Kent Roach
Kent Roach spoke 42 times across 1 day of testimony.
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Kent Roach, Prof. (Law – University of Toronto)
Bon matin. Je m'appelle Kent Roach. Je suis un professeur de droit à l’Université de Toronto, and as you've heard, I'm the moderator of this panel. I've worked with the Ipperwash, Arar, and Air India Commissions on matters relating to policing and intelligence. This panel includes two former directors of CSIS and two leading national security scholars, who I will shortly ask to introduce themselves and make opening five minute statements. I will then ask them to address a series of questions relating to intelligence, as collected by security intelligence agencies and the police; the definition of threats to national security, particularly the 2(c) definition in the CSIS Act first enacted in 1984. I will then ask them to address whether that definition should be changed, whether further study is required, and finally, we will explore whether the exiting or the new definition of threats to national security to Canada should continue to be used as part of the threshold for the declaration of a Public Order Emergency under the Emergency Act. So without further ado, Mr. Elcock, would you please introduce yourself to the Commissioner and make your five minute opening statement?
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Kent Roach, Prof. (Law – University of Toronto)
Thank you very much, Mr. Elcock, and you came in under time. Mr. Richard Fadden.
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Kent Roach, Prof. (Law – University of Toronto)
Sorry, I'll get off of that. Thank you very much, Mr. Fadden. Now Professor Wesley Wark, please, introduce yourself and your five-minute opening statement.
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Kent Roach, Prof. (Law – University of Toronto)
Thank you very much, Professor Wark. A little bit under time. Batting cleanup, Professor Leah West.
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Kent Roach, Prof. (Law – University of Toronto)
Thank you very much, Professor West, and everyone. You were excellent with the time limits. I must have scared you. So let’s start with a little bit of intelligence 101 and explaining the concept of intelligence as it pertains to national security. In the hearings it’s often been referred to as an inexact science. Mr. Fadden, you’ve already referred to it as information. Could you start us on -- with a little discussion about elaborating on your views about what intelligence is?
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Kent Roach, Prof. (Law – University of Toronto)
Thank you very much, Mr. Fadden. Professor Wark, what would you add, agree or disagree with to this question of what is intelligence as it pertains to national security.
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Kent Roach, Prof. (Law – University of Toronto)
Thank you very much, Professor Wark. And Commissioner and the public should know that there is much, much more detail in Professor Wark’s excellent paper that he prepared over the summer, and that is available on the Commission’s website. So finally, on the issue of intelligence, and I’m only a little disappointed, I know Professor Wark could have talked about Grahame Greene, and John le Carré, and cultural ideas of intelligence, but perhaps Mr. Elcock will help demystify intelligence. Thank you.
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Kent Roach, Prof. (Law – University of Toronto)
Thank you very much. At this point, and with the Commissioner’s indulgence, I will briefly step out of my role as a moderator and say a few things about the collection of intelligence by the police, as opposed to security intelligence agencies, which the panelists have addressed. Here I think it’s important to understand that the starting point is the 1981 McDonald Commission, which led to the creation of CSIS. The McDonald Commission warned that the RCMP Security Service, which had an intelligence function within the police, had trouble seeing the difference between dissent and threats to national security. And of course, this was manifest in different ways. At one point, reports of 800,000 files on Canadians at a time when our population was I think about 22 million or 25 million, the detention of almost 500 people under the War Measures Act. And so what the McDonald Commission recommended was what you’ve already heard, is the creation of CSIS with a statutory mandate, a fairly restrictive statutory mandate with words like, "strictly necessary" with it, and a really state- of-the-art external review at that time by CERC and the Inspector General, now by NSIRA and the National Security Committee of Parliamentarians. So when you look at police intelligence, I think it is important to realise that it is working in a less circumscribed way. Now, Justice O'Connor, in the 2006 Arar Commission, went back to some of the things that Justice McDonald and his colleagues observed in 1981, and there was a common concern that the police at that time, within the RCMP, were not adequately trained in national security matters. Now, obviously, the context was different. In 1981, the issue was knowing the difference between a staunch PQs and someone who would actually use or support political violence. In the post 9/11 environment, it was, was there adequate information among RCMP officers about the human rights situation in Syria and Egypt and the consequences of sending questions and cooperating with those people. But I think it is an important background to know that although Justice O'Connor accepted that intelligence is part of policing, indeed, you often hear about intelligence-led policing, which, as you panelists have indicated, could be seen as information-related policing, that Justice O'Connor recommended that the RCMP collection of intelligence should always be restrained by the role and expertise of the police in enforcing the law and in preventing crime. Now, Mr. Commissioner, you've heard evidence about the collection of intelligence by both the RCMP and the OPP. In my view, you should be aware that the police, and here I say especially the municipal police and the provincial police, are generally subject to less watchdog review than CSIS or even now the RCMP's national security activities, which can be reviewed by NSIRA, the National Security Intelligence Review Agency, which has access to all documents other than Cabinet confidences, and I should add, including documents covered by solicitor/client privilege. So there is a very robust relatively new oversight mechanism with respect to federal, but when it comes to municipal and provincial police forces there is not the same. This is not to say that there is none, but there is not the same. Justice Linden, in his Ipperwash Report, raised concerns about police at public protests receiving different and divergent streams of intelligence prepared by people with different levels of experience. And you've already heard about the importance not simply of collection but of assessment, so estimates are made about reliability and the importance of how it is communicated. Justice Linden was particularly concerned in the Ipperwash context that Natural Resources, perhaps not known as for producing intelligence, was producing intelligence that did not always jive with what the OPP had heard. And of course, the Ipperwash Inquiry is relevant because it resulted in what many have recognised was thankfully avoided during this emergency. Just finally in concluding, I will mention that you've heard about Operation -- OPP's Hendon intelligence operation, and was examining the convoy after first examining Indigenous protests, the Wet'suwet'en, Tyendinaga, Six Nation and Caledonia. We really don't know very much about how that started. We do know that in contrast to national security intelligence the OPP Hendon reports were, it's an exaggeration to say shared with everyone, but they were certainly shared much more freely than is normally the case with national security intelligence. You also have heard that the RCMP's ideologically motivated extremism intelligence branch also produced reports, but I've not seen them as exhibits. Finally, I would add that there has been much commentary, I don't know if you need to get into this to discharge your mandate, but from the 2010 Air India Report on down about whether intelligence is -- national security intelligence is adequately shared with the police. Generally, I think it's fair to say, in part because they operate with the expectation that matters can end up in court, are more generous in sharing intelligence where, to hearken back to perhaps the le Carré/Graham Greene vision of intelligence, which I recognise is partly mythologized, the sources and methods, and particularly the fact that Canada relies heavily on foreign intelligence which is not ours to share, is -- are some of the reasons why security intelligence tends to be shared less widely. I apologise for going over my own self-imposed -- - (LAUGHTER)
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Kent Roach, Prof. (Law – University of Toronto)
--- time limits. So returning to my role as moderator, we'll move to the next question. What are the gaps and -- unless there's a question. No. Okay. What are the gaps and challenges around sharing intelligence with law enforcement across the Federal Government and between jurisdictions? Professor Wark, can you take the lead here?
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Kent Roach, Prof. (Law – University of Toronto)
Thank you. Mr. Fadden, what would you add?
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Kent Roach, Prof. (Law – University of Toronto)
Thank you very much. Food for thought. Professor West.
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Kent Roach, Prof. (Law – University of Toronto)
Thank you very much. Mr. Elcock.
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Kent Roach, Prof. (Law – University of Toronto)
Thank you very much. And I’m going to have to call inaudible now, with apologies to the panel. What I’d like to do is move into, because we want to have time to look at the legislation. So if we can wrap this up by giving each of you three minutes to make one brief suggestion to improve intelligence gathering and sharing. But in doing that, Professor West, I’d like you to also address gathering and open-source. That was question 3, which is now gone. And Mr. Elcock, I’d like to have you address question 4, concerning how it fits into deciding whether there is a public order emergency. So while both of you think about that, why don’t we start off with Professor Wark? So this is your three-minute wrap up on intelligence gathering and sharing? And again, my apologies.
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Kent Roach, Prof. (Law – University of Toronto)
Thank you very much. Mr. Fadden, your three-minute takeaway, and also focused, if possible, on national emergencies and open-source. Thank you.
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Kent Roach, Prof. (Law – University of Toronto)
Professor West, your last three minutes on intelligence gathering and sharing?
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Kent Roach, Prof. (Law – University of Toronto)
Thank you very much, and my apologies. Finally, Mr. Elcock, please take us home on intelligence gathering and sharing.
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Kent Roach, Prof. (Law – University of Toronto)
Thank you very, very, very much. So for our last half hour, we’re going to drill down on two separate but interrelated statutes. The Commissioner has heard much evidence about threats to the security of Canada, the 2(c) definition, and whether it should include serious threats to economic security, serious threats to critical infrastructure, and threats posed by ideologically motivated violent extremism. Those issues are actually dealt with a bit in the 2001 Anti-terrorism Act, but in a highly subscribed way. So the first question will be to ask all the panellists, should the CSIS definition be changed? What are the consequences for CSIS and Canadians? And do you think the Commissioner should make that recommendation or make, as is contemplated also in the Order in Council, further study? So that's the first question. And then the second question, which you can also address, is should the CSIS definition of threats to the national security of Canada, whether it's the current or a new one that you may support or not, should that be part of the definition of a Public Order Emergency, or should those two things be decoupled? So Mr. Fadden, do you want to start, and I'll leave it to you to untangle those two questions.
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Kent Roach, Prof. (Law – University of Toronto)
Thank you very much. Much appreciated. Professor West, same sort of question. So modernisation of CSIS threats; decoupling, good or bad idea;, and how Public Order Emergency ought to be defined if there is decoupling?
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Kent Roach, Prof. (Law – University of Toronto)
Thank you very much. I'll turn to Ward Elcock now. Same two questions. The one thing I'll just remind everyone is if there was decoupling do you have any thoughts about section 3 of the Emergency Act, which here defines a national emergency as an urgent and critical situation of a temporary nature, and I think we're dealing mostly with (a), seriously endangers lives, health or safety of Canadians, and as such of a proportion or nature as to exceed the capacity or authority of a province to deal with. And then, of course, where CSIS threats to security comes in is in the definition of a public order emergency, which has to meet that first definition that I have read, but also, the section 2 definition. So, Mr. Elcock, could you address, one, CSIS Act, two, Emergency Act, should they be separate or joined in some fashion.
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Kent Roach, Prof. (Law – University of Toronto)
Thank you very much. So we now have two former directors of CSIS saying decouple. That may or may not be related to Mr. Fadden's admonition that intelligence should be policy neutral. We have Professor West saying that there are some connections. So, Professor Wark, where are you on this continuum?
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Kent Roach, Prof. (Law – University of Toronto)
Well thank you all for accommodating the changes. I think we’ve heard a lot here. We’ve heard a lot about the need for coordination, both within the Federal Government, the NSA needing staff on the domestic side, and having new staff from the foreign side. We’ve heard the arresting statement, I think it was by Professor Wark, that the NSA heard about the Coutts arrest on the media. We’ve heard both for and against issues of the utility of policy, efficacy- based reviews. We’ve heard a lot about intelligence being policy neutral. And we’ve also heard about the danger of both overusing the 2(c) terrorism mandate and making emergencies too easy to declare. So given that we have eight minutes, I would give each of the panelists the last two minutes, if they have anything else, or if there’s something that one of their fellow panelists said that they would particularly like to agree or disagree with? And then after the break, other people will be asking those questions. So Professor West?
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Kent Roach, Prof. (Law – University of Toronto)
Well as a fellow statutory interpretation nerd, Professor West, thank you very much. Mr. Fadden?
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Kent Roach, Prof. (Law – University of Toronto)
Thank you, Mr. Fadden. I’m going to henceforth refer to my office as democratic. Professor Wark?
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Kent Roach, Prof. (Law – University of Toronto)
Once again, Mr. Elcock, you're the cleanup hitter.
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Kent Roach, Prof. (Law – University of Toronto)
My sincere thanks to all the panelists. And Mr. Commissioner, I hope that that is of some assistance to you.
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Kent Roach, Prof. (Law – University of Toronto)
Okay. Thank you. So before the break, there was a consensus that CSIS's approach to threats to security of Canada is not necessarily determinative. I would ask Dick Fadden and then Ward Elcock to talk to us, based on their experiences, about some of the other inputs that would go through Cabinet, PCO, and the like in determining whether the threshold for a Public Order Emergency has been met. So Mr. Fadden?
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Kent Roach, Prof. (Law – University of Toronto)
Fair enough. Okay. Mr. Elcock?
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Kent Roach, Prof. (Law – University of Toronto)
Sure. Sure. So can you tell us about some of the factors other than CSIS's determination of whether there was a threat to security of Canada that would go to Cabinet in determining whether there was a national order emergency?
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Kent Roach, Prof. (Law – University of Toronto)
Thank you. Final word to Mr. Fadden on this question.
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Kent Roach, Prof. (Law – University of Toronto)
Professor West, you suggested that we should have an open source mandate, but that it shouldn't be in CSIS or Public Safety. Could you elaborate on where you think it should be or whether a new agency of some sort should be created?
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Kent Roach, Prof. (Law – University of Toronto)
Thank you. Your thoughts briefly, Professor Wark?
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Kent Roach, Prof. (Law – University of Toronto)
Okay. Back to Professor West. Both you and myself have talked a little bit about police intelligence. And we’ve heard the issue of the origins of Operation Hendon in collecting intelligence about various Indigenous protests. And of course, there are distinct concerns about the monitoring of Indigenous protest. I wonder what you could say about, on the one hand, the evidence that the Commissioner has heard or the submissions that there is this deficit, a structural deficit in supplying intelligence that may be, in some ways, easier for the police to supply, than security agencies that are concerned about sources and methods, and on the other hand, the threats to civil liberties in downloading that intelligence collection to the police, the threats to both civil liberties and Indigenous rights?
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Kent Roach, Prof. (Law – University of Toronto)
Okay. So Mr. Fadden, you’ve suggested to the Commissioner that we need a kind of national collection of intelligence. What about this danger in the context of IMVE, Indigenous protests that Professor West has spoken about? Is there a danger that while CSIS may be too circumscribed, it could be a bit of the wild west when it comes to provincial and municipal police deciding where the line between extremism and violent extremism, or wherever the line is? So how would civil liberties and Indigenous rights be protected, in your understanding of a kind of national clearing centre that would include municipal and provincial police intelligence, as well as the federal products?
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Kent Roach, Prof. (Law – University of Toronto)
No. Thank you very much. So we’ve also heard about -- and this has come up in the hearings -- a lack of a definition of “national security”. Are there international or other models that we should look to? Professor Wark?
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Kent Roach, Prof. (Law – University of Toronto)
Mr. Elcock, could you weigh in on whether we need a definition of “national security” and where we should get one?
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Kent Roach, Prof. (Law – University of Toronto)
Thank you very much. And of course, as one of the parties has raised, if there was a legislative definition that might involve consideration of Canada’s obligations under the United Nations Declaration of Indigenous People. I have one specific question and then one more general question which I think we can end up. So Professor Wark, you suggested that in looking ta accountability mechanisms -- and there will be another panel that looks at accountability -- that it makes sense for the National Security Committee of Parliamentarians as opposed to the Joint Committee, which is currently looking at this, to play a review function. Could you elaborate on that?
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Kent Roach, Prof. (Law – University of Toronto)
Professor West, I’m going to spring this on you because you’re the author of the leading text on national security law. What, if any, role should the NSIRA, the National Security Intelligence Review Agency, should that be built into amendments to the Emergency Act? And I’m thinking in particular, of course, that NSIRA has jurisdiction to see the legal advice that -- in relevant investigations that the government acts upon and this Inquiry has not seen the legal advice that was given to the government.
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Kent Roach, Prof. (Law – University of Toronto)
Thank you. And last question, open to all: At various times the issue of intelligence failure has been discussed; the Commissioners heard a variety of views. To what extent is that a helpful term; is it influenced by hindsight bias, and do you have any last thoughts you would like to share with the Commission about the issue of intelligence failure? So I’ll start with Mr. Elcock, so he doesn’t go last.
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Kent Roach, Prof. (Law – University of Toronto)
Professor Wark, and again briefly.
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Kent Roach, Prof. (Law – University of Toronto)
Thank you. Mr. Fadden?
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Kent Roach, Prof. (Law – University of Toronto)
Thank you. Professor West.
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Kent Roach, Prof. (Law – University of Toronto)
Well, thank you very much, and my sincere thanks to the panellists for your patience and brevity. And again, Mr. Commissioner, I hope this is of some use.