Public Safety Committee on June 6th, 2024

[Simon Noël]

Yes, it is.

[Iqwinder Gaheer, Liberal, Mississauga—Malton, ON]

I'm not trying to relitigate Vavilov at this committee in the five minutes I have, but do you think the Vavilov standard of reasonableness, where deference is given to admin agencies, is a high enough bar for the sensitive information that CSIS deals with?

[Simon Noël]

My interpretation of the Vavilov decision on reasonableness is the following.

Decisions have to be sound, factual and based on the facts of the case. Decisions also must take into consideration the privacy of Canadians—our privacy. I insist on that and I get involved. Deference for me has a limit. If I see that something is wrong, as I did in one decision.... I refused completely what CSIS was asking. They came back a few months after they reviewed the situation, and they presented a completely other file and I agreed with it.

In essence, to be clear—your question is valuable—what I'm saying is that in law, reasonableness in the way we're applying it takes into consideration deference, but not to the limit of being a servant of the decision-maker.

[Iqwinder Gaheer, Liberal, Mississauga—Malton, ON]

Mr. Chair, how much time do I have?

[The Chair, Liberal, Ron McKinnon]

You have a minute and a half.

[Iqwinder Gaheer, Liberal, Mississauga—Malton, ON]

Okay.

Thank you for that. It is a very robust standard.

Is it correct that CSIS can't conduct certain activities without your prior approval?

[Simon Noël]

Well, my jurisdiction is limited to the jurisdiction I have. I'm reviewing the minister's decision that gives the authorization to CSIS to do certain acts. It is true that if I disagree, they cannot do them. That's in relation to the jurisdiction I have. If I come to the conclusion that the application as presented to me is unreasonable, either they go for a judicial review, which they have not done for 14 or 15 decisions up to now, or they come back and correct their application.

[Iqwinder Gaheer, Liberal, Mississauga—Malton, ON]

This is for the very high-level decisions. Is that right? It is not every decision that CSIS is making that you're reviewing.

[Simon Noël]

No, I don't have jurisdiction over their work on a daily basis. I'm there for the principles that are being applied to the work they have to do.

[Iqwinder Gaheer, Liberal, Mississauga—Malton, ON]

Great. Thank you.

[The Chair, Liberal, Ron McKinnon]

Thank you.

Mr. Villemure is up now.

You have the floor for six minutes.

[René Villemure, Bloc, Trois-Rivières, QC]

Thank you very much, Mr. Chair.

Mr. Noël, you hold the position as Intelligence Commissioner that I'm more or less familiar with, and I'd like to know one thing.

We're wondering here about the appointment process for the potential foreign influence transparency commissioner. The bill specifies that the person in that position will have to be independent, but at the same time, he or she will report to the Department of Public Safety, for organizational reasons.

Is that also the case for you?

[Simon Noël]

I was a lawyer and an independent judge in the past. Now my work is quasi‑judicial, and the Intelligence Commissioner Act specifically states that. As such, I consider myself independent.

I'll explain what I did, Mr. Villemure.

The Intelligence Commissioner Act provides that I can receive briefings. I can't be familiar with all the technology that applies in this world. However, I don't want to fall in line with what others may well tell me to do.

As soon as I took office, in October 2022, I met with Mr. Vigneault, and I told him that, if he wanted to give me briefings, he had to choose the topics and that, if one day I had a decision to make and didn't have the information I needed to make an informed decision, it would be a shame, but I would find it unreasonable. So I put it on the shoulders of CSIS.

I consider myself very independent. The act gives me incredible power. I can tell CSIS to stop doing something, because we don't come to the same conclusions. I can say the same thing to the Communications Security Establishment Canada, the CSE. In that capacity, I'm aware of the importance of decisions. However, if I realize that the decisions I have to make may have consequences on your privacy, or on mine, I won't hesitate. I haven't hesitated to do so, either, so far.

[René Villemure, Bloc, Trois-Rivières, QC]

In the wording of the bill, do you believe that the proposed commissioner position is sufficiently independent? As you just said, there is independence of action, is there not? However, there's still ministerial responsibility with some accountability. Is it sufficient?

[Simon Noël]

It all depends on the person in the position.

I'll be honest with you, I haven't read the exact wording you're referring to. However, I can tell you that, as far as I'm concerned, I don't report to anyone except myself. The Privy Council is the umbrella organization, but I can tell you that I wouldn't do that. My decisions are made on my own.

[René Villemure, Bloc, Trois-Rivières, QC]

Okay.

[Simon Noël]

I feel like someone in my position would act in the same way. I'm looking at how the Privacy Commissioner, Mr. Dufresne, is acting. He's independent. If the parameters indicate that a position will be independent or a little more independent, I'm not sure…. It's the reality on the ground.

To repeat what I said at the beginning, I haven't looked at the exact wording, except to be very clear on my position.

[René Villemure, Bloc, Trois-Rivières, QC]

Thank you. I asked you the question in all candour, but I understand that either you are independent or you are not. There's no such thing as a half measure.

I'd like to raise a thought on the concept of secrecy: the need for secrecy in some contexts, the need for transparency in other contexts; in both cases, the purpose is to preserve trust.

How does that come together?

[Simon Noël]

I've been in the business since 1979. For what it's worth, I've personally I've gotten into the habit of putting up a wall so that I can talk to people. It works. A lot of people are curious and ask me what I do. I've been a judge, and I treat every mandate I've had in the same way.

To your specific question about how to marry these two aspects, I would say that, from the outset, in October 2022, Ms. Dubois, who is to my left, and I, we said that we would publish our decisions and make them as unredacted as possible.

[René Villemure, Bloc, Trois-Rivières, QC]

Yes, your rulings are clear.

[Simon Noël]

That was our test, and it still is. We have ongoing discussions. We try to avoid summaries. We really want to have the exact wording of the decision. I think it's a constant struggle, and we need to do that.

Having said that, I'm sworn to secrecy. I'm of the school that says that secrecy must be protected. These aren't hide‑and‑seek tactics. Lives are at stake. Some of the techniques of operation are worth protecting because you can't go to war—we're at war now, because cyber‑attacks and things like that are a new form of war—with peashooters. We need to protect our information to ensure that our two agencies have the means to retaliate against other countries that don't have the limitations we have in Canada.

The only thing I always insist on is that there have to be bodies, such as the Office of the Intelligence Commissioner, an oversight body, and the National Security and Intelligence Review Agency, NSIRA, the civilian agency that looks at the facts after the fact and publishes reports, and the National Security and Intelligence Committee of Parliamentarians, NSICOP.

By the way, I read their report, the one on the trip to India, which the member took part in. I'm impressed by their work.

This is a huge burden being put on our shoulders. However, I think we're capable of doing that work, Mr. Villemure. I'm telling you this quite honestly, because I've been living in it since 1979.

As for the climate of secrecy that seems to be portrayed, it's disappearing, and more and more information is available. The recent report of the committee of parliamentarians is a prime example.

[The Chair, Liberal, Ron McKinnon]

I'm sorry, but time is up.

Thank you, sir.

We'll now go to Mr. MacGregor, but I would like to advise the committee right off the top that Mr. Kolga has to leave us at a quarter after the hour. If you have questions for him, you should ask them sooner rather than later.

Mr. MacGregor, go ahead for six minutes.

[Alistair MacGregor, NDP, Cowichan—Malahat—Langford, BC]

Thank you, Mr. Chair.

Commissioner Noël, I'd like to direct my first questions to you.

The first part of Bill C-70 makes some pretty consequential amendments to the CSIS Act, notably massive upgrades to the CSIS dataset regime. We've been describing it as bringing an analog law up to speed so that it fits in a digital age. However, I've read the NSIRA report on CSIS's use of the dataset regime and it's littered with comments like this: “CSIS's current application of the dataset regime is inconsistent with the statutory framework”, “CSIS did not comply with the dataset provisions in the CSIS Act”, non-compliant information was held and “CSIS has failed to adequately operationalize the dataset regime.” That's a pretty scathing report. Now I'm being asked as a legislator to fix the dataset regime and give CSIS more powers, but that's in the context of them failing to act by their current statutory obligations.

From your point of view as the commissioner, what can you tell me, a legislator, that would put my mind at ease so that a few years down the road from now, I'm not going to read another NSIRA report that shows CSIS has blown past the statutory limitations I'm being asked to give them here and now?

[Simon Noël]

I deal with datasets that are not threat-related. Anything they would like to have in relation to Canadian or foreign datasets will come, one way or another, to the commissioner's office. That's my part. CSIS collects datasets under its jurisdiction in section 12, section 12.1, section 15—which they want now—and section 16 as long as they relate to the threats they are investigating. Having said that, if they want to collect, they have to meet the threshold of section 12, Mr. MacGregor, which is strictly necessary.

NSIRA did a report. I think it goes back to 2019. If you look at it, it's an earlier report; it was the beginning. I have seen some policies recently on how they operate. I wasn't asked—that's not my jurisdiction—to deal with them, but they appear to be, to me, serious. I'm looking forward, to appease the concern I had when I read this report, just like you, to a new NSIRA report that will update an earlier report and tell us how exactly this will operate.

[Alistair MacGregor, NDP, Cowichan—Malahat—Langford, BC]

Thank you. I appreciate that.

I want to direct my next questions to the NCCM.

I appreciate the concerns you outlined with this bill. From the committee's perspective, this has been a busy week for us as we dive deep into Bill C-70.

I take note of your concern about the definition of the term “intimidation” in the proposed amendments to the SOIA. I had a chance to ask the Minister of Justice a question about that. I don't think I got a direct answer to my concerns, though he said—and I'm paraphrasing—that it would only be for when there's an element of foreign interference, not lawful and proper protests. It has to be something attempting to influence Canada and subvert Canadian interests. I would also note that in the existing SOIA, under section 24, the consent of the Attorney General is needed to prosecute any SOIA offence.

From your perspective, what definition of intimidation would the NCCM like to see put into this bill?