Bill C-22 (Historical)

An Act to establish the National Security and Intelligence Committee of Parliamentarians and to make consequential amendments to certain Acts

This enactment establishes the National Security and Intelligence Committee of Parliamentarians and sets out its composition and mandate. In addition, it establishes the Committee’s Secretariat, the role of which is to assist the Committee in fulfilling its mandate. It also makes consequential amendments to certain Acts.

[Suzanne Legault]

Currently on our inventory, we have 400-and-some files dealing with national security. We see everything that we need to see. Whenever there are requests for information, we see the full gamut of the information. However—and this is an interesting option for the committee being formed under Bill C-22—when we're dealing with highly sensitive information, we go on site to view and review the information. We don't actually take it out physically from where it is. The information doesn't leave it's location, if it is at CSIS or CSEC or wherever. As I said before, the fact that the committee would be provided with the information does not mean that the information would become public. I think it's very important to understand the distinction. For a review committee or a review body to have access to information to properly assess what it is assessing at the time—and, as I said, the mandate is very broad—it really does need to see the relevant information. Seeing the relevant information does not mean disclosing the information.

[Suzanne Legault]

Well, first, on the very specific, on the cabinet confidence, the way it is in Bill C-22, it actually refers to the Canada Evidence Act. This definition of cabinet confidence is not the same definition as we have in the Access to Information Act. The jurisprudence has actually interpreted that to include some weighing of public interest, which I think is actually good here in C-22, the way that it's referring to the Canada Evidence Act for cabinet confidences. That's better than what we have in the Access to Information Act.

As I said, I do believe that the committee needs to have access to the information to do its work. There are too many ways to preclude information from being shared with the committee for the committee to do its work. What I did recommend is if, at the end of the day, Parliament decides that it's appropriate to keep these caveats as they are here, at the very least, if there were a discretionary component in a public interest override and the possibility of having the ministerial decisions reviewed in Federal Court, it would actually provide some measure of oversight on the exercise of discretion to disclose or not disclose to the committee. At the very least that would provide a little bit of discipline in the overall scheme, which I think would improve it quite significantly.

Under the access act currently, the exemption for national security is actually a discretionary exemption. So what you have in Bill C-22 is actually more restrictive than what we have currently under our Access to Information Act. I think we should keep the same model. I mean, why not? It has worked. As I said, it has not resulted in breaches of national security information certainly in a review function of my office.

The committee is supposed to be specifically mandated to do this work. It's going to be subject to significant penalties if there are breaches of security. Parliamentary privilege does not apply to protect the members. The Security of Information Act will apply in terms of consequences. Those are very, very serious consequences. We are putting in place a scheme where the participants in this committee, the members of this committee, will have a very high threshold of responsibility with this information, so I think the flip side should be that we should provide the committee with the necessary information it requires.

If Parliament decides to keep all of these restrictions, then at the very least there should be discretionary public interest override and the possibility of judicial review. The parliamentary budget officer has the ability to get these decisions on disclosure reviewed by the Federal Court. My office has the ability to do that. It provides a good measure of discipline in the process when the decisions are made not to disclose because the participants know that it is subject to judicial review by a court. I think that would at least provide some discipline extra to Bill C-22 that might actually go some way. If the purpose is to see with experience how this unfolds, it will allow us to see how it unfolds, but it will provide the potential scrutiny of the Federal Court which, by the way, has a lot of expertise in reviewing matters of national security in the first place.

[Suzanne Legault, Information Commissioner of Canada, Office of the Information Commissioner of Canada]

Thank you, Mr. Chair. Good afternoon, honourable members of this committee. It really is a pleasure for me to be here today. I'm very grateful to have been invited to speak to Bill C-22.

First, I wish to commend the government on tabling legislation to create a parliamentary oversight body for our national security agencies. The recommendation to create such an oversight committee dates back many years. The committee could, with a properly designed legal framework, do much to increase public trust in our national security agencies. However, I do have some concerns with the bill. These concerns are very much based on my own experience in an oversight role as the Information Commissioner of Canada. My comments today will be directed, first, to the review function of the proposed committee, and second, to the application of the Access to Information Act to the newly created secretariat that will support the committee.

With respect to the review function of the committee, I have concerns with the following six areas: first, the ministerial override of the committee's review function; second, the committee's ability to obtain information; third, the time frames to provide information to the committee; fourth, the private nature of the committee's meetings; fifth, the limitations placed on other review bodies when collaborating with the committee; and sixth, the final nature of decisions made by ministers.

The committee will have a broad mandate to review matters related to national security and intelligence. A broad mandate is important as it will allow the committee to direct its inquiries as it sees fit.

However, clause 8(b) of the bill undercuts this mandate by providing that the minister of a department may override a review where the minister determines it would be injurious to national security.

This override essentially turns the committee's broad mandate into a mirage. It will undermine any goodwill and public trust that may have built up towards the committee and, by extension, the national security agencies it oversees.

My next area of concern will Bill C-22 is the exclusions to the committee's right to obtain information. These are found at clauses 14 and 16 of the bill. Based on my seven years' experience as Information Commissioner, I can tell you that exclusions to oversight significantly undermine the review function. Under the Access to Information Act, but for a few exclusions, I have access to all records during my investigations so that I may independently review decisions on disclosure.

The notable exception to my review power is cabinet confidences. Cabinet confidences are excluded from the application of the Access to Information Act. This means that when I investigate a complaint about cabinet confidences, I cannot require that those records be provided to my office. I cannot independently assess whether they are, in fact, cabinet confidences and therefore not subject to the right of access. This severely curtails my ability to provide effective oversight of this exclusion. I still do investigate complaints about the application of cabinet confidences to the best of my abilities. In fact, in 2015-16, I was able to conclude, in 12% of complaints closed, that the cabinet confidences exclusion was not well applied, even without being able to see the records. I can tell you that consistently, year over year, that percentage varies between 10% and 20%, and that's without seeing the records, and it's only on cabinet confidences. Based on my experience, I am of the view that the committee will face difficulties in fulfilling its mandate if it cannot obtain relevant records.

In contrast to the committee, as the Information Commissioner of Canada, I have the authority to review records related to national security and intelligence. There is, in fact, a large discrepancy between the records that I can see and what the committee will be able to see. I have prepared a chart setting out those differences.

Based on my experience viewing those records, there is a tendency for institutions to interpret exemptions in an over-broad manner.

My final concern related to the exclusions at clauses 14 and 16 is that they include no explicit consideration of the public's interest in providing the committee with this information. A public interest component would require that the minister balance the public interest against the national security interest when deciding whether to disclose the information to the committee.

My third area of concern with the bill is found at subclause 15(3). This provision states that, after the appropriate minister receives a request for information, he or she must provide or cause the information to be provided to the committee “in a timely manner”. Similar language to this is used in the Access to Information Act, which provides that extensions in responding to access requests may be taken for “a reasonable period of time".

I have found over the years, as have all my predecessors in the last 30 years, language like this to be vague and open to abuse. In the access world, delay is a frequent subject of complaint by requesters. Where timeliness is at issue without resolution, requesters and I can seek redress from the Federal Court. Under Bill C-22, there is no such dispute resolution mechanism should information not be provided to the committee in a timely manner.

My fourth concern with the bill relates to the private nature of the committee's meetings. Clause 18 provides that:

Meetings of the Committee are to be held in private if any information that a department is taking measures to protect is likely to be disclosed during the course of the meeting or if the Chair considers it to be otherwise necessary.

This strikes me as an unclear threshold for the committee to go in camera and could easily result in nearly all of these meetings being private.

I next wish to discuss clause 22 of the bill.

This clause provides that the review bodies of the RCMP, CSIS and CSEC may provide information under their control to the committee related to the fulfilment of its mandate. In fact, these bodies are directed to co-operate with the committee at clause 9 of the bill.

However, this direction to co-operate and share information is weakened by clause 22(2) of the bill. This clause prevents the review bodies from sharing with the committee all the information listed in the mandatory exclusions at clause 14. It also prevents the review bodies from sharing information that a minister had decided to withhold from the committee, per clause 16. I have already voiced my concerns with clauses 14 and 16. It is my view that clause 22 compounds those issues and will prevent the review bodies from co-operating in a meaningful way with the committee.

The sixth area of concern I have with this bill is the final nature of decisions made by ministers. The bill prohibits the committee from seeking judicial review of a minister's decision. This can be found at clause 31 of the bill. I have concerns that giving the minister final decision-making authority could lead to overly broad interpretations of the law that favour non-disclosure to the committee.

I am concerned with how the Access to Information Act will apply to the secretariat of the committee. Bill C-22 proposes to extend coverage of the Access to Information Act to this new institution, which is designated with assisting the committee in fulfilling its mandate.

The purpose of the ATIA is to provide a right of access to all records under the control of institutions that are subject to the act, subject to limited and specific exceptions. Balancing the right of access against claims to protect certain information is clearly at the core of the access to information regime. Extending coverage of the act to the secretariat is a positive step and a positive aspect of Bill C-22 in ensuring transparency and accountability of this new institution.

However, given the way it is drafted, it is not clear to me how much information requesters will actually be able to obtain from this institution. Bill C-22, at clause 35, adds an exemption to the Access to Information Act that is, in my view, overly broad and could result in the secretariat having only the veneer of transparency. The bill proposes to exempt from the right of access any record that contains information created or obtained by the secretariat or on its behalf in the course of assisting the committee in fulfilling its mandate.

This is drafted as a mandatory exemption, which means that once the secretariat has determined that the exemption applies, it is under a legal obligation to refuse any kind of access.

My issue with the breadth of this exemption is three-fold.

First, the proposed exemption is mandatory. Discretionary exemptions are preferable because they allow for a balancing of factors, including the public interest in disclosure.

Second, it applies to any record that contains the protected information. When language like this is used in an exemption, it means that once it has been determined that a record contains protected information, the entire record is protected. This is the case even if only a small portion of the record actually contains information that legitimately requires protection. This essentially nullifies an institution's otherwise mandatory obligation to sever and disclose non-protected parts of a record.

Third, the exemption applies to any information obtained or created in the course of assisting the committee in fulfilling its mandate. This begs the question: what is considered to be assisting the committee on fulfilling its mandate? Does it encompass assistance of a more administrative, technological or financial nature?

One thing is certain: if we have to deal with a financial document that contains a mention of something that was said during a committee meeting and is protected, the actual text of the provisions means that the entire document must be protected. In my view, the exemption, as currently drafted, goes beyond protecting national security.

I have raised several concerns about Bill C-22, many of which have been raised by other participants in this committee review, that I believe will impede the committee in carrying out its mandate, but there are also relatively simple solutions to address these concerns.

First, there should be no ministerial override of the committee's review function.

Second, the committee should have robust access to records, with no limitations. This is necessary in order for the committee to properly fulfill its mandate.

I do not recommend giving the committee broad access to national security and intelligence information lightly. I am acutely aware of the security risks posed in sharing information like this. However, I would point out that, at my office, we are entitled to review records of any security classification, up to and including records that relate to signals intelligence. For all investigation files, security measures are put in place to meet the security classification of the records. In the 30-plus years my office has seen these records, we have never had a security breach. It is my belief that similar security measures could be put in place for the national security and intelligence committee and its secretariat.

It is also important to understand that giving access to information to the committee does not necessarily mean disclosure of the information to the public. In the event that limitations on the committee's access to information are deemed to be necessary, I recommend that a public interest override be added. This way ministers will be required to determine if non-disclosure to the committee is necessary and proportionate as compared to the public interest in having the committee review the information, bearing in mind the accountability function of the committee.

Third, there should be a precise number of days to provide information to the committee. In my experience, 30 days is generally sufficient time. Extensions should be available, but only with the permission of the committee.

Fourth, it should be clearly stated in the bill that the committee's meetings will be public by default. Meetings should only go in camera where a clear threshold is met, such as where disclosure of the information during a public meeting would be injurious to national security, and only for the length of time necessary.

The process would be similar to what we see in court, when they handle particularly sensitive cases. The open-court principle applies, and the court does not proceed in camera unless it is absolutely necessary.

Fifth, there should be no limitations placed on other review bodies when collaborating and sharing information with the committee.

Sixth, decisions made by ministers should be reviewable by the Federal Court. If, for example, there was a provision that made it possible to gauge public interest in the disclosure of the committee's information, those decisions could be reviewed by the Federal Court.

Hand in hand with this recommendation, I would also recommend that if it is determined that some exclusions to the committee's access to information are necessary, any disputes about the application of exclusions should be subject to judicial review. This will limit over-claiming of exclusions.

Finally, the exemption under the Access to Information Act for the secretariat should be discretionary and focused on protecting only the information that is subject to the review function of the committee.

I also recommend that the exemption protect only information and not any record. This is a nuance, but it is a significant nuance, in terms of having the ability to sever information that should be disclosed from the information that needs to be absolutely protected from disclosure. This will result in meaningful access to the secretariat.

Events such as the recent Federal Court decision regarding CSIS's retention of Canadians' metadata, the revelation that Quebec's provincial police have been spying on journalists, and the Snowden affair have eroded the public's trust in its security and intelligence agencies.

The work of the committee will be a key pillar in regaining that trust and increasing the accountability framework of our national security agencies. However, if we want the committee to be successful, it must function under an appropriate legal framework. At present, in my view, Bill C-22 does not strike the right balance between protecting the national security interest and maintaining transparency and accountability. In its current form, I do not believe the committee will be able to achieve its goals.

In closing, I would like to thank the committee for the opportunity to present my views on Bill C-22, and I'm pleased to answer any questions you may have.

[The Chair (Mr. Robert Oliphant (Don Valley West, Lib.)), Liberal, Rob Oliphant]

I'm very happy to call this meeting to order. This is the 45th meeting of the Standing Committee on Public Safety and National Security as we continue with hearing from witnesses with respect to Bill C-22, an act to establish a national security and intelligence committee of parliamentarians. Before we begin, I want to thank the analysts for their summary of evidence from our national security framework study apropos of Bill C-22. I have read it once and found it to be a very helpful organization of information. Did everybody get that? It's a good piece of work. Thank you, both of you, I assume.

I want to welcome Madam Legault, the Information Commissioner of Canada, and Madam Gendron, the legal counsel. Thank you for accepting our invitation to join us today. We will begin with an opening statement from you and then we will turn to committee members for questions.

[Nathaniel Erskine-Smith, Liberal, Beaches—East York, ON]

Fair enough.

To the CBA, I was a bit worried about one of your comments about access to information. You noted:

The Canadian Bar Association opposes passage of Bill C-22 if it contains section 16, and recommends that section be deleted.

Clause 14 seemed to me to be a more worrisome clause, because it doesn't allow for any discretion to be exercised by the minister and doesn't have any additional criterion that would require the disclosure of the information to the committee to be “injurious to national security”.... It was mandatory.

We can look at the U.K., hearing from the ministerthat this committee is largely built on the U.K.'s experience. The minister does have discretion to veto providing information to the committee where it's sensitive information and where the provision or disclosure is deemed to be counter to the interests of national security.

I wonder if you could perhaps speak to why you're so worried about clause 16, and why the additional criterion of “injurious to national security” and the discretion that the minister would exercise—hopefully rarely, akin to the U.K.—is so worrisome. Why would you opposed the bill if it's not removed?

[Richard Fadden, As an Individual]

Thank you.

Thank you very much for having me here today. I'm particularly happy to be able to talk about a topic that I've thought about over the years.

I think the time has come for an effective role for Parliament in national security matters. Although this new role may not guarantee full public confidence in national security, I suspect that, along with the review bodies, the courts, and the media, Canada will be well on its way.

I would state unequivocally that substantive public confidence in the work of the national security entities is necessary if their work is to be effective. This is not only necessary for the public and for Parliament. If the national security agencies do not have the confidence of the public, then they can't do their work either, and this bill really should help.

Broadly speaking, I think Bill C-22 is a good document. To put it in different terms, if I were one of you, I would have quite happily voted “yea” at second reading.

Having said this, I have a couple of comments. Based on my time both as someone who has worked in national security and as someone who has worried about accountability issues and machinery-of-government issues, at the meta level I would argue that what's needed is post facto review, not the ongoing oversight of national security operations. We sometimes forget that oversight is characteristic of the United States' system of governance, and we shouldn't adopt it here lightly. It's not something that we do commonly in Canada, and just because the Americans do it doesn't mean that we should adopt it.

Clearly, now the work of the committee would extend to operations. I would note that it's not the case in Australia. Also, in the case of the United Kingdom, it took them several years before they gave their equivalent committee access to operations. My advice would be, let's take it slowly and see how the committee does.

To put this into context, the only people in Canada who really know a great deal about national security are ministers and officials. It's a very complex and complicated area. It seems to me that to ask a committee to start off by doing everything from legislation to operations is taking a bit of a risk. I would argue that, to the extent that you allow the committee to carry on in operations, it would be helpful to have some sort of declaration, which says that it should not do so in a way that would interfere with the effectiveness of the work of the various committees.

The bill retains the review bodies and also retains the role of the courts. I appreciate that the burden would vary between the three and four core national security agencies and those who are involved in the periphery, but I do want to suggest that it's worthwhile thinking about the burden that is imposed. The national security departments and agencies exist to promote national security, not to provide opportunities for oversight, review, evaluation, and audit. I'm making a bit of a joke of it, but it's not all that funny when you have a multiplicity of bodies all looking at the same thing, sometimes at the same time.

I think it would be worthwhile if the committee were to consider providing additional guidance in the bill to the committee and the review bodies on the nature of their relationship. If I recall correctly, even Mr. Goodale, when he spoke to you, suggested that this was a potentially problematic area. The bill could say that the review bodies' annual reports are to be tabled in the committee, that the chairs of those committees are susceptible to being called before the committee, and that there be a requirement that the work programs of everyone are to be shared with everyone else.

I make this point in part because over the years I've had a fair bit to do with statutory officers. They tend to take their statutory duties fairly seriously, and a general injunction to co-operate, even with full good behaviour and good intent, may mean that there will be difficulties in the relationships between the review committee and the bodies.

My last point relates to the protection of “special operational information” as it's defined in the Security of Information Act. The bill says that the minister may refuse to disclose such information. I would argue that special operating information, a large chunk of which comes from our allies, is so sensitive that the protection should be reversed and that it should only be released with the specific authority of the minister. It's not so much information about what is being done; it's often information on how things are done, in terms of technical information. I'm not sure the committee would need this all the time.

In any event, it's important that the committee, as previous witnesses have said, has not only the support of Parliament, the public, and the agencies, but also that of the allies. We need to make sure that organizations in countries with which we share information are absolutely certain that this is a reasonable bill and that their information will be protected.

As I said at the beginning of my remarks, I think this is generally a good bill. It will benefit not only Canadians but the national security departments and agencies.

I hope my comments are helpful. I'd be glad to try to answer any questions you might have.

Thank you.

[Marco Mendicino, Liberal, Eglinton—Lawrence, ON]

Thank you, Mr. Chair.

Thanks to both of you. This committee is very fortunate to have the benefit of your evidence today.

Mr. Portelance, I want to begin with you. You mentioned during the course of your opening remarks that you had some concerns with regard to clause 9 of Bill C-22 and the absence of a sufficiently articulated architecture when it comes to the oversight of national security.

Can you elaborate on that? What are the principles of architecture that you think that the government and, by extension this committee, should be taking into consideration when we talk about enhancing oversight and accountability?

[Anil Kapoor, Special Advocate, Kapoor Barristers, As an Individual]

Thank you very much, Mr. Chair and members of the committee. I'm happy to be here.

In particular, I want to address you from the perspective of a special advocate—which is part of what my practice entails—in relation to this bill, Bill C-22. This piece of legislation is crucial to public trust in our security intelligence apparatus.

Commissioner Paulson said as much on November 1 when he said that it's “vital” to the success of the RCMP and their mission that they have the trust and confidence of Canadians in their ability to do their job. Michel Coulombe said on the same date that it's important that there be “an informed discussion” so that people understand “the threat environment that's out there in terms of classified information”.

What is the threat? What are the gaps in the tools that are available to us? From the CBSA, we hear that trust is absolutely essential. From the CSE, we hear similar comments, and in particular, that this will provide this committee, namely, a nice opportunity for the security and intelligence community to speak with one voice, and the committee will have an opportunity to strategically look at the community as a whole.

People are looking to this committee as possibly funding what I call a trust deficit—possibly. There exists a trust deficit today, and we know this from any number of decisions from our courts about the conduct of the RCMP, the conduct of CSIS, and, most recently, Justice Noël's judgment, where he said this:

...in regard to the CSIS’s duty of candour, I conclude that it had an obligation, beginning in 2006, to fully inform the Court of the existence of its collection and retention of associated data program. The CSIS also had the duty to accurately describe this program to the Court. The fact that it did not do so until 2016...amounted to a breach of the...duty of candour.

In my view, you can't have a situation where an intelligence agency for 10 years does not tell the court what is going on. This committee, potentially, if properly constructed, can go some distance to recovering that trust deficit. How do we do this?

You've heard from my colleague Kent Roach and from Professor Forcese. They had the three components to the overall security review process, with the committee of parliamentarians being one. Another was a consolidated and enhanced expert review body, and you heard their evidence on that point. You also heard their evidence about the need for an independent monitor of national security law, built on the U.K. or Australian model. But today I want to address you on the three fundamental aspects of this bill. There are three components that I think you should consider. One I call the architecture of the bill. The other is who is on the committee. The third is support for the committee.

Let me deal firstly with the architecture of the bill. There are many things you have read in this bill that people have testified before you are problematic. Most strikingly, I would say, from my perspective as a special advocate, is the fact that this top-secret cleared committee can have information withheld from it. We have had this problem in security certificate cases from the beginning, where the service has not provided us with information that we are entitled to. It took us all the way to the Supreme Court of Canada in Harkat and in Charkaoui number two to get proper disclosure.

That sort of—how can I put it?—passive-aggressive approach from the service just cannot be acceptable with this committee. This committee, those of you who may be on it, will be top-secret cleared. You can be trusted with the information. It's no different from what the Supreme Court of Canada said in Harkat about special advocates. They said, “The special advocates...have the ability to distinguish between...public and confidential” information. They said, “The judge should take a liberal approach in authorizing communications...”. In other words, special advocates can be trusted. Committee members can be trusted.

What's the difference, frankly, if you're on the government side of the House and you're sitting on this committee, and then a week later the Prime Minister appoints you the Minister of Public Safety? The day before that happens, we can't get inside the kimono, and the day after, it's open kimono. But you're the same person: you're able to maintain a secret.

In my view, this notion that the minister and these agencies can withhold information from this committee ought to be rejected.

One example is the example that Michel Coulombe gave in his evidence. It is interesting, because what was put to him was about “injurious to national security”. The example he gave was highly operational. Just for your reference, it's from November 1, at page 17, and he said:

I could provide an example.

...Take, for example, what happened on August 10. Had that lasted for three or four days and had it been a counterterrorism investigation—fast-paced with a lot of resources involved—and had resources been assigned to send information to the committee, that would have been a distraction from the operation....

I agree. If you're in the middle of an operation, the last thing you want to be doing is dealing with a review committee. The review committee is meant to review things that have happened, so I have no problem with that kind of operational postponement of information, but the test, “injurious to national security”, has a particular meaning in law, and it is far broader than that. Also, it applies when an operation is concluded.

It can be to protect foreign agencies. It can be to protect sources. Part of your job as a committee may be to inquire into the service's handling of sources, and the appropriateness with which they do so, and you ought to be able to. There's a difference between what you learn in closed...and what you put in a public report. In my view, parliamentarians, top-secret cleared, are capable of making that distinction, just as special advocates are.

Who is on the committee is the next point. This is unglamourous work, trust me. I've been involved in a lot of these national security cases, both on CSIS work and on security certifications, and when I was commission counsel on Air India. It is hard work, it is laborious, and it takes a particular aptitude to get into the weeds and then to be able to get out of the weeds. When you staff it with your committee members, you need that kind of person: someone who is rigorous, diligent, and has the aptitude for what I call unglamourous and rather bookish work.

Finally, on support for the committee, this is crucial. This committee of parliamentarians cannot do this job without a properly staffed secretariat, and I mean this. You are all busy people. You have other things. You have constituents. You have all kinds of things going on. You need to be able to rely upon the secretariat to properly brief you and to give you direction on where the bodies are hidden, to use the vernacular.

How are you going to do that? Well, you need a competent, highly skilled director of the secretariat—I think that's what they called it—and then you need to staff it up. How do you staff it up? It can't be government lawyers, obviously, so you staff it up with relatively junior and highly skilled people, who are top-secret cleared, to do what I call the grunt work. Then, I suggest, what you need to have are two or three senior counsel who are top-secret cleared and who can direct the inquiry, provide it with focus and shape, and ensure that your staff does what you want the staff to do.

Then you will be briefed. I don't think it's appropriate for counsel to examine witnesses. I think the committee ought to examine witnesses. You will be briefed and you will make your decisions as a matter of policy on what you want to cover. You may have matters one to ten and you may choose to cover one to four, but you will be expertly briefed and able to execute on the questions.

Most particularly, you will not be co-opted by the agencies. You will not. This is a real concern, because they will come in and they will talk to you about the threat level and all the things they need to do. You need to guard yourself against it. Some of it you may accept, and some of it you may not, but review must be skeptical. You can go back to what Justice Noël said about ten years of a lack of candour. That can't happen. You can stop it. You can deal with the public trust deficit.

Thank you.

[Luc Portelance, As an Individual]

Thank you, Mr. Chairman and members of the committee, for inviting me here today to speak to you in support of your study of Bill C-22.

I must admit that this is a new experience for me. I have appeared before this committee before, always as the representative of a government department, and this is the first time I've done so on my own. I have a very brief opening statement, and I look forward to the committee's questions afterwards.

I am aware, of course, that in your deliberations you've already heard from a number of witnesses, including experts from various fields, who have mostly endorsed the creation of a national security and intelligence committee of parliamentarians. Let me add my voice of support by stating that I, too, welcome this significant addition to our national security review architecture.

I believe that Minister Goodale, in his testimony, mentioned how this piece of legislation is part of a broader suite of changes required to our national security framework. In fact, the current consultations undertaken by the government are likely to yield a significant public debate around investigative capabilities, privacy, and accountability.

Review is of course a critical element of this complex ecosystem. In many respects, Bill C-22 is the beginning of the broader debate, and the committee of parliamentarians, once created, will have a significant role to play in defining the future of national security in Canada.

As many have said, the legislation as currently drafted is not without some imperfections. You've already received useful advice about the scope of the mandate, exceptions and exemptions, coordination, and other critical clauses.

Thus, as I appear before you today, it strikes me as most useful if I approach my comments from the perspective of someone who was the subject of review for 24 years at CSIS. Of course, I also bring with me the perspective of having led the Canada Border Services Agency for a number of years, an organization whose apparent absence of external review has come under some criticism.

As such, there are only two issues I want to bring to this committee's attention this afternoon.

The first is a question about the value proposition for Canadians. How does this committee differentiate itself from the existing mechanisms, and what might success look like a few years from now?

Some would say that the mere creation of this new committee is a major step forward. Perhaps, but from my perspective, it's less about creating a new review body and more about creating a new mechanism for accountability, transparency, and support. In fact, more review will not necessarily mean better review, unless the committee understands and remains laser-focused on its value proposition.

As currently worded, clause 8 of the bill supports the committee's purpose of bringing about a greater level of accountability and public confidence. Craig Forcese, in his earlier testimony, accurately suggested that Canada—unlike the U.K.—doesn't have a solid track record of accounting for events, other than episodic enquiries over the past 10 years. I believe he is right, and the new committee will fill this important gap, particularly as a result of its broad horizontal reach.

It's important to remember, however, that accountability applies equally to departments and ministers, which should guide your consideration of potential modifications to clause 16 of the bill.

Similarly, I would avoid the temptation to list organizations that fall under the committee's purview, and, rather, let the evidence lead the way, as suggested by MinisterGoodale.

A critical element of the value proposition must also include what I refer to as “support”. A mature, experienced committee of parliamentarians will be invaluable in determining whether our national security agencies are adequately tooled and resourced to keep Canadians safe.

Whereas paragraph 8(a) does reference several administrative elements the new committee could review, there is no reference to performance, effectiveness, or adequacy. This may not require explicit mention, as long as this aspect of the committee's mandate is implicitly understood.

While agencies will not stand in the way of increased scrutiny, they will welcome the opportunity to explain their challenges to a receptive but critical interlocutor whose views can shape national security policy.

The value proposition of the committee is encapsulated in two paragraphs of clause 8, which speak to the what but not really the why. Most stakeholders would benefit from greater clarity, as will the new committee, as it seeks to position itself.

My second issue and my key area of preoccupation is the absence of a well-defined overall review architecture and the simplicity of clause 9 as currently drafted. Frankly, I see this as a considerable risk, and one that should not be left to the review committees that are taking reasonable steps to co-operate. Unquestionably, the brunt of agency review will still be conducted by the existing review bodies.

As stated by a previous witness—I believe it might have been Ron Atkey—the new committee will not be a substitute for a detailed review. The relationship between the review bodies—the complementarity, the hierarchy, if any, and the dependencies—should be clearly articulated.

Poor alignment in terms of access, along with the inability of existing review bodies to follow the thread horizontally, are bound to create friction. Any confusion, particularly duplication, redundancy, and lack of coordination, will unquestionably impact the agencies under review. Although these things may sort themselves out over time, there is a real risk that operational capacity will be impacted while review bodies assert their mandate with no mechanism to arbitrate. The government should likely re-examine everyone's roles and mandates, including those of parliamentary and Senate committees whose mandates cover national security and public safety.

In conclusion, there was a prevailing view at CSIS that the existence of SIRC since its creation in 1984 ultimately made the service better. In today's threat environment, with rapid advances in technology, diminishing investigative capacity, and pressure for more transparency and accountability, this new committee of parliamentarians must quickly find the balance between seemingly competing interests. Ultimately, its value will be measured on its contribution to the betterment of Canada's safety and security.

[The Chair (Mr. Robert Oliphant (Don Valley West, Lib.)), Liberal, Rob Oliphant]

I'm very happy to call to order this 44th meeting of the Standing Committee on Public Safety and National Security as we continue our study of Bill C-22, an act to establish the national security and intelligence committee of parliamentarians and make consequential amendments to certain acts.

We're getting down to the short strokes on this study of the bill.

We're delighted to have two witnesses with us for this first hour: Luc Portelance and Anil Kapoor.

Do you have a preference for who goes first? I think we'll start with Mr. Portelance for 10 minutes, and then go to Mr. Kapoor. Then we'll have questions from the committee members.

[Tamir Israel]

Very briefly about that, the independent arbitrator for Bill C-22 on disagreements, some, including us, have called for a mechanism to allow disagreements to be referred to the Federal Court. The Federal Court has expertise in making these decisions.

Just very briefly, yes, absolutely, some agencies have retention limitations on an ad hoc basis that apply to certain subsets of information they collect, but an overarching retention limitation in the Privacy Act would provide for a more principled and across-the-board process. CSE has some retention limitations that are imposed on it, depending on the type of data it's collecting; CSIS doesn't have any, or didn't until recently; and the RCMP does not have many. It's very ad hoc now, and imposing an overarching principled retention limitation with the Privacy Act that applies to everything would make it a more consistent obligation.

[Wesley Wark]

Mr. Bratina, under Bill C-22, the ultimate discretionary authority-holder is the Prime Minister, and the proposed national security and intelligence committee of parliamentarians would be beholden to the Prime Minister in certain instances with regard to the information they can access and information they can report on. Again, I think many people who commented on Bill C-22 believe that it's perhaps over-broadly written and that it could be narrowed in terms of those restrictions. But it's important to say that the essential dilemma of parliamentary scrutiny of intelligence and security revolves around secrecy, and the need to both access secrets, in order to make sense of the security and intelligence world, and to protect secrets in the interests of Canadian national security. Bill C-22 legislation tries to find a fix to that difficult dilemma.

If I can come back just for a minute to your question about retention, it's absolutely true that most information these days is digitally maintained. There are still a lot of paper records around, particularly on higher-level decisions, memoranda to cabinet, and that kind of thing. But I would disagree with my colleague Tamir about the fact that there are no retention schedules. There are plenty of retention schedules. The problem is that they are not legislated and they're not available in the public domain, but the mechanism that is used to enforce retention schedules is ministerial directives to the agencies of the security and intelligence community.

One of the things I have pressed for in various circumstances, including with regard to CSE, is that some of those ministerial directives around retention of information could be made public without endangering national security to reassure the Canadian public that information is not being kept in an abusive and overly long way. The retention mechanisms do exist; they just are, unfortunately, and perhaps in some cases necessarily, secret.

[Wesley Wark]

I should say to the committee that I have testified on Bill C-22 in front of the other committee. To make a long story short, I think there could be some useful amendments to kind of restrict the powers of the government on a discretionary basis and to impose restrictions on information that could be accessed and information that could be reported on by the committee.

That said, even with no amendments to Bill C-22, I think it's a great start and long overdue, but I'm hoping there will be some amendments of that kind.

[Daniel Blaikie, NDP, Elmwood—Transcona, MB]

Do you think for the oversight committee proposed in Bill C-22, it hurts the credibility of that committee as an oversight organization that government is able to censure what information committee members will receive?

[Wesley Wark]

Thank you, Mr. Blaikie. I had the pleasure, once upon a time, of meeting your father. I just wanted to say hello.

There are various mechanisms in place. We're in the business, as you all know, of reforming and thinking about reforming the system. But the place to start with regard to SCISA and making sure that the government can be held to account for how this scheme is operated, even if it's amended, has to be proper record keeping.

Unless there's a paper trail, a digital trail, we'll never be able to do any accountability, and the Privacy Commissioner has made this suggestion in his annual report. That's one thing.

There is an issue of ministerial accountability as well. I note that the public safety minister, in recent testimony to the public safety committee, on the back of the Privacy Commissioner's annual report, said he has sent a letter out to all his cabinet colleagues encouraging them to ensure that all of their departments involved in SCISA are maintaining proper privacy protections. That's a step, but on its own, I think, it's an inadequate step, important as it might be.

So there's record keeping and ministerial accountability. Again, I would come back to the importance, certainly for the broader Canadian public, of transparency provisions that are part of the legislation. There is a mandated requirement to provide an annual public report from the relevant minister, in this case probably the public safety minister, on the operations of SCISA. It should be a meaningful report.

Then finally, there's the question of agents of Parliament and independent review bodies. Agents of Parliament, such as the Privacy Commissioner, clearly have a role to play. The Privacy Commissioner was trying to indicate that he has some resources but perhaps not enough. I know the Privacy Commissioner's office well. It's not my place to speak to it, but it has very limited resources on the national security side.

With regard to independent review, as everyone will know, the problem is that we don't have an all-encompassing independent review system. We have these siloed mechanisms that independently deal with CSIS, are meant to deal with the RCMP on the national security side but haven't yet, and deal with CSE, yet there's nothing for CBSA and many of the other core security and intelligence systems.

I think we're all at the point where we recognize that the system of independent review, which we've inherited over the years, is a legacy system that's not functioning well, and there are various proposals on the table for how to change it.

On top of that, a new committee of parliamentarians, if Bill C-22 is passed in Parliament, will be an added element in that picture of accountability.