Public Safety Committee on Feb. 1st, 2018

[Julie Dabrusin, Liberal, Toronto—Danforth, ON]

I'm happy you were able to get that in.

I've mentioned this before over the past hearings. One of the big issues for people in my community, one of the things that has come up a lot, is ensuring that there is proper oversight across our national security agencies.

I wanted to start with a point that you had raised, Mr. Edelmann. You suggested that in fact NSIRA is overly broad, which is a different perspective from what I've often heard. It seemed to me that the idea of having a broad institution that breaks across the silos was exactly what we were trying to get to. Would that be solved by having a different definition for national security? You had mentioned national security as being part of the problem.

[Peter Edelmann]

The concern we have with the vagueness of the mandate is how NSIRA is to measure how it is being effective in relation to its mandate, and how it is to deploy its resources. If you have an overly broad definition of intelligence and national security in general, it covers such a broad swath of things that, where there is an actual requirement for oversight, the NSIRA may find itself overwhelmed with complaints about the Canada Border Services Agency, for example, or looking into intelligence activities of the Department of Fisheries and Oceans, or—

[Julie Dabrusin, Liberal, Toronto—Danforth, ON]

But how would we cure it? At this point we have legislation in front of us. From your perspective, what would you like to see us do to dig into that problem?

[Peter Edelmann]

What I would suggest is that there be one clear definition of national security and threats to national security. The definition in the CSIS Act has been used for a long time, and it's only with Bill C-51 that we ended up with another definition that created a lack of clarity with the Security of Canada Information Sharing Act. If the information sharing act is going to be that broad, there's no question that there does need to be oversight, and so it may be that the broader definition from the information sharing act is the one that ought to be used with respect to NSIRA.

Our view is that definition is overly broad and vague.

[Julie Dabrusin, Liberal, Toronto—Danforth, ON]

Looking at the CSIS Act definition might be something that would help.

[Peter Edelmann]

Correct. In terms of looking at the definitions that are there already, we have the definition already in the CSIS Act. With NSIRA there may be some concerns as to whether the CSE's mandate is somewhat broader, and there are some aspects of what the CSE is doing that might be outside of that. There may be some thought that might need to go into exactly what it is that NSIRA is overseeing and where the gaps are with the other oversight agencies.

In terms of what it ought to cover, or what ought to be covered by other agencies, in our submission, most of what CBSA does, for example, should just be covered by another oversight agency.

[Julie Dabrusin, Liberal, Toronto—Danforth, ON]

I like that you raise that point because it's something I'm also interested in. We now have NSIRA covering all the agencies, but I just wanted to confirm that you would need a separate entity for an independent review of CBSA..

[Peter Edelmann]

That's correct.

[Julie Dabrusin, Liberal, Toronto—Danforth, ON]

We were lucky to have the Information Commissioner come by. We saw someone from the OCSEC on Tuesday I believe, and I asked some questions. I was wondering what you would think of this. Right now there's an obligation in the commissioner's role in this new act to have written reasons when an authorization is turned down, but there isn't that same obligation when the commissioner says yes and approves an authorization. Do you think it would be helpful to have written reasons for the approvals as well as the turn-downs?

[Peter Edelmann]

Yes.

[Julie Dabrusin, Liberal, Toronto—Danforth, ON]

The other part is for emergency authorizations. Everyone seems to accept that emergency situations may come up and you don't want to go through the regular process. What about having an after-the-fact review by the OCSE commissioner?

[Peter Edelmann]

I think that ought to be done and ought to be a part of the mandate, given the particular expertise that the OCSE commissioner or the Information Commissioner would have.

[Julie Dabrusin, Liberal, Toronto—Danforth, ON]

Thank you.

An interesting thought raised in a citizen's lab report I was reviewing was about having a security-cleared amicus curiae review in private—this isn't a public review—decisions made by the commissioner.

What do you think about that? Have you looked at it?

[Peter Edelmann]

There are certain circumstances in which the courts will bring in an amicus curiae or special advocates with respect to specific concerns the courts have.

At the CBA, it's not something we've considered with respect to this particular framework, but it's definitely something that ought to be open and has been opened in the past to the federal court when bringing an amicus in with respect to specific concerns. If you look at the Re X decision, which underlies a lot of the concerns here, my recollection is that amici have on occasion been brought in to provide some submissions.

[Julie Dabrusin, Liberal, Toronto—Danforth, ON]

Thank you.

[The Chair, Liberal, John McKay]

Thank you for that, Ms. Dabrusin, and thank you for allowing Ms. Szurlej to use some of your time.

Mr. Paul-Hus.

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

Thank you very much for joining us today.

In my naivety, I am trying to understand one thing. In my view, the two largest intelligence agencies in the world are Facebook and Google. I think we can agree on that. Moreover, most Canadians are on those networks.

When you sign up on Facebook, you must approve a list of regulations, which no one reads and to which everyone agrees. Details about your life are then published and you can be tracked and followed everywhere. People see no problem with that. Google and Facebook employees, be they in California or elsewhere in the world, can find out everything about our lives and no one makes a big deal out of it. However, people want to put restrictions and roadblocks on the work of the professionals in our intelligence agencies, who want to ensure that our society is protected.

How do you explain the fact that people are not concerned about Facebook or Google, but that there is a kind of restriction on the work of our intelligence officers?

[Peter Edelmann]

As I see it, there are two major differences between Google and Facebook and CSIS.

First, and most important, those are private companies and they do not carry out the powers of the Canadian state or any other state, nor do they have police powers.

Second, you say that everyone agrees to provide their personal information to Facebook or Google. But not everyone does. I agree with you that most Canadians, maybe even a large majority of Canadians, choose to do so, but it remains a choice.

However, when an individual’s personal information ends up in CSIS’ database, it is not the result of a choice. Moreover, people choosing not to provide their personal information to CSIS are exactly the ones whose personal information you would most like to see in that database.

Think about police states. As a lawyer practising in the field of refugee rights, I can tell you that China, North Korea, Iran and countries that repress rights and freedoms use the information we are talking about here in a non-transparent, uncontrolled way, which makes those freedoms fictional and nonexistent. By that, I do not mean that Canada is acting in that way, but we are actually talking about protecting ourselves against it.

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

By no means do we want Canada to become a police state, to start acting like North Korea or China, which are absolutely deplorable. That said, the objective is to protect ourselves. The world has changed, as have the threats to the world; these darned networks like Facebook are tools for hate-filled propaganda. And it does not necessarily come from here, it may very well come from elsewhere.

Let me go back to the act. Let us suppose that someone posts a video on YouTube in which he suggests attacking Canada or setting off a bomb, but without asking anyone specific to do so. In your opinion, should that individual be charged with counselling an attack?

[Peter Edelmann]

I recommend that you read the Supreme Court decision in R. v. Hamilton. Mr. Hamilton produced a CD containing instructions on ways to commit fraud, especially using credit cards. He had not counselled specific people to do so. For $30, he was selling online a CD explaining how to defraud the banks. The issue was whether he had counselled an offence. The provincial court, I believe, determined that he had not done so because they were not specific offences.

However, the Supreme Court held that it was a crime. What you are talking about here is already a crime just like any other crime, not simply in terms of terrorism. We could examine all the details of the Hamilton case, but the principles are already established in law. You cannot counsel—

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

Amendments have been made to the wording of Bill C-59, in order to make it more specific or broader.

[Peter Edelmann]

In my opinion, if you are looking to make it broader than the Hamilton decision, it is a problem. Actually, you would then be at the point where you might wonder whether it is even possible to discuss crimes or other subjects. Could you even talk about them, could you wonder whether when something or other could be done, could you discuss what constitutes a crime, or could you refer to other events?

You could get to a point where freedom of expression would become an issue again, which would be a problem.

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

Now I would like to go back to Ms. Szurlej.

Bill C-59 amends part 5 of the Security of Canada Information Sharing Act. You spoke about it a little. In terms of the threshold, could you tell us the difference you are making between “reasonably necessary” and “strictly necessary”?

Could you give us a concrete example of that?

[Dr. Christina Szurlej]

I would recommend that the standing committee look at the jurisprudence of the Supreme Court of Canada to determine what the threshold for reasonableness is, because it would surely remain consistent regardless of the crime.

If we're talking about invading the privacy of an individual, normally a warrant is required in order to do that. Yes, there might be exceptional circumstances in certain cases, but the Charter of Rights and Freedoms is in place for a reason—to constitutionally protect those rights—and any infringement must be reasonable.

Simply saying that the collection of data relates to the functions of CSIS doesn't meet that threshold. Perhaps clearly demonstrating that there is an actual threat to national security may cross that threshold.

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

Thank you.