Evidence of meeting #94 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 security.

A video is available from Parliament.

On the agenda

MPs speaking

Also speaking

Paul Martin  Chief, Durham Regional Police Service, Canadian Association of Chiefs of Police
Chief Laurence Rankin  Deputy Chief Constable, Investigation Division, Vancouver Police Department, Canadian Association of Chiefs of Police
Gillian Carter  Staff Lawyer, Legislation and Law Reform, Canadian Bar Association
Peter Edelmann  Member-at-Large, Immigration Law Section, Canadian Bar Association
Christina Szurlej  Endowed Chair, Atlantic Human Rights Centre, St. Thomas University, As an Individual

12:40 p.m.

Liberal

The Chair Liberal John McKay

Thank you.

Mr. Dubé, you have seven minutes.

12:40 p.m.

NDP

Matthew Dubé NDP Beloeil—Chambly, QC

Thank you very much, Mr. Chair.

One of the questions that often comes up deals with publicly available information, as we find in parts 3 and 4 of the bill. Could you tell me whether Canadian legislation or case law contains a definition of what “publicly available information” means?

12:40 p.m.

Member-at-Large, Immigration Law Section, Canadian Bar Association

Peter Edelmann

The case law provides a lot of room for discussion on what is publicly available.

For example, in terms of public access to the courts, one principle upholds the public nature of the debates in court. It is called the “open court principle”.

There is a lot of discussion on what that means. It does not mean that the entire content of court proceedings must be available online. It just means that a person can apply to the court to ask for a copy of the proceedings. There is no general definition of what is publicly available, to my knowledge. This is one example that deals with public accessibility.

The Access to Information Act talks a lot about what should or should not be available to the public. There is a lot of case law on the limits of what should be accessible under the Access to Information Act, for example.

12:40 p.m.

NDP

Matthew Dubé NDP Beloeil—Chambly, QC

Okay, but the bill, in paragraph 24(1)(a) of part 3 or in subsection 11.24(1) of part 4, refers to publicly available information. Part 3 deals with the CSE and part 4 deals with data collected by CSIS.

Do you consider that publicly accessible information is defined in the bill? Is there a need to define what exactly is understood by ”publicly accessible”?

12:40 p.m.

Member-at-Large, Immigration Law Section, Canadian Bar Association

Peter Edelmann

With publicly accessible information, there are problems with private databases, for which an access fee must be paid. A little earlier, Ms. Szurlej spoke about the fact that a fee has to be paid for access to some databases, particularly abroad. In the United States, for example, huge databases are accessible to the public.

For background checks, you can pay to get access to quite major databases. You can also pay to get into Twitter or Facebook. A little earlier, we were talking about Facebook and Google. They sell their data to the public. Anyone can buy the data. The identity of the purchaser makes no big difference for Google or Facebook.

Perhaps the procedures with data that are not public should be reviewed, to the extent that they are not published. There is also the question of the kinds of data. We are talking about general information, which is public. But the restrictions are on personal information.

In terms of the data that can be obtained, and that are not technically personal data, the differences are quite major. For example, data coming from Statistics Canada, from Google or from Facebook are not personal data in the eyes of the law. However, those data provide a lot of general information.

For example, those data could be used to design a deep learning algorithm or a neural network so that it can learn to determine people's sexual orientation or religion. However, at the end of the day, the algorithm contains no personal data. If you buy the algorithm, or access to it, are you buying personal data? Those are issues that have to be dealt with.

It is a very good thing to want to update the legislation in terms of databases and of current technology. However, in criminal law, we always try to use neutral language and present things in a neutral way from a technological perspective.

The legislation should be drafted in a way that can be applied to a “holodeck” or any other technology of the future, so that we do not have to update the legislation once more.

What does that mean for the algorithms and the technology? I am not an expert in the area, I am expert in legislation; but in my opinion, a number of questions need to be asked about what databases, and the various tools used by intelligence services, can represent.

Those are really different questions from those about what is or is not public, or about who can have access to what.

12:45 p.m.

NDP

Matthew Dubé NDP Beloeil—Chambly, QC

I have a minute left. You can answer, Ms. Szurlej.

12:45 p.m.

Prof. Christina Szurlej

I'd like to express my concern about the use of algorithms and the impact it can have on democracy.

If we're talking about the collection of information en masse, it means the agency that has access to that information is able to reasonably predict how an individual may vote. If they're undecided, they may determine what factors may push them to vote one way or another. That sort of information can be gained from analyzing these types of algorithms. That's why it's so important to safeguard the privacy of Canadian citizens and ensure the preservation of democracy in Canada.

12:45 p.m.

Liberal

The Chair Liberal John McKay

Thank you, Mr. Dubé.

Mr. Fragiskatos, seven minutes please.

12:45 p.m.

Liberal

Peter Fragiskatos Liberal London North Centre, ON

Thank you very much, Chair, and thank you all for appearing today.

You're an academic, Ms. Szurlej. Mr. Edelmann and Ms. Carter, you're lawyers, but you are focusing on security issues, so I think it is important to ask you about the nature of the threat environment that Canada faces today. We've heard from a number of witnesses who have testified to what I believe to be a fact, that it's a multi-faceted threat environment, and that as we try to create and craft legislation to confront that threat environment, we should not only be focused on one manifestation of terror, for example, Islamic radicalism, if you want to call it that, or Daesh in particular and groups like it. Witnesses have said we ought to take a wider view and particularly look at the nature of hacking and the cyber element that terrorists are increasingly taking on.

What is your view on this? Where should responsible government be focused from a threat perspective—from a security perspective?

12:45 p.m.

Member-at-Large, Immigration Law Section, Canadian Bar Association

Peter Edelmann

From a threat and security perspective, it depends on the departments you're talking about and the types of threats that you're.... Is the threat in North Korea, for example, of concern? Those are things that are obviously of concern to Canadians in terms of proliferation of nuclear weapons and things like that. It's within the ambit generally of the CSE, in collaboration with other agencies, that we have these international types of threats that are dealt with. That's where we have different agencies that deal with different aspects of the threat environment.

The CBA recognizes the need for balance in the sense that there are concerns around security, and there are concerns around having an infrastructure that people can be confident in and that Canadians feel they can trust. In particular with respect to domestic threats, it's important that the agencies have the trust of the communities they're working with, whether they're Canadian or non-Canadian communities.

12:50 p.m.

Liberal

Peter Fragiskatos Liberal London North Centre, ON

I don't mean to interrupt you, Mr. Edelmann. So you're of the view that, ultimately, at the end of the day—you mentioned North Korea, for example—it's a multi-faceted threat environment that we face.

Ms. Szurlej.

12:50 p.m.

Endowed Chair, Atlantic Human Rights Centre, St. Thomas University, As an Individual

Dr. Christina Szurlej

In short, I would say that if we're talking about the threat of terrorism, you are more likely to slip and die in the shower than you are to be the victim of a terror attack in Canada. Does that mean we need to regulate showers and ensure that there's surveillance in showers?

We certainly need to ensure that there is a balance. The charter protects life, liberty, and security, not life, liberty, or security.

12:50 p.m.

Liberal

Peter Fragiskatos Liberal London North Centre, ON

Thank you very much.

In September, the government issued new regulations to Canadian security agencies to the effect that intelligence that may have been obtained through mistreatment or torture should not be used. There is an exception for preventing the loss of life or significant personal injury, but prior to this directive it was the case that such information could be used to secure property, for instance.

Now, these are regulations. Would you advise that the government consider taking those regulations and implementing them in legislation? As you well know, legislation is much more difficult to change.

12:50 p.m.

Member-at-Large, Immigration Law Section, Canadian Bar Association

Peter Edelmann

Yes. I'll just leave it at that: yes.

12:50 p.m.

Liberal

Peter Fragiskatos Liberal London North Centre, ON

Okay, fair enough.

Unless, Ms. Szurlej, you had something, I'll go with a lawyer on that.

12:50 p.m.

Endowed Chair, Atlantic Human Rights Centre, St. Thomas University, As an Individual

Dr. Christina Szurlej

I would just like to express my view that I don't think information obtained via torture should ever be used, because it's not reliable and there are a number of other factors that I don't have time to get into.

12:50 p.m.

Liberal

Peter Fragiskatos Liberal London North Centre, ON

Okay. I would push you on that, because I do think when it comes to preventing the loss of life or significant personal injury—

12:50 p.m.

Endowed Chair, Atlantic Human Rights Centre, St. Thomas University, As an Individual

Dr. Christina Szurlej

If it's not reliable, it won't have that effect.

12:50 p.m.

Liberal

Peter Fragiskatos Liberal London North Centre, ON

It's a slippery slope; we're going to debate that all day.

12:50 p.m.

Endowed Chair, Atlantic Human Rights Centre, St. Thomas University, As an Individual

12:50 p.m.

Liberal

Peter Fragiskatos Liberal London North Centre, ON

Mr. Edelmann, I have a question for you in the time that I have left here. You talked in your opening remarks about your concern regarding legal advice, solicitor-client privilege, and the national security and intelligence review agency. You had a concern on that.

Yes, NSIRA does have the power to compel information from any agency it investigates, including legal advice. However, some commentators have made the observation that this is not unjustified because if that legal advice to the government, let's say, on a security matter, happens to be wrong and could open the door to an infringement of rights, it would be good to review that so we can learn from it. It would serve as a safeguard.

What do you think about that?

12:50 p.m.

Member-at-Large, Immigration Law Section, Canadian Bar Association

Peter Edelmann

There are two concerns around the issue with respect to privilege. One is with respect to the government documenting and seeking legal advice. The first step is, will the government seek legal advice and should the government get...?

Usually when I give legal advice to a client, my legal advice is not, “This is, this isn't; this is the way it is, and this is the way it isn't.” What legal advice often looks like is, “Here's where you're at no risk whatsoever”, and then there's a spectrum as you start to get closer to the line. How much you want to push coming close to the line is a decision made by the person, and it's often a discussion and dialogue that happens between counsel and the individual getting advice.

I'm not saying it helps people to push the line, but what will happen if these discussions are going to be disclosed is that instead of getting advice with respect to where the line is, either that advice will not be sought at all or it will not be documented. That undermines the whole purpose of the minister, or the person who is making a decision, doing it in an informed way. If the person is going to cross the line, that should be done in an informed way, with access to full, frank legal advice.

In terms of having the protection of the privilege, it allows for those frank discussions to happen. If that privilege is going to be breached or is going to be reviewed by this agency or other agencies in the future and that privilege becomes meaningless, the process of being able to get that advice is no longer going to function. I would submit that it's just as important for private actors to be able to know the law, find out the law, and get a sense of what the law is.

The privilege belongs to the government, not to the lawyer. If the government decides that they did this thing and their lawyers told them to do it, you can disclose that. It's not the lawyers' privilege.

When the CBA comes forward, we're not trying to protect a privilege that belongs to us as lawyers. My clients can disclose my advice whenever they want. It's a privilege that belongs to the client, because the client has a right to speak to me in a frank and fulsome manner, tell me everything they want to know about, and I can explain the law to them so they can make decisions.

12:55 p.m.

Liberal

The Chair Liberal John McKay

Thank you, Mr. Fragiskatos.

12:55 p.m.

Member-at-Large, Immigration Law Section, Canadian Bar Association

Peter Edelmann

Sorry. That was a lengthy answer.

12:55 p.m.

Liberal

The Chair Liberal John McKay

We were having a Law 101 lesson there.