Public Safety Committee on Feb. 6th, 2018

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

Thank you, Mr. Chair.

Thanks to all our witnesses for being here today.

I would like to ask you a question about information that is acquired incidentally. This issue comes up in two areas, particularly in connection with data collection by CSIS, but also by the CSE.

Does this concern you? Even though the need to justify retention of information acquired incidentally is addressed further on in the bill, my impression is that, during an investigation, one could justify it quite easily and start creating a fairly broad range of data.

Do you share this concern? Could you discuss it with us?

[Dominique Peschard]

Yes, the gathering of incidental information is a major problem. We now know that agencies gather an enormous amount of information. We are aware of all of Edward Snowden's revelations.

Information retention is indeed a major problem. It should be clear that information incidentally acquired on persons who are not the target of an investigation or are not suspects should be purged as soon and as effectively as possible.

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

That's perfect. Thank you.

I would like to discuss the new commissioner position. Part 3 contains a section that concerns the possibility that the minister may renew authorizations of work done by the CSE without obtaining the commissioner's authorization. Do you think this is a problem?

[Dominique Peschard]

It would be desirable for the commissioner to review that because the conditions prevailing at the time he provided his initial authorization may no longer be applicable.

I have to say we aren't convinced about the commissioner's role. I would say the commissioner position gives the impression that there will be a kind of quasi-judicial review of the minister's decisions to determine whether they are consistent with the charter. That's what's understood. It's a kind of security, but it must be understood that the information the commissioner receives to validate or not validate an authorization depends entirely on what the intelligence services provide to the commissioner for the purpose of establishing an assessment of the situation that warrants the authorization.

The minister issues the authorization, and there is an enormous amount of pressure on the commissioner to approve it since no one wants to be held responsible for having denied something that might result in a subsequent security breach. There is no counterparty to advise the commissioner to oppose the file submitted by the intelligence services.

Our great fear is that the commissioner may play somewhat the same role as the United States Foreign Intelligence Surveillance Court, which is widely known to grant authorize authorizations almost automatically.

We are not opposed to this commissioner position, but it must provide adequate protection from rights abuses. We feel that remains to be proven.

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

Thank you.

Your answer raises two questions. First, the post created is described as a part-time position. Considering the workload and all the complexities you have just cited, is that appropriate, or should it be a full-time position? I think it is entirely possible that a retired judge could occupy the position on a full-time basis.

[Dominique Peschard]

We did not review that specifically, but the fact that it is a part-time position definitely left us somewhat perplexed, given the extent of the work involved. In view of the fact that the commissioner must seriously review the authorizations and various proposals submitted to him or her, we feel it would be reasonable for that person to occupy the position on a full-time basis.

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

I have a final question on the subject. You may find it hard to answer in what little time we have left because it is fairly broad question.

You discussed automatic authorizations and said that might be difficult for the commissioner. It must also be acknowledged that there is no real-time oversight in this instance. What we can acknowledge as positive is that the commissioner position contemplated would approach that.

If this is not the perfect model, do you have any suggestions or recommendations regarding what we might explore in future to establish an entity that conducts real-time oversight, which is not currently the case in Canada?

[Dominique Peschard]

Our hope is that the National Security and Intelligence Review Agency can verify that the agencies respect Canadians' rights in the course of their work. That is why we think the agency must first have the necessary resources, as Mr. Mirza previously mentioned. Second, the agency must also be seen and act somewhat as the Privacy Commissioner of Canada does with respect to privacy. In other words, the agency must be clearly seen as an independent organization that also has expertise and whose mandate is to be accountable to the public.

We think that what's wrong about Bill C-59 is that, under it, the agency would report much more to the department and the government than to the people on the way the agencies conduct their business. Bill C-59 could be amended to make the agency operate more as a watchdog reports to the public on the way the agencies respect rights in carrying out their mandates.

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

Thank you.

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

Thank you, Mr. Dubé.

Please go ahead, Ms. Dubrusin.

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

Thank you, Mr. Chair.

My questions are for Mr. Mirza from the Canadian Muslim Lawyers Association.

I also participate in the Canadian heritage committee, which recently tabled a study on systemic racism and religious discrimination, and I believe some of your colleagues appeared before that committee to talk about some issues we were looking at there. I see a bit of an intersection when I hear some of the issues you're raising here, so I was wondering if perhaps you could help.

One recommendation from that study was that, much in the same way that we apply a gender-based analysis as a lens to legislation, we should be applying an equity lens when approaching legislation. Given some of the issues you've raised, I'm wondering if you have any thoughts about how we might properly apply such a lens to this national security legislation to take account of some of the issues that may impact the Muslim community—as you've pointed out in a few instances—in a differential way.

[Faisal Mirza]

Yes, there is a tie-in. Let me try to take it back to first principles.

If you're looking at legislation that has a disproportionate impact on the treatment of women, for instance, I think everybody would agree that it's appropriate to have the female perspective with respect to that, and to have some diversity of female opinion on the committee that reviews it. If you were looking at an issue that disproportionately impacts the indigenous community, it would only make sense that you'd try your best to have the indigenous perspective accounted for. We ask for no less with respect to national security.

It's straightforward and well recognized that in today's era, for reasons that were provided to you by the previous panel—by the former director of CSIS and by the intelligence agencies—that there is still a significant focus on radicalization within the Muslim community. At the same time, there is a significant degree of co-operation, and what gets lost in the politicization of these issues is that it's actually the Muslim community that works very closely with CSIS and the RCMP in helping to identify threats to security and providing input with respect to what's appropriate to look at and what is not. Then they're also on the receiving end of this treatment, unfortunately, because that's the nature of what happens. When you have large organizations trying to review the conduct of an entire community, there are inevitably going to be some transgressions.

We'd like to see the national security and intelligence review agency include that perspective. We're not looking for affirmative action here, in saying that you have to have, for instance, x number of Muslim people on staff in that organization. What you need to have is a diversity of perspectives—people who understand those issues and people who have the qualifications to do that. Philosophical diversity is important, number one.

Number two, having some sense of what it's like on the ground for people in that community is important, and yes, you are likely to get people who have a better understanding of that if they're from the community. There are many qualified people today who can be chosen from academia and from the legal field who could be of significant assistance in fulfilling that function. That's why I think it's important that this committee take that under advisement, and perhaps even consider putting into some statutory language how that review agency should be composed.

There is also another significant omission, which is somewhat startling. There is currently nobody serving on the special advocate roster who has that degree of expertise. Now, don't get me wrong. There are very distinguished lawyers on that roster, lawyers I know and respect, but if you're talking about going into the secret hearing and providing a perspective for the reviewing judge about what type of expert evidence should be heard or what other type of information should be heard, you should have someone who has familiarity with those types of issues.

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

All right. Thank you. That was very helpful.

I just want to make sure I have it clear, because I'm trying to look for some concrete things that I can apply when we're looking at this legislation.

In taking into account, for example, NSIRA composition, there have been all sorts of suggestions and recommendations made by others as to how that should look. You said we should ensure there's a proper diversity, a philosophical diversity, and that it should be part of the lens that's approached.

If I were going to give any other concrete solution that I might try to put in here, do you have anything else you would like to see us do, specifically?

[Faisal Mirza]

Yes. I'd like to see it legislated that.... NSIRA will have a minimum of three of what we'll call the highest-level officials, and up to six, and they're renewable for a five-year term. I'd like to see some understanding as to how that's going to be composed so that it doesn't fall into the same scenarios that you see in other ineffective oversight bodies, a lack of independence and lack of impartiality.

Pick one person from the judiciary and pick one person from academia who has an understanding of the sociological issues and has expertise in those fields. Also, pick somebody who is in touch with the community, subject, of course, to the security clearances, etc., that they have to go through. I think it's important that you turn your mind to that, whether it's by codifying it or by at least providing a strong policy directive.

[The Chair, Liberal, John McKay]

Thank you.

Thank you, Ms. Dabrusin.

In order for us to have sufficient time to consider the subcommittee's report...but Mr. Yurdiga, I know, wants to ask a question or two. If you can do it in two minutes, that would be helpful.

[David Yurdiga, Conservative, Fort McMurray—Cold Lake, AB]

Thank you.

Mr. Peschard, I believe you indicated in your testimony that Canadian security agencies, including the Canada Border Services Agency, shouldn't accept intelligence information regarding an individual if it contravenes the Canadian Charter of Rights.

Do you believe this would require Canada to renegotiate information-sharing treaties? This has to be done on a global level, because if we're not going to accept information, there are going to be consequences. Do you believe that should be the case?

[Dominique Peschard]

Yes, but we mentioned in our presentation the obligation on Canada. Canada can act on that, but obviously it has to be reciprocal. What we're objecting to is what was revealed by Snowden and others, the fact that you can obtain information from a foreign agency that came from spying on Canadians, which the Canadian agency itself could not have done legally under Canadian laws.

In other words, the fact is that by working together, agencies can circumvent national laws of different countries. Ideally, of course, especially considering the close alliance of the Five Eyes, there should be an agreement to the effect that they won't circumvent their national laws by having an agency of another country do what they cannot do with respect to their own citizens.

[David Yurdiga, Conservative, Fort McMurray—Cold Lake, AB]

Thank you.

Do you have time for one more question, or am I done?

[The Chair, Liberal, John McKay]

You have 14 seconds.

[David Yurdiga, Conservative, Fort McMurray—Cold Lake, AB]

Then I'm done. Thank you.

[The Chair, Liberal, John McKay]

On behalf of the committee, I want to thank Mr. Mirza, Mr. Barrette, and Mr. Peschard for their contributions to the deliberations.

Time is the enemy at all of these committee meetings, but your thoughtfulness and your contributions are very much appreciated by the committee.

With that, we'll suspend and ask the room to clear so we can consider the subcommittee's report.

I appreciate the co-operation. Could those who are not supposed to be here please leave the room? Thank you very much.

[Proceedings continue in camera]