National Defence Committee on Feb. 14th, 2024

[The Chair, Liberal, John McKay]

Thank you, Mrs. Lalonde.

You have two and a half minutes, Madame Normandin.

[Christine Normandin, Bloc, Saint-Jean, QC]

Thank you, Mr. Chair.

Mr. Drapeau, my next question has to do with the decisions made by people who work in the disclosure of information. I imagine that these decisions are considered administrative in nature.

I'd like you to talk about the degree of motivation needed to respond to decisions concerning a time extension or a refusal to provide documents, for example.

Is there any obligation to specify the reasons for refusing to provide documents? If so, is that obligation being respected?

[Col (Ret'd) Michel Drapeau]

There are very few.

In my brief presentation, I mentioned the case of an individual who is subject to disciplinary measures that could result in their compulsory discharge in the near future.

However, a video recorded during a social event at a golf club could exonerate this person of the misconduct of which he was accused. So we asked for a copy. A week or two after we submitted our request, we received a letter saying that the entire video was excluded from the file and that we couldn't have it. No other explanation was provided. It's astonishing.

This person's career is on the line.

[Christine Normandin, Bloc, Saint-Jean, QC]

Does that mean we should increase the requirements for written reasons to justify refusals?

[Col (Ret'd) Michel Drapeau]

By the time the results of the complaint have been received, the person will probably be the subject of a compulsory discharge and will have to deal with everything else.

That's how the decision is made. Our only recourse is not to go to court, although that's what we would like to do, but rather to follow the complaint process.

[The Chair, Liberal, John McKay]

Madam Mathyssen, you have two and a half minutes.

[Lindsay Mathyssen, NDP, London—Fanshawe, ON]

Before my time begins, just so I'm clear, the briefs that Colonel Drapeau mentioned have been sent to the clerk but haven't been distributed yet. Is that correct?

[The Chair, Liberal, John McKay]

Yes. They're in translation.

[Lindsay Mathyssen, NDP, London—Fanshawe, ON]

Okay. That's great. I just wanted to make sure.

I want to go back to the Afghan detainee files and the mismanagement of that entirely and the transparency of the government at the time with the public and with parliamentarians.

What changes should have been made then that we still don't see now? What would you both, Colonel Drapeau and Mr. McSorley, recommend from that going forward now?

[Tim McSorley]

That's a good question.

I think we touched on that with the independent civilian oversight. Looking at the review bodies as they currently exist, there are exclusions for some kinds of information. For example, both NSIRA and NSICOP have restrictions around being able to access information that may prove injurious to national security or defence, and what could be excluded is incredibly broad. Also, in terms of access to information that relates to ongoing investigations, there's an incredibly broad exclusion.

There are ways to solve this. If it would be injurious to a criminal prosecution, restrict it to that. If it's an investigation that's time-limited and it's necessary for Defence, for example, to come back to the committee and say it is no longer injurious to its ongoing investigation so that others can resume their investigation....

Right now, those are the kinds of gaps and issues that we're concerned would still hinder the ability of these committees to fully investigate something like the Afghan detainee scandal.

[Lindsay Mathyssen, NDP, London—Fanshawe, ON]

Go ahead, Mr. Drapeau.

[Col (Ret'd) Michel Drapeau]

I agree.

[Lindsay Mathyssen, NDP, London—Fanshawe, ON]

You agree, and those documents need to be released.

[Col (Ret'd) Michel Drapeau]

Yes.

[Lindsay Mathyssen, NDP, London—Fanshawe, ON]

Okay.

Thank you, Mr. Chair.

[The Chair, Liberal, John McKay]

Thank you.

Mr. Bezan, you have five minutes.

[James Bezan, Conservative, Selkirk—Interlake—Eastman, MB]

Thank you.

Colonel Drapeau, in your earlier comments, you were talking about the use of code names. In the Vice-Admiral Mark Norman case, they called him the “Kraken” to get around access to information requests. Would you call that illegal?

[Col (Ret'd) Michel Drapeau]

Yes.

[James Bezan, Conservative, Selkirk—Interlake—Eastman, MB]

What type of reprimand should have been brought forward against the commanding officers who were responsible for it?

[Col (Ret'd) Michel Drapeau]

The act doesn't provide for any punitive measures, but there should certainly be disciplinary measures for taking against an act of Parliament.

[James Bezan, Conservative, Selkirk—Interlake—Eastman, MB]

We received information in articles that were published after this came to light that the commanders who were responsible said, “this isn't our first rodeo”. The suggestion is that it is a routine proceeding within the Department of National Defence and the Canadian Armed Forces to use code words as a way to ensure that documentation isn't released through access to information.

[Col (Ret'd) Michel Drapeau]

The Canadian Forces has a whole program of remedial measures, from a warning to counselling and probation, for any deficiency in conduct and the like, so it had, in fact, the ability to sanction such a performance and protect both the rule of law and the constitutional principle of being able to request information and have access to it.

[James Bezan, Conservative, Selkirk—Interlake—Eastman, MB]

You've written in the past that freedom of information “serves both as a ‘silent auditor’ guaranteeing accountability, checking corruption, improving in many areas of human rights, as well as an ‘open microphone’ encouraging participation in government by every sector of society”. When you think about transparency versus national security, under transparency you get accountability. You get policy analysis like Mr. Shimooka does. You get media access and availability to the general public. It supports us as parliamentarians in making sure our democracy is strong.

Is there any check on that versus national security? There are the regular classifications of secret, top secret or unclassified information, as well as the responsibility under the National Defence Act of those who take the oath to serve this country and work in the Department of National Defence and the Canadian Armed Forces. Aside from those, are there changes we need to be making in the legislation to ensure that democracy is the ultimate winner?

[Col (Ret'd) Michel Drapeau]

The only possible change is to provide the Information Commissioner with the capacity to monitor and, where required, to inspect, visit and review some of those things that would be accessible to her—the files, the complaints and everything else.

[James Bezan, Conservative, Selkirk—Interlake—Eastman, MB]

Mr. Shimooka, is there anything you want to add to that as a policy analyst? How has the cloud of secrecy that's developed over the last eight years impacted your ability to do your work and provide advice to Canadians, parliamentarians and others on the programs being run, especially on procurement for the Canadian Armed Forces?