Proceedings of the Special Senate Committee on
Issue 2 - Evidence - Meeting of April 23, 2012
OTTAWA, Monday, April 23, 2012
The Special Senate Committee on Anti-terrorism, to which was referred Bill S-7, An Act to amend the Criminal Code, the Canada Evidence Act and the Security of Information Act, met this day at 2:30 p.m. to give consideration to the bill.
Senator Serge Joyal (Deputy Chair) in the chair.
The Deputy Chair: Honourable senators, it is my pleasure to welcome you to this third session of the Special Senate Committee on Anti-terrorism and to welcome Mr. Richard Fadden, director of the agency much better known as CSIS.
In French, the Director of the Canadian Security Intelligence Service. Welcome, Mr. Fadden.
As you know, we are studying Bill S-7, An Act to amend the Criminal Code, the Canada Evidence Act and the Security of Information Act.
Mr. Fadden is with us for an hour or maybe a little more if we have more questions. If you could make yourself available we will not abuse your time. If that is acceptable to you we will proceed like that. We are delighted to have you and look forward to your opening statement.
Richard Fadden, Director, Canadian Security Intelligence Service (CSIS): Honourable senators, good afternoon. I am pleased to be here today to discuss matters related to Bill S-7, the Combating Terrorism Bill. The specific focus of Bill S-7 is largely directed toward providing the justice system and law enforcement with better tools to respond to terrorist activity that reaches a criminal threshold and is imminent.
Given the service's intelligence mandate to investigate threats to the security of Canada and our focus on identifying them at earlier stages of development, we would not directly have recourse to these provisions. That said, as a member of the broader national security community we are certainly supportive of any additional tools that will help our partners to better confront terrorism once it has reached the threshold of criminality. To be direct, any legislative or other provision that contributes to an environment that would facilitate our work is welcome.
The amendments related to section 38 of the Canada Evidence Act do have some application to CSIS insofar as they continue to recognize the importance of protecting certain information from public disclosure, when the court deems it necessary.
Mr. Chair, we are obviously supportive of these measures as they protect sensitive information and help prevent CSIS operations, sources, and tradecraft from being compromised.
I thought that the committee might most want to hear from me on the threat we face, so I will now turn from the details of the bill to the threat that it seeks to address.
As the committee is undoubtedly aware, the greatest threat to Canada's national security remains terrorism and primarily the terrorist threat from Sunni Islamist extremism.
CSIS currently investigates hundreds of persons — in fact, in 2011, approximately 250 — both in Canada and abroad involved in terrorism-related activity that threatens Canada and our allies.
The committee would already be aware of the high-profile cases that have been the subject of much media scrutiny in recent years, but there has also been an alarming number of Canadians who have travelled, are planning, or have expressed a desire to travel overseas to engage in terrorist activities.
CSIS is aware of at least 45 Canadians, possibly as many as 60, many in their early twenties, who have travelled or attempted to travel from Canada to Somalia, Afghanistan, Pakistan and Yemen to join al Qaeda-affiliated organizations and engage in terrorism-related activities. Clearly these individuals represent a threat both to the international community and to Canada, as some have or may eventually return to Canada after having acquired terrorism training or even having engaged directly in acts of terrorism. It is certainly my hope that the new provisions in Bill S-7 that create offences for leaving or attempting to leave Canada to commit certain terrorist offences will help prevent some of this activity. We should be realistic and keep in mind that the evidentiary threshold that allows law enforcement to act is high and we cannot expect that these Criminal Code amendments will magically address the phenomenon.
Canadians will continue to travel abroad for threat-related purposes, and it is the service's job to know about it and to inform government to the extent we can.
Mr. Chair, I would now like to address the subject of what some have termed "lone-wolf" terrorism — or what CSIS refers to as "lone actor" terrorism as this has been the subject of recent high profile media coverage, some of which has suggested that this type of terrorism is a new and growing trend preoccupying intelligence and law enforcement agencies.
We were reminded of this type of threat by the self-confessed mass murderer Anders Breivik, whose trial in Norway has just begun; and recently also in Toulouse, France, with Mohamed Merah.
According to the preliminary evidence available, Breivik acted operationally alone but also communicated on web fora with like-minded individuals. Current public reports indicate that he was part of a virtual pan-European far right movement, militantly opposed to multiculturalism, small "l" liberalism and Islam. Although it remains doubtful that he was part of any sort of organized conspiracy, his views were known to some and he actively communicated them to others. Most lone actor extremists connect in some way with like-minded people, through the Internet, travel or training.
Lone actor terrorists do present unique difficulties for our operations because by definition they act alone. Lone actors are particularly hard to identify before they strike and pose a special challenge to national security. Often the only indicators of a possible attack by a lone terrorist are anonymous Internet postings or unusual purchases like fertilizer or weapons. In addition, lone actor terrorists tend to create their own ideologies that combine personal frustrations and grievances with wider political, social or religious issues. This makes it difficult to predict their behaviour and to profile them effectively. However, I can assure the committee that we are aware of these difficulties and are sensitive to this threat.
The service is also investigating or otherwise monitoring a number of other emerging trends affecting our counterterrorism operations. These trends range from the decline of al Qaeda core's operational capabilities to the rise and increasing independence and assertiveness of its former franchises in Iraq and North and East Africa and to the increasing potential for more women in Canada to become radicalized as injunctions against female participation in violent jihad have begun to disappear from extremist websites.
Much progress has been made over the last decade in fighting this scourge, but if there is one thing we have learned it is that our enemies are very good at adapting to meet their own operational challenges. In the short to medium term, at least, we expect this will remain a pressing concern of government and the top priority of intelligence agencies such as CSIS. In this context, we are very supportive of Bill S-7 and of the additional tools it would provide to the national security community.
Thank you. I would be glad to try and answer any questions you and your colleagues may have.
The Deputy Chair: I might open with a first question. Since we will have new offences created by Bill S-7 — the intention to go abroad to get trained and to be part of terrorism activities — how will you manage sharing that information with the border authorities or agencies? You might decide that it would be better to let that person go abroad and to follow that person, since you have the capacity to do that, than to immediately prevent that person from going, for instance. When will you judge that it is time to lay a charge or to pass on the information to the RCMP to lay a charge?
Mr. Fadden: First, Mr. Chair, I think it is fair to say that we do not decide this alone. We have developed a series of operational practices, in particular with the RCMP but also with other agencies. When it comes to the point in the course of our investigations where we think that a crime is possible, and it always varies as to when this happens, our regional offices have the practice of making the local RCMP division aware of where we are at. It results in a discussion, and we decide together whether the RCMP starts a criminal inquiry or whether we continue and keep them informed.
The Deputy Chair: How would you manage to get in sync with the border agencies or authorities?
Mr. Fadden: We have all sorts of operational means of communicating with them. Up until now, to be candid, most of our discussions on possible criminality have been with the RCMP. If Parliament enacts this legislation, we will have to operationalize our regular meetings with the Canada Border Services Agency.
The Deputy Chair: Will you then have to develop some kind of a memorandum of understanding to define how you would be cooperating in that context? As you know, there is now a criminal offence, so you are more or less in the position to decide if a charge will be laid, because the act makes it an offence to leave Canada or to have the mere intent to leave Canada.
Mr. Fadden: Absolutely.
The Deputy Chair: At this stage, as I understand, you were monitoring people, but you were not compelled to report that someone is entertaining the idea of leaving Canada to participate in a terrorism training camp or any other kind of related activities.
Mr. Fadden: That is correct, because currently there is no crime.
The Deputy Chair: Exactly. Your procedure will change, as I understand the reading of the bill and as it was explained to us by previous witnesses we have had at this committee.
Mr. Fadden: That is correct, Mr. Chair. We will have to expand the operational cooperation and relationship that we have with the RCMP to include the Canada Border Services Agency.
I should note that we already have a wide range of contacts with the Canada Border Services Agency. We simply do not have any in this particular context. Those contacts will have to be expanded to include this new crime.
The Deputy Chair: Exactly. This it is one of the major purposes of the act, as you mentioned yourself; it will be an additional tool.
Mr. Fadden: Yes.
The Deputy Chair: When you said in your opening statement that this is an additional tool, could you be more specific about how it will be more useful to have those new criminal offences in the act?
Mr. Fadden: I think the current Criminal Code, as I understand it, says that it is a crime to go abroad to participate in a terrorist act. It is a crime to go abroad to encourage terrorism. The difficulty that I understand our law enforcement colleagues have is proving this; proving that someone has been in the middle of Yemen or Afghanistan is very, very difficult.
My understanding is that it was the intention of the government to propose a crime that would have elements that can be completed in Canada. One of the various elements would be an intent to leave Canada, which is relatively easy to prove; you can prove that by acquiring a ticket, by intercepting communications, and by talking to individuals. That is relatively easy. The harder part, of course, will be for the police — sometimes with us assisting, sometimes on their own — to demonstrate that the intent to travel was for the purposes of terrorism. That is not easy, but it is not impossible. We will be working with our law enforcement colleagues to develop a threshold at which we will be able to start our dialoguing with them.
The Deputy Chair: I do not want to monopolize this, but I wanted to kick-start this discussion.
Senator Dallaire: The CSIS Public Report 2009/2010 says on page 10: "In particular, Canada witnessed cases in 2009 where several Somali Canadians were believed to have left this country for terrorist training camps in Somalia . . ."
We are parliamentarians with absolutely no access to classified information, meaning we are parliamentarians who cannot provide any oversight on institutions that do operate within the classified area. However, without even having that, can you tell us how you garnered that sort of information in 2009 regarding, in particular, the Somalis?
Mr. Fadden: I can tell you in general terms; it would be inappropriate for me to talk about operational details.
The main way that the service acquires information about people is by talking to people. We have contacts in virtually every community in Canada that have some connection with terrorism. We talk to people. Very often, if individual X wants to go to Somalia, there is someone in that individual's family who will pose this to us. Very often their parents will pose this, or their family and close friends will mention it to us. Initially, very often, our knowledge will simply come from speaking to someone.
Once we have a clue of that nature, we can use a variety of means to find out whether they are serious. Depending on the circumstances, we will just talk to more people, which is our preferred way of doing it. If that does not result in any clear outcome, we can have recourse to a federal court warrant, which enables us to use various technical means of intercepting information.
A combination of all of those resulted in our ability to make that statement in the annual report.
Senator Dallaire: The statement makes it quite clear that some have gone to join terrorist organizations. Can you tell us how many of them have returned or whether there was follow-up on them in regards to their actually being engaged in any terrorist group from somewhere in the world?
Mr. Fadden: Yes, I think I can, senator. We know that a number of them have participated, in practical terms, in jihad. A large number of them were working for Al-Shabaab.
We find this out through a variety of means, sometimes through our allies, who have resources in that area, and sometimes through speaking to other people. For example, they write to their families in Canada and we are able to talk to some of them. In a few rare instances, we are actually able to cite them ourselves. It is relatively difficult to do this, for a number of reasons, one being that Canada has no system whereby anyone is informed when individuals leave the country, so we are never absolutely certain unless we are focusing on an individual before they leave. It is a bit easier for them coming back.
Going back to the chair's comments about relationships with CBSA, if we know someone we suspect is planning to return to Canada having participated in some of these activities, we will ask CBSA to put a watch on them so that we are informed when they come back to Canada.
It is our belief that a very small number have in fact come back to Canada.
Senator Dallaire: We have seen the extreme elements of the Muslim world moving into the jihad context and quite engaged in terrorism around the world. Have there been other groups — as an example, sub-Saharan African groups of any type where diasporas are quite extensive now in the developed countries — moving in that sort of trend?
Mr. Fadden: I think, Mr. Chair, most of our worries revolve around either al Qaeda or al Qaeda-related groups. We have al Qaeda in the Arabian peninsula, operating out of Yemen. We have another group operating in the Sahel. We have Al-Shabaab. Increasingly there are worries in the Western communities about Boko Haram, which is operating in Algeria and is loosely affiliated with al Qaeda.
The only other group that warrants mentioning that is not related to al Qaeda but that does have a reputation worldwide for engaging in terrorist acts is Hezbollah.
Senator Dallaire: The government recently published a counterterrorism strategy entitled Building Resilience Against Terrorism. Where would this bill fit into that, inasmuch as it being an essential requirement to be introduced in order to achieve that strategy? Is that strategy completely unclassified and available, or are there classified elements to it?
Mr. Fadden: To take your last question first, senator, the strategy itself is entirely public. I think various departments and agencies, including CSIS, have operationalized, to use the chair's word, various parts of it, which are classified. However, the strategy itself, which is an articulation of the government's principles and the guidance they give to us, is entirely unclassified.
I think in large measure the proposals in the bill would deal mostly with the "prevent" and the "detect," in the sense that they provide not just CSIS, of course, but also law enforcement with new tools to detect the possible commission of terrorism acts. Even in the case of the investigatory hearings, we think they will mostly be used by the police, but even in our situation where we have someone that we cannot quite develop a firm view on, asking our law enforcement colleagues to contemplate asking the courts for recourse to this provision might be useful.
Senator Dallaire: The proposed legislation does not differentiate between adult and youth in any way, and there have been discussions. We have a case pending that, hopefully, will be resolved someday, of an ex-child soldier who has been qualified as a terrorist. From the way this legislation is written, do you believe we are simply circumventing any of the youth-protection instruments that we have in the country and overriding them by calling an individual a potential terrorist?
Mr. Fadden: I do not believe so. My understanding is that the Youth Criminal Justice Act in Canada contains a notwithstanding clause that says that it applies notwithstanding any other statute of Canada. I believe that when the Minister of Justice was before you, he made this very clear, that the Youth Criminal Justice Act takes precedence over this.
I would just add in passing that CSIS has a number of special processes and procedures that guide us in dealing with youth. From our perspective, and in my understanding from the Minister of Justice, this in no way will change the effect of the youth justice act.
Senator D. Smith: Originally I was going to ask about the sort of evidence that you would need to have in order to warrant the laying of charges. You have already touched on that a bit. It is kind of vague, and it will be difficult and challenging. There are certain ironies to this legislation. If some of these people want to go abroad, I do not mind if we are rid of them. Quite frankly, you take the Mississauga 18 crowd. Am I going to feel worse if they are someplace else rather than trying to do it here? That is just a musing.
One other thought occurs to me. Where do you draw the line? Take, for example, people from Syria who are not happy with the current regime — it is hard to understand how anyone would be — and maybe want to go back there to do whatever they can to help the insurgency. Would this have any application there, or where do you draw the line?
Mr. Fadden: That is an interesting question, and I think I am going to have to refer you a little bit to the testimony of Mr. Nicholson, the Minister of Justice, who said that it is virtually impossible to generalize. You have to look at each individual case.
From our perspective, one bit of guidance that makes things easier for us is the Criminal Code lists a number of proscribed organizations. Therefore, if an individual is interested in going abroad to work with that organization, al Qaeda being the perfect example, then it makes it relatively easy. There is a complex process for getting these people on that list.
In the case of Syria, it would be difficult for me to comment because it is a real case, but it would involve consultations between us, the police, Foreign Affairs and the centre of government.
Senator D. Smith: I do not have much confidence in that list that they have. With regard to Iran, I have on a couple of occasions gone to those rallies that they have had in Paris for people in favour of some sort of human rights and democratic procedures there, and a couple of the groups are still on there that the British and the Europeans took off but the Canadians will not deal with it. They are in total denial. When you are over there with those Iranians, none of them is talking about violence but just about human rights and some sort of democracy. Maybe you are familiar with what I am talking about.
Mr. Fadden: I think I am to some degree. Part of the difficulty is that the legislation that governs these listings varies quite a bit between various countries. In respect to the United Kingdom, for example, over the course of the last couple of years, they were ordered by the courts there to remove a list or two.
Senator D. Smith: I know.
Mr. Fadden: The government of the United Kingdom did not agree. Australia has a listing process. It is quite a bit different from ours.
If you would allow me to comment on your first comment about your being happy to be rid of these individuals, I think at one level I understand that. We sort of say to ourselves it is better to get rid of them and they do not do any damage in Canada.
Senator D. Smith: That crowd was going to do it in Canada.
Mr. Fadden: That is true, but there is a general feeling enshrined in the UN convention on terrorism that countries have a responsibility for their own citizens to some degree, so it is to some extent why we worry about Canadians going abroad. Certainly, our close allies, the U.K., the United States and others consider that Canada has a responsibility to keep an eye on its own citizens when they are going abroad doing harm. I understand your reaction on one level. On another level, I would argue we have to worry about them even if they are going abroad.
Senator D. Smith: That is a valid point. I understand that.
Senator Tkachuk: Thank you, Mr. Fadden. I was kind of surprised when you brought up the question of "lone- wolf" terrorism because it seems to me that your mandate would be to keep us safe from organized terrorism, people who have made it their business and have publicly said they are going to do us harm. It seems to me that the lone-wolf terrorist would be the prerogative of the RCMP, that these people are nutcases that kill a bunch of people. They have been doing that since time immemorial and society finds a way to deal with them. Would CSIS have something to do with that?
Mr. Fadden: I think it depends, senator, why they want to do what they want to do. If it is purely criminal, as you say, they may just be nuts, to use the vernacular, and they may want to do harm because they do not like their neighbours or they do not like someone of that nature.
However, the way the law is structured, so far as I understand it, if they are doing this because of a political or religious reason, then it falls within the definition of terrorism, whether they act alone or in a larger group. As long as the motivation is not purely criminal but instead is religious or political, then the view is that we have a role to play in trying to find out about them, and then, as soon as we do, to pass them to the police for prosecution.
Senator Tkachuk: Is that religious or political by what they are or by what they do not like?
Mr. Fadden: It is by what they do not like. In other words, their motivation for undertaking a terrorist activity on their own is political. In other words, it is not just criminal. They do not just want to blow up a bank or kill an individual, but they want to do this in order to make a point for political or religious reasons.
Senator Tkachuk: A lot of people would not like certain things but not necessarily be prepared to commit murderous or terrorist acts. You certainly do not want to have them wired into the CSIS operation, because that would cause all kinds of problems within the state itself, I would think.
Mr. Fadden: I think that is true. We have a lot of procedures and protections built into our operations to assure we do not do that.
I can give you an example of an individual who has already been dealt with by the courts and is in a penitentiary. It is an individual who, in northern Quebec, basically sat in his basement and became radicalized through the use of the Internet. He did not have many dealings with any other individual, but through the use of the Internet, he decided he wanted to try to promote violence by acquiring material that would allow him to construct a bomb, I think it was. He wanted to do this because he believed in the basic message of jihad, which is that the West is at war with Islam. I think he has been sentenced to 20 years, but I have forgotten which individual this was.
My point is, if we had found out about him and he had not wanted to commit an act of violence for religious or political purposes, we would have passed him to the RCMP and not thought about it at all. As soon as he indicated that he was doing this for the purposes of advancing jihad — in other words, to fight back against what he perceived to be an attack by the West on Islam — in our terms that became legitimate for us to pursue.
Senator Andreychuk: I have three areas I want to cover, Mr. Fadden. First I will take a little bit of issue with you, and you can respond.
You indicated that this bill does not directly affect you, that it would affect either the border security or the police authorities. Is that not a bit of the thinking that existed in the old days with the RCMP and CSIS? Surely the CBSA and the police will rely on your information in many of these cases. You are the first line, so this act does affect you, does it not?
Mr. Fadden: Absolutely, senator. I think I put in there somewhere the word "directly." The reason I said "directly" is that the law as it is set out now says you have to be a peace officer in order to invoke the various provisions contained in the bill. We cannot do that.
I am only disagreeing with you to the extent that there is a "directly" in there. It does absolutely affect us. We think it will be useful. We cannot invoke the provisions ourselves because they require a peace officer, and members of the service are not peace officers.
Senator Andreychuk: You are indicating that you understand your responsibility in providing the information to those who make the choice. Is that right?
Mr. Fadden: Absolutely, without any reservation.
Senator Andreychuk: Thank you. My concern is, as you said, it is a pretty high bar to figure out whether someone is leaving the country for the purposes of a terrorist act or joining a group. My concern is going to be the fallout, should someone leave Canada, not be caught and cause a terrorist act. The tracing back will be by the press and others wondering, did you do the job well? Therefore, the protocols will be very important in prescribing to these new border agencies what their responsibilities are.
I see someone coming through with something they should not have. We have an infinite number of security people going across Canada, and there are a lot of them, that would have to know what constitutes the threshold here for the evidentiary. They are caught between moving too quickly and being faulted for that or not moving at all.
Certainly, will training not be the issue of a protocol so they understand this new role if this act will have any effect at all?
Mr. Fadden: In practical terms, I should start by saying that those protocols are not in place because the law has not been enacted.
Second, in terms of catching people at the border, if I can use that expression, in practical terms it will mean that we and the RCMP will have to continue to work together to identify individuals who might want to go abroad.
Generally speaking, CBSA does not involve itself in that kind of investigation. Again I emphasize that we have not developed the protocols yet. What we will need to do is work closely with the Mounties and make sure we are communicating at all times with border services.
The other complicating factor, I am sure as you well know, is that Canada has no system for controlling exits. We do not even have a system to be aware when people are leaving. This will involve more than the CBSA; it may well involve CATSA, the agency of the Department of Transport that regulates security.
I should not say much more because I will get myself into a situation I will not be able to get myself out of. Honestly, we recognize the need for the protocols without any reservations. They have not been elaborated yet because the law has not been enacted.
Senator Andreychuk: The other sections of the Criminal Code will apply. As you indicated, those who wish to do the harm are pretty skilled at it, and they will move as we move with the law. Often they are ahead of us, unfortunately.
How will you think through the accomplices and the aiding and abetting sections? I am asked to buy an airline ticket, I buy it and I think I am just helping out a friend. We are back into all of those old cases, such as "I just drove the vehicle to the bank" story. Is this going to open more vulnerability to people who associate with someone who might be suspect? Will there be some look at the vigilance that they will need, which is a whole different training of the public?
Mr. Fadden: In practical terms, any new provision of the Criminal Code gives rise to the possibility of conspiracy for aiding and abetting. Not all of them, but most of them do.
I am not a peace officer, so there is a limit to what I can say about the details on this front. One of the things CSIS tries to do, to the extent we can, is identify the individuals whom we think are most likely to cause harm. That is the thing that motivates us in the first instance. Then we start talking to the police about prosecution, people who are helping the commission of the offence. You keep broadening the circle of individuals you are talking about until you reach the point where the police determine it is not practical to go any further and we think, as you indicated, that the individuals who may have been helping may have done so innocently.
You put your finger on a difficult area for operations because a lot of people, quite honestly, willingly help the commission of offences. Others are less aware. In the end, it boils down to the service, the police and the prosecution service making judgments in each individual case on the basis of the facts that they have before them.
Senator Andreychuk: I recall the cases on narcotics and drugs, and the predominance of the cases were the mules carrying them and the children who did also. Therefore, it became harder and harder to prove the case and it became more complex than if we had perhaps left the law targeting the actual culprits, who seemed to get away with it all the time, and the ancillaries were caught.
Mr. Fadden: You describe many real cases. In other circumstances, it is also true to say that those on the second tier are involved, but I would urge you to talk to the RCMP about this. They will know in greater detail than I do.
As you and others were suggesting, our main efforts are to give the RCMP as much information as we can when we think there is a crime involved about as many people as we can, and then the prosecution service must make a judgment as to how far they think they can go.
Senator Andreychuk: Do you communicate with the communities? We are talking about immigrant communities. With respect to the one I came from, I think it is very helpful when you reach out to them and indicate certain behaviours that may be inappropriate and others that are perfectly decent and build a confidence and trust with these communities.
Mr. Fadden: We do. Most of our regional offices have a community liaison program. To be honest, it depends on the particular community how much they want to be liaised with. Some are more open than others, but we try to the extent we can to communicate with any group where we think there is a potential for terrorist activity. In most cases, but not in all, we do so with the RCMP and with other government agencies.
Senator Dagenais: I thank the witness for his presentation. You got my attention when you talked about lone wolves or lone terrorists. You mentioned, among other things, that these people communicate through Web forums and that they belong to virtual groups.
Am I to understand that this is a new form of terrorism? Will this type of terrorism have a tendency to flourish? Is it more difficult to identify? And do you believe that methods of investigation will have to adapt to this new kind of terrorism which, unfortunately, if we take the case of Anders Breivik and Mohamed Merah, causes many deaths? I know that we should not make a parallel with what happened in Quebec with Kimveer Gill, who had a website, but I would like to hear your comments on this subject.
Mr. Fadden: Will the number of people who act on their own increase? Yes, I think so. That does not mean that there has not been a wide range of individuals throughout history who have done the same thing. A few months ago, al-Qaeda decided that the events that they caused in New York, on September 11, 2001, were too difficult to carry out. They made a conscious decision to change their doctrine. We saw evidence of this in their magazine Inspire and on their websites, particularly the one for the al-Qaeda branch in Yemen. Their publications strongly encourage people to act on their own.
I do not know if you are familiar with the magazine Inspire. It is published by AQAP, al-Qaeda in the Arabian Peninsula. The magazine provides very specific instructions as to how an individual can cause the most damage.
Here in Canada, on several occasions, we have intercepted people chatting on the websites. They were saying that they were prepared to undertake this type of activity. I should point out that my colleagues in the United Kingdom, in Australia and in United States think the same thing.
We have seen a slight increase in the number of individuals acting alone. This activity really complicates our lives. As you no doubt know, with groups, the likelihood of intercepting their communications or of someone making a mistake is much greater. When just one individual is involved, we really have to get lucky, which happens at times, and hope that the individual may make a tiny error here or there.
In collaboration with our colleagues in the west, the French, the Germans, the Americans and the Australians, we are trying to develop a greater understanding of this type of individual. This is not an easy task, because as I try to say in my remarks, such individuals appear to be a mixture of terrorists and people who simply have very serious personal problems. So it becomes very difficult to build a doctrine or operational strategy to deal with them.
In all honesty, yes, this matter worries us.
Senator Dagenais: Thank you, Mr. Fadden.
Senator Day: Mr. Fadden, I have two or three questions arising out of comments or allusions that have been made during this session. The first one is I think you mentioned we do not have any departure declaration here in Canada, and therefore it is difficult for your group and other agencies to know about what people are doing within Canada. Is there a movement in that direction? Are there those advocating for such a departure declaration system?
Mr. Fadden: Senator, I would not like to talk for others. Speaking exclusively from the perspective of the service, it would be easier for us if we had some sense of who is leaving the country. However, I am a citizen too. I recognize that there are important issues relating to this. You have a constitutional right to move about and out of this country, and how you do this and in what circumstance you do it I think is a policy issue that ministers will have to address.
From my very narrow perspective, it would be helpful to know who is leaving the country, but as I say, I recognize it is one amongst any number of considerations that would have to be taken into account before we move there.
Senator Day: We will leave it at that at this time.
Mr. Fadden: Thank you.
Senator Day: It does exist in other countries of the world now. I was going to say it does not appear to be that much of an inconvenience, but not having lived under that regime maybe I do not have the same perspective as someone else. So we can leave it there.
About five, six, seven years ago there was a parliamentary committee that went about the country, went about the world actually, visiting Australia, England, the U.K. and the United States, and came back and did a report recommending — and I believe at the time a report that was fairly favourably looked at by the government of the time — a parliamentary legislative congressional type of oversight where the lawmaker would participate in briefings that we do not normally get involved with but would have a different level of responsibility, obviously, as a result of having that kind of briefing.
We have not heard an awful lot about that in the last few years. Senator Dallaire made reference to it indirectly in posing his question. Do you see any merit in that type of oversight? Would that be helpful, in your view?
Mr. Fadden: At the risk of being seen as an uncooperative witness, senator, I have to say, to use an American expression, that is above my pay grade. It involves the relationship between the executive government and Parliament. It would not be appropriate for me to comment.
Senator Day: Okay.
Mr. Fadden: I know it is a very sensitive issue, and I just do not think that as an official it is for me to comment on relations between ministers and Parliament.
Senator Day: When this appeared to be a matter of some interest a few years ago, did you see a lot of resistance within the agency?
Mr. Fadden: To be honest, there were mixed views as there are in just about any group that talks about this. I guess I would only say that if Parliament and ministers moved in this direction, it would mean quite a substantial change in our constitutional arrangements.
Senator Day: Yes, it would.
Mr. Fadden: I think in any case that involves that level of change, there are a variety of views, and again I plead the fifth on this one.
Senator Day: However, you do talk to your colleagues in the U.K. and the United States?
Mr. Fadden: Yes.
Senator Day: They are subject to that kind of oversight?
Mr. Fadden: They are.
Senator Day: Have you formed any opinion from having talked to or listened to them?
An Hon. Senator: He is not on trial.
Mr. Fadden: I would note that the system in the United States is entirely different. I would argue that is like comparing apples and oranges. The relationship between the branches of government in the United States is totally different than it is here. I think in the United Kingdom there are actually mixed views on whether it has worked or not, and again I will take the fifth for sure now. Please help me, Mr. Chairman.
The Deputy Chair: You are doing well.
Senator Day: Far too much encouragement coming from another part of this meeting, too, Mr. Chair.
I have another, and that relates to the relationship that we talked about, RCMP and CSIS. When CSIS was first formed, there were a lot of mainly or exclusively ex-RCMP, and that has over time slowly changed. In your time, you have seen quite a change. Have you seen a change in culture as a result of that change, and is that good or otherwise? I would like you to talk a little bit about that, if you would.
Mr. Fadden: If you take into account what I think was behind the rationale of Parliament for creating CSIS, which was to create an organization that was different from the RCMP, then I think a cultural change was something that was desired and that people worked on for a goodly number of years.
I was just told the other day that we now have only 17 former regular members of the RCMP left in the service. The culture has changed a lot. When we first started, we were entirely RCMP officers, so it was basically made up of law enforcement agents not in uniform trying to create a new agency subject to entirely different rules. I think that is something that people sometimes forget. The rules to which we are subject and the rules to which peace officers are subject are entirely different. The context is different. It required I think a fairly big change. My sense is that it has changed over the years and it really is a civilian agency now.
Our big challenge in the last seven years has been that at the beginning you had to separate the RCMP and the service, but now we are trying to knit ourselves back together in order to cooperate effectively. I have now been at CSIS for two and a half years. My sense is that the service and the RCMP are effectively cooperating very well. We have different perspectives, so we sometimes look at the same issue from a different point of view, but, to my mind, that is why Parliament created another agency. The days where we did not share information, where we did not talk to one another, where we did not work on investigations together are long gone. Have we obtained nirvana? No, probably not. However, one of the outcomes of the Toronto 18 incidents was that we developed, with the RCMP, a joint operational manual that sets out actual day-to-day operations, who does want to whom, under what circumstances and when. That would have been inconceivable 15 years ago, so I believe we have made a lot of progress.
Senator Day: It is perhaps not fair to look at another jurisdiction, but I will and I will ask you to do that. Over the past few years there have been quite a few revelations of the jealousies between the CIA and the FBI. There are dangers to growing separate. We did not have that initially because the CSIS officers were former RCMP, so the cooperation and personal relationships existed. In your answer you seem to talk quite a bit about cooperation and the importance of cooperation. Is that to avoid what we have seen in other jurisdictions, such as jealousies between different agencies and stepping on one another's toes?
Mr. Fadden: That is a good question. I would answer by saying that I have come to view the world as being a pretty complex place and there is a need for specialized agencies doing a variety of things. The days of having one agency to deal with the execution of every law that a country might have are passed. It is just too complex a world. In our case, Parliament has made the decision that there will be at least two agencies. I would argue we actually cooperate really quite well. To give you an example, there is an operational coordination meeting monthly in every region of the country with the RCMP. We tell them what we are up to, they tell us what they are up to and we "de-conflict."
In the case of the United States, the FBI and the CIA truly have different mandates. In theory, the CIA is supposed to operate outside the country and the FBI in the country. The complexity that I was talking about can be demonstrated by the fact that the CIA now operates in and out of the country and the FBI operates in and out of the country.
That is an imperfect answer but it is the best I can do, senator.
Senator White: We had a question around the U.S. model. In the United States it is true as well that there are two different ministries that oversee the two departments, the CIA and the FBI, and some would argue that in Canada our success — and I do call it a success over the past half decade in particular — has been the fact that both report up through one ministry. Would you agree with that?
Mr. Fadden: I think that is true. It is both practically true and it has a psychological effect as well.
Senator White: Because I have had discussions with both RCMP and CSIS employees over the past half decade in particular, they would argue that the relationship might now be the best it has been since the formation of CSIS. Would you also agree with that?
Mr. Fadden: I would agree with that, and I would agree with that for two reasons. One, I worked in the Privy Council Office at the time CSIS was created and I had some sense of what it was like then, and it is like day and night. Second, I have made a point of asking both my colleagues in CSIS and in the RCMP the same question, and the answer is absolutely the way you put it.
Senator White: As more of a comment than a question, my last point is that I think in 1984, 1985 and 1986 the two agencies were the RCMP and the other RCMP almost, whereas today it is two agencies with very distinct operational models that are actually forced now to work together because they could not use the back door to get information and share information. Now they actually have to use the front door. Is that also correct?
Mr. Fadden: I think that is right.
The Deputy Chair: Mr. Fadden, you mentioned that in your operation you talk to people to get the information you need to make the decisions that are yours and that you sometimes talk to foreign countries and you get information from outside. In the context of this bill, if you received information from a country and were informed that that information had been received through torture, would you use that information in relation to this bill?
Mr. Fadden: The guidance that we have received on this matter is that any information we have which we believe has been received as a result of torture can only be used if we believe that there is a danger to life or a substantial danger to property, and we have used every other method that we can think of to try to confirm the information. However, for this information and any other liaison relationship the rule is the same. We have to be absolutely convinced that by using this information it would save lives. It cannot be used for a judicial purpose; it cannot be used for a quasi-judicial purpose; it cannot be used for prosecution. It can only be used for what I call executive action, in other words the police or someone else stopping someone from doing something.
The Deputy Chair: In the context of this bill that creates two new offences, the one of leaving the country and the intent to leave the country, would you interpret that as endangering the life of citizens at the end of it, or would you interpret it in a more restrictive context of the offences that are well spelled out in this bill?
Mr. Fadden: Our general inclination is to interpret the direction that we have received from the minister and the government quite restrictively and that we should only make use of such information if the conditions set out are very clearly met. I am not trying to avoid answering your question but simply saying that it is difficult in the abstract. The rule would be interpreted very restrictively. There would have to be a clear demonstration of a danger to life, in particular of someone in this country.
The Deputy Chair: The letter you received dated December 7, 2010, mentions quite clearly the intelligence provided by foreign agencies that may have been derived from the use of "torture or mistreatment," so it was clearly spelled out, but in the letter you received from the minister dated July 28, 2011, I notice the word "torture" has been dropped. It says:
In exceptional circumstances, CSIS may need to share the most complete information in its possession, including information from foreign entities that was likely derived through mistreatment, in order to mitigate a serious threat of loss of life, injury or substantial damage or destruction of property before it materializes.
Is there a distinction between those two letters, or a change of orientation in those two letters, in relation to the information that you would use from foreign entities?
Mr. Fadden: I do not think so, Mr. Chair. The letter that the minister sent to me was meant to be a temporary measure while the government was considering its position generally on this issue.
The Deputy Chair: Do you mean the letter of December 10?
Mr. Fadden: The letter, that is right. In my discussions with Mr. Toews it was very clear that when he is talking about the ministerial direction that now governs us, the earlier one or that letter, it includes torture and mistreatment. It was not meant to signal any sort of policy change.
I do not have the letter in front of me, I apologize.
The Deputy Chair: Of course I could give you my copy. By the way, it is unclassified. Anyone can go on the Internet and get it. I am not privy to any confidential information here. It is just that it crossed my mind because the two words cover a totally different reality. Torture is one kind of act and mistreatment is another kind of act. There is a convention on torture. A convention on mistreatment is a little more dubious. That is why it raised my interest when I read it, because under the directive that you received, there was a qualification of two different realities.
Mr. Fadden: From our perspective, there is a deputy director of operations directive that sort of operationalizes all of this. I think, if you saw this, that you would see that it covers the full spectrum from mistreatment to torture, as defined in the convention against torture. We treat the information in either category in the same fashion.
The Deputy Chair: Would you be concerned that, if you got information of that nature and someone was charged under the new offences of the Criminal Code — the ones that would be created by Bill S-7 — a person could challenge the charge on the basis of its being against the convention against torture that the Supreme Court of Canada has upheld in former decisions?
Mr. Fadden: Again, I am trying not to be uncooperative. You are asking a technical, legal question, which I would like to decline to answer. I think officials of the Department of Justice would be better placed to answer it. In my experience, depending upon which side of the argument you are on, you can probably find a lawyer to argue either side of the equation. How the courts would deal with it, Mr. Chair, I would rather defer to the Department of Justice.
Senator Dallaire: The dissemination of intelligence is not the strength of any intelligence organization. Collation, yes, but not dissemination. Certainly, when I was wearing a uniform, between all the different organizations, it proved to be exceptionally difficult to get intelligence shared because people kept protecting their sources.
Now we have an act here that will put a lot of demand on the municipal level to seek out a lot of information. They are really going to be the front lines in this as they do intelligence-based policing and gathering of information. You tell us that you have your monthly meetings and so on. I also sat on the National Police Information Services Advisory Board where we also saw problems of dissemination and exchange of information.
How will you guarantee to us that the municipal level will actually get all that data and that it will be maintained? Those people are often at the municipal level. This is a new realm for them. Who will do their training? Who will ensure the exchange? Are they setting up special branches? Will you be engaged in that? Can you give us something better than that you have got a monthly meeting?
Mr. Fadden: When I was referring to the monthly meeting, I was trying to make the point that we had an organized protocol with the RCMP. There is an organization called ITAC, the Integrated Threat Assessment Centre, which is lodged in CSIS, and one of its mandates is to liaise with the private sector and with provincial and municipal forces.
It maintains fairly comprehensive lists. I would never say that we cover every base; I do not think it is doable, but we try. They have quite comprehensive distribution lists across the country, for both local and provincial police forces and the private sector, and they are specifically charged with taking information that sometimes is classified at a very high level and lowering it a level or two so that we can share it.
You will be aware from your experience in the military, senator, that the very high classification very often relates to the source or methods, and you do not really need to tell people that to give them the substantive intelligence. I still think there is more work to be done. We have not found perfection yet, but ITAC has moved some considerable distance in sharing this kind of information.
I was in Edmonton the other day and had lunch with the chief of police there. One of the things we were chatting about is whether they were getting the right information. If not, could they talk to us about it? We have been encouraging people, if they do not think they are getting the information, to talk to us so that we can change the relationships.
Beyond that, quite honestly, I have told my guys and gals that if we ever have information that puts life at risk and do not have a protocol or an MOU or a note from my Aunt Mona, they are to pick up the telephone, call the contact, and tell them. That does not happen very often, but, if we really have a threat that we are convinced is real, we will pick up the telephone if we have to.
This is not a perfect answer, and I am aware of that. We are conscious of the challenge you have set out, and I think, over the last few years, people have made a lot of progress in getting to where you think we should be.
Senator Dallaire: The reason is that the legislation will come in, but it has nothing in it to assist all the different agencies, either by funding or even direction, in how they will actually be able to apply this, which means that we could see a big gap and even ineffectiveness sometime down the road. The legislation could maybe have tightened that side up and ensured that it works out.
The other side is that a lot of the recruitment is of youth. We have a whole bunch of disenfranchised youth in the country from a variety of communities, including Aboriginal youth. Does any sign come out of any possible recruitment or concern from Aboriginal gangs or youth that they might also be a source that should be of concern?
Mr. Fadden: I think the annual report that you referred to, senator, said that, from our perspective, concerns that we might have from Aboriginal groups are very limited. If you go back in history 10, 15, or 20 years, that has not always been the case.
Senator Dallaire: I know.
Mr. Fadden: However, our sense now is that, for a variety of reasons, that is not one of the areas that we would consider of primary concern.
Senator Dallaire: You have a country that is in civil war somewhere. The rebel group who potentially won the war has now established the government. People from that group want to immigrate to Canada but have participated in rebel action to put in a better government and so on. Others would simply say it is terrorism, and we know the debate in the Middle East extensively.
Do you have the means, or are you called upon, to differentiate these people should they want to come into this country and even, potentially, want to leave it again?
Mr. Fadden: The perfect example of someone in that situation is former President Mandela, of South Africa, who needed a ministerial permit to come to Canada in a number of circumstances. We are asked to comment in respect to anyone who seeks to come here. Our advice would simply be, to the extent that we can, to set out the circumstances. Whether it was a democratic government or not, being overthrown would be a factor. We would go through a whole bunch of things. Then, CIC would be required to make a final judgment. I understand that the Minister of Citizenship and Immigration has a series of proposals to deal with your specific issue. I do not know about the details, but I was told the other day that this comes up actually relatively frequently as governments change and that he has a proposal to deal with it.
Senator Dallaire: I am just back from Rwanda, and they cannot even get into the country to get to the government, as an example.
My last comment is going back to youths who are recruited internally to the family structure, are prepared psychologically by the family, and potentially then move off.
You can stop the youth, but to what extent does the engagement of the family matter in that context, be it culturally or religiously, to the possibility that that youth might be going to conduct training and not just visiting his grandmother?
Mr. Fadden: I think we have encountered people at both ends of the spectrum. For example, I think it is a matter of public record that Omar Khadr, who is trying to come back to finish his term in Canada, ended up in Afghanistan because of family pressure and family training. We have other examples that I cannot talk about publicly where the families have done everything short of locking the kid up in the basement to keep them from going to do jihad and a whole bunch of things in the middle.
It is hard to generalize, but it goes back to the question from one of your colleagues a minute ago. We try to talk about this as much as we can, along with the RCMP and Citizenship and Immigration, to make people aware that these sorts of things are happening. In the end, it really is a function of how much the family is prepared to talk to people and to listen to us. We also sometimes try to talk to religious leaders in particular communities to try to convince them to talk to individuals. However, as you know, that is a very sensitive issue, talking to someone's community without their knowledge, so we do so when we think we have a clear indication that someone is about to harm themselves or harm someone else. We also try to involve the police as much as we can.
Senator Dallaire: Khadr was 11 years old when he was brought by his father overseas and then put into the institution. Does that still mean that that youth would fall under the provisions here of a potential terrorist and you could stop them before they left?
Mr. Fadden: That is a technical legal question, but my understanding, from what the Minister of Justice told your committee, is that the Youth Criminal Justice Act takes precedence over this act and that any treatment that would have to be afforded to a youth would be prescribed in the Youth Criminal Justice Act. I read Mr. Nicholson's testimony and I think I am reporting it accurately, but it is a technical legal question. I am not trying to avoid it, but I think he would be better positioned to answer than I am.
Senator D. Smith: Your RCMP comments made me a bit nostalgic. I thought we still had a few Nelson Eddys out there in Saskatchewan.
I am curious about something; maybe this is the lawyer in me. In the second page of your comments, we see the words "terrorism, terrorist threat, Islamic extremism and terrorist related." There is also reference to jihad and someone blowing themselves up. You certainly know the ideological or religion fanatical warrior; however, where it does not fall under that category, it is just downright criminal. A simple example would be some guy going from Windsor to Detroit to pull a bank job. Another grey one would be someone going to Somalia on the south side of the Persian Gulf coast where they are doing all the hijackings. He might have grown up there and his friends call him in Toronto and say, "Come on back. You can make a lot of money if you join our gang." This is not for ideological or fanatic jihad religious-related things. They just go a few hundred miles and extract a lot of money from shipping companies. Does this apply to that sort of stuff too? Is that a criterion?
Mr. Fadden: My understanding is that, as the title of the bill suggests, it is meant to deal with situations where terrorism — that is to say politically or religiously motivated violence — is at issue.
The first example you gave would be for Nelson Eddy to deal with. If someone is going to Detroit, it has nothing to do with us. If we ever tripped across this, we would simply pass it to the police.
Senator D. Smith: Say the Somali hijacker goes back. Is that terrorism or hijacking or kidnapping?
Mr. Fadden: We would have to try to find out what their motivation is.
Senator D. Smith: Money.
Mr. Fadden: I would be the first one to admit it is not always easy. If they are just criminals trying to fill their bank account, to a certain extent we would help the police if we could, but it would be a criminal law matter.
Senator D. Smith: Are names triggered off? The name "David Smith" would be fairly common. About a year ago, some guy with that name in the United States did something bad and every time I go to the airport, they say, "We know you. We know who you are, but we have to phone." They would have to go through this. It took me six months to resolve that.
Mr. Fadden: I am smiling because —
Senator D. Smith: Did they phone you about me?
Mr. Fadden: No. I have a brother-in-law called David Smith who has the same problem. On one occasion they actually brought out the SWAT team at the border crossing because they thought he was someone else entirely. Like you, he has now sorted it out.
Senator D. Smith: I will not tell you about the frisking I got at LaGuardia — but another time.
Senator White: The Criminal Code of Canada does have some criminal responsibility for parents who aid and abet or have a child who commits an offence. This would cover that type of situation where an adult is taking their 11-year- old to another country to participate. Then, children's aid societies in each of the provinces could also deal with the child. Is that correct? Certainly something could be done.
Mr. Fadden: I agree, senator. I think the problem is knowing the motivation; it is not easy. If you know the facts, I agree with you.
The Deputy Chair: If there are no more questions for our guest this afternoon, I have a final one for Mr. Fadden.
You mentioned on page 2 of your brief that CSIS is aware of 45 Canadians, possibly as many as 60, who have travelled or attempted to travel from Canada to Somalia. Do we understand that in the context of this bill, all those people would have their names on a no-fly list so that they would be prevented from leaving Canada and the RCMP could charge them at the airport?
Mr. Fadden: That is a difficult question, because the criteria for placing people on the no-fly list are not straightforward. In Toronto, for example, we have a young man who wants to go to Somalia. We understand from talking to people or from intercepts that his intention is to go and do jihad, which means to commit some form of violence over there. The current rules, as I understand them, say that you can deny someone access to an aircraft if they are an immediate threat to aviation. Technically speaking, this individual, who may not be a very nice person in the end, is not an immediate threat to aviation because his objective is to get to where he wants to go; it is not to do damage to the aircraft.
Now, there are other means, I understand, that are being looked at short of the no-fly. In other words, the RCMP may put an air marshal on the plane and they may be frisked three times on their way through thinking that it is Senator Smith again. You can do a variety of things. The current structure of the no-fly list program is such that you have to be a threat to aviation. The cases that you are defining, I am not sure. There is some flexibility and if people were convinced that the person might be a risk, you might try to do it. My understanding is that officials are preparing a series of proposals for ministers to try to make this list a little more subtle, but I do not know where they are on it.
The Deputy Chair: Thank you very much, Mr. Fadden, for enlightening us and helping us to understand the implication of Bill S-7. It is my pleasure to thank you on behalf of all colleagues in the Senate.
Mr. Fadden: Thank you.
The Deputy Chair: The meeting is adjourned.
(The committee adjourned.)