Public Safety Committee on Feb. 15th, 2018

[LGen (Ret'd) Michael Day]

I would simply say or ask the question, is there any legislation that requires CBSA be provided with the complete watch-lists that are accumulated by CSIS, CSE, and RCMP? If lacking that, why isn't there the requirement? How can they perform their function if they don't understand who is being watched as a threat to this country?

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

The answer is pretty binding on that.

[Scott Newark]

I'm sorry, if I can just add in, I also sent in a note that I did several years ago out of frustration in dealing with the “we can't share that information because of the Privacy Act” nonsense. The legal authorizations for law enforcement and security purposes for authorization sharing within agencies is significant. Also contained within the Privacy Act, section 8, my favourite section, paragraph 8(2)(m), is the section that says that If the holder of the information decides that the public interest in releasing the information or the truth outweighs the personal information in keeping it, then they have the authority to release it.

[LGen (Ret'd) Michael Day]

Personally, I would say that's insufficient. It allows them to. It doesn't force them to. Legislation needs the requirement, not just the independent judgment of the agencies to decide what they will or they won't.

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

In the less than a minute and a half that I have left, I am struggling between which questions to ask. I will ask this.

Mr. Day and Mr. Newark, you talked about the barriers of intelligence-gathering evidence and the struggle that we currently have and the challenges it presents to prosecute criminals to begin with, including returning ISIS terrorists.

How would you suggest we deal with this? They are very real concerns and there are limitations currently on protecting Canadians and holding those who are criminal and returning to do harm to us accountable. How do we fix that?

[Scott Newark]

Included in my recommendations that I supplied to the committee are some specific recommendations in relation to that.

However, as you know, with the rule in our system—and it does apply now to terrorism cases because it's done through the criminal justice system—the real issue isn't whether or not the evidence is relevant, the issue is whether the evidence is admissible.

That's why I think the aspect of things like preambles, and saying that we've considered the privacy issues, and even after the fact making sure you have review bodies like the committee on Bill C-22 asking why you didn't share this information, are the kinds of things that I think will help us. However, we need to be ready in advance of those people coming back.

When the RCMP, for example, talks about 120 cases, I certainly hope that number is because of actual cases that are created, as opposed to some analyst doing a statistical judgment on what it should be, because we should be ready for this.

[The Chair, Liberal, John McKay]

Thank you.

Mr. Spengemann, you have seven minutes.

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

Thank you both for being here.

I want to pick up on the exchange you had with colleagues on the other side regarding the strategic threat setting for this bill. This morning, we had Mr. Fadden in front of the Standing Committee on National Defence, and Mr. Fadden testified last week in front of this committee.

This morning, he said that one of the threat vectors that he's most concerned about—and it echoes your conversation a few moments ago—is the multiplicity of terrorist organizations with considerable reach. You spoke about the 120 returning ISIS fighters, or whatever the number is.

What else is there in the strategic threat setting that Bill C-59 in 2018 seeks to address beyond returning ISIS fighters?

[LGen (Ret'd) Michael Day]

I could maybe make a couple of comments about the strategic piece. I work with Dick Fadden quite regularly, and I'm aware of his views. I would support them.

We tend to be focused on, quite frankly, not just the smallest numerical threat in terms of the number of foreign fighters, again who fall along a continuum.... Not all of them are true threats, some of them are incredibly significant threats. However, it tends to obfuscate or blind us to the reality of homegrown terrorism and the networks to which they're connected. I am not yet seeing...and quite frankly there continue to be inhibitions or obstacles to associating those two network pieces.

I think we have to recognize the difference and the blurred line now between state and non-state actors, not just in the cyber domain, but quite frankly in the information domain writ large, and the fact that they have a variety of different aims. Some of them are about security, some about gaining advantage, some of them are commercial-industrial, and some are political. Some of them—if we look south of the border and what they're affecting—are merely to disrupt and create chaos.

I am concerned that current legislation, although it is targeted towards a specific area and is necessary, by itself is insufficient.

We need to have a more holistic look. I'm not proposing that they would all be rolled into Bill C-59, but rather there should be a series of actions and legislation that deal with the whole panoply of threats that Canada faces on an ongoing basis.

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

Let me give you a couple of examples. One of them is from just over a year ago, and that's the attack in Sainte-Foy in which six Muslim men were shot by a self-radicalized right-wing extremist. I think that's probably the most generic way to describe it.

Yesterday, we had a very tragic mass shooting in Parkland, Florida. There is no indication of any terrorist organization, but an individual who obviously was very disgruntled, disenfranchised, disconnected from reality in some way, and he shot 17 individuals.

Are those national security questions, or are they questions of local law enforcement?

[LGen (Ret'd) Michael Day]

If I may, we have to be careful about the use of a label of “a terrorist”. In the United States, they don't like to use it when it's a white male. It seems unfortunate for them, but it's merely a label of convenience. The act itself was designed to terrorize a certain population, etc.. I think you can get really caught up with terrorism. America has a very distinct use of that, and it needs to be foreign based before it's terrorism. Language is important here.

With regard to what happened in Canada, etc., we have to be careful. When you look worldwide, the vast majority of—to use the broad definition—terrorist threats are actually domestically originated and not from outsiders coming in.

That's why I said that the security in Bill C-59 tends to have a colour or a focus, a lean towards this idea that we're protecting a border. I'm not convinced that the borders exist when it comes to that kind of security; hence, my previous comments.

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

That's helpful.

Yes, Mr. Newark.

[Scott Newark]

Can I just add that it doesn't appear, as you say, that there is any ideological motivation in what happened. It certainly produced a terror response, but unlike, for example, what we were describing with relation to Islamists, it wasn't ideological driven. That's the first point that I would actually make as a distinction.

The other one that really struck me, though, was how a 17-year-old got an AK-47 with all of this ammunition, and people knew about it. Thank God I live in Canada.

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

Thank you for that. Time is limited. I want to ask one more brief question.

General Day, on the questions of artificial intelligence and potentially also quantum computing, how confident are you that Bill C-59, in 2018, is a flexible enough framework to address unknown unknowns that may come at us through the cyber domain in those two areas?

[LGen (Ret'd) Michael Day]

Zero confidence.

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

From the perspective of a threat assessment, would you rank AI and quantum computing as potential threat vectors?

[LGen (Ret'd) Michael Day]

Absolutely, but we need to understand the difference between individual security, personal physical security, economic security, existential security, etc. If we broaden the definition of Canada's national security, they are absolutely likely the largest single emerging vector.

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

Thank you very much.

Mr. Chair, it's Mr. Picard's birthday, I'm going to delegate the remaining time to him.

[The Chair, Liberal, John McKay]

It must be quite a birthday because he only has a minute and a half.

[Voices]

Oh, oh!

[Michel Picard, Liberal, Montarville, QC]

Thank you.

Mr. Newark, in your article, “C-59: Building on C-51 Towards a Modern Canadian National Security Regime”, in part 7, with respect to the terrorist definition you say, “Hopefully, the Government will be closely called on to explain its actual purpose in making this change, which will almost certainly handicap the carefully crafted and scenario-relevant tool that is the current [section 83]” regarding promotion and advocating terrorism.

The minister came and explained that the definition under Bill C-59 was so vague and so wide that it was inapplicable. Therefore we decided to modify it in order to be able to apply it because nothing happened under the old definition. What is your view on this comment?

[Scott Newark]

As I said at the outset, the definition that is used in Bill C-59 as far as I'm concerned is the same definition used in section 22 of the Criminal Code, which means we're just duplicating something. It's not there. When I look at the wording on this one, I think you will find that both police and prosecutors will come to the conclusion, and certainly defence counsel, and probably judges, that there is a higher evidentiary standard required, targeting more specific action and targeting an identifiable individual. Especially because of the relevance of the promotion of terrorism and radicalization online that we were just talking about, for example, that is a more precise and more applicable definition. Those standards, by the way, are basically the standards that are in place in the sense of the definition of what you have to do on the hate crime sections, section 318 and section 319. For me when I looked at it, I didn't understand why the change was being made, and that always rings an alarm bell for me.

[The Chair, Liberal, John McKay]

Thank you.

Mr. Calkins, welcome to the committee. You have five minutes, please.

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

Thank you. I have two questions that I'm sure will consume the entirety of the five minutes.

The question that I have for you, Mr. Day, is in regard to the turf battles. Do you believe that Bill C-59 creates an environment that will mitigate these turf battles, and if not, what do you suggest?

Mr. Newark, my question for you falls along the line of our knowing what our allies are doing around the world. We've seen the history book play out in advance for them with attacks that have happened in places like the Brussels Jewish museum. We've seen what's happened in Europe in 2014 and 2016. With all the attacks that have happened, Belgium expanded the definition of what constitutes a terrorist offence, and lowered its threshold for conviction in line with the 2014 UN Security Council Resolution 2178 and the 2016 European Union directive on terrorism.

In fact, one of these returnees was identified in Belgium. Once one of these returnees is identified by the Belgium authorities, they are systematically arrested and presented to an investigating judge. In Germany now, in every case of a returning foreign terrorist fighter, the prosecuting authority opens a criminal investigation immediately.

What are we doing so terribly wrong on this issue of returning foreign fighters that could or should be included in this bill?

I'll let Mr. Day go first, and then Mr. Newark, please.

[LGen (Ret'd) Michael Day]

I have never seen any legislation during my time, certainly in the last 20 years in service where I had significant dealings here in Ottawa, that has ever forced any true interaction or mitigation of the turf battle. Legislation by itself doesn't do it. The enaction of subsequent processes and structures to support the legislation has the ability to get after that. I have little confidence that there will be a fundamental realignment of the senior public service to allow for those gaps to occur. This will be tremendously unpopular with the deputy's community in this town, but the reality is until you have a deputy with the responsibility for whole-of-government coordination of intelligence and security responding to an accountable minister, there will be no changes.