Proceedings of the Standing Senate Committee on
National Security and Defence
Issue No. 15 - Evidence - Meeting of June 7, 2017
OTTAWA, Wednesday, June 7, 2017
The Standing Senate Committee on National Security and Defence, to which was referred Bill C-22, An Act to establish the National Security and Intelligence Committee of Parliamentarians and to make consequential amendments to certain Acts, met this day at 12 p.m. to give consideration to the bill.
Senator Daniel Lang (Chair) in the chair.
[English]
The Chair: Welcome to the Standing Senate Committee on National Security and Defence for Wednesday, June 7, 2017. My name is Dan Lang, senator for Yukon, and on my immediate left is the clerk of the committee, Adam Thompson. I would now like to go around the table and ask each member to introduce themselves, starting with the deputy chair.
Senator Jaffer: My name is Mobina Jaffer, and I'm from British Columbia. Welcome.
Senator Kenny: Colin Kenny, Ontario.
Senator Wallin: Pamela Wallin, Saskatchewan.
[Translation]
Senator Saint-Germain: Raymonde Saint-Germain from Quebec.
[English]
Senator White: Vern White, Ontario.
Senator Harder: Peter Harder, Ontario.
Senator McIntyre: Paul McIntyre, New Brunswick.
[Translation]
Senator Boisvenu: Pierre-Hugues Boisvenu from Quebec.
Senator Dagenais: Jean-Guy Dagenais from Quebec.
[English]
The Chair: Thank you.
Today we will be meeting from 12 o'clock to 1:15 p.m. to continue reviewing Bill C-22, An Act to establish the National Security and Intelligence Committee of Parliamentarians and to make consequential amendments to certain Acts.
Joining us today are Professor Wesley Wark and Professor Errol Mendes, both from the University of Ottawa.
Gentlemen, welcome. I understand that you each have an opening statement. I would invite you to begin, starting with Professor Mendes and then followed by Professor Wark. We have approximately an hour and 15 minutes. Please proceed.
Errol Mendes, Professor, Faculty of Law - Common Law, University of Ottawa, as an individual: Thank you to the committee for inviting me.
I want to state at the outset of my presentation that I'm strongly in favour of the overall contents of Bill C-22, which attempts to fill the gaps of parliamentary review and oversight of national security, something that is long overdue, given that most of our closest allies have already established such critical democratic accountability in their national security and intelligence frameworks. To strengthen that firm accountability that this government has provided through Bill C-22, I would suggest that, if the government agrees, section 8(1) be amended to make expressly the mandate of the committee to review the framework for national security and intelligence and its compatibility with the Charter of Rights and Freedoms. I want to emphasize "only if the government agrees,'' because I want this bill to go through unamended. But I shall add some observations that can address some of the concerns this committee may hear.
From the national consultations that I helped to organization on Bill C-51 and the first version of Bill C-22 last November, at the university, I heard about the concerns that some of my colleagues in the academic and civil liberties communities have expressed about, in particular, paragraph 8(b), clause 14 and clause 16. I will address them and suggest ways in which we can address those concerns.
Starting with paragraph 8(1)(b), the concern is that if the appropriate minister deems that the review would be injurious to national security, that could be a limit on the access to information. The concern expressed in some of the consultations that I organized was that operations of national security agencies can be extended for long periods of time and could involve such critical issues relating the rule of law and privacy issues that could and should perhaps be examined by this committee. However, while it is clear that ongoing operations in general should not be subject to review by a parliamentary committee, they could be a way to manage and monitor the use of this discretion that does not involve amending the legislation. I would suggest, for example, that the Senate could add observations to the bill that propose that the government establish a process of reporting on the use of this discretion by the appropriate minister once the committee is established and possibly discuss with relevant government officials how consistent standards can be applied across the government on how this discretion is to be exercised in accordance with the government's commitment to public accountability.
While there were other similar objections, in the consultations that I organized, to the list of exclusions in clause 14, in general, apart from some of the concerns in paragraph 14(d), I think that for the most part these are legitimate exclusions. Let me explain why.
Cabinet confidences, for example, are part of our responsible order of government and are a legitimate exclusion. Likewise, information relating to witness protection is a legitimate exclusion, for obvious reasons.
The exclusion in paragraph 14(c) did raise some concerns because it relates to the identity —
The Chair: Excuse me, could you speak a little bit slower for the purposes of the interpretation?
Mr. Mendes: Sure.
Going to paragraph 14(c), relating to the identity or information relating to persons providing confidential information, this, in part, is an extension of the former Bill C-44, relating to the protection of Canada from terrorism acts, which concerns the identity of CSIS's human sources being revealed. I think there should be a discussion at a later stage as to whether or not this provision in 14(c) can go beyond that. If so, there may be potential for a legislative review of Bill C-22 in this connection.
However, the main concerns that we heard in the consultation related to paragraph 14(d) relate to ongoing investigations by a law enforcement agency that end in a prosecution. Now, this is a legitimate exclusion to prevent political direction of police operations in most instances, but there may be instances where a law enforcement agency may be starting an ongoing investigation which may not be focused on an imminent prosecution but could have the possibility that a prosecution could exist some time in the future. Examples could include ongoing investigations of radicalization centred on a particular location but not focused on any particular person. This is an area that could be of interest to the committee, given the impact on specific groups. Here, again, there could be observations to the bill, if you pass it, that the Senate suggests the operation of this exclusion can be monitored and, in practice, narrowed to include only those investigations that are likely to conclude in possible prosecutions.
Finally, in the national consultation that I organized, there was academic and expert critique of clause 16, which gives the appropriate minister the power to deny any information if it is considered "special operational information'' under the Security of Information Act and is considered injurious to national security.
Now, the concern was that the definition of "special operational information'' under the Security of Information Act is quite broad and is defined by operational standards. If you ask me questions, I can give you specific examples, but at this stage I want to refer to you just one that could draw some concerns. It is the following: This form of information could be part of the special operational standards where it relates to places, persons, groups or entities who are or were intended to be targets of covert collection efforts by the government. That's just one of the examples of special operational information under the Security of Information Act.
Such an expansive definition of what constitutes special operational information is regarded as almost subject to interpretation and as quite wide. While that is balanced by the minister having to provide reasoning as to when there is a refusal to provide this information, there was some concern in the consultation that I organized that there were not adequate safeguards for this particular form of discretion.
Again, my suggestion with this exclusion is for the Senate to offer observations that while the minister does have to provide information, perhaps there is a need for the committee, once it is established, to engage with relevant officials on how to ensure consistent use of this discretion and possibly even develop a protocol on how that discretion should be exercised in the first place once the committee is established.
In conclusion, public education is an essential aspect of this proposed committee. Through its important review and oversight functions in Bill C-22 and by spurring public engagement, this committee could have the ability to hold agencies and government to account in the national security and intelligence framework, and that is why I strongly support it.
There is one remaining issue that requires some discussion. In the House of Commons Speaker's ruling on the Afghan detainee transfer issue, it was strongly stated by Speaker Milliken that no exception should be made for disclosure of any documents to a committee of Parliament — and I emphasize "a committee of Parliament'' — even if those related to national security. Such extensive powers of privilege extend to committees of Parliament. That stands in contrast to this committee, which is a committee of parliamentarians.
While Bill C-22 clearly enunciates that there is a limitation of parliamentary privilege, especially through clause 12 in terms of immunity from prosecution, there should be some understanding by the government and the ministers, when they exercise their discretion under the three provisions I've mentioned, that they should offer sufficient trust and ability for the committee to give as wide a possible discretion to fulfil their obligations. I think that's going to be important. When the committee is established, the most important thing is to find ways to have that trust established between government and this committee and to give as much wide discretion to the committee to perform their functions.
In conclusion, I think that while there have been concerns addressed in particular to these three clauses, this committee has the ability to offer observations that can address those concerns and over time, as the committee is established, to provide sufficient trust between the government and the committee that ultimately these concerns will be allayed.
My final recommendation is at some stage there should be an increase in the number of senators on the committee, given that their potential tenure and learned experience will be longer than some of the elected members, thereby building more institutional memory and expertise for the longer-term effectiveness of the committee. And maybe over time some consideration should be given to increasing the number of senators, but as I said, the passing of this bill is urgent, it's long overdue and I strongly support its introduction. Thank you very much.
The Chair: Thank you.
Mr. Wark.
Wesley K. Wark, Visiting Professor, Graduate School of Public and International Affairs, University of Ottawa, as an individual: Chair and senators, I appreciate the opportunity to give testimony before your committee on Bill C-22. I gave testimony in the other place on the bill in its earlier form on November 3, 2016. May I take a moment to say that when I gave testimony in the other place, I did so alongside my distinguished colleague Ron Atkey who unfortunately passed away earlier this year. His expertise and gravitas on matters of national security will be sorely missed in this country.
Bill C-22 has undergone some changes since its original introduction in June 2016. There has been an arduous process of parliamentary scrutiny and some ongoing public criticism of the bill. In response to these developments over the past twelve months, I remain convinced of three things. One is that the creation of a real parliamentary capacity to scrutinize the operations of the Canadian security and intelligence community is of vital necessity in an age of rapidly changing threats to national security, the increased role played by Canadian intelligence and security agencies recognized in the 2004 National Security Strategy as Canada's first line of defence, and the expanded powers that are now available to the Canadian system. This parliamentary capacity is not only designed to provide an additional measure of accountability at a strategic level but also should serve the purpose of ongoing public education about security threats and security responses. I share with my colleague Professor Mendes a view that we face a problematic deficit in public knowledge about security and intelligence issues in Canada that a new committee of parliamentarians can help address.
The second thing I remain convinced of is that Bill C-22 in its current state represents an eminently workable scheme for providing for an initial phase of parliamentary scrutiny. By "eminently workable'' I mean there is nothing in the legislation that suggests the committee is designed or fated to fail in its purpose, and there is nothing in the legislation that suggests to me that the committee cannot succeed in fulfilling its mandate.
The third thing I believe in respect to Bill C-22 is that we need to view the proposed legislation in the context of understanding the kind of balance it attempts to achieve between a number of competing prerogatives. It should come as no surprise that Bill C-22, like all efforts at national security legislation, must seek to establish a balance. It is a version of the eternal problem of balancing rights and security. Translated into the specific context of Bill C-22 legislation, the balance sought is between the protection of secrets and ensuring the effectiveness of the proposed committee in pursuing its mandate.
In the time remaining in these opening remarks, I want to focus on some aspects of how the bill constructs this balance.
First some remarks on mandate and powers, which are at the heart of the committee's effectiveness. The mandate of the committee as set out in clause 8 is very broad. It is clearly designed to allow the committee to scrutinize the security and intelligence community across the board and at a strategic level. This wide-scan capability is appropriate, even if the committee will find most of its time dominated by the core intelligence and security agencies.
The potential exercise of executive power to hinder scrutiny under the terms of the mandate is checked, as you know, by a requirement for the minister to inform the committee about the reasons for deeming something "injurious to national security.'' I would hope it would also be held in check by common sense and an appreciation on the part of the government in power that the committee of parliamentarians performs a vital public duty. I believe the Minister of Public Safety has added another argument here to the effect that the committee would have what he calls a bully pulpit to push back against any undue restrictions on its mandate.
One of the most commendable aspects of the bill is its provision for a secretariat headed by a senior figure as executive director. It will be the research arm of the committee and do much of its heavy lifting in fulfilling its mandate. I believe it is the case that the secretariat for the sister organization, the intelligence and security committee in the U.K., is somewhat envious of these provisions.
The powers of the proposed committee rest on access to sensitive information and on reporting scope. There are some automatic exemptions to access spelled out in clause 14. I think it's worthwhile to note that the list of exemptions in this clause has been narrowed from the original version of the bill, and it is particularly noteworthy that the exemptions no longer refer to military intelligence matters. I fully support this change.
There are also discretionary exemptions around access that are outlined in clause 16 of the bill. These are worthy of close scrutiny and I have previously raised concerns about the reference to special operational information. As Professor Mendes indicates, the definition of which in the Security of Canada Information Sharing Act can be read as very broad. Fortunately the reference to special operational information is coupled with the requirement that the minister find that "provision of information would be injurious to national security.'' If the minister so finds he or she must provide reasons to the committee and also provide reasons to the current independent review bodies for the RCMP, CSIS and CSE.
The coupling acknowledges, I believe, that only a very small proportion of the mass of special operational information available to the government would ever be deemed potentially injurious to national security in the event it was made available to the committee and figured in committee reporting.
The automatic and discretionary exemptions have been referred to by some eminent experts and academic colleagues as constituting a series of locks on the committee's work. I do not perceive them in that way. In my view they amount to restrictions that are reasonable but may potentially be subject to some abuse that cannot be legislated away. The abusive element is held in some check through the legislation and perhaps in greater check by parliamentary and public expectations and expectations held by the security and intelligence community itself that will arise about the committee's work.
Reporting restrictions imposed on the committee have been the subject of some discussion and controversy, particularly in terms of the powers granted to the Prime Minister. The Prime Minister may intervene to request redactions to a report on grounds specified in clause 21(5) before the committee's annual report or any special reports are tabled in Parliament.
Let me say two things quickly about this power. One is that it puts the Prime Minister squarely in authority over the Canadian security and intelligence community, which is appropriate even if often unrecognized as Canadian practice.
The other is that the Prime Minister's powers are held in some check by the requirement to identify redactions and provide a reason for them. It is not meant to suggest a whimsical power or a whip hand over reporting by the committee. Might such executive power be capable of abuse? Of course, but abuse would come at a cost.
The committee's mandate and effective powers are clearly meant to be held in balance in the legislation by the protection of secrets. Identifying valid secrets is a difficult business which it will be the committee's business to learn and the government's business to refine. There will be inevitable and unavoidable friction.
Putting secrets in the hands of members of Parliament is an untested proposition that goes to the heart of Bill C-22. Has the bill achieved the right balance in terms of its impositions on committee members? I have previously argued that I believe the provisions of clauses 10 through 12 of the legislation are overwrought and could be simplified to taking an oath that would reference provisions of the Security of Canada Information Sharing Act, but I do not feel this is a legislative hill worth dying on. The committee can do its work under these provisions even if they are uncomfortable, and after five years of experience, they can take a different measure of the trust that can be placed in members of the committee to protect secrets.
Senators, I look forward to your questions, and as a Canadian citizen I look forward to the passage of this bill and the good it can do. Thank you.
The Chair: Thank you very much.
Before we begin with questions, I would like to make a couple of points. Obviously we're here to hear witnesses, and if there is a need for amendments, members of the committee will deal with that accordingly. It's not the intention of this committee to hold this bill up. I want to make that very clear. But at the same time, it's to clarify and ensure the bill is the best we can bring forward as far as the question of the parliamentary committee on national security is concerned.
I want to make it clear for the record we've done this in a number of other bills where significant amendments have been made, the government has accepted them, and we have proceeded accordingly. I don't think we should be in a situation where because it's only half a loaf, that's all we should accept. The committee should be looking at it in the long term.
Second, and this does concern me, I want to put on the record that in the other place there was no consensus from the opposition parties on this bill. That puts us in a difficult position as well, because it's a committee of parliamentarians chosen from the various parties in order to ensure public security. I like to think we might be able to help in the case where there could be a consensus at least in most of the bill.
Senator Jaffer: I want to thank both of you for your testimony and for making yourselves available on very short notice. As a committee, we appreciate that.
When I was listening to you, I got the distinct impression that you both were supportive of this bill. If I'm not mistaken, you talked about its initial phase and that in five years we will improve on it. We haven't had oversight. It's better than what we have, so that's a good thing.
I would like Professor Mendes to comment on this first and then Mr. Wark.
Mr. Wark, you don't quite agree with the lock definition. If you don't mind, perhaps you could expand on that as well.
Professor Mendes, you talked about the triple lock regarding clauses 8, 14 and 16. I asked questions on the triple lock the other day for accessing information on broad grounds. My concern with the triple lock is that it's very broad. Can you elaborate your concerns about the triple lock, keeping in mind what you said, that there's no need for amendments? How can we address the issue of triple lock without amendments?
Mr. Mendes: As I said, you could propose amendments to the bill, but frankly, given the experience of the House of Commons, it could endanger whether the bill is passed, especially if this session ends and there's a prorogation.
There are ways to address those concerns. I've been quite specific. Starting with paragraph 8(b), for example, if there is a concern in terms of the issue of exclusion for ongoing operations, for the vast majority of cases, there could be very legitimate excuses for exclusion of ongoing operations. Let's say, for example, where there are critical issues of ongoing operations that affect privacy issues — you heard from the Privacy Commissioner — or rule of law issues that could involve ongoing operations, is there some way observations could be made by this committee that requires the government to establish a process of reporting on the use of this discretion by the appropriate minister? Perhaps once the committee is established, there could be a mechanism by which discretion across the government is allowed to be consistent with this discretion.
As my colleague says, in five years' time, when we get that information from this observation that there could be proper use of the discretion, maybe there's no need for amendments in that case. That's one example.
Another example, in terms of paragraph 14(d), is where there is an ongoing investigation by a law enforcement agency. Absolutely, there should not be political involvement in terms of most police operations. As I said, if there is an operation more general in scope that may not end in a specific person being prosecuted — for example, investigations of radicalization, which are very broad — there should be an ability in an observation, that ultimately the committee should be able to propose, that discretion be narrowed only to where there is a likely prosecution that could be occurring. For the more general ones, perhaps there should be some ability to allow that to be examined, especially when you're talking about radicalization.
Finally, with the clause 16 exclusion relating to special operational information, as my colleague and I agree, because the definition is too broad and includes this one thing that caught my eye — the places, persons, groups or entities who were, are or intended to be the target of covert collection efforts by government — that does require some possibility for the committee at some stage to see how that discretion is exercised, even if the minister is giving reasons for it. Ultimately, it could be the minister's desire to have the committee see how, over time, you can narrow the scope of that special operations committee.
Through your observations, there are ways to provide concrete examples of how to address these concerns.
Overall, I want to emphasize that, if the government can agree, in addition to the mandate of the committee to review the national security and intelligence framework, there should be an addition of compatibility with the Canadian Charter of Rights and Freedoms. That will be important if there is agreement on that score.
Those are my concrete suggestions.
Mr. Wark: In response to Senator Jaffer's question with regard to the triple lock metaphor, I think it's inappropriate. It's catchy, but it's inappropriate. It may have been a broader concern with the original version of Bill C-22 introduced in June 2016. As I said in my remarks, the original version has been considerably modified to meet some of those concerns.
We're not talking about locks in any literal sense. We're talking about restrictions. Those restrictions, in my view, speak to the question of needing to establish a balance between the protection of secrets and access. There are automatic exemptions that have been narrowed. There are discretionary exemptions that have been qualified. There is the question of judgment about matters injurious to national security which will be a central judgment that the government will have to exercise in negotiation with the committee. All of that is unavoidable.
I hope at this stage in deliberation over the current form of Bill C-22 that we can set aside that exaggerated metaphor and understand that restrictions are, in the context of this being a new Canadian experiment in parliamentary scrutiny, appropriate and that such restrictions will have to be experienced over the first five years of the committee's work and then can be subsequently dealt with if it's felt that some of these restrictions are inappropriate.
One point I hope this committee and other parliamentarians will keep in mind as this experiment proceeds is that after long experience with the U.K. Intelligence and Security Committee, in 2013 the legislative framework for that committee was changed. More important, the committee determined it would be valuable in the context of that past experience to establish a memorandum of understanding between the Intelligence and Security Committee and the executive. This is similar to what Professor Mendes is talking about with regard to observations, but it would spell out the working methods of the committee so that there is a clear understanding of how the committee works. One of those spelled out in the memorandum of understanding is the fact that the committee, in the normal course of business, would have access to the full range of sensitive information, and only in rare circumstances would material be excluded from their remit.
Senator Jaffer: Thank you.
[Translation]
Senator Saint-Germain: Both of you say that the bill must be adopted without amendment, because the quicker it goes through the better, and the quicker we will correct what has needed to be corrected for some time, and put in place a real oversight organization. Very well. You say, Mr. Wark in particular, that there is nothing at this time preventing the committee from exercising its mandate. You referred to a memorandum of agreement, which would be a type of regulation allowing the committee and bodies under surveillance to agree on a modus operandi.
One of my concerns is the fact that the committee does not have the power to subpoena witnesses, no subpoena power. Do you think that that gap could be filled by a specific element or provision in a memorandum of understanding or implementation agreement, as you suggested? What do you think of the fact that the committee cannot subpoena witnesses?
[English]
Mr. Wark: Senator, thank you. I'll respond in English.
I would say a couple of things. One is that in my view, to repeat, the committee has sufficient powers in the legislation to be effective. It also needs to be kept in mind that this is an experiment. It is a start-up. Lots of things will be learned, and for that reason, I think the government has decided wisely to include a statutory five-year review period to learn those lessons and see what needs to be changed. My recommendation is not that the bill should be accepted without amendment as it stands because it can be quickly changed, but that it is a workable scheme. Experience can be gained and it can be returned to after five years.
With regard to subpoena powers, I note that this question was addressed on Monday by the Minister of Public Safety. I would second, for what it's worth, the kinds of remarks that he made. In my view, subpoena powers are unnecessary to the committee. I cannot imagine circumstances in which they would be necessary in order to provide for access to either persons or papers, and I think it would create a chilling atmosphere to have such powers, even if they were never used. I think the bill itself provides sufficient clarity that this committee will have access, as needed, by reference to the responsible ministers of responsible agencies to all of the information that it requires.
Mr. Mendes: If I could just add, what I'm suggesting in terms of your observations is some element of a protocol or, as my colleague talks about, a memorandum that could take into account the needs of the committee to access certain issues.
In my other work in law, when I was a human rights adjudicator, where I issued many subpoenas, the atmosphere changed dramatically once you issued a subpoena to a witness. They'd go from a friendly witness to an adversarial witness right away. That could be necessary, say, five years from now, but in this initial phase, I think that having these types of informal protocols or memoranda or asking for reporting by the minister in terms of when he or she has refused information, over time, that could be even more effective than a subpoena, based on my own experience in the practice of law.
[Translation]
Senator Dagenais: I thank our two witnesses. In your presentation, if I understood correctly, you say that the powers granted to the Prime Minister should not be so excessive as to undermine the credibility of the committee with the public. That said, during the existence of the committee, some people might denounce possible abuses, for instance abuses committed by public servants. In your opinion, should those people not benefit from some protection? If so, how could we put in place that protection in this bill?
[English]
Mr. Mendes: If you're talking about how you protect certain individuals, one of the suggestions I'm making for an amendment, if the government agrees, is that in addition to saying that the mandate of the committee is to review our national security and intelligence framework, it would be great to add insofar as it is compatible with the Canadian Charter of Rights and Freedoms. That gives the potential for a fair amount of protection if the issue does arise, where you could have, beyond the scope of Bill C-22, the protection for individuals who do need that protection under the operation of the Charter of Rights and perhaps other areas of law too.
[Translation]
Senator Dagenais: The current government has been in power for almost two years. We are arriving at the end of the session, and people feel an urgent need to pass this bill even though it contains points that appear debatable to me. You seem to be saying that that is not serious and that things can be corrected later. Why not give ourselves a few months longer in order to do the work properly, at least at the political level?
[English]
Mr. Wark: Senator, thank you. I appreciate the sentiment.
In principle there is, of course, absolutely nothing wrong with the sentiment to take time to get matters right. I think the testimony that you have heard from both Professor Mendes and I and that perhaps you have heard from other witnesses and will hear from witnesses in the future is that the revised scheme presented in Bill C-22 is workable. Of course, there will be difficulties that will arise in the committee's work. There will be experience that it will gain, and these matters of experience and difficulties can be addressed subsequently.
I think that if either of us or other witnesses you hear from really felt that there were elements of this legislation that prevented the committee from working properly, given the fact that so many of us are enthusiastic about this concept, then we would sound an alarm. But, at this stage, given the long progress of this bill through the House of Commons and the serious study it has been given there and in public consultations, certainly my feeling is that the time is now to act and to act in the context that there will be time, subsequently, for further reflection.
Mr. Mendes: If I could add — and I made this comment in the context of appearing before this committee on Bill C- 14, the assisted dying bill — perfection is almost the enemy of the good. Sometimes you have to consider what you may be losing if you decide that you want to perfect certain provisions of Bill C-22 because keep in mind that there was pressure over 10 years, as you said, to have an oversight committee like our allies in the Five Eyes, and nothing was done. So this is our time to at least start this process of having that critical oversight of our intelligence and security framework.
Something else to keep in mind is whether there is a possibility that this could die with prorogation and nothing happens. Think about that. If really would trigger "perfection is the enemy of the good'' in that regard.
Senator Wallin: I want to echo your views. As a member of the committee that recommended this in 2011, I clearly think this is the right thing to do. I also agree that the changes that have occurred have gotten us closer, if not to perfection, at least to the good.
Mr. Mendes, you have just referenced this, but I would like to hear from both of you: As a member of the Five Eyes and the G7, what is the danger, being the odd person out, of not doing this as quickly as we can?
Then I have a specific question to you, Mr. Mendes. The Charter of the Rights and Freedoms is the law of the land. Why do we need to add it?
Mr. Mendes: Excellent question, the first part of your question.
When we see incidents of terrorism — you saw what happened in London — there is a real challenge between trying not to overreact but to react enough. There is a need in our Western liberal democracies to have a mechanism at the parliamentary level whereby the elected representatives and those in the Senate are able to address those issues in terms of balancing. It is really critical to have that public voice, as opposed to the voice of the executive or special agencies.
As time goes on, and unfortunately as we can expect more of those incidents to happen, it is important to have that democratic oversight which gives comfort to the people at large. That's critical in this respect.
In terms of your second question, one of the reasons I'm suggesting there should be some incentive to add the Charter of Rights and Freedoms to the general review is that given that there is legislation, as has been said by the minister, coming to address some of the other contentious issues with Bill C-51, the Charter will be critical to some of issues coming up in terms of threat disruption issues, the so-called "No Fly'' list, et cetera. I think it's absolutely critical if the government is amenable, and they should be because it's already implicit, to add those words to the mandate of the committee. That's the reason I'm suggesting it, keeping in mind the legislation that may be coming forthwith.
Senator Wallin: All I'm saying is it exists already.
Mr. Wark: Thank you, Senator Wallin.
I would say that, after all, we've lived without real parliamentary scrutiny of sensitive security and intelligence operations for a very long time. So is there a danger of continuing to live without real parliamentary scrutiny for a little longer? No. Is there an opportunity that might be missed and further delay in not setting up this committee and all the mechanisms that will be required to set it up once the legislation is passed, the secretariat being key to this? You would have to turn the question on its head and ask: What is the purpose of delay? Is there a real benefit to delay?
Here I will set foot on ticklish ground in the hope that you will be tolerant of these remarks. The public of Canada is facing a new kind of Senate, as members of the Senate are presumably facing yourselves, and there are questions about how effective a Senate can be. I think the bill recognized that Senate members can play a real role in this committee of parliamentarians, but I'm not sure it would be to the benefit of the reputation to the Senate, frankly, to be seen as foot- dragging on a piece of legislation of this kind, which I think, frankly, has very broad public support.
Unless you have a really good reason for delaying passage of this bill, I think it probably behooves this committee and Parliament as a whole to get on with it because it will be a complex undertaking. The longer we delay, there are costs to the delay. The longer we delay, the longer we don't have this parliamentary capacity that we're looking to and the longer we don't have that accretion to the possibility of better public knowledge and understanding which I hope will be one of its benefits.
[Translation]
Senator Boisvenu: I want to welcome our guests. I have two very technical questions for you that will require short answers, but may help us to perfect this bill.
My first question involves the credibility of such a committee as regards the absence of conflicts of interest, for example. That is very important. The staff would not report the committee but to the executive council. In light of that, should the bill not specify that the staff should report to the committee and not the Privy Council?
[English]
Mr. Mendes: Your question goes to the heart of why do we have a committee of parliamentarians as opposed to the committee of Parliament? To some extent I think we can take the lessons from the British parliamentary committee which started off as a committee of parliamentarians. In some respects I think what we're looking at here is training wheels, so to speak, for this very complex area.
When I teach this area in my own law school, I have my students tearing out their hair in frustration in terms of how complex this whole area can get, from Bill C-51, Bill C-42 and the one we're dealing with now. So the question then becomes: Are parliamentarians capable of going deep into the complexity of this issue apart from their other work as parliamentarians? That's a big question. I think the way this legislation has been structured is a form of training wheels: Let's get this going; let's try and put in some mechanisms. My colleague has suggested some and I have suggested some.
[Translation]
Senator Boisvenu: Let me stop you; I'm looking for a specific answer. I understand that you are university professors and that pedagogy is what you do. In order to avoid a type of conflict of interest — and the credibility of the committee will depend on it — should the staff not report to the committee and not to the Privy Council? Yes or no?
Mr. Mendes: Yes, yes.
Senator Boisvenu: Your answer is yes?
Mr. Mendes: Yes.
[English]
Mr. Wark: Let me get my colleague out of hot water because the question frankly is based on a mistaken premise, with all due respect, senator. It may well be that the secretariat that will be established will be housed at the Privy Council Office. The practical reason for that is that such a secretariat will need a safe space to operate from in terms of the storage of sensitive information, in terms of the handling of secrets, in terms of a safe space to hear classified briefings and so on. I don't think there is any question in anybody's mind that the members of the secretariat will be beholden to the executive.
The members of the secretariat will be serving under the direction of the executive director, will be serving the committee and serving the committee only. The model that we have in place for that, long established, is the secretariat that serves the Intelligence and Security Committee in the United Kingdom, which similarly is housed within the cabinet office but serves the committee.
[Translation]
Senator Boisvenu: Earlier, Mr. Mendes, you were talking about the United Kingdom. The committee in the United Kingdom was granted a power of appeal in case the minister refused to provide information. There is no such appeal mechanism in this bill. Should we amend it to add a right of appeal?
[English]
Mr. Mendes: Let me also address the first issue on which my friend helped me.
The other thing in the terms of the secretariat is that the way in which the sponsoring of this legislation is going, the machinery of government requires a particular central agency to deal with it. So this complex issue in terms of machinery of government, which I think you may have heard from previous witnesses from the government, basically requires a centralizing agency to oversee it.
Going to your question, yes, the appeal system was there in Britain, but that was after there was an element of experience under the first iteration of the parliamentary committee in Britain. In fact, when they came here on a visit, I met them and they basically gave me the impression there was very little need, to some extent, for that. It goes back to my statement: This issue, in a way, is related to training wheels.
The Chair: Before we proceed, there must be some misunderstanding here. The information this committee has received regarding the reporting of the secretariat is that the secretariat would be housed with the house leader's office and subsequently is an appointment of the Governor-in-Council. As well, there is a deputy. That's my understanding.
Senator Lankin, maybe you have a clarification on that?
Senator Lankin: I had a different understanding, which is that while the house leader is responsible for machinery of government as a portfolio and the carriage of this bill, the actual secretariat would be housed in PCO.
The Chair: I will get that clarified because I was under the impression it was in the house leader's office. We will have to get that clarified because there is an outstanding question of who the new secretariat reports to and who is in charge of that reporting. That's an open question.
Senator Lankin, you're next.
Senator Lankin: Thank you very much.
At the beginning, Mr. Chair, you put on the record your thoughts about ensuring people understood that amendments are possible. You said that we don't have to accept half a loaf; we can go for the whole loaf. I want to put on the record that I don't think we're looking at half a loaf. I just didn't want that to shape people's opinions of the effort that's being undertaken here.
The Chair: I would be the last one to do that, senator.
Senator Lankin: No, you did do it, actually.
I appreciate the comments and the questions and answers that we've heard so far.
Earlier in the week, I was focused on 8(b) and 14(d) and subpoena powers, and I have come around in my thinking in a number of ways. The essence of what I heard you say about observations, which is important, and about the setup of the committee and its secretariat is that there is going to be a need to work out a lot of protocols, relationships and partnerships. That will take time, and there needs to be some experience in that regard. I'm convinced of that from my own experience with things.
I am interested, though, in pursuing the last question around the issue of the secretariat. As I read the legislation, there isn't anything that sets out what you've said about the way that it operates. I expect that might be the intention, but there is an issue both of perception and potential reality with this operation being housed in PCO and potentially deriving its operational directives from that. I think that would be a bizarre interpretation, but that conflict could arise. The legislation sets out the structure of the appointment of the executive director, that it's by order-in-council or Governor-in-Council, and then how pay and compensation will be set out.
I'm interested in your thoughts about the operations of the secretariat and the work that will come from the direction of the committee. I think we could work on language that might be acceptable to all, acceptable to the government. We should seek to do that, but I think that members of Parliament and senators and, more importantly, the broader public would take solace in knowing that the actual direction and orders for this secretariat will come directly from the committee. Without that, the perception of a conflict or of a lack of independence could be become problematic.
Mr. Mendes: I agree with everything you said. One of the challenges in terms of public perception — it's interesting. I have served in the Privy Council Office. Everyone thinks it's just a department of government, and it really is not supposed to be that. It is supposed to be a centralizing agency for the whole government, and the Clerk of the Privy Council is supposed to ensure its independence. Maybe the answer, to borrow from my friend's suggestion, is a very strong memorandum from the committee and the government, including the Prime Minister, that the guarantee of independence will be absolutely observed. Perhaps there could be reporting functions directly from the head of that secretariat to the chair of the committee, which will reinforce that provision.
The Privy Council Office is a huge monster in some respects and has many different parts. You can potentially ensure its independence by a memorandum of some sort.
Mr. Wark: Senator Lankin, I take the point. This is an amendment that I suspect the government would be happy to contemplate. If we were looking to establish a little more clarity about how the secretariat could function, I assume it would be easy to expand the language in clause 24(2) which at this moment simply says, "The Secretariat is to assist the Committee in fulfilling its mandate.'' I'm sure that language could be clarified because I'm quite confident that the kinds of activities you are speaking to are exactly what the government intends.
It's also worth recognizing that in this legislation, to the extent it was based on the British experience and British legislation, the government of the day felt it had gone further than that in providing a statutory basis for having a secretariat, and they rested on that. But I think that clause 24(2) could be usefully expanded to provide clarity and clear up any misperceptions.
Senator Lankin: I'm going to work on that.
Senator McPhedran: Welcome to both of our experts. I want to thank you for being here. I apologize for being late. I'm on two committees that meet at the same time, so I try and shuttle between the two.
My question is with respect to the recurring theme in your answers and on the opportunity for further reflection, but also the need to move on the opportunity to get this into law. I'd like to focus on the optimal five-year statutory review clause. I very much appreciate the reference to the Charter, but I'd like to see if we can go more deeply into this. Remember, I'm asking about "optimal.'' I'm wondering, for example, about greater specificity, a clearer statement around transparency, clearer details about the kind of "reporting out'' that can be expected by the people of Canada, and in particular whether experience has taught us that we need clear opportunities for submissions and for the review of submissions and for the incorporation of submissions in any reporting out. So I would invite each of you to dream with us on what would be optimal.
Mr. Mendes: Thank you, senator.
Part of my suggestions for the observations is actually for them to be triggering a continuous monitoring mechanism to find out what is needed in a five-year review framework and what has to be strengthened and maybe changed after the five years, which includes all the issues you mentioned. I'm hoping that if you agree to pass this bill with the observations, they would become part of the work of the committee in terms of what it has to keep an eye on, with a view, ultimately, at the five-year review to present what has to be modified and improved, especially given the concerns raised with the three clauses our colleagues in academia are calling the triple lock.
I think the observations could end up being part of the mandate of the committee to follow and monitor, with a view in five years to make recommendations for improvement.
Mr. Wark: Senator McPhedran, I would say something similar. The idea behind a five-year review is to learn from experience. It would be difficult to predict at this stage what those experiences would be, but the five-year review would clearly allow them to be addressed.
The other thing we all have to recognize is that this is an experiment. It is going to be a challenging experiment for Parliament to dig into the secret world of security and intelligence and to identify the issues that really need their attention at a strategic level.
We've talked a bit here about a memorandum of agreement, as a kind of clarifying instrument that might ultimately be reached between the committee of parliamentarians and the executive, but I think the British experience is worth keeping in mind. It took them up until 2013 to decide that they needed to compile a memorandum of understanding, and the one they put together is a useful instrument. It will probably take us time as well to decide what we would want to put into such a memorandum of agreement because the other principle we have to take on board is that this committee of parliamentarians in the course of growing, maturing and gaining experience will need some flexibility in its early days to get to grips with this task.
I would be hesitant to specify conditions for a five-year review at this stage. It would be practical to keep them open- ended and allow the Parliament of the day to decide exactly what it would want to address.
Senator McIntyre: Gentlemen, thank you both for your presentations.
Professor Wark, I would like to briefly address two issues. The first has to do with committee membership and Senate representation and the other with parliamentary privilege.
The bill proposes a committee with just three senators, presumably one from each of the groups currently represented in the Senate. Yet the 2004 Interim Committee of Parliamentarians on National Security recommended an equal Senate- House committee. I would like your views on this issue given your comments before the House of Commons committee last year. Here's what you said: "The key thing is having good members and instilling a culture of non-partisanship.'' Can you elaborate on what you meant and on the role the Senate might play in this regard?
Mr. Wark: Senator McIntyre, thank you for the question and for reminding me what I said back in November.
The first thing to realize is that in the changes that have been made to the legislation since it was first introduced, the number of senators to be appointed to the committee has been increased, perhaps not greatly increased but at least increased from two to three. I think that's a recognition on the part of the government that the Senate does have an important role that it can play.
Again, I think it would probably be best left to experience to address the question of whether an enlarged Senate membership would be helpful to the committee. I think that can be learned on the basis of experience, not least because the Senate itself is such a changed body and is undergoing change and is still in the course of evolution in terms of its membership, capabilities, talents and expertise. I would say the Senate probably needs a little bit of time to grow into its new stature and nature, and that will come in parallel, if you like, with the first five years of experience of the committee itself.
I don't feel strongly that having three Senate members is insufficient. I don't feel strongly that having more Senate members would be a bad idea, but there doesn't seem to be a powerful argument to be made at this stage for amending or fighting that particular battle on the basis of experience.
If the suggestion, senator, in your question is perhaps senators will come to this work with more of a non-partisan frame of mind, that may well be the case, and that is clearly one of the reasons why the government wants to have Senate membership on this committee. But again, if members appointed from the House of Commons cannot come up with sufficient non-partisan behaviour on the committee, then the whole experiment is doomed, no matter how many members of the Senate are going to be there.
Senator McIntyre: On the issue of parliamentary privilege, during your testimony before the house committee in November of last year and again today, you felt that what was really needed was reliance on an oath of secrecy as the principal protection required.
Given your comments, do you believe that it would be reasonable to ensure that parliamentary privilege should be restored through an amendment of this bill, or is it not necessary?
Mr. Wark: Again, I would leave that to experience. My belief would be that after five years — given some of the multiple provisions for ensuring that the committee can operate properly in secret and not be the source of leaks or inappropriate comments in the public domain, I think the experience will be that the committee will not be a source of such leaks. But I think equally, at this stage, we can leave that to experience. If there are no problems with the exercise of parliamentary immunity and so on, if the record is clean after five years, then I suspect some of what I call these overwrought provisions can easily be amended at that point. Maybe it is the case that a committee of parliamentarians unfortunately has to prove itself in this regard.
Senator Kenny: I'd like to comment that for 34 years now, I've been listening to folks like you come here in June — it's only a June problem — and tell us that the Senate must act on this bill that has been in the other place for a full year and has only been here for a couple of weeks because the sky is falling. Well, it ain't true.
And to talk about respect, Mr. Wark, the Senate will get respect if it is doing good work, not if it rushes through and tries to meet a deadline before it has examined its issues and the issues it's concerned with. So I really don't think it's appropriate for you folks to come and say, "Get on with it; we like what we have, and we don't want to hear anything more from the Senate.'' The Senate is here for a reason.
There are a number of issues I'd like to hear discussed, and I can tell you they really haven't been discussed much so far in our hearings, and they need to be ventilated more, simple things like we don't know the total number of agencies that this committee is supposed to be looking at. In any case, it's going to be a big number. We don't know if it's 17 or 21. Those are the two figures that are bandied about.
We're talking about a group of parliamentarians who right now don't have enough time to do the job they'd like to do for their constituents and to function as parliamentarians. Has anybody thought about how many hours a week is going to be set aside for these folks during the 36 or 37 weeks that Parliament is here to look at the 17 or 21 agencies it's supposed to have oversight of?
What about the question of turnover? The idea of having some continuity on this committee or, better yet, getting a learning curve up so the parliamentarians understand what they're trying to have oversight of is going to be extraordinarily difficult. No one has really talked about what the challenges are and what steps should be taken to ensure that there is a buildup. I'd be interested if either of you have comments on that.
Minimalizing the use of the Senate, that's what has happened so far. We've had joint parliamentary committees in the past; they always had two co-chairs, one from the Senate and one from the House of Commons. I don't see that in this legislation. I don't quite understand why it wouldn't be here.
Nobody has talked about the one-man band that this piece of legislation works out to be. One person appoints the chair; in fact, already has and has already put the chair on salary.
The Chair: No, that's not correct, senator. Let's correct the record. They are individuals not on salary, just so you know.
Senator Kenny: I take that back, then.
Good thing there's parliamentary privilege, which is something that isn't available to this committee, but it has chosen the to-be chair and is then going to choose each of the members. I'm sorry, but if the purpose is to give confidence to parliamentarians, they're used to choosing their own people. I don't mind if the PM vets them with security clearance. I don't mind if he has a veto over them, but if you want Parliament to be confident in who is going to be on this committee, they need to have a hand in it. I'd welcome some discussion about that. We've had very little discussion of that so far, yet you want us to move on.
The staff is chosen by the Prime Minister. Who's he working for, the Prime Minister or the committee? We haven't ventilated that issue. It's an important issue to talk about. You would think the Prime Minister will get good and clear advice without having to pick all of the people. There is an oath that's going to protect information going out, and redaction is going to protect information from going out. I don't understand why there are conditions on this committee that we don't put on SIRC and that the judge who's looking after CSE doesn't face. Why is it that these people are trusted more than parliamentarians on the committee?
The Chair: Could you get to the point? I think you've got all your questions on the record.
Senator Kenny: Lastly, we haven't had a discussion about whether this should be a parliamentary committee or a committee of parliamentarians. We've all just taken it for granted: "Here's what the bill says, so it's got to be good.'' The reason we have a Senate is we should ask questions about whether it really is going to be good and satisfy ourselves.
I welcome your comments on any or all of the points I've raised.
The Chair: I think it's important for the record to recognize Senator Kenny, who was involved on the committee that looked at the question of oversight in 2004 and did a report at that time.
Mr. Wark, we'll start with you.
Mr. Wark: Senator Kenny, you and I have had much experience on this committee, in times when you chaired it. I think I would have to say two things in response to some of your opening remarks.
One is that we are invited experts to give testimony, and the nature of the testimony we give has to be left to us. I hope you will accept that fundamental principle of academic integrity, independence and expertise.
The second thing is it would be entirely wrong to take our remarks to suggest that we are urging the Senate not to give any serious consideration to this bill. That is not my intention certainly and I do not believe it is Mr. Mendes' intention.
What we are trying to say to you is that the bill has gone through substantial scrutiny. It has unfolded over a period of one year. It has been changed. In my expert opinion, it presents, as I've said, a workable scheme. It's not a perfect scheme, as Professor Mendes says, but it is a workable scheme.
The bill could be tinkered with in ways that may be worthwhile or futile for a considerable period of time. The question that has to be asked is the worthwhile nature of making substantial amendments at this stage, as opposed to clarifying amendments of the sort Senator Lankin was suggesting, and the cost of further delay.
Certainly, please do not take away any impression that we are urging the Senate to be some kind of automatic rubber stamp to this legislation.
Mr. Mendes: If I can add to that, what I'm suggesting is the reverse of holding your nose. I think the Senate, in this case, can really show leadership to the House of Commons. The way to do that is to say, "We know you've had challenges getting this through in the lower house because we could not reconcile the differences between different parts of the House of Commons, but we're coming up with observances that can reconcile many of those concerns. And the way we're going to reconcile those concerns are going to be the marching orders of this committee, which could end up showing the Senate's leadership in this whole area, not the House of Commons.''
If you insist, and I would recommend this committee keep a close monitoring of how the committee is operating with those observances that you've put forward, you can have a very powerful leadership. It's quite the reverse that I'm suggesting, senator, in terms of holding your nose, and it is to take that leadership role and to make sure that, yes, it is on training wheels.
You may be right that there are many things wrong with it. I agree with you that the chair should be elected by the membership. But that's politics.
We're not here — I don't know about my colleague — to discuss politics. I'm here to discuss how you can use your leadership to make this thing a symbol of how the Senate, with its sober second thought, your time and ability to create this committee in a way that would show that maybe the House of Commons wasn't doing its job, and you are. It's quite the reverse that I'm actually suggesting.
[Translation]
Senator Saint-Germain: I would simply like to make a comment. I would like the record to show that I believe that all of the experts who come before this committee must be able to express themselves freely and provide their advice without being concerned about any ulterior motives whatsoever on the part of senators. We can — afterwards — discuss the experts' advice. I want this to be on the record: I do not share the opinion expressed in that comment, and I think that experts must be able to express their thoughts freely in our committees.
[English]
The Chair: Colleagues, we're at time; it's quarter past one. I would like to thank our witnesses for appearing and putting the time and effort they have into an area of much concern to the country. Thank you for attending. What you've had to say will certainly be taken into account.
I would like to ask members to stay here for the purpose of going in camera for a very short period of time to discuss the ongoing calendar regarding the deliberation of the bill and to discuss further witnesses. At that stage, I would call a meeting of the steering committee so we can make further decisions.
Thank you very much, gentlemen.
(The committee continued in camera.)