged material that is the basis on which receiving agencies will make decisions, perhaps wrongly, to retain any information.

Moving to part 6, the committee is well aware of the problems of a no-fly list. The reforms in C-59 strike me as minimal. Four months is a long time to be a wrongfully listed person, even if the default has been changed. Special advocates should have a role in appeals, and Bill C-51's restriction on the information that these security-cleared advocates can see in security certificate cases should also be repealed. More fundamentally, however, perhaps the new committee that has access to classified information should review whether the costs of the no-fly list, both financial and human—in terms of false positives—are actually worth its benefits.

Moving to part 7 of the bill, I note that the CCLA submitted to you that the reference to terrorism offences in the counselling offence is not defined. That's not my reading. I would read the reference to terrorism offences as referring to the definition of terrorism offences contained in section 2 of the Criminal Code, but this is a matter that needs to be clarified.

The changes to the preventive arrest provisions are difficult to evaluate, but I would favour further amendments to clarify limits on questioning of people who may be detained for up to seven days. I would also advocate that there be some response to the Driver case in Manitoba, which held that at least one part of the peace bond provisions relating to treatment programs violated the charter. I would also recommend that we look at something like section 10 of the U.K. Terrorism Act, 2000, which would allow people to challenge listing as terrorist groups without that very act of challenge being the basis for a terrorism offence.

I applaud the government for repealing investigative hearings, a technique that has never been successfully used and, if used, could hinder terrorism prosecutions.

Finally, this is important and complex legislation that was made necessary by Bill C-51. I would propose that given the comprehensive, if not radical, nature of C-51 and the important proactives of this bill, that the review of this bill be commenced within the fourth year of its enactment, not the sixth year as contemplated in part 9. I would also propose that the review be undertaken by a special joint committee of the Commons and the Senate, which could include one to two members of the new National Security and Intelligence Committee of Parliamentarians.

In addition to my previously submitted brief, which I hope you have and has been translated, those are my submissions.

Thank you very much. I look forward to your questions.

[The Vice-Chair, Conservative, Pierre Paul-Hus]

Thank you very much, Mr. Roach.

We now start the first series of questions.

Mr. Picard, you have seven minutes.

[Shimon Fogel]

I think there's always a tension when you have competing imperatives. As you noted, on the one hand, we all want to ensure maximum freedom and individual rights. However, on the other hand, we recognize that there's an equally important imperative to ensure the collective safety of all Canadians from the threats that have emerged and manifest themselves, not just abroad, but assert themselves here in Canada.

I think one of the ways to achieve that balance is the way that this legislation attempts to provide the kind of qualitative oversight by a review board that is one step removed from the front lines.

I suspect that one of the challenges, for those who are directly involved in the challenge of tracking and interdicting terrorist threats, is that they become very focused on the mission, without necessarily always appreciating the context.

Having a review committee that's able to assess whether the approach is properly calibrated is a way, both retroactively, but also proactively, to ensure that we have achieved the right balance.

Having an additional layer of reporting to Parliament, so that elected officials, who have a direct relationship with those in the community who are being directly affected by these kinds of measures, ensures that there is not just the accountability but also the responsiveness to what the experience in the community is.

I think that this legislation does properly capture the spirt of being able to balance the need for security against the need to protect individual freedoms.

[Michel Picard, Liberal, Montarville, QC]

What is your opinion, Mr. Roach?

[Prof. Kent Roach]

I agree with what Mr. Fogel said. I think the issue is not so much stronger security powers, but smarter security powers. I think the review process contributes to this, but I would also say that the ongoing “intelligence to evidence” consultation that the government is conducting is very important. Professor Forcese and I have commented that Canada seems to lag behind our allies, even on a per capita basis, in being able to conduct terrorism prosecutions. There have been improvements, but I think there can still be improvements.

Now, I come back to SCISA. I don't think we make Canadians safer by having the broadest possible definition of security threats in SCISA. In fact, I think that not only threatens rights by making potentially environmental groups, indigenous groups, and diaspora groups the target of security information sharing, but we make Canadians less safe by potentially drowning departments with information.

I would say the threat of terrorism is real. We've never denied it. It is going to be here for the foreseeable future and we have to be smarter about the way we respond to and target these threats and not simply attempt to reassure the public by enacting legislation that is as broad or as tough as possible.

[Michel Picard, Liberal, Montarville, QC]

Speaking of SCISA, that brings me to my second question.

You are proposing a stricter definition of information sharing. But you understand that, in the current situation, the organization providing the information and the one receiving it do not necessarily see eye to eye about the information that needs to be shared.

Given that the criteria that determine which information needs to be shared are always different from organization to organization, would a stricter definition not get in the way of the information sharing?

[Prof. Kent Roach]

Necessity is, as the Privacy Commissioner said, a very well-regarded and internationally accepted standard, so I would start with that. If the sending agency is insufficiently attuned to possible security implications, then someone should make sure that they know about that and are in a position to administer whatever standard it is, whether it is necessity or whether it is relevance.

One of the recommendations of the Air India commission, and I should mention that I was the research director of legal studies for that commission, was that we needed a more proactive role at the centre to make sure all the agencies involved in national security worked together.

I don't think you can fix this problem simply by having a fairly low standard for the sending agency. It seems to me that if something is necessary for security reasons, then whether you're in the agricultural department, the CBSA, or wherever, you should have appropriate training and awareness, and appropriate intelligence briefings, so that you will be able to make that call correctly.

[The Chair, Liberal, John McKay]

Thank you, Mr. Picard.

Mr. MacKenzie, you have seven minutes, please.

[Dave MacKenzie, Conservative, Oxford, ON]

Thank you, Chair, and thank you to the panel members for being here today.

Mr. Fogel, I found it interesting that you should mention that the Jewish community has been the major focus of terrorists or actions against your group. I believe, if I'm not mistaken, perhaps the Catholic Church was fairly high in that whole hierarchy.

In terms of one of the ironies, I was here for the introduction of Bill C-51, and both the Conservatives and the Liberals supported that bill. It was a first step, obviously, and I see this as perhaps being the next step of a living document. There are good suggestions that we should review this document before too many years pass. However, what I did note too, and my colleague mentioned the apologies and the compensation paid to four individuals, is that it all occurred way before Bill C-51 was brought in, so maybe it did have some things in there that brought the intelligence agencies and the security agencies a bit to heel, although much later in the whole process. Those were incidents that all occurred before 2004, so I see this as the next step.

When we talk about the no-fly list, for instance, and we look at the American list as being a far better system, would you also say that we should look at some of the other American rules with respect to terrorism and anti-terrorism? Particularly, I noticed yesterday in the incident in the New York City subway, the commentators talked about not allowing him his Miranda rights. That seems foreign to Canadians, but the Americans obviously have some view on that.

Mr. Fogel, do you have any comments on that?

[Shimon Fogel]

I'm not entirely familiar with that particular aspect of the case. It is good practice, and I believe, frankly, that Canada already undertakes consultation with all its like-minded allies on a routine and regular basis looking for best practices, those that we can share with others, and those where we can benefit from the experience of other nation-states.

I'm encouraged when I look at the process of Bills C-51 and C-59 and the commitment to periodically review, both to refine on the basis of experience but also to be able to be responsive to changing circumstances on the ground. That's exactly the right approach that we should be taking. I'm encouraged that we do consult with our allies in order to benefit from their experience in areas where we have less.

[Dave MacKenzie, Conservative, Oxford, ON]

Thank you.

Mr. Roach.

[Prof. Kent Roach]

Mr. MacKenzie, could I also address the Miranda point?

[Dave MacKenzie, Conservative, Oxford, ON]

Sure. Please do.

[Prof. Kent Roach]

This is exactly where I was coming from on the CSIS informer point. If you don't read someone their paragraph 10(b) rights under the charter, you're going to make it more difficult to prosecute them. One of my concerns about that, and one of my concerns about the CSIS informer privilege, is that we may actually be making it more difficult to prosecute people. I actually think that we don't want to go the American route, where you have people who are essentially impossible to prosecute because of the way you violated their rights. Terrorism is violence, and if someone is planning violence or someone has committed violence, the appropriate response is with a prosecution. This is why I did not understand why the previous government gave CSIS this privilege, which is triggered any time they promise a human source confidentiality.

I can tell you, in the Air India investigation, which we spent four years examining, that sort of practice would have made it impossible even to have brought a prosecution because all of the witnesses were first, as perhaps they should be, CSIS sources, but then they had to be turned over to the RCMP to facilitate a prosecution.

Again, this is the importance of evidence-based policy-making. I don't know what the rationale was, except maybe to reverse a Supreme Court decision in Harkat, but I actually genuinely feel that we may be placing Canadians' safety and terrorism prosecutions at risk because of a decision that was made by Parliament in 2015 to give CSIS human sources an absolute privilege from any identifying information being disclosed or used in a terrorism prosecution.

[Dave MacKenzie, Conservative, Oxford, ON]

I appreciate that. I wasn't suggesting that we go to the American system. I was just trying to point out that there is a difference when we look from one to the other. They all have differences.

To that end, I wonder if both witnesses could tell us if they've looked at similar legislation by our allies, the Five Eyes. Is there something more we can learn from adopting some of their practices that we don't already have? Perhaps we'll start with Mr. Roach.

[Prof. Kent Roach]

Professor Forcese has addressed the intelligence commissioner, but I do think that follows from the U.K. We shouldn't follow the U.K. blindly, but certainly U.K. terrorism legislation has had a huge impact on Canadian legislation. I think that's a good step.

I agree with Professor Carvin, though, and Professor Forcese, that we should have that intelligence commissioner issuing reports about what he or she does. Part of review is, frankly, educating the public about national security activities. We're following in British footsteps there, and I think that's probably a positive development.

[The Chair, Liberal, John McKay]

Mr. Fogel, you have 30 seconds.

[Shimon Fogel]

I have nothing to add.

[The Chair, Liberal, John McKay]

Okay.

With that, Monsieur Dubé, you have seven minutes, please.

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

Thank you, Chair.

Professor Roach, I just want to come back to the intelligence commissioner. I had a few questions about that. First of all, in terms of the idea of its being a retired Federal Court judge, and as well the five-year mandate with the possibility of renewal, I'm wondering how it affects the independence of the office, and if you have any thoughts on that.

[Prof. Kent Roach]

Certainly, perhaps, removing the renewal might help the independence. I certainly realize that we're using retired judges more and more, but like with the review agency, I would actually urge Parliament to be a little more creative and perhaps expansive about the terms of appointments. I'm in no way denigrating retired federally appointed judges—they're extremely talented and diligent people—but there may be others out there.

On your independence point, I think that, especially if you're dealing with a retired person, five years may be sufficient.

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

Great. Thank you.

The other piece about the intelligence commissioner, because it's being put out there as the first real form of oversight, as opposed to review, that exists, there is some question about the specificity of that oversight. In other words, we're approving general operational notions without some of the specifics, and in particular, when it comes to collecting datasets and some of the new powers in there for CSE. I just want to hear you a little bit on that.

Is there some way to drill down to a little more specificity so that we're getting the most robust oversight possible, or is it better to stay general, given that this is a new office?

[Prof. Kent Roach]

That's a very good question, and it's a tough question because the danger of oversight is that if you approve something in generalities, you might feel committed to something that happens, even if it was unanticipated.

I tend to think of these things more in terms of review and that where the oversight comes in our parliamentary system is with the minister. Reports to the minister are a lot of what SIRC and the CSE commissioner do. I'm aware that we don't see most of those reports. That's something that the new National Security and Intelligence Committee of Parliamentarians has to do, basically to call to account the minister if he or she fails to oversee what is going on.

Again, Professor Carvin raised the issue that the Department of Public Safety is a gargantuan ministry, and perhaps sometime in the future we need to look at splitting that up to take things such as corrections out of it and to have a more narrowly focused security ministry where the minister has a fair chance of keeping on top of everything that he or she is ultimately responsible for.

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

Speaking of ministerial responsibility, though, that being one of the forms of accountability, going back to the intelligence commissioner, some have raised the concern that there's a chicken-and-egg thing as to who is approving whose actions. In that context, does that create a problem as well, that the intelligence commissioner is basically rubber-stamping the minister's decisions and not the other way around, where necessary?

[Prof. Kent Roach]

Yes, although having a quasi-judicial official review ministerial authorizations is a gain. The general trend, as we see in Britain, is to move away from simple ministerial authorizations. It is checks and balances, but we need to get the new committee of parliamentarians in. No slight to your committee, but the vast majority of these reports, frankly, you and I have never seen.