After The Paris Attacks | Canada: Security and Society- PT.2 & Closing Remarks

After The Paris Attacks | Canada: Security and Society- PT.2 & Closing Remarks


Well thank you very much panelists and
we’re going to now move into our last panel of the day which is a very clear
continuation of what we’ve just been talking about
and this next panel will focus on oversight and information-sharing. We’ve
already had some discussion of that chaired by Hugh Segal from are our friends across the way at
Massey college. We have a very distinguished panel who
will be focusing on Oversight information-sharing and as soon as we’re ready we will begin.
Thank you very much everyone. We are now going to get to the part of the discussion that deals with
who watches the watchers, and why does it matter and are we doing
a good job of it? and I’m what are the issues
that are raised by the post Paris mindset around the issue of who watches the
the washers. We have professor Lisa Austin associate
professor of Law at the center for innovation policy.
Professor Ron Diebert director of the Citizen lab and
professor Ron levy director the master of global affairs
program at the Ignatieff Centre for Peace and Conflict Studies. I will merely in the context of mea culpa layout my 30 seconds worth of bias because we are on the
public record so nobody can then allege I’m not
being properly and fair-minded in view of not having shared with you my
biases. So seven years ago I introduced the first motion with
respect to statutory oversight for our national security bodies and have continued to be on the side of
doing that long before C 51 was ever introduced. Rationale is simple all our democratic
allies: NATO, the United States, France, Germany, the United Kingdom, have some
measure of statutory legislative oversight. They do it with discretion and prudence
they found a way to do it the notion that somehow as a democracy
we are unable to do it just strikes me as odd and hard almost impossible to explain.
Secondly, when I chaired the Senate Committee on
anti-terrorism we did in 2007 and subsequently in 2011
make a series of recommendations which did into very serious
consideration the Air India inquiry and some of its recommendations
on a concern of Mr Justice Major relative to the incompetence of CSIS in transmitting information effectively
to the police in a timely fashion and the incompetence
of the police in dealing in a timely way with the information
they got from CSIS. Hundreds of Canadians died unnecessarily because about incompetence. There was
also a very strong recommendation that there be a statutory basis for the work
of the national security adviser but not just be appointed on the
Executive Council Act Government of Canada but there be a law
indicating what his or her role is what their statutory responsibilities
were.That would of course allow some measurement of their performance against those
statutory requirements and as we sit here we do not have that and thirdly we did take the view and here’s where I suspect I’ll get into
most trouble with people in the room in our last report that because of what MR Justice Major had said CSIS and other surveillance agencies should
have the authority in fact to lawfully disrupt terrorist activities from taking
place now lawfully is a very broad frame of reference and I must say my
initial response to the provisions in C 51 is that by putting in some judicial
constraints on how that disruption might go forward the government has given that
proposition some reasonable thought under the circumstances although not sufficient. I’m going
to ask the actual members of the panel to to respond to a few questions. I’m gonna
start if I may with Lisa Austin I wonder Lisa if you could you share
with us your view on the actual information-sharing provisions in c51 Are there problems with them are the
producing more difficulties than they are producing benefit and are all the problems just
because of lack of oversight or are there other problems as well.
Thanks yeah I mean I want to just walk through a few
things about the information-sharing portion a bill c51 I think it also illustrates the issue of oversight which is you can’t
just talk about oversight have to talk about the sorta underlying norms what’s being
accomplished by this act if there’s not enough protectionof rights and and Kent Roach Craig Farsizi have done a
great jobof looking at this in general then oversight isn’t
going to get you the protections that seem to be claimed for it in the media discussions of this. So what
information sharing portions at this bill trying to do? One way you can put it and this is what some of the rhetoric is that information sharing is is important as we’ve heard there’s been
so many inquiries and Major Commissioner or Arar Commission who
have talked about the need for coordinated information sharing in in the context of terrorism
investigations. Absolutely that’s true. That’s not with this bill is
doing this bill is doing something quite a bit different and quite a bit more so what it isnot about information
sharing between agencies concerned with national
security functions it’s about allowing those 17 recipient
institutions under the Act that are listed under the Act to get information from every other
government institution. This is about collecting a vast amount
information what this is about is authorizing the
creation of haystacks So in the Snowden revelations are around the NSA
activities what we saw were all sorts have Big Data techniques
being used in national security investigations where you collect a whole pile of information this isn’t about
information about anyone under suspicion think about it the US phone metadata
program right that is so controversial South to the border you collect a vast amount of
information about people who have done nothing wrong and are under no suspicion
why because you want to then use big data analytic techniques to figure out people you’re interested in
or other sorts of information that’s precisely why information-sharing
provisions allow here because with their allowing
us for information sharing either proactively or upon request on a standard of relevance which
actually is the standard that was used to to justify the phone metadata
collection in the US on a standard relevance to whether Whether it’s relevant to the functions of
recipients institutions in relation to this incredibly broad
definition as Ken pointed out about activities that
undermine the security of Canada so a vast amount of information at stake
decision about potentially targeting someone improperly like
putting them under suspicion improperly we’re gonna have everyone’s
information any information you share with the government is potentially fair game to be used here what are they doing they’re creating different sorts of information systems different sorts of databases
basically different haystacks to be used in a variety of
ways not only that but I think they’re setting it up up so they can connect those
haystacks including connecting with foreign partners. There’s provisions in the
act that says once that information is shared with one in the 17 recipient
institutions it can be used in futher shared by anyone for any purpose if this sounds a bit crazy
let me say that this is what the Privacy pf Commissioner Canada just said on Friday on in his statement about the act as
well so that’s what it’s doing now what are the protective norms while the
government says the Privacy Act applies okay so you think well there’s some
privacy protection there what does the Privacy Act do in terms of
protecting privacy? It says well when a government I
is collecting information in relation to a program its collect it directly from an
individual it should tell them the purposes for which it
is colleting that information and it should be restricted in its use in
further disclosure of that information you can only do it for the purposes
collected unless you fit within some of the
exceptions and when you’re in the national security
context or even just the routine law enforcement context you really know all the
exceptions the Privacy Act allows for a right of
access in for your own personal information to know what the government
collected about you and to correct for inaccuracies except when you’re in the law
enforcement and national security context so SO it’s already and incredibly deeply flawed privacy paradigm for this context what
does bill c51 accomplish what it does is allow for a particular exception to have
incredible purchase that’s one of the exceptions that says we’re an act of parliment, authorizes information-sharing it’s fair game both in terms of use and
disclosure. That’s what c51 does it authorizes the broad
information-sharing this is not about the extension of
privacy protection it’s about the extension of the exceptions to privacy protection there’s no there
there there are problems with oversight yes
and we can talk about it all I’ll stop talkin we can come back to that but I just want to underscore that
before we even get to the problem of oversight we don’t have any protections against
which we’re going to use that oversight to have any bite into oversight of nothing is still a
kind of a lot of nothing I ‘m gonna ask Ron Diebert who has been probably delving into the technological issues
around mass monitoring and digital communications for a very very long time to his credit
into the credit of the broader universe what is the the
core problem in terms of our signals intelligence
agency CSC what causes you to lose most sleep at night about it about its operation and about the degree
to which it is under any oversight at all I know that
the oversight is a retired judge in a few folks but beyond that what is causing you
great grief. okay so you know so much is unknown about CSC because of secrecy
and of some the secrecy is justified this is an agency that wasn’t officially
acknowledged as even existing until nineteen seventy-four rarely spoken of or acknowledged of in
public before 9/11 before snowden I can say from my own
personal experience I give public lectures with the exception of maybe some
panelists in this event today very few Canadians have heard of CSEC. By
budgetary terms it’s the largest in Canada of the intelligence agencies somewhere
around $600 million it’s got a new billion-dollar
headquarters in Ottawa massive. It has extraordinary
capabilities extraordinary capabilities that have really been transformed since 9/11 but
essentially has a function of the big data universe that Lisa was talking about
some the algorithm capabilities and a new philosophy that
guides all this which in a nutshell we would call collect at
all,is closely allied with the NSA and GCHQ and the other five eyes going back
to World War two and thus has truly global reach so with respect to c51 several concerns stand out for me one is
already terrible oversight made no better probably made
worse that’s one. by anyone’s estimation CSC is the worst to the five eyes in
terms of oversight accountability and review and those mean
different things. You mention this CSC Commissioner it is
a weak type of review its not oversight at all.
Office of a retired judge who by the way whose
budget has declined while CSC’s has grown who issues an annual review that
confirms whether or not the government’s operating within its legal mandate which is not independent and all but is as Wesley Work has called it review inside
the security tent. Not once in all its years as its found CSC to be doing anything illegal which
sounds nice but to me that only raises alarm bells. not once a missing stapler or a few extra
pencils purchased or something like that no it’s always doing very well and
that’s not to say it’s done no good it’s better than nothing but barely the way this CSC is constituted it can
operat and justify what is doing on the basis of secret interpretations of secret laws
such as ministerial authorizations on this basis it can describe what is
clearly mass surveillance of all Canadians as being not in violation of its legal
mandate because it has its own definitions of the terms ‘targeting’ or ‘directed at’ or ‘incidental’ all of which are contrary to common
sense and Oxford English Dictionary senses of the term for example right now you
talked about telephone metadata in the USA but right now in our own country CSC can and
does collect, analyze, use, retain, Bowl committed data communications
concerning communications and non communications
activities that take place electronically in whole or in part in Canada regardless
of their nationality the participants because it defines meta-data as not called private communications
right what is metadata? will just look at this room we are every single person in this room I’m
sure has a cell phone right now and as I’ve used this example many many
times right now even when we’re not using it our cell phone
is emitting a beacon to the nearest cell phone tower or wifi router that
contains the make and model the geolocation and the fact that is my
phone so CSEC right now has all of that
information if it once and it can tell that everybody is in this room at the same
time Those are very powerful capabilities to me
a lot of that is private communications incidently since the Snowden disclosures the
government shown no inclination to correct any of theconcerns
that its critics had nothing remotely close to type reviews and
reforms done in the United States for example and has described oversight as quote needless
red tape given that with CSC were talking about an
expansion c51 I should say expansion of activities in
scope and scale what is it doing the fact that CSC already has very poor
oversight review and accountability mechanisms
should be very troubling for all Canadians that’s one. 2 it would encourage greater
information sharing among government agencies which which
Lisa talks on here I think it’s important to understand CSC has 3 mandates there’s mandate A which is
foreign intelligence mandate B which is about protection
of government communications and mandate C which is about
assistance technical assistance to law enforcement I’m in c51 they’re talking about he encouraging that and expanding that and I think how that works in practice
is very unclear right now there have been incidences of violations that someone mentioned the
justice Mosley case which i think is very important but having looked at a
lot of Snowden documents and a lot of CSC related documents I can tell you there’s
a real blurring of these boundaries and practices and
in within these mandate that’s getting increasingly blurred
what counts as domestic what counts as cyber defense what counts
as foreign intelligence it’s one big basket for them I think all
you have to do is look at the airport wifi story to reaffirm that. Where did they get their data from
the airport wifi story again it was improperly labeled in my
opinion because most Canadians came away with the assumption
that the government had some kinda eaves dropping equipment in Pearson Airport
but that wasn’t the case at all with the government did was they went to
the private companies that own and operate the infrastructure the
telecommunications companies the advertising companies the web
tracking companies which they call special source and they
got the information from them in one manner or another how they get that information
is very important we’re talking about information-sharing among all of these agencies I should also say
that there’s a lot of the information sharing including information sharing of Canadian metadata
with the five eyes and vice versa so we don’t know anything
really except the broad contours of what goes on among the five eyes in terms of information
sharing it’s a black hole the last concerns for me it’s the most
important is this I concern around ramping of up the offensive capabilities of CSC as part of
this idea disrupting foreign terrorist operations
or disrupting web sites I think the last panel touched
upon this but really radically underestimated and kinda sanitized
what it is that we would be talking about here When 5 eyes talk about disrupting cyberspace they they’re talking with
something completely different than legal warrants and please remove this
website just look at the repertoire of what they
have and what our own CSC has in place right now what we know from the Snowden revelations
CSC operates a huge global botnet codename landmark thousands of computers its
commandeered to undertake computer network attacks in
exploitation global capabilities it piggy backs on the very Chinese cyber espionage
networks it routinely condemns. It has a huge
suite of tradecraft codename warrior pride just
google it in the Snowden archives focused on cracking into mobile devices
CSC was party to the GCHQ hack into Belgacom routers its weakened encryption it’s required
the installation of back doors into our critical infrastructure it’s
probably hoarding vulnerabilities known as 0 days so given the wide leeway definition of threats in this bill this
could justify an enormous offenses operations some of them seated
by RCMP sees this or other agencies and it legitimizes an already disturbing
militarization of cyberspace at a time when I believe our interest in the long term
would be much better served by putting effort into cyber defense in norms of mutual restraint in cyberspace though quite separate from c51 I think
we’re already well past the time when as a society we need to think about the proper checks
and balances around signals intelligence agencies in an era of big data but looking at this bill it
takes us in a dramatically different direction
than in my opinion we need to urgently go right now which is in the direction of more rather
than last rigorous checks and balances oversight review and public
accountability over signals intelligence agencies. I want to come at Professor Levy in a slightly different way we saw
numbers the last few weeks that said in one part of Canada 84 of percent the population was very much in favor of the legislation I
think there is in Canada for better or for worse quite a significant measure of trust in
the motivation of our police motivation of our judicial
system however imperfect both may be. Part of what relates if I may say so to the
way in which this legislation is viewed and the way in which the watchers are
viewed is the notion of poor motivation and trust in our public institutions can you give us your
own sense of where this issue should places us that
spectrum were you think we should be headed. Thank you. it’s impossible to follow Lisa and
Ron and discuss issues of privacy and cyber
questions it with any sense of
logic or being able to provide something new to it but let
me take you in a way to a new place I’m gonna push this conversation around
oversight to a question around the complex ecology around what Hugh calls trust in our
institutions as well as the question in that way of information flow in that
part in that process I think that’s the bigger question that’s motivating
some of this conversation and i wanna pullout what Wesley says we just
don’t know when it comes to C 51 I think I wanna
ask ourselves if we just don’t know we just don’t know what the effect would
be we just don’t know what the questions are well then who would do we know
empirically around trust institutions around oversight and Lisa mentioned denaid terrian’s piece about Big Data in the context of
C 51 and he says all Canadians not just
terrorism suspects will be caught in this web well it’s
interesting because Ron suggests there and as as does
Lisa the creation multiple haystacks and the concern that happens when you gather vast amount of data but of course seen
from another lens for another context the seen for
example from the French context where one worries about the amalgam
more so than about Big Data all the sudden the collection of
information about all Canadians in contrast to the
collection of information about particular groups is a very different raises perhaps a
set of very different questions and would regarded politically as
very different so coming to the data that we saw this
morning we see high support for the legislation we see high support for the information
sharing component of the legislation to I hear that they’re not all they’re cracked up to be in some
ways and more than they’re cracked up to be other ways but we see all of that yet
what we do see at the same time when we talk about oversight is oversight over conduct and that’s not
oversight over information its oversight over the conduct of police
of security and that was where we saw if anywhere on
the data this morning some desire for more oversight so
what does that tell us and I want to suggest that there is a a
complex ecology we could talk about this more in questions around trust institutions and
information-sharing the first is that information sharing is not only
about policing but is also about a the protection in a
way of the homologous group on the other side those who are either victims or perceive
themselves to be potential victims of attacks and so if we look at the French
context on january twelfth the French government created a new
position a prefect in charge of religious sites read Jewish
sites and to some extent mosque in a different
status in the letter of appointment meant that entire position of prefect was not about the creation of more
resources those resources were already created and under the BGP rate system which
was increased tenfold after the attacks that position was
there about community intelligence was there about working with leaders
of religious groups in France both Jewish and Muslim it
turns out in order to get information from the
community a possible attacks and to use that information to do what
likely to trust build and so here we had was
the creation of a position there was about community intelligence
brokering of that intelligence not to create more resources but to
change the dynamic between state and its citizens both in this case
about victims of attacks up on topic which to create then
potential bridges between communities through the
flow of information so I’ll leave that as one part of this
triangle will come then to what do we know about trust in
institutions when it comes to information about the group being
policed right to the other side of this and so
we know from the empirical literature is that when do people and this includes
Muslims in New York and London feel trust in institutions around
counterterrorism efforts when will they are they more likely to
cooperate with police when they feel that there’s some sense what’s called procedural justice and
that procedural justice it turns out is not so much about information sharing
and the concerns over information sharing in is in the moment is the capacity in
the moment to have a voice it is the capacity in the
moment to sense that your police office in front of you
is acting neutrally in this some sense some respect and some level of trust.Now I will just a sidebar on this and I’ll close
soon on in regular policing coming to Lisa’s
distinction the legitimacy of the police which would
include the sense of oversight over information
and so on has some a effect on people’s perception
of the legitimacy that encounter and their willingness to cooperate that
tends to wash away when it comes to the willingness to
cooperate in these cases so interestingly when it comes to
counterterrorism it is really the police officer in front of
you the judge in front of you the state agent in front of you that
builds trust in institutions there’s less of an effect for general
sense of legality and propriety it’s there I’m not gonna say it’s not
there but it’s not the dominant theme if we’re thinking about the ecology in this
way of trust in institutions and how that
might work so all this might give us some purchase
on those data last point on Oversight. What we know it
does matter in these is less so judicial oversight
by retired judge who rarely finds a missing stapler but more so consultation and
consideration with groups that see themselves as being
potentially targets legistration in the drafting of the
legislation that is seen as procedurally important
that is seen as building confidence and trust in institutions and so rather than our tendency to think
about oversight in a way on the back end are we going
to look for the missing stapler was the information-sharing proper or
not proper is in the design and where we find a consultation
provides can generate the kind of confidence
they can then lead both to cooperation and efficacy given
those terms as well as legitimacy and a sense of
propriety up what’s going. Thank you. Let me ask the panelists this
question if I can and it’s about our present context in
the broader history of watching the watchers and has
been either part of not part of the Canadian tradition when the legislation was brought in after 911 by the Cretien administration
there are several folks who went to the officials including the deputy
prime minister Mcclellan and the deputy minister of Justice to say if there was ever a time to bring in a
piece of legislation notwithstanding the Charter of Rights and Freedoms this is the time because the
rights will be impacted there will be deep problems and at least
you’ll be sending a signal that this is temporary and we know that its temporary the response it was
given universally was well actually this is completely charter
proof don’t concern your little mind about it
it’s gonna be just fine. and then a whole bunch of us with
the help of people like some of the panelists that we had earlier today spent a good part in the mid 2007 Kent Roach and Wesley Work and others redrafting that legislation on renewal to make it
consistent with the decisions that were made by the Charter under the Charter of
Rights and Freedoms because the document was substantially not charter proof and
various parts of it were struck down by various courts are we not in a sense prejudging the way
in which this legislation will ultimately operate by assuming that it will survive any
legal challenge is it not realistic to assume that
almost within the first 12 months about you have the acting proclaimed
there will be legal challenges and those legal challenges will begin to
define them prescribe the way in which that legislation
operates or is that a naive assumption on our part which currently
gets away from the core question up trying to make the present draft
before us as perfect as possible who wants to start Lisa I think you should start I’m happy to start I think one of the problems with these claims of
legislation being charter proof particularly in this area and particularly with the
current government is that they seem to operate on the assumption that unless
there’s a clear red light that it’s a go they turn what is gray into a green light actually there are lots of things in the
legislation that I think you can make very strong incredible that are not
compliant with the Charter there are other aspects of the proposed
bill c51 that might be more in a gray area with
respect its compliance with the Charter if you say that actually its charter
proof in its incredibly narrow sense that seems to be operative on and
currently then what you do is you put the burden
on other groups to mount lengthy costly challenges through the court rather than
having the discussion up front about what our civil liberty
should look like in context which you know connects with
what Ron was saying about the front end design and how we feel about com legislation
institutions and actions in this context.
Interestingly enough whenever the Charter proof assertion is made by law officers of the
crown parliamentarians of all affiliations say would you be good enough to share with us your opinion that you gave the minister
about why this charter proof course that’s advice to cabinet and can never be shared and in fact that it was Janet Hubert who
was head of political studies at Queen’s some years ago argued in a very thoughtful um monograph
that there should be a standing committee on the Charter of Rights in every
legislature in Parliament to which every piece of legislation has to pass so at least the public will understand
in some detail what the issues are we’re not surprised that idea has not
been taken up by any of our legislatures go ahead Ron. So this is utter heresy and I apologize to all of you in the
room but we we often mistake a well I think the example procedural justice
is a good one there’s a notion we have that if but the public understood the Charter
questions that would in fact be the the decisive factor I’m not as convinced partly we know from the empirical data on
policing that the public may have wildly
different perceptions of the legitimacy of the criminal justice system and legitimacy of the police and so the
public is very capable of holding two thoughts at once
who knew and it can hold the thought that this is
a good idea and hold the thought that it may or may not be charter proof
and may not seek to always reconcile those things and I I only worry by the sort of the
the the alternation we get into which is a
desire to say gee whiz you know they are charter problems and thus
it will be seen as illegitimate and I’m not entirely sure those things run together
and I’m totally sure and I suspect actually that the data we
saw this morning support me on that implicitly Ron can we talk for a moment about
Privacy cuz it’s clearly at the center over concerns which you shared earlier
about the degree to which metadata and other issues can be mined
without any significant oversight or with rules are very vague we now see organizations like Google and others in
engaging to allow to make sure that their client base is
able to make you serve their facility without
having it in some way broken into by government and other
affiliation so that their privacy the privacy of their client base can be
protected which is the gym we have seen private
sector engaged in some circumstances not always
outside the law but not necessarily completely within it in the sharing of information mega data
big data and various other things for purposes as nefarious as marketing and product design
and all the rest how do you make a distinction is a
distinction between the invasion of privacy here about the
purpose for which it’s being invaded or who’s doing the invading because I
think from the point of view the average Canadian knowing that their bank data might end
up in the hands of the credit agency without them having known or in the
hands of an insurance selling piece of a bank without them knowing might be as
troubling as the fact that they’re using wifi at Pearson on their way
down to the Caymans and somebody was able to monitor that is
part of a large data set you know that’s a very good question I think you just within a span few short years really within this decade
we’ve gone through this extraordinary change in how we
communicate in as individuals we leave this enormous digital exhaust everywhere we
go that doesn’t disappear it doesn’t just go off
into the ether it sits on computers and servers and cables routers and so on and all that is owned
and operated by the private sector what the private sector does with all
that data is very important in our often has important legal components to
it in terms of the conditions that we
attach to the use of their service is what we expected of them as stewards and custodians over data and I
wouldn’t minimize that at all because I’m there are enormous privacy violations and really poor
practices in the industry I could cite one after the other that
would horrify people at the same time though I think there’s
a categorical distinction between when the state has access to that data and the private sector has access to data
and you do with it and here I’ve always argued not to to
minimize privacy advocates but for me the big is not
concerns about privacy per and maybe that’s not the right way to frame it because people are acccustomed to giving
away so much their privacy as per their daily lives
is about the potential for the abuse of power if that power is not properly checked
and balanced I think from the perspective of
classical liberal political philosophy I’m not a lawyer not a parliamentarian I’m someone who comes from apolitical theory
background I think about it in terms of the classic
architecture what’s required to prevent the
concentration of power in the hands small people and and what type of abuses
that could lead to I was recently returning from a trip and
I was there is a HBO documentary on on the Nixon on some new Nixon tapes and I think have said this before I think the
watergate episode should really be required study for students just to see how recently you have such horrible
abuses of power it including the machinery of government
and the intelligence apparatus by one person iand a small group of people surrounding this person
you know that’s not to say it’s going on now but if you look at the the system we
have in place right now in terms of say review and accountability in my
opinion is structurally flawed as a liberal democracy and that’s a big
problem when you look down the horizon where the vast majority of the world’s
population is coming from weak state’s fragile states authoritarian regimes how are we going to make the case for the protection of basic
rights and freedoms down the road if we can’t even get our
own house in order when it comes to oversight and review CSEC CSIS and so on I think we we need to the discussing
something much more radical than something like you SERC or the CSC
Commissioner or even parliamentary oversight of the type
that you and others have talked about in
Ottawa you know I don’t mean to insult Ottawa as a city
but whenever I go there I feel a little creeped out like this is a city that’s full of government people
who speak to each other and it’s like a different world and I’m I think really need some typeof outside accountability outside of the
Ottawa culture something radical in terms it maybe an obuds officer some type of Commissioner that’s not
part of that culture because we’re living in radically
different times in terms of the volume of communications that are out there and what could be
done to abuse it if you don’t watch watch the
government properly I’m I just wanted to echo a little bit about what what Ron is
saying I agree with him about it he abusive power issue I think that that’s always actually
been part of the analysis in privacy law particularly under the
Charter but I think that part of the issue is
trying to figure it what is an abusive power or what is a violation of privacy
when you have these big Data techniques the impact of any particular collection on any particular individual
looks very minimal and it might be the kind of thing that you say well I don’t
care if someone knew I was connecting to the
wifi at a Pearson International Airport and what I
think we need to shift to and what I think the oversight
needs to connect with is that what we’re doing with our
information systems were dealing with data collection of a lot of information is being collected for
particular purpose used in particular kind way, shared and connected to other databases with
allies in general how are these set up,
how do you assess the effectiveness of them as systems how do we catalog on that kinda
broad-scale what the overall impact on privacy and
civil liberties in how we think this is consistent with free and democratic
norms how do we balance those how do we audit
is these systems how we reassess them and how do we avoid a kinda
unilateralism in making decisions about them to the extent that that we do. Are just gonna have the governments interpretation of their
effectiveness do have some sort external review this is technical it’s
legal it’s a number things but we have to be dealing with it on the system-level when you get c51 it’s not clear from the face of it that that’s what they’re doing it
just those of us who’ve been watching what
they’re doing as various revelations come out and then read the bill say oh that’s
what they’re doing um the government’s not being upfront
about this and they’re not building in anyway to track this and and look at it and I think you cant get
at the privacy or abuse questions unless start doing
that. I’m struck and Lisa and Ron would know more
about this than I would but as you moved as one moves to Big Data
techniques one moved to seventeen organizations in which one would share data with the collections I think I’m
going to take back what I said earlier in terms of there being no amalgam no no accumulation of a
group it’s just the group are presumably are now
created inductively from the data and so there are the group of people who
have these kinds of patterns well that doesn’t easily fit with our
ideas about minority communities being policed
for instance because the group is itself now created inductively rather
than from ethnicity or from race in that situation I would then I’d like to
actually Idon’t want to usurp your chairship I’d like to hear on thinking on what
a review would look like because I know what review would look
like in a situation of domestic policing where you have let’s say a post
Ferguson world increased attention to civilian review
we know what is implicit there and explicit which would be civilians that look alike the
population being policed but once the population being policed is
a collection thats produced by Big Data techniques each time I’m not
entirely sure what that would look like have a representative review panel if
the the collection for people are changing their change in a sense
through the inductively that a fair question?Well I my opinion is pretty basic I think you
need to have something more than a retired judge that issues annual review that is really him you know something that is is is done for the benefit of the
minister defense and given to Parliament in redacted form you need some kinda proper review that is done independent of the security
tent itself first of all I think you need meaningful
oversight because what the CSC Commissioner does
is not overssight thats review so what does that
oversight look like well I think we can at least look south
the border in terms that the type mechanisms that are in place
there in terms of oversight judges you having to go and something so basic
as a warrant being important to the process of
collecting information when it comes to big data I think
may be there ways in which the very algorithms
themselves could be used to provide some sort some some sort of checks and balance. Again I think that some of that might
exist in in the NSA’s capabilities that we don’t
necessarily have on our own you have to really go through the Snowden disclosures and of course others are privy to that stuff that I’m not. I
think that like I said before there has to be
some extra teeth that comes outside of the culture of Ottawa that is separate from from the the system that exists there in the culture there because I
feel that it’s it’s very much inside bubble and in the same people go
through that I think we need to rethink that somehow I’m not expert enough to know what that
looks like other people can probably come up with better ideas I
just know that when you look at the accumulation of material that’s been disclosed just
about CSEC mean spend a good day a lot has been released from the Snowden disclosures just spend the day looking at what our
agency is capable ofand what it can do I think I would really surprise people
and this is not it’s not congruent with what the explanations are publicly and the
defense of it that are given by public officials it’s
an entirely different it’s like a different universe they’re talking about. How can you collect
all meta-data of all communications
in Canada and not collect private communications as
you’re talking about before the type of power you have at your disposal to analyze all that data and say it’s not targeting
Canadians simply because individual Candian is not selected out I heard
the same argument from former GCHQ director he admitted at
least yes we collect everything but it’s not surveillance until
an analyst looks at it right that’s their definition context for a moment. The americans have pretty intense oversight they also in
those committees have budgetary control the difference between the Americans the
Canadians is if the Canadian government is majority government it does not require particular
parliamentary committees to give them the financing they need to
run the security agencies because they will have the numbers to get there budgetary estimates through
a regular basis where the american context part of why they do have to listen to
these oversight group because they do have significant budgetary control very agencies they oversee all our allies have this oversight they have a way of watching watchers
however imperfect it maybe and it is rooted in their democratic
systems none of our agency heads not the head of CSIS not the head CSEC not
military intelligence not the RCMP none of them have ever said they
don’t want parliamentary oversight or civilian
oversight quite the contrary they’ve all said providing its prudently
done we think it’s a good thing our allies do it when the present Prime Minister was
leader of the Opposition and a proposal came forward from Martin
government for parliamentary oversight he supported it. What is it in your judgment what do you think you can put your
mind in the head whoever is giving any particular Prime
Minister advice why is it that they be saying to to make them believe level of
parliamentary oversight of any kind would be somehow deleterious to the
public interest mean what is if you assume for a moment
on the motivational side that any prime minister any affiliation
is trying to do what he or she thinks is right for the country they may be wrong but they believe they
think they’re doing something that’s right for the country what is the kind of advice you will
understand that they would get say
here’s why you do not want oversight. I’d rather hear your opinion
on that. My opinion clearly had zero impact I will say this I think the notion that
its bureaucratic red tape is is a complete kinda filler for more substantive discussion
around oversight but if you if you if you expect that
they’re saying taht with some measure conviction there’s got
to be some reason why they’re saying it. Do we just think it’s
it’s a desire not to share that part the security management system with
other parties in the House of Commons despite the fact that in the United States and France and
the United Kingdom and Germany and Italy and Belgium they do that and Holland they do that
why would why would they think that Canada has to
be an outlier on the issue parliamentary oversight involving
multi-party process what would be the benefit in someone
taking that what appears to be in my view narrow and not very constructive view I
cant figure out what it is I just don’t know what it is I mean isn’t
there an obvious answer that it’s the as long as you can go without unnecessarily
tying your hands why would you do anything.
in the the polls seem to support that Canadians are not really
too concerned about the Snowden disclosures unfortunately, so I push for it. when you look at how various oversight
bodies the british committee of
parliamentarians on national security the committee’s in washington responded
to the metadata issue they all came out in defence of the
security agencies have been engaged in metadata work they all said this has been reviewed by
us I think their understanding and their appropriate approach was substantive but it was also a lawful and we believe
it was true they’re also losing that measure of defense for some of the things that will be done which by
definition will be controversial anyway nobody can figure out why
they’re so stupid can can I ask each one of you now
offer perhaps a final reflection on where we should go from here on the watching the watchers proposition
Ron I’ll let you start. I would I would re frame that debate to be one about efficacy rather than concerns over privacy partly that comes that’s strategic but that
comes from the data that we saw to begin with and that comes when we know from the
psychological evidence that if we talk about creating a climate of legitimacy that this
would likely produce more cooperation including with people from the very
group who may themselves see themselves as
the target ofincreased policing efforts I think that is is a winning point across the
board and it would create the kind of climate that would then
produce enthusiasm as Hugh I wondered why
wasn’t there also then for civilianoversight of
some sort yep subject to my earlier caveat
about there there is no sort of protection for
things like privacy and information sharing provisions here we need to take that
into can seriously layering oversight on top is
not necessarily going to get you very much by if you wanna talk about oversight I
think if you’re going to share information with 17 recipient organization you need
to understand that only a few of them have any kind of
review that happens maybe have the CIC says the
RCMP but there is a number of these institutions where there’s just no
oversight of any kind and so something kinda
integrated overssight their has to happen parliamentary review for sure but I
actually like Kent Roach and Craig Farsizi super
SERC proposal because there’s a lot that’s
very technical in this to I’m and having a standard kinda body
with more expertise would be very useful I think we we need our a
radical overhaul the holes oversight review and
accountability process with regard to all the security
intelligence agencies in Canada starting first and foremost the CSC
given that enormous power and capabilities that
they have that have gone under the radar for so long behind a black curtain of secrecy it’s
time to open that up and subject it to a mature debate about
whether proper limits to that type of power in the liberal democratic society unfortunately with with this bill we have 21st century threats but
we’re designing nineteen forties era security services to deal with them and
I think that’s not the way to go we’re better than and in Kent Roach said
something about justice o’conner the idea you have this compartmentalization
review and oversight mechanisms across all these different agencies that needs to change I think we need to
address that and hopefully events like this will help prompt that would you all please join me in thanking
our panel well thank you all very very much it’s
been a a very long day for some of you there
been people have been here right from 845 this morning and I have
been asked to do a set a closing reflections my first
reflection is to say thank you for those of you who have I stuck with us
throughout some very very detailed and I think exciting conversations I
also of course wanna thank my colleagues from the law faculty especially dean Edward Iacobucci for
the collaboration that we’ve had in putting this set of panels together I
also want to stand up for retired judges some are pretty feisty and I
i don’t know i I think we gave me a a bit of a rough
ride not seriously on the review front I’m a very much aligned
with the worries that people expressed I’m not going to try and provide a
summary today’s discussions they were too
complicated too rich I instead I’d like to just provide a few I
summary reflections on some themes that I think emerged in the conversation I first I was
delighted that we started with a good critical
approach which didn’t even accept the premise of
the argument that after the paris attacks was a moment
of inflection there was some debate about that we
assume that I think in putting together these panels I and it was suggested that
perhaps it was only an inflection point for some Western countries but didn’t
have a broader impact it was also suggested
that it with us a misconceived inflection point the
question was asked why didn’t we respond in the same way after Anders Breivik killed young social democrats on an
island I in off Sweden very fair
questions I think I will say we had exactly the same set
of questions after the attacks of September 11th was this really a changed world claims to the positive and to the
negative I’m gonna suggest that I think it is an
inflection point for 5 reasons first up there’s no doubt that the
attacks in Paris and their immediate aftermath generated widespread public reactions typically in Western countries secondly
I think that the attacks have opened up
arguments for increased surveillance for criminal
law and security responses by governments I this is not new but I think that that discourse has been heightened thirdly I think it’s fair to say that
these attacks have prompted fear in minority communities in Europe in
particular particularly Muslims but also Jews this whole question about a balancing at liberty and security which was that
noted as as a typical a western response presupposes that we’re balancing on
the backs of certain people I’m not gonna bear very much balancing
on my back but if I’m a young Muslim especially a
male Muslim I might be bearing quite a lot about
balancing and so the question of how equality fits
in to that discourses I think important I think it’s also an inflection point
because we are encouraged to take a longer view perhaps not to see this is a turning
point but as an accretion ratcheting up pressures on our society to respond in that goes to the last
point which i think our media panel captured well but came up in a number of
different elements of the discourse today an
exacerbation of the tendency to require decisive
action for the media to report immediately and to leap to analysis and I think it was commented
that as soon as that happened there were huge generalizations that
became very difficult to sustain and so we often get wrongheaded policy
responses as well now having said all that it is
absolutely true in this is another theme it’s complicated it’s hard to tease out
the effects up these attacks from other elements of social pressure from other elements of social economic
and cultural evolution it’s very hard to understand cause and
effect in Europe especially in the UK and
France it was pointed out that there are
long-term effects of colonialism who is it that actually immigrates to
these countries what are the education levels what’s the
receptivity to integration there’s a lot of language then about
root causes languages that’s very hard to tease out
there are so many different root causes economic political social
often the interplay one with another there’s
not a lot of discourse about that in Canada perhaps a a greater degree of
comfort on immigration policies over time but I do
think the that those tough sets of interrelated questions are definitely
preoccupying our friends in Europe notions of radicalization also highly complicated not entirely due
to local conditions it was pointed out there are global extremist movements and these are often
beyond the reach easily of local interventions because of the power out the Internet and the
images that can be conveyed we had questions than that we’re also
complicated about the role of the media in golding groups accountable we suggested that we are pretty
comfortable in holding politicians accountable but not so comfortable in
holding community leaders accountable is the media afraid not just potentially of insulting
communities but actually afraid of the response that may be generated physically afraid
there may also be in that it was suggested an erasure of certain categories of people because of the media’s
interest in getting that tough reaction let’s say from an
imam rather than from a secular Muslim woman how do we go about dealing with that we
also had a debate about how we understand the very notion of a commitment to civility in public
discourse are we in the way we craft our arguments
actually setting up and un civil alternative the not us those who were of course not
civilized is there room for debate around what
sensible and fair minded in a set limitations on free speech we
had one proposal for a harm based principal
read in specific contexts and the specific
context point came up again and again and again throughout the day no general
theoretical approaches are likely to be successful simply trying to declare a balance
between religious rights and free speech is not likely to take
you very far because people experience those balances differently if you’re a religious minority you don’t experience that balance in the
same way as a member of the religious majority or a non religious person power differentials really matter we
were told again and again it was also commented that in the west we’ve had
a privatization of religion which actually doesn’t make
sense for some religious traditions which are
essentially public traditions so it seems to me that you put all of that complexity
together and one of the elements that we have to try to address is not so much the directs effects of the attack but the effects of our responses to the
attacks are we unintentionally criminalizing
certain forms of religious belief are we sometimes potentially forcing people to reject faith or be suspect is there space left for what one
of our panelists called a critical middle in western islam itself was also pointed out that in the promise
of liberal democracy and the promise of equality which we
hold out to immigrant communities in particular if we fail in delivering by failing to integrate economically
socially we may be setting up deep sources deep
pools of anger claims of hypocrisy in the second
generation which might help to explain some of
these cases people who look like they’re more like us finding radical Islam to be attractive it was also
said that is very hard to disentangle national or domestic and global
approaches especially if we treat everything as an undifferentiated war on terror do we
care that the response within Canada might have to be different from a response in Iraq to access the
point about Isis raises a further observation that
it’s becoming particularly difficult to predict the
effects of Jihadists who seek to control
territory this is a new phenomenon in some ways in the global terrorism context so there’s
a blending of the role up the territorially
rooted almost a traditional state system and the remarkable ability of Jihadist
website et cetera to penetrate into every cultural context I think all of this a leads us to ask some very hard
questions about our more immediate responses within Canada and
that was very much the focus of parts of this afternoon we might and we were reminded up our own failures
in the past internment of Japanese German Canadians we were reminded as well of some of the
excesses at the time out the implementation of the war
Measures Act the role of the RCMP we were reminded about the more than 400 people who were
arrested many with absolutely no charges ever laid and in fact no real data linking them to any risk so Canadians are not exempt from this
question are we going to look back in 10 years or
twenty years or fifty years and ask whether or not we’ve made the
right choices even within bill c51 we heard about a wide-ranging ban on speech promoting
terrorism offenses in general perhaps a a worry that this will have a chilling effect
that its overreach. speech which actually poses no threat may fall perversely
within the context of this legislation we heard
about the broad definition have security interest in the
information-sharing components of the bill a very ill-defined concept we were told
we heard about the potential to violate charter rights to disrupt activities with judicial pre authorization
that’s quite a dramatic decision on the part of legislatures
potentially so there is close we were told to a blank
check here also a ramping of the security
service powers to disrupt more generally then we were treated to a discussion
around the wide availability to security agencies of data
collection techniques from across government very expansive provisions that allow for
people’s data to be collected from wherever it is entered into a
governmental system and then to connect that data with
foreign partners privacy protections we were told
were actually largely exempted from that data sharing. finally on the immediate issues we had a good
discussion I thought about weak and ineffective accountability or
oversight regimes in the Canadian context
generally for our security services we also heard that we haven’t had official
enquiries into for example what happened in Ottawa everything remains within the secret purview of the
security services we heard about the need for sunset
clauses which of course do exist in current legislation and are not included in the new
legislation or even legislative review so it was pointed out
that this isn’t omnibus piece of legislation which
affect many other pieces of legislation and yet there seems to be an assumption that
we’re gonna get it right first time out I would point out that Canada’s
generally weak on legislative review mechanisms when you compare us to
other parliamentary democracies and to the United States and this is an
interesting phenomenon here it was pointed out very forcefully we don’t have the capacity for oversight
that exists for example in the reviews parliamentary
committees within the United Kingdom our committees are not empowered they
have no money they have almost no staff and a can’t
actually ask the hard questions that I think we would all say should be
asked in a democratic society no matter what you believe is the right balance
ultimately and I think that was made clear by our
panel’s. finally I do want to point out some areas of potential hope because
there was a lot of pessimism today quite explicit pessimism. First I’ll
say I think that their is a widespread
acceptance that there are genuine risks that we face as a society there
are people who want to damage our society and there are
people who feel particularly vulnerable Jews in Europe
right now express that vulnerability and not just
in France but in at the United Kingdom especially.
we’ve heard that a majority of Canadians seem to feel a sense a vulnerability so
there is at least a consensus that there is risk I would also say that
there’s a consensus that we heard today at least
that the principal of quality of citizenship is important to Canadians. now a quality of
citizenship does not mean absolute uniformity it simply means that
we are trying to create a society where citizens are not fundamentally treated
in different ways because of their categorizations I would
say there was also a fair amount have consensus that we do
need to move beyond tolerance to genuine inclusion in our
societies economic social and cultural inclusion
and ever-expanding notion we I think came
through in many of the presentations now we also were told we better ask some
hard questions about means not just about ends. in other words yes we accept there’s
risk yes we accept that we’re trying to achieve greater
security in that risk environment but we better
think about what the means are in how we respond and in many ways that
was the whole afternoon’s discussion are we getting
the means right I think we also heard that we need to give ourselves sometime
to learn some lessons of history even if recent experience we didn’t get everything right in the
last major omnibus piece of legislation in relation to
security we’ve learned from the Senate review committee in the
United States that that country didn’t get everything
right post September 11th and the creation have expanded security powers and we
heard clearly we heard happily after the war Measures Act there was an
inquiry which told us some other things that happened with the
RCMP we have learned but we don’t always apply those
learnings very well because sometimes we don’t give ourselves the time so at the end of the day we clearly are facing an extraordinarily
complex set of issues we didn’t all agree on
exactly what the right responses would be but I do think that we did trace out
some lines if carefully pursued that could lead us
to a better place then we are potentially facing right now
finally I do want to say that I give the image of the day award to Ron Diebert I love to the notion of
digital exhaust and the idea that we all are emitting digital exhaust constantly in our lives now and that it
can be picked up tracked, bundled, sold, and can result in reductions to our sense of privacy and liberty again I
want to thank you all for being here today and going to turn the podium over to my
colleague dean Edward Iacobucci to say a final
word on behalf of all of us-thank you very
much. Steven said it it’s been a long
day a rich day and so I will I will be brief on I just wanna start with a couple
remarks on Stevens remarks first second his concerns about
the bashing of retired judge is something that I feel is a filial obligation
with father who who is a
retired judge but secondly I wanna but Stephen began by saying he wasn’t
going to summarize since it would be impossible summarize the day’s content and then he
proceeded to provide a masterful summary of the day’s content but to the extent
that he did not provide a complete summary of
today’s content I think it’s because as a colleague said
it’s complicated we were in some
ways inspired to host this a conference and
Stephen approach me about doing so we thought about some other successes
have other events like this including one shortly on the heels of September 11 where there was a conference
organized around be a bill c36 on the contrast between at event in this is that we thought it would be very
important to take a multi-disciplinary approach not just to focus on the legal
questions at the bill race but the focus on a broader questions that certainly the Paris
attacks themselves raise and the aftermath raises so one way to think about is that
there that the premise of Paris being a
motivating event that was challenged early on and
I thought in an interesting way I think one can
also take issue with the premise of the multi-disciplinary
approach as well and so I think it’s very clearly
embedded in the way the program was set up that
we think this is a complicated question simple answers either with the law or either with developments with security
developments in military are going to be solutions here and the
program I think reflected that so I’m and I’m delighted at the kind of cooperation across the University
this conference pull together but I’m also delighted to get
contributions our media panel being a high point to this but the contributions
from Hugh Segal and others to come in and
bring into the university their perspectives hard-won out there in the real-world as we
sometimes put it so I think it’s been a very successful
day so thank you to the team at Munk thank you to the team at law who
helped organize it I’m there will be a volume put together
panelists thank you for your contributions now the written work follows we expect
that within a week or try to put this book together in for academic turns lightning speed for journalist terms a luxurious time frame and but
look for that very soon at from the University of Toronto Press so thank you got thank you again to our
panelist our organizers and thank you all for being here thanks

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