Public Safety Committee on Feb. 13th, 2018

[D/Commr Gilles Michaud]

Maybe I can add something from a law enforcement perspective. This bill really touches more on changes to the Criminal Code and some of the provisions that exist there to assist us in making sure we keep Canadians safe.

It does not address the technological challenges that we have—and the essence of your questions were the backdrop of that. That would be where we have the biggest gap, from a law enforcement perspective. It's in our ability to navigate within our mandate with this new environment and these new challenges.

However, I'm not sure this is the bill that aims to address those issues.

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

Thank you.

I apologize. At the beginning of my remarks, I used the term “bureaucrats”. I should have said “public servants”, so I apologize for that. I didn't mean it as a slam in any way, whatsoever. I apologize.

There are legitimate concerns that have been expressed about foreign interference in our electoral process, as has been alleged to have occurred in our 2015 election.

Are there enough oversight powers in Bill C-59 to deal with foreign threats to our electoral process?

[Malcolm Brown]

The whole question of foreign interference is very complex. It is, to be frank, a mixture of digital and analog. The reality is that the objectives are the same. In many cases, probably, the actors are the same. With regard to the additional powers or authorities you've already discussed with Shelly Bruce, I would say those are clearly filling a gap.

As for the other authorities, interference has been and remains a longstanding concern of the services in the Public Safety portfolio. I think the updating, the modernization, of the tools across the spectrum puts us in a much better position to manage these challenges.

Is it the final word? I think it's a mug's game to sort of say that we've done it and that we don't need to think about it. I think it's something that we're constantly examining, as we examine every threat, and we would provide advice to the government when and if we think there are issues where there are gaps.

[The Chair, Liberal, John McKay]

Thank you.

Mr. Picard, you have five minutes.

[Michel Picard, Liberal, Montarville, QC]

Thank you, Mr. Chair.

My question is for the representatives of the Communications Security Establishment.

You may be testifying before the committee for the first time, but you must know that your organization is central to the legal framework we are studying. We are talking about foreign threats. Given that you do not handle what happens on Canadian soil, if, in your surveillance and interdiction efforts, you were to hear a conversation involving a Canadian citizen, you would be required to destroy this information. Defending the rights and freedoms and protecting the lives of Canadians are always the excuses given. You would have to prove that there is a threat or a reasonable suspicion of a threat to obtain the warrants required to investigate.

How can you prove that there is a threat if, by destroying information concerning Canadians, you lose information about behaviour or behaviour patterns that could be used as proof of an emerging threat?

Obviously, my assumption is that the source is in another country but is relying on co-operation from Canadians.

[Shelly Bruce]

Thank you for your question.

In the case where we have acquired foreign intelligence intercepts that contain information about a Canadian that is germane and that does indicate that there's a threat vector to Canada, or that there are reasonable grounds to believe that it could be related to a threat, we keep that information. We do not destroy it.

I understand that, over time, patterns may build up, but those are the rules that we have. In the interest of protecting the privacy of Canadians, if at the time of review we determine there's no link or that it is not germane to the foreign intelligence, to a threat to Canada, then we destroy it.

[Michel Picard, Liberal, Montarville, QC]

Your premise is a good one if you consider that the intercepted information is already a possible threat. That said, a person who is trying to recruit a Canadian does not ask, during their first conversation, if they are ready to kill for their country. That is rare. These people test the waters, evaluate their target and have mundane conversations, no matter who they recruit. The conversation is of no interest with regard to a possible threat because these people are only testing the waters.

Is that not a problem? At what point does the mundane conversation turn into a threat?

[Shelly Bruce]

As we are targeting foreign entities outside of Canada, we have to be very convinced that those foreign entities are linked to a foreign threat, or a foreign intelligence priority of the government. Just because that person is speaking once to somebody who has an innocuous conversation does not mean we stop targeting the foreign entity. Therefore, any subsequent conversations with that foreign entity would also be reviewed, and the analysts of those targets would appreciate, over time, if they sensed a change in the behaviour, or if there were a Canadian involved, he or she became more susceptible to radicalization.

[Michel Picard, Liberal, Montarville, QC]

Thank you.

I would like to ask one last and more general question.

The most recent departmental report on the terrorist threat continues to indicate that the threat level is medium. This has not changed for four years. The last report for 2014 also indicated that the threat level was medium.

Does bill C-59 provide the tools required to keep the terrorist threat level at medium? Do you also have tools to help us reduce this threat level?

[Malcolm Brown]

Of course, I hope so. Seriously, there is no doubt that the bill contains important new tools to that end.

It's kind of a demand-driven environment. Can I say today—I'm making up a number—there are 15 threats and Bill C-59, or some version of it, is passed, and a year from now there will be 14? No.

Can I tell you I believe—and I think this is the view of the agencies—that Bill C-59 provides important tools and assets to help reduce the threats Canada faces? My response is the same as I gave earlier. Assuredly, yes. Does it reduce every threat? No.

[The Chair, Liberal, John McKay]

Thank you, Mr. Picard.

Mr. Paul-Hus, you have five minutes.

[Pierre Paul-Hus, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

Thank you, Mr. Chair.

I have a quick question to ask you.

I would like to go back to foreign financing. I know that Global Affairs Canada can play a certain role, and I regret that the committee refused to invite people from that department to appear before us.

In order to block foreign financing, is your department or one of your organizations in contact with Global Affairs Canada?

[Malcolm Brown]

There's a broader interdepartmental group that tackles these issues: the Department of Finance, Global Affairs, FINTRAC, the RCMP, CSIS make up the portfolio, and some of our colleagues here. There is a broad group that looks at the financing of foreign terrorist organizations.

[Pierre Paul-Hus, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

Thank you.

I would like some explanations, but I am not sure who can provide them.

Several bodies report to the minister. We have the intelligence commissioner, the Privacy Commissioner, the new Committee of Parliamentarians. Several groups report in the interests of protecting privacy. But what about the operational aspect? I want to know how you will interact with all these groups and how that is going to work, especially in the case of CSIS.

[Tricia Geddes]

Thank you for your question.

I do believe we have an obligation to our minister to ensure that we are meeting all of these expectations when it comes to privacy. We are quite comfortable with review. We have had a long relationship with SIRC. It has been very good at ensuring that we are adhering to policies and procedures when it comes to the privacy of Canadians. The new bill actually introduces a number of new mechanisms to ensure that the privacy obligations are being met by the service.

As I said at the outset, it is extremely important to us to ensure that Canadians have confidence in their security agencies. So I don't think we are concerned about it. I think that the privacy answers we would be giving to the Privacy Commissioner or our review agencies would be identical, frankly.

[Pierre Paul-Hus, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

We agree that protecting privacy is important to Canada, but can all these new players have a negative impact on security? Does the fact that there are many players run the risk of compromising national security? Is the balance between protecting privacy and national security an issue for you?

[Tricia Geddes]

Not in my opinion. As I've said, I honestly believe it's critical to have the confidence of Canadians. I think operations can be slowed down if Canadians lose confidence in the security agencies, or if, for example, we have to stop and fence off data. It's therefore critical to ensure that we have public confidence if we want to move swiftly through operations.

[Pierre Paul-Hus, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

In a broader context, Bill C-59 was referred to the committee before going through second reading in the House of Commons. The minister wanted us to check whether improvements could be made to some elements of that huge bill. As public servants, you worked on developing the bill.

Now, in insight, would you say to the committee that the situation has changed or there are elements you had not considered at the time? You know how things are being done now. Are there any changes we could propose as amendments?

[The Chair, Liberal, John McKay]

There is a greater likelihood that you will be responding to the minister on that question, Mr. Paul-Hus.

[Malcolm Brown]

As a good bureaucrats—

[Voices]

Oh, oh!

[Malcolm Brown]

—and here I'll speak for everyone.... You will understand that the advice we provide on this is given to the federal cabinet through our ministers. I will say, though, that I think the minister has made it clear that he, likeMinister Sajjan, is open to suggestions on how to improve the legislation. We look forward to advice. As I think we have both indicated, we've been in conversations with stakeholders, and these conversations continue to be held. We look forward to the advice of the committee on what the changes might be, and we will respond.

[The Chair, Liberal, John McKay]

Thank you, Mr. Paul-Hus.

Ms. Dabrusin.

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

Thank you.

We've been touching on a lot of issues surrounding the reasonable expectation of privacy. I might start there. This is a question relating to part 3 of the bill. I've read about this in a few places. I think it has been suggested by Professor Forcese and by the BCCLA that there should be amendments made to subclauses 23(3) and 23(4). The changes would add some words.

The existing subclause 23(1) reads:

Activities carried out by the Establishment in furtherance of the foreign intelligence, cyber-security and information assurance, defensive cyber operations or active cyber operations aspects of its mandate must not be directed at a Canadian or at any person in Canada.

The suggested amendments would add the words, “involve the acquisition of information in which a Canadian or person in Canada has a reasonable expectation of privacy.”

Then the text would go back to the wording that we now have in subclause 23(3), namely, “unless they are carried out under an authorization issued under subsection 27(1) or 41(1).”

Because we've been talking a fair bit about reasonable expectations of privacy and how we manage the constraints of adding that in, do you think this concern is covered by other parts or layers of the legislation, or do you see the value of making additions? I'm not asking from a policy point of view, but am trying to see if you see it covered somewhere else.

[Malcolm Brown]

I think this is a proposal by Professor Forcese, correct? I think we're a little constrained as public servants in responding to that. You said your question is not about policy, but frankly it is.

I will let Scott take a stab at trying to respond to the technical aspect of what you have raised.