Public Safety Committee on Feb. 6th, 2018

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

Yes, I can.

I will be brief.

I was referring specifically to the complaints mechanisms.

Clause 8(1)(d) of the bill states:

The mandate of the Review Agency is to ... (d) investigate (i) any complaint made under subsection 16(1), 17(1) or 18(3),...

The bill then refers to the Citizenship Act, the Royal Canadian Mounted Police Act, and the Canadian Human Rights Act.

The provisions in this part of the bill concern CSIS, CSE, and people who are unable to obtain security clearances in connection with federal government contracts. As no reference is made to Global Affairs Canada, it would be impossible for someone to file a complaint concerning consular matters in a case such as that of Mr. Arar.

[The Chair, Liberal, John McKay]

That's a clarification and I appreciate it—

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

Thank you.

[The Chair, Liberal, John McKay]

—because you were asking a question that somewhat puzzled the analysts. We have very sharp analysts.

Mr. Motz is next.

[Glen Motz, Conservative, Medicine Hat—Cardston—Warner, AB]

Thank you, Mr. Chair, and thank you for being here, panel.

Mr. Fadden, as with policing, the successes of CSIS and CSE are primarily unknown and their failures are very public. You mentioned your biggest fear at CSIS was having an attack occur in Canada and then finding out that another part of our government knew of the threat and didn't share that information.

As someone who has dealt with these challenges for real and not just theoretically, what is this committee missing with respect to that aspect?

[Richard Fadden]

Thank you for the question. It's the traditional answer, but this time I mean it.

I didn't say it in my initial remarks, but one part of this quasi-omnibus bill that I think is overly complex is the one dealing with information sharing within the federal government. I would argue that there should be a positive obligation on any institution of the federal government to share with a listed number of institutions any information or concerns they might have about national security.

The way the bill is drafted now, you need to have worked in the Department of Justice for 15 years to understand the standards and whether there's a positive obligation or not. I think this is better than was the case when I was at CSIS, where there was no legal protection at all, but I don't think it makes clear to all and sundry that the overarching objective here is to share information relating to national security to avoid a crisis.

If you read that part of the bill, I don't think that comes through. There are so many conditions and thresholds and whatnot that I don't think it meets the standard, so if there is one part of the bill that I would argue you should strive to clarify and make very much clearer, that is the part. It would have made me more relaxed, when I was at CSIS, about the thing that you mentioned, but I would still worry that somebody in HRSDC or Heritage Canada who might have tripped over information would still not feel comfortable calling up and saying, “We have an issue.”

[Glen Motz, Conservative, Medicine Hat—Cardston—Warner, AB]

Thank you for that. I appreciate that piece of information, and for us as a committee, I think it's something we certainly need to focus on.

I have one last question for you, sir. My time is limited.

With this new bill, are we giving our security agencies the tools they need, or are we placing additional burdens on them?

[Richard Fadden]

That's a pretty big question. I think, generally speaking, you're giving them the tools. It's like a lot of other areas: until they're actually out there in the field trying them out, it's hard to say.

I haven't counted, but the number of times that the words “protection of privacy” are mentioned in this bill is really quite astounding. I'm as much in favour of privacy as everybody else, but I sometimes wonder whether we're placing so much emphasis on it that it's going to scare some people out of dealing with information relating to national security. Generally speaking, though, I think they do have the tools.

What does worry me a bit—and I say this with great deference to Monsieur Blais and his colleagues—is that I think the review capacity, the review effectiveness, at least initially, is going to impose a considerable burden. Departments that have never had to deal with SIRC all of a sudden are going to have to develop a practical definition.

I think, to call a spade a shovel, the definition of national security is going to be hard. I understand what Monsieur Blais was saying. It's not that clear when someone is in Heritage Canada or the Department of Agriculture or CFIA that what they're doing could possibly affect national security. There's one stream that's easy to follow, and that's if they use information provided by CSE, but more broadly.... I'll give you an example.

A deputy minister once called me when I was at CSIS and said, “My department has responsibility across the country for doing a variety of things relating to individuals, and we think there's a pattern here that suggests that there's some foreign interference, and you ought to do something about it.” Four months later, our lawyers sort of concluded they weren't sure it was national security, and they were pretty sure they couldn't do it, given the Privacy Act.

Now, with great deference to lawyers—I was one earlier, and I'm now no longer one—I think we need to find a way to simplify some of these concepts. I know that once the bill is passed, if it's passed, there will be operational instructions, but my hope would be that in some respects, on some aspects of the bill, we could be a little bit less legal and a little bit clearer.

[Glen Motz, Conservative, Medicine Hat—Cardston—Warner, AB]

Thank you.

[The Chair, Liberal, John McKay]

Let's hear it for recovering lawyers.

Go ahead, Mr. Spengemann.

[Sven Spengemann, Liberal, Mississauga—Lakeshore, ON]

Thank you very much, Mr. Chair.

Mr. Fadden, I have a quick follow-up question on your comments and your recommendation regarding the intelligence commissioner. Is it your view that decisions of the intelligence commissioner would be subject to a judicial review?

[Richard Fadden]

I don't have an answer to that, and I think if the answer is yes, then I'm even more frightened by what the range of his authorities could be.

Technically speaking, from what I remember of the Federal Courts Act, I think the short answer would be yes, and if that's the case, I think one of the things that the bill misses a little bit, although there are provisions for exigent circumstances, is that this intelligence commissioner in some circumstances is going to have to be alert and readily accessible, even though he or she will be holding a part-time position.

Therefore, I worry that there's a little bit lost about the world of national security, which requires rapid movement.

[Sven Spengemann, Liberal, Mississauga—Lakeshore, ON]

Thanks very much for that.

I have a question to follow up on the comments of my colleague, Mr. Motz.

We're in a time of tremendous transition. In fact, we've had rapid blurring of state and non-state boundaries, and equal blurring of public and private domains with respect to data, as well as other issues. Have we put our eyes far enough toward the horizon in this bill to address potential unknowns? I'm looking to issues like AI and quantum computing, issues that, when intersected with security, especially cybersecurity, raise questions that we haven't even begun to wrap our heads around.

Is this framework nimble enough and comprehensive enough, in your view, to address those issues that may come at us very quickly and unexpectedly out of corners that we haven't fully contemplated yet?

[Richard Fadden]

That's a very good question.

I would argue most likely “yes”, because most of the definitions that attach to the World Wide Web, the international digital infrastructure, are so broad that you could probably link in most aspects of AI and most aspects of the cloud. I think it would be better if there were some precision, to be honest, but if I were still working and you passed the bill, I would argue that the two things you mentioned could be included in the definitions. However, I would also worry that a bunch of people could also argue the opposite. I do think the definitions now are pretty flexible. As long as you can link them in any way to the World Wide Web, I think you can include them.

[Sven Spengemann, Liberal, Mississauga—Lakeshore, ON]

That's very helpful. Thank you for that.

Mr. Blais, you spoke about the importance of transparency and public trust. In your written submissions, you've also addressed the work that we do very closely with our allies, especially our Five Eyes allies. How important will relationships with our allies be, not only in actually doing the security work, but also in reviewing the security work? Do you anticipate that NSIRA is going to be in close contact with its counterparts in other jurisdictions?

[Pierre Blais]

As you know, we have already been in contact for decades with our five particular allies, the Five Eyes. As you may remember, we welcomed those partners earlier, in late September. They came over here. We have regular meetings with them to adapt our approach and to be more efficient.

Obviously, the organizations that we're looking at are also having meetings and are remaining in touch with their allies as well, the Five Eyes and others. It remains important.

We have already discussed what was going on here in Canada. We met with the British, the Americans, all of them, and we go on with that. Obviously, the way we are developing our approach, particularly with almost 20 organizations, is a little new in the area, and we will probably share our views on that. For the time being, we're not yet there, because NSIRA will probably be in place later this year at best.

[Sven Spengemann, Liberal, Mississauga—Lakeshore, ON]

Thank you.

[The Chair, Liberal, John McKay]

Thank you, Mr. Spengemann.

For the final three minutes, we have Mr. Motz.

[Glen Motz, Conservative, Medicine Hat—Cardston—Warner, AB]

Thank you, Mr. Chair.

I have one question for each of you. I'll start with Mr. Fadden.

With the issues of cyber-attacks and espionage and the interference that China has had with Canada and the proposed sale of Aecon and its sensitive national assets to China, is Canada really understanding and prepared to deal with the threat that China represents?

[Richard Fadden]

You won't be surprised by my answer. I think that the answer is no. I don't think that we're oblivious to the threat, but I would argue—and I make no distinction between governments here—that we are schizophrenic on China. There are people who see real trade and economic advantages and see some security problems. Other people see security problems with some small economic and trade advantages. I think that because of this, it's been very difficult to have a national debate on China. The good news is that we're not the only ones who have this problem.

I would argue that we do not really understand, in all of its complexity, how much China is different from Canada and how it aggressively uses all of the resources of the state against not just Canada but against any number of other countries in pursuit of its objectives.

[Glen Motz, Conservative, Medicine Hat—Cardston—Warner, AB]

Thank you very much, Mr. Fadden.

Mr. Blais, I have one last question for you.

In your role as the SIRC chair, would you say that there is a reason and justification for Canada to have preventative arrest rules to stop threats before they occur?

[Pierre Blais]

Do you mean the threat reduction measures?

[Glen Motz, Conservative, Medicine Hat—Cardston—Warner, AB]

Yes.

[Pierre Blais]

Oh, yes. As you know, we have the responsibility to review those threat reduction measures every year. I would say it's so far a success. It shows an issue that was raised earlier in the discussion about being proactive, because I think it was new, and it's successful. So far, so good. We have the mandate to look into that, and we will go on with that in the future as well.

[Glen Motz, Conservative, Medicine Hat—Cardston—Warner, AB]

Thank you. I have one last question.

As a former judge, you would have seen applications on recognition orders and warrant applications for monitoring criminal and terrorist entities. Would you say that in this bill we have everything we need to protect Canadians?