Evidence of meeting #95 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 csis.
A video is available from Parliament.
Chair, Security Intelligence Review Committee
—with my answer. What I would say is we have a charter. The charter has—and people forget that from time to time—section 1, which allows somehow going against the charter or excuses going against the charter. What is most important is that when the service or anybody has to act in any way, they should do that legally. If they are not allowed, pursuant to the charter, to make some interception, they go to a judge, and the judge will look into everything to make sure that it can be authorized because there are valid reasons. This is the basis of everything. We've heard everything over the last few years, but we should remember that. When a judge is looking at this to make sure that the law is respected, this says we should be okay with that.
As an Individual
Thank you.
I just wanted to say that I think it's a good bill overall. I mean, I think a lot of people spent a lot of time working on this. However, it is beginning to rival the Income Tax Act for complexity. There are sub-sub-subsections that are excluded, that are exempted. If there is anything the committee can do to make it a bit more straightforward, it will probably facilitate the work of Mr. Blais and his colleagues, but truly, because of legitimate concerns about rights security, some of the sections are almost incomprehensible.
I've spent most of my life working on federal legislation. This is not the simplest one, so I would urge any kind of simplification, to the extent you can.
Thank you for allowing me to say that.
Liberal
The Chair Liberal John McKay
Thank you, Mr. Fadden. It appears that your recovery from your previous profession is well under way.
Again, on behalf of the committee, I want to thank both of you for this very interesting discussion, which I regret to suspend.
We'll suspend for a minute or two while we re-empanel.
Again, thank you.
Liberal
The Chair Liberal John McKay
Let's bring this meeting back to order. We have our witnesses in place.
Representing the Canadian Muslim Lawyers Association, we have Faisal Mirza, who is joining us from beautiful downtown Mississauga, the entertainment capital of the nation. Not many people know that, but I'm sure Mr. Spengemann would be happy to spread the word.
Liberal
The Chair Liberal John McKay
Yes.
Thanks to the representatives of the Ligue des droits et libertés: Mr. Denis Barrette
and Dominique Peschard are both here. Thank you for your presence.
Colleagues, I'm going to call the meeting five minutes early because we do have to deal with the subcommittee's report, so I'll call it, as I say, five minutes early and ask that the room be cleared because it is an in camera discussion.
With that, I'll call on Mr. Mirza for his 10-minute presentation, please.
Thank you.
Faisal Mirza Chair, Board of Directors, Canadian Muslim Lawyers Association
Thank you. Good afternoon, Mr. Chair and members of the committee. On behalf of the Canadian Muslim Lawyers Association, thank you for the invitation to provide submissions about Bill C-59.
I will start with our background. This year will be our 20th anniversary. We are based in Toronto, with approximately 200 members across Canada who work in all areas of the legal field, including private practice and government.
In terms of advocacy, we have consistently appeared at the Supreme Court of Canada dealing with balancing individual rights with state interests. We also assist the legal community and the general public with legal education.
Our underlying goal is to promote a justice system that is fair. Since 2001, we have had the privilege of providing testimony to parliamentary and senate committees responsible for considering national security policy and law.
In terms of my background, I am a criminal defence lawyer with 16 years of experience mitigating cases at all levels of court. I have acted as counsel on several national security cases. I am also an instructor on national security at the University of Toronto. Today I am speaking to you in my role as the chair of the Canadian Muslim Lawyers Association.
In terms of my contribution, I wish to discuss two fundamental areas.
The first is the positive. We see the national security intelligence review agency as having great potential, especially if it's staffed properly.
Second, I will raise our sources of concern. In particular, this bill does not address a key area of security, the legal threshold for searches of digital devices at the border. Further, there are real concerns about a lack of fairness and charter compliance regarding listed entities, which are noted at part 7 of the bill.
I'll deal first with the national security intelligence review agency. This is at part 1. For simplicity, I'll refer to it as NSIRA. This institution has the potential to be a strong pillar of our democracy by providing robust review of national security agencies and their related partners. With more powers being granted to intelligence agencies to deal with evolving threats, this agency reflects the greater need for effective review and oversight. It certainly has a broad mandate, which we think is positive, including to review the activities of CSIS, the CSE, and the RCMP; to investigate complaints against those services; to direct studies and to prepare annual reports; and to report to the Minister of Public Safety.
This strong mandate is a reflection of the expanding powers that are being provided to different agencies in order to effectively conduct national security operations. Clearly there is more power to collect data, more power to share information, more power to conduct surveillance, greater protection of informants, and more powers to engage in preventive measures.
All of this is primarily done either ex parte or behind closed doors. As a result, it is critical to have a very strong review agency to try to prevent mistakes before they happen.
Therefore, how do we ensure that a robust review agency is able to address its role in a fair manner? This government has indicated that it is committed to representative institution, and NSIRA will handle the review of security activities and investigate complaints. It is our submission to this committee that for it to be effective, it is essential that it be composed of a diverse group of persons. It should not fall into the trappings of ineffective oversight bodies that are staffed by people who lack independence and impartiality.
In the 2006 response to the Arar tragedy, recommendations 19 and 20 specifically advised that the RCMP, CBSA, and CSIS improve composition and training of their staff to prevent mistakes based on racial and religious profiling. The same logic must apply to NSIRA. Our concerns are that, as evidenced by the recent lawsuit brought by several CSIS employees alleging that some CSIS managers discriminate and stereotype against Muslims, there is little accountability when this misconduct is reported, and as a result, there needs to be stronger training, better oversight, and diverse composition.
In addition to NSIRA's members, which are statutorily governed to be no fewer than three persons and no more than six persons, there will obviously be a significant staff that's going to assist with investigations and provide assistance to those members. There will be an executive director, who will assist with staffing the agency.
It is our view that individuals in those qualified high-level positions must be aware of the community's perspective. The nature of the information to be drawn and the review of decisions would benefit from having a diversity of perspective.
Our friends in law enforcement have confirmed that working with the Muslim community is key to identifying threats and solving major cases. There are numerous instances where that has happened, but there are also instances of things going wrong and members of the community being mistreated by those very same agencies. For NSIRA to have legitimacy, it must recognize that perspective.
It would be helpful if there were some statutory guidance with respect to the required qualifications and composition of the agency members and from where people are going to be drawn in order to staff it. For instance, having one from the judiciary, one person from academia, and one person from the community with knowledge of these issues would be an important addition to the legislation.
Moving ahead, my concern about what's missing from Bill C-59 is that there needs to be some statutory guidance on when the CBSA may search digital devices at the border. We can debate and go over at length the fact that the bill has made progress with respect to balancing individual rights with state interests, but the reality on the ground is all of that can be circumvented by searches of individuals' digital devices at the border. The Customs Act needs to be revisited and reviewed. It is legislation from the 1980s, when digital devices were not the norm, and it contemplated searches of people's luggage.
The use of data collection is the future of national security and the devices that people carry with them obviously are integral in terms of preserving a balance between individual interests and state interests and in protecting our security. In today's era, most people travel. Returning Canadians can easily have their digital devices searched without restriction. A better legal threshold that reflects the nature of the technology needs to be established. Currently it's the position of customs and the government that there is no legal threshold to search individuals' cellphones, laptops, etc., when returning at the border. Even with a reduced expectation of privacy in that context, it becomes critical that there at least be some legal threshold; otherwise, the provisions in the Criminal Code or amendments to the Immigration and Refugee Protection Act or amendments to try to protect information sharing become easily circumvented when individuals are coming back through the border with no protections whatsoever.
The last point I'll touch on very briefly is with respect to part 7 of the bill, regarding listed entities. There is a fundamental omission in the Criminal Code legislation that needs to be addressed and fixed.
Listed entities, as you are aware, are currently listed by process of an administrative regime whereby the Minister of Public Safety and Emergency Preparedness, based on a balance of probabilities, determines whether an entity should be listed or not.
The difficulty is that organizations whose assets have then been stripped and frozen have no ability to hire counsel in order to engage in submissions with the minister or to engage in the statutory judicial review. In fact, it's our understanding that this omission results in a constitutional violation. There's a section 7 breach tied in with a section 10 breach, in that these entities are not given an opportunity to hire and retain counsel in order to defend themselves. That constitutional frailty could be a significant problem for this legislation in the future.
Thank you for the opportunity. That's my submission at this time, subject to your questions.
Liberal
The Chair Liberal John McKay
Thank you, Mr. Mirza.
Messrs. Barrette and Peschard, you have 10 minutes.
Dominique Peschard Spokesperson, Ligue des droits et libertés
I will be giving the presentation on the Ligue's behalf. Both of us will then answer questions.
The Ligue des droits et libertés, the LDL, wishes to thank the members of the Standing Committee on Public Safety and National Security for inviting it to testify regarding Bill C-59. Since September 11, 2011, the LDL has made regular representations to defend the rights and freedoms established in international instruments and our charters, and to prevent their violation in the "war on terror."
In the fall of 2016, during public consultations and the hearings of this Committee, the LDL called for the complete withdrawal of Bill C-51, which we considered dangerous and unnecessary. The LDL also called for the introduction of an oversight mechanism for national security activities, similar to the recommendations of the Arar Commission. Bill C-59 addresses these issues only to a certain degree.
First, we welcome the establishment of the National Security and Intelligence Review Agency. However, some conditions must be met before the Agency can fulfil its mandate as watchdog. The size of the task awaiting the Agency should not be underestimated. It should not simply receive public complaints and reports from the organizations it oversees. It should have the authority to initiate investigations itself.
In addition, the Agency must be specifically mandated to verify that organizations are carrying out their national security activities in compliance with the rights and freedoms established in the Constitution. This mandate must also include the review of ministerial directions to ensure compliance with the Charter of Rights and Freedoms. On this point, we would like to note that ministerial directions concerning information sharing must be amended to be consistent with the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
A significant number of organizations are involved in intelligence sharing. The Arar Commission counted 24 in 2005. The oversight mechanism will have a considerable task, and it will be an empty shell if it lacks the material, human and financial resources needed to do its job. We would also like to note that provisions in C-59 concerning the Agency's public accountability do not go far enough, and an annual report is insufficient. The minister as well as the public and Parliament should be informed when the Agency discovers practices that are non-compliant with the Charter.
The fact that the Agency's recommendations are non-binding is also a concern. If the recommendations remain non-binding, the organizations concerned should be required to report publicly on the steps they have taken to implement the recommendations.
Lastly, the Agency should have the authority and resources to work with similar organizations from other countries. National security and intelligence organizations cooperate internationally, and the agencies that monitor them should be able to do likewise.
The next issue is the authority given to the CSE. The CSE can intercept anything in the international information infrastructure, regardless of any federal or foreign law. For example, the CSE can intercept communications from U.S. citizens, and the National Security Agency can do the same regarding Canadian citizens, for the purpose of sharing this information. Bill C-59 must prohibit Canadian agencies from receiving information on Canadians from other agencies that they would not have been able to obtain under Canadian law.
While Bill C-59 provides better guidance for the more worrisome provisions of C-51, some fundamental problems remain. The repeal of judicial investigations is a positive move. However, an individual could still be placed in preventive detention for seven days without being charged, even though C-59 raised the threshold for this detention. We urge that this measure and any previous provisions concerning this measure be removed.
There is major concern over the powers given to CSIS, as set out in Bill C-51 and amended by C-59. It is unacceptable for CSIS to be authorized to compile datasets on Canadians. There are no limits on the data that CSIS can compile, provided that the data is considered "public." Judges may approve the compilation of other datasets based on a very weak threshold. The only requirement is that the data "is likely to assist" CSIS.
These provisions make it legal for CSIS to continue to spy and compile dossiers on protest groups, environmental protection groups, Indigenous groups and any other organization that is simply exercising its democratic rights. CSIS can count on the support of the CSE, which is also authorized to collect, use, analyze, retain, and disclose publicly available information, and whose mandate includes providing technical and operational assistance to agencies responsible for law enforcement and security. These datasets also pave the way for big data and data mining, which in turn leads to the compilation of lists of individuals based on their risk profile. We are opposed to this approach to security, which places thousands of innocent people on suspect lists and targets Muslims disproportionately.
Bill C-59 allows CSIS to continue to address threats through take active measures such as disruption. These measures can limit a right or freedom guaranteed under the Canadian Charter of Rights and Freedoms if so authorized by a judge. It is important to note that this judicial authorization is granted in secret and ex parte, so that the persons whose rights are being attacked cannot appear before the judge to plead their "innocence" or argue that the measures are unreasonable. They may also be unaware that CSIS is behind their problems, which would make it impossible for them to lodge a complaint after the fact. These powers recall the abuses uncovered by the Macdonald Commission, such as the RCMP stealing the list of PQ members, burning down a barn, and issuing fake FLQ news releases to fight the separatist threat. We are therefore strongly opposed to granting these powers to CSIS.
We are extremely disappointed to see that the Secure Air Travel Act preserves the no-fly list. Persons are not told why their names have been placed on the list and, if they appeal, the judge hears the case ex parte based on evidence that the individuals cannot challenge and that may even be inadmissible in a court of law.
The Human Rights Committee condemned this lack of effective recourse in its 2015 comments to Canada. It has never been proven that this list increases the safety of air travel, making the situation even more unacceptable. England, France, and other countries that are targeted by terrorists far more than Canada have no such lists, and the safety of their aircraft is not affected. We ask that the Secure Air Travel Act be repealed and any no-fly list be destroyed.
The Security of Canada Information Sharing Act allows 17 government agencies to share among themselves information that is in the possession of the Canadian government. While C-59 amends the preamble to the Act to state that information must be disclosed in a manner that respects privacy, the Act's provisions contradict this very principle. As the Privacy Commissioner told the Committee on December 7, 2017, the Act does not comply with privacy requirements. The threshold for disclosing and receiving information must be strict necessity. We also support the Commissioner's request regarding the role he should play in enforcing this Act.
In conclusion, we would like to submit the following list of recommendations regarding Bill C-59. While some of the bill's provisions are beneficial, a number of other provisions should be amended or deleted to truly protect Canadians' rights and freedoms.
Our recommendations are as follows: that the National Security and Intelligence Review Agency have the material, human and financial resources needed to carry out its mandate; that the National Security and Intelligence Review Agency be mandated to ensure that national security organizations carry out their activities in a manner consistent with the rights and freedoms established in our constitution; that the Agency report publicly on any rights violations that it has found and on its recommendations; that the organizations concerned be required to report publicly on the way in which they have carried out the Agency's recommendations; that, in the course of its mandate, the Agency be authorized to share information with equivalent agencies in other countries; that Canadian organizations not be allowed to obtain information on Canadians from other international organizations that they would not have been able to obtain themselves under Canadian law; that Bill C-59 repeal section 83.3(4) of the Criminal Code authorizing individuals to be placed in preventive detention for seven days without being charged; that "strict necessity" be the threshold for disclosing and receiving information under the Security of Canada Information Sharing Act; that the Office of the Privacy Commissioner of Canada be mandated to ensure that Canadians' privacy is respected under the Security of Canada Information Sharing Act; that CSlS be stripped of the power to address threats through active measures such as disruption; that the Secure Air Travel Act be repealed and any no-fly list be destroyed.
Thank you.
Liberal
The Chair Liberal John McKay
Thank you, Mr. Peschard.
Congratulations. You finished at 10 minutes exactly.
Welcome to the Committee, Mr. Robillard.
You have seven minutes.
Liberal
Yves Robillard Liberal Marc-Aurèle-Fortin, QC
Thank you, Mr. Chair.
Mr. Peschard, when you last appeared before the Standing Committee on Public Safety and National Security, you also criticized the new offence of advocating or promoting the commission of terrorism offences. Several individuals have said that this new offence would be unconstitutional because it is vague and too broad and would unreasonably limit freedom of expression.
The new section 83.221 that we are proposing concerns the counselling of another person to commit a terrorism offence. What do you think of this new wording?
Spokesperson, Ligue des droits et libertés
We feel it is a distinct improvement and does not pose the same threat to freedom of expression. That much is clear. However, counselling a person to commit an indictable offence is, in itself, already an indictable offence. Consequently, we fail to understand why this provision was not simply repealed, since this amendment has been made. Someone who counsels another person to commit an indictable offence, which includes a terrorist act, may already be prosecuted under the Criminal Code.
Liberal
Yves Robillard Liberal Marc-Aurèle-Fortin, QC
Mr. Barrette, when you appeared before the Committee, you said that the use of investigative measures in the Air India affair had caused a fiasco and that thought should be given to the necessity of the powers conferred on police officers.
I note that, in clauses 145 and 147 of Bill C-59, we would repeal the investigative measures that have not been used since the Air India affair. I would like you to enlighten us on the fiasco caused by the use of those investigative measures.
Denis Barrette Spokesperson, Ligue des droits et libertés
First of all, the fact that we are abandoning judicial inquiries is one of the welcome aspects of Bill C-59.
Furthermore, it was a fiasco because it was the only time, following the very sad Air India incident, that those provisions were used. However, they were completely ineffective in the Air India trial. We know they did not produce the results desired by the police departments.
In addition, there was a problem with the way it was done: the accused and the media were not informed. The media accidentally learned at the time that a judicial inquiry was under way. If you read the summary of facts in the Air India affair judgment, you will see that this was not a glorious chapter in the history of Canadian law, particularly since it was a tragedy.
Liberal
Liberal
Pam Damoff Liberal Oakville North—Burlington, ON
Thank you very much.
Thanks to all the witnesses for being here.
My first question is actually for both of you. Currently in Bill C-59 there's no necessity threshold to retain personal information that is disclosed under SCISA. I'm just wondering if you think that an amendment introducing a necessity threshold for the retention of personal information as well as a destruction obligation for information that does not meet the necessity threshold would be helpful to increase transparency and also to protect individuals' privacy.
Maybe I'll first turn to the Canadian Muslim Lawyers Association.
Chair, Board of Directors, Canadian Muslim Lawyers Association
Thank you for the question.
My understanding from the CSE director with respect to the collection and retention of data is that if the data is innocuous, they are obliged by law to terminate or destroy it. Only if it has an intelligence value are they permitted to then take the next steps with respect to considering whether to share it in the retention period.
A necessity component would obviously be helpful in terms of delineating and making more clear to the agencies the circumstances under which the data should be retained.
I think that when we use words like “necessity” in the national security context, they're not viewed in the same way as they are, for instance, in criminal statutes or otherwise. In fact, it's easier for the government to be able to satisfy that threshold in the national security context.
For those critics of using a necessity-type threshold, as you proposed, it's probably not going to be as onerous as it would be in other contexts, and since it provides some degree of protection, it makes sense to ensure that guidance of this type is provided to the agency.
One of the big dangers that we have is that data collection becomes normalized in the current society. When we have all these different sources of data available to intelligence agencies, exactly what's going to happen with the information? How is it going to be stored, and how long is it going to be retained?
If you start on January 1 with a type of information that may be of some intelligence value but is later determined to have no value, in the sense that the person is no longer a suspect, that is the type of situation in which I'd like to see that information destroyed. In other words, just because it seemed to have some value at one point in time doesn't mean that infinite retention of that material is somehow permitted.
Liberal
Pam Damoff Liberal Oakville North—Burlington, ON
I only have a minute left, and I want ask the other witnesses if they have anything they would like to add.
Spokesperson, Ligue des droits et libertés
I agree with what the representative from the Muslim Lawyers Association just said. I think a necessity requirement would be a definite improvement, and it would provide some standard to evaluate data retention, because, of course, as mentioned, one of the threats we see in what's proposed is the fact that there would be data banks built on Canadians.
Liberal
Pam Damoff Liberal Oakville North—Burlington, ON
I only have 10 seconds left.
Is “necessity” the right word?
