CANADIAN MUSLIM LAWYERS ASSOCIATION

SUBMISSION: Consultation on National Security

(Our Security, Our Rights: National Security Green Paper, 2016)

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December 15, 2016

ABOUT THE CMLA

The CMLA was founded in 1998 by a small group of Toronto-based Canadian Muslim
lawyers. It has over 300 members across Canada with active chapters in Ontario and
Quebec.

The CMLA is focused on four key areas of engagement. First, the CMLA helps build
professional relationships among Canadian Muslim lawyers and between Canadian
Muslim lawyers and members of other legal organizations. Second, the CMLA
educates its members and the broader Canadian Muslim community on law topics of
interest. Third, the CMLA provides peer support by providing law students and junior
lawyers with mentorship and professional development seminars. Fourth, the CMLA
serves as an advocate on select issues of importance to Canadian Muslim lawyers and
the broader Canadian Muslim community.

With respect to advocacy, the CMLA has appeared as a public interest intervenor
before the Supreme Court of Canada. In addition, the CMLA has made submissions to
and testified before Parliamentary committees on national security, human rights and
civil liberties on numerous occasions since 2001.

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SUBMISSION: Consultation on National Security
CANADIAN MUSLIM LAWYERS ASSOCIATION

OVERVIEW
The Canadian Muslim Lawyers Association (CMLA) is pleased to offer this submission
on the Government of Canadas National Security Green Paper through the
Consultation on National Security.

This submission should not be viewed as exhaustive of our concerns and input on the
matter of national security. In particular, where the CMLA has not provided submissions
on particular issues that should not be interpreted as consent to the Governments
positions or proposals as outlined in the consultation process or the Green Paper. We
reserve the right to provide additional comment and input on the matters addressed in
this consultation process.

In addition to the matters addressed below, we strongly encourage the Government to

immediately repeal the 2011 Ministerial Directions of the previous government, which in
our view enables the use and sharing of information that is derived from or may be used
in torture. This is not only antithetical to our fundamental values, but is inconsistent with
our own law as well as our international law obligations. Furthermore, we recommend
the Government to amend the Immigration and Refugee Protection Act to clearly
indicate that Canada will not, under any circumstances, deport people to face torture.

The CMLA has been involved in the discourse on national security and human rights
since 2001. We prepared submissions on the Anti-terrorism Act, 2015 (Bill C-51) in
2015 and testified before the House of Commons Committee on Public Safety and
National Security in March 2015. We include our submission on Bill C-51 as part of our
submission in the Consultation on National Security and the Green Paper since much of
that discussion involves the Anti-terrorism Act, 2015.

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ACCOUNTABILITY

- Should existing review bodies CRCC, OCSEC and SIRC have greater
capacity to review and investigate complaints against their respective
agencies?

Canadas existing patchwork of review of national security agencies and functions

across government requires a complete overhaul. As the scope of national security
functions, mandates and integration increase across government and into the global
sector there ought to be a concomitant development on the review side of the equation.
Although we have three review bodies with some remit over national security matters,
they are often stuck in silos by out-dated legislation and mandates that are inconsistent
with the realities of an integrated national security landscape. Moreover, there is no
effective independent expert review over many parts of government where national
security matters are dealt with and powers exercised.

The OConnor Inquiry highlighted this troubling deficiency more than a decade ago. In
that time the national security sector in Canada has grown significantly, expanded
across government (including provincial and municipal governments), drawn in the
private sector and has become ever more globalized. As such, the CMLA strongly
recommends that a single independent expert review and complaint body be
established. Some have called this body SuperSIRC and we have called it the
Canada National Security Review Agency. Whatever the name, this organization ought
to have the following essential elements at a minimum:

Independent from government and its national security sector and functions;
Jurisdiction over all national security agencies and functions across government
including CSIS, the CSE, the RCMP and a host of other agencies (some of which
currently have no independent expert review);
Full security clearance and access to national security information, data and
records across government;
Ability to initiate reviews and studies;
Ability to initiate investigations and subpoena witnesses;
Staffed by full-time civilian experts in national security law, policy and practice;
In-house team of full-time special advocates to participate in closed proceedings
involving national security across government;
Robust and sustainable budget that allows substantive review work to be done
across government;
Budget funded by Parliament and secure from Executive tampering;
Comprehensive public complaints and redress process including the ability to
order remedies, including financial compensation;
Ability to hear third party complaints;
Participation and input from the public and civil society to build confidence and
trust; and
Annual audit and assessment of Canadas national security sector and functions
to determine: (i) effectiveness and efficiency, (ii) impact on the rule of law and

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 human rights, and (iii) how national security functions can be improved.

National security matters in Canada ought to be managed on a lifecycle model, which

aims at continuous improvement. This could be achieved by feeding the knowledge
gained through the annual audit and assessment back into the legislative and
institutional design/reform process.

- Should the existing review bodies be permitted to collaborate on reviews?

The CMLA strongly recommends the creation of a single independent expert review
agency as noted above. Where this recommendation is not adopted we recommend
that the barriers to co-operation between existing review agencies be removed.

- Should the Government introduce independent review mechanisms of other

departments and agencies that have national security responsibilities, such as
the CBSA?

As noted above, the CMLA strongly recommends the creation of a single independent
expert review agency for all national security functions and work across government.

- The proposed committee of parliamentarians will have a broad mandate to

examine the national security and intelligence activities of all departments and
agencies. In light of this, is there a need for an independent review body to look
at national security activities across government, as Commissioner O'Connor
recommended?

The CMLA is encouraged by the proposed Committee of Parliamentarians on National

Security (Committee). While we have concerns about the authority of the Committee
and the limits to its powers, which ought to be remedied before Bill C-22 becomes law,
we believe it is a step in the right direction.

The Committee does not replace, remove or delay the pressing need for a single
independent expert review agency as recommended above. The Committee and the
review agency play very different roles. They complement each other. In fact, if the
Committee is used as an argument to not move forward on the creation of a single
independent expert review agency the CMLA will consider this a step back on reforming
our national security sector, rather than a step forward.

The Committee will be playing an important role in terms of direct democratic

accountability. However the roles and characteristics of the review agency outlined
above cannot be manifested in the Committee. Both the Committee and the review
agency are required as part of the crucial reform of Canadas national security sector.

Moreover, the CMLA strongly recommends that a third element be added to Canadas
national security review and oversight architecture. That element is the Independent

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Monitor of National Security Law and Policy, which would play a role similar to that
exercised in the United Kingdom by that countrys Independent Monitor.

- The Government has made a commitment to require a statutory review of the

ATA, 2015 after three years. Are other measures needed to increase
parliamentary accountability for this legislation?

In addition to establishing the review and oversight mechanisms outlined above, the
CMLA recommends that a comprehensive audit of Canadas national security sector be
undertaken before the statutory review of the Anti-terrorism Act, 2015. This audit
should be led by the new independent expert review agency in co-operation with the
Independent Monitor and the Committee of Parliamentarians. The audit must be public
and engage directly with Canadians, civil society, academia, the legal community, and
marginalized communities in order to determine efficacy, efficiency and compliance with
our democratic and Constitutional values.

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THREAT REDUCTION
- CSIS's threat reduction mandate was the subject of extensive public debate
during the passage of Bill C-51, which became the ATA, 2015. Given the nature
of the threats facing Canada, what scope should CSIS have to reduce those
threats?

The CMLA strongly opposed the extension of threat reduction powers to CSIS when
the Anti-terrorism Act, 2015 (Bill C-51) was introduced in early 2015. Our position has
not changed and we stand by the concerns raised in our written submission on Bill C-51
prepared for the House of Commons Standing Committee on Public Safety and National
Security, which accompanies and forms part of this submission on the Green Paper.

Granting CSIS reduction powers runs contrary to the logic and rationale underlying the
creation of CSIS in the first place and promises to bring back the security blunders and
mistakes of the past. One pressing concern in national security operations is the lack of
co-operation between CSIS and the RCMP due to various factors, including the
protection of institutional turf. This type of lack of co-operation has led to disasters in
the past and holds the potential for new problems to arise. Moreover, the exercise of
kinetic powers effectively in the dark is anathema to the rule of law and a democratic
society built on the principle of state accountability and transparency.

- Are the safeguards around CSIS's threat reduction powers sufficient to ensure
that CSIS uses them responsibly and effectively? If current safeguards are not
sufficient, what additional safeguards are needed?

The amendments to the CSIS Act introduced by the Anti-terrorism Act, 2015 should be
repealed. As noted above, we strongly oppose the granting of threat reduction powers
to CSIS.

- The Government has committed to ensuring that all CSIS activities comply with
the Charter. Should subsection 12.1(3) of the CSIS Act be amended to make it
clear that CSIS warrants can never violate the Charter? What alternatives might
the Government consider?

The amendments to the CSIS Act introduced by the Anti-terrorism Act, 2015 should be
repealed. As noted above, we strongly oppose the granting of threat powers to CSIS.

CSIS has been reprimanded by courts and its review agency on a number of occasions
for breaching Charter rights and not being forthright. With such a track record how can
we expect CSIS to be honest and accountable with Canadians? CSIS should not have
threat reduction powers. On the contrary, CSIS should be working more closely with
the RCMP to interdict threats via traditional policing and the criminal justice system.
Anything less simply sets us up to develop a parallel and secret system of interdiction
where the lives of innocent people may be adversely impacted without their knowledge
or any recourse. This does not improve the security of Canada and erodes public

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confidence in the national security sector.

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DOMESTIC NATIONAL SECURITY INFO SHARING
- The Government has made a commitment to ensure that Canadians are not
limited from lawful protest and advocacy. The SCISA explicitly states that the
activities of advocacy, protest, dissent, and artistic expression do not fall
within the definition of activity that undermines the security of Canada. Should
this be further clarified?

The focus on a discreet element in the definition section of the Security of Canada
Information Sharing Act (SCISA) simply misses the more significant and larger point
that SCISA is overly broad because it is open-ended, thereby leaving the door open for
all sorts of people to be considered as engaging in activities that undermine the
security of Canada. Aside from pulling all sorts of people, ideas and movements into
the national security dragnet, this does not make Canadians safer. In fact, it may make
us less safe because our security agencies will be drowning in a sea of irrelevant and
unnecessary information and miss genuine threats that ought to be investigated and
stopped.

Of particular concern SCISA links the security of other states to the security of Canada.
This is deeply problematic because Canadian law and security agencies may be used
as proxies to further the interests of repressive and authoritarian regimes in their efforts
to repress dissent.

In addition, once information is pulled into this all of government national security
hopper it is open to be manipulated and shared with foreign entities, which will make
corrections of mistakes and meaningful remedies for those mistakes meaningless.
SCISA also attempts to immunize the government from being held accountable for
information sharing mistakes that harm innocent Canadians.

- Should the Government further clarify in the SCISA that institutions receiving
information must use that information only as the lawful authorities that apply
to them allow?

Aside from the general concerns noted above, the poor drafting of SCISA and the public
positions of some officials seem to suggest that legislation such as the Privacy Act are
protections against abuse of power under SCISA. However, the Green Paper itself
clarifies that the lawful authority power will essentially override any protections
provided by the Privacy Act.

SCISA ought to be significantly redrafted with a narrowly defined and limited scope of
power to trigger information sharing. As well, sharing should be triggered on a higher
threshold and with more rigorous requirements than currently exist in the legislation.
Rules should be introduced on the strict control of information, including how it can be
manipulated, collated, shared, accessed and stored. In addition, clear rules should be
put in place requiring the destruction of information where it is not strictly linked to
national security investigations on a high threshold of necessity. The CMLA cautions

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against the creation and indefinite maintenance of massive databases containing the
information of innocent Canadians. This is antithetical to the values of our liberal
democracy and contrary to our Constitutional principles.

- Do existing review mechanisms, such as the authority of the Privacy

Commissioner to conduct reviews, provide sufficient accountability for the
SCISA? If not, what would you propose?

While the Privacy Commissioner certainly has an important role to play this should not
be seen as a substitute for an independent expert national security review agency. The
review agency should certainly have a role to play and should work with the Privacy
Commissioner and others to ensure that information sharing is necessary, complies with
our Constitutional values and is consistent with the principles of our liberal democracy.

In addition, SCISA as it currently stands creates a system where various decision-

makers across government give content to an open-ended definition on what constitutes
activities that undermine the security of Canada. This is fraught with many problems.
What is required operationally is a central information control and sharing role. This role
would have direct responsibility for real time oversight and report directly to the Minister
of Public Safety.

- To facilitate review, for example, by the Privacy Commissioner, of how SCISA is

being used, should the Government introduce regulations requiring institutions
to keep a record of disclosures under the SCISA?

Record-keeping is always good in terms of allowing review and audit, but simply
focussing on a small regulatory fix without a significant revamping of SCISA as noted
above will do little to address the significant risks that SCISA poses to the privacy of
Canadians while not making the country any safer.

- Some individuals have questioned why some institutions are listed as potential
recipients when their core duties do not relate to national security. This is
because only part of their jurisdiction or responsibilities relate to national
security. Should the SCISA be clearer about the requirements for listing
potential recipients? Should the list of eligible recipients be reduced or
expanded?

The CMLA concurs that the SCISA recipient lists are overly broad. As such, narrowing
of this list significantly would be a step in the right direction. However, this reform
should be undertaken as part of a wide-ranging redrafting of SCISA as noted above.

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PASSENGER PROTECT PROGRAM
- At present, if the Minister does not make a decision within 90 days about an
individual's application for removal from the SATA List, the individual's name
remains on the List. Should this be changed, so that if the Minister does not
decide within 90 days, the individual's name would subsequently be removed
from the List?

The change proposed above would be an improvement to the current system.

However, the CMLA remains concerned that the larger issue of efficacy and legality are
not being addressed. The Secure Air Travel Act List or no-fly list is cloaked in secrecy,
both in terms of the creation of the list, its implementation and in the review/redress
measures. While the CMLA welcomes improvements that would bring more
transparency and accountability to the system, we strongly recommend that Canada
undertake a complete audit of no-fly lists in Canadas national security toolkit to
determine whether they are effective, the scale of adverse impacts through mistakes
and the public safety rationale of preventing air travel to genuine national security
threats, but leaving them otherwise free to do other harm in society. Such an audit
should be led by the new independent expert national security review agency and
involve other bodies, including the Privacy Commissioner, the Committee of
Parliamentarians on National Security and the proposed Independent Monitor of
National Security Law and Policy. The CMLA prefers that genuine threats are not
disrupted via no-fly list regimes but are dealt with through public criminal law processes.

We are also concerned that the existing process around the creation, administration and
review of the no-fly list regime is shrouded in secrecy and likely does not meet a
number of administrative fairness and Charter of Rights and Freedoms due process and
fundamental justice standards.

Finally, there is the issue of Canadian airlines using U.S. lists. This raises significant
issues in terms of legality and sovereignty as foreign actions adversely impact
Canadians. And, from a practical perspective, Canada must also address the issues
arising from the adverse impacts arising from the application of the U.S. lists through
airlines in Canada.

- To reduce false positive matches to the SATA List, and air travel delays and
denials that may follow, the Government has made a commitment to enhance
the redress process related to the PPP. How might the Government help
resolve problems faced by air travellers whose names nonetheless generate a
false positive?

Subject to the CMLAs general concerns about the fundamental nature of no-fly lists,
their efficacy and fundamental justice, steps taken to increase transparency,
accountability and accuracy of the lists would be an improvement on the existing
system. Having said that, we are concerned that continued use of secret processes
where the listed person is not given full access to the evidence or information that forms

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the basis of the finding is fraught with problems. A completely secret process is
arguably inconsistent with the Charter of Rights and Freedoms.

- Are there any additional measures that could enhance procedural fairness in
appeals of listing decisions after an individual has been denied boarding?

Subject to the CMLAs general concerns about the fundamental nature of no-fly lists,
their efficacy and fundamental justice, steps taken to increase transparency,
accountability and accuracy of the lists would be an improvement on the existing
system. Having said that, we are concerned that continued use of secret processes
where the listed person is not given full access to the evidence or information that forms
the basis of the finding is fraught with problems. A completely secret process is
arguably inconsistent with the Charter of Rights and Freedoms.

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CRIMINAL CODE TERRORISM MEASURES
- Are the thresholds for obtaining the recognizance with conditions and
terrorism peace bond appropriate?

The CMLA has been concerned about this provision since it was originally introduced in
2001. This provision represents an extreme departure from the fundamental criminal
justice principles that underpin our society. Under these measures, individuals may
ultimately be jailed without having faced any charge or having had a trial. As such, the
CMLA opposes the lowering of thresholds and the extension of the detention period as
enabled by the Anti-terrorism Act, 2015. These measures can be open to abuse as
tools of disruption, to punish people without a trial, or to create de facto control orders.
Genuine national security threats ought to be dealt with through the criminal justice
process with open trials, which is not only more effective at keeping the country safe,
but also builds public confidence in our national security sector.

- Advocating and promoting the commission of terrorism offences in general is a

variation of the existing offence of counselling. Would it be useful to clarify the
advocacy offence so that it more clearly resembles counselling?

If the crime is similar to counselling then it is redundant and should be repealed. If it is

different from counselling then it raises significant questions about creating expression
crimes that are far removed from actual action. The language used in the provision is
vague and imprecise, further reinforcing the interpretation that the new promoting and
advocating offence introduced in the Anti-terrorism Act, 2015 is remotely connected to
any criminal activity.

While a civil society ought to abhor vulgar and offensive expression, it should not
criminalize it when it is not proximate to criminal action. Criminalizing offensive
expression is antithetical to the nature of our liberal democracy. And, from a practical
intelligence and reduction of crime strategy, criminalizing offensive expression does not
change hearts and minds it simply pushes those ideas underground and may
ironically feed the persecution narratives driving extremist recruiting and violence.
Ideas, even offensive and vulgar ideas, ought to be engaged, challenged and defeated
in the bright light of day. That will go a lot further in keeping us safe and keeping our
values intact than criminalizing expression.

Moreover, there may be numerous unintended knock-on effects of such a crime, which
include the sanitization of genuine debate and inquiry, chilling press freedom and further
marginalizing vulnerable communities wishing to challenge offensive expression head
on.

- Should the part of the definition of terrorist propaganda referring to the

advocacy or promotion of terrorism offences in general be removed from the
definition?

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The CMLA is concerned about the vague and overly broad definition as noted above.
Compounding that concern is the reality that subjective standards may be applied by
government employees in the field to determine what constitutes terrorist propaganda.
Again, our recommendation is that the criminal justice system should focus on
expression that is proximate to violence. The further we are removed from that nexus
the greater the likelihood of problems arising where legitimate expression may be
suppressed.

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PROCEDURES FOR LISTING TERRORIST ENTITIES
The CMLA has been concerned with the fairness and efficacy of these provisions since
they were introduced in 2001. In particular, we are concerned that secret processes
and secret information/evidence are not only contrary to the values of our legal system
and society, and are fundamentally unfair, but they do little to keep us safe.

Secret processes such as those used in the listing of entities has already been found to
be unconstitutional in the security certificate context. Arguably, because the listing
process is identical to the old security certificate process, many of the same deficiencies
are in play. Instead of ostracizing persons and entities deemed to be threats using
deeply flawed secret processes, the CMLA strongly recommends that the criminal
justice system be used to keep Canada safe from genuine national security threats.

If the listing of entities is to remain a feature of Canadas national security landscape the
CMLA recommends that transparency, fundamental justice and due process protections
are introduced.

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TERRORIST FINANCING
The CMLA recommends that FINTRAC immediately address the concerns as reported
by the Privacy Commissioner in the report, Financial Transactions and Reports Analysis
Centre of Canada, Section 37 of the Privacy Act, Section 72(2) of the Proceeds of
Crime (Money Laundering) and Terrorist Financing Act, Final Report 2013.

In addition to review by the Privacy Commissioner, the CMLA strongly recommends that
terrorist financing control across government and the private sector, including the work
of FINTRAC, be subject to the review and authority of the unified independent expert
national security review agency.

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SECTION 9: INVESTIGATIVE CAPABILITIES OF THE DIGITAL WORLD

- How can the Government address challenges to law enforcement and national
security investigations posed by the evolving technological landscape in a
manner that is consistent with Canadian values, including respect for privacy,
provision of security and the protection of economic interests?

The Government should adhere to decisions of the Supreme Court and the findings of
the Office of Privacy Commissioner, and engage on a sustained basis with legal experts
and human right and civil liberties organisations for guidance into addressing challenges
while respecting the Charter and international human rights obligations.

- In the physical world, if the police obtain a search warrant from a judge to enter
your home to conduct an investigation, they are authorized to access your home.
Should investigative agencies operate any differently in the digital world?

Yes there should be different standards. The search of a physical place is arguably
more limited in terms of what it may reveal about a persons private life than accessing
a smartphone or computer. The new technologies open a virtual door to all manner of
information and records, including financial and medical records and information about
online activity. Blanket authorizations to search a smartphone or computer should not
be allowed in Canada. Rather, warrants to search digital devices should be specific and
tailored to a particular investigation thereby limiting the information investigative agents
can look at and use.

- Currently, investigative agencies have tools in the digital world similar to those
in the physical world. As this document shows, there is concern that these
tools may not be as effective in the digital world as in the physical world.
Should the Government update these tools to better support digital/online
investigations?

The CMLA is concerned that the argument of a complex digital world will be used by
Government, police and security agencies to re-order the rules of the game governing
protection of privacy and justifications for intrusions of privacy. This is troubling in light
of the many revelations in the national security sector with respect to mass surveillance,
bulk data collection and sharing that our own security agencies have now been
implicated in. As well, similar concerns apply with respect to our national police service.

While the technologies and methods of communication have certainly become faster
and more integrated with digital technologies this should not be used as a back door
rationale to re-order the fundamental relationship between the State and the individual,
and the essential principle that individuals are secure from government intrusion into
their privacy. The fundamental rules governing the State-individual relationship are
sound and should not be eroded based on the false notion that new technologies
require a new social contract.

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The CMLA strongly opposes bulk data collection, retention, manipulation and sharing by
police and security agencies. Rather, where police and security agencies are able to
make a clear and convincing case based on reliable evidence that they need to
investigate an individual then limited and focussed judicial authorization should be
obtained.

- Is your expectation of privacy different in the digital world than in the physical
world?

Yes, the expectation of privacy is higher in the digital world because the new
technologies can be a doorway to a large amount of personal information about an
individual. That is why the RCMPs recent public relations/lobbying campaign arguing
that it requires more powers and a relaxation of legal protections in the new digital world
is not only counter-intuitive, but deeply troubling. Because the new technologies can
reveal so much about a persons private life it is more important that we redouble our
efforts to protect privacy, both from unwanted State intrusions and also from private
parties with malicious intent.

Basic Subscriber Information (BSI)

- Since the Spencer decision, police and national security agencies have had
difficulty obtaining BSI in a timely and efficient manner. This has limited their
ability to carry out their mandates, including law enforcement's investigation of
crimes. If the Government developed legislation to respond to this problem,
under what circumstances should BSI (such as name, address, telephone
number and email address) be available to these agencies? For example, some
circumstances may include, but are not limited to: emergency circumstances,
to help find a missing person, if there is suspicion of a crime, to further an
investigative lead, etc.

There is a reason the Supreme Courts Spencer decision limited access to BSI: to
protect Canadians privacy rights. That ruling must be respected and police and national
security agencies should obtain a warrant at all times when they want BSI, even when
the telecommunications companies would otherwise produce it voluntarily. In some
legitimate emergency situations the criminal code already allows police to access BSI
without a warrant.

- Do you consider your basic identifying information identified through BSI (such
as name, home address, phone number and email address) to be as private as
the contents of your emails? your personal diary? your financial records? your
medical records? Why or why not?

Yes. BSI also includes IP addresses and mobile devices IMSI number, and can reveal
intimate details of a persons contacts, networks, activities, lifestyle preferences,
whereabouts, etc., when linked to other information and processed through Big Data
analytics. Therefore, access to seemingly harmless and limited information (e.g.

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metadata) in the digital world may open the door not only to additional private
information about an individual, but also create new information about a person in terms
of profiles of various aspects of their life, including their activities, associations and
preferences.

- Do you see a difference between the police having access to your name, home
address and phone number, and the police having access to your Internet
address, such as your IP address or email address?

Yes there is a difference. In the digital world an IP or e-mail address, when linked to
other information, can reveal an infinite amount of intrusive intimate personal
information. The internet and related information may seem harmless and has been
portrayed as such by some public figures. It can open the door not only to additional
private information about an individual, but it can create new information in terms of
profiles through Big Data analytics and connecting the dots. This can lead to massive
invasions of privacy with little or no legal justification.

Interception Capability

- The Government has made previous attempts to enact interception capability

legislation. This legislation would have required domestic communications
service providers to create and maintain networks that would be technically
capable of intercepting communications if a court order authorized the
interception. These legislative proposals were controversial with Canadians.
Some were concerned about privacy intrusions. As well, the Canadian
communications industry was concerned about how such laws might affect it.
Should Canada's laws help to ensure that consistent interception capabilities
are available through domestic communications service provider networks
when a court order authorizing interception is granted by the courts?

Any intercept capabilities ought to be based on clear justification and enabled by prior
judicial authorization. As well, the CMLA opposes bulk interception of communications.
Rather, where a case can be made for prior judicial authorization the police and
intelligence agencies must clearly indicate who the target(s) is/are and the rationale for
the intercept. Collection of information that is not relevant to the judicial authorization
should not be retained and should be destroyed or deleted immediately.

The CMLA is also concerned about conscripting the private sector in the work of the
States law enforcement and intelligence activities. As such, it would be prudent to
explore alternatives to compelling communications service providers to maintain
permanent intercept capabilities on all their networks.

Encryption

- If the Government were to consider options to address the challenges

encryption poses in law enforcement and national security investigations, in

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 what circumstances, if any, should investigators have the ability to compel
individuals or companies to assist with decryption?

This issue raises a number of significant privacy and other Charter issues. Since this
matter is currently before the courts it is premature to engage in this discussion. Once
we have final judicial decisions we can examine what law enforcement agencies may
legally require with respect to decryption.

- How can law enforcement and national security agencies reduce the
effectiveness of encryption for individuals and organizations involved in crime
or threats to the security of Canada, yet not limit the beneficial uses of
encryption by those not involved in illegal activities?

This is practically impossible and should not be pursued because it would require not
only a determination of innocence and guilt without due process and then attempt to
deploy technologies that would erode the effectiveness of encryption protection for
those deemed guilty. This proposal is not only technologically problematic, but is also
deeply troubling with respect to creating the technological architecture for mass
surveillance based on extra-judicial suspicions of guilt.

Data Retention

- Should the law require Canadian service providers to keep telecommunications

data for a certain period to ensure that it is available if law enforcement and
national security agencies need it for their investigations and a court
authorizes access?

The CMLA does not support general data retention requirements for law enforcement
and national security purposes. This is inherently problematic because it takes us down
the road to a pre-crime surveillance state. By analogy, would we consider asking
Canada Post to keep copies of all mail that is delivered to Canadians just in case the
police or security agencies want to dig through it at some point in the future? Or, should
we require telecom operators to record all phone calls for the same reason? What
about libraries keeping records of books borrowed by patrons?

This just in case we need it rationale fails when seen in the broader context of privacy
and the fundamental values of our liberal democracy, which requires the State and its
agents to have reasonable grounds and evidence before it invades the privacy of
individuals.

Those who argue that this is a necessary tool for the police and security agencies and
without them they will be ineffective in keeping us safe are ignoring the existing tools
that are already available. Police in Canada already have the power to obtain a
Preservation Order, which a judge can grant based on a low threshold, and which
allows the police to require preservation of information in particular cases. For example,
cases in which it will take time to get a search warrant and the information sought by the

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warrant is in danger of being destroyed. The Green Paper suggests that
telecommunications companies should be required to retain all data in bulk for long
periods of time, just in case the police need it, which is like asking for a global
preservation order. This is antithetical to our system of law and government.

- If the Government of Canada were to enact a general data retention

requirement, what type of data should be included or excluded? How long
should this information be kept?

The Government of Canada should not enact a general data retention requirement.

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