Proceedings of the Standing Senate Committee on
National Security and Defence
Issue No. 16 - Evidence - Meeting of June 12, 2017
OTTAWA, Monday, June 12, 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 1 p.m. to give consideration to the bill.
Senator Mobina S. B. Jaffer (Deputy Chair) in the chair.
[English]
The Deputy Chair: Senators, after the last meeting Senator Kenny contacted me, and he would like to speak about what he said last time and clarify it.
Before we start our deliberations today, may I call on Senator Kenny?
Senator Kenny: Thank you, Madam Chair. I appreciate it and I appreciate the opportunity to talk to members of the committee briefly.
In particular, I wanted to talk about the exchange that occurred at the end of last Wednesday's meeting. I also wanted to comment briefly on where we stand in reviewing Bill C-22.
First, I would like to thank Senator Saint-Germain for raising her concerns at the last meeting regarding my comments. If it came across that I was trying, in any way, to influence or to impugn the remarks of the witnesses, it certainly wasn't my intention. I didn't have any ulterior motive when I spoke. I was really just interested in whether the witnesses could provide us with comments on any of the numerous matters that I don't think we have covered fully as a committee.
My chief concern, frankly, is that I don't think we have done justice to the bill to date, and I feel that the work of this committee could benefit from further discussions, either in camera or in public — I don't mind — about various aspects of the bill.
I feel that Bill C-22 is being rushed. It was tabled in the Commons on June 16, 2016, and passed by the Commons on April 4, 2017. They looked at it for 10 months. The Public Safety Committee had eight meetings and featured 27 witnesses.
The bill that has come to the Senate came on April 13. We have had about three months to study it, and, so far, we have had only two meetings and 10 witnesses. We have long sittings today. We will make up for some of that but I, for one, don't feel that we have given what is an important piece of legislation the attention it deserves.
The issues that I think we are missing and we should consider more carefully are how entirely this committee that is seen or envisioned in this bill is a creature of the government. We are parliamentarians. The effect of this bill is to co- opt us into government. Virtually every aspect of the committee functioning is controlled by the Prime Minister. I know that people have said to this committee, 'The buck stops here,' but that's the buck for national security issues. The Senate has a job, and I think it is being stifled when one person picks the leadership, the membership, the staffing, and that person also does the redaction of whatever is going out.
The purpose of the committee, as I understand it, is to give Canadians and Parliament confidence in the work of the committee. I think there would be more confidence there if it wasn't so much of a one-person show.
It is not that I don't like the Prime Minister. I do like him. I spent 10 years working for his father. I have known the Prime Minister since he was in short pants, and I have a very high regard for him. I just don't think this particular bill is doing him a service.
We have heard people come to this committee and say, 'You folks need a training-wheels approach.' 'Training wheels,' I can't get over that. This is usually in reference to the fact that the U.K., which is the model for much of the legislation, moved from being a committee of parliamentarians to a parliamentary committee. They did that for some good reasons, and the answer that people give us is, 'We can reassess it in five years,' which seems to be sort of a code word for 'You don't need to do your job today, folks, because we are to have another crew come along in five years' time and tidy up what you didn't fix right the first time.''
Being new, I don't think, is necessarily a disadvantage. Out of the 30 members in —
The Deputy Chair: Senator, I am loath to stop you. I don't mean to; forgive me. We have a witness waiting, and I was under the impression that you were just clearing up what you were saying last time.
Senator Kenny: This is on the same topic, and I'm almost done.
The Deputy Chair: Okay.
Senator Kenny: I was talking about the problems. We're new and this is a new vehicle. We have new ministers in the cabinet. Nobody fusses that the Minister of Defence, the Finance Minister, the Health Minister and the Justice Minister are all brand new as well. Nobody suggests they need training wheels.
I don't think a committee like this one needs training wheels. We have had no discussion anywhere in this committee about having co-chairs from each house. We haven't had any discussion on a serious matter of having more balance between the two places.
The level of information that this committee is to be getting doesn't match SIRC or the CSE commissioner. I don't understand why we would pass legislation that seems to trust these officials more than we're going to trust the senators and members of the House of Commons who are on the committee. I don't understand why we wouldn't have had a more thorough discussion of subpoena powers. This committee has the capacity to subpoena people. It just doesn't make sense to me.
We haven't had a discussion of the workload. There are either 17 or 21 agencies to review. Is the structure that we have here adequate to actually provide Canadians with confidence that the work that's going on is both legal and effective? I don't see that happening.
On oversight or review, there has been no discussion of any consequence before this committee about the differences between the two and the fact that oversight means you have to share responsibility with the government of the day, which isn't the responsibility of parliamentarians. That review probably would mean we could remove clauses 14 and 16 from the legislation because it would be after the fact.
Thank you for your indulgence, chair.
The Deputy Chair: Thank you very much, Senator Kenny. Mr. Clement, may I ask you to please come and join us at the table? Thank you, for coming. We have reserved your time. You will get your 45 minutes.
Welcome to the Standing Senate Committee on National Security and Defence for Monday, June 12, 2017. My name is Mobina Jaffer. I'm a senator from British Columbia. To my immediate left are the clerks of the committee, Adam Thompson and Mireille LaForge.
I would now like to go around the table and ask members to introduce themselves, starting on my left with Senator Dagenais.
[Translation]
Senator Dagenais: Senator Jean-Guy Dagenais from Quebec. Good afternoon, Mr. Clement.
[English]
Senator Griffin: Diane Griffin, Prince Edward Island.
Senator McIntyre: Paul McIntyre, New Brunswick.
Senator Harder: Peter Harder, Ontario.
Senator Lankin: Frances Lankin, from your riding.
Senator Moncion: Lucie Moncion, Northern Ontario, also close to your riding.
Senator Boniface: Gwen Boniface, Ontario.
[Translation]
Senator Saint-Germain: Raymonde Saint-Germain from Quebec.
[English]
Senator Kenny: Colin Kenny, Ontario.
[Translation]
The Deputy Chair: This afternoon, we meet from 1 p.m. to 7:30 p.m. in order to continue our study of Bill C-22, an Act to establish the National Security and Intelligence Committee of Parliamentarians and to make consequential amendments to certain Acts.
[English]
Senators, as you know, we are sitting long hours today so we can thoroughly study Bill C-22, the oversight bill. This bill is an important first step in establishing an oversight body of parliamentarians for the departments and agencies responsible for intelligence and national security, and we wish to report this bill as soon as possible.
Joining us today is a person that is very well known across the country, the Honourable Tony Clement, P.C., M.P., the official opposition critic to Bill C-22 in the House of Commons. Mr. Clement is also the official opposition critic for public safety.
Mr. Clement, we are happy you are joining us today. We invite you to make your presentation. Afterward, as you know, senators will have some questions for you.
[Translation]
Tony Clement, M.P., Parry Sound—Muskoka, Official Opposition Critic to the Bill, as an individual: Thank you, Madam Deputy Chair. It is a great honour for me to be here with you. This is the first time that I have appeared as a member of Parliament.
[English]
I used to speak to Senate committees as a minister, but one tries to learn different things in life. It is a great honour to be here as you deliberate on this very important bill. Thank you for allowing me a little time to speak to this important legislation.
Of course, I recognize that you are representatives of a chamber that will conduct a very thorough review of the bill. I wish to provide at least my perception of some of the testimony that occurred at the House of Commons Standing Committee on Public Safety and National Security, some of the witnesses that certainly appeared before that committee, and some of the issues raised at that committee.
As I said, it is important to have a thorough review of the bill. Certainly, to have parliamentary review of our national security agencies is very important. Notice I used the word 'review.' This is something that Senator Kenny was talking about in his statement a few minutes ago. I use the word 'review' very deliberately because what I have noticed is that some who have spoken on this issue have conflated the word "review'' and the word "oversight.'' There is an important difference in those two roles.
In fact, we saw this first confusion or conflation in the Liberal Party platform where they promised to develop a parliamentary committee for national security oversight. Some may accuse me of some semantics, but there is indeed an important distinction between "oversight'' and "review.''
"Oversight'' means getting involved in the day-to-day operations of the security agencies as they do their work on the ground, as it were. Some countries have this model, where a third party national security expert is directly involved in real time operations. In fact, Canada itself used to have this model, but it was deemed to be duplicative and ineffective and was ultimately scrapped under the previous Conservative government.
This function is not performed, I should state, by parliamentarians in any jurisdiction that I'm aware of. Conversely, as opposed to oversight, "review "means taking a look after the fact and making sure that everything was done in the most appropriate and effective way possible.
I should tell you that the Conservative Party supports review and accountability for our national security bodies, but when it comes to legislation of this kind, as always, the devil sometimes is in the details.
The legislation before you today, I would put to you, has some key flaws that make it impossible to support, and indeed the Conservative caucus did not support it on third reading. We supported it on second reading but not third reading. What is more, some of the amendments that were passed in the other place weakened the legislation even further. The committee proposed by this legislation, which evidently has a proposed chair already chosen, in our opinion, places far too much control in the Prime Minister's Office and far too little control with Parliament and parliamentarians.
First of all, the Prime Minister picks the members of the proposed committee. While it is done in consultation with the leaders of the opposition parties, ultimately the membership is dictated from the Prime Minister and the Prime Minister's Office. Furthermore, there's a concerning imbalance between the two houses of Parliament. Traditionally, joint committees have had equal representation from both the Senate and the House of Commons. That is simply not the case here. Traditionally, there have been co-chairs from the Senate and the House of Commons, selected by the membership of the committee. Again, as I mentioned earlier already, that is not the case here.
What is more, not only is the membership dictated by the Prime Minister, but the information that the proposed committee will receive is also dictated by the party in power. The Prime Minister and the relevant minister can decide that information is too sensitive to be shared with the proposed committee, despite the fact that the members of this committee are sworn to secrecy. They are sworn in.
How can the committee review actions of our security services if the information they receive is vetted and approved by political actors?
Let me talk about the second problem that we see, and that is the nature of the committee. This is not a parliamentary committee. It is a committee of parliamentarians. Therefore, it does not have the authorities and privileges of a parliamentary committee. In fact, the Minister of Public Safety or the Prime Minister can edit the reports of the committee or block them entirely. This is concerning to us, and I suspect my concerns could be shared by some of you in this room as well.
If problematic information were to come to light during an investigation by the proposed committee, the minister or Prime Minister could bury, and the committee — this is important too — would have no recourse. This seems to me to defeat the purpose of enacting this legislation.
Our good friend, the former chair of the Security Intelligence Review Committee, the late Ron Atkey, who passed away a few weeks ago, stated at our committee meeting:
The possibility of the proposed committee's work being frustrated by any minister determining that the review of his or her department would be injurious to national security is overly protected and should be removed or modified.
If there is any serious problem, Canadians ought to know about it. As I have said before, I fully recognize that the Conservative Party, when in power, did not support the creation of this committee. I acknowledge that, but if we're to create a committee, let's make sure it works properly for the public interest. Even if some details need to be kept classified, which could occur, Canadians need to know what their government is doing in their name.
Let me add another quote from Professor Kent Roach who also appeared at our committee. He has written extensively on matters of national security oversight. He stated:
Stovepipes and silos work to the detriment of both propriety and efficacy.
Yet this is the system that is being created by this draft of the legislation. I would put it to honourable senators gathered here today that this is a major concern. It is a concern that can be remedied by some insightful amendments to the legislation.
Certainly, I wish you Godspeed and good luck as you deliberate on this very important piece of legislation. Thank you, and I'm happy to answer any questions you might have.
The Deputy Chair: Thank you very much, Mr. Clement.
[Translation]
Senator Dagenais: Thank you for your presentation, Mr. Clement. Clearly, this is a committee of some importance. First, to add to the remarks of my colleague, Senator Colin Kenny, we have to take the time to study Bill C-22, which establishes a national security committee. We must not rush things; we must take the time to study the matter.
I would like to hear your opinion on the significance of an equitable distribution of committee members between senators and members of the House of Commons, and on the influence that this committee could have on government decisions. As you clearly mentioned, sometimes, work done in silos does not improve decisions.
Could you also talk to us about the appointment of the committee chair? In my opinion, the chair should likely be elected by the committee. We know that he was arbitrarily appointed by the Prime Minister. I would like to hear what you have to say about that, Mr. Minister. I say "Mr. Minister'', because you were indeed a minister, Mr. Clement.
Mr. Clement: Thank you, senator. I can say a few words about it. It is important to have parity and equality from each Chamber of our Parliament. This may be a creature of the House of Commons, but it is important to have the Senate's participation.
[English]
It is important to have full participation of the Senate. Why do I say that? It goes to the issue of the proper functioning of the committee. Presumably, one of the things that we want the committee to acquire over time is a body of knowledge and experience in national security affairs.
It strikes me that the Senate membership can play a role on this committee, just by virtue of the longevity of the Senate appointment. That body of knowledge can be better represented and reflected in the work of the committee. I do think it is important.
[Translation]
It is very important to have participation from our Senate colleagues.
[English]
You mentioned, Senator Dagenais, the importance of the chair. This was the subject of a proposed amendment put forward by the NDP, in the case of our committee, to have a process by which the chair could be selected by members of the committee. That amendment was rejected by government members of the committee, but I think it is worthwhile to have a discussion on whether there's a better way to select a chair of this committee more akin to the best practices around the world.
Senator Kenny made this point as well, if I can reiterate one thing, because the position of the government is that you have to walk before you run. It is important to start somewhere and for the committee to evolve in experience so that we don't have exactly what is happening in the U.K. or in Australia. I think that is shortsighted because one of the things we can do is learn from the two decades of experience or more in the U.K., Australia, and among our other allies, and have the best practices reflected in our committee.
Why spend 20 years to get to a point at which these other committees are right now? It doesn't make much sense to me to do that. It is better to take their best practices, apply them in our case, and have good, competent and trustworthy individuals sit as members of this committee, including senators. That will be, I believe, in the proper national interest.
Senator McIntyre: Thank you, Mr. Clement, for your presentation. I draw your attention to three clauses of the legislation, namely subclause 12(1) on parliamentary privilege, clauses 14 and 16 on information exclusion, and other components of the legislation to which many senators have spoken.
Could you speak to whether there are certain core amendments that might be made to the legislation?
Mr. Clement: Thank you for drawing attention to those clauses because they were the subject of a lot of testimony from expert witnesses at our committee. The concern raised was called "a triple lock.'' By virtue of these clauses and the application of these clauses there were not one, not two, but three ways through which a government or its security agencies, quite frankly, could frustrate the will of the committee to do its job under the proposed legislation.
I could go so far as to say that a majority of the amendments proposed at our committee dealt with breaking down that triple lock, still understanding there are matters of national security. We need to have a responsible committee which certainly has to ensure the public interest is not harmed by a leak of something that would be injurious to national security.
The pendulum had swung so far in the direction of caution with the drafting of the bill that it could be reset in a way which is not injurious to national security but allows the committee to do the job defined by the legislation.
If I can talk generally, I can say a lot of the amendments that you can study coming from our place deal with having a proper balance between the needs of the committee to do its job and the national security. Let's not forget a lot of the witnesses said there was an institutional bias among our security agencies. I'm sure that they're concerned about the establishment of a new committee. I get that, but I believe we can find a proper balance to make sure that the public interest is protected in these circumstances.
Senator McIntyre: I would like to revisit subclause 12(1) on parliamentary privilege. Senator Dagenais mentioned that you served as a minister in government and were privy to highly classified information. There were certain obligations on you related to the handling of that information. During your tenure in office, did you have to face anything like subclause 12(1) of the proposed legislation that would have stripped you of parliamentary privilege should that information have been revealed in the house?
My understanding is there is nothing similar to subclause 12(1) in the British legislation either. My question is this: Is subclause 12(1) a potential impediment in terms of building confidence between the government and Parliament?
Mr. Clement: Certainly, nothing similar to subclause 12(1) was ever part of a discussion of cabinet responsibility and the obligations of being a cabinet member.
Cabinet members, of course, swear an oath. They're conscious of that oath, meaning that discussions subject to the privy of cabinet cannot be released. There would be immediate consequences, if that were the case, but there was never any discussion of stripping immunity in that situation.
It is something that one hears about in parts of the world where authoritarianism is on the rise. If you see a political proponent getting too close to the bone in her or his attacks on government, all of a sudden some bogus charge comes up and parliamentary immunity is stripped from the person who is the opposition to the government of the day. Obviously, we don't want to emulate that in our law-abiding country that is Canada.
I would put it to you that this is an unprecedented clause, and certainly one that is of great concern.
Senator Lankin: Mr. Clement, welcome. Thank you for being here. We seem to trade sides in these matters from time to time, between who is asking the questions and who is answering. It is my turn to ask again.
Mr. Clement: Absolutely.
Senator Lankin: Let me play devil's advocate. I appreciate your indicating that when you were in cabinet your government didn't support this legislation. Having been on SIRC at the time, and having spoken to a couple of ministers of public safety and former members of your cabinet who then became members of SIRC, one of the reasons for that was a concern about the parsimonious partisanship in the House of Commons and the need for people to grow a record of trustworthiness with information, relationship building with agencies, and an opportunity for agencies to step up and build trust in their own actions.
In fact, I had the chance to speak with Sir Malcolm Rifkind. Their committee had been established for a few years at that point in time. He indicated that was the reasoning behind their committee beginning as a committee of parliamentarians as well.
Despite the fact that some MPs and/or senators will have been cabinet ministers and will have taken oaths, is it not a reasonable concern that in a more partisan setting relationships and trust have to build?
Mr. Clement: It is a predictable concern. I'm not sure I would go along, Senator Lankin, by saying it is a reasonable concern. It is easy to find in this place. Even with the great turnover the House of Commons had, for instance, in the last election with 200 new MPs, you can still find people from the three main recognized parties who would discharge their responsibility with great sensitivity and with the public interest at heart.
For instance, I look at my colleague from the NDP, Murray Rankin, who has clear experience. Having worked as counsel to SIRC, he's a good case in point. If someone were to say to me, as they would have said when I was in government, "We can't trust anybody in the NDP,'' I would say, "You can trust Murray Rankin.'' He's a good case in point. Similarly, I would put it to you that there are several members of the Conservative caucus and so forth.
Of course, finding the right people who can serve on this committee is always a concern, but in a field of 338 members on the House of Commons side, you can find the right people. I have every confidence on the Senate side that is also the case.
Senator Lankin: Reading between the lines of what you said and confirming what I heard directly, that was a concern of the previous government. In some ways I guess I understand why it's a concern of this government.
On the issue of privilege, are you aware whether people make a lot of comparisons to the review bodies? Are you aware, for example, whether members of SIRC have privilege, protection and immunity?
Mr. Clement: You would be more aware of that than I am.
Senator Lankin: The answer is "no.''
Mr. Clement: No.
Senator Lankin: I could have guessed that one.
I'm going to ask you to comment on two statements. First, the legislation is much improved after the work the committee did in the House of Commons. I've read some of the commentary by Professors Forcese, Kent and Menzies who were here last week. They seemed to be putting forward the argument that it was a good first step and it should be supported. Sure, it could be perfect, but better half a loaf than no loaf at all, sort of thing. When you look at the improvements that you made, I'm wondering how you feel about that statement.
Second, the government asserts, and I think they're correct upon my reading and in looking at other jurisdictions, that this bill goes further in some ways than the regimes in place, for example, in the U.K. and maybe Australia in that it is a hybrid. It is not only review. It is not full oversight. It is somewhere in between.
There are some opportunities for oversight of ongoing operations except for prohibitions in national security and where it may be seen as political messing around in a criminal investigation
Those things distinguish it from the 20-year history you're talking about in terms of the U.K
Could you comment on both of those for me, please?
Mr. Clement: I'd be very happy to. Thank you for explaining it in that way.
First of all, one would hope that after at least half of the review, the review by the House of Commons, there have been some improvements made. I certainly would acknowledge that.
When you look at the testimony of people like Professor Roach and the late Ron Atkey as an example, however, I do not believe the gravamen or the focus of their greatest concerns, that is to say the sharing of information and the ability of the committee to hold the government to account, has been sufficiently met in terms of the amendments that have been passed. Certainly with the ones that were proposed they would have been met, but not with the ones passed by the National Security Committee of the House of Commons.
Half a loaf to a starving person is better than no loaf at all, but we have a unique opportunity that this committee is seized of as well to make this the best functioning body possible. It would be a shame to miss the opportunity to proceed with other changes that would make it a better committee.
The witnesses were very happy this committee was being formed. You're absolutely correct, Senator Lankin, but their concerns were not really met by the amendments that were passed, I would have to say.
Second, you're right that the bill has some functions that are oversights and some functions that are review. Let me raise the alarm about something as well. If you look at the exceptions found in clause 14 of the bill, this is part of the triple lock that Professor Roach talked about. He didn't trademark it, so I use that term a lot these days when talking about this bill. Clause 14 is one part of the triple lock:
The Committee is not entitled to have access to any of the following information:
(d) information relating directly to an ongoing investigation carried out by a law enforcement agency that may lead to a prosecution.
On its face that sounds pretty reasonable, but we have had investigations declared ongoing that have lasted for decades, including the Air India attack which is still an ongoing investigation, we were told. If a security agency without proper oversight can declare something an ongoing investigation and therefore the committee is not able to have information relating to that ongoing investigation, I would put it to you that the committee is stymied in those circumstances. The committee cannot do its job.
Subclause 14(d) is just one example of how the committee will not be able to do its appropriate work. Yes, there are some aspects of this bill that are obviously necessary and should obviously go forward, but we do have these problems with the drafting of the legislation.
Senator Lankin: I want to follow up on subclause 14(d). I raised a concern around that with the minister when he was here. It was exactly the same scenario you talked about where these investigations can be ongoing for a number of years. He talked about the very real concern we can all acknowledge in the case of a criminal prosecution. It is extremely problematic if there is any possibility of a defence that politicians have somehow had their fingers in the investigation.
Other witnesses suggested that in something ongoing there may be parts that are relevant but not to a potential prosecution. I don't know how anyone would know that at the beginning, but there has been some suggestion we might be able to negotiate bill protocols and have access to that information.
I find that difficult to imagine, given the legislation setting it out as a prohibition. It would seem to me that would be the standard response from any agency: "Sorry, the legislation prohibits this so we're not going to talk about it at all.''
Do you have any comments or suggestions on that, or is the bottom line for you that it should be taken out of a prohibition and put into a ministerial discretion?
Mr. Clement: For me, to have a blanket prohibition allows for a minister who is less equipped than Minister Goodale or an agency less well run than the current agencies to play havoc with the ability of the committee to do its job at some point in the future.
What we proposed in our amendments and the NDP proposed in their amendments were to basically have more of a dialogue so that the committee wasn't automatically blocked by some declaration by somebody within a security agency saying: "I'm sorry, this is an ongoing investigation.'' To have that declared a power without a discussion seemed to us to be injurious to the intent of the legislation.
There has to be some mechanism that can be worked on if something is an ongoing investigation in year one, year two or year three. If you're in year 20 and it's still an ongoing investigation, that to me sounds on its face to be unreasonable. Let's have an ability to have a dialogue between the committee and the agency responsible so that is not the case.
[Translation]
Senator Saint-Germain: Thank you, Mr. Minister. In France, ministers keep their titles, so I will follow their lead.
In your opening remarks, I really liked the distinction you made between oversight and review. I feel that it is important and that there has been confusion. My general premise is that, when in doubt, intelligence and security organizations develop a culture of restrictiveness. The culture is not one of open access, which is understandable, given the context.
I have two questions. First, whether the oversight committee is a parliamentary committee or a committee of parliamentarians, what is your view of the access to information and intelligence that is essential for its mandate to operate properly and that the bill does not provide at the moment?
Mr. Clement: I can say that it is important to have a committee that can do the job in a way that works for the public; for public safety, of course, but for the public interest also.
[English]
It's important to have a committee that can play the review role correctly. I say again, if we're going to the trouble of creating a whole new committee, let's make sure it can properly function at the outset.
The information required depends on the circumstances, obviously. It is inevitable that there has to be interplay among the security agencies, the minister, probably the Prime Minister's Office and members of the committee. The concern we had as parliamentarians was that to build all those in at the outset places the pendulum so far that the natural inclinations of any organization, particularly an organization involved in security, would always —I was going to say trump but I'd better be watchful of my words — overpower the need of the committee to represent the public interest in an appropriate way.
I can't give you a list of what information. It's difficult to conceive of that until you know the appropriate context, but I would put to you that some of the amendments which you can study that were put before the other committee are reasonable in context and would allow the appropriate interplay between security and protection of the public interest.
That's what we thought we were going to do. Yes, it's a different beast because it is a committee of parliamentarians rather than a parliamentary committee. We were worried about all these other things we're used to seeing, but we were happy to see a whistle-blower protection amendment. We were worried we had to build it from the ground up rather than having the conventions of parliamentary committees automatically assumed by the committee.
[Translation]
It is important to provide that protection. Of course, if the committee is made up of members of Parliament and senators, it is important to have a process that works in the interests of Parliament, but we are also stewards of the public interest.
[English]
That's the key thing we were trying to see with the amendments we were pursuing.
[Translation]
Senator Saint-Germain: In your introduction, you indicated that, when you were a member of the government, you had reservations and you disagreed with the establishment of a committee of this kind. Without giving away any secrets, could you tell us about your main reservations at that time? Remember, I said without betraying any government secrets.
Mr. Clement: My reservations were about having a committee that can protect the interests of security and the information.
[English]
That is why the bill was drafted in the way that it was. I have no knowledge of this because I'm not in government, but I'd be surprised if the sitting government was not briefed with the same concerns that Mr. Harper was briefed about in terms of how this committee could function in a way that could derail a situation.
That's why this document was drafted the way it was. It's far too cautious, though. With the benefit of near hindsight in my second year in opposition, I believe we can find good, honest, capable individuals in both chambers who can deal with information appropriately and provide value-added review that will be necessary for a properly functioning committee.
Senator White: Thank you very much for being here. I want to call you minister as well, I'm afraid.
The PMO or PM have pretty heavy editing capability within the legislation as written now. Do you believe it's excessive or would you see a reduced level of editing?
Mr. Clement: Very simply, this is part of the triple lock problem. They have three opportunities to edit away information in the legislation, either via the Prime Minister or via the minister or via the security agencies themselves.
We had amendments to all aspects of that. Should there be an editing process? There should be some, but to have three edits in the process to me is overly cumbersome and injurious to the ability of the committee to do its job.
Senator White: If you were to change that, what would it look like?
Mr. Clement: If I recall correctly, it would make it easier for that editing process to be challenged. Further reasons would have to be given for that challenge. If the editing process was too cumbersome, it could be a matter of public debate, for instance.
There are all these other things that could be done, but basically the government does have the right to try to draw conclusions as to whether something is appropriate or inappropriate, but to have three kicks at the can was too much. That is basically what opposition members of the committee were saying.
Senator Griffin: My question is fairly simple. I want to be crystal clear that you support the 2004 recommendation for a joint parliamentary committee rather than the more recent Senator Segal proposal.
Senator Moncion: My question is about access to information. Most of the proposed amendments touch on that particular subject. There are quite a few of them.
You've explained some of it, but I'm still not completely comfortable with the problem related to access to information because of the complexity of some of the information that can be provided.
Mr. Clement: In response to the first question, a joint parliamentary committee recommendation is certainly more acceptable. We understand that it's now going to be a committee of parliamentarians. Most of our amendments related to making it more like a joint committee structure, with some of the conventions and some of the practices known to us as a joint parliamentary committee.
In answer to the ATI, the essence of that is in clause 16, "Refusal of information,'' where the appropriate minister may refuse to provide the information that it would otherwise be entitled to have. Again, special operational information was a large amorphous area. What is special operational information? Then there was the injurious to national security. Of course nobody wants to see national security being injured, but that's a large exception with not a lot of constraint if the government of the day or the security institution chose to do that.
Clause 16 was a point of contention with our committee. We had proposed a lot of amendments to clause 16, most of which were not accepted, so that would be an area that would merit further study, in my opinion.
The Deputy Chair: Thank you very much, Mr. Clement, for making yourself available today. We have certainly learned a lot from you. We hope, in the future, we'll again be able to work with you.
Joining us for the next panel is a former member of Parliament, Mr. Derek Lee. Mr. Lee, we have missed your friendship and your expertise on the Hill. Welcome back.
[Translation]
Mr. Lee was the chair of the Interim Committee of Parliamentarians on National Security, of which Senator Kenny was the vice chair.
[English]
In October 2004, the committee released the report of the Interim Committee of Parliamentarians on National Security, an advisory committee composed of members of the House of Commons and the Senate.
Mr. Lee, many of the principles that you laid out in your 2004 report with Senator Kenny have been echoed today in Bill C-22. I would like to welcome you here and thank you for the work you, Senator Kenny and your committee did on this issue.
I invite to you start with an opening statement and then we will have questions.
Derek Lee, Former Member of Parliament: Thank you, Madam Chair. After many years working as a member of the house in the area of national security, it is a pleasure to be here on maybe the final piece of what I and others had been aiming for moving through Parliament, and that's this bill.
I had earlier been a part of the 10-year review of CSIS in 1989. My motion created the National Security Subcommittee of the Justice Committee in 1991. I want to say that there were two very valuable colleagues, both Progressive Conservatives, Blaine Thacker and Bob Horner, who pushed within their caucus the government caucus at the time. My motion in the late 1990s created the Office of the Communications of Security Establishment Commissioner. All of those components were added over time. It's like a lot of band-aids trying to provide reasonable parliamentary oversight, I use that word generically, loosely.
Looking at the current bill, I am one of those who would fall under the category of saying the glass is half-full rather than half-empty. Were I writing the bill myself, I would have written it a little differently.
As Senator Kenny has probably made known, he was a very valuable and capable member of that interim committee on national security. There was a unanimous report offered to Prime Minister Paul Martin at the time. A bill was created, of course, but it never got through the house. I'll just comment on one part of the bill first and then talk about context.
I want to talk about clause 20 that deals with procedure. It's notable that the new committee is clearly not a parliamentary committee. It's stated not to be. Therefore, it has no privileges attached to it at all. It has nothing. It has no power to send for persons, papers or records. It has no ability to protect witnesses. It can't even summon witnesses. There's no PPR involved. It's an aircraft, some would say, without wings, but the statute itself does give it at least one wing in terms of bringing information forward. It is not playing with a full deck of cards, as other parliamentary committees would. Even the Security Intelligence Review Committee, being a review body, has the power of subpoena and the power to administer oaths.
We have the NSICOP, the National Security and Intelligence Committee of Parliamentarians. The half-dozen to 10 components of our own national security community with all its agencies and all its functions, I'll just call them the IC, the intelligence community, since we are living in a world of acronyms.
I find it is an anomaly that even an ordinary parliamentary committee, a standing committee, as it sits now, would have the power to subpoena classified information. If you're in any doubt about that, you can read my book or you can read the Speaker Milliken's decision in 2010. It is as clear as crystal that a parliamentary standing committee has all the powers of subpoena it needs. Sometimes it won't be able to exercise them because they can't get a majority on a committee or the house is reluctant to take steps, but the power is there.
Our National Security and Intelligence Committee of Parliamentarians doesn't have any of that. It's like going into a Chinese restaurant and filling out your own order paper. You give it to the waiter and hope the food comes back. It usually does. That's all this committee can do.
I find that a bit of an anomaly and I kind of regret that, but fixing that would necessitate a whole rework of this bill because you're dealing with a constitutional matter, meaning the privileges of the house and the Senate, the privileges of Parliament. That can be a complex area.
This inability to protect witnesses might have a bearing on the future reputation of the committee. Something could happen and the committee would look inept, maybe. In the end, I'm ready to roll the dice on this one. As you can tell, I'm leaning that way.
They probably thought about accommodation for the committee, but on whose dime does the committee operate? What premises do they use? Maybe it will be like SIRC, the way SIRC is accommodated, housed and paid for. This committee is not at all a function of the Senate or the House of Commons. The men and women who sit on this committee are essentially going to disappear from the house. As I see it, they will be working in other premises somewhere. Of course, they will have connections to the house, as I will point out later.
The question about quality and quantity of disclosure to this committee is a big issue. This particular issue is always an issue. Even if we resolved it around this table, it would still be an issue. It's an issue for all the committees that exist with our other partners in the alliance.
Senator Kenny and I were at least part of it. We met with colleagues in Australia, the United States, the United Kingdom and New Zealand. I've seen them over the years. I've talked to them. This is always an issue. No matter how you write the rules, the men and women on the committee are always working to get the disclosure they need. That gets you into the need-to-know principle. That's why I'm sort of leaning in favour of maybe trying to fix this bill up a bit, or just going with it and evolving the creature.
I'm going to take a practical view. Should the committee not get the disclosure it's looking for, there's no appeal mechanism. They're just out of luck. These are MPs and they sit beside other MPs, ministers, and the Prime Minister. With one exception in my time in the house, prime ministers always listened to the caucus. There never was a time when a member couldn't call a prime minister and say, "This isn't working; we have a problem, Houston.''
A minister doesn't want to get caught up in one of these things, either. First, of course, the MP would go to the minister and say to him or her, "We have to fix this. The disclosure isn't adequate. We can't do our job.'' The minister says, "Oh, I can't do anything. The officials won't let me do it,'' and you have to go to the minister's boss. The minister doesn't like that and the officials don't like that.
I've never had the pleasure of serving in the Senate, but there is a way to do these things. There is a way to move the yardsticks. All our colleagues have to do this. All our international colleagues in other countries are not always having to do it, but from time to time they have to do it. It seems to come out okay in the end. They're able to massage the system to get the disclosure they need. If there's a bit too much expurgated from the document, a little too much black or white lining, you go back to the trough and you try again: persistence.
I want to point out a few other relevant dynamics which probably will never get put into statute about this type of committee, based on my experience. Over time there will be increasing confidence in the committee and its members. It just happens. You work with people. They have confidence in the new institution. You become part of the process, and the barriers that might be there in the beginning just aren't there. The system begins to work with increasing confidence in the new committee.
The members themselves will better get to know the need-to-know principle. You don't ask to get everything. You don't react at every black line. You try to get what you need to do your job. You will become aware that you don't want to know everything. Even if you could know, you don't want to know because you don't need to know, and if you do know you can't talk about it.
I recall I had a meeting with a former director of the CIA, and he said, "Six months later I can't recall whether I learned this on the front page of The New York Times or whether I heard it in a confidential briefing.''
You have to forget it. You wall it off. If you receive classified information, it sits there in a steel box and you just don't talk about it. The committee members will learn this and their counterparts in the agencies will know that they know. They will know that they know, and that's my experience as a legislator moving up close to the agencies.
The Deputy Chair: Mr. Lee, we have a lot of questions. I'm sure it will be covered in the questions we ask.
Mr. Lee: Why don't we go to questions?
[Translation]
Senator Dagenais: As you mentioned, Mr. Lee, the time you have devoted to this project is proof that things cannot be rushed along in matters as important as security. I say that because I get the impression that they would like us to pass this bill without amendment. We are told that, all of a sudden, it is urgent.
Would you be in favour of an amendment to the bill saying that the chair would be chosen by the members of the committee rather than the Prime Minister's office, which has reserved the right unto itself, just as it has reserved the right to designate the employees of the future committee? At the same time, do you believe that there should be an amendment to provide appropriate protection to any whistleblowers potentially providing information to the committee?
[English]
Mr. Lee: On the question of the chair, I think 99 times out of a hundred, whether elected by the committee or by the Prime Minister or consultation in the houses, your chair is going to end up okay. At the end of the day, on this one, the first pitch being thrown in the new game, I am more comfortable with the appointment as consulted in the house and/ or in the Senate. In terms of our international relationships, you will get a person who has the imprimatur of the government. I don't think that will hurt the committee at all. I have no doubt that whoever is put in the chair, for a number of reasons I won't go into here, will not be a lapdog for anybody. I would accept the appointment.
The second issue was an amendment to protect whistle-blowers. I regard the absence of the kind of protection that a whistle-blower or even an ordinary witness would have at a parliamentary committee is a missing piece of hardware. I think the committee should have the ability to protect them by importing those elements of privilege that would protect a witness. I haven't thought that through in terms of wording, but the concept is there.
[Translation]
Senator Saint-Germain: We have heard from various witnesses whom we have asked about the weaknesses in the bill, especially with regard to access to information and independence from the government. Some of those witnesses, security experts, told us that it is better to have an imperfect bill passed quickly than to have no oversight body of this kind. What do you think about that?
[English]
Mr. Lee: Yes, given my history, I'm thinking get the thing in place; get this committee up and running. The members are all politicians. They will find a way to make it work.
I lean in favour of not tinkering too much. There's enough time left in this Parliament, I guess. You could stick handle some significant amendments, but that's up to the senators. I have already said that I lean in favour of adopting a bill as soon as is practicable, a bill that works and doesn't have any glaring omissions.
Senator McIntyre: Thank you, Mr. Lee, for your presentation. You chaired the 2004 Interim Committee of Parliamentarians on National Security. You produced a very interesting report, which, as I recall, you called at that time a made-in-Canada approach.
You argued for an equal Senate/House joint committee chair or co-chair from both chambers. You even recommended that it be a committee of Parliament, not a committee of parliamentarians, and that the committee members be appointed by the Prime Minister.
In other words, you were recommending a much more ambitious structure for Canadian parliamentary review of security and intelligence matters. I want to understand why you came to that conclusion at that time.
Mr. Lee: Oh, easy. That was our job as parliamentarians at the time. Don't forget, we had gone through 9/11. I recall, about a week after 9/11, that a government minister came racing up to me, "Derek, Derek, do you still have that national security subcommittee running?'' I said, "Yes, yes; it's over there.'' He said, "Thank God.''
The point is that government needs this type of committee. Otherwise, it looks like it's hiding everything. People have to look at civil liberties and spending efficacy. Only this type of committee can break down the silos and do it.
From the interim committee, we reached, if I recall, unanimous agreement. It was hard putting that together. We had to deal with security issues, loyalty issues and legal issues, but we were able to recommend that. The Senate provides constitutional continuity, whereas members can get elected in and out from time to time. A few experienced senators on such a committee would be an asset, in my view. That was also the committee's view.
I'm not so sure all the members of the NDP were that robust in their support of Senate participation, but we were able to secure, as I recall it, a unanimous report, which provided the basis for the bill we were drafting. If left to me, I would draft something a bit more robust than what is here now. I have every confidence that no matter what comes down the pipeline on this, the MPs are going to make it work.
Senator Lankin: We are in that situation of the ideal: what would that be and what do we think it would be. Until you get it up and running, you really only can speculate. Part of what I have seen over the last 15 years is the Martin government drafting a bill and not bringing it forward to completion. With the Harper government there was a bill redrafted from the Martin bill. It hung around and never got brought forward. From the best of my information, that bill was taken, has been enhanced and is before us now under the Trudeau government.
We have to acknowledge there is a hesitancy in the agencies. There is hesitancy in government. Getting something going and getting some experience with it might alleviate some of those concerns and might allow an effective body to grow.
I am interested in your comments around the areas of clause 20. There are three things: privilege, witness protection and subpoena power. On witness protection, do you anticipate that this committee would be hearing witnesses from outside the world of the public service and the agencies? I will tell you why I'm asking it.
Mr. Lee: Not as a routine. That's the short answer.
Senator Lankin: In my mind, there is a whistle-blowing protection for people in those jobs. The only people they will be testifying in front of are members of the committee who have sworn oaths. I am not sure it is the same as a witness before a public committee.
Could you help me understand where we might have such a serious problem that we should consider amending now versus getting some experience?
Mr. Lee: As I said before, I am cautious about the committee wanting to proceed and hear from witnesses. Right now, I guess there is no infrastructure for them to bring in witnesses. I don't know whether the government thought about that, but as a parliamentarian, I think you have to allow MPs to have information come in that's not being spoon-fed from the government.
Is that someone from an agency who just wants to tell a committee member something, in camera if necessary? It would probably be in camera. If you bring in a witness, the witness' lawyer is going to say, "I don't think we can do this. I can't recommend that you do this because the MPs are not in control of their process.'' It is in camera, but it is not like they can't speak about what happens inside the room. They're only obligated to secrecy on what they hear from the agencies, but not from what they hear from someone who comes into the room.
The absence of the ability to manage information not coming from the government isn't there. It isn't there. If I were the chair, I would avoid it like the plague. To say, "No, we can't have people coming in. We can't have this information,'' would in a way disable the committee from performing its function.
Otherwise, the committee would be like half of a SIRC: We look at the stuff, send it back and check off the boxes. In the field of civil liberties and spending efficacy, there's a whole world of data out there and the IC agencies are not the only managers of that data. The classified stuff, yes, but there are citizens out there too.
Senator Lankin: I'm not sure if we have the same information with respect to the ability to request witnesses to come forward. It certainly is anticipated by the government. According to the minister in his testimony, that would be the case. The individual provided would be done on the best advice of the director of the agency, only because of considerations of frontline operations, involvement and timing, and those sorts of things. That's the reason he put forward for not supporting subpoena power.
I'm not sure if that's a sufficient reason or not, but it certainly is anticipated that witnesses would come before the committee. Based on your comments, I'm not sure that you see that.
Mr. Lee: I wouldn't want any witness coming forward to think it was just like appearing before a parliamentary committee, because it isn't. It is not a parliamentary committee. You might as well go to the Toronto Star editorial board and talk.
Senator Griffin: Would you support an amendment to classify the committee as a judicial proceeding so that it could have the witnesses sworn to an oath and therefore get at the truth?
Mr. Lee: Certainly, I would. That would be an easy one. Yes, I think it would be an easy one, although somebody would have to look at the broader implications of bringing those components into this type of a committee. On the face of it, yes, I would support that.
Senator McPhedran: When Minister Goodale was here he actually referenced a number of times in his presentation the Canadian Charter of Rights and Freedoms. I would like to get your sense of the value, or perhaps your perspective of whether there are any risks, if we were to take another look at the mandate of this committee, looking particularly at clause 8, and noting that the mandate is to review the legislative regulatory policy and administrative financial framework for national security intelligence, and if we were to add into that to review, among other things, consistency with the Canadian Charter of Rights and Freedoms.
Mr. Lee: Sure, that would be part of the committee's overall objectives. I am sure every member of the committee would say, "Yes, we have to take care of the Charter in all that we review here.'' Inside my head there's a little bell going off, saying that these issues are already dealt with, normally dealt with from time to time, and usually dealt with by another component of government, another component of the Justice Department.
Making it an explicit function would do no harm. It would give the committee some focus because right now a committee reviews. It is not a bad mandate but that would give it some focus. Its raison d'être could be better seen with the Charter as part of its mandate. I think that's a fair way to look at it.
Senator Boniface: I may have missed it, but you didn't touch on parliamentary privilege in the ongoing debate on that issue. I wondered if you had some views on that.
Mr. Lee: Do you mean in the bill?
Senator Boniface: Yes.
Mr. Lee: If I could put it this way, there is no parliamentary privilege in this bill.
Senator Boniface: Yes.
Mr. Lee: There is zero. The only reference to it is the exclusion of parliamentary privilege, in the event a member were to be prosecuted for breaching secrecy. That's an illusion that somehow that is how parliamentary privilege is imbued in the statutes. There is zero parliamentary privilege. In fact, the members are on their own. They're completely removed from it. That's why I thought that some parliamentarians may not realize that.
I am exaggerating a bit if I say that going to work for this committee isn't a lot different from going to work for General Motors. You are going to work for this statutory construct over here. Good luck; I hope it works. "Here is your mandate. You've got no legal or subpoena powers. You can't protect your witnesses. If you make a mistake, we're going to prosecute.'' Good luck, men and women of the House of Commons and Senate.
I'm exaggerating wildly here, but I think you take my point. I'm a parliamentarian. I'm not even sure there are elements of privilege these members will still have. That would make another whole committee. That could be another committee meeting. We're not going to go there, but that issue of privilege is a fascinating one. It lurks all around this particular statute.
Senator White: I was going to ask that later. Some would argue that you can't actually lose your parliamentary privilege, certainly in a role such as this, unless there was an intent on your part. Would you agree? Is that what you are suggesting? Are you not convinced that parliamentary privilege could be lost?
Mr. Lee: The statute takes it away. Nobody is waiving it, in this case.
Senator White: I understand that.
Mr. Lee: I suppose a member could simply do nothing and, in effect, waive an element of his or her privilege. The House of Commons and Senate can take away the privilege. I recall, about 10 or 15 years ago, seeing an amendment being made to the Criminal Code by the Justice Department. I just happened to stumble on it. It was removing a whole chunk of parliamentary privilege. I went to the then prime minister and said, "You can't do this.'' The bill got changed.
All of us tend to take our privileges for granted and think that someone is minding the house. In this case, I didn't want members to think they had all the privileges. They may have some, but at the end of the day it is not clear.
The Deputy Chair: I have a question about your views concerning the composition of the committee. In your interim committee report you had gone actually beyond two MPs to one senator. You stated that the joint committee of parliamentarians should have half-and-half proportion of representation between the House of Commons and the Senate. You know what Bill C-22 is: three senators out of eleven.
Can you comment on that, please?
Mr. Lee: That could be a function of the great Senate representation on the interim committee. There was Senator Michael Forrestall and Senator Kenny. I'm missing one, or were there just two?
Senator Kenny: Tommy Banks.
Mr. Lee: Yes, Senator Banks. We all in the house, as I recall it, accepted the presence of members of the Senate. The service continuity attached to most senators would be an asset for the committee of parliamentarians. In terms of the mathematics of it, I don't think there's any great magic in 50-50. What is it now, 70-30? It's roughly 70-30, isn't it?
The Deputy Chair: Not quite. It is 8-3.
Mr. Lee: The important point is that senators are there, and I accept that. In our Canadian Constitution we have to accept that the Senate as a very valuable asset. It may suffer and it may benefit from being unelected, but it is what it is. At this time in history, the house is offering 80-30, if that's what it is.
I would have no problem with a 50-50 committee, but I would want to see the elected house properly fulfill its role as the elected house in whatever makeup was there.
[Translation]
Senator Dagenais: Thank you, Mr. Lee. If we accept that the chair will be appointed by the Prime Minister and will represent the House of Commons, would you be in favour of an amendment to the effect that the vice chair of the committee should come from the Senate?
[English]
Mr. Lee: Yes, I would not have a problem with that at all. It might just be illusory to have a vice-chair from the Senate if the statute didn't define what the vice-chair did. Keep in mind we're creating this new construct, but it is not a parliamentary committee. Just exactly what a vice-chair would be in NSICOP is unclear. Clearly, the vice-chair would back up the chair. I wouldn't have a problem with that at all.
The Deputy Chair: Mr. Lee, thank you very much for making yourself available. We certainly have benefited from your expertise. It is always good to have you here. Thank you very much.
Mr. Lee: Thank you. I enjoyed the exercise. Good luck.
The Deputy Chair: Honourable senators, we will now go on to our third panel. Joining us are Craig Forcese, Professor, Faculty of Law, University of Ottawa and Kent Roach, Professor, Prichard-Wilson Chair in Law and Public Policy, Faculty of Law, University of Toronto.
Both Professor Roach and Professor Forcese are not new to this committee. We have often asked for your support, not just in this committee but also in other committees in the Senate. You are both very knowledgeable about the subject that we are discussing today. I know I speak for every member on this committee when I say welcome. We really look forward to our discussions and our continuing working relationship.
Mr. Forcese, you can begin.
Craig Forcese, Professor, Faculty of Law, University of Ottawa, as an individual: Thank you to this committee and to members of the Senate for welcoming us. We've actually partitioned our presentation in the interests of efficiency. What I'm going to do is set some context and then make two modest suggestions.
I want to underscore, though, that Mr. Lee in prior testimony indicated that he regarded the Bill C-22 process and committee as a glass half-full. I'm prepared to say that even on first reading it was a glass half-full and now in its amended form it's a glass three-quarters full. What we offer here is constructive criticism but support for the project as a whole. I want to set the stage as to why that support is true.
I want to point to the report in November 2014 of the United Kingdom Intelligence and Security Committee of Parliament. In its 200-page study of the intelligence related to the murder of Fusilier Lee Rigby by two terrorists on the streets of South London. That report concluded that seven different security agency investigations had flagged the two terrorists as persons of interest. Errors were made in these operations. Although without these mistakes it was unlikely that the services would have been able to predict and prevent the murder of Fusilier Rigby, nevertheless, the ISC proposed a number of systemic changes to the operations of the services. It drew lessons learned and made recommendations.
Juxtapose that pattern with the situation in Canada. Almost three years ago, Corporal Nathan Cirillo and Warrant Officer Patrice Vincent were killed by terrorists in separate incidents, including the one that terminated in Parliament itself. We have no public accounting of any real source of what happened. What did our services know? Why did they make the decisions they did? What are the lessons learned? At best, we have heavily redacted accountings of the security system on the Hill, as if the questions concerning national security started only when the terrorist entered the parliamentary precinct.
There are internal police lessons learned documents. They've never been released. There's a Quebec coroner report on the Saint-Jean-sur-Richelieu attack, but there has been no effort to web together all of government conclusions. We do not, in other words, do lessons learned exercises well in Canada. Judicial commissions of inquiry, such as that concerning the treatment of Maher Arar and the much-delayed review of the Air India bombing investigation, are episodic. Once they end, their recommendations usually die with them.
Our existing expert review bodies, meanwhile, focus on compliance with law and policy, what we call "propriety review.'' They rarely make recommendations on what we call "efficacy review,'' that is, how well our national security systems work and especially work together. That is why we support Bill C-22. It invests parliamentarians with a serious national security accountability function for the first time in Canadian history. Incidentally, the recommendations for such a function date to the McDonald inquiry in the early 1980s. Even more critically, it opens the door for the first time to an all-of-government review by a standing body able to follow the thread across departments and conduct efficacy review. This body will endure and will be capable of follow-up in a manner impossible for ad hoc commissions of inquiry.
We believe the Bill C-22 proposal compares favourably to analogues in other Westminster democracies, although that involves something of an apples and oranges comparison. I've provided a table. I understand it will be translated. I tried to compare Canada, U.K., Australia and New Zealand in terms of various features of parliamentary review.
For all of these reasons, we believe that Bill C-22, even in its present guise, deserves support, but our support comes with caveats. The success of the proposed committee of parliamentarians will ultimately depend on three criteria. First, the parliamentarians undertaking this role must be able to perform their functions in a serious-minded manner, in good faith and without regulatory capture by the agencies. We need, in other words, the right people.
Second, parliamentarians will, in practice, be part-time participants in the review committee and turnover among parliamentarians will occur, especially between parliaments. A stable, well-resourced, expert staff is required to ensure continuity and institutional knowledge.
Third, the committee must have robust access to classified information. In my remaining moments, I wish to emphasize this third axiomatic point.
In terms of access to information, the proposed Bill C-22 committee will not be as robust a reviewer as are the existing expert review bodies, such as the Security Intelligence Review Committee, largely because the Bill C-22 committee will have more limited access to information.
Before the Commons, we advanced the argument that the Bill C-22 committee should have the same access to information as the existing expert review bodies, such as SIRC. That would mean limiting the mandatory information exclusions in clause 14 to cabinet confidences only and eliminating entirely clause 16. That argument obviously did not win approval of the government.
Before you today, we put water in our wine and propose more modest adjustments that we think will meet what we think are the government's objections to such a step and to fuller information sharing, while allowing the Bill C-22 system to evolve and serve its purpose.
First, under clause 14, there are classes of information the government will automatically deny the committee. The one that particularly concerns us is subclause 14(d) concerning ongoing law enforcement investigations. These can endure indefinitely. The RCMP, even now, decades later, still has an active law enforcement investigation into the 1985 Air India bombing. Even now, the Bill C-22 committee could be denied information concerning the disastrous security and intelligence community conduct in relation to Canada's most horrific terrorist incident.
We understand the reason for the subclause 14(d) exclusion. It relates to police independence. We are concerned, however, that clause 14 closes the door definitively to sharing, even when police independent concerns might be mitigated. We also note that this mandatory exclusion is more sweeping than some aspects of the Access to Information Act. We believe, therefore, that the clause should be amended to preserve a discretion to disclose, exercised by the chief police constable in question, most likely the commissioner of the RCMP.
I'll read the text for the record. We propose limiting the exclusion to information relating directly to an ongoing investigation carried out by a law enforcement agency that may lead to a prosecution where, in the opinion of the head of that agency, disclosure of the information to the committee could reasonably be expected to be injurious to the enforcement of any law of Canada or province or the conduct of lawful investigations. That language is almost a carbon copy of current language in the Access to Information Act.
This amendment would create a discretionary power to share. So too clause 16 creates a discretion to share. Our concern is, therefore, that many officials will now be asked to exercise discretion with respect to quite general grounds to refuse sharing with the Bill C-22 committee. We worry that this discretion may be exercised inconsistently over time and between officials.
We propose, therefore, a second amendment, drawing from the United Kingdom statute. It mandates the creation of a memo of understanding between the security services and the U.K. Intelligence and Security Committee governing, among other things, information sharing. Such a memo of understanding could be used to set more precise negotiated guidelines, standardizing the exercise of discretion to decline information sharing. That memo could also evolve as the Bill C-22 committee gains confidence and credibility as a review body.
Put another way, we should avoid creating a Bill C-22 committee that is impaired from its inception, without the prospect of remedying those shortcomings prior to a full legislative review in five years' time.
My colleague, Kent Roach, will now discuss other matters in Bill C-22.
Kent Roach, Professor, Prichard-Wilson Chair in Law and Public Policy, Faculty of Law, University of Toronto, as an individual: Thank you very much for the invitation and, Senator Jaffer, thank you for the very kind introduction.
As has already been described, we support Bill C-22 in principle. It's a long overdue expansion of parliamentary review of national security activities from a whole-of-government perspective. As Professor Forcese has mentioned, the McDonald Commission recommended this in 1981. I would just add that we are the only Five Eyes nation that does not give and trust our parliamentarians with secret information.
A particular strength of this bill is that in clauses 22 and 23 it recognizes inward and outbound links between the new committee and the existing review bodies for the RCMP, CSIS and CSE.
The point here, though, is not simply the point made in clause 9 that the new committee should avoid duplication of review work. All of this work is based on risk assessment and audits. It's not true oversight, but to ensure that the review bodies work together I include the existing review bodies and now this new committee of parliamentarians.
Another strength of the bill is the provisions that ensure that government MPs do not constitute a majority. The country and national security both suffer when national security becomes a partisan issue. It's for that reason I also support robust senatorial representation on the committee. I do, however, have some reservations about both the powers of the PM under clause 6 to appoint the chair, and under clause 21 to allow revised or redacted approaches.
Another concern I have about clause 21 is it allows redactions by the Prime Minister not only on the grounds that the release of information would harm national security — and, as Mr. Clement said this morning, none of us want to harm national security — but also on the basis of solicitor-client or litigation privilege. Whereas if you look at subclause 13(2) of Bill C-22, it wisely and correctly, in our view, gives the committee access to relevant information that might otherwise be covered by solicitor-client privilege.
One of the most important lessons of the post-9/11 era, from the U.S. torture memos on forward, is that national security is now heavily lawyered. Without access to information that could be covered by solicitor-client or litigation privilege, the public may not really know the full extent of security powers or what the de facto rules are that govern our security activities. Thus clause 21 sits in tension to subclause 13(2).
Specifically, we have concerns that redacting reports on the basis of solicitor-client privilege could inhibit robust reporting by the new committee about matters such as those revealed by the Federal Court both in its landmark 2013 and 2017 decisions, which both found that CSIS, on the basis of erroneous legal advice, had collected and retained information in an illegal way. We see a tension between the appropriate principle that the new committee should be able to see things that are solicitor-client privilege, and the back-end redaction on the basis of solicitor-client privilege.
We would be remiss if we did not note our preference for allowing the courts, or some other independent third party, to settle disputes over what must be redacted from the committee's reports. It is with a somewhat heavy heart that we note the late Ron Atkey also testified before the committee at the other place to this effect. As with so many matters, we agree wholeheartedly with Ron Atkey, whom we both respect and greatly miss and were proud to count as a colleague.
Finally, this is my last and third kind of specific amendment, but I think it's also one that speaks to Ron Atkey's proud legacy as the first head of SIRC. We would propose that the new subclause 31.1 be amended to require that the committee report to the appropriate and responsible minister, not only with respect to activities that may not be authorized by law, but also activities that may involve the unnecessary or unreasonable use of powers. This is taken from some of the original language in the 1984 CSIS Act with respect to the inspector general.
For example, take the activities of the CSE, our signals intelligence agency. Many of these may arguably conform to law under CSE's broad and contested mandate but, nevertheless, the public and the responsible minister have interest in knowing if this new committee concludes that CSE has used its vast powers unnecessarily, unreasonably or disproportionately. This was the reporting duty that CSIS's inspector general had from 1984 until it was abolished in 2012. We believe that it is also the appropriate reporting requirement for what we hope will be a valuable new committee.
Thank you for your attention.
The Deputy Chair: Thank you very much to both of you.
[Translation]
Senator Dagenais: My first question goes to Professor Roach. Professor, given what we have heard, I feel that there is a lot of room to improve this bill right away. Could you give us your perspective on the committee's ability to function if the Conservatives and the NDP were to refuse to participate because the Prime Minister's office had too much power, and because of the complete control he could have over this oversight committee?
[English]
Mr. Roach: Thank you, Senator Dagenais. I think that would be most regrettable. In a way the clause 16 powers are a bit like the notwithstanding clause in the Charter. Yes, they could be used to defeat the purpose of the committee, but that's almost assuming a degree of bad faith. It's assuming that a political price will not be paid for using those powers.
One of the things that has heartened me over my career is to realize how an engaged public can actually put real political costs on it. That's why we've always focused more on clause 14 rather than on clause 16.
In a perfect world, as my colleague said, this committee would have the exact same access as SIRC has: everything except cabinet confidences. However, we don't live in a perfect world and sometimes you have to take baby steps. I think it would be very regrettable if any parties or the public lost confidence, simply because of the existence of these powers. There are safeguards built in so that the committee can complain and publicize if these powers are used unreasonably.
I would think that if either the Prime Minister or a minister started to say, "You're not seeing that,'' hopefully we will have the journalists, civil society, professors and others who will be a bit like a moth drawn to a flame. I'm reasonably confident that if we continue to be engaged on this issue — and that's a big "we,'' including the media and civil society — that there will be a big price to be paid for either denying the committee information or redacting its reports in ways that cannot be justified.
[Translation]
Senator Dagenais: Mr. Forcese, would you have an opinion you could share with us about the remuneration formula proposed for members of this committee, and about the limits that could well impose in the future? Clearly, the members will be compensated.
[English]
Mr. Forcese: You're talking about the members and not the staff, I assume.
[Translation]
Senator Dagenais: Yes, I am talking about the committee members.
[English]
Mr. Forcese: I don't have a particular view on that. I think they are performing rather extraordinary functions and I personally would not be concerned about the idea that they should be remunerated for it. You're implying that a conflict would arise. I'm not sure I've given that much thought. I wonder if you might be able to amplify what you had in mind.
[Translation]
Senator Dagenais: We will see how things develop, but I imagine that the chair of the committee, a member of Parliament, will certainly receive additional remuneration, because he is the chair of the committee.
[English]
Mr. Forcese: I frankly have no views on remuneration of the members of the committee one way or another. I think it would be fair to remunerate. I don't think it would be a problem if they were.
Senator Lankin: Welcome to both of you. It's good to see you again. I appreciate the thought you've given to where we're at right now in the stage of development and what might be helpful amendments at this point in time.
Mr. Forcese, you talked about the possibility of memoranda of understanding. When the minister was here, we actually spoke about that.
One of the concerns I had about clause 16 and ministerial discretion was lack of consistency in application of definitions of national security and other things. I appreciate this suggestion and the possibility of language that might bring this to light.
I assume this same mechanism could be used in terms of the relationships between the committee and various review bodies like SIRC. Would you anticipate that would be included in the kind of amendment you're suggesting?
Mr. Forcese: Yes, certainly. I would imagine, as a matter of course, that such memoranda of understanding would be entered into because they are, in practice, instruments you see as between security services themselves.
The issue is to place an affirmative obligation to negotiate such a thing, which in the U.K. has meant that the memo of understanding, which is a public record, specifies that the discretion to exclude information will be rarely exercised. It sets an expectation of disclosure, and if that expectation is honoured, then it removes some of the concern that there is overbreadth in terms of, for example, the definition of special operational information. More than that allows an evolutionary process.
As I suggested, as confidence is built between the security services and the committee, the memo itself could go through various iterations.
Mr. Roach: You know this better than I do, senator. I can briefly add that it's very important the new committee have access, at least presumptive access, to all the classified reports of SIRC and the CSE commissioner. I'm well aware that those of us who are outside the tent of secrecy really only see a very small proportion of the important work the review bodies do.
That would be something that should be negotiated with an MOU. It may not be every report, but a particular strength of this bill is the secretariat because the secretariat is paid and paid at a fairly senior level. As you would know, it will be very important for members to have access to that secretariat and for that secretariat to be able to hire people on an as-needed basis.
Again, I come back to my point that I'm a little concerned about the overblown language of oversight. A bit like SIRC, this committee will do valuable work, but it will have to pick its spots. National security only becomes more complex and more technological, so it's important that the secretariat be able to draw, on an as-needed basis, on the expertise it needs to get its work done.
Senator Lankin: Just thinking about the secretariat for a moment, last week when we were meeting and speaking with witnesses an issue was raised around the direction of the secretariat. There was concern that the minister responsible is the minister responsible for the machinery of government and the placement of it is in Privy Council Office. Is this too much control by the executive branch?
I was doing some work in the Senate Office of the Law Clerk around a potential amendment, and I would like your opinion on this. I have come to the conclusion, as advised by them, that the structure of this under the Financial Administration Act really sets out that the power rests with the executive director, which will at a deputy head level. There isn't a direct control by the minister as is set out in other pieces of legislation where secretariats or agencies are established. Its job to assist the committee gives sufficient clarity around this. Anything else added to that, although they drafted me some language would both be redundant and potentially have unintended consequences either here or with other legislation.
That is just off the top of my head, recounting what they said, but can you give some insight on that?
Mr. Roach: In the present bill I see at subclause 24(2) where it says, "The Secretariat is to assist the Committee in fulfilling its mandate,'' although the executive director is appointed by the Governor-in-Council to hold office.
In an ideal world, the secretariat would clearly work for the committee. Whether it's located in PCO, as you know, when you're dealing with secret information there are a lot of protocols and, frankly, overhead that goes with it. There should be an expectation that the executive director and the chair will work very closely and that the secretariat will be there to assist members in what is a hugely challenging field.
Mr. Forcese: Once the table is translated, you will see the fact that we anticipated independent staffing of some sort in our bill is yards ahead of where the other Westminster-style committees of parliamentarians are. In fact, in the U.K. ISC context, first of all, they are very thinly staffed, and the staff are rotated out of the cabinet office. There, I would have a fairly acute concern about independence, although in conversation with them they say it doesn't come up in practice.
This is from conversations that Kent had, but we could learn from the U.K. that access to independent legal advice is very important. That might be an area where the U.K. ISC has struggled. Referring back to Kent's comment on bringing in persons from outside, we have a whole cast of special advocates now who are security sworn, security cleared, and have seen the inside from the perspective of not being in government. Being able to tap that expertise for the purposes of supplementing that available within the secretariat itself would be very important for this committee.
Senator Lankin: There isn't anything in the legislation that would prohibit that. It's simply something to be knowledgeable about and to ensure it's a resource that we use.
You have no large concern that the structure, as it is now, will prevent the executive director from working in a supportive way with the committee. There isn't anything that needs to be done there right now.
Mr. Roach: No, it has always been my assumption that the secretariat will work for the committee. The secretariat was one of the first things when the bill came out that I looked for and was greatly heartened to see.
Senator McIntyre: You are both strong advocates of a comprehensive review of national security matters. With regard to Bill C-22 you have noted some of its limitations, including the information exclusions under clauses 14 and 16. On top of that, you have been advocating the importance of an expert review system. We don't have that under Bill C-22.
My question is this: To what extent are these concerns to you?
Mr. Roach: It's clear in our joint writings, and probably in our individual writings, we're both in favour of a super- SIRC. That wasn't originally. When I served on the research advisory committee for the Arar commission in 2006, I firmly believed that having the three with statutory gateways was sufficient, but I have now come to the view, in part because of the information-sharing provisions in Bill C-51, that the ultimate destination should be a super-SIRC.
I want to emphasize, Senator McIntyre, is that having a whole-of-government perspective in this new committee is important, but that would not duplicate having a whole-of-government perspective at executive watchdog reviews. Indeed, one of our concerns was that there really is nowhere to look at the efficacy of our national security activities. It may be that some of the things the CSE commissioner and SIRC look at may touch on issues of efficacy, but their mandate is much more on legality and propriety.
One of the reasons why I said it was important that these two bodies work together and not be seen as duplicates is that I would suspect that a committee of parliamentarians will be but drawn, not always, to issues of efficacy, while expert executive watchdog reviews will probably be drawn to issues of propriety.
Given that each of these bodies will have to pick their spot and can basically only audit a very small slice of national security activity at any one time, I think that having a certain amount of overlap is actually in the public interest.
Senator McIntyre: We have an existing review system. Now, with Bill C-22, we have a proposed committee of parliamentarians.
My question is this: To what extent do you judge it as a risk that Bill C-22 will simply layer a parliamentary review committee, with all of its limitations, on top of the existing review system?
Mr. Roach: For the reasons I just articulated, I actually think they serve different purposes. There may be some issues of overlap. There is clause 9 to deal with issues of duplication. I expect that the secretariat will work very closely with the executive watchdogs, but I don't think there will be too much duplication.
I think they have different rationales, and even if they didn't have different rationales, I think there is enough stuff to cover that people shouldn't be bumping into each other.
Mr. Forcese: I have nothing to add; I agree with that. I think they will tend toward efficacy for the parliamentary review body and proprietary for the expert review bodies. That would be a very useful division of labour.
Senator Griffin: Time flies, but I gave a speech, probably a couple of weeks ago now in the chamber. You'll recognize this quote, professor.
. . . the absence of cross-party buy-in and an accrual of partisan acrimony reduces the prospect that the CoP will work, at all. The members of the C-22 CoP will need to consolidate around a shared mission, shared professional culture and shared mores of behaviour.
How do you view the role of the Senate when considering this particular Bill C-22? Did you view that there was too much partisan acrimony in passing this bill in the House of Commons?
Mr. Forcese: On the first issue, I will offer my view as a citizen. I think it was unfortunate that the process in the House of Commons became more acrimonious than we thought it might be. When we appeared in front of the standing committee of the House of Commons, we thought that the discussion was actually very good. Something happened thereafter, and we are not entirely sure what.
The first point that you made, which was a quote from a blog posting I made, was really a plea for parliamentarians to find a compromise position. This is not your typical administrative body where Parliament passes it and off it goes and does its thing. This is an administrative body where Parliament and parliamentarians will have a lasting and permanent relationship. An absence of faith in this body across party lines is risky, it seems to me.
In proposing some of the things we have, we are trying to find that sweet spot between the government's concerns and what we have heard from some of the opposition parties, in the hope of serving a middle ground compromise that might be acceptable to government and also resolve some of the concerns by opposition members. They will have to speak for themselves as to whether they are satisfied with it.
Senator Kenny: You were talking about efficacy as being perhaps a positive thing for the committee to look at in various agencies. What sort of metrics would you visualize in terms of their evaluation?
Mr. Roach: One issue that I have spent a lot of time thinking about is the issue of the intelligence to evidence relationship. As a result of Bill C-44, which provided CSIS human source protection, CSIS threat reduction powers, I have certainly argued one of my worries has been that some of these may be a cure for the more enduring problems we have suffered in Canada in moving from secret intelligence to public evidence. Certainly in our book, False Security, we looked at per capita number of terrorism prosecutions and found that Canada lagged behind even Australia on a per capita basis. Maybe there is a different threat level in Australia, but I tend to doubt that.
The issue of intelligence to evidence would be one example of an efficacy concern. It has always been my own belief that, although intelligence obviously plays a role, if people are planning to blow things up you don't call CSIS. You call a police officer and you call a prosecutor. You hope you can establish beyond a reasonable doubt, in public and in the fairest way we know how, that someone is guilty. That would be an example of an efficacy sort of issue.
Maybe another example of efficacy would be —
Senator Kenny: Excuse me, sir, my question was: What metrics do you use to measure those issues?
Mr. Roach: Right. The metrics would be what either the people in the agency are telling you or the end result. The metric we used was the number of terrorism prosecutions in Canada since 9/11.
Mr. Forcese: Some of these things don't necessarily convert naturally into empirical analyses. The report from the ISC on the Fusilier Rigby murder was really efficacy review in the sense that it looked at how well the various agencies in the U.K. shook hands. It was in part about intelligence to evidence. It was in part about information sharing and in part about operational cultures and practice. How well did they work as a unit across government?
Again, I don't think you can assign a number to that, but here is a body that can step back and say, "Here is a host of issues that we have. We're the only entity that has eyes on the forest as opposed to the individual trees.'' The only place we ever had that in Canada is with judicial commissions of inquiry. Efficacy review is what the Arar commission was about. It was also what Air India was about. Again, it is not converting to numbers necessarily, but looking at a system-wide priority.
Senator Kenny: Related to that, what about cabinet confidences? They are talked about in hushed tones, yet I estimate that over a thousand people in this city have access to cabinet confidences on a daily basis.
What makes them different from a committee like this that is sworn and has all the protections built into the legislation?
Mr. Forcese: The issue of cabinet confidences and their stature and the extent to which so much is a cabinet confidence under the Access to Information Act is a big conversation. In relation to this current bill, clause 14 and clause 16, if we could get to simple cabinet confidences our original position was that that would be ideal. Whether we should go further than that, we could have that conversation. We're not even close, though, to having that conversation because there are so many other matters that are more immediate to the core functions of the Bill C-22 committee that will not be disclosable, hence our effort to minimize the scope of clause 14 and include some of this language I proposed in law enforcement investigations and then guard how clause 16 is used.
It's not a great answer. We're so far away from having a conversation about cabinet confidences as the only limitation that we have really not turned our minds to whether we should abolish that stricture.
Senator Kenny: If you don't have access to cabinet confidences, how can you be sure you have a good understanding of what the government really wants done?
Mr. Roach: In a democracy, you have the whole process where the government articulates what its policy objectives are publicly in speeches, in backgrounders and so on.
Senator Kenny: Is that in terms of national security and defence?
Mr. Roach: Certainly, claims were made about Bill C-51, about what it was offering. We called our book False Security because we didn't think it measured up, given what the Air India commission and what the Arar commission had said.
I'm hopeful that this committee can contribute to a more informed, more adult conversation about national security. In an ideal world, it might be that you have access to cabinet confidences. I don't think that is, frankly, a realistic possibility, but I don't think that prevents us from having an informed debate dealing with efficacy issues. Even when this committee goes into closed proceedings, obviously the members will have to be very careful about what they say when they come out of it. If it's done right, it may increase transparency about the evolving threats that we as a nation and our allies face.
Senator McPhedran: Thank you for being here again. It's great to see both of you.
I know you were in the room with us when I asked a more detailed question of Mr. Lee, so I won't repeat the wording. I would very much appreciate a general response, if you feel that there is particular attention or a possible amendment to my proposed amendment to include specific reference to consistency with the Canadian Charter of Rights and Freedoms in the mandate of the committee as part of the review.
Mr. Roach: My own reading, Senator McPhedran, is it's probably implicit but it wouldn't do much harm if it were articulated.
To be perfectly candid, this committee certainly should not be blind to the Charter. Just because a law is consistent with the Charter, just because we can do something in the name of national security, doesn't necessarily mean that we should do something in the name of national security.
Indeed, I unfortunately offended some people in the Department of Justice by making that argument right after 9/11, but it was because I felt, as someone who had spent a lot of time working with the Charter, that I could not in good conscience say a particular policy on, I think it was, investigative hearings were inconsistent with the Charter. I actually thought the Department of Justice had built in enough Charter restraints. I also felt very strongly that investigative hearings were an undesirable incursion on our adversarial system of justice and that they probably were not likely to work.
I was going to say in short, but I've already been quite long. I guess the long answer is that I see no harm in asking the committee to look at the Charter. I would, though, hope the committee looks at the bigger picture.
I would also say that my proposed amendment to subclause 31.1, which says the issue is not simply legality but whether powers have been exercised in an unnecessary or unreasonable way, is designed in part to capture what I see as the spirit of the Charter as opposed to necessarily — we're both lawyers — as the black letter of the Charter.
I would hope that this committee would inform the responsible minister and, if possible, inform the public if they thought that a security agency was doing things in a heavy-handed way, even if they did not feel confident in saying that it was a clear violation of section 8 of the Charter or this is a clear violation of section 15 of the Charter. As we both know, those are complicated issues and often boil down to predictions about what the Supreme Court will actually say.
I think the proposed amendment is a minor amendment and hopefully would not slow this bill down. To say we want reporting out when agencies use their powers not only illegally, which would include in my view the Charter, but in ways that are unreasonable or unnecessary, I see that as where the spirit of the Charter would perhaps live more than simply the black letter law of the Charter.
Mr. Forcese: I would agree with Mr. Roach. Some of these issues might be accommodated by direction from this committee as to what the priorities of the Bill C-22 committee should be. We've been debating the architecture of the law, but not much thought has been given to what this committee should be doing for the first 100 days and what its first tasks should be.
One possibility, among your prerogatives under subclause 8(1)(a), would be to contemplate constitutional issues. That sends a signal as to what sort of internal staffing you'll have to undertake because you're going to need people apprised of constitutional law. If you forward think sufficiently, you make sure you hire those people so that you actually perform that function.
Whatever recommendations you might include in your report as to what the first half-year or so of this committee would look like will be useful. I would add, on the issue of setting up this committee, that in conversations with those who are current reviewers, they tell me it takes about a year to train a reviewer to perform a function. We're talking about a long runway before this committee is up and running and is effective.
To the extent we can facilitate and provide direction on how it might do so expeditiously, I think that would be very useful, especially because with a new election there will be a turnover just as institutional knowledge is being gained.
Senator McPhedran: If I may, for further clarity, at this point the wording I'm looking at is consistency with the Charter. Do you think that sufficiently embraces the spirit and values to which you were referring, Professor Roach?
Mr. Roach: Again, off the top, something like consistency or with constitutional values to get that broader.
When we look at efficacy there's the whole range of federal, provincial and municipal relations that we tend to neglect. The Charter sucks up a lot of our constitutional oxygen. Believe you me, I'm a supporter of the Charter, but I know, say with CVE, that's an issue people at this committee have thought about. What is the role of municipalities? What is the role of the provinces, which have such an important jurisdiction over issues of education and mental health?
Hopefully this committee will be aware of a whole range of constitutional values that we in Canada think are important, which obviously include the Charter, equality, multiculturalism, and our division of powers.
One of my own personal concerns about CVE is that if it's all done at the federal level, it may be very security dominated. It may be led by police and intelligence agencies that may not necessarily be in the best position. The provinces and the territories actually have a lot of the expertise in this area.
Senator Boniface: I want to thank you both for coming. It has been extremely helpful.
It would be no surprised to you that I want to zero in on the clause around ongoing investigations and the amendment that you've suggested in terms of that.
Am I interpreting correctly that one of the purposes of your amendment would be to actually allow the agencies to share the information where the current drafting restricts them from doing it?
Mr. Forcese: Correct. It creates a discretion where presently there is no discretion. It puts the discretion in the hands of the chief police constable, so the chief police constable is able to protect independence.
The concern the RCMP has, if one were to exclude any kind of language around law enforcement investigations, is that they would be obliged to share information about ongoing operations and all of a sudden the members of the committee might be witnesses at a subsequent criminal proceeding.
More than that, the idea of political actors having an inside look on police investigations is exactly why we have police independence in the first place to avoid that prospect.
Preserving some discretion so that the chief police constable can preserve us from that prospect but at the same time act in good faith, potentially policed by this memorandum that I've been talking about, and offer up information where there's no serious prospect of any of those problems arising, say with the 1985 Air India bombing, would be useful.
The Deputy Chair: I have a question for you, Mr. Forcese, on the triple lock. You spoke about the triple lock in your introductory remark. You said in the other place about the committee could stumble on the issue of triple lock. You said maybe there could be discretionary powers to mitigate.
Can you expand on that, please?
Mr. Forcese: Right. As Professor Roach indicated, clause 14 is the one that we have been most exercised about because it mandatorily precludes certain classes of information.
That list became shorter through the amendment process in the House of Common, and now the items on that list are quite reasonable. The one that remains of concern is the one we just spoke of, which is subclause 14(d) around law enforcement investigations.
Our proposal is to convert that into a discretionary exclusion rather than a mandatory exclusion, which as I suggested means there's some prospect of evolution in terms of the relationship between the committee and the security services.
We've also indicated that in a perfect world it would be nice if the committee had SIRC-like access to everything but cabinet confidences. We're obviously not going to get there, so hence the water in the wine that I mentioned earlier.
Senator Moncion: I have a question about bylaws. A part of clause 20 speaks of bylaws. How many of your concerns could be put into bylaws where subpoena powers or some of these things could be put into bylaws instead of legislation? Changes are easier to bring forward in bylaws than they are in bills.
Mr. Forcese: That's possible. There's a prospect that the Governor-in-Council will establish the mode of procedure for the Bill C-22 committee by regulation. The regulation provision can be found in clause 33:
The Governor in Council may make regulations
. . . respecting the procedures and practices for the secure handling, storage, . . . of . . . documents . . . respecting the procedure to be followed by the Committee in the exercise of any of its powers or the performance of any of its duties or functions;. . . and. . . generally for carrying out the purposes and provisions of this Act.
I guess it would be useful from the Department of Justice's perspective to know whether they would construe, especially this general clause at the back end, as enabling through regulation the creation of some of the powers you've been talking about: perhaps the protection of witness, to compel the presence of witness or to protect individuals who make comments in the course of a committee proceedings from subsequent prosecution.
I'm not sure you can do all of that by regulation because some of that would require the regulation superseding a statute, and you can't do that. Maybe some of it could be done. I haven't personally turned my mind to it.
Mr. Roach: I know there has been a lot of talk about subpoenas, and it's a bit of a chicken and egg question. Certainly having worked on commissions of inquiry with powers of subpoena, you never really have to use them. It may very well be that clause 20 provides some flexibility. I'd want to reread the bill with this in mind, but I don't recall off the top of my head anything inconsistent with something like a subpoena power being inserted in clause 20.
There are some things the bill rules out that you should be aware of. The one that I was a bit concerned about is subclause 31(2), which prohibits the committee from litigating if it's dissatisfied with the Prime Minister's redaction decisions. I'm a little worried that some of us may have provoked that by proposing in the other place that there be a third party decision maker here in cases of dispute.
Again, it goes back to the chicken and egg. Our vision was not that there be clause 38 litigation in front of the Federal Court on every report, but simply having it there sometimes can make some of these issues go away.
I hadn't thought about clause 20. It may very well have a flexibility, as well as, of course, the five-year review. The reality is that with the upcoming election and all that, by the time of the five-year review this committee, if it gets off the ground, may have two, three or four reports to be judged on. It's still going to be a baby.
Senator Lankin: I will forget my question on subpoena powers and look at clause 20 myself.
The subclause 14(d) proposed amendment does the discretionary power remain within clause 14 or does it move to clause 16?
Mr. Forcese: I'd be fine keeping it in clause 14 because the discretionary right is embedded in the subclause 14(d). Moving it to clause 16 puts it in a regime in which ministers are making the call.
From a police independence perspective, if you have an ongoing investigation, having the minister make the call as to whether information should be disclosed to parliamentarians would be discomforting.
Senator Lankin: Yes, thank you.
[Translation]
Senator Dagenais: Let me ask you the same question that I asked previous witnesses. Given that the chair of the committee is appointed by the Prime Minister, would you agree with the vice chair of the committee being appointed from the group of senators?
[English]
Mr. Forcese: I would be content with that. In your earlier question you asked how you would embed that in the statute. One possibility would be to use the regulatory power in clause 33 and create a mandate for a vice-chair.
The Deputy Chair: Thank you very much once again for all the support you always give to both houses. We certainly look forward to reading your blogs — some of us are followers — your tweets, and certainly your appearances here. Thank you very much.
Joining us on our fourth panel, from the Civilian Review and Complaints Commission for the RCMP, are Ian McPhail, Chair, and Richard Evans, Senior Director, Operations. We also have before us the Honourable Jean-Pierre Plouffe, Commissioner, Office of the Communications Security Establishment Commissioner; and J. William Galbraith, Executive Director, Office of the Communications Security Establishment Commissioner; Michael Doucet, Executive Director, Security Intelligence Review Committee; and Darryl Sitka, Research Director, Security Intelligence Review Committee.
We have many witnesses and many senators who have many questions, so I humbly ask senators to try to keep their questions short and witnesses to keep your answers as comprehensive and as full as possible but not too long.
Because we have many Canadians who watch these hearings as well, I would appreciate it if you do not use too many abbreviations because we may lose people. The committee is okay with that but we may have challenges with our viewers.
Mr. Plouffe, please go ahead.
Hon. Jean-Pierre Plouffe, Commissioner, Office of the Communications Security Establishment Commissioner: Good afternoon, chair and honourable senators. I am pleased to appear once again before this committee, this time on the subject of Bill C-22. I am accompanied by Bill Galbraith, Executive Director, to my right.
I appeared last fall before the Commons standing committee examining this bill. As you already know, there have been changes made to it. I will not repeat what I said previously but rather will speak to some of the changes, focus on a few new points and add what in my view bears repeating.
[Translation]
First, I must make it clear that I welcome this bill and the greater engagement of parliamentarians in national security accountability that it represents. I will also welcome the opportunity to engage more closely with parliamentarians through a complementary relationship, one that avoids unnecessary duplication, as clause 9 of the bill stipulates.
[English]
I believe the committee of parliamentarians having access to classified information and the ability to examine, with certain qualifications, I must say, any activity of an agency or department involved in national security will provide, in cooperation with existing review bodies, a solid foundation for a comprehensive framework of accountability for national security activities.
In my view, this committee will fill a void. Its mandate, as set out in the bill, most specifically in clause 8, will enable it to have a broad strategic view over all of government national security activities. It will be able to follow information through agencies and departments; in other words, follow the threat.
This should add significantly to creating the desired comprehensive accountability framework. It will, of course, be a work in progress as it finds its orientation. That is reflected in the five-year review clause that we find at clause 34.
[Translation]
Together, the committee and the existing review bodies must also strive for transparency to the extent possible, to allow Parliament and the public to be better informed about the conduct of national security activities, and how the agencies and departments are held to account.
This will be a subject of discussion as we develop our working relationship with the committee. Transparency plays a role in helping to build and strengthen public trust. The public wants to know whether the agencies mandated to protect Canada and Canadians are doing so effectively and within the limits of their respective mandates, respectful of our freedoms and privacy. I have made this the cornerstone of my approach as the Commissioner of the CSEC.
[English]
The working relationship between the committee and its secretariat, on the one hand, and the existing review bodies, on the other, will require sustained effort from the start. There are general parameters about this relationship in the bill, about avoiding unnecessary duplication in clause 9, and about the exchange of information in clauses 22 and 23.
[Translation]
Given this general guidance, it will be incumbent upon all of us to strive hard, particularly at the outset, to ensure that our roles are complementary and not duplicating each other's work, to make the most effective and efficient use of our respective resources. I am not suggesting, however, that the bill include detailed guidance. Better that experience and a common interest shape the relationship.
[English]
But we have been given some thought to how we might begin a productive relationship with this committee. I have three quick points, for example.
First, we will offer the committee an initial information briefing on our work and will be available to meet as soon and as often as they wish.
Second, we can offer to the staff of the secretariat a review workshop that we initiated six years ago for review bodies and staff new to the review function.
Third, we are prepared to share and discuss work plans and key issues which will help to avoid duplication and may identify common themes for the committee to examine more broadly across the agencies and departments involved in national security.
A defined part of the relationship between the committee and the review bodies is the exchange of information as set out in clauses 22 and 23 of the bill. Each of the two parties, the committee and the review bodies, may provide information related to the fulfilment of the other's mandate.
[Translation]
The development of these exchanges of information will facilitate defining our respective roles, strengthening complementarity, and helping to avoid duplication. I view these exchanges as facilitating and strengthening overall accountability.
[English]
There has been considerable discussion about what information the committee of parliamentarians will have access to. Specifically, we are referring to subclause 8(1)(b) and clauses 14 and 16 of the bill. From my perspective, I believe the limitation set out in subclause 8(1)(b) or the restrictions regarding ongoing operations would appear reasonable when we also look at subclause 8(2). A minister may refuse to provide information on an ongoing operation that he or she determines is injurious to national security but must inform and provide the committee with his or her reasons.
How often will this occur? Experience will tell us. However, my experience has been that often our concerns are seldom realized to the same extent as we thought initially. I would expect that this prerogative may be rarely used by appropriate ministers.
One of the changes made to the bill through the process in the House of Commons was the reduction of limitations or exceptions in terms of what information the committee of parliamentarians could have access to.
In clause 14 of the bill, there remain four exceptions from seven previously. In my view those four exceptions would again appear reasonable, taking into account the purpose and scheme of the bill and its entire context.
The same comments would apply to clause 16, which relates to refusing to provide "special operational information.'' That is very sensitive information that the government takes measures to safeguard. An example of this is found in subclause 14(c) of the bill. With regard to clause 16 we also have to take into account the second part where we talk about information that is "injurious to national security.''
The minister must provide reasons and if the information relates to CSE, CSIS or the RCMP, the minister must also provide the reasons to the relevant review body, that is, one of us appearing before you today.
[Translation]
There has also been debate about the composition of the committee of parliamentarians, with suggestions that the number of senators be increased. This would seem reasonable, given the longer tenure of senators. Indeed, senators have the opportunity to accumulate knowledge and to develop expertise over time, which strengthens the ability to ask more probing questions of the agencies and departments. This would also bring the benefits of continuity and what is called institutional memory. The secretariat will also play an important role in this regard.
In closing, I look forward to working with the committee of parliamentarians when it becomes a reality. Thank you for this opportunity to appear before you today. We look forward to answering your questions.
The Deputy Chair: Our thanks to you too. We now move to Mr. McPhail's presentation.
[English]
Ian McPhail, Chair, Civilian Review and Complaints Commission for the RCMP: Thank you for inviting me today to share my views on the proposed legislation to create a national security committee of parliamentarians. I welcome the opportunity to share my views on the proposed committee, expert review bodies and national security accountability in general.
As you contemplate enhancing oversight of national security activities, I think it is important to consider what already exists in terms of expert review bodies, and how existing bodies can complement the proposed committee of parliamentarians.
In terms of the Civilian Review and Complaints Commission, the mandate was expanded in 2014 beyond public complaints to include systemic reviews of RCMP activities. The purpose of such systemic reviews is to ensure RCMP activities are carried out in accordance with legislation, regulations, ministerial direction, or any policy, procedure or guidelines. Such reviews can be initiated by myself or at the request of the Minister of Public Safety.
We recently completed a review into workplace harassment in the RCMP, which was requested by Minister Goodale. There is an ongoing review, which I initiated, into the RCMP's implementation of Justice O'Connor's recommendations in the Maher Arar affair.
As you will recall, the RCMP's national security activities came under intense scrutiny during the O'Connor Commission of Inquiry. As such, I felt it was important to undertake an independent review of the RCMP's implementation of Justice O'Connor's recommendations.
The ultimate goal of this review is to enhance the accountability and transparency of RCMP national security activities. More broadly speaking, I believe that is the same goal of Bill C-22. This bill highlights the critical role of parliamentarians in the national security accountability framework, while acknowledging the contribution of expert review bodies. Expert review bodies, staffed by skilled professionals, contribute independent insight into the activities of the agencies they oversee. The establishment of a committee of parliamentarians will create a comprehensive accountability framework for Canada's security and intelligence community.
In that regard, I look forward to a collaborative and productive working relationship with the committee. Equally as important, the expert review bodies should have a clear mandate to cooperate, as needed, as recommended by Justice O'Connor in 2006.
Thank you for giving me this opportunity to share my thoughts.
The Deputy Chair: Thank you very much for your presentation. We will now go to Mr. Doucet. The floor is yours.
Michael Doucet, Executive Director, Security Intelligence Review Committee: Good afternoon, Madam Chair and committee members. I would like to thank you for inviting SIRC to appear before you today to discuss Bill C-22, An Act to establish the National Security and Intelligence Committee of Parliamentarians. Our chair, the Honourable Pierre Blais, sends his regards. With me is Darryl Sitka, SIRC's director of research.
[Translation]
SIRC has been following the development of Bill C-22 with interest. This afternoon, I hope to advance your study of this bill by explaining how SIRC could work with the proposed committee of parliamentarians and its secretariat.
SIRC is an independent external review body, at arm's length from government, that reports to Parliament on the operational activities of CSIS.
[English]
Currently, SIRC is composed of five committee members. As the executive director, I support the chair and members, for example, in their decisions about what CSIS activities to select and prioritize for review. SIRC performs three functions.
The first is to certify the CSIS director's annual report to the Minister of Public Safety. SIRC determines whether any CSIS operational activities described in the report were inconsistent with their authorities under the CSIS Act, contravened ministerial direction, or involved any unreasonable exercise of powers.
The second is to conduct in-depth reviews of CSIS operations. SIRC recommendations that arise from these reviews promote effective measures to encourage compliance and safeguard the rights of Canadians.
The third is to investigate complaints about any CSIS actions, including denials and revocations of security clearances.
I would be pleased to answer any questions about SIRC's work following my remarks, but I would first ask the committee to contemplate the crucial role expert review bodies play in providing effective accountability for national security and intelligence agencies. I will briefly outline three distinct benefits of expert review, namely, independence, expertise and continuity. They are important when considering ways SIRC can contribute to the work of the proposed committee of parliamentarians.
Independence is at the heart of SIRC's accountability. It is at arm's length from not only government but also from CSIS and from the minister. SIRC alone decides what it investigates and reports on. Its classified reports to the Minister of Public Safety are the product of SIRC's review efforts and provided directly to the minister.
[Translation]
SIRC's public annual report gives parliamentarians and Canadians an overview of these reviews. The committee strives to be as open and transparent as possible, but the report must be edited to remove any classified information, according to the Security of Information Act. However, no minister or other person outside of our committee has input in the report that is tabled in Parliament.
[English]
A second benefit of independent review is the value provided in having expert full-time researchers and legal staff. Under the CSIS Act, SIRC reviewers have access to all information under the control of CSIS, with the exception of cabinet confidences. We investigate operations across Canada and internationally, but access without knowledge and expertise cannot result in meaningful conclusions or constructive recommendations.
The unheralded benefit of independent review is that it provides continuous in-depth examination. For SIRC, this means ongoing and contextual review of core operations of CSIS, including its targeting, human source and threat reduction activities.
SIRC members are GIC appointees and not elected officials, so our work continues regardless of whether Parliament is dissolved. SIRC reviews, taken as a whole and over time, yield a comprehensive assessment of how CSIS has performed.
Let me use a recent example to highlight the value of expert review. Last fall, after the publication of SIRC's annual report, the Federal Court found that the retention by CSIS of non-threat related metadata to be illegal. The minister subsequently asked SIRC if it would produce a special report on the CSIS response. Note that this was a request from the minister. The minister cannot compel SIRC to action,because SIRC is independent. SIRC agreed that this was an important avenue of inquiry and is currently reviewing CSIS activities in the context of the decision.
One of the activities under review is how CSIS uses cell-site simulators, sometimes referred as IMSI-catchers, which are the subject of ongoing public interests. SIRC's review is focused on whether the collection and retention by CSIS of metadata is strictly necessary, as prescribed by section 12 of the CSIS Act. The review is also forward looking, as it scrutinizes the policies and procedures CSIS will put in place to comply with the court decision and the Canadian Charter of Rights and Freedoms.
This example highlights the importance of review. It was review that prompted the Federal Court to action. The review is looking at an issue of public concern. Because of SIRC's expertise, the review can assess the legality and the rigour of the response of CSIS.
Accountability will benefit from having both parliamentary oversight and expert review. The proposed committee will examine the legislative, regulatory, policy, administrative and financial framework for national security and intelligence. It will be well placed to examine, at a high level, the overall national security and intelligence framework, but high-level review needs to be informed by detailed, in-depth operational reviews carried out by SIRC and other independent review bodies.
[Translation]
SIRC looks forward to establishing a cooperative and productive working relationship with the proposed committee and its secretariat. For example, SIRC would plan to share its annual research plan, appear before the committee to discuss its work, findings and recommendations, and contribute to discussions on topics in which it has expertise. These efforts would be helping to work towards complementarity and to avoid duplication.
[English]
Should the Minister of Public Safety decide it is injurious to national security for the committee of parliamentarians to review a specific activity or to examine specific information related to CSIS, SIRC could offer its resources. SIRC would have access to the review's information, could conduct a review on the activity under its own mandate, and report on the results of the review. The committee would have the assurance of SIRC's independence, rigour and ability to articulate the findings in the broader CSIS context, allowing the committee to position the subject of the review in the broader national security framework.
Without a doubt, greater parliamentary oversight represents an important step forward for accountability. Yet, in SIRC's view, an important gap remains in our accountability ecosystem: the ability to carry out community-wide expert review.
During his recent appearance before your Senate committee, the Minister of Public Safety referred to additional proposals that he anticipates will move forward in the coming weeks.
SIRC is hopeful that the government will act to address the siloing of review by creating an expert community review body with authority to examine all national security and intelligence activities. This is particularly important because many institutions engaged in these activities are not currently subject to independent external review.
Alternatively, the government could make explicit an ability for SIRC to carry out joint reviews with the existing review bodies and to follow the thread of information CSIS shares with its government partners.
While this issue falls outside the scope of Bill C-22, I am raising it here today because it is critical to any discussions on strengthening national security and intelligence accountability.
[Translation]
Let me conclude my remarks by thanking you for your commitment to your work on this matter. The government has made a firm commitment to strengthen accountability in the area of national security, and SIRC confidently plans to offer its assistance in working towards and achieving that goal.
I would now be pleased to answer your questions. Thank you very much.
The Deputy Chair: Thank you for your presentation. I have a question.
[English]
I have a question on something that has come up a number of times regarding this committee's function and whether, under Bill C-22, it should be an oversight committee or a review committee. The way it has been explained is that oversight is operations and review is afterward. That's how I understand it.
I would appreciate if all three of you would give us your input as oversight bodies or review bodies. These words have been used interchangeably by you. What are your thoughts on that?
I'll start with you, Mr. Doucet.
Mr. Doucet: You're absolutely correct. While oversight and review are two very different functions, I sometimes use them interchangeably.
I will begin with review because SIRC is a review agency. What we mean by that is we look at activities carried out in the past. We review activities after they have been carried out, and we don't pull the levers on oversight.
In contrast to review, oversight will sometimes make decisions on operations to be carried out. Oversight may look at activities and operations before they happen and may become part that have conversation before it happens.
I would expect that the committee of parliamentarians will have not only a review, but an oversight function, where they are briefed by the agencies prior not only to operations taking place, but prior to deciding on areas to go in the national security environment.
Mr. Plouffe: I'll ask Mr. Galbraith to reply.
J. William Galbraith, Executive Director, Office of the Communications Security Establishment Commissioner: To pick up on what my colleague Mr. Doucet was saying, in the committee's mandate for review,the words "oversight'' and "review'' are indeed used indeed interchangeably. It would be largely for the committee to determine how deeply it goes into oversight as a more real-time activity over the activities of the various intelligence and security agencies.
The depth of review that we conduct often has an impact on ongoing operations or future operations, just by virtue of the recommendations that are made and that are then implemented by, in our case, CSE.
Privacy protections and reducing the risk of non-compliance can in fact be preventative. The review bodies aren't looking at having actual control over activities but, certainly, going forward from when recommendations are issued and implemented by the agencies, which we follow up on to ensure they are implemented. The committee itself will determine how far they want to go in terms of real-time access.
Richard Evans, Senior Director, Operations, Civilian Review and Complaints Commission for the RCMP: With respect to our commission, we are predominantly post facto review. For much of the same reason, the potential of contemporaneous oversight runs the risk of interference in ongoing police operations. That said, there is nothing in the legislation that prevents us from doing a contemporaneous review.
There is a provision in our legislation that allows either the commission itself or the RCMP to suspend if it might interfere with an ongoing investigation. The provisions are in there to protect operations, but our focus is predominantly post facto review.
[Translation]
Senator Dagenais: My thanks to our guests. My first question goes to Mr. Plouffe.
Mr. Plouffe, in your experience, when it comes to investigating and following up on complaints, do you sincerely believe that a committee of 11 people would be able to effectively fulfil its mission of overseeing all the agencies? The committee would be mostly composed of members of Parliament, who would have other things to worry about, who will be involved in election campaigns every four years, and who might not be back after the elections.
Mr. Plouffe: Thank you for your question, Senator Dagenais. I think that in that regard the secretariat has a primordial role to play. SIRC is made up of five people, as well as some specialized public servants who advise the members of the committee.
It is the same thing for me. I am the commissioner; I am a retired judge. I am not the one who has the expertise on the CSE. The specialists who are a part of my office have it. As so the secretariat plays a key role through the experts it hires. It has to appoint the right person as director general, and the other specialists. They are the ones who will advise the committee on the investigations to conduct, and on how to do them. You have to remember that oversight agencies, expert agencies, have the duty to assist the committee. We are very pleased to speak to you about how we conduct our inquiries, our triennial plan, and so forth. We have to put the emphasis right from the beginning on collaboration between the committee of parliamentarians, the oversight agencies and the secretariat; this is essential.
Senator Dagenais: Does that not come down to saying that the Office of the Prime Minister, which will have the upper hand in choosing personnel, will have responsibility for overseeing the agencies?
Mr. Plouffe: Yes. That question was also put to me by the House of Commons committee. As we all know, the committee of parliamentarians as described in the bill is a creature of the executive. It is not a committee of Parliament. And therein lies the difference. If it were a committee of Parliament, there would be all kinds of ways of convening witnesses and so on. In this case, it is a committee of parliamentarians, and given that it is a creature of the executive, that is the reason the Prime Minister and ministers have a role to play.
I don't want to play politics, and that is not my role. I have not been involved in politics for 45 years. I am trying to bring out the fact that this work is ongoing. You are going to tell me to look at what is happening in England and the United Kingdom. That is quite true. Each country must develop its own way of doing things, based on its experience and knowledge. I get the impression that the government wants to proceed cautiously. We can agree or disagree, but before learning to run, you have to learn to walk.
Senator Dagenais: My next question is for Mr. Doucet. Why would the legislator not provide protection to whistleblowers in the public service, whereas that is the case elsewhere?
[English]
Darryl Sitka, Research Director, Security Intelligence Review Committee: In the case of any CSIS information, one of the roles of SIRC would be to hear any complaints in relation to that information.
I don't think we can speculate as to why the government wouldn't want to put in place a particular broader whistle- blowing protection in the context of this bill, but for CSIS information that is covered like it is for CSE information, RCMP information, and the complaints functions that exist at our colleague review bodies.
[Translation]
Senator Dagenais: Regarding the committee whose work we are studying, would it not be important that the whistleblowers benefit from protection, as does the RCMP, SIRC and so on?
[English]
Mr. Sitka: I'm saying it's not for us to speculate, senator, as to why the government didn't put in place a similar provision in the current bill before you.
In the case of information relating to the three agencies that our bodies review, certainly those protections exist. There are other broader, government-wide protections, as you know. Officers of Parliament and the Public Sector Integrity Commissioner, for example, have certain powers, authorities and abilities to hear information from those who would want to blow the whistle on potential wrongdoing within the government.
In terms of how we would plan to work with the proposed committee, as all of us have said here today, that is a role where we can help in terms of feeding into the discussions of the committee of parliamentarians our expertise and the information that we see, both from our reviews of operational activities and from the information we obtain in the context of complaint investigations.
Senator Lankin: I have a number of questions. I want to pick up, first, on the issue of coordination between the review bodies and the new proposed committee.
A number of people have made reference to wanting to ensure that there is no duplication of work. It has been suggested both by the minister when he was here and by witnesses earlier today that memoranda of understanding between organizations might be appropriate in delineating some of the information-sharing processes and guidelines. It has been suggested by the minister that this would be a normal practice. It has been suggested by others that we actually write that into the legislation.
How would you respond to that? I'm thinking particularly of the experience of SIRC and duplication with the inspector general at that point in time. I don't recall whether there was a memorandum of understanding, but I know that the sharing of annual plans, et cetera, wasn't enough to avoid duplication.
We understand that might have been a particular situation, but I wonder if you could comment on that as my first question.
Mr. Doucet: When we're dealing with organizations and people, I firmly believe that we have to determine if we are looking for similar outcomes. In working with the committee of parliamentarians, our outcome is one of transparency and accountability. It would be responsible for us to share, not only research plans proactively, but also the benefit of years of review, going back five years or ten years or however long we want to go back, as well as the methodology we choose for recommending reviews to our committee and so on and so forth
I have also heard the establishment of memoranda of understanding. As Commissioner Plouffe said, we need walk before we run. It can sometimes take months, quarters or years to develop MOUs. In my opinion, we can't sit back waiting for that to happen.
I'll use the analogy of when we do international visits, where we visit not only CSIS but their Canadian partners abroad. In my experience, the best results for Canadians when we go abroad and we talk to folks are when we have team Canada that wants to work together to a common outcome. That would be my philosophy in moving forward with the committee of parliamentarians.
I wouldn't say that I would be negative to MOUs, but I wouldn't want to hitch our relationship on MOUs. It could take a very long time to get there. From SIRC's perspective, on day one we're ready to talk, to collaborate and to discuss.
Senator Lankin: Is there anyone else who wants to comment on that?
Mr. Plouffe: I want to add I agree with the suggestion that, in due course, a MOU would be very useful but, like Mr. Doucet said, it might take a bit of time before we reach that stage.
As we all know, a memorandum of understanding is not a legally binding document, but, on the other hand, it's like a gentleman's agreement. It's nice that when you have established your relationship with somebody, you put down on paper what are your agreements. In due course, I think that should take place.
Senator Lankin: Both of you are suggesting that we should get up and running, experience the relationship, make it work, and then evolve that into an agreement at some point,
Mr. Plouffe: Exactly.
Senator Lankin: I have a question for the Civilian Review and Complaints Commission as well. Subclause 14(d) of this legislation has a prohibition on information being shared with the committee of parliamentarians, if it is involving an ongoing investigation where there might be a possible prospect of charges.
I was interested in the comment Mr. Evans made with respect to your own review, that there are times when you may not look at something contemporaneously or that there may be a request or a direction which comes back that says, "Not now, not yet.'' I'm not sure if you want to describe that for me. It has been suggested to us that we might add some words to subclause 14(d) which sounds a bit like your mandate, that would leave the discretion for the director of the RCMP to make that policing decision.
The cases that are given as examples are Air India and others that go on for so long and that still might have charges down the road. There might be some part of that policing feels it is appropriate to be able to share. Could you comment on that?
Mr. McPhail: Yes, senator, you've raised some very good points. In the RCMP Act there's a prohibition against our becoming involved with an ongoing investigation. What's the word, Richard?
Mr. Evans: Compromise or seriously hinder.
Mr. McPhail: Seriously hinder the investigation. The RCMP commissioner is also required to advise in writing that would be the case and why.
As a matter of statutory interpretation, if there's uncertainty, this is one area where your debates come into play. If parliamentarians, for example, agree on the record that this is how the legislation should be interpreted, courts do pay attention to that. You might wish to clarify it.
If you were to look at that section as it now stands, one interpretation is: What does the RCMP do that wouldn't be covered by that section?
Mr. Evans: If I could just add one point because I think it's important. When we have access to information that might involve something that's ongoing, that doesn't mean it's released to the public. There's also an ability that we have to look inside a file. We're doing this right now with our national security review.
We will get access to information. We will be looking at files that are ongoing, but it won't go any further. This was raised earlier. We can do an assessment of that information without revealing the information.
Mr. McPhail: If I can add to that, our national security review is ongoing at the present time. We've had full cooperation with the RCMP in terms of access to information. That has not been a problem.
Senator McIntyre: Mr. Plouffe, I had a question for you with respect to the information the committee of parliamentarians will have access to. However, you've covered that ground in your memo, so I'll move on.
Mr. Plouffe: Thank you.
Senator McIntyre: The National Defence Act outlines the powers of the CSE commissioner. It states that the commissioner has the full powers of a commissioner under Part II of the Inquiries Act, including the power of subpoena, to compel individuals to answer questions.
I'm asking you these questions because under Bill C-22 the committee of parliamentarians will not be granted the authority or the power to issue subpoenas. Are there restrictions on your ability to access information? Can you discuss how the power of subpoena is used and how it might assist you in your reviews?
Mr. Plouffe: I have the power under Part II of the Inquiries Act to subpoena people and so on and so forth. This has never been used since the inception of the office, which goes back to 1996. I must say that maybe it's nice to have, though.
[Translation]
That would be like a sword of Damocles hanging over your head.
[English]
At the present time, OCSEC, our office, has full access to everything with regard to CSE: the staff, computers, people, or whatever. With regard to your committee, I was asked that question in the Commons and I said at the time that it might be useful for the committee of parliamentarians to have such a clause with regard to subpoenas. It is something to consider. Without that power, what will the committee have? I would call that political persuasion or public shaming to fall back on, but this is not legal.
I'll repeat what I said before. It might be useful for the committee, bearing in mind that this committee is not a committee of Parliament. It's a committee of parliamentarians. Let's say you review a department or an agency and they refuse to provide you with the documents that you requested, or for some reason the witnesses refuse to appear. What do you do? You have the political persuasion or public shaming but you cannot, legally speaking, force them to appear before you. It might be a problem.
Senator McIntyre: If I may, chair, the mandate and operation of the Security Intelligence Review Committee is supported by the executive director, as well as research and legal staff.
That said, who appoints the executive director and staff, and to whom are you responsible, Mr. Doucet? Can you describe your reporting relationship with SIRC members, on the one hand, and central agencies of government on the other?
Mr. Doucet: I will start with my role as executive director. A Treasury Board submission has to go through the system to appoint me as executive director of SIRC. Typically, there may be some sort of head hunting. When I was appointed as executive director, the Honourable Chuck Strahl was chair. We met. He interviewed me, and subsequently there was a Treasury Board submission recommending that I be hired.
With respect to the SIRC staff, we typically hire staff based on my recommendation. I have accountability for human resources and finances. On that accountability, I report directly to our chair, the Honourable Pierre Blais. He and I sit down. We go through our finances and so on and so forth in very much the same way as a typical deputy/ minister relationship. That basically summarizes how human resources are handled at SIRC.
Senator Kenny: Mr. Doucet, I may not have heard you correctly, but did you say you served at pleasure?
Mr. Doucet: Yes, in the sense that I'm a public service executive hired by SIRC.
Senator Kenny: Is it at SIRC's pleasure? Does it take a majority vote? Is it just the chair, or is it with pleasure?
Mr. Doucet: In my case, I was interviewed by the chair who then submits a Treasury Board submission for my hiring, but it's not for a defined period of time.
Senator Griffin: My understanding is that the Civilian Review and Complaints Commission for the RCMP does not have direct access to the RCMP's policy document stored on their Intranet in real time and that you have to request physical copies instead. I'm sure this hinders reviews and causes delays.
My understanding also is that contractors and even jail guards have access to the RCMP Intranet. However, you don't, even though individuals on the commission have top-secret security clearance. I find this kind of interesting.
Would you recommend that the parliamentary oversight committee adopt a similar approach to your organization for accessing documents, or would you recommend electronic access using a secure facility?
Mr. McPhail: We are working on an MOU to deal with some of these issues, although, as my colleagues have already stated, the preparation and drafting of an MOU can take some considerable time.
I'll ask Mr. Evans to talk about some of the specifics in terms of our access to documents.
Mr. Evans: We haven't had tremendous difficulty in accessing documents. If I use the national security review as an example, we are getting access to RCMP documents. The timeliness is always an issue.
Timeliness is significantly hampered because we don't have access to policy documents in an electronic format. We have to wait for the RCMP to provide them on a case-by-case basis. They'll provide us electronically with documents that more often than not don't work because of hyperlinks. There are always technical issues around it.
The short answer is while we're getting documents in cooperation, the lack of access to electronic policies significantly hinders our timeliness.
Senator Griffin: That's what I figured. Thank you.
Mr. Doucet: From a SIRC perspective, as I mentioned in my opening remarks, we have what I would refer to as unfettered access not only to CSIS facilities and CSIS employees, but as well we have electronic access to their information systems.
If you look back historically we asked for documents, which we still can do today when we are looking for documents that may not be online or that we don't have access to. Our researchers and our lawyers will go into CSIS facilities and do their own document searches. I consider that we have exceptional access. Very seldom have I had to intervene on the access to facilities or to documents.
During my tenure at SIRC, I have not had to have our chair intervene on access issues. That would be the next step if we had access issues. There's a realization that fulsome review is not only good for the review agency but it's also good for the agency that's being reviewed. We have a very cooperative agreement today for that access.
Senator McPhedran: I have two quick questions. One is whether in your mandates and in your implementation of mandate any specific attention is given to the Canadian Charter of Rights and Freedoms, including whether anyone is specifically assigned to that.
Second, do you have any women managers in your agencies?
Mr. Plouffe: With regard to the first question about the Charter of Rights and Freedoms, the role that I play with regard to the CSE is to ensure they abide by the law and protect the privacy of Canadians. By the same token, if we have to ensure they abide by the law, they also have to abide by the Charter of Rights and Freedoms. This is implicit, if you wish.
I'll ask Mr. Galbraith to talk about women in management.
Mr. Galbraith: We are a full-time staff of 11. We have two managers. I am executive director. We have a position of director of operations, which is vacant, that we will be recruiting for. We have in-house counsel who is a woman. She provides the commissioner legal advice from inside. The commissioner also has independent legal counsel who is external and independent to provide the commissioner advice.
Neither one of those are related to the Department of Justice. That's part of the basic element of the commissioner's independence.
Mr. McPhail: Senator, to answer your question, the CRCC has eight managers, of whom three are women. As a matter of fact, one is here today, Joanne Gibb, our director of systemic reviews. Our director of reviews is female. Reviews are the public complaints that we have. Those are the two key managers. Our counsel is female, and the commission as a whole is over three-quarters female.
Mr. Doucet: Absolutely, not only do we look at Charter issues, but among our five lawyers and our research staff we have folks who are very well versed not only in privacy issues but in Charter issues and so on. I believe we have that very well covered. If we need to, we will go to external counsel or external expertise, if you will, in those areas; but we have them very well covered.
I currently have four direct report managers on my team, of which Darryl is one. Darryl is the lone male on my management team. Prior to his arrival, the whole management team was female.
Senator McPhedran: Thank you.
[Translation]
Senator Moncion: My question concerns the order to attend. In what circumstances, in the context of the work of the committee, could a mandate such as the one described in the law be necessary? In my opinion, this was excluded from the legislation because it was not necessarily understood that the committee would need to require people to appear before the committee in the course of its work. I'd like to hear your opinion on that.
Mr. Plouffe: Thank you for the question. It is true that up to a certain point, the role of the committee of parliamentarians will be different from ours. Our review body focuses on much more specific questions than the committee of parliamentarians will.
Nevertheless, the mandate of the committee of parliamentarians is very broad. That does not exclude the possibility that the committee might for reasons of its own decide to undertake an inquiry on or examination of an issue in a department or agency. The committee has the power to do that. The question people put to me is always the same: if the witnesses refuse to appear before the committee of parliamentarians, what will we do? If they refuse to produce documents, what will we do? I won't repeat myself. That is why when I appeared before the House of Commons committee I said that that was something to examine because the work on this also is ongoing. That is why there is a provision for a review in five years. Several things will undoubtedly have to be changed, and that is probably one of them.
Senator Moncion: That is an important gap right from the outset.
Mr. Plouffe: I think so. That is why I said so. As a lawyer and retired judge, I am a bit surprised to see that such a committee, the committee of parliamentarians, does not have the power to subpoena. That surprises me. I have that power, and the Privacy Commissioner and SIRC have something similar. We may not have to use it, but the people who appear before us know that we have this power, and they tend to cooperate more readily.
Senator Moncion: Thank you.
[English]
The Deputy Chair: Senator Boisvenu, Senator Kenny has a supplementary.
Mr. Evans: In the case of our commission we do have the power to issue summonses. Why it's a summons and not a subpoena, I'm not sure, but we have issued them.
We have adopted the practice of issuing summons to RCMP members to appear before our investigations. We haven't conducted public hearings, but we have the power now both in the case of investigations and hearings. We have used it. Unfortunately, they've been complied with, so we haven't had to deal with what happens if members don't show up or don't bring the documents. Again, it is another work in progress.
Senator Kenny: Just for clarification, I'm trying to put it into a Senate context. In 30-plus years, I've been on committees that have twice talked about subpoenas. The usual practice in the Senate is to give two warnings and then suggest that they consult counsel, and they always come or they both came.
What you're saying is that you will not have to use the subpoena too often, if you have the subpoena, but if you don't have it, you might regret it.
Mr. Plouffe: Exactly. You're correct, senator.
[Translation]
Senator Boisvenu: First I want to apologize to my colleagues for my tardiness. I had some urgent obligations.
I'm trying to put myself in the shoes of a citizen watching us today, who is wondering who is overseeing what. This seems to be a new creature that is arriving, that will be on your territory shortly, but without really being here. What seems to be the heart of the problem in my opinion is the political independence of the organization. You can tell me whether I am right or wrong. I can conclude that your organization has a certain political independence, correct?
Mr. Plouffe: We are independent, yes.
Senator Boisvenu: Now we are creating another organization that has almost the same name, but that will be dependent politically. The whole process of choosing members and staff is in the hands of one single person. Do we see that type of concentration in other countries aside from African countries?
[English]
The Deputy Chair: Why do you refer to African countries? Why do you want to do that?
Senator Boisvenu: No, there are some countries there.
[Translation]
The Deputy Chair: Why? That isn't necessary.
Senator Boisvenu: I apologize for the reference to Africa, madam.
Mr. Plouffe: Yes, it is a political choice at this point. Why is the government deciding to create a committee of parliamentarians and not a parliamentary committee? It is a political choice. In the United Kingdom a few years ago there was something similar. It was a committee of parliamentarians and over the years we understood that we wanted to do better. We learned from the British that the committee of parliamentarians had certain limits in terms of resources, and in general. We recently went from a committee of parliamentarians to a parliamentary committee with certain powers. It's a political choice. The reason why the government wants to proceed in this particular way escapes me. It is not up to me to express an opinion on that; however, this committee is a start.
Senator Boisvenu: Are the evolution of that policy and our political context so different that we will not arrive at the same conclusion?
Mr. Plouffe: With regard to England? That's possible. I get the impression that the government felt that this was new and that parliamentarians were not used to dealing with intelligence organizations, and so on. In this way they will be given an opportunity to learn and do their homework. Once that is done, if I may use this expression, once they have made it to adolescence, we will as is the case in Great Britain go from a committee of parliamentarians to a parliamentary committee.
Senator Boisvenu: Basically, there is a control strategy there designed to keep the upper hand.
Mr. Plouffe: I don't know. You are the one saying so. All I am saying is that it is a political choice on the part of the government to proceed in this way. There are advantages and disadvantages. That is very clear.
Senator Boisvenu: Listening to you, I'm coming to that conclusion. I thank you very much for your answer.
[English]
The Deputy Chair: I have a question for you, Mr. McPhail, on the ongoing operations. We've heard from witnesses that ongoing operations, for example with Air India, can go on forever.
In subclause 14(d) of the bill, it states:
The Committee is not entitled to have access to any of the following information:
(d) information relating directly to an ongoing investigation carried out by a law enforcement agency that may lead to a prosecution.
Quite literally, any action taken by the RCMP national division may lead to prosecution. It could be many years from now. Something that has been brought up a lot is that an ongoing operation cannot get the information and cannot get access.
Are you or Mr. Evans, are able to comment on that?
Mr. McPhail: I think we'll both comment. As I was mentioning a bit earlier to Senator Lankin, one interpretation of that clause would appear to cover everything that the RCMP does.
The Deputy Chair: Exactly.
Mr. McPhail: In terms of interpretation of statutes, there are several rules that courts will follow. For example, in terms of your parliamentary debate, if it's generally agreed that the committee of parliamentarians would have the right to information, provided that it doesn't unduly interfere with an ongoing investigation, it would be taken into account.
The fact that all statutes are considered to have a remedial purpose would be taken into account in terms of interpretation. The fact that the mandate of the committee of parliamentarians would be to act as an oversight body for all national security issues would also be taken into account.
I'm sure Mr. Evans has some additional comment.
Mr. Evans: From an operational perspective, let me first say that it's probably a dangerous thing for a public servant to come and criticize how legislation is drafted, so I won't do that. I'll just talk about how our legislation reads.
First, ours has a threshold that has to be met. It's not just an ongoing investigation. It has to be an investigation where it's established that the release of the information could compromise or seriously hinder. It has to be more than just ongoing.
Second, this is one of the provisions that was added late in the drafting of our legislation. We're content with how it was resolved in the end because it's a balance of the commission's authority and the RCMP's authority. If a complaint, for example, comes in, we may not know that the complainant is involved in a criminal prosecution. If we learn that, we'll let the RCMP know and then we have the authority to suspend. The opposite is true as well. The RCMP can tell us that they would like us to.
Third, it's not just criminal investigations that can be interfered with. There is also a permissive provision in there that we can suspend a review if it might interfere with an ongoing civil or administrative process. Again, in each case, there are reasons given and a threshold to meet, as opposed to a blanket.
[Translation]
Senator Dagenais: I have a last question for Mr. Plouffe.
Mr. Plouffe: I'm popular with you.
Senator Dagenais: Yes, because we really appreciate your testimony.
In the interest of moving the work forward, what would be the advantage of granting the Privacy Commissioner the right to communicate without restriction with the future oversight committee?
Mr. Plouffe: The Privacy Commissioner and I have two different approaches with regard to the protection of privacy. In my case I focus on an agency from the perspective of compliance with the law, which includes protecting privacy. For his part, the Privacy Commissioner of Canada has under his jurisdiction all of the departments and agencies of the federal government. It is a much broader mandate.
Occasionally I meet with the Privacy Commissioner and we discuss all of these things. Obviously we have a common interest in privacy matters, but from a different angle and perspective. His perspective is much more general, whereas mine is much more specific. So to a degree our work is complementary. In my case, since I have a mandate to protect privacy with regard to the CSE, it may not be necessary for the Privacy Commissioner to be a member or to become responsible for reviews, as are the three other organizations appearing before you today.
Senator Dagenais: Thank you, Mr. Plouffe.
Mr. Plouffe: Have I answered your question?
Senator Dagenais: Yes, very well. Thank you.
[English]
Senator Lankin: This is a general question for anyone who would like to answer it. Within the mandate of this committee, there are a number of things such as administration, policy and efficacy. It has been suggested in some testimony that is a different area to carve out than what the review bodies have looked at. Yet, I recall, and I'll rely on my memory from SIRC, looking at various CSIS operations like screening, whether it would be for immigration or security for employment.
Some of the review has pointed to misallocation of resources and has resulted in decisions taken by the service to reallocate resources. To a certain extent that's not only about efficacy, but I just wonder if you could comment on that.
Not that it has to be, but do you see that your mandates include the issue of efficacy, or do you see that as different for the parliamentary committee, and what would your expectations be that the committee might be looking at?
Mr. Doucet: Without question, when we carry out a review there could be an efficacy angle to it. I'll go back to review we did a number of years ago on the CSIS footprint in the North. At that time the government's focus was on the North. I believe you were with us at that time. We stated that with the focus on the North, CSIS didn't have a permanent presence in the North and that made it difficult for them. We opened the door to CSIS to look at that from a resource perspective.
In my view, when it comes to efficacy, the committee of parliamentarians will be looking at that national security system, including 17 organizations. It will absolutely have the opportunity to look at overlap, to potentially look at gaps, and to look at it from the efficacy perspective. Once again it will be looking at it as a system and at the sum of organizations not only tackling problems but how well they are tackling them together and playing their respective positions.
Senator Lankin: Let me go on from there, then. You spoke earlier, Mr. Doucet, about some aspect of the next part of the national security framework that will hopefully deal with review bodies and their relationship in following evidence across a super-SIRC or pan agency operations, however they come forward. Your answer suggested that there is a valuable role to be played by this committee in the fact that it can look across systemic issues in between and among the various agencies.
In terms of the value added for Canadians, and as we look forward to what the first actions might be for this committee, is it to dig down into various silos and streams, or is it to look at that framework and the relationship that exist in all those agencies?
Mr. Doucet: When the committee comes together, the committee of parliamentarians will have to decide exactly how they move forward. They will have to decide on their strategies. We don't know how big their secretariat will be or how much expert support they will have, but looking at the broader system will have value for Canadians.
What's more important for Canadians, if you look at the last few years, we are talking more and more about national security issues. Bill C-51 brought a number of things to the forefront. This legislation on the committee of parliamentarians is bringing things the forefront. We are having more conversations around this.
I believe a role of the committee of parliamentarians will be not only to keep those conversations going but to stimulate those conversations and put a face to this community that I think a lot of Canadians don't necessarily understand.
In their annual report they will be able to state, "We have it covered. We're looking and we're asking the right questions. Where we need to go deeply, we are going deeply. Where we can't go that deep, we're going to expert review to help us on that.'' Once again, if we play our roles properly and work with them, I think that's really important.
I was intrigued by the question and the dialogue on subpoenas. I personally think SIRC's biggest power is the annual report we put out every fall. We comment on and review a number of CSIS activities. That in itself generates a number of questions, and so on and so forth. In my experience as well that CSIS and the minister pay attention to that. Where we have recommendations, they take them seriously. We see action. We track where those recommendations. We track where they are going on them. We're not an audit committee, but we still ask follow-up questions as to how it's going.
You may not be aware that every year our committee has a meeting with CSIS executives to touch base, to see what we're doing and how we're working. I think the committee of parliamentarians will have a number of roles and will decide exactly how they want to do it. Hopefully, they'll have not only the secretarial support to do that, but they'll work with us to make it happen.
Senator Kenny: I'm curious to ask you to look back into your own experience. I'm very concerned about the ability of parliamentarians to have a perspective that encompasses either 17 or 21 different agencies. We haven't had a clear answer to the question as to how many agencies there are. If the bill is passed, we know that all of the agencies will be covered.
What thoughts do you have about how long it will take to get up a learning curve if you had 17 SIRCs? Perhaps SIRC isn't a good example because all three of you have complicated jobs. Can you assist the committee with what sort of challenges it will take the committee of parliamentarians, as currently contemplated with what came out of the house, to find that they can become operative?
Mr. Plouffe: Thank you, senator, for your question. I agree with you that the mandate of the committee of parliamentarians is quite broad indeed. The strategies will have to be established when the committee convenes in due course.
My suggestion for the committee, if I had to make a suggestion, would be to stick to the more general functions that are mentioned in the law, that is, review the legislative, regulatory policy, administrative, financial framework, and so on and so forth, and leave the specifics to us, the expert review. In due course, we'll meet with the committee and later on, if they want to conduct specific reviews in some department or agency, we'll be there to assist them. However, to start with, they should stick with the broad issues and follow the thread. At this point in time the expert review agencies, as you know, cannot follow the thread. The committee can. This is one area where the committee could go, and hopefully they will do it.
Senator Kenny: I welcome other comments. I should point out that there are agencies like CBSA that don't have an agency like yours. There would be nobody specific that you can go to. If others have views, I would welcome them.
Mr. Doucet: I think this is a great question, senator. I'll give you the example of SIRC committee members. We currently have five. Quite often, a committee member will come to us with no national security background but tremendous background and the ability to really have impact on our organization.
My observation is it doesn't take them very long to get up to speed. Why is that? It's because of how they are being briefed, the information we're putting in front of them, and the strength of our legal counsel and researchers in taking a very complex S and I issue and distilling it into words that matter.
We have embarked at SIRC on risk-based planning, to plan our review cycle based on risk. I would suggest the committee of parliamentarians may want to look at and may want to decipher what is high risk of the Government of Canada within this national security ecosystem. The committee could use that as one feeder into what they are to look at.
You mentioned CBSA. That's a great example of an area that they may or may not want to focus on, out of the gate. They can use the strength, consistency and ability of their secretariat to put information in front of the committee to make decisions on where they want to go, how they want to go, and the order in which they want to do so.
Mr. Galbraith: Senator, you may have identified the first major review project the committee of parliamentarians may undertake in identifying where the national security activities and all these disparate agencies and departments are located. As my colleague Mr. Doucet said, where is the risk highest from privacy protection to non-compliance? How are they interacting? What is the flow of information?
It would be a good first major project to help identify what it is we are dealing with.
Mr. McPhail: To add to the responses, senator, my colleagues have raised very valid points. One of the early challenges for the committee of parliamentarians is to determine what constitutes national security issues. With respect to the RCMP, for example, at what point does a criminal investigation under the Criminal Code become a national security matter?
I am not even going to attempt to answer that question, but that would be a very important one for the committee to address.
Senator Kenny: I asked the question, but perhaps to make it a little more complicated, given the turnover we're looking at in Parliament, we can measure how often there is turnover in the Senate, but in the House of Commons sometimes every three or four years you get an unpredictable response.
How do you manage an institutional memory? I guess that is the best way to put it.
Mr. Plouffe: You have a good point, senator. The presence of senators on the committee is important, with regard to your question, because senators have a longer tenure and therefore will become more specialized in that matter, on the one hand. On the other hand, they will have what we call "corporate memory'' that maybe the people from the other place don't have.
That's why in my initial remarks I mentioned it is paramount for the committee and the review bodies to have a productive relationship because we can help them to train members of the committee, if they so wish. We can assist members of the secretariat in that respect as well.
That would be my answer to your question.
Mr. Doucet: I personally have no concerns about corporate memory as it relates to the committee of parliamentarians.
I'll give the example in the context of SIRC today. I've been with SIRC for four years. None of the five committee members we currently have were with SIRC when I first came on board. The continuity or the corporate memory is maintained by the staff. The staff is really good and is expert, if you will, in not only carrying out their daily functions, but in contextualizing our recommendations to the committee and bringing in that corporate memory or that corporate history.
I absolutely understand and agree with the committee of parliamentarians. There could be members changing over time. The secretariat has a critical role in how they manage the information they present and how they handle the tasking of the committee.
Mr. Plouffe: I agree completely with what Mr. Doucet has said. The secretariat has an important role to play, as well, with regard to so-called corporate memory. This is where it is important to appoint the right people to the secretariat, most specifically the executive director because he'll play an important role in that respect.
The Deputy Chair: There are many senators putting their hands up to ask questions, but we have run over time. I think we could have had another hour and we would still have questions. I profusely apologize to the many senators who have questions.
I thank all of you for being here and always making yourselves available to Senate committees.
This is a very long day and I can't thank you enough, senators, for staying to finish this. I thank our fifth panel of witnesses for being here. Mr. Leuprecht and Mr. Scott have been to committees before, and Ms. McNorton is new. Welcome, and I hope there will be future times when we can work together.
Officially joining us now are professor and former MP Craig Scott, from Osgoode Hall Law School. He will be joining us by video conference. We also have Professor Christian Leuprecht from the Royal Military College of Canada and Hayley McNorton, research assistant from Queen's University.
I think Mr. Leuprecht will be speaking first.
Christian Leuprecht, Professor, Department of Political Science and Economics, Royal Military College of Canada, as an individual: I brought Ms. McNorton with me because she has spent the last two years intensely studying the rest of the Five Eyes community. Some of the conversation we've heard in recent days and some of the submissions perhaps isn't sufficiently nuanced with regard to what some of our partners are doing and what we can and can't learn from our partners. I thought that perhaps during the conversation some of those nuances might be helpful in having more detail than I'll be able to provide. That's what Ms. McNorton will be able to provide.
We need to remind ourselves why we are here to talk about this bill because that's something that seems to get lost in the conversation. Of course, we have a good deal of accountability already. We have accountability through civil servants. We have accountability through the judges, the Federal Court and the minister. However, there's some skepticism on the part of Canadians with regard to, I suppose, the impartiality of those individuals.
As has been frequently pointed out, among all those individuals, the missing individuals are parliamentarians. Of course, they're an integral part of the process elsewhere. The question then is: How ought parliamentarians be integrated into this broader conversation?
To that effect, two key issues need to be answered. What is supposed to be the remit of the committee itself? What is supposed to be the support the committee will receive, both in terms of resources and the remit of the secretariat? In that regard, we believe we should start modestly with the infrastructure and a good expert secretariat. We don't need a super-SIRC or massively resourced secretariat. There are a number of dangers and issues associated with that, including perhaps not even being able to recruit all the people you might want with that sort of expertise.
There are six questions that need to be answered. We've already had these six questions as part of the earlier conversation.
What method should the committee be using to hold ISAs accountable? What ISAs should fall within the remit of the committee? Who is staffing that accountability body? If there's more than one body, as there is in Canada, how should the committee and the review bodies coordinate to prevent duplication? What relationship does the accountability body or the committee have with the political executive? That is one of the more contentious issues here. What information does the committee and the secretariat have access to?
Of course, the committee and the secretariat need not necessarily have access to the same information. The secretariat may possibly be given access to some systems and some databases to which perhaps the parliamentarians themselves may not have access. We can discuss in detail why that is, but the sensitive nature of some of the information will make it difficult to share all databases and systems broadly with the secretariat and even more difficult with parliamentarians.
I shall focus the rest of my remarks specifically on some of the issues that have come up and have been discussed here.
In defining the total number of departments and agencies that the NSICOP will review, I think there are two basic questions in that. One is whether the Department of National Defence should be part of the NSICOP's purview or not. It is my view that DND will necessarily need to be part of that purview.
Another way to distinguish is between overt and covert activity. On the question about which department should be included here, the key concerns that tend to be raised by citizens are with regard to covert activities, which means three agencies: CSIS, CSE and the RCMP. Those three agencies already have their review bodies, so that means the secretariat has an advantage that it can from the beginning work actively through those review bodies and harness the expertise of those review bodies. For the other departments, the obvious interlocutor for the committee will be the departmental parliamentary liaison within those departments.
How should we ensure continuity within the committee? This is where senators, of course, as has been pointed out, play a key role in ensuring, with the relatively rapid turnover we have among members of Parliament, that the expertise continues to carry over and inherently the secretariat with regard to the question of how these different members should be appointed.
I am concerned in the current version of the bill, with the relatively strong concentration in the hands of the executive in control of the committee, that the executive names the chair, that members of the committee are currently not voted upon by the house or the Senate, and that the executive also controls procedure. These are not the best practices that we see from our Five Eyes member countries. We believe that the chair should be selected by secret ballot, as is the case elsewhere. Among the selected members of the committee, we believe that the slate of members of the committee should be submitted to the house for members of Parliament and to the Senate for senators respectively to be voted upon. We believe that only some purview over procedure, as is the case, for instance, in the United Kingdom, should be in the hands of the executive. The committee will need to have some control of procedure to be considered independent and to fulfil the mandate I laid out at the beginning about strategic legitimacy of the community.
There's the question about co-chairs. It's not evident to me that co-chairs are necessary. They don't seem to be necessary elsewhere. You might want to have the chair as a tiebreaker in case you have five votes per side and increased parliamentary involvement in the nomination and appointment of chairs, as I've just laid out.
Then there's the question of whether there should be a parliamentary committee or committee of parliamentarians. The bill, of course, is quite clear on this matter. What the intent of the government is with regard to a committee of parliamentarians is a creature of the executive. Precisely for that reason it is our belief the ability to subpoena witnesses will be an important deterrent for the committee to have, so that the committee can have it in the background should it need to resort to it in order to make sure that everybody actually complies and obliges with requests from the committee.
We are less certain about some of the propositions that have been made about clause 16 with regard to the ability of the minister to withhold information. We think that is an important component of the executive's purview of not releasing material that might be injurious to national security.
There are some elements that have not been mentioned. While a five-year review is written into the bill, what is much more important is a five-year review of legislation overall that governs the intelligence and security community as well as intelligence accountability. There are a number of well-known problems with several of the acts that govern national security and intelligence. These have not been addressed by cabinet, so this is an opportunity to make sure that these issues are systematically raised as to the shortcomings in our legislation. Some of those shortcomings were indirectly alluded to in the previous committee.
It is also important to create standards for intelligence, review and oversight. We currently do not have such standards for the community overall. If we want the NSICOP and the review bodies to measure particular elements, then I think we need to determine what those standards are, and here the NSICOP can play an important role in setting those standards.
There are a number of other issues that I could address with regard to oversight and review, but perhaps I will leave my remarks here and we can discuss those elements during the conversation.
The Deputy Chair: Professor Scott, I understand you have some remarks.
Craig Scott, Professor of Law, Osgoode Hall Law School, as an individual: Madam Chair and senators. I'm sitting here in Barrie, so hopefully nothing will happen to our connection.
I see my role as a value-added one following the testimony that's been going on all day, which I've watched. Most generally, none of the proposals from Professors Roach and Forcese do I object to, as in my view they help make an imperfect bill less imperfect. I do, however, have seven or eight additional recommendations that I'll set out shortly. Most of them are quite different from what you've heard or are framed differently.
Before getting to those recommendations, allow me to say I'm here in an individual capacity, but that does include insights I gathered from my previous experience as an MP. I would emphasize three special contexts.
First, I was the official opposition critic for democratic and parliamentary reform. I'll indicate later why that is relevant.
Second, I was also very heavily involved in the debate on Bill C-51 and before that Bill C-44, which clarified that CSIS has overseas powers.
Third, I spent a good chunk of my 3.5 years as MP digging and seeking transparency on the whole issue of the transfer of Afghan detainees, including via access to information requests and what are known as Order Paper Questions, which are written questions that MPs can lodge. All of these have given me a certain perspective that I hope will help inform and colour what I'm about to say.
All of this experience suggests to me that getting Bill C-22 right, or as close to right as possible, is fundamentally as much about the health of our democracy as it is about security. Why is that the case? Let me make four related points.
First, as the democratic reform critic, it became more and more apparent to me that in the relationship between democratic government and security imperatives we are at a disadvantage in terms of the accountability of what one could call the permanent security state. This is both because of limited oversight, not absent but limited oversight by the political executive, especially in the realm of military or defence intelligence, and because of the almost total sidelining of Parliament from an accountability role, which is what Bill C-22 is supposed to be helping to address.
Second, Bill C-22 is also about the special forum of executive domination of Parliament in our system in situations of majority government. It results from the Westminster system itself, with the partial fusion of the executive and the legislature. It results from our electoral system, which hands false majorities to parties that don't actually receive the majority of the vote. I think the most important factor in how domination works in our Westminster system is our own political culture.
We saw that in operation with Bill C-22 in the house when there was cross-party support within the house committee, SECU, for a number of strengthening amendments. I emphasize that these were not simply coming from the NDP and Conservatives but also, at least one or two at different times, Liberal MPs voted for those amendments. They were reversed by and large in their entirety by the government whipping its benches at report stage. We need to consider that context as part of how it is that Bill C-22 is before you in a kind of exercise of almost classical Westminster executive power.
That leads to my third point, which is the role of the Senate. The foregoing makes the role of the Senate potentially of special importance for this kind of bill enacted in the house in that context. With less and less partisanship in the Senate, you, senators, obviously, have an evolving potential to be a special morally authoritative countervoice. In the circumstances of Bill C-22 I think robust amendments are in order, even as I feel it's important that as an NDPer I have to indicate that I believe if any or all of those amendments were then rejected in the house, the Senate would not have a role in blocking them at that later stage.
Fourth, I think Bill C-22 is one of the instances of legislation in the last year and a half that ties very closely into trust in politics generally. In the last election, the government tied its explanation of why it voted for Bill C-51 and its expansion of security state powers to the fact that it would be making up for that with adequate accountability. Obviously, Bill C-22 is their answer, without our knowing what else is going to happen to the rest of Bill C-51, but Bill C-22 falls short for all of the reasons your own questions reveal many of you feel it falls short. I believe the Senate has a role in reminding this government of that promise in part for the health of electoral promises.
My last comment before recommendations is one that I hope you will take in the spirit in which it is intended, and that's to say that senators should be under no illusion, from my point of view, as to the temptation and the actual tendency of government actors — namely, security officials when they team up with government lawyers — to take advantage of available opportunities to stymie and delay when there are efforts at review with respect to propriety or with respect to effectiveness.
All you have to do is think about a few examples. With the Somalia commission, what happened there, including it eventually being shut down? The Military Police Complaints Commission devoted 20 pages of its final report to a detailed account of what it termed "Department of Justice obstruction'' in its efforts to get at the truth within its mandate of Afghan detainee transfer. Some of my own Order Paper Questions when I was an MP were answered craftily, to the point that I suspected then, and I now believe based on further research, that many of them were deliberately misleading more than they were fully truthful. This was pretty much the only mechanism MPs had to try to get at issues such as in my case the Afghan detainee issue.
Please don't forget the Special Committee on Canada's Mission in Afghanistan in the House of Commons, which would have had full powers that this new committee won't have. It did use those powers to order the supply of documents from the government that led to a finding of contempt in the house. All that was led by an operation at the level of the executive to stymie at every turn.
The point here is that Bill C-22 gives many openings for stymie and delay on its face without officials and lawyers ever having to appear as aggressive, as was the case in most of the examples I just gave you. The government can act in a legalistic fashion and claim good faith compliance with Bill C-22. I ask the committee to take that reality into account when deciding how important some key amendments would be.
Let me get to those amendments and suggestions. A couple of them overlap. I do believe, first of all, that you have to remove somehow the block on judicial review with respect to decisions to withhold information, with respect to shutting down review if an investigation starts after the review has begun, and with respect to ordering redactions on the committee's reports.
Second, subclause 22(1) talks about the other review bodies, like SIRC or the commissioner for the CSE, and the fact that they "may'' provide information to this new committee. I honestly fail to see why that should not be worded as they "must,'' because there are exceptions that apply which would then cover any eventuality where they might not want to provide the information. "May'' gives them the full discretion, which is completely inappropriate in a world where we know that stovepipes are not the best idea when it comes to accountability.
Third, just as many others have said, I think that subpoena power for witnesses and documents is needed, if only because the power allows the committee to be taken seriously. An earlier witness talked about the Damocles sword effect. There I would add Derek Lee's position on witness protection. If you're going to be able to subpoena witnesses or if witnesses come on their own steam, there has to be some kind of statutory privilege that is close to or identical to what witnesses would have if they were testifying before a House of Commons or a Senate committee.
Fourth, I agree with Professors Roach and Forcese that subclause 14(d) on the idea of ongoing investigations being a block on what this committee can look at. At minimum, you need to create a discretion, and that should be lodged at the head of the police service and not given over to the government as a whole. I also agree with that.
I would remind senators that we're not simply talking about the RCMP. I believe military intelligence and military matters have kind of fallen off the radar screen with respect to Bill C-22. There's also the provost marshal's office within the Department of National Defence.
Fifth, I will basically flag it because I don't come with great expertise on it. I would ask the senators to be sure that financial independence akin to that of an officer of Parliament is available for this new committee.
The Chief Electoral Officer and the Auditor General benefit from financial administration sections in their acts that basically allow for unquestioned access to funds according to need in certain contexts, for example, at election time for the Chief Electoral Officer.
Are we sure that Bill C-22 will be adequate for this committee's secretariat to function without being under- resourced through decisions of the government? Maybe this has been covered in previous testimony that I missed, but I worry that this reality of money might turn out to be as important as almost anything else.
Sixth, I personally was almost shocked to see this and have not heard too much discussion of it. I think you have to remove the power of cabinet to use its regulatory powers to control the committee's procedural rules. It's fine if cabinet were to suggest, or through an interim period be able to lay down, rules while the committee is getting going, but everything in the provision on the regulations relating to procedure should be reversed. The committee should be the master of its own procedures and be able to determine what they are.
Seventh, subclause 21(2) deals with special reports and the mechanism of the committee being able to signal it is dissatisfied. This is how people would read that subsection.
I would go so far as to put down textual markers so that no one, in reading it later, and no member of the public in trying to understand the powers of the committee, would not know what those reports could be used for. I would put down markers that reflect the dangers of the system in terms of what could happen.
I would say in that clause somewhere that the committee, using special reports, without limiting the generality of everything else, can report on unreasonable or deliberate delay, under-resourcing and/or on anything else that the committee feels is non-cooperation, even if it doesn't amount to obstruction.
Finally, on legal opinions, there is an interesting provision in Bill C-22 that specifically says documents protected by solicitor-client or litigation privilege are available to the committee and then, of course, all the other exceptions apply.
Legal opinions are absolutely key for a committee to understand the normative environment within which the security services operate. What advice are they being given? Is that advice itself well founded, or is it close-to-the-line advice?
I would suggest, any time legal opinions are refused to the committee, that a specific separate rationale has to be given by the government as to why any of the exclusionary reasons actually apply to legal opinions. In my view, in many cases they won't be able to make a square peg fit in a round hole and more legal opinions should be available to a committee than the government would likely want.
I will end, senators, by saying simply making two quick recommendations on your own process. I would urge you, if you do adopt several amendments, to clearly publicize them in a media-friendly way, whatever the powers of your committee is to package things in that way.
The Senate's counter-voice on an issue like this needs to be translatable to the general public for it to play that authoritative counter-voice role I was talking about. Simply passing over legalistically worded amendments and leaving it up to the media itself to translate what they are, may not put the right kind of normative pressure on the house.
To go back to Senator Boniface's earlier suggestion, I would suggest the committee continue thinking that this may not be perfect. It's worth going ahead with now, ideally with some serious amendments, but why not start a process to study what kinds of regulations could be put in place that themselves would make up for some of the gaps either the Senate or the house does not accept as amendments to the legislation itself? Senator Boniface gave the example of subpoena powers.
It would be a contribution by the Senate to actually come out with a report saying such and such regulations, although there is nothing specifying they need to be drafted in Bill C-22, would be valuable and to recommend them to the government. Thank you.
The Deputy Chair: I have two questions, one for Professor Scott and one for Professor Leuprecht.
I remember you well, Professor Scott, as an MP and being a very loud voice on Bill C-51 and especially bringing up Charter issues. I would like to speak to you about subclause 8(1) of Bill C-22. It should explicitly state that "The mandate of the Committee is to review the framework for national security and intelligence and its compatibility with the Canadian Charter of Rights and Freedoms.''
What is implied by the bill? There is currently no explicit mention of the Charter. Do you think that there should be mention, or just because the Charter is the law it is covered? What do you think?
Mr. Scott: I personally think that would be a valuable amendment. I'm not quite sure what the thinking would have been by the government for not putting it in on its own. We all know that the proprietary review side of what this committee will do will be looking at questions around the Charter. After all, subclause 8(1)(a) looks at the legislative and regulatory framework, which includes looking to see whether or not, with experience, some of the actions of various agencies are touching on Charter issues.
I would echo what Professor Roach said. That would help signal that if the review mandate included looking at unreasonable or inappropriate behaviour on the part of security agencies, that can be informed, as it is in our jurisprudence, by the Charter without the Charter necessarily directly applying or finally being triggered because you can have a much looser values-oriented approach to what's going on, using what he suggested.
However, if you mention the Charter in the way you just did, I think the role of the committee would receive less pushback from the government if it were written in the legislation. I do view it, however, as something that could be done anyway.
[Translation]
Senator Dagenais: I thank our witnesses for their presentations.
My question is addressed to Mr. Leuprecht. Mr. Leuprecht, I want to thank you for the clarity of the amendments and changes you submitted, which could be made to the oversight committee in order to make it more functional and effective.
With regard to the future committee, we could perhaps even talk about a joint chairmanship between the House of Commons and the Senate. The committee could perhaps be made up of an equal number of senators and members of Parliament. I'd like to hear more from you on that topic.
Mr. Leuprecht: With regard to the joint chairmanship, I am not convinced. Joint chairmanship is a good idea, but I'm not convinced that it is essential for the functioning of the committee as such. However, a good strong representation from senators, from the Senate, is indispensable to the functioning of the committee.
Senator Dagenais: I would also like to hear your thoughts on the advantages the committee would derive from being able to subpoena witnesses. What are your thoughts on that?
Mr. Leuprecht: To add to my previous reply, there is no joint chairmanship in partner countries such as Australia and the United Kingdom, so I don't think this would call into question the functioning of the committee. As I mentioned in my introductory remarks, it seems to me that the power to subpoena witnesses is crucial if the committee is to be taken seriously. This is after all the way to ensure that witnesses will appear, and of discouraging refusals to attend and so on.
If this were a parliamentary committee, it would not be necessary. But since this is a committee of parliamentarians, i.e. a creature of the executive, the power to subpoena seems indispensable to me.
Senator Dagenais: Could it be said that this will be a government committee?
Mr. Leuprecht: As indicated in my introductory remarks, the executive certainly has marked influence and power in the current version of the bill. So the power to subpoena would at least be one way of balancing the power of the executive.
Senator Dagenais: In fact, we should say that this is a government committee, rather than a committee of parliamentarians.
Mr. Leuprecht: As compared to the way the committee is currently set up, we see nowhere else in parliamentary committees a similar structure, where the executive appoints the chair of the committee in advance. In addition, there is no vote to approve the members appointed to the committee by the House of Commons and the Senate. In my opinion, as my colleague and I pointed out, the power over the procedures that is in the hands of the executive is an aberration as compared to the way these committees function in our partner countries. And finally, it seems to me that the power to subpoena is indispensable.
Senator Dagenais: Thank you very much, Mr. Leuprecht.
[English]
Senator McPhedran: Thank you to all of you for joining us today. I want to explore a bit further this notion of the value of regulations as distinct from making amendments to the act itself.
I want to pose a question to all of you, which is: Do you see a necessary addition to the draft bill of ways in which there are protections for the parliamentarians on the committee, not to be driven by the secretariat?
I'm particularly mindful of turnover. I'm also mindful of the 8-3 combination at this point, and, as a new independent senator, I think I've experienced how influential the officials can be and how often we tend to be quiet in the face of "official advice.''
I hope that's not too vague a question. It boils down to whether we need to be concerned about this. If we are concerned about this, are we looking at an amendment to the act and/or regulations or just regulations?
Mr. Leuprecht: I have a clear view on this matter. There is no question that the committee will need a modest secretariat staffed by experts, ideally people who have retired from the community and no longer have a dog in the race in terms of their career or whatnot, to be able to get the sort of advice, guidance and appropriate research the committee will require.
At the same time there is an assumption that the more resources the better. I work at the only university that also belongs to the federal government, so I know all about bureaucracy. The challenge here is that if you over-resource the committee from the beginning and create this massive infrastructure, there is a serious risk it will be the secretariat that drives the committee and its priorities, rather than the committee being able to drive the mechanisms and operations of the secretariat.
The government has in mind, with the intent behind this bill, that some support will be required but that support should be modest. However, I have one caveat to that. Should the committee find that any one particular area or agency is particularly problematic in terms of the timing with which it brings material forward, the material that it brings forward or the type of witness testimony that it gives, it is at that point the committee will need to have available the ability to staff-up specifically with regard to resources in that particular area.
Here I would remind senators, of course, that the S and I community is not a homogenous community. Agencies have very different mandates and very different legislative frameworks. That will mean there are different cultures in terms of sharing information and different timelines. They have developed different relationships with their respective review bodies.
This is why I think the committee will be well served from the beginning to work very closely with the review bodies already in place that have perfected this relationship. Ultimately, the committee will have to function on the goodwill on the part of the committee, the secretariat and the agencies. I think these additional resources should only be there as specifically necessary in particular areas that the committee identifies as particularly problematic and requiring additional resources.
Senator McPhedran: Is that an amendment to the act, or is that looking ahead, as Senator Boniface has suggested, in the regulations?
Mr. Leuprecht: This is ultimately in the regulations because it ultimately needs to be the decision of the government as to how it resources that particular committee.
I would be reticent to put that in the act because at that point, then, we risk creating additional mandates or super- SIRCs or whatnot. We need to see how the committee works out before we decide what elements we want to resource and throw additional moneys and capabilities at it. It's not just about the money, of course. It's also about what the committee and the secretariat should be able to access, databases, systems and whatnot. This is all better handled in regulations because that then also gives us the necessary flexibility by virtue of order in council or by virtue of regulation, to support the committee as it finds its way.
Hayley McNorton, Research Assistant, Queen's University: In addition, since the bill has a five-year review, if the committee felt they needed to legislate a change in the support they had, they could do that at the five-year review.
Senator McPhedran: Did Professor Scott have a reply to my question?
Mr. Scott: I can be very brief. Yes, Senator McPhedran, I think the first answer is not all that satisfying, but Professors Roach and Forcese also made it their first point.
Everything will depend on the quality and the resolve of members, parliamentarians, to know the fact that as a group they control the process. Therefore, the whole question of who gets appointed becomes important.
I would emphasize, frankly, that to do this well, it becomes a full-time job on top of the rest of the jobs of MPs and senators. You are right to worry that with all the rest that comes at a senator or an MP, the chances of all members, at any given time, being on top of matters versus having to rely entirely on the secretariat will be limited.
It is extremely important, through some kind of overall collective identity as parliamentarians, that members make clear they are in charge.
I have a slightly different view on the last point by Professor Leuprecht. Yes, there is a specific provision on staffing- up, entering into contracts and that kind of advice, but I am uncomfortable with the idea that this has been so set up as virtually an extension of the executive, even though it's called a committee of parliamentarians. There is no protection at all in the legislation of budget and nothing resembling what officers of Parliament can count on to do their job.
I would ask for the present Senate committee's own staff support to look into whether or not anything analogous to what the Chief Electoral Officer or the Auditor General have should be written into this with respect to at least some core functioning, because it is not beyond the pale that a government, one way or the other, could end up starving this committee.
Senator McIntyre: Professor Leuprecht, upon learning that you were to appear before this committee I did a quick research and came across a paper that you co-authored in 2016, entitled "Defending Freedoms by Effectively Countering Terrorism.''
In the paper you raised a number of issues, including the issue of national security in Canada. You asked a number of questions related to the creation of a parliamentary review committee. In particular you suggested that the government think through the logic of review and avoid making cosmetic changes that may please the public on one hand but do little to improve national security on the other.
Bearing that in mind, could I have your thoughts on how you believe Bill C-22 can accomplish that objective? Are there ways to improve Bill C-22 in better meeting that objective?
Mr. Leuprecht: That's a terrific question. We've talked about review, oversight, compliance and efficacy. One element we have not talked about is innovation as an important component of review. The agencies will tell you one of the most valuable aspects, aside from ensuring they are on track with regard to mandate, legislation, the Charter, the Constitution, and whatnot, is that it continually forces them to innovate in the way that peer review does when we as academics, for instance, submit articles.
The ability of the committee to ask hard questions on whether the community is actually cutting edge or whether the community is delivering on the government's mandate is a key component. To that effect, as I mentioned in the introductory remarks, we would like to see the five-year review extended not just to Bill C-22 but to the entire legislative national security and intelligence framework. There are a number of known problems with legislation that governs the overall framework, both with regard to the review bodies and with regard to the national security and intelligence community.
These need to be addressed, and currently there is no mechanism to address them because you send a memorandum up to cabinet, but cabinet is ultimately always so busy that they can never get to the smaller amendments. This would be an opportunity for the committee to provide a wholesale review of the community and the legislation that governs that community in identifying problems and whatnot.
Keep in mind this community is evolving very rapidly, in particular when it comes to signals intelligence. The rapid evolution of technology is causing, both signals intelligence and the ability to continue to review what our signals intelligence agency does, to move at the speed of lightning. It is something we have not kept on top of in terms of legislation.
Senator McIntyre: I want to go back to the paper. You made nine recommendations in a memo that was circulated to us. Do you still stand by those recommendations in the memo that you circulated?
Mr. Leuprecht: I've moderated my views on some of them in regard to co-chairs, but by and large those nine recommendations are key to making this bill work.
Senator McIntyre: Thank you.
Senator Lankin: As a procedural point, I don't know what document the senator is referring to.
Senator McIntyre: It was just a short memo that was circulated.
Mr. Leuprecht: Maybe it wasn't circulated. I will make sure it is circulated as a submission to the committee.
Senator Lankin: Was it just shared with some senators?
Mr. Leuprecht: I don't know why it ended up in some people's hands and not others, but it's an open submission to the committee.
Senator Lankin: It would be terrific if that could be shared. Thanks very much.
I have two questions. Professor Scott, thank you very much for your work particularly on the Afghan detainees. I want to ask about the whole process of trying to get access to documents, classified information at that time, and Speaker Milliken's ruling. Can you shed light on that in terms of what every committee of Parliament has access to or not versus this committee? Can you contrast that?
I'm interested in subpoena powers. I'm interested in the suggestion now that it could perhaps be handled under the regulation-making power, but I would suggest that's only if the government agrees without the amendment having been passed. Could you speak to that, please?
Mr. Scott: I will, Senator Lankin. I will start with the last part, which is that it would be an odd place to put subpoena powers in regulations versus thinking about it in advance and putting it in the legislation. The nature of the body that has been created might necessitate that if, say, the Senate were to continue putting pressure on the government to do that.
Another way to think about this is that there might come a time when this new committee basically says, "We don't have subpoena powers. We have more restrictions than does a parliamentary committee that's minded to get at the bottom of things. So we can just issue a recommendation in either a special report or an annual report that a special committee of Parliament be set up in order to deal with something because this new committee is getting nowhere due to the problems of no subpoena power, et cetera.''
That would be a pass-off mechanism. It would totally depend on the house. If the house were in a minority government situation, it may be more likely.
In terms of the Afghan detainee, it was such a saga that we still don't know the truth. As Mr. Mulcair told me when I was elected, one reason he wanted me to continue digging on this was that the issue was not simply torture and what happened to many of the people we sent on to Afghan authorities but it was what this did to our parliamentary institutions, both showing up the weaknesses and showing that basically a well-organized executive strategy can stymie Parliament.
The special committee was a parliamentary committee, not a standing committee. Ultimately, because it was getting blocked with the documentation it wanted to see, it adopted a motion. Again, it was a minority Parliament, which partly explains why it happened. The committee adopted a motion asking for all relevant documents unredacted.
The government refused. It went to the House of Commons. It was confirmed as a motion of the whole house. The government continued to refuse. The Speaker held the government in contempt of Parliament, and eventually what resulted was an ad hoc parliamentary process to look at some of the documents for a certain period of time. Then the election intervened in 2011, and the newly elected majority government shut down the process entirely. The whole saga was Parliament not being able to get at the truth to know what was going on, let alone come to any conclusions.
Bill C-22 won't do anything to help that in that sense. If this had happened with the new committee of parliamentarians, all the government would have had to do was invoke the Bill C-22 clauses having to do with ongoing operational security, and the committee would have had a complete shutdown.
It's not as if I'm here saying this committee could do a better job than what the stymied process did in Parliament between 2009 and 2010. I don't think it would, although this committee now has the opportunity, since we're out of Afghanistan, to look into what actually happened then because the government can't now claim current operational security issues.
Senator Lankin: Madam Chair, the process has been two questions per senator.
The Deputy Chair: No, that has not been the case. I will come back to you.
On the document issue you raised, it's not a document that was circulated to everyone. The document that Senator McIntyre has been written up. I would ask the witness to send it to the clerk so that we can share it. Thank you.
[Translation]
Senator Boisvenu: I will limit myself to a single question. Mr. Leuprecht, I read your recommendations very attentively, and I have a general question. Does the bill the committee is studying now, Bill C-22, have so many faults that we should not adopt it in its current form, but rather make amendments such as those you propose, in order to avoid — as you have pointed out in your brief — placing the power to manage this act in the hands of a single person, that is the Prime Minister? That is the basis for several of your recommendations. Should Bill C-22 be amended along democratic lines to make it more acceptable, in your opinion?
Mr. Leuprecht: There are always issues with any bill, but for the government to be able to reach its own objectives, it seems to me that some amendments are critical.
[English]
Senator Lankin: My question was very similar, so let me ask this of Professor Scott. Given the process of this committee having been recommended in the McDonald commission and the number of years we've been waiting for something, at this point in time do we go ahead with this if we're unable to get these kinds of amendments and work it out over the five years, or do we stop this bill?
Mr. Scott: I believe you should go ahead for two reasons. One is that, after being almost the implicit laughingstock of the Western world when it comes to having no parliamentary review process at all, I do believe this is certainly better than nothing. I worry that it's so flawed that it could end up as a legitimating body that won't actually get very far on its mandate, but that will play itself out and we'll see. I would not want it to be stopped for that reason.
The second reason is I do believe it's now through the house. My understanding of the Senate's role is that I think the Senate should be robustly pushing back with amendments it feels, in its independent opinion, are needed. If the house were to reject every one of those, my own view as a matter of political philosophy is that the Senate should not then be blocking a bill.
The Deputy Chair: Thank you very much. Mr. Leuprecht, as you are aware, one side has the document with the recommendations and some senators don't. You've kindly agreed to send it to us. May I please ask that you send it as soon as possible as we are rushing through these hearings.
Thank you very much, Professor Leuprecht, Professor Scott and Ms. McNorton for being here. We appreciate your input.
Joining us for the sixth and final panel, you'll be happy to hear, we have Mr. Tim McSorley, the National Coordinator of the International Civil Liberties Monitoring Group, and Professor Ryan Alford of Lakehead University.
[Translation]
The two witnesses have a great deal of expertise in human rights as well as regarding legislation on national security activities and intelligence.
[English]
Welcome to the committee. I invite you to begin your opening statements. I would like to tell the witnesses and committee members that we have another thing to address. We're going to try to finish by 7:15. I will be a little more vigilant about how much time you take to answer questions. Please bear with me.
We will start with Mr. McSorley.
Tim McSorley, National Coordinator, International Civil Liberties Monitoring Group: Thank you very much. I'll try to keep my comments brief so we can get to questions.
I'm really happy to be here today to speak on behalf of the International Civil Liberties Monitoring Group on Bill C-22. I think everyone has received the more in-depth brief we've written. I will keep my comments to a few specific points I'd like to address here and then, of course, we can discuss some of the other points more in depth.
Our mandate is to defend civil liberties in Canada from the possibly negative effects of national security laws and activities. We believe that strong review and accountability are necessary to ensure that the Canadian Charter of Rights and Freedoms and Canada's various civil liberties and human rights commitments are upheld. In that light, we're 100 per cent behind the motivation at the heart of Bill C-22, the creation of a parliamentary review of Canada's national security activities.
We were pleased when the government announced its intentions to implement such a committee. However, since the bill was introduced, we have expressed great reservations over the restrictions placed on the committee, leading us to question whether the committee will be able to effectively carry out its important work. While some amendments have helped to improve the bill, we believe that other substantial changes must be made.
Our concerns are essentially in three areas in regard to accountability, ability to investigate, and access to information. Regarding accountability, we believe it's important that the committee is independent of the government and the Prime Minister's Office. We believe that the committee should be accountable directly to Parliament. We would therefore recommend that the committee be established as a special joint parliamentary committee composed of MPs and senators rather than a committee of parliamentarians. Committee members would be decided upon by the respective chamber and the committee chair would be elected by committee members.
Being established as a parliamentary committee would also address some other issues that we have and have been brought up by other witnesses during these hearings, including the power to call for people and papers, essentially the power to subpoena. Although a parliamentary committee wouldn't address all our concerns, it would go a long way in addressing many of them.
As others have pointed out, the U.K.'s Intelligence and Security Committee began as a committee of parliamentarians, only to change a decade later to a parliamentary committee. We believe Canada should learn from the U.K. experience and begin with a parliamentary committee rather than starting from where they started a decade ago.
In line with this, we also believe that the committee's report should be tabled directly to Parliament without granting the Prime Minister such great powers to request revisions as are currently in the bill. The result we find, although it is not worded as such, it would essentially be allowing the Prime Minister to redact the committee's reports to Parliament, something we find highly problematic. Barring a change to this, we would recommend as others have that Bill C-22 be amended to allow for some forms of judicial review, including the possible review of revisions made to committee reports tabled with Parliament. I'll explain a bit later why we believe judicial review could also help with other aspects of this bill.
Regarding the ability to conduct investigations and access to information, as many others have mentioned over these hearings, we agree with the idea of the triple lock issue of clauses 8, 14 and 16. However, I want to highlight one of the underlying issues we have of why we see this as a problem. We believe committee members will be sufficiently vetted through security clearances, beholden to oaths of secrecy, and take the sensitivity of their work seriously. We think this should be taken into account when we consider what they can review and what information they should have access to.
With regard to what the committee can review, we believe the restrictions in clause 8 go too far and the wording is too vague. If ministers have the power to restrict investigations, the reasons for doing so should be clearly enumerated in the bill and not simply stated as injurious to national security. Again, the possibility of judicial review, if there's disagreement over what the committee should be able to explore, could be helpful in this situation.
Regarding the information the committee can access, as Professors Kent and Forcese have mentioned, although they said it's clear the government has said they would not like to have clause 14 reflect on the current powers of SIRC, we would maintain the request that this committee have the same access as SIRC and therefore that clause 14 should reflect that.
Regarding clause 16, we again believe that this grants too much power to a minister in order to deny access to information needed for the committee to carry out its work. This clause, once again, allows ministers wide discretion in limiting the work of the committee, this time by denying access to information on two grounds: first, that constitutes special operational information as defined in subsection 8(1) of the Security of Information Act and, second, that the provision of information, again, would be injurious to national security.
I want to take a moment particularly around special operational information because I don't feel that has come up very often, at least in the parts of the committee hearings I have followed. I think it's important because special operation information is a vast category and could seriously hinder the types of information we believe the committee would be able to access.
The Deputy Chair: May I ask you to finish up, please.
Mr. McSorley: I'll give an example and finish with that.
In November, when the Federal Court issued its rulings regarding ODAC, CSIS's Operational Data Analysis Centre, special operational information includes the methods that the Canadian government uses in collecting intelligence. We would be concerned that kind of provision could be used to limit this committee from investigating that type of situation, which is exactly the type of situation we believe it should address.
I would like to mention one last thing that hasn't come up. I believe I heard one other person mention it, and that's clause 35 of Bill C-22, which creates a change to the Access to Information Act. It reads:
The Secretariat of . . . Commit . . . shall refuse to disclose any record requested under this Act that contains information obtained or created by it or on its behalf in the course of assisting . . . the Committee of Parliamentarians . . .
We're concerned this could be used in the future. If there's a question of transparency or regarding how the committee itself even operates, including how the secretariat operates, Parliament and the public would have difficulty in accessing the information. The access to information regime already contains provisions to protect sensitive national security information.
We believe that section should be struck from the bill to make sure there's enough transparency to do an analysis in five years of how the committee operates.
The Deputy Chair: Just for clarification, is this recommendation 13 of the brief you've sent to us?
Mr. McSorley: It's in there. I'll double-check if it's recommendation 13.
The Deputy Chair: I'm sorry I cut you off. I don't mean to be rude. You've done a thorough brief and I can assure you we've looked at it.
Mr. McSorley: Wonderful, thank you.
Ryan Alford, Assistant Professor, Bora Laskin Faculty of Law, Lakehead University, as an individual: I concur with all the recommendations of Mr. McSorley. I was looking at the witness list circulated on Friday. I'm quite certain that I would also concur in the recommendations ofProfessors Forcese, Roach and Scott. Rather than doing the overview I had prepared, I will instead burrow down on a particular issue, which is the constitutional infirmity of the bill. If I have time remaining, I would willingly yield it to Mr. McSorley or for your questions.
There's a serious constitutional issue raised by this bill. It's not one likely to be covered by the Charter compliance statement that will be issued in tandem with the bill. I refer in particular to parliamentary privilege.
If you want to understand this issue, one should start with the Supreme Court case from 2014, popularly known as the Senate reference case. In the Senate reference case, the composition of a Senate was noted by the court to be part of Canada's constitutional architecture and as such could not be modified by a bill alone. It would require the consent of seven provinces, pursuant to Canada's constitutional amendment process.
Here I'll refer you to another case. That would be New Brunswick Broadcasting v. Nova Scotia. Parliamentary privilege is likewise part of Canada's constitutional architecture, which is to say that the privilege of parliamentarians cannot be taken away through a bill. This bill, as it stands right now with clause 11 calling for the removal of the defence of parliamentary privilege, would be simply buying a constitutional challenge. It would not survive constitutional review, particularly at the Supreme Court of Canada, and I don't understand why this was necessary to the bill as it currently stands.
However, merely removing this clause will not solve the issue, because this clause indicates the core of the problem with the bill. To me, a committee of parliamentarians creates a structure that is neither fish nor fowl. This is completely unprecedented in Canada and, as Mr. McSorley noted, created severe issues in the United Kingdom.
We could also learn some lessons from the United Kingdom when it comes to parliamentary privilege. In the United Kingdom, where you had issues involving what were called super-injunctions and hyper-injunctions, the only solution members of parliament could see to a serious abuse of confidentiality provisions, whether created by court injunction or statute in the case of the Official Secrets Act, was to make use of the institution of parliamentary privilege.
If we have a committee of parliamentarians being recruited onto this committee because they bring the prestige of the institution with them, if they're on that committee because they're thought to be serious, sober-minded individuals who have discernment and judgment with respect to these issues around national security, how can we possibly say they should be denied the possibility of speaking in Parliament pursuant to parliamentary privilege?
Really, it's not just a threat to parliamentary privilege. It's a serious threat to parliamentary sovereignty to say that these people, who are essentially now just on an advisory committee to the Prime Minister, are prevented from acting in their capacity as parliamentarians in a way which is constitutionally deficient.
Insofar as this is really about the creation of a body that creates an illusion or a perception of oversight rather than the possibility of real oversight, this is what's at the heart of the matter with this bill. I heartily concur with Mr. McSorley that most of this would be solved by making this a special joint committee of Parliament rather than this ersatz committee of parliamentarians.
In that respect, what if we had a situation where a Member of Parliament, sitting on this committee, had a crisis of conscience because they saw something that they felt both Parliament and the Canadian people should know about? As a hypothetical example, if we saw Canadian soldiers turning over prisoners of war to another force that is complicit in torture or tortures those prisoners directly, that's perhaps something that Parliament should know about pursuant to the fact that it is Parliament. It's responsible for legislation. It's responsible for oversight of every matter it deems it's competent to oversee.
Likewise, the Canadian people should know about this. To say that we have a committee of parliamentarians, people whom we should trust and whose judgment is unimpeachable, and to say in that situation where they take seriously their role as parliamentarians and strip those people of the ability to operate in that capacity in an unconstitutional manner, something is sorely wrong with this bill. I don't think it can be solved simply by striking out that removal of the immunity from prosecution pursuant to parliamentary privilege.
I would like to clear this up. I think it's important to understand that post-2014 the Supreme Court of Canada made it clear that Parliament cannot change Canada's constitutional architecture. It recognized some years previously that parliamentary privilege was an essential part of that constitutional architecture. Yet, no one has raised the fact that is constitutionally infirm, although I know that senators have noted there is a serious issue with this clause that would remove parliamentary privilege.
I want to highlight the fact that this would not survive constitutional scrutiny. I'd like to link that to the concerns of Professor Roach, Professor Forcese, Professor Scott and Mr. McSorley, who said this was inadequate by virtue of it not being a parliamentary committee but rather something which is entirely unprecedented, a committee of parliamentarians.
[Translation]
Senator Dagenais: Mr. McSorley, several witnesses suggested important amendments to this bill. I am among those who believe that we should take even more time to discuss the bill, given its importance. Some witnesses suggested that we should accept the bill as is and give the committee some time so that everything becomes functional. In other words, we would adopt the bill, and things would iron themselves out over time. What do you think of that logic?
Mr. McSorley: We think that such a committee is necessary, to the point that we feel that without the amendments this bill is unacceptable. Even though we understand that perfection is not always possible, we think that it would be worthwhile, even if it takes a few additional months, to rework the bill in order to reach a consensus with the House of Commons on the amendments.
Senator Dagenais: Someone once said: "You can't do things quickly and well; you have to take the time that's needed''.
Thank you.
[English]
Senator McIntyre: Mr. McSorley, you raised the issue of judicial review. In looking at this bill, would you agree that the public has no recourse to independent review of the committee's records or their classification?
We already have an Access to Information Act, as you know. Would you say, under Bill C-22, that Parliament and its oversight mandate are weakened and the Access to Information Act is somewhat gutted?
Mr. McSorley: I would say that of clause 35 of the bill. As I mentioned before, it does have a significant impact on access to information. It's a good question regarding the ability of Parliament to conduct oversight. I think what is being raised regarding parliamentary privilege and the power to subpoena are two significant questions on whether or not this committee and the parliamentarians would be able to carry out their duty.
[Translation]
Senator Boisvenu: I want to welcome our witnesses.
Mr. McSorley, on the one hand, you write in your brief that Bill C-22 needs to be greatly strengthened, whereas on the other hand, you say — unless I misunderstood you — that the bill should be passed and that you are in favour of this bill. I see a certain contradiction there. You say that the bill must be amended and adopted, but you suggest 16 amendments. When you want to make that many changes to a bill, that proves that it is not perfect.
Mr. McSorley: Yes.
Senator Boisvenu: So your proposal is that the bill needs to be amended, correct?
Mr. McSorley: Yes, that is correct. We have been asking for such a committee for over a decade. We think it would be important that the bill be amended, and that you find a solution so that the members of the committee can continue their work. We have seen situations where people who were opposed to the creation of such a committee used our recommendations to say that this type of committee should not exist.
And so we want it to be clear that we want this committee, but we think that amendments need to be made to the bill.
Senator Boisvenu: I have one last question. Some witnesses came to tell us that it was better to accept the bill as it stands rather than making amendments that could delay its implementation. In your opinion, would it be better to amend the bill, or to leave it as is in order to be able to adopt it as quickly as possible?
Mr. McSorley: We think it would be preferable to take the necessary time to make amendments to it.
Senator Dagenais: I would have one last brief question for you, Mr. McSorley. Do you believe that whistleblowers should be protected, as is the case in other committees?
Mr. McSorley: Yes, that is what we would ask for. We also believe that this provision would be included if this were a parliamentary committee and not a committee of parliamentarians.
Senator Dagenais: Fine. Thank you.
[English]
Senator Lankin: On the question just explored about this being an imperfect bill, Professor Alford, I think all senators around this table have certain issues they would like to see amended and the fact of whether or not we take the time for a few months to put the cards on the table, risk prorogation and the bill dying. Virtually all of the witnesses, either on the record or as I've asked them the question afterward, have said, "Try but go ahead and get it done. That's more important, given the number of years we've been waiting for this.''
Essentially, Mr. McSorley said something like that, with perhaps a bit more emphasis on the amendment. Would you address this, please? You seem to be definitive that this bill is not a good bill and I don't know how you would answer that question.
Mr. Alford: Thank you, senator. I'll take the contrarian view. With this being a committee of parliamentarians, as it stands, and not a special joint committee of Parliament, the bill is not worth passing because it creates the illusion of oversight without actual oversight. I think that's dangerous. If they were to label this as a special advisory committee to the Prime Minister, everyone would be very clear that this is not providing any real protections.
Furthermore, as I mentioned before, the bill is in fact constitutionally infirm. Without the provision removing that stripping away of parliamentary immunity, it's just headed for trouble in the courts.
This issue will remain on Parliament's agenda. If we're looking at the parliamentary schedule, we will see the amendments coming out of the Standing Committee on Public Safety and National Security to the Anti-terrorism Act, 2015, coming in the fall. I think that will keep this same issue on the front burner.
I would actually prefer that these be addressed rather than this very flawed bill being passed as it stands.
Senator Lankin: I have a follow-up question, Professor Alford. The government, in its response to questions around the lack of subpoena powers, for example, has talked about the importance of keeping it very clear that this is not a committee of Parliament. I am not just calling it a committee of parliamentarians, but some parts of the architecture of this bill, I'm guessing the lack of privilege and the lack of subpoena powers, distinguish it because it is a committee that is advisory to the Prime Minister.
I want to come back to your assertion that this would be successfully challenged under the Constitution. If they have structured this in such a way to make it very clear that it is not a committee of Parliament but rather a committee of parliamentarians, does that protect them in any way from the constitutional challenge that you are speaking of?
Mr. Alford: That's an excellent question. I don't believe that it does because the parliamentarian remains a parliamentarian no matter what other hat they wear. Saying this member of Parliament by virtue of joining this ersatz committee of parliamentarians loses parliamentary privilege, that's affecting them and their status as a parliamentarian. Just like Parliament couldn't pass a bill decreeing that the Prime Minister is now maximum dictator for life, they could not pass a bill that takes away from my member of Parliament their parliamentary privilege.
[Translation]
Senator Boisvenu: To follow up on Senator Lankin's question, Mr. Alford, you say that the part of the bill that refers to privileges seems unconstitutional to you; is that your personal opinion, or is that the conclusion you came to after your consultations?
[English]
Mr. Alford: I've spoken to my colleagues. I should be candid. There's a debate among law professors on this very issue, so I could point you to Emmett MacFarlane at University of Waterloo who would probably disagree. However, I believe that looking at the decision in 2014, the Senate reference case, the Supreme Court of Canada defines Canada's constitutional architecture. It says that you cannot change the constitution of the Senate through a simple bill. It requires the consent of seven provinces. I mentioned the New Brunswick Broadcasting v. Nova Scotia case and the Supreme Court of Canada also mentioned that parliamentary privilege is part of Canada's constitutional architecture.
It can only be changed pursuant to constitutional amendment. It cannot be changed by a bill. That was the view of the Supreme Court of Canada in 2014. I don't understand how it would survive constitutional scrutiny, although you could probably find people in my position, law professors, who would like to make arguments to the Supreme Court that this should no longer be the case.
On the basis of those two cases that I mentioned, barring a shift of position by the Supreme Court of Canada that's the law.
Senator McIntyre: Professor Alford, in your written submission to the House of Commons committee, you recommended a larger parliamentary committee and that the committee have the power to appoint its own staff.
Why do you believe these two elements are so important?
Mr. Alford: Subpoena power is essential. Without the possibility to conduct investigations, it's unclear what Parliament would be doing that would be separate from other bodies. There are a number of cases. One of them was called re-ex with the Federal Court of Canada. Another involved metadata from two years previously. Sometimes these matters get the attention of the Federal Court. At that point, the Federal Court can opine and say, "We think this is really quite deficient.'' For instance, the language in those two cases of Mr. Justice Noël was quite scathing, but how does this get to the attention of the courts? They don't have a staff to go out and investigate things, although when it becomes a live dispute they have subpoena powers.
What is necessary is a body with investigative power. To resolve this problem, which I think Professor Forcese calls the broken telephone problem, you need one institution which has wide-ranging powers of review and oversight. Staff is important as well. You need people who are there to pursue all these leads, or it risks being a purely formal exercise of having a committee where people meet but really do not have the investigative capacity to oversee these agencies.
I will tell you: it's a big job. They are not only talking about CSIS but also about the Communications Security Establishment, which hasn't had a lot of oversight to date. There will be a lot of issues they will need to follow up on in short order to be able to fulfill that role adequately. Having subpoena power and the power to appoint their own staff are absolutely critical in that respect.
The Deputy Chair: Professor Alford, I have the last question. I want to play the devil's advocate with you. I want to say you are wrong, with the utmost of respect, about parliamentary privilege.
I'm not as learned as you are, but I understand that parliamentary privilege only applies in one's capacity as a parliamentarian. This committee is not a committee of Parliament, so I believe that since it's not a committee of Parliament that privilege does not apply. Am I wrong?
Mr. Alford: It depends on the capacities, as you correctly state. Let's take what Mr. McSorley said. Let's say we have a whistle-blower problem and that whistle-blower happens to be someone serving on the committee of parliamentarians. The way they seek to address this, as is the case frequently, is by reading out something into Hansard and saying, "This is how I will bring out this very serious problem that for some reason the Prime Minister thinks is not worthy of being addressed in that capacity.'' Then you have a whistle-blower situation. A member of Parliament might then want, as was the case in a number of situations in the United Kingdom, to be a whistle-blower by means of parliamentary privilege. That's exactly what is forbidden by the bill, and I think that's the constitutional issue right there.
Insofar as someone could be subject to restrictions as a member of the committee of parliamentarians, that's absolutely true. However, could those same restrictions prevent someone from saying something in the House of Commons or in the Senate? I don't think so.
The Deputy Chair: Senators, there being no further questions, I adjourn these open proceedings and ask that we continue in camera.
Thank you very much to both of you, Mr. McSorley and Professor Alford. You may have come at the end of the day, but you have left a lot for us to think about.
Thank you very much.
(The committee continued in camera.)