Bill C-377

An Act to amend the Parliament of Canada Act (need to know)

This enactment amends the Parliament of Canada Act to specify that a member of the Senate or the House of Commons who applies for a secret security clearance from the Government of Canada is, for the purposes of the consideration of their application, deemed to need access to the information in respect of which the application is made.

[Eric Duncan, Conservative, Stormont—Dundas—South Glengarry, ON]

Thank you, Mr. Chair.

Good morning to colleagues and to the witnesses helping us out with this thorough clause-by-clause.

I'll build on what Mr. Calkins said.

I want to start by saying this: Through all of this, including the amendment he proposed, which we passed a few minutes ago, Mr. Ruff has made a very concerted effort to narrowly target the issue at hand here. I think, for example, that the amendment that he proposed and we passed further clarifies what this is. It goes back to the right of parliamentarians to apply—end of story. The amendment and subamendment here are getting into secondary and later phases that are not affected. It does not jeopardize our national security, intelligence or classified documents in any way.

As Mr. Ruff asked our witnesses again this morning to confirm, and what Dr. Giles said in testimony to us on Thursday.... I'll read what was said on Thursday and reiterate it again here this morning:

A security clearance is sometimes misunderstood or portrayed as a special designation, a set of privileges or an earned qualification like a rank.... Since clearance holders work in every part of government, a security clearance does not automatically grant the holder access to all information or assets at that level of clearance.

We've gone on to have many conversations or debates about the need for safeguards, which I don't deny. I'm not denying we need to have safeguards. There's no discussion or debate on that. However, what Mr. Ruff has put a concerted effort into doing is narrowly dealing with the right of parliamentarians to apply for a clearance. This does not automatically mean that a parliamentarian gets one. They still have to go through the process like everyone else. It further clarifies that it does not mean that once.... For example, if I were to apply and be granted this, I can't suddenly walk up to any of you and say, “I'd like to see the following 15 documents on X, Y and Z.” The safeguard already exists for any of the quarter million clearances that were applied for in the last decade. If you're a staff member for a minister in the public service, being given that clearance does not give you, as Dr. Giles said the other day, a right to go on from there.

When we talk about the subamendment and amendment being proposed, and our argument about scale and it being out of scope, it is Mr. Ruff's intention of how we're doing this, because, at the end of the day, that safeguard is there. Anybody who gets the clearance does not automatically get.... The point Mr. Calkins raised, which has been raised a few times in discussions of Bill C-377, is that if a parliamentarian receives it, it's there. They are more turnkey-ready should a committee or an individual parliamentarian.... For example, if they are a victim of foreign interference, they are more turnkey-ready and prepared. At that time, as we saw with the Winnipeg lab and the Afghan detainee documents going back a few Parliaments now, a lot of the details are negotiated at that point in the discussion. We say, “This committee, special committee or whatever it may be, needs to see X, Y and Z.” Those can be negotiated or discussed as part of a disclosure to parliamentarians in a certain setting at that time. That's been done in the past. That is a safeguard at the time when the decisions are made.

I'll go back to make the same argument again, one we've repeated. Mr. Ruff has done a very good job of clarifying, umpteen times—I have lost track—this legislation and what he's proposed in good faith through an amendment. We've seen other efforts he's made and will be making again for the right of a parliamentarian to apply. Right now, if I were to put in an application, I would be rejected. This is just the right to apply to get the clearance. That's the end of the story. It does not entitle me or any parliamentarian to extra information or any other right going from there. What it can do is get more people at that level prepared to receive it, in the event we need it.

I think part of the effort and the reason for the continued expressed intent from Mr. Ruff is that if more members can get up to that level on various committees, as they choose, with the right to apply and to have that, I think, from a national security perspective, in the important roles we have in passing the budgets that you all work under and in passing the legislation that you interpret and operate in, it gives that opportunity, down the road, should the need or the circumstance arise, to have this clearance, to have it prepared and to be ready for it. I think that is essential.

The subamendment and the amendment that are proposed here, I will say again, are above and beyond the scope of Mr. Ruff's bill and his intentions. He's made that very clear. It is not to say that safeguards should not exist. The argument is that they do exist already because, again, when someone applies for and passes a security clearance, it does not automatically mean they're granted access to a single document because of that aspect.

I'll leave my comments there and will continue to encourage my colleagues to reject this subamendment and amendment. Let's get back to the scope and the level that Mr. Ruff is dealing with. It is very reasonable. It is very narrow and targeted for a specific reason. I think we could have a very good piece of legislation that does not jeopardize any safeguards that are there. They can use the existing ones that are in place now for the circumstance.

I'll leave it at that, for now, for my comments.

[Terry Duguid, Liberal, Winnipeg South, MB]

Thank you, Mr. Chair.

I would like to move the following amendment from the floor. My staff have emailed it to the clerk in both official languages.

I move that Bill C-377, in clause 1, be amended by adding after line 20 on page 2 the following:

Prohibition

(3) A member or former member of the Senate or the House of Commons must not knowingly disclose information to which they were given access under a security clearance, except if the disclosure is made during an in camera meeting of a committee of the Senate or the House of Commons, or of a joint committee, and every individual in attendance has also been granted the necessary security clearance by the Government of Canada.

While we wait for the email to be distributed, I'll offer our reasoning on this side.

This amendment provides a necessary safeguard measure to prevent inappropriate disclosure of classified information to individuals who have not been granted a security clearance by the Government of Canada.

[Alex Ruff, Conservative, Bruce—Grey—Owen Sound, ON]

Thank you, Chair. I will just read it in.

I move that Bill C-377, in clause 1, be amended by replacing lines 15 and 16 on page 2 with the following:

eration of their application, deemed to need that security clearance.

As I was trying to explain earlier, this addresses the concerns that were raised by the officials last week about the term “need to know”. It clears up that ambiguity and clearly focuses on the fact that, as I've mentioned in all my speeches and testimony, the only purpose of my bill is to allow parliamentarians to apply for secret security clearance. It has nothing to do with how the government controls access to that information or ever disseminates it.

The purpose of my bill, to clarify, is just to apply for that security clearance, so that's why I'm putting this change forward.

[The Chair, Liberal, Ben Carr]

Good morning, everyone.

I hope you've had a good couple of days since we last saw one another.

I call meeting number 127 of the Standing Committee on Procedure and House Affairs to order.

Today, we commence the clause-by-clause study of Bill C-377, an act to amend the Parliament of Canada Act with regard to the need to know.

To colleagues and, particularly, to our witnesses, this is a friendly reminder that if your headsets are not in use, please make sure that they are put on the stickers in front of you in order to avoid doing damage to the health and well-being of our interpreters, who are working so hard on our behalf.

We have a number of officials with us today, who are here to provide guidance when necessary.

I would like to welcome Tracy, chief of strategic policy from the Canadian Security Intelligence Service. From the Department of Public Safety and Emergency Preparedness, we have Justin Chan, director of counterterrorism policy. From the Privy Council Office, we have Sean Jorgensen, director general and chief security officer. From the Royal Canadian Mounted Police, we have Chief Superintendent Jeffrey Beaulac, acting chief security officer of departmental security. From the Treasury Board Secretariat, we have Adam Hatfield, executive director of policy on government security.

Thank you very much to our officials for being here.

Colleagues, there were obviously a number of changes and moving pieces over the course of the past couple of days, but I believe we have landed in a place that should allow for what I hope is a fruitful and efficient discussion today. I ask for everybody's patience. We should not be frustrated with colleagues should they have questions or a need for clarity, given how much has changed over the course of the past few days.

(On clause 1)

With that, we are going to begin. The first amendment that was put forward was G-1.

Access to Information

[Alex Ruff, Conservative, Bruce—Grey—Owen Sound, ON]

Mr. Speaker, I have two petitions to present today.

The first petition, signed by a number of my constituents, supports my private member's bill, Bill C-377, which would allow parliamentarians to apply for a secret security clearance. They call upon the House to swiftly pass my bill to allow parliamentarians the ability to apply for a secret security clearance.

[Marie-Hélène Gaudreau, Bloc, Laurentides—Labelle, QC]

In fact, what I am seeing right now is that there is a major obstacle. Sometimes there is a Liberal government and sometimes there is a Conservative government. The important thing, however, is for us to get disclosure of the information we need in order to do our job properly.

Bill C‑377, which we are currently considering, is one way of circumventing that obstacle, or finding another way to get access to information that may be declassified when a committee requests it in order to avoid having to raise questions of privilege in Parliament week after week.

So I want to know whether this bill has enough teeth and whether it is going to enable us to move forward. Ultimately, if the right to know is within the purview of Parliament rather than the government of the day, we are talking about something completely different.

Do you agree with me?

[Terry Duguid, Liberal, Winnipeg South, MB]

Thank you, Mr. Chair.

Thank you to all of our witnesses for their testimony today.

I listened with interest to Mr. Wark's presentation, and I'm sure you listened to it as well. He has strong opinions. He referred to the Five Eyes and our international partners. He said they would not view this legislation very favourably; they do not have this kind of provision as proposed in Mr. Ruff's bill in their systems, and they are looking at NSICOP and other innovations we have introduced very favourably.

I wonder if you might comment on his testimony and whether you agree with it, and summarize the risks you see of passing this legislation. I haven't heard a crisp opinion from you on whether you support or don't support Bill C-377.

I'll then cede my time to Mr. Turnbull.

[Marie-Hélène Gaudreau, Bloc, Laurentides—Labelle, QC]

Thank you, Mr. Chair.

Thank you very much for enlightening us, Dr. Giles. I understood very clearly from your opening remarks what the distinction is between need to know and right to know.

What concerns me when it comes to parliamentary privileges is actually whether I can get access to the information that is going to be useful to me in my role as a legislator. You have reassured me tremendously on that point.

Where you worried me is when you talked about international relations, particularly with the Five Eyes member countries, about CSIS's image and about potentially sullying its reputation. I heard that clearly.

I also heard clearly that Bill C‑70, which lacks teeth, in my opinion, has also contributed to providing us with more information in order to potentially avoid what we are experiencing in our legislative menu, which is going to last a very long time and is coming back to the Standing Committee on Procedure and House Affairs.

So I am trying to understand what benefit is provided by Bill C‑377 when I could get the information I need by making a request, unless the government decides not to authorize access, obviously.

I would like to get your opinion.

Since there is some delay in answering me, I am thinking my question was a very good one, Mr. Chair.

[Alex Ruff, Conservative, Bruce—Grey—Owen Sound, ON]

Thanks, Chair.

Thanks, Ms. Giles, for the opening remarks.

Thanks to everybody here for what you do on a daily basis to help keep our country safe. There are some very familiar faces sitting at the table.

Ms. Giles, you talked about the threats, about the need to up our game and about the important changes that Bill C-70 allows that will allow CSIS, in particular, to share additional information. However, one of those conditions upon sharing additional classified information—and we're talking only at the secret level here, with my bill—is that you're still going to want those people to have a clearance before you share that information. That could be other levels of government. That could be—in particular here with Bill C-377—parliamentarians, so that's MPs and senators. That's a necessary safeguard that they're going to need in order to get that information.

Is that correct?

I would just ask if that is part of the reason this was evident and brought forward by CSIS—whether to NSICOP through reporting up to the government—and why it was included in Bill C-70.

Is it that there is that recognition that more classified information needs to be shared at a much wider level in order to address the ongoing security threats?

[Dr. Nicole Giles, Senior Assistant Deputy Minister, Policy and Strategic Partnerships, Canadian Security Intelligence Service]

Good morning, Chair and members of the committee. It's an honour to join you today and to have the opportunity to discuss Bill C-377.

We hope to provide some insight to this committee on government security screening processes and policies, as well as on access to classified information and the importance of protecting it.

In the interest of time, as the chair mentioned, I have the honour of providing opening remarks on behalf of the entire panel of witnesses.

Security screening is a fundamental practice that makes it possible to establish and maintain a relationship of trust within the government, between the government and Canadians, and between Canada and foreign countries.

Security screening involves the collection of personal information from individuals with their informed consent, as well as information from law enforcement, intelligence sources and other sources, using methods to assess their reliability and loyalty to Canada. My colleagues here from TBS and PCO will be very pleased to expand upon these issues.

A security clearance is sometimes misunderstood or portrayed as a special designation, a set of privileges or an earned qualification like a rank. It is none of these. Simply put, in the Government of Canada, it is an administrative decision taken by the deputy head of an organization that an individual is an acceptable security risk when accessing government information, assets and facilities, and when working with others in government.

The deputy head makes their decision based on the information and advice provided by the police and intelligence services, including the RCMP and CSIS. A security clearance may be granted, denied or revoked by the deputy head at any time.

Since clearance holders work in every part of government, a security clearance does not automatically grant the holder access to all information or assets at that level of clearance.

Safeguarding sensitive information is critical to the Government of Canada's ability to function and to keep Canada and Canadians safe. There are rigorous measures in place to prevent the release of classified information to anyone who does not strictly require it.

These measures are imposed with very good reason. The inadvertent release of sensitive information can result—and, very sadly, has resulted—in serious harm to individuals, even costing lives, Canada's national interest and our international relations. Mitigating this risk underpins everything that members of the security and intelligence community do. The release of information could mean risking the safety of human sources, exposing the tradecraft and other methodologies used to conduct investigations, and threatening the stability of indispensable allied relationships upon which Canada depends so heavily for intelligence. Put simply, if partners cannot trust Canada with their information, they will no longer provide it to us.

Similarly, if human sources do not trust that CSIS can protect them by safeguarding the information that they provide to us, our ability to recruit sources and collect information vital to Canadian security will be seriously impeded. We could also lose access to a valuable technical collection source that took years and expensive investments to develop.

What may appear in the first instance as information that's not especially sensitive or harmful, when viewed in conjunction with other publicly released information, can be used by adversaries to make inferences with very serious consequences. This is called the mosaic effect. Our adversaries carefully watch and track every word we say and release publicly, and we're very confident that they are watching now. They put together many pieces of information to identify our sources, our methodologies, our tradecraft and intelligence gaps. Many adversaries are very good at their jobs.

There are important principles that reinforce this system and that lie at the foundation of safeguarding all sensitive information. This is the need-to-know principle. An individual's specific duties and functions and the files they were working on at that particular moment in time are what establish their need to know for relevant sensitive information. Even the most senior officials at CSIS, who have the highest possible clearance levels, do not receive sensitive information that is not relevant to the current job and files that they're working on. In other words, there is no deemed need to know.

We need to ensure that sufficient information is disclosed to hold the government to account while also ensuring that classified information is protected. There are several critical avenues for review and oversight of classified information, including the National Security and Intelligence Committee of Parliamentarians, the National Security Intelligence Review Agency, the intelligence commissioner and the Federal Court, among others.

The people who work for these organizations have the necessary security clearances; they will receive the information classified as secret that they need for performing their specific jobs.

There are safeguards in place to ensure that no national security injury occurs as a result of disclosure of that information. These individuals are bound to secrecy under the foreign interference and security of information act, formerly known as the Security of Information Act, SOIA, and they must not knowingly disclose any information they obtained or to which they had access in the course of their duties and that a department is taking measures to protect.

At the same time, CSIS is making efforts to enhance its transparency, including in its public annual reports, which now say more than ever about its operations and the threat overview, and in its discussions with the media and the information it communicates to the public proactively.

We have taken extensive efforts to “write for release” information, for example in the proactive provision of chronologies of events to parliamentary committees. We've done that in the last couple of months.

Recent amendments to the CSIS Act through Bill C-70 further enhance CSIS's ability to share information, and we look forward to working more closely with parliamentarians as we up the national security conversation in this country.

We will be happy to answer your questions.

[The Chair, Liberal, Ben Carr]

We are getting going with our second hour of testimony.

We have a number of witnesses with us here today. I would like to welcome them.

From the Canadian Security Intelligence Service, we have Nicole Giles, senior assistant deputy minister, policy and strategic partnerships, as well as Bo Basler, director general and coordinator, foreign interference. From the Privy Council Office, we have Sean Jorgensen, director general and chief security officer. From the RCMP, we have chief superintendent Jeffrey Beaulac, acting chief security officer, departmental security. From the Treasury Board Secretariat, we have Mike MacDonald, senior assistant deputy minister, security policy modernization.

Thank you very much to all the witnesses who are here today to add their insight and guidance as we delve further into Bill C-377.

Ms. Giles, I understand you'll be speaking on behalf of the entire group. I will turn the floor over to you for five minutes.

I just have a friendly note for our witnesses. If you're not used to appearing in front of committees, you have those earpieces. If you are not using them, please make sure you place them on those stickers in front of you. Obviously, if they're on your ears, you can go ahead and use the function as normal.

With that, Madam Giles, it's five minutes for you.

[Alex Ruff, Conservative, Bruce—Grey—Owen Sound, ON]

I have no concerns with the ask. However, it really has nothing to do with my bill, because it deals with that next step. Should a committee down the road ever decide it wants access to secret information—no different from the special committees we've referred to already a number of times—in that process, the House of Commons assists in working with the security agencies to set up the appropriate protections necessary to have those meetings in a secure location or to handle the files, etc.

Will there be implications? Absolutely, but they're not really that relevant to my bill, because my bill addresses only applying for security clearance. I have no issues with the ask; I just don't think it's really relevant to the actual clause-by-clause study of Bill C-377.

[Michel Bédard]

In the context of Bill C-377 there is a “saving clause” for parliamentary privilege, and parliamentary privilege is not affected, so the intent of the bill—

[Michel Bédard]

I thank the member for her question.

I think this question puts an issue on the floor that is more general than what is before the committee right now, that is, the relationship between Parliament and the government when it comes to obtaining information. The bill sponsored by Mr. Ruff is about a very specific policy that would enable members to have access to the clearance process, while not guaranteeing a clearance.

If Bill C‑377 is enacted, I presume that some governance process will be established within the parties. The whips may have a role to play in selecting the members who will request clearances and determining what is done if a clearance is denied. I don't think that 338 requests would be sent to the government as soon as the bill is passed. I presume that the parties would exercise governance.

[Marie-Hélène Gaudreau, Bloc, Laurentides—Labelle, QC]

This suggests to me that our committee should first review the operation of the NSICOP, in the sense that it should meet the needs arising from the privilege of knowing, the right to know, rather than instituting a security clearance about what we do with the information we have, to make sure that when we request information, we can get it, so we are able to do our work properly. If we focused more on governance and how the parliamentary committee operates at present, might that be a potential solution, rather than enacting Bill C‑377 as is?