Evidence of meeting #110 for Public Safety and National Security in the 44th Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was csis.
A video is available from Parliament.
NDP
Alistair MacGregor NDP Cowichan—Malahat—Langford, BC
Just very quickly, I know bells are going to ring soon. I'm just wondering if the committee can give unanimous consent to proceed through the bells partway so that we can carry on with as much witness testimony as possible.
Liberal
The Chair Liberal Ron McKinnon
I've had a discussion. I thought you were involved in that. There's an agreement that we should go to at least a quarter to....
Liberal
The Chair Liberal Ron McKinnon
I now invite Mr. Juneau-Katsuya to make an opening statement of up to five minutes.
Michel Juneau-Katsuya Former Chief of the Asia-Pacific Desk, Canadian Security Intelligence Service, As an Individual
Thank you, Mr. Chair.
Thank you to the members of the committee for the opportunity to share my thoughts and recommendations on Bill C-70.
I'll begin by sharing the premises that guided my analysis.
A strong and healthy democracy must be protected by three fundamental concepts: transparency, accountability and independence, free from interference, of dependants.
The debate over the threat of foreign interference has raged for nearly two years. What has emerged is the extent to which there was dysfunction, scheming and control games in the arena of foreign interference. Yes, we have been targeted by foreign powers, but their work was facilitated by actors in key positions in our government, past and present, who have facilitated and even taken advantage of the situation for their personal and partisan gain. To that effect, I bring your attention to a report that was just released by the parliamentary committee on national security, which again blames severely some elected officials for willingly and consciously collaborating with foreign states, hence the need to recall the three basic concepts for protecting our democratic system: transparency, accountability and independence, free from all interference from people in office.
Bill C-70 is an opportunity to correct these errors and manipulations in order to aim for a Kantian ideal of our system.
I have only had 48 hours to prepare my formal presentation, so I will quickly mention a few key points. My concerns are mainly related to the implementation of the proposed reforms.
First, I welcome the proposals to expand communication between the Canadian Security Intelligence Service, or CSIS, and organizations other than the Prime Minister's Office.
Having said that, if we're going to talk about a real national security agenda, we must include the provinces and persuade the premiers to appoint national security advisers. They are already targeted by foreign agents and are completely unaware of it.
I welcome the efforts to clearly define criminal actions taken by agents acting for the benefit of foreign powers. However, I fear the execution of that because, to successfully contain the problem, the RCMP and CSIS will have to collaborate. Unfortunately, history tells us that, since its creation, CSIS, out of concern and due to formal instruction received a right at its outset—and I was there when it took place—not to testify ever in court or to prevent its going to court as much as possible, which has led to intentional obstruction of RCMP investigations. This happened in the files of Air India, Ahmed Ressam, Adil Charkaoui and Jeffrey Deslisle, to name only the few that are known publicly. So it is normal to fear that the system will reproduce the same deficient mechanisms.
In support of that apprehension, the director of CSIS, Monsieur Daniel Vigneault, testified before the commission of inquiry into foreign interference that he had, on two occasions, following a meeting with the Prime Minister, modified the reports to accommodate this last. This clearly demonstrates that our national security does not have the necessary and desired independence.
In that vein, I will remind committee members that prime ministers, from Mr. Mulroney to Mr. Trudeau, have all been briefed on the issue of foreign interference and have all chosen to ignore it for personal or political gain. This systemic problem is not new. Again, this is an issue of intelligence monitoring and accountability.
In the time I have left, I will continue with my analysis of the registry. The main purpose of the registry is to maintain the integrity of the system by keeping everyone transparent and accountable.
First of all, I note a lack of concordance between part 1 and part 4 of the bill. When we look at the new powers being devolved to CSIS—and even to the RCMP, in a certain perspective—they do not seem to work to maintain the efforts that will possibly be deployed by the new commissioner's office.
Second, the new position of commissioner must be independent and report to the House of Commons, not to the minister. As the Auditor General currently does, they should report directly to the House of Commons. Reporting to the minister will only replicate or perpetuate the existing problem.
Independence of the office of the commissioner must be also financial. The protection of our democracy must be protected from—
Liberal
Former Chief of the Asia-Pacific Desk, Canadian Security Intelligence Service, As an Individual
Wrap it up? Yes, sir, I will.
Former Chief of the Asia-Pacific Desk, Canadian Security Intelligence Service, As an Individual
Sounds good.
The commissioner's office should also have the power to investigate. As we speak, it is only a matter of reporting to the minister, and that is not enough.
I applaud the inclusion of education organizations in the bill. For example, even today, an organization like the Alpha group, which preaches a revised and distorted interpretation of Chinese history, managed to get changes in the curriculum. That organization was created by the United Front Work Department and is still under its control, as are the Confucius Institutes.
I'll leave it at that for now and hope to answer your questions as quickly as possible.
Liberal
The Chair Liberal Ron McKinnon
Thank you very much.
We'll go now to Mr. Shull for an opening statement of up to five minutes, please.
Aaron Shull Managing Director and General Counsel, Centre for International Governance Innovation
Thank you very much, Mr. Chair and distinguished committee members, for the opportunity to speak today on this important bill. It's a pleasure to be here.
Indeed, maybe I'll start by saying something that you probably don't all hear very often: Thank you very much. It was a real pleasure to see this bill proceed with the pace and with all of the work you're doing.
We're independent and non-partisan, so when I say this, I genuinely mean it. I know how hard you're working. We're sitting here in the evening, and everyone's working away to get this done, so thank you very much.
It's in that spirit that I plan to make three arguments.
Number one is that activities covered by the proposed foreign influence transparency and accountability act should extend to municipalities, and we need definitional clarity around who is a public office holder.
Number two, the registry and the commissioner should be in place before the next federal election.
Number three, the act should nest within a broader national security strategy.
Now, let me tell you what I mean by those things.
First, we need to extend this to municipalities, and we need definitional clarity. Now, in Canada, the preamble of a bill is an important tool for looking at its statutory interpretation. I don't want to put everyone to sleep by talking about the tools of that interpretation, but let me just say that the preamble provides an introductory statement that sets out the guiding principles, the values and the objectives of the legislation.
The preamble for the Foreign Influence and Transparency Accountability Act says:
Whereas efforts by foreign states or powers and their proxies to influence, in a non-transparent manner, political and governmental processes at all levels of government in Canada have systemic effects throughout the country and endanger democracy, sovereignty and core Canadian values;
I pause there to dwell on “all levels of government”, and just the impact of that.
Now we have to look at how it applies. The application of the act applies to:
(a) federal political or governmental processes;
(b) provincial or territorial political or governmental processes;
And, essentially, it applies to the governmental processes of indigenous groups and governments.
Now you have to look at the definitions. You go through them, and there's a definition of “public office holder”, but it's different in the Security of Information Act.
We're not covering municipalities here, and we have two different definitions in the same bill about what a public office holder is, so we're probably going to want to take a hard look at that.
If you contrast that with the Security of Information Act, what the bill says is that:
Every person commits an indictable offence who, at the direction of...or in association with, a foreign entity...engages in surreptitious or deceptive conduct...with the intent [to influence a political or governmental process, educational governance etc., etc., with a democratic right in Canada.]
It goes on to define a public office holder differently, and so now you have two pieces of legislation wrapped up in the same bill, effectively trying to do the same thing with different definitions of what a public office holder is.
I wonder why you wouldn't have concomitant obligations for registration. It's two sides of the same coin.
In my view, the SOIA provides the legal teeth to prosecute and punish covert foreign operations, while the FITAA—I don't know if that's what we're calling it, but I'll call it the FITAA—complements this by creating a preventive transparency regime aimed at exposing and deterring such activities through mandatory disclosure and public oversight.
It's a dual approach—deterrence and, hopefully, long-term preventative transparency.
Secondly, we must have the registry in place before the next federal election. You have to again go back to the purposes of the act, like we did at the beginning—“in Canada have systemic effects throughout the country and endanger democracy, sovereignty and core Canadian values”. It's not “might” have systemic effects; the bill says “have systemic effects”. It is a statement of fact.
If you were to meet that purpose, how can you not have it in place before the next federal election? It would be a little bit like bringing a birthday cake for a Saturday afternoon party on the following Tuesday. You will have missed it.
I watched the officials testifying. If it's too hard to do it all at once, just go with the federal government, the federal election. Roll it to provinces and municipalities separately and after. However, you have to get the birthday cake to the party.
Thirdly, it should nest within a broader national security architecture. The defence policy update said we're going to do a national security strategy every four years. The defence policy is going to be updated every four years. We have Bill C-26 that went through this committee, which I was happy to testify about. We have the CSE Act that's due for an update, a review, in 2022. The CSIS Act is now on a five-year review cycle. Bill C-34, on the Investment Canada Act....
This is all coming together. I think the point here is to look at all of the pieces of legislation and all of the various strategies—critical minerals, intellectual property, innovation, research, economic security. Look at them systematically, because adversarial states are looking at them systematically, believe me, and it requires a strategic approach.
As I said at the beginning of this, I've had the privilege of speaking with some of you before. I know how hard this committee works, and I know that you can do it, but I would just encourage you to think strategically and not just do the whack-a-mole thing on one piece of law.
Thank you very much, Mr. Chair.
Liberal
Tim McSorley National Coordinator, International Civil Liberties Monitoring Group
Mr. Chair, thank you very much for the invitation to appear today to speak to Bill C-70.
I'm with the International Civil Liberties Monitoring Group, a Canadian coalition of 46 civil society organizations that works to defend civil liberties and human rights in the context of national security and anti-terrorism activities.
Bill C-70 has been presented as legislation to address the threat of foreign interference. We recognize the importance of addressing this issue, particularly as we've heard in instances where governments are threatening individuals or their close ones in order to repress their ability to exercise their fundamental rights or engage in democratic processes. However, the changes proposed by this legislation go much further.
If adopted, this bill would have wide-ranging impacts on Canada's national security, intelligence and criminal justice systems. As such, it would also have significant impacts on the lives and fundamental rights of people in Canada. For example, providing CSIS with new forms of warrants, granting it extraterritorial reach for foreign intelligence activities and allowing the service to disclose information to any person or entity in order to build resiliency could lead to increased surveillance, diminished privacy and racial, religious and political profiling.
Powerful new offences for actions taken secretly at the behest of foreign entities, including foreign governments and terrorist organizations, while necessary, are punishable up to life in prison. Those could infringe on freedom of expression and association and raise questions of proportionality in sentencing.
The bill would also transform how federal courts handle sensitive information that can be withheld from appellants or those seeking judicial review undermining due process in courts through the use of secret evidence.
A bill of such breadth requires in-depth study. We're very grateful for the work that committee members are doing and recognize the amount of time and effort being put into these hearings which, as was pointed out, are extending long today and throughout the week.
However, we're still deeply concerned with the hastiness with which this legislation is being considered. Introduced barely a month ago, with a foreign interference inquiry ongoing, it will have gone through committee study within a week. This is even faster than the rushed 2001 study of the first Anti-terrorism Act, which was in committee for a month.
We're grateful for today's invitation; however, we only found out about our appearance on Friday afternoon. Colleagues from other organizations who would have asked to appear or submitted written briefs have said they will be unable to do so on such short timelines, let alone develop specific amendments to suggest for Friday's deadline.
Rushing the parliamentary process, supported by a state of suspicion and ardent calls to protect national security, can lead to serious negative and long-lasting consequences. An expedited study also risks missing ways the bill could be improved to better address issues of foreign interference. We are therefore urging the committee to work with your colleagues in the House of Commons to extend your study of this very consequential bill.
Apart from the process of this study, we have some specific areas of concern.
First, modifications to CSIS's dataset regime are only tangentially related to foreign interference. Many of these changes relate to significant problems that the National Security and Intelligence Review Agency identified in a scathing report on the regime. The necessity and potential consequences of these changes remain unclear and should have been addressed during a statutory review of 2019's National Security Act. We would recommend removing these changes until such a review happens. I'd be happy to speak to this further during the discussion.
We're also concerned around the powers of disclosure in section 19 of the CSIS Act. While we understand the goal of ensuring appropriate information can be shared, journalists and NSIRA have raised serious questions about how CSIS has handled the disclosure of sensitive information in the past. Bill C-70 also grants CSIS significant new production order and warrant powers. The changes come after years of the courts admonishing CSIS for misleading them in their warrant applications. Warrant requirements exist to protect our rights. They shouldn't be lessened and especially not while CSIS's problems of breaches of duty of candour to the courts have not been resolved.
Bill C-70 also changes the Security of Information Act, including new indictable offences for the carrying out of any indictable offence, including relatively minor transgressions, if done for the benefit of a foreign entity. This, along with other new or modified offences, would be punishable by either life in prison or consecutive sentences that could amount to life in prison, provisions that are normally reserved for the worst forms of crimes and raise concerns of proportionality in sentencing.
Finally, we also have concerns about the new sabotage offences and the proposed foreign influence registry.
I will finish by commenting on changes to the Canada Evidence Act. Our coalition is fundamentally opposed to expanding the use of secret evidence in Canada's courts under the guise of protecting national security, national defence and international affairs. Introducing a standardized system for withholding information from those challenging government decisions that have significant impacts on their lives will normalize this process and is likely to facilitate the spread of the use of secret information further into our justice system.
Thank you. I'm looking forward to the discussion and questions.
Liberal
The Chair Liberal Ron McKinnon
Thank you. That's good timing.
As you can see, the bells are ringing. You can see them; you can't hear them. That means there is going to be a vote in about 25 minutes.
We have unanimous consent to carry on. I'm proposing that we carry on with four question slots of four minutes each.
Are we agreed to that?
Liberal
Conservative
Bloc
Liberal
The Chair Liberal Ron McKinnon
I was proposing that each party have four minutes and then we would we would adjourn and go to vote.
Bloc
René Villemure Bloc Trois-Rivières, QC
I understand, but overall, Chair, as a second party, we don't get much time. We actually lose two minutes, since we go to the other round at two and a half.
Liberal
The Chair Liberal Ron McKinnon
We wouldn't have a second round unless we wait and come back after the vote and do a second round.
Did you want to come back after the vote and do a second round?
