Evidence of meeting #93 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 cse.
A video is available from Parliament.
Liberal
Julie Dabrusin Liberal Toronto—Danforth, ON
The only reason I'm jumping in is that I know I'm about to run out of time—
Commissioner, Office of the Communications Security Establishment Commissioner
This is my answer—
Liberal
Julie Dabrusin Liberal Toronto—Danforth, ON
I just wanted to know what you would want to see as the Information Commissioner's role, then.
Commissioner, Office of the Communications Security Establishment Commissioner
I think the IC should be involved with regard to those operations.
Special Legal Advisor, Office of the Communications Security Establishment Commissioner
If I may just add, the role would be a similar one. Reviewing and approving would be the same scheme as the other authorizations, basically. You would look at the facts presented to ministers and you would look at the factors in the statute that would be required for the decision to be made and ensure that the facts supported that.
Liberal
The Chair Liberal John McKay
I can see that I'm going to have difficulty reining in time, here. It's an important discussion.
Before I turn it over to Mr. Motz next, you were quoting from a.... I wonder if you could make that available to the committee, if it's not already available to the committee? Is it in a bulletin?
Commissioner, Office of the Communications Security Establishment Commissioner
I'll leave it with you afterwards.
Liberal
The Chair Liberal John McKay
Okay. Thank you for that. I appreciate it.
Mr. Motz, you have seven minutes.
January 30th, 2018 / 11:20 a.m.
Conservative
Glen Motz Conservative Medicine Hat—Cardston—Warner, AB
Thank you, Mr. Chair.
Thank you, Commissioner and your team, for being here today.
I understand that proposed section 61 of the proposed Communications Security Establishment Act provides cabinet the authority to change parts of the act, commonly known as the Henry VIII clause. Proposed section 61—
Commissioner, Office of the Communications Security Establishment Commissioner
This is the CSE act, proposed section 61?
Conservative
Glen Motz Conservative Medicine Hat—Cardston—Warner, AB
—provides cabinet the authority to change parts of that act. It goes back centuries.
Why is it necessary for cabinet to have the ability to take on the role of Parliament?
A follow-up to that question is that if this is what Parliament is doing, if this is what cabinet is going to do, shouldn't some of the things that they want to change—the legislation, the parameters for regulations, and anything about that—be put in regulations so that if...? We know that the cyberworld changes quickly, and if there is a need to add some flexibility in the legislation, wouldn't it be better, rather than giving a cabinet that authority, to put it in the regulations to allow that?
What are your thoughts on that, sir?
Commissioner, Office of the Communications Security Establishment Commissioner
The reason I made that suggestion with regard to the possibility for the Governor in Council to make regulations is the following. When the bill has passed and has received royal assent, if you look in one of the provisions—I don't recall the exact section number—it says that the minister concerned must provide to the IC, the intelligence commissioner, “all information” that he had before him.
This is not defined. We don't know what exactly the legislator is talking about. Are we talking about briefings? Are we talking about reports? We don't know. In my view, a regulation could be written whereby the IC's office, with regard to the minister's office, would lay down what would be required to be transferred to the IC with regard to this “all information“.
This is similar, for those who have a legal background, to the rules of practice of a court of law. We talk about procedure. We talk about, in this particular case, what this “all information” should be, and I think this adds flexibility to the bill.
The “nuts and bolts”, if you will.
Since the IC has a quasi-judicial role, you need rules of practice that are equivalent.
Conservative
Glen Motz Conservative Medicine Hat—Cardston—Warner, AB
If I understand you correctly, you're suggesting that there might be some change necessary to proposed section 61 to provide those parameters, if you will, to provide clarity in the regulations and not provide a provision for cabinet to have that sole authority. Am I hearing you correctly?
Commissioner, Office of the Communications Security Establishment Commissioner
Yes.
Conservative
Glen Motz Conservative Medicine Hat—Cardston—Warner, AB
Thank you.
One of the things that I'm curious about is, based on your experience in this role and your past experience on the bench, your thoughts on the utility of offensive cyber-attacks. I know that's something that some people have some concerns about, but if we're talking about our national security and public safety, what are your personal thoughts on the act allowing offensive cyber-attacks or cyber operations?
Commissioner, Office of the Communications Security Establishment Commissioner
I'm not trying to evade your question, but I think it's a question that is more appropriate for CSE.
All I can say, though, is that this is a very broad mandate for CSE, and I think it's reasonable for commentators, legislators like you, to raise the point and ask questions. In essence, do we need that type of technique with regard to security? If so, how should it be limited? Should we have oversight with regard to those powers?
As I say, it's very broad.
Conservative
Glen Motz Conservative Medicine Hat—Cardston—Warner, AB
You mentioned CSIS. How do you think the coordination of your work between CSE and CSIS will occur to ensure both agencies don't overlap in your effort to prevent attacks? How do you coordinate those things now, and how do you see this act enhancing that, moving forward?
Commissioner, Office of the Communications Security Establishment Commissioner
As you may realize, the first task of the IC would be to review and approve the authorizations that are issued by the respective ministers. That's the first thing.
On the other hand—and again, it's similar to what a court of law would do—you need expert advice at times. That's why, in my office, I need experts—in other words, people who know what CSIS is doing and also people who know what CSE is doing—to advise me accordingly. It's a bit like when you're sitting as a judge and you have expert witnesses who come to court to advise you, because the judge is not an expert.
In my office we are restructuring right now, and I do have those types of experts in my office.
Conservative
Glen Motz Conservative Medicine Hat—Cardston—Warner, AB
Thank you, sir.
I have one last question. I have limited time.
You've already given us seven recommendations that you'd like to see, and you have some technical proposals as well. In an ideal world, given some flexibility in your role, what would you take out of the bill and what would you add that you maybe haven't had the flexibility to mention?
Commissioner, Office of the Communications Security Establishment Commissioner
In my introductory remarks, I made seven substantive suggestions, and those are contained in the document that I sent to the chair. I did underline five or six of those in my introductory remarks. Would you like me to repeat them?
Conservative
Glen Motz Conservative Medicine Hat—Cardston—Warner, AB
No.
I have one last question.
How do you think we do currently in comparison to our Five Eyes partners in combatting cyber-threats? Will Bill C-59 make us even more nimble to deal with them?
Liberal
The Chair Liberal John McKay
That's an extremely broad question, and we've already run out of time. Can you do it in 15 seconds?
Special Legal Advisor, Office of the Communications Security Establishment Commissioner
Yes.
Essentially, we had a look at the legislation of four other countries. Our understanding, subject to the review of others, is that it's mainly aimed at defence activities and at providing assistance to other agencies. Proposed section 31 provides for the ability of CSE to do things on their own and to disrupt, for the purpose of international affairs, defence, or security, but not necessarily in an assistance role or a defence role, which they can do as well. There seems to be something different with respect to the other countries.
Liberal
NDP
Matthew Dubé NDP Beloeil—Chambly, QC
Thank you, Mr. Chair.
Gentlemen, thank you for being here today.
I have one question, but I have the feeling that you will not want to be too definite with your answer.
There was not a lot of time for this bill. That is not a criticism, on the contrary, but it explains why extremely major changes are proposed.
Your suggestions mainly affect three different parts of the bill: parts 2, 3 and 4. In your opinion, would it have been appropriate for the parts that create new structures and vastly expand the authority of the CSE to be dealt with in a separate bill, instead of being included in a 130-page bill with a number of objectives?