Public Safety Committee on Feb. 1st, 2018

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

Thank you, Mr. Chair.

My thanks to the witnesses as well.

Your testimony on national security is very important. Our primary objective is to see whether Bill C-59 will allow the police forces you represent to continue to do their work.

As I understand it, terrorism and the return of ISIS fighters worries you a great deal. On the one hand, without giving much away, the government has confirmed that some safeguards are in place, but on the other hand, you seem to be saying that there is a problem.

Can you give me more information about this? Is there a problem with communication between Canada’s intelligence services, the RCMP and the police forces you represent at more regional and municipal levels?

[Chief Paul Martin]

I wouldn't say that there's an issue with respect to communications, if you're talking about the returning foreign fighter phenomenon. It's not so much the information-sharing that's causing the problem. It really comes down to whether we have the resources. If they come back en masse, we need the resources to determine what their activities are within this country, and if their intent is honourable or not.

Other countries have experienced greater numbers of these people than Canada has, but when the returning foreign fighters come back here, we have to make sure to determine what they're up to. Right now, as I understand it, there have been—and I can check the numbers—very few people who have been charged in absentia or have been charged after they've returned here. We had evidence to support the charge when they returned to our soil.

A lot of these people are returning from theatre. We don't know what their activities were in their entirety, but we knew they were there and they were up to something. We don't have the evidence to prosecute. As Deputy Rankin said, it comes down to whether we have the resources to do surveillance and make sure that they're not carrying on activities that are going to be harmful to Canadian citizens.

Laurence.

[D/Chief Laurence Rankin]

Four high-risk travellers have been charged in absentia. As Chief Martin said, trying to collect the evidence of what foreign fighters were up to overseas is difficult in a theatre of war. We may collect evidence or be provided evidence, information, or intelligence, but this comes with a series of caveats that often makes it impossible to use. The fear is that the people who provided that information may have their lives placed in jeopardy, or that investigative techniques used by an agency may be released.

Oftentimes information is given the RCMP, which may turn it over to police in jurisdictions. Basically, however, it's kept in secret because of the caveats in place. Ultimately, if we do lay a charge against an individual, all this information that has been collected or utilized by the police of jurisdiction or the RCMP has to be disclosed in court. These are the hurdles that have to be overcome before we can have a successful charge. We have to look at all these factors and determine whether the investigation can stand on its own if we peel away certain pieces of information that can't be released in open court.

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

You just talked about people who went abroad to join the jihad and then came back; that’s one problem. Another is the domestic issue in Canada. You said that, in Vancouver, the number of identified individuals has gone up from 13 to 268, and that there is a problem with resources.

For the purposes of our study, we need to know whether parts of Bill C-59 may be reducing your legal capacity to intervene. You talked about the need to request a warrant from a judge in order to intervene if the possibility of a terrorism offence is detected.

Do you think Bill C-59 contains problematic provisions that are likely to interfere with your work on the ground?

[The Chair, Liberal, John McKay]

That's an important question. Unfortunately, you have about 20 seconds to answer it.

[Chief Paul Martin]

We've addressed it to some degree, but yes, whenever you raise some of the thresholds, it does make it a bit more difficult to convince a judge that we need to proceed with this. Any time the thresholds are raised, it could cause some issues. That remains to be seen, but that said, we do have a lot of tools at our disposal currently to fight terrorism in this country.

[The Chair, Liberal, John McKay]

Thank you, Mr. Paul-Hus.

Mr. Fragiskatos, you have five minutes, please.

[Peter Fragiskatos, Liberal, London North Centre, ON]

Thank you, Mr. Chair.

For the understanding of all of us, I want to go over something we just heard. Without clear evidence, it's hard to arrest, prosecute, and convict suspected foreign fighters, correct?

[Chief Paul Martin]

Yes.

[Peter Fragiskatos, Liberal, London North Centre, ON]

Okay, and that was the case under this government and under the previous government, because a number of foreign fighters returned under the previous government.

[Chief Paul Martin]

Yes, and going back to my point about the three issues, it's the intelligence-to-evidence conundrum, really. Laurence spoke to it a bit more eloquently than I. Some of this information is gathered in theatre. It's difficult, first of all, to protect the identity of the individuals who are providing it, where it's coming from. The caveat behind this intelligence is that it can't be used as evidence.

[Peter Fragiskatos, Liberal, London North Centre, ON]

I appreciate that, sir.

[Chief Paul Martin]

That's where the problem lies.

[Peter Fragiskatos, Liberal, London North Centre, ON]

I don't mean to interrupt you. I have just five minutes and a few questions, but thank you very much.

You're talking about how, in theatre, it's very difficult to extract evidence from conflict settings such as Syria or Iraq, or countries in that type of situation.

[Chief Paul Martin]

That's right.

[Peter Fragiskatos, Liberal, London North Centre, ON]

My colleague Mr. Motz brought up the matter of preventative arrests. The preventative arrest measure, first introduced in Canada in 2001, has never been used, correct?

[Chief Paul Martin]

I don't have that.

[Peter Fragiskatos, Liberal, London North Centre, ON]

I'm just quoting legal analyses from a number of commentators. We've heard from Professors Roach and Forcese at this committee, who have examined this and have been very clear that the preventative arrest measure has never been used.

[D/Chief Laurence Rankin]

That's correct.

[Peter Fragiskatos, Liberal, London North Centre, ON]

A higher threshold was indeed put in place in Bill C-59. That responded to a long-standing concern among civil rights advocates who were of the view, and I think it's a reasonable position to hold, that to detain someone without a warrant for up to seven days, without applying a criminal charge, as the preventative arrest measure allows for, is questionable. In a democracy, you can at least have that debate.

The government has looked at Bill C-51 and introduced a change. Under Bill C-51, as we heard, an arrest could happen when it was “likely to prevent” a terrorist act. Now, in Bill C-59, an arrest can be made when, on reasonable grounds, there is suspicion to believe a terrorist act might be taking place. You still have that ability to lay an arrest, and in emergency situations it's there. This isn't preventing you from acting as police, correct?

[Chief Paul Martin]

No, it just changes the threshold, as you pointed out.

[Peter Fragiskatos, Liberal, London North Centre, ON]

Okay. Thank you very much.

We heard from the British Columbia Civil Liberties Association a few days ago, who told us of a number of concerns. In a subsequent article that was written since their testimony there was concern expressed about Bill C-59 on cyber-operations that could be conducted by the Communications Security Establishment. Since you focused today a great deal on the technological aspects of terror and how that can jeopardize Canadian security, I want to ask you about that.

Their view is that Bill C-59, by empowering the CSE to conduct cyber-operations against foreign actors, constitutes a danger. Specifically, it would normalize state-sponsored hacking. Can you speak again to the importance of cyber-operations from a security perspective? How critical is this? The nature of security is changing. Canadians deserve to be protected. We have to make sure that our approaches are keeping up with changes that are under way.

[Chief Paul Martin]

I think the simplest way for me to sum it up is what Laurence mentioned. Really, nowadays, either technology is the target or it enables the crimes to be committed. Everything we do and everything we encounter from a policing standpoint involves some form of technology at this stage of the game.

[Peter Fragiskatos, Liberal, London North Centre, ON]

You would agree that going down this road of allowing CSE to conduct cyber-operations against foreign actors is a welcome change?

[Chief Paul Martin]

Go ahead, Laurence.