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Bill C-44, An Act to amend the Canadian Security Intelligence Service Act and other Acts - Second Reading

Hon. Serge Joyal: Thank you, Honourable Senator White, for your presentation of Bill C-44. Would you accept a question? (Senator With speech)

Senator White: I would, yes.

Senator Joyal: Honourable senators will know that one of the main sources for the drafting of that bill was a decision last spring from Justice Mosley of the Federal Court. Judge Mosley is not unknown to some of us. He was a former deputy minister of justice. He appeared repeatedly at the Standing Senate Committee on Legal and Constitutional Affairs when he was acting in that role. Since he was elevated to the Federal Court bench, he has specialized in issues related to security, so he has a very high reputation. He is highly regarded in Canada by all sides, all those who study security issues.

When I was listening to your presentation, you repeatedly stated that the CSIS Act confirms that CSIS has extraterritorial authority to lead its investigations. But Justice Mosley, in his decision, qualified very clearly that in the CSIS Act as it stands, before it is amended by Bill C-44, the bill that you introduced today, there were limits and that CSIS was trying to circumvent those limits by informing the court in the case that I refer to in a manner that was harshly criticized by Justice Mosley.

How do you reconcile your presentation of Bill C-44 and the extraterritorial capacity of CSIS with the comments that Justice Mosley made in relation to the case that triggered the drafting of Bill C-44?

Senator White: Thank you very much, Senator Joyal, for your question.

I believe Bill C-44 is actually meant to clarify for the courts — and I'm not suggesting for a moment that we want to end up back in front of those courts — what we believe to be the lawful authority of CSIS under the CSIS Act.

As you state, Mr. Mosley is well known, to myself included. Certainly, in his present role, he has indicated that he felt that CSIS had extended beyond what the CSIS Act gave them, and I agree that that is what I believe Justice Mosley said as well.

I think Bill C-44 would allow us to clarify what this government believes the CSIS Act is meant to allow. I would anticipate that we will find ourselves back in front a judge, or others, arguing again that we have made the changes necessary to allow for those acts to take place, but I agree with you that I think Bill C 44 is written in an effort to try to at least — I won't say correct — explain better what the CSIS Act was meant to do.

Senator Joyal: I don't want to become too legalistic with honourable senators, but when CSIS conducts its investigations in Canada, it is compelled to abide by Canadian law, that is, the limits that the Charter of Rights and Freedoms imposes on any government agencies that conduct security operations. When CSIS conducts an operation outside of Canada, it's, say, in a country where there is not a robust protection of human rights like we have in Canada. Thankfully we have those kinds of protections, because I think they maintain the right kind of ethics that we should follow in any kind of operation even though it is for security. And the police forces would request that also because it maintains the reliability and the trust of Canadians in their security and police forces.

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When CSIS conducts such an operation on a Canadian citizen abroad, did you consider the kind of limits that CSIS would have to follow, say, in a country where there is minimum protection of human rights? I could, of course, cite many countries. I'm sure you also have many in mind when I mention that.

However, in your opinion, would CSIS be compelled to apply exactly the same kind of responsibilities in relation to the recognition and the protection of the rights of Canadian citizens it would be investigating abroad, in a country where no such protection exists?

Senator White: Again, thank you very much for the question. My expectation would be that CSIS would not look at adopting a low watermark in another country, but rather would adopt the watermark we have already set in this country. I think the expectation is that we wouldn't be obligated to meet the expectations of another country that might be greater or different from ours, but that we would adopt the ones we have already adopted in this country when we act in this country for the sake of Canadians.

Ultimately, I would expect that CSIS operating outside of Canada in relation to Canadians would utilize the same level of requirement outside this country as it would inside the country.

Senator Joyal: What if CSIS wanted to — and I will use a word that I don't like to use — "subcontract" part of the operation with another national investigation force, which of course would be bound by the national law in that country, which would be much less compelling than the one that CSIS would have to follow in Canada? Do you think the bill should be clear about that aspect of CSIS's operations when CSIS is outside the boundaries of Canada and could, in fact, bypass its obligation in relation to Canadian law?

Senator White: I will use your terminology. The use of subcontractors may change who does the work; it wouldn't change the responsibility of that work.

Having been involved in using agents in this country, allowing someone else to act on your behalf means they're acting on your behalf. I don't think that would change, actually. And I believe the CSIS Act is clear, but if it's not I'm sure we will have a longer discussion in the National Defence Committee surrounding that. However, my expectation was that you may be allowed to subcontract the work, but you could not subcontract the responsibility for those actions.