Senate Standing Committee on National Security and Defence (SECD) on Bill C-44, An Act to amend the Canadian Security Intelligence Service Act and other Acts

March 9, 2015
Ottawa, Ontario

Opening Statement by Daniel Therrien
Privacy Commissioner of Canada

(Check against delivery)

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Good afternoon, Mr. Chair and members of the Committee.  I welcome the opportunity to speak to you about the privacy implications of Bill C-44, An Act to amend the Canadian Security Intelligence Service Act and other Acts, which was introduced in the House on October 27, 2014.  I have been following the discussions of the Bill with great interest, and appreciate the opportunity to raise some concerns I have.

My Office has long advocated a balanced, proportionate and measured approach to any proposed legislation, such as this Bill, which affects the privacy rights of Canadians.  In my written submission to the House of Commons Standing Committee on Public Safety and National Security, I included a copy of a Statement that I, along with other federal, provincial and territorial privacy and information commissioners, released in October. In it, we called for, among other things, the federal government to adopt an evidence-based approach in support of any new legislative proposal granting additional powers for intelligence and law enforcement agencies.

I would like to provide a few comments regarding what we see as the privacy risks in need of attention. Bill C-44 seeks in part to authorize CSIS to operate extraterritorially, including through the assistance of foreign states, following a judgment by the Federal Court of Appeal in Re X, 2014 FCA 249. In that decision, the authority under current law was the subject of certain qualifications by the Court to request the assistance of foreign states. Such requests raise the possibility of broader information sharing amongst national intelligence agencies, an activity which, as demonstrated in both the O’Connor and Iacobucci Commissions of Inquiry, can lead to serious violations of human rights. Certain individuals have been tortured following CSIS sharing information with foreign states.

My Office is concerned with the adequacy of existing safeguards to ensure against the risk of such violations. The Charter as applied by the Courts is, of course, an important safeguard. But Parliament, too, has an important role to play, and we think that legislation is necessary to ensure that Canada meets its international obligations in this regard. I would therefore refer to a recent Supreme Court of Canada decision in Wakeling v. United States of America, 2014 SCC 72, which confirmed the importance of accountability and oversight measures to safeguard information shared with foreign states.

Specifically, Justice Moldaver suggested several means by which personal information sharing with foreign states could be protected from potential misuse.   Furthermore, Justice Karakatsanis, writing for dissenting judges, intimated that it is Parliament’s role to determine what constitutes appropriate safeguards, and how they should be implemented.

Absent statutory safeguards, the protection of individuals against the risk of mistreatment would depend on the application of general constitutional principles which have not been defined clearly in the context of information sharing amongst national intelligence agencies. This would likely lead to years of litigation and uncertainty on the level of protection to which individuals are entitled. Among the issues litigated would be the impact of subsection 21(3.1) of the CSIS Act, added pursuant to sub-clause 8(2) of Bill C-44, which provides that the Federal Court may, “without regard to any other law” including, potentially, international law principles, authorize CSIS to investigate outside Canada a threat to national security.

While the courts have a role in protecting individuals against violations of human rights, I would respectfully suggest that Parliament also has an important role in ensuring that the new powers to be conferred on CSIS are exercised in a way that respects Canada’s obligations under international human rights law in general and, specifically, the Convention Against Torture. Clear statutory rules should be enacted to prevent information sharing by CSIS from resulting in a violation of Canada's international obligations.

A balanced legislative approach would also, in my view, include in Bill C-44 measures to make the activities of all federal departments and agencies involved in national security subject to independent oversight. While Bill C-44 broadens the mandate of CSIS directly, and of the Communications Security Establishment indirectly, and while both are subject to independent oversight, there have been calls for several years to remedy the gaps in national security oversight first identified in the O’Connor Commission of Inquiry. In conclusion, I would like to note that with the introduction of both Bill C-44 and, more recently, Bill C-51, which greatly expands information-sharing, as well as the mandate of CSIS, it will be important to examine the suite of anti-terrorist legislation as a whole to address this important issue and enhance the confidence Canadians have in the work of their national security agencies. 

With that, I would welcome your questions.