During its study, the Committee heard various viewpoints on the reasons for enacting SCISA, and on its usefulness, benefits and effectiveness. Various witnesses considered SCISA to be useful and helpful for sharing information. However, others felt it was not clear how the Act enhances the national security framework.

 Based on the evidence heard, this section of the report documents the major gap between the views of federal institutions and those of numerous witnesses regarding SCISA’s role. While federal institutions maintain that SCISA is useful, many witnesses argued that there is no evidence the new powers granted by SCISA are needed.

3.1 Views of Federal Institutions on the Role of the Act

A number of officials from federal institutions described the benefits of SCISA and asserted that it gives them an important new tool for sharing information effectively and improves national security.

Mr. John Davies of the Department of Public Safety and Emergency Preparedness explained the reasoning behind SCISA:

Back in 2004 the Auditor General examined how departments and agencies work together to investigate and counter threats. Then, and again in a follow-up report in 2009, she found that departments and agencies were not sharing intelligence information because of concern with violating provisions of the Privacy Act or the Charter of Rights and Freedoms, whether this concern was valid or not.

There were a number of commissions, and I won't go through the details here: in 2006, Justice O'Connor; in 2010, the commission of inquiry for the bombing of Air India; and finally, in 2011, the government of the day committed to an action on the issue of information sharing in its action plan on Air India flight 182. In 2015 that commitment was fulfilled with the introduction of SCISA.[33]

According to Ms. Ann Sheppard of the Department of Justice, SCISA addresses the concerns of public servants who feared breaching the Privacy Act in the course of their work: “The attempt is to encourage disclosure by having one clear authority that applies to all disclosing institutions, some 200 disclosing institutions, so it's laid over the patchwork of regimes that already existed.”[34] Similarly, Mr. David Drake of the Department of Foreign Affairs, Trade and Development (also known as Global Affairs Canada) stated that SCISA “was designed to help the government improve how it deals internally with national security issues, by improving national security information sharing domestically.”[35] Mr. Burt of DND also pointed out that SCISA simplifies information sharing:

I think all of us have probably been in situations where we were in receipt of information that we thought might be useful to someone, but we weren't sure what our authorities were to actually pass it on. This provides, as I said earlier, a couple of simple tests so you don't have to move heaven and earth to actually figure out how you can make that determination.[36]

Ms. Alison Whelan of the Royal Canadian Mounted Police (RCMP) said that, before SCISA was enacted, “there were some government departments and agencies lacking the authority or clarity to share relevant information to protect Canada's security.”[37] As Mr. Donald Roussel of the Department of Transport explained, this was true of his organization:

[W]e had some limitations on what we could ask for or share. … The other element, which is significantly troublesome, is that if we have information and we know information is out there, not being able to ask the intelligence gatherers for that information is not very useful. We have to be able to ask specifically for what we're looking for and what information they could have gathered to share with us to be able to do our work more broadly.[38]

A number of witnesses noted that SCISA provides a useful framework for determining whether or not information can be shared to protect Canada’s national security, accelerates the decision-making process for information sharing, is a more efficient framework and allows for better coordination across the government.[39]

Ms. Whelan reported that her organization “finds SCISA to be a critical component in the information-sharing authorities we already have.”[40] As she explained

Prior to SCISA, when the RCMP needed to access information from federal departments or agencies outside the national security and intelligence community, there were disparate systems for information exchanges, and they were often lengthy. In some cases requests could take up to three weeks to process and could include more information than investigators truly needed. SCISA allows the personnel at the national security joint operations centre to exchange information in a more streamlined way.[41]

Mr. Robert Mundie of the Canada Border Services Agency (CBSA) pointed out that SCISA provides an alternative to and addresses the limitations of the Privacy Act provisions that allow for information sharing, as the latter are “too restrictive or cumbersome to be of timely and practical use.”[42] A number of officials from federal institutions cited section 8 of the Privacy Act as being one of their pre-existing information-sharing authorities, but that it is too restrictive.[43]

According to Ms. Tricia Geddes of CSIS, her organization had trouble obtaining information from Global Affairs Canada, and SCISA proved very useful in this regard: “While we had been using the Privacy Act for our information exchanges with Global Affairs before this, now that we have the additional powers or the additional clarity around SCISA, there have certainly been some enhancements there, so I feel confident.”[44] Ms. Geddes said that SCISA enables her organization to obtain highly beneficial information “that’s enhancing national security.”[45]

Mr. Glen Linder of the Department of Citizenship and Immigration (also known as Immigration, Refugees and Citizenship Canada (IRCC)) told the Committee that his organization sees SCISA as “creating this dedicated service channel for national security information to be discussed and exchanged among relevant experts who have the appropriate security classification.”[46]

Likewise, Mr. Roussel of the Department of Transport noted that, while the pre-existing legislative provisions permitted the disclosure of information, his organization faced “a significant amount of complexity and legal challenges that made the work a lot more complicated.”[47] Consequently, SCISA enables it to move more quickly.[48] Indeed, multiple officials from federal institutions underlined that, when it comes to national security, response times are critical.[49]

Although SCISA has been used by only a limited number of federal institutions since it came into force, some witnesses pointed out that it is still relatively recent legislation and that its provisions may eventually prove useful.[50] Still, at Global Affairs Canada, “since SCISA came into force, most of the department's sharing of consular-related information with national security agencies is done under SCISA rather than pre-existing authorities.”[51]

Finally, Mr. Rochon of the CSE noted that SCISA “will educate departments and agencies specifically on the 17 departments and agencies that are listed as recipient agencies,” and “[a]s that education becomes deeper, I think you'll see people starting to see the benefits of being able to say, ‘Well, actually, here's an opportunity where I would be able to share because I understand their mandate better.’”[52]

3.2 Views of Various Witnesses on the Role of the Act

Although officials from federal institutions stated that the new authorities conferred by SCISA represent important tools for safeguarding national security, a number of witnesses maintained that there was no evidence SCISA was needed to resolve an information-sharing problem and that federal institutions could resort to other authorities prior to the enactment of SCISA.

3.2.1 Need for Evidentiary Basis

Multiple witnesses felt that there was no clear justification for enacting SCISA. If there truly was a problem regarding information sharing for the purposes of national security, then the problem needed to be clearly articulated so that the most proportionate solution could be found.

In his brief, the Privacy Commissioner of Canada, Mr. Daniel Therrien, made the following argument: “Given that increased information sharing affects privacy and other rights, the justification for SCISA should be made clear.”[53] However, according to Commissioner Therrien and numerous witnesses who appeared before the Committee, there is no clear justification for the enactment of SCISA. The witnesses contended that a proper understanding of the problems with the pre-existing information-sharing authorities is needed in order to identify appropriate tools that strike the right balance between national security and privacy. Commissioner Therrien explained this view as follows: “A clearer articulation of the problems with the previous law would help define a proportionate solution.”[54]

Commissioner Therrien told the Committee that no one has shown “that the previous law was insufficient or created impediments to the work of national security agencies.”[55] He further asserted that

[i]f, previously, officials were unclear, then the officials should have received better guidance and information as to what the law provided. But if this law, SCISA, is really necessary, it should not be so on the basis that previously officials were unclear. That lack of clarity doesn't necessitate legislation. It would be on the basis that not only was it unclear, but it was insufficient, that it was an impediment, and we've not seen evidence of that.[56]

A number of witnesses noted that SCISA was enacted in the wake of tragic events.[57] However, according to Ms. Vonn of the BCCLA, “[t]he question is whether, with sober hindsight now, when we apply our rationality to this, we have effected an improvement. … We should consider very carefully not whether we have tools but whether they are the right ones.”[58] Mr. Michael Karanicolas of the Centre for Law and Democracy (CLD) made a similar argument, stating that we “need to look back in hindsight. A tragedy can give rise to particular kinds of legislation, which can be reactionary or can overstep or can fail to achieve a sober balance. We've seen that time and again.”[59]

Broadly speaking, Ms. Pillay of the CCLA,[60] Mr. Karanicolas of the CLD,[61] Ms. Tribe of OpenMedia,[62] Mr. Fraser,[63] and Mr. Forcese[64] believe that the justification for enacting SCISA is unclear.

For Mr. Mia of the CMLA, the public justification for SCISA “is not sound,”[65] and “it was not necessary, because what we needed to do was reform a number of things in national security.”[66] Similarly, Ms. Austin said that the lack of justification for SCISA is a serious problem and that the recommendations from the Air India and Arar commissions of inquiry “are narrower in scope than what SCISA provides.”[67]

Moreover, Mr. Tamir Israel of the Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic (CIPPIC) stated that the Privacy Act includes provisions that enable federal institutions to share information in the event of security threats and that “we have yet to hear a compelling case for a general departure from the pre-existing exceptions already embodied in the Privacy Act.”[68] Indeed, Ms. Vonn of the BCCLA noted that, if the pre-existing provisions were creating confusion, the Privacy Act could have been amended accordingly.[69] She added that, to ensure Canada’s national security agencies have the right tools,

we need to understand the problem in greater specificity. If the problem was literally that there was some difficulty in understanding what the provisions already allowed for in the exemptions for disclosure in the Privacy Act were, then clarifying those exemptions is clearly the tool that we need to address those.[70]

3.2.2 Pre-existing Authorities

Commissioner Therrien pointed out that other instruments that enabled the sharing of national security information were available prior to SCISA:

[T]he Immigration Act, the Customs Act, and at a more general level, the common law authority of the police in the course of investigations, to share information for the purpose of investigations, and the defence prerogative, which authorizes the defence department and the Canadian Armed Forces to share information for national security purposes. There is a whole list of other authorities that previously existed.[71]

The Commissioner further emphasized that “it is up to the government to demonstrate why this was insufficient.”[72]

According to CSE Commissioner Plouffe, the pre-existing authorities were sufficient:

That CSE has neither received nor shared information under SCISA demonstrates that currently existing authorities are sufficient for it to share or disclose information with other government institutions. The point was made more broadly in the annual report of the Privacy Commissioner, Mr. Therrien, noting from a survey of government institutions his office conducted of the first six months SCISA was in effect, that only five institutions either received or shared information pursuant to the act. Most institutions, a little like CSE, have been using pre-existing authorities.[73]

Mr. Forcese noted that, generally speaking, “Canadian information-sharing laws in the area of national security are a muddled patchwork.”[74] He explained that SCISA “superimposes a new legal regime on existing legal rules that are themselves an arcane patchwork and difficult to construe.”[75] His recommendation would be “to go into the statute books of all these agencies and clean up all the differential rules that apply to govern information sharing.”[76]