Public Safety Committee on Feb. 8th, 2018

[Michel Picard, Liberal, Montarville, QC]

The work that both of your organizations are doing, making sure that our private lives are well protected and our rights are well protected, is needed. We salute that.

I had the privilege of leading more than a dozen consultations on Bill C-59 in the first year I was here. People were very loud, on both sides of the fence. There were those who wanted to have a bit of protection, and those who accepted the fact that we need to maybe compromise—if the word works—part of our privacy in order to make sure we are safe.

I'm sure you did a lot of research here and there to make sure you got the most precise and value-added comments supporting both sides of the fence. What is the nature of the comments you received from those who accept reducing their privacy in order to be more secure?

[Laura Tribe]

The majority of comments that were received—in fact, almost the entirety of the comments that the OpenMedia community submitted—were not asking for us to compromise our privacy. I think that we say in the consultation results that over 80% of submissions asked to increase our individual privacy, feeling that we've already overstepped those boundaries of individual privacy in the name of protecting national security and that it isn't actually a balance.

I think that's the biggest problem we keep running into, which is acting as though we have to sacrifice all of our personal information in order to be safe. In effect, we haven't seen any evidence that the mass surveillance and mass collection of data has helped prevent any national security incidents. We also haven't seen any evidence that the information will be lacking in future; we haven't seen that it's providing the insights we need.

All we've seen is that Canadians are scared. They're scared of the information their government is collecting about them. They're scared about how it could be misused in future, maybe not by this government, but the government after that, or the one after that.

We've seen a lot of fear after the change in government in the United States about the way the information is being misused, about what happens when that information gets into different hands—and that's only when it stays within the government. If that information gets into the hands of someone outside of government, which we hope never happens, our intelligence agencies will themselves be compromised. We have and will be collecting the information on our own citizens that hand it over to any other government. That's terrifying.

I think what we're hearing from our community is prove to us that you need it, prove to us that it helps.

[Michel Picard, Liberal, Montarville, QC]

You mentioned—and I'm following the question of Mr. Paul-Hus—that the technology in other countries may increase that threat in Canada, and therefore you are looking for, and I'll quote you, “tools to take down”. Therefore, you are open to the possibility of taking measures to make sure that we reduce the aggression or the attack before it happens, and then we have to act after the fact.

What is the justification behind your position to increase those offensive measures, which seems to be the same as the justification not to allow CSIS or CSE to act?

[Laura Tribe]

I'm not clear on exactly which contribution of ours you're quoting, but our concern is that we don't have strong enough protections internally to prevent ourselves from cyber-attack, making Canadians and Canada's databases vulnerable. In addition, we do not believe that we should be proactively creating devices, tools, and technologies to go on the cyber offensive, particularly without the checks and balances that we're asking to be put in place.

[The Chair, Liberal, John McKay]

Thank you.

It appears that we've had a massive case of inter-party co-operation break out here.

Mr. Dubé, you have five minutes.

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

Thank you.

We don't want to start trends here or rumours of any kind.

I just want to go back to the issue of datasets. Even for parliamentarians there is some confusion as to what that means.

The Privacy Commissioner made an important and interesting point when he mentioned that you always have to consider the future definition of datasets as technology evolves, but also how it's being defined currently. I'm just wondering what you think of the definition and whether or not that's appropriate for now, but also for how things will change in the future.

[Timothy McSorley]

Sorry, just to clarify that question, do you mean a specific kind of dataset for CSIS, or just the idea of datasets in general?

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

I mean in general and also how it's defined in the bill.

[Timothy McSorley]

Right. Our concern is that without allowing for the definition of what datasets are on a yearly basis.... It is concerning. We believe there should be more clarity on what those datasets could and should be.

As well, we're worried, just as others have pointed out, that throughout the process of collecting those datasets has a changing threshold for what can be collected, what can be retained, and then what can be queried. Instead of allowing for so much information to be collected at the beginning and then narrowing it as we go, there should be strong requirements from the very beginning on of what information can go into those datasets.

Of course, as we've already mentioned, the fact that publicly available information could form a kind of dataset is a concern.

There is also concern that, at the very tail end of CSIS datasets, information collected in Canadian datasets can be accessed at a lower threshold for foreign surveillance purposes and that information collected by CSIS for foreign purposes can be collected, albeit at a higher threshold, from those datasets for domestic intelligence purposes. We believe that to fix that problem we need stronger authorization and stronger thresholds from the beginning. As we've mentioned, we also need an increase in the transparency and powers of the intelligence commissioner to verify those datasets and authorizations.

[Laura Tribe]

I would just add that the shifting definition of datasets, the different interpretations of datasets, comes back to the bigger question that we keep revisiting: if it's difficult for the government to understand, it's really difficult for citizens to understand what it means. Ultimately, to give this much power to governments to collect this information, and to our law enforcement agencies to gather and use this information, requires a large level of public trust. When the definitions keep changing and when it seems very vague or hard for parliamentary committees to understand and nail down, it's really hard for our community to understand what it means and what's included in it. Any clarity that can be provided on that would be much appreciated.

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

Great. Thank you.

I just want to shift gears a bit and go to the position of the intelligence commissioner. It perhaps seems like a nitpicking thing, but it is important, this notion that it's a part-time position. I'm just wondering what your thoughts are on that, and if you think it should be full time, especially considering that, should this bill be adopted, it's essentially the only form of real-time oversight, versus everything else in this country that's based on review after the fact.

[Timothy McSorley]

We believe that it should be a full-time position and that, as others have suggested, perhaps a pool could be expanded from being a retired judge to looking at the current judicial pool. Definitely, because of the amount of work that's expected from the intelligence commissioner, we believe that it needs to be a full-time position.

[Laura Tribe]

We would agree.

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

Thank you very much.

When it comes to information sharing, how concerned should be about what are essentially cosmetic changes in this bill from what was brought in by the former Bill C-51? You mentioned it in your comments, and I don't really have time to get into some of the details I was going to ask about, but perhaps you could reiterate those concerns in the 30 seconds that are probably left.

[Laura Tribe]

We definitely have big concerns about the Security of Canada Information Sharing Act that was enabled by Bill C-51 not really being revised or overhauled in the way we had hoped. One of the big changes that we would look for is limiting the information requested to those who request it, and not allowing it to continue being shared between departments after the fact. Another change we would look for is limiting who can access information within other government agencies.

[The Chair, Liberal, John McKay]

Thank you.

Ms. Dabrusin, you have five minutes, please.

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

Thank you.

I want to pick up where you left off on where information sharing going. In your opening statement, Mr. McSorley, you talked about how you would like to see a simplified version. When I'm looking at this, I'm mindful also of the Air India recommendations, which pointed out that there were very strong problems with the system not sharing information and that that had led to 280 Canadians losing their lives.

Mindful of that as a background, and of some of the concerns you raise as well, what would you see as a simplified version? If you had us doing the rewrite, what would you want to see?

[Timothy McSorley]

It's difficult to say precisely legally what it should say, but what I would say is that—

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

Unfortunately, that's where we're at now.

[Timothy McSorley]

I realize that, yes. We believe that it should be based on the principles of information, on what's defined under the Privacy Act as information that's private for Canadians; that if it is to be shared for national security purposes that it meet the threshold of necessity; and that, as is laid out already in SCIDA, there's clear record-keeping as to what information is being shared, but that there needs to be a necessity threshold—

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

I just want to stop you there. You said that it is in the SCIDA, though, the record—

[Timothy McSorley]

There is record-keeping, and we believe it should be continued because it's obviously important to have records, but it should be at a necessity level.

We're baffled that the expanded definition of a threat to national security is continued with SCIDA. We believe that it should be removed and that we should follow what's in the CSIS Act of the definition of a threat to Canada's national security.

Off the top of my head, I think those would answer a lot of our concerns, but in general what we see right now with the question of the different levels of threshold, that expanded definition of what constitutes a threat that undermines Canada's national security, raises serious concerns for us. I don't believe that rolling that back would undermine what came out of the Air India inquiry, because clearly we need to be sharing the information between government agencies.

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

I'm just looking at the sections, because we are at this point looking at the legal wording in this bill. You're talking about “activity that undermines the security of Canada”. One section that has received some comment, I believe from Professor Wark, is this one: “conduct that takes place in Canada and that undermines the security of another state”. Is that where your concern is?

[Timothy McSorley]

That's one of the concerns. We're also concerned regarding the inclusion of “critical infrastructure” as a threat to Canada's national security. We're also concerned—and the CCLA has raised this—about the changed wording around trying to carve out political expression and activism. Adding to the clause that “unless [it's] carried on in conjunction” with one of those issues actually causes a larger problem than what we see in SCISA—

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

I'm sorry, but I want to stop you there and ask about the critical infrastructure in the minute and 20 seconds that I have left. You're talking about how it's at the request of...there has to be a consent on the critical infrastructure piece in this legislation, for example, with regard to hospitals. I believe we had some evidence that this is in fact one big area to be worried or concerned about. What's your concern about that on the critical infrastructure?