Public Safety Committee on Feb. 15th, 2018

[Scott Newark]

Just on that point, I would also like to add I think either this committee or the C-22 committee could have a really significant role by calling people in and asking why this didn't happen, and the kinds of non-sharing activities you were describing to ask those very kinds of informed questions. Not as a finger-pointing exercise per se, but as a lessons-learned exercise. I have seen this work out when I was with the Ontario government; it produced some positive results. We were able to learn from it, and not repeat the silo kind of activities.

With respect to your question to me, again I will go back to the point that I think we should emphasize in this country using all the tools in the tool box, including criminal prosecution where necessary and appropriate, although keeping in mind how difficult that may be. Think about that. If you're dealing with people who have been detained overseas, the evidence you get from them has to end up being admissible in court. That could be challenging.

The larger issue is our successful integration of people into Canadian society. I think we have done a vastly better job of doing so in Canada and the United States than they have in Europe, When you see instances of organizations or groups doing things that are trying to stop that integration, that should be a red flag. I wrote a piece for the Macdonald-Laurier Institute some years ago about that kind of a strategy, about how you deal with it, and that is one of the points.

In my opinion, we have been very successful in integrating people from different cultures into our society, and we should continue with it.

[Blaine Calkins, Conservative, Red Deer—Lacombe, AB]

Mr. Newark, just to reiterate what you said earlier about the current provisions that Bill C-51 put in place where it is an offence to broadly counsel someone to propagate terrorist propaganda. This means that in a particular case somebody who is propagating terrorist propaganda could unknowingly influence somebody to commit a terrorist act without that person who is propagating the propaganda even knowing that somebody was going to commit the offence.

Let me get to my point. Bill C-59 is proposing that somebody would only be charged if they had counselled somebody, which means that somebody would have to commit the act, and we would have to trace that back to whoever counselled them, whereas the legislation as it currently exists could stop the person from propagating the terrorist activity in the first place, thereby preventing the activity from happening.

Is that a fair assessment?

[The Chair, Liberal, John McKay]

We're going to have to to ask them to respond some other way because the time has expired.

[Scott Newark]

I will explain later. I think it's more complex.

[The Chair, Liberal, John McKay]

Mr. Picard.

[Michel Picard, Liberal, Montarville, QC]

Thank you.

I have a short preamble before I ask my question, General Day.

We would like to thank you for your service. As a result of what you experienced, we as Canadian and free citizens do not have to experience the same things. I think that is important and we have to thank you for that.

Would you agree that your experience heightens your perception of danger, whereas the everyday reality of Canadians involves doing groceries, going to work, and taking part in some public events?

They do not understand the proximity of danger as you do. Nonetheless, the experts in your field tend to put forward broader protection measures than those proposed in the bill, it would seem.

[LGen (Ret'd) Michael Day]

Thank you for your question and comments.

I think I agree with your underlying point about the exaggeration of threats. We should understand what risk really is in this domain. It's a combination of three separate and distinct elements: the frequency of any occurrence, the likelihood of it, and the consequence of it.

I think any metric that you look at would suggest that foreign-fighter-based terrorism is probably outside the top one hundred threats that Canada faces in terms of life and limb here in Canada. You shouldn't mistake that for a belief on my part that it doesn't need to be addressed, but it should be kept in proportion.

That's why I said, in my opening comments, that in terms of the balance between our security and charter rights and everything else, we should be making deliberate decisions that actually diminish our security, because it's an informed position of risk and threat. You only get there, though, if you have the supporting mechanisms that I've alluded to previously this morning, so that they're informed decisions.

My concern is not about the exaggeration of threat. It's about the ignorance of threat. I'm perfectly comfortable with governments, agencies, law enforcement agencies, etc., deciding not to do something. I'm really uncomfortable when they decide not to do something because they just don't know, and that's actually the reality, in my opinion.

I would agree with the underlying part of that, which is that there are some individuals who want to exaggerate that for effect because ideologically that fits with them, or it's their policy base, or whatever the case is. I'm certainly not there, but this certainly needs conscious decision-making, acceptance, and weighing of threat based on an informed decision process that's supported by a structure of government that's fully integrated. Those final three steps just are not present.

[Michel Picard, Liberal, Montarville, QC]

Am I to understand that, in your opinion, Canada's national security agencies do not fully appreciate the reality of the threat that you experienced?

[LGen (Ret'd) Michael Day]

No, not at all.

I think what I would say is that each agency, in and of itself.... Thank you for asking the question, because none of my criticism is directed at each or any individual agency's ability or capability. I'm not suggesting that within their mandate they don't do a good job.

There are things that I believe could be strengthened in each and all of them, but that isn't an individual criticism. It's the machinery of government. Because each of them has such a separate mandate and because there is no forcing function that brings together a complete picture, that's where the inadequacies and the lack of information come from.

[Michel Picard, Liberal, Montarville, QC]

I have a quick question for you about the cyber threat.

This is a broad field. You have mentioned a few key themes of the cyber threat. We are interested in this but, since it is so broad, where should we start?

[The Chair, Liberal, John McKay]

In one minute, please.

[LGen (Ret'd) Michael Day]

In one minute, then, let me be exhaustive.

There has to be legislation with a forced compliance, a forced standard, and a forced governance system on the major backbone that runs the Canadian economy and security agencies: financial sectors, energy sectors, etc. That's the start point. Of course, the difficulty is in the detail, but in lacking that whole-of-Canada approach we leave open vulnerabilities. We leave them open to interpretation. I am aware that the financial sector would like this to be voluntary. That's ridiculous. They just want to avoid costs. We have to make some hard decisions here.

[Michel Picard, Liberal, Montarville, QC]

Thank you.

[The Chair, Liberal, John McKay]

Mr. Newark, in light of your extensive appearances before committees over 30 years, I'm going to grant you the last few seconds.

[Scott Newark]

Can I just suggest a model of something that's worth looking at? In budget 2017, the government allocated $72 million to Transport Canada. Lacking a social life, I tend to read these documents.

[Voices]

Oh, oh!

[Scott Newark]

Essentially, it creates a special project on drones and driverless vehicles: to do research on the technology and as well—and this is the important part of it—on how a regulatory framework could be put in place, as has just been mentioned, so that we deal with these subjects in advance. In my opinion, that is an absolutely great model that we could use for cybersecurity generally.

[The Chair, Liberal, John McKay]

Thank you, Mr. Picard.

Thank you to both of our witnesses and thank you for your literally years of work on behalf of our nation.

With that, I'm going to suspend until we re-empanel.

[The Chair, Liberal, John McKay]

We are now back in session.

For our final witness today we have the Civilian Review and Complaints Commission for the RCMP with Guy Bujold, Interim Vice-Chairperson; and Joanne Gibb, Director of Research.

You have 10 minutes, and of course you know the drill. I look forward to what you have to say. Thank you.

[Guy Bujold, Interim Vice-Chairperson and Acting Chairperson, Civilian Review and Complaints Commission for the Royal Canadian Mounted Police]

Thank you.

Mr. Chair, honourable members, thank you for inviting me here today to speak to you about Bill C-59, An Act respecting national security matters. As you said, Mr. McKay, I am accompanied by Ms. Joanne Gibb, Director of the Research, Policy and Strategic Investigations Unit of the Civilian Review and Complaints Commission for the Royal Canadian Mounted Police.

I will focus my comments today on part 1 of the bill, which seeks to establish the national security and intelligence review agency, thereby transferring certain powers, duties, and functions from the Civilian Review and Complaints Commission for the RCMP to this new agency.

As the head of the commission, I strongly believe in the importance of civilian oversight and review, whether it is related to national security or, for that matter, related to law enforcement more generally. Independent review fosters positive change and makes organizations better, and I think that's an objective we shouldn't lose sight of when we're talking about these changes. Consequently, the commission supports all of the efforts to enhance the national security review framework.

The trust that Canadians have in their public safety and national security agencies is predicated on accountability and transparency, to the degree possible. Independent review, whether it is by the National Security and Intelligence Committee of Parliamentarians, or by expert civilian bodies such as the Civilian Review and Complaints Commission, the Security Intelligence Review Committee, or the Office of the CSE Commissioner, contributes to the overall accountability framework of the organizations entrusted with keeping Canada safe and secure.

As the government seeks to further strengthen that framework by creating the National Security and Intelligence Review Agency, the commission welcomes the opportunity to work collaboratively with the new review body to ensure that RCMP activities are independently examined.

Created in 1988, the commission has significant experience and expertise in managing complaints and conducting reviews of the RCMP, whether it is into the RCMP’s actions in relation to the G8 or G20 summits, the RCMP seizure of firearms in High River, or policing in northern B.C., to name a few subjects.

The Civilian Review and Complaints Commission for the RCMP, as it is known now, has long been a key element of the RCMP’s accountability structure. By independently reviewing complaints, and where necessary making findings and remedial recommendations, the commission strives to bring about constructive change in the RCMP.

Currently, the commission is undertaking a review of the RCMP's implementation of Justice O'Connor's recommendations in relation to the Maher Arar affair. That investigation is ongoing at this time and is expected to be completed before the end of the fiscal year. The commission will then prepare a report outlining any findings and recommendations pertaining to the six sectors examined by Justice O'Connor.

It is my hope that any findings or recommendations made by the commission would guide the new review agency in its future work in relation to the RCMP's national security activities.

In his 2006 report, Justice O’Connor stressed the importance of a review body being able to “follow the thread”. Through Bill C-59, the new national security and intelligence review agency will have the mandate to do just that, providing a more holistic approach to national security review. Justice O’Connor also stressed the need to eliminate silos and for expert review bodies to work more collaboratively. We're hopeful that this will be an outcome of the new legislation and new oversight structures.

Since the mandate of the RCMP is much broader than just national security, I am pleased that Bill C-59 permits the national security and intelligence review agency to provide the Civilian Review and Complaints Commission with information it has obtained from the RCMP if such information relates to the fulfilment of our own mandate. I believe that this is critical to the overall effectiveness of the expert review bodies.

For example, if in the course of a national security review the national security and intelligence review agency becomes aware of a policy issue unrelated to national security, that issue could be flagged to the CRCC for further examination. This is the reality of the world we're living in.

To further illustrate the importance of collaboration and co-operation, I would suggest that if a public complaint was received by the commission that pertained to national security, but also contained allegations related to RCMP member conduct, the two review bodies should be able to collaborate, within their respective statutory mandates, to deal with the complaint. That is the only way that the Canadians who had made a complaint would receive an appropriate response to all their complaints.

Although the legislation requires the complaint to be referred to the National Security and Intelligence Review Agency, the CRCC, as the expert review body in relation to policing and police conduct, could deal with the allegation related to member conduct. This would ensure a consistent approach in reviewing complaints of RCMP on-duty conduct.

In terms of changes to the commission's mandate relative to Bill C-59, certain elements in the legislation might benefit from further clarification, and that the members of this committee may wish to consider further. Proposed amendments to the RCMP Act require that the Civilian Review and Complaints Commission refuse to deal with a complaint concerning an activity that is closely related to national security and refer any such complaint to the national security and intelligence review agency. That means the CRCC will continue to receive all public complaints related to the RCMP, and thus will remain the point of intake for public complaints. The onus will then be on the CRCC to determine whether the complaint is, in the words of the legislation, “closely related to national security” before deciding on how it will dispose of it.

Absent a definition of national security, however, the commission must make a determination on whether to refer the complaint to the national security and intelligence review agency. Once referred to the national security and intelligence review agency, that agency must receive and investigate the complaint in accordance with section 19 of the new legislation. There is currently no authority, however, for a referral back to the CRCC if the national security and intelligence review agency were to deem, after it had examined a complaint, that it was not a matter closely related to national security. This is a matter that the committee may want to consider further.

Also, while Bill C-59 prohibits the commission from dealing with or investigating complaints closely related to national security, as well as RCMP activity related to national security, there is no prohibition on the commission's chairperson from initiating a complaint related to national security. Further to the RCMP Act, if the chairperson is satisfied that there are reasonable grounds to investigate the conduct of an RCMP member in the performance of any duty or function, the chairperson may initiate a complaint in relation to that conduct. Bill C-59 does not amend subsection 45.59(1) of the RCMP Act and, as a result, the chairperson could initiate a complaint closely related to national security. I respectfully suggest that the committee may wish to consider whether this is consistent with the intent of the legislation.

As I indicated at the beginning of my remarks, I believe in the importance of civilian oversight of law enforcement, and we at the Civilian Review and Complaints Commission for the RCMP are fully committed to working with the new national security and intelligence review agency.

In closing, I'd like to thank the committee for allowing me to share my views on the important role of the independent civilian review. I welcome your questions.

[The Chair, Liberal, John McKay]

Thank you, Mr. Bujold.

Mr. Spengemann, you have seven minutes please.

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

Thank you both, Mr. Bujold and Ms. Gibb, for being with us today and for sharing your expertise and for your service to the country.

First, I want to circle back to what you mentioned already in your submission, the standard of “closely related to national security”. Absent any suggested amendments, how likely do you think it is that the commission would frame a scenario as being closely related to national security and NSIRA would send it back to you saying that it's not? Is that a likely outcome? If so, what would make it likely?

[Guy Bujold]

First of all, let me make it clear to the committee that the number of complaints that have a potential for being related to a security matter is very small. When we review the complaints in the commission since 2015, we can identify a half a dozen that might have been related to security matters and that would therefore no longer fall within the purview of the CRCC. That's the first point.

The second point is, I believe that, notwithstanding the fact that there isn't a precise definition, the agencies working together.... And that's the construct that I have in my own mind as to how this will all unfold. In real life, we'll be able to identify those areas where there is a possible blurring, if you wish, and those will be resolved.

I still believe, however, that this inability of the CRCC to return something—

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

In those very small cases—

[Guy Bujold]

—in a number of very small cases.... And whether it warrants an amendment in and of itself, I will leave to the committee to decide, but the lack of that as a provision in the legislation might prove to be an issue at some later date.