Proceedings of the Special Senate Committee on the
Anti-terrorism Act
Issue 12 - Evidence - Morning meeting
OTTAWA, Monday, May 30, 2005
The Special Senate Committee on the Anti-terrorism Act met this day at 10:34 a.m. to undertake a comprehensive review of the provisions and operations of the Anti-terrorism Act, (S.C. 2001, c.41).
Senator Joyce Fairbairn (Chairman) in the chair.
[English]
The Chairman: I call this meeting to order. This is thetwenty-fifth meeting with witnesses of the Special Senate Committee on the Anti-terrorism Act.
In October 2001, as a direct response to the terrorist attacks in New York City, Washington, D.C., and Pennsylvania, and at the request of the United Nations, the Canadian government introduced Bill C-36, the Anti- terrorism Act. Given the urgency of the situation then, Parliament was asked to expedite our study of that legislation, and we agreed. The deadline for passage of that bill was mid-December of 2001.
However, concerns were expressed that it was difficult to thoroughly assess the potential impact of this legislation in such a short time. For that reason, it was agreed that three years later Parliament would be asked to examine the provisions of the act and its impact on Canadians with the benefit of hindsight and in a less emotionally charged situation. The work of this special committee represents the Senate's efforts to fulfil that obligation.
When we have completed this study, we will make a report to the Senate that will outline any issues that we believe should be addressed, and we will make the results of our work available to the government and, of course, the Canadian public. The House of Commons is undergoing a similar process at this time as well.
The committee has so far met with government ministers and officials, international and domestic experts on the threat environment, legal experts, and those involved in enforcement and intelligence gathering.
This morning, we are very pleased to be joined by the Information Commissioner, the Honourable John Reid, who is accompanied by Alan Leadbeater, the Deputy Information Commissioner of Canada, Dan Dupuis, Director General, Investigation and Reviews, and Daniel Brunet, General Counsel.
Mr. Reid is no stranger to this committee. He appeared at the original hearings in 2001.
Mr. Reid, the floor is yours.
Mr. John Reid, Information Commissioner, Office of the Information Commissioner of Canada: Thank you. I am delighted to be appearing again before this committee because it has a great deal of expertise in the problems we are dealing with. I have circulated to all members of the committee a copy of my written presentation, which I should like to have taken as read, and perhaps printed as an appendix, and I will give you a quick overview of the points I wish to make.
The Chairman: Is that satisfactory to the committee?
Hon. Senators: Agreed.
(For text of document, see Appendix A.)
Mr. Reid: I should like to open by paraphrasing from the final report of a Senate committee that looked into security at Canada's airports. They said that ``unreasonable secrecy acts against national security shields incompetence and inaction at a time when competence and action are both badly needed.''
I quote that because the effect of Bill C-36 on the Information Commissioner and on the Federal Court is to remove scrutiny from activities taken by the security forces in Canada. Accountability is diminished significantly when it is possible for the government to issue a certificate that eliminates the role of the Information Commissioner to review secret information that has been requested by individual Canadians and when it removes from the judge the ability to make substantive decisions on whether that information should go out.
On page 5 of my brief, you will see a discussion of that point. The quotation there is from the then minister of justice. It deals with the concept of a loophole in section 15 of the Access to Information Act.
In our judgment, there is no loophole, because the security provisions in the Access to Information Act are very powerful and strong. There has never been injurious information given to the public under that section in the 22 years of the Access to Information Act. It is, in fact, one of the most powerful sections of the act for keeping information from citizens who request it.
We wish to make six recommendations. The first is to remove section 38.13 from the Canada Evidence Act, because section 38.02 already provides that kind of protection.
The second is to remove section 87 of the Anti-terrorism Act to permit independent investigation by the Information Commissioner.
The third recommendation is to amend section 87 to correspond with sections 103 and 104.
The fourth recommendation is to amend section 38.131 of the Canada Evidence Act to permit substantive review by the Federal Court. Currently, the court has no ability to do a substantive review in these circumstances.
The fifth recommendation is to reduce the effective period of a section 38.13 certificate from 15 years to a maximum of five years.
The sixth recommendation is to add the Information Commissioner and the Privacy Commissioner to section 10(3) of the Security of Information Act — due to our quasi-judicial status.
The Access to Information Act is basically about accountability. Our concern is that by taking the Information Commissioner and the Federal Court out, there is a significant reduction in accountability, a significant increase in secrecy and a significant sense of irresponsibility in the structure of security. When you do not have to face the idea that you will be accountable to an independent third party, your concept of what you can do and what you cannot do is quite different. It is very healthy to ensure that there are accountability mechanisms.
Last week, I attended a seminar hosted by Carleton University and SIRC. It was concerned about the question of accountability of secret service organizations, security organizations. There were people from around the world and much stimulating discussion. It seemed that those people who were in the business of providing accountability indicated that the more internal review there was, particularly internal review outside government and outside the immediate security service, the more accountability there was and the better operating the security service was because it was then forced to take judgment and look for opinion before it moved.
We have to recognize that Bill C-36 changed the nature of what we ask our security forces to do. It went from a reactive system to one that is proactive. This puts additional burdens on the security service, but we did not provide them with the necessary oversight and accountability mechanism commensurate with those additional powers.
Senator Lynch-Staunton: Perhaps to better understand your anxiety, which I remember you sharing with us when this bill was being pre-studied, have any certificates been issued? Can we concentrate on one or more examples of certificates being issued?
Mr. Reid: To my knowledge, no certificates have been issued. My judgment is that they are waiting for a good case to issue it and that once they do that they will be freer with them.
Senator Lynch-Staunton: I can sympathize with your approach as the Information Commissioner and the purpose of your office, but I also sympathize with the government feeling that there has to be information kept secret. There is something there I am missing, obviously, and if you bear with me maybe you can reassure me again that your case is stronger than I think it is.
Mr. Reid: In the Access to Information Act, there are very powerful exemptions to the right of access for security. That provides all the protection that has been required in the past and, from what I can see, will provide in the future.
The new regime sets up a system where, if someone has asked for information that even touches on security, the government may issue a certificate that ends the complete investigation, even those documents that are not of security access.
By taking the Information Commissioner out of the loop, as it were, a circumstance is set up where there is no third party to review documentation that had been refused legitimately under section 15 of the act. Section 15 determines what goes out and what does not go out. I do not believe there has ever been a protest by government in the 22 years of the act that that section is not strong enough. In terms of the task force report that reported in the year 2000, this was not an issue. In every other report that I have been able to read on the Access to Information Act, this was never an issue. It became an issue when the government brought down Bill C-36.
Senator Lynch-Staunton: That makes it clearer for me, but there must be cases where the government would not even want the Information Commissioner to know what it feels should be kept secret.
Mr. Reid: That happens every day.
Senator Lynch-Staunton: Yes, but the Information Commissioner can intercede.
Mr. Reid: That is correct.
Senator Lynch-Staunton: In this case, he cannot intercede?
Mr. Reid: When he exercises his power as a superior court of record, then the government can move to issue a certificate to eliminate not only the Information Commissioner but also the Federal Court.
Senator Lynch-Staunton: Right.
Mr. Alan Leadbeater, Deputy Information Commissioner of Canada, Office of the Information Commissioner of Canada: Under section 38.13 of the Canada Evidence Act that is contained in this piece of legislation, a certificate can be issued in the course of one of our investigations. We are looking at the information, we have seen it, we have it in front of us. The government simply wants us to stop investigating, make no recommendations, make no observations about that information, take no cases to court about that information. It is not about us not seeing the information; it is about not having an accountability mechanism.
Similarly, when the matter goes to the court, there is an opportunity to take the certificate to a single judge of the Federal Court of Appeal. The judge can see the information, but the judge cannot make a determination of whether it is in the public interest to disclose it, whether it is truly sensitive national security information. The judge can only say that this information relates to national security. That related to test exists nowhere else in the law of Federal Court oversight. It does not exist with respect to the provisions for secrecy in 38.02 of the Canada Evidence Act, which we understand. That is the provision I think you want. The government can say at any time they want secrecy. That is section 38.02. That goes to court and a judge will decide whether it truly is necessary to have secrecy in the public interest.
Section 38.13 is like icing on the cake. When all else fails and there is no legitimate reason for secrecy that can be demonstrated, then the government wants the ability to say no with no oversight. That does not exist in any other country.
Senator Lynch-Staunton: I am still sorting this out. The minister suggests that there is a loophole in section 15, which you say has been working well for the last 22 years. In your written text, you challenge that. Perhaps you could explain the loophole that you suggest does not exist.
Mr. Reid: The Information Commissioner has no power to order a document released; the Information Commissioner can only make recommendations. Therefore, it cannot be the Information Commissioner who is going to release this secret information. However, the person who has made the request for the information has the right to go to the Federal Court and ask the Federal Court to release the information. It is there that the Federal Court has been taken out of the loop, along with the Information Commissioner, because the Federal Court no longer has the ability to order the release of the information. That was the point that Mr. Leadbeater was making.
Senator Lynch-Staunton: I am much clearer now on your approach than I was earlier.
Senator Jaffer: You said the government had not found the right case, if I understood you well, for a certificate under this act. It has been done under the Immigration Act. Is it because they have not found the right case? The Immigration Act applies only to non-Canadians and there has not been a Canadian. Would you have any information about that?
Mr. Reid: No, I would not.
Senator Jaffer: Regarding accountability and oversight, if you were asked to make recommendations, what kind of oversight mechanism would you see? We have had a number of recommendations from other presenters on the kind of oversight mechanism there should be. With your release of information, what kind of oversight would you like to see?
Mr. Reid: There are two kinds of oversight. There is the oversight that comes with an independent third party like the Information Commissioner and the courts reviewing information. I believe that is an important kind of oversight.
My judgment is that the oversight provided for CSIS works well. However, I do believe there is a problem with the oversight that takes place with the RCMP. The advice we received at the seminar from the commissioner who did the oversight for Northern Ireland was that you should have an oversight body that deals with all security information systems, because if you do not have one for all systems, then there will be cracks in the system into which things can fall. She said it is not good enough to have independent systems, namely, one for the new department that Ms. McLellan heads, one for the RCMP and one for the SIRC. What is needed is one that handles all of them, to ensure that the accountability is straightforward, constant and seamless. That would be the recommendation that I would make on that point.
Senator Jaffer: If I understand correctly, you are saying that Minister McLellan's department, SIRC and the RCMP all should be under one body. Public Safety and Emergency Preparedness does not have an oversight at the moment. The only oversight is the minister. You are saying one body for all security. Is that correct?
Mr. Reid: That is correct — independent and based on the model of the SIRC that has oversight over CSIS.
Senator Jaffer: Would it report to Parliament?
Mr. Reid: To Parliament, of course.
Senator Jaffer: That is helpful.
I have another question, and you may not have had time to think about this because it is fairly new. If you have not, after you have had some time I would ask you to provide us a response in writing. It is about consular services, and it is a great concern to all my colleagues as well. I always thought consular services were private, between the person who has been detained in another country and the consul. We now find out that that information has been shared with the RCMP and CSIS.
Can you please give us your opinion on that, if you have done any work on this information sharing?
Mr. Reid: That would not be anything that comes under the authority of the Information Commissioner. That work is done by the Privacy Commissioner.
Senator Jaffer: That is where we have to go.
Mr. Reid: Yes.
Senator Jaffer: I wish to go back to my first question, where you were talking about the certificate under section 38.13. While you hope that the minister never has to use the certificate, you explained that there needs to be a specific case, and that the government is waiting for a test case. I should like you to expand on that. What kind of a situation do you see that would be the government's test case?
Mr. Reid: I have been unable to find a test case in my mind where the government would have to exercise that because of the power of the security provisions in the Access to Information Act. I have always found it difficult to understand the rationale for it. The only rationale, as I say in my statement, is that because the Information Commissioner can make a recommendation that can go to the court there is fear in the government that the courts might release information the government feels ought not to be released. That is the only explanation I can give you.
When you start looking at what would be the nature of the information, it is difficult for me to give you an example.
Mr. Leadbeater: The issue of the test the government has to meet to justify secrecy has been dealt with by the Federal Court in a case called X v. Canada (Minister of National Defence) — and the test, in order to justify secrecy on the basis of existing law without considering that certificate, is the following:
I accept the argument of counsel for the respondent that I am not entitled to order disclosure simply because I would have reached a different conclusion than the head of the institution, and can only do so if I am unable to say that no reasonable person could have come to the conclusion, on the facts as presented to me, that the records in question should be exempted. Applying that test, and limiting myself as I must to the evidence before me, I am unable to find that there were reasonable grounds for refusing to disclose the passages...
The use of a section 38.13 certificate will be in a situation where no reasonable person could conclude that secrecy was necessary — that is one. That usually has been, in our experience of 22 years under the Access to Information Act, where there is embarrassment to the government. Otherwise, the test is there, and it is a very low standard to meet. If you cannot use that low standard and must impose the certificate, in our experience, that is usually in situations of embarrassment.
Senator Fraser: There are a couple of areas I want to explore. The first is a follow-up to one of your responses to Senator Jaffer in connection with oversight. I think you said the Northern Ireland case involved one oversight body for all information systems.
Mr. Reid: No, it is for all security systems and all security agencies.
Senator Fraser: Everything they do in the name of security.
Mr. Reid: That is right. That dealt with military, police, arrests, secret service and everything. The budget for Northern Ireland for that service was, I believe, an estimate of aboutCan. $16 million.
Senator Fraser: That is Canadian.
Mr. Reid: Those are Canadian dollars.
Senator Fraser: I mean translated over Canadian geography, population and multiple jurisdictions.
Mr. Reid: I think we spend about $2.5 million on SIRC, which supervises CSIS. I do not know the budget for the RCMP complaints commission.
Senator Fraser: We can find that out.
Mr. Reid: We have a system set up to deal with the RCMP, and we have a system for CSIS. You would be looking at it as an expansion to the military side and to Public Safety and Emergency Preparedness Canada, probably CSE and a few others.
Senator Fraser: Other people have recommended to us the concept of a single oversight body. The attractions of it are obvious, namely, that nothing then presumably would be able to fall between the cracks. Something makes me want to ask, ``Do I want anyone knowing that much?'' That is not necessarily a rational response — well perhaps it is a little rational, but it is also emotional.
Mr. Reid: No, it is a reasonable response to make under the circumstances.
Mr. Leadbeater: May I point out that the government integrates it all through the Coordinator of Security and Intelligence in the Privy Council Office and through the minister's department, so to not have the oversight body doing some careful integration, as well, certainly puts oversight at a disadvantage vis-à-vis the government.
Mr. Reid: There is another problem of having competing institutions doing oversight, which is that they will compete.
Senator Fraser: Yes, I am sure, as do institutions everywhere.
The second area I wanted to explore a little more was your difficulty with section 38.13 and section 87.
I realize that to some extent we have to be talking in hypotheses here, because the case has not arisen, but if I understand correctly you really have two difficulties in this particular area. One is the absence of an appeal mechanismonce a certificate has been issued, and the other I will quote from page 8 of your brief, Mr. Reid. It states:
The interference is not even limited to the information covered by the secrecy certificates.
The issuance of a secrecy certificate for even one record has the effect of discontinuing the entirety of the Federal Court review, even if that review runs way beyond the material covered by the certificate.
In my reading of the act, section 87 I assume is the one that adds new material to section 69 of the Access to Information Act?
Mr. Reid: That is right.
Senator Fraser: That says that once a certificate has been issued — it has to be previously established that the certificate has to be for very narrow grounds, material from foreign entities or national defence or security — a complaint can be laid in relation to a request for access to that information, to the information covered by the certificate. It is the proceedings in respect of the complaint about that information that have to be halted, as I read this.
Why am I wrong? I know you think I am wrong, but why am I wrong?
Mr. Leadbeater: Senator, I believe I can help you. I would ask you to turn up section 87, which you have been referring to, as well as section 104.
As you see, section 104 is supposed to be a parallel — if the Privacy Commissioner is doing an investigation and there is a certificate. If you read (2)(a), it states that all proceedings under this act in respect of that information stop.
If you read the same with respect to the Access to Information Act, it is all proceedings under this act in respect of the complaint. Complaints tend to be about a person asking for information on how they were treated at the border. Some of the documents may end up being covered by a certificate and some will not.
The point we are making is that the way it is written in section 87 the entire investigation of the entire complaint must stop, which is even inconsistent internally in the act, with useof different words, when you compare it with sections 103 and 104. Both of those attempt to try to restrict it to the information, but in a complaint under the Access to Information Act they do not. Part of the reason, as we understand it, is that the Privacy Act will involve a complaint about personal information, your own personal information, whereas a complaint under the Access to Information Act can include all government records, personal or otherwise. The government preferred to have the entire complaint investigation stopped rather than just limit it to the personal information of an individual.
Senator Fraser: That is rewritten in the same terms assections 103, 104. You have now made it all clear to me.
Senator Joyal: I regret that I assented that the main witness, Mr. Reid, did not really go through his brief orally. We have the opportunity to be broadcast, and I believe there are very substantial points in your brief that many of our viewers will not have access to, because to get a printed copy they would have to ask for the minutes of the committee. The points in your brief are very important. I would like to come back to them in a seriatim fashion so that the substance of the brief is all on the table.
The first argument that you develop in your brief, as I read it, is that the rationale underlying the reason C-36 established that system of certificate through which everything you do falls — either in the form of something you want to do or something that you are doing, like you answered Senator Fraser, in the course of an investigation. If you are in the course of an investigation, there is an order to stop, you stop, there is no appeal, this is it, and it is over. The rationale behind that, as you quote the minister, is that our allies, that is, countries that provide the police service of Canada with special information, would feel that they would run unduly the risk that that information would become public in Canada in one way or the other, so that the Government of Canada has to give them full assurance that any information passed to Canada will remain secret. This seems to be the rationale of the minister, as you quoted in your brief on page 5.
Later on in your brief, on page 11, it states:
Personally, I find it hard to believe that the government of any of our major allies would insist, as a condition of information sharing, that decisions about secrecy in Canada be entirely free from the rigors of statutory standards and independent review.
You go on.
In the conversations my office has had with our allied jurisdictions, it is our understanding that they all want the same thing: They want the simple assurance that what needs to be protected can be protected. None of them doubts Canada's ability to do so under the existing Access to Information Act.
Therefore, you clearly stated that, from your own investigation with allies of Canada — and of course I will ask who those allies are — they feel that the Access to Information Act as it stands is enough protection for them to continue transferring secret information to Canada.
Could you expand on the kind of initiative that you took to check that with the allies of Canada, as you stated on page 11?
Mr. Reid: Yes. Mr. Leadbeater was in charge of that project.
Mr. Leadbeater: You may recall that the witness for the government originally was Mr. Richard Mosley, now a member of the Federal Court. Mr. Mosley and I had many conversations about this. I particularly asked him if he would be prepared, or the minister would be prepared, to provide to us any correspondence they have had with any ally wherein there was a concern expressed about Canada's ability to protect sensitive security information, or where there was a hesitancy to provide. I told Mr. Mosley that I did not have to know what the information was but that there must be a communication if the Government of Canada has come out with a piece of legislation based solely on that rationale. Mr. Mosley was unable or unwilling to provide any such information, as was the minister.
We then decided to communicate with our own counterpart institutions, access to information and privacy offices, in other jurisdictions. They do not have one in the United States; in the United States it is actually the Department of Justice that takes this. There are counterpart organizations in Australia, New Zealand and Great Britain with whom we communicated. None claims to have any knowledge of a fear on the part of the security agents they oversee that Canada was weak in its ability to protect. In their own jurisdictions, all had the ability to independently oversee this information.
That caused us to suspect that the reason given that allies have expressed concern about Canada's ability is not the full story and may not even be part of the story.
Senator Joyal: In your opinion, who would be at the origin of that system of certificate issuance banning you from doing your job in a satisfactory context, if you come to the conclusion that it was neither the U.S. nor Great Britain, or any other country with which Canada shares an agreement of sensitive information? What would make it more or less a pre-condition that you be excluded from the system to continue to cooperate with Canada? What are the arguments or who within the system would have provided the information you tell us should be there?
Mr. Leadbeater: It has been at the top of the wish list of most bureaucrats to be free of the Access to Information Act. It is not an easy rigour to put bureaucrats through. In the security intelligence world, that has been at the top of their wish list, and 9/11 presented the opportunity for everybody to get out their wish list fast. That was one of them and is one of the reasons you have not seen it used very well because the government realizes it has to admit when it uses it that there is no reasonable justification for it. That is the test. There is no reasonable justification for secrecy but we want it.
I do not think it came from political levels. It came from the bureaucracy in the intelligence community.
Mr. Reid: It goes to the heart that nobody likes to be accountable.
Senator Joyal: I am trying to conceptualize here the systemic approach to the need of leading operations having to remain secret. You do not want to inform the people under investigation. The law protects the rights of those people. The government, police services, secret services and so forth have to go to court. It is only during a limited period of time that they can uncover information. If they do something wrong, they have to seek authorization. There has to be a check and balance in the system.
On the other hand, all of that needs a reasonable justification. The system cannot avoid satisfying the balance of leading operations with the need to explain to proper authorities the reason the information sharing or the disclosure of information should not be given and for what period of time.
Essentially, when we operate within the rule of law, to me it is not only that there has to be a text in the legislation but there must be a system and a court. If I can use an expression, you need two to tango. The rule of law means you need not only legislation but also a judge or a judicial apparatus to implement and oversee the rule of law.
When there is a special procedure like the certificate, we have to understand the second aspect — that is, who will oversee the security certificate? Who will be satisfied that the certificate banning the disclosure of information is done properly and in due regard with Canada's obligation internationally and with the efficiency of the system? As I understand it, there is a notion of the secrecy of operational initiative.
In the way you present your case, it seems the legal system that should oversee the assurance of the certificate does not satisfy the fundamentals of the rule of law. In other words, it remains secret within the secret world. There is no legal system at this point entrusted with the responsibility to make sure that when there is such a certificate there is a capacity to balance those who request a certificate. As you tell us, one of the key reasons for which a certificate is in the system is that our allies would request it. As far as you have been able to check in the other jurisdictions with which Canada cooperates, they do not have that kind of system. There is no such system that goes as far as the Canadian system goes. Am I right or wrong?
Mr. Leadbeater: When we appeared earlier, we gave a chart to the committee of the other jurisdictions and what oversights they have. We would be happy to provide that again. We would have to see if there have been changes.
Senator, when we initially raised these concerns, the government went back to the drawing board and came up with an amended bill. In the amended bill, we saw for the first time the 38.131 provision — on page 93 of the bill, I believe. It allowed a single judge of the Federal Court of Appeal to get involved. Before that, there was no oversight whatsoever of a certificate. That is an extremely interesting provision because we claim it is just window dressing. There is no substantive review by a court under that provision. On page 93, 38.131(8) sets out the test about what a judge is to do when looking at a certificate.
If the judge determines that some of the information subject to the certificate does not relate either to information obtained in confidence from, or in relation to, a foreign entity as defined in subsection 2(1) of the Security of Information Act, or to national defence or security, the judge shall make an order varying the certificate accordingly.
If there is any information in the hands of the Department of Foreign Affairs, National Defence, CSIS, Public Safety and Emergency Preparedness and so forth, it will meet the ``relating to'' test. Surely, that is not a substantive review. The substantive review you see in 38.02, the review system that allows disclosure to be objected to and go through the regime up to the Federal Court, allows the Federal Court to examine whether there is a public interest in disclosure that outweighs the national security interests.
The point you made in your question is a point not lost on the government last time, but how it reacted with 38.131 is something that should not fool you. It did not really solve the question you raised.
Senator Joyal: Did you check how the British system works in relation with the review of security certificates? Judges are more or less clear, and they develop a capacity to deal with difficult or related cases dealing with security so that we know the court has professional knowledge and expertise to review those kinds of issues. I understand the preoccupation of government. They have to be sure the system remains tight for the time it needs to remain tight. On the other hand, the legal system operating in reviewing it has to be of the same reliability we want.
Have you considered how we can improve the system in order that we can have a satisfactory review system while maintaining the guarantee of secrecy for the time needed?
Mr. Leadbeater: That was a preoccupation of the House and Senate at the time the Access to Information Act and the Privacy Act were passed in 1983. All the cases that would get to court under either of these acts were cases in which the government thought secrecy should prevail. Remember that it was after the War Measures Act and it was based on a concern that we may have a situation of apprehended insurrection or terrorism in this country, and we needed that protection.
They included requirements that certain kinds of national security cases be dealt with only by the associate chief justice or someone properly cleared and appointed by the chief justice and that there be separate and special security arrangements measures taken with respect to the information. That is now in the Access to Information Act. This bill suspends even that if the certificate comes into force.
Senator Joyal: To me, that seems to satisfy both objectives. One, you do not take the risk of going to court when, for various reasons, the risk of disclosure exists. I understand the government's responsibility to its allies and the efficiency of an operation. On the other hand, to exclude it from the court or to limit it to a review by the court in such a way that, in practical terms, it is worse than before seems to be not the best way to go. We should have the capacity to do a legal review of a decision that maintains the reliability of the legal process with judges.
In 1983, I was a member of the other place and I remember that it was specifically attributed to some justices. Although I would have to check, I believe that in Britain they have taken a similar approach with certain delicate issues. They go to judges who have been specifically trained and sworn for that kind of justice, similar to the way in which we have specific family court and tax court judges. In matters of security, you want to address yourself to a person who has the capacity to understand all the intricacies of the issue.
Mr. Leadbeater: In our own legislation, only one of four specially delegated investigators can conduct investigations of information withheld on the basis of section 15 or 13, which are the national security and the ``provided in confidence by foreign governments'' sections of the act. They are especially security cleared and properly indoctrinated with respect to each piece of information they get. They are prevented by statute from disclosing it for life, regardless of how innocuous they think it is. The careful balancing that was done in the early days of the Access to Information Act can be brought back by eliminating from this legislation section 38.13 of the Canada Evident Act.
Senator Joyal: We could revert to page 83 with a definition of specialized judgeship that would maintain the security of the system. That would satisfy you that the process is sound and the government would be satisfied that, if it needs to maintain secrecy about an issue, it can do so with the properly specialized people.
Mr. Leadbeater: That is correct. In a system where we thought we had to keep things from judges because one of them might go crazy, nothing would go to court. You are right; we have a system of safeguards. I do not think this law is based on the contemplation that a judge may go crazy, and I know of no other law based on that.
The Chairman: Mr. Reid, we are doing this public review three years after the act was passed. We are listening carefully to what you are all saying today.
Have you had direct conversations with the Minister of Public Safety and Emergency Preparedness on these issues again as we revisit it three years later?
Mr. Reid: No. We have had no conversations with the Minister of Public Safety and Emergency Preparedness.
The Chairman: Would that be a useful exercise, or is it premature?
Mr. Leadbeater: On an ongoing, everyday basis, we deal at the officials level with the national security issue of balancing secrecy and openness in the context of complaints. We have very good lines of communication on those issues. However, we were not consulted by the minister about whether this bill should be changed at any point.
Senator Jaffer: Going back to the issue of certificates, Mr. Leadbeater, you said you believe government normally does not want to release information that is embarrassing. Is sending someone from our country back to a country where torture is carried out the kind of embarrassment you are thinking of? I am thinking of security situations. What kind of embarrassment do you envision?
Mr. Leadbeater: I will give you an example. A security analyst for one of our security services was involved in preparing security assessments for the government prior to the fall of the Berlin Wall. When the Berlin Wall fell, he realized how inaccurate those assessments were. Pretty well every security agency in the Western world got those wrong. They were expecting a fairly vibrant continuation of the Communist domination of East Germany.
This individual made an access request for a copy of the security assessment, which he wanted to frame and put on his office wall as a reminder of how fragile the intelligence game is. His access request was denied and he complained to our office. We had discussions up to the ministerial level about what harm there was in releasing this. Everyone in the world got it wrong. The head of the FBI and the CIA in the U.S. were giving interviews on Meet the Press about having got it wrong.
We said that if the information were not released we would have to go to court because we could not see that any reasonable person would consider this harmful. At that point, the government relented and gave the information to the individual but said that if they had the power of a certificate, they would not have released it.
Senator Jaffer: This was before certificates?
Mr. Leadbeater: Yes. The information was provided and Canada did not fall. It did not stop getting information from its allies, but it was a moment of some embarrassment to the security intelligence community that they got it so wrong.
Senator Jaffer: I am more concerned now with the certificate and what we hear about our government perhaps sending people back to countries that perform torture.
Mr. Leadbeater: I have no first-hand knowledge about the security certificate under the Immigration Act and its use and how that is affecting decisions about secrecy.
Senator Fraser: We talked earlier about how you had two difficulties with the system, and we talked about one of them, which was the breadth of the coverage. The other is the appeal mechanism. You have made it plain that you do not think that section 38.131, which allows for an appeal to the Federal Court of Appeal, is adequate. I am somewhat taken aback by that. In our system, we tend to rely on the courts to be the best, fairest and most impartial adjudicators among competing interests.
I think it was Mr. Leadbeater who referred specifically to 38.131(8) and said that anything under the Department of National Defence or Public Safety and Emergency Preparedness would qualify, but why would you say that? We know that the Department of National Defence does all kinds of things that are not necessarily related to national defence — for example, it deducts payroll taxes, hires clerks and probably does outreach programs into schools and all kinds of things that are not related to national defence. I am reaching out to the extreme here to make the point.
Why do you think a judge would not be capable of distinguishing between what genuinely relates to national defence and all the other stuff?
Mr. Leadbeater: Do you use the term ``relates to'' synonymously with ``injurious to?''
Senator Fraser: I am quoting here from the certificate.
If the judge determines that some of the information subject to the certificate does not relate either to information obtained in confidence from, or in relation to, a foreign entity as defined in subsection 2(1) of the Security of Information Act, or to national defence or security, the judge shall make an order varying the certificate accordingly.
That is where I get my words.
Mr. Leadbeater: Our point is that a judge can determine if it relates to national security, and that is the task that has been given to the judge. We think the task that should be given to the judge is this: Would it be injurious to national security to have it released? That is a different test.
It does exist in the 38.02 situation, but this is the fail-safe. If they go through 38.02 and a judge says that you do not even meet a reasonable man test, there is nothing I can see, it is going to go out. The government then can say, no, it is not going to go out. We will do a 38.13 certificate, and if it gets reviewed, it is by a single judge of the Federal Court of Appeal with no appeal from that, and it will be on a basis of a ``related to'' test rather than an ``injurious to'' test.
You are right. There may be a situation where the judge would say this is the minister's grocery list. It does not relate to, but that is not the type of information it will be. It will be some national security-related information, but not all national security information is injurious if released. We see it every day in front of the Maher Arar inquiry or the House of Commons and so forth, but it is making that call. What types of national security information are going to be kept from the public and what types are not going to be and who will oversee that.
Senator Fraser: I am not there; I am not a party to the proceedings. I am just reading the newspapers like everyone else, but in the case of the Maher Arar inquiry, some of it is going on in secret for precisely these kinds of reasons.
Mr. Reid: We do not know.
Senator Fraser: Somewhere along the line you have to trust your judge.
Mr. Leadbeater: Exactly, but this provision is saying at some point you can only trust your government. It is not allowing effective independent review.
Senator Fraser: We are into hypotheses here because no case has arisen, right?
Mr. Reid: That is correct, but in the example that Mr. Leadbeater gave to Senator Jaffer —
Senator Fraser: I understood that.
Mr. Reid: It is very clear.
Senator Fraser: It was quite entertaining.
Mr. Reid: ``Related to'' means a document that is not really important or secret any more. It would pass the related to test.
Senator Smith: In terms of the legislative change you are advocating, I am interested in two particular areas. First, there was a question from our chair as to communication with the government. Do you ever try to sit down and say, ``Let's clear the air on this. Here is where we are at, you tell us where you are at,'' or do you do it through documents such as your presentation? What is the real dynamic? How do you characterize the dialogue you have with the ministers responsible for making these decisions?
Mr. Reid: It is very difficult for the Information Commissioner to get in to see ministers. This has been a characteristic of my time. It has been easy for me to get in to see ministers on certain subjects, subjects that are not substantive to the office of the Information Commissioner. For example, I have gone to see a number of ministers about the possibility of my term as Information Commissioner being extended and have had no problem seeing them. I have attempted to see a number of ministers on a variety of other issues and have not been able to do so.
I have had no difficulty, however, seeing the President of the Treasury Board on a couple of questions that were important to me, but it has been very difficult to see other ministers. In the case of the Minister of Public Safety and Emergency Preparedness, I did not try.
Senator Smith: You have not tried in this instance?
Mr. Reid: That is correct.
Senator Smith: I will leave it up to you as to whether you might request a meeting in writing. I just wanted to check that out.
I wish to quote from page 11 of your presentation.
Personally, I find it hard to believe that the government of any one of our major allies would insist, as a condition of information sharing, that decisions about secrecy in Canada be entirely free from the rigours of statutory standards and independent review. In the conversations my offices has had with our allied jurisdictions, it is our understanding that they all want the same thing: They want the simple assurance that what needs to be protected can be protected. None of them doubts Canada's ability to do so under the existing Access to Information Act.
Let us take our neighbour to the south. Without meaning to be partisan, which in matters like this I do not think I am, we have a Republican administration with a certain mindset. I have never thought of Mr. Rumsfeld as a small ``L'' liberal or someone who had huge respect for some of the issues that might be important to people here and did not feel that way about Mr. Ashcroft.
Do you really think this accurately describes the mindsets of the people at the top who ultimately would make these decisions?
Do the people your office has been talking to go on the record on this, or is this all very hush-hush? How do you characterize what I am getting at here? Give me your view of howopen-minded our friends are to the south.
Mr. Reid: Mr. Leadbeater did the work on this, so I will ask him to answer.
Mr. Leadbeater: Senator, you are right. I explained earlier in an answer that it is the United States Department of Justice with whom we deal on access to information issues because there is no counterpart to our office in the United States. They do not have a commissioner. You go right to court if you are going to challenge.
The United States Department of Justice has not asked for, nor do they have in the United States in the Patriot Act or in response to 9/11 a provision similar to section 87 in our act. They did not consider they needed it. They make decisions, which are challengeable in the courts, pursuant to their own Freedom of Information Act. There is no prohibition on court jurisdiction to hear these kinds of issues. We asked, as I mentioned in my earlier question, at the time the bill was being considered whether there was any concern on the part of security intelligence agencies in the United States about Canada's Access to Information Act and its vitality to protect that kind of information. We were told no.
Senator Smith: It is nice to hear that. When I listen to some of these gentlemen talking about certain things, those are not the vibes I pick up. It is nice to hear that. I wanted to get your feel for it.
Senator Joyal: Mr. Reid, you mentioned in your opening remarks a seminar you attended. You mentioned that one of the key features of the needed oversight is that the responsibility should be for all the operations that are related to ``fighting terrorism.''
Are there other characteristics that we should be told about how it should operate? In other words, what are the conditions for such an oversight to be effective? You mentioned that it should cover everyone, so that the left knows what the right does, as well as the centre, so that there is an overview of everything. However, what are the other conditions for successful and efficient operations of an oversight mechanism or body, according to the opportunities the seminar gave to the participants?
Mr. Reid: I came away with the feeling that the operation of the SIRC, which supervises CSIS, was considered an excellent world model for that kind of supervision. The only other example that reaches that far is the Northern Ireland one that I referred to earlier, but everyone was full of praise for the work that was done by the SIRC. I think that is an appropriate model.
Mr. Leadbeater: Could I just add, that, again, this is just reportage. It is not based on our expertise.
Senator Joyal: I do not think any member around the table had the opportunity to attend, and the paper was very laconic in terms of reporting on the substance of the decision. As you were there, you were an eyewitness or ear- witness.
Mr. Leadbeater: It surprised me to hear so many people, including some from the civil liberties committee, like Mr. Alan Borovoy, suggesting that maybe we need to rethink the separation of the security service from the RCMP, that there are some very important values of professionalism in the police officer that might be very useful in a security and intelligence world and that, for effectiveness purposes, a continuing competitiveness may not be serving either the public interest or the national interest, and for oversight purposes it may be easier. Another thing that surprised me was to hear serious people, even in the civil liberties community, talking about rethinking that centrepiece of the MacDonald commission way back when of separating out the security service from the RCMP.
As I say, that is mere reportage. I have no professional feeling about that one way or the other.
Senator Joyal: On the basis of your own experience, how would you see that oversight working in practical terms? What is the operation? You mentioned, of course, the $16 million that Northern Ireland seems to have in the budget for that. In the context of Canada, what are the links that should be established between that kind of oversight mechanism and Parliament, because at a point in time Parliament remains the one that has to be accountable? The minister is accountable to Parliament, but finally it is Parliament that has to be the body that should receive the reports and make sure that there is proper accountability in the system.
How would you see that operating on the basis of the discussion?
Mr. Reid: On the basis of the discussion, I think the example of reporting to Parliament that SIRC has at the present time — it does not report to Parliament; it reports to the minister and out comes the reports.
Maybe you should be thinking in terms of some formula whereby either the report comes directly to the House the way it does for the officers of Parliament, in which case, you have an opportunity to look at them in detail, or some kind of joint reportage, where the oversight committee reports both to the minister and to the Parliament.
I know you are grappling with this whole issue of whether there should be a House of Commons or a Senate or a joint committee dealing with security matters, and you have to ensure that if that committee comes about it does have all the powers it needs to be able to question the SIRC or any other administrative oversight groups as to their effectiveness and what they are doing.
Senator Joyal: In terms of operation, how would you see the distribution of responsibility within that kind of oversight body?
Mr. Reid: The organizations have to be supervised by one agency, because, in effect, the new law created almost a seamless web. It took the RCMP back from a policing agency, so it now has security responsibilities. For example, the security responsibilities for CSIS are covered by the SIRC, but it is not clear that the RCMP complaints commission covers that automatically. You have a big chunk of security stuff that is not being accountable at all, in the sense of a formal accountability mechanism.
You have to be able to do that. It becomes difficult to determine what a policing function is nowadays and what a security function is. Therefore, you must have much better communications between the RCMP and CSIS, and it seems to me that you must have the same kind of supervision. Again, you have to take into account the military and the emergency preparedness sides of it as well.
If you have a body that supervises them all, it does help ensure that the information flows work well between those organizations as well.
Senator Joyal: In terms of apparatus, how big, according to the Northern Ireland experience, is that body?
Mr. Reid: That I cannot answer.
Senator Joyal: In other words, are we creating a bureaucracy on top of another bureaucracy, or are we having the capacity to establish a structure that is light enough to be operational and efficient with limited means? We know that Northern Ireland is not exactly sometimes the most peaceful country in terms of terrorism.
Mr. Reid: The feeling of the group was that you have to have it relatively light because you really want them to do the work of protecting us. Therefore, you want to have an accountability structure that will deal with those cases that are important, and to deal with those cases thoroughly. Again, the public reports of the SIRC can give you a model on which to base a larger organization if you wanted to go that route.
Senator Joyal: Is your suggestion that we should expand the mandate of SIRC to cover not only CSIS but all the other aspects related to the anti-terrorism initiative taken by the government, which would include, of course, your agency and other agencies of the government that are directly or indirectly related to that?
Mr. Reid: That would be a possibility.
Senator Joyal: In other words, we would not create something new. We would have expertise based on past experience in a body that, at least according to those who attended that seminar, offers reliability and satisfies the objectives of the government and Parliament.
Mr. Reid: That is correct. You are correct that you should start with something that works and is effective. I think the judgment of most is that SIRC is both workable and effective.
Senator Joyal: In other words, we should review the mandate of SIRC and determine which aspects of its mandate are not already within the ambit of its operation. We should review the relationship between SIRC and Parliament to ensure that, if there is to be a joint parliamentary committee of Parliament as suggested by the Minister of Public Safety, we connect that newly expanded SIRC with the functioning of the committee. That would seem to you reasonable and feasible in the context of the system?
Mr. Reid: I believe so.
Senator Lynch-Staunton: My colleagues have covered the issue very well and the answers have been very valuable.
Although it may sound naive, I find it interesting that three of the most contentious provisions of Bill C-36 have yet to be used by the government, those being preventive arrests, investigative hearings and information certificates.
I would like to think that is because the government is being very cautious because of the warnings and concerns expressed three years ago by both witnesses and committee members, both here and in the other place, and I hope that these hearings will have the same effect, unless we can change the law, which I think is highly unlikely based on testimony given by the minister here. I did not get the impression that she is willing to make any changes that are more than cosmetic.
Mr. Reid, if you are still keen to meet with the President of the Treasury Board and are in the vicinity at seven o'clock tonight, he will be appearing before us as a witness at that time.
Mr. Reid: The President of the Treasury Board and I have had no difficulty. He has been the exception.
Senator Lynch-Staunton: Who is the one you have had trouble with?
Mr. Reid: I do not want to say.
Senator Lynch-Staunton: You can tell me after.
Mr. Reid: In response to your first point, one of the red lights in the system has been the decision by the government to hold the Maher Arar Commission to look into the situation of Mr. Maher Arar. I think that has forced a rethink within the system of how things are done and how decisions are taken, which I believe is very healthy.
It is frustrating that the report of Justice O'Connor, which he had edited to meet the security requirements as he understood them, went through another process in which there were significant portions removed, which he claimed did not impact national security at all.
One of the really difficult situations you have to deal with in terms of national security is a definition of ``national security'' that protects what has to be protected and releases that material that can be legitimately released. It is a conundrum. It is a difficult question of judgment, but one wonders what is going on if Mr. Justice O'Connor cannot make his own report. This puts the clash between access to information and security in very clear terms for the committee.
I wish you luck in trying to deal with these dilemmas and I thank you very much for the opportunity to appear before you.
The Chairman: Thank you very much. These are difficult issues.
The committee adjourned.