Evidence of meeting #84 for Government Operations and Estimates in the 42nd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was process.
A recording is available from Parliament.
9:50 a.m.
Professor, Civil Law Section, University of Ottawa, As an Individual
You are talking about sole-sourcing.
9:50 a.m.
Conservative
Alupa Clarke Conservative Beauport—Limoilou, QC
That's right.
This letter must have been received by the Department of Public Services and Procurement. It has been a month and a half or two months since I have asked to see the letter, so that I have evidence that there is a capability gap. However, the national security exception is not even discussed. Even at a lower level, we have absolutely no access to this kind of tangible evidence of untendered procurement. So there is clearly a problem there, even before we look at the national security issue.
9:50 a.m.
Liberal
Yasmin Ratansi Liberal Don Valley East, ON
You won't have an answer because you have used up all your time.
Mr. Drouin, you have five minutes.
9:50 a.m.
Liberal
Francis Drouin Liberal Glengarry—Prescott—Russell, ON
Thank you, Madam Chair.
Mr. McLeod, just to get back to my question, I understand the importance of CITT. We need it. You've convinced me that it should have some sort of oversight over whether an NSE is justified, and not a simple sign-off.
Speaking of the simple sign-off, you mentioned your experience in your opening remarks. How do they justify that NSE? Is it an ADM or a DG who has the sign-off authority?
9:50 a.m.
Head, Commercial Litigation, Mann Lawyers LLP, As an Individual
I think it depends on the department, but yes. The NSE letters that I've seen show a reason, and there's an approval.
9:50 a.m.
Liberal
9:50 a.m.
Head, Commercial Litigation, Mann Lawyers LLP, As an Individual
It's nothing more than that.
I'm just going to get back to your last point and also to Mr. Clarke's point about having parliamentarians overseeing this process. I think the risk there is in the timing.
The one thing that CITT does really well is move fast. There's a 10-day limitation period for bringing a complaint with the CITT, 10 working days. It can be extended to about 20 working days. That's lightning speed for a process. This is not a court process. It's not getting into the courts. This is an administrative body, and the CITT rules set out an extremely fast and efficient process.
9:50 a.m.
Liberal
Francis Drouin Liberal Glengarry—Prescott—Russell, ON
Yes, I don't think I would want to be involved in a quasi-judicial battle between a company and the state. I don't see my role as that, but opinions may differ.
Just on your thoughts about the importance of the procurement process, we've seen that most departments will rely on PSPC now, or public works, to perform their procurement for departments. SSC is a bit different. It manages its own procurement. I'm somewhat worried that by doing that, the reporting, the structure of the organization, doesn't provide the confidence to companies to go to that other organization and say that SSC or whatever department is doing something funny, and ask that it look into it. What's your opinion on that, having dealt with clients before?
9:55 a.m.
Head, Commercial Litigation, Mann Lawyers LLP, As an Individual
I think you have a legitimate concern there.
Oftentimes, you see the back-and-forth between PSPC and the department where PSPC is running the procurement process and the department is providing the technical specifications. In some cases that I've been involved in, you can see where there is discourse and disagreement between PSPC and government departments on whether or not those technical specifications are appropriate, whether they're appropriate in the procurement context, whether they are too specific, and whether they effectively eliminate all but one bidder and effectively sole-source. You can see these discussions going on in some cases.
I think you've raised a valid concern.
9:55 a.m.
Liberal
Francis Drouin Liberal Glengarry—Prescott—Russell, ON
This committee is studying that right now, and this is probably one of our last meetings, unless we want to go on. If we were to make a recommendation, would it be that we allow the CITT to specifically get involved in NSE justifications?
What would you see if we were to make recommendations? I'm asking all three members.
9:55 a.m.
Head, Commercial Litigation, Mann Lawyers LLP, As an Individual
Honestly, my recommendation at this point I think would be to wait and see what the CITT does. We've only had two decisions where they've accepted jurisdiction and looked at this. They have two paths here that they're going to go down, and it's going to happen as bidders bring cases.
Either they're either going to say that they're going to look at this very lightly, and that as long as there's a reason, they won't look at whether it's a legitimate reason or not. They'll say that as long as you've provided a reason, they'll accept that as true, and based on that reason, then, yes, limiting the fairness requirements is appropriate. In that case, I think I would suggest that something else happen: that either there's more oversight internally or the CITT's mandate is expanded so it's clear that they have a chance to look at the actual concern.
Or the CITT may go down the other road, which means diving into the depths and taking a look at the rationale as to whether or not there's a legitimate national security interest at play in invoking the national security exception.
9:55 a.m.
Liberal
The Vice-Chair Liberal Yasmin Ratansi
Thank you very much.
We'll go now to the three-minute round and Mr. Weir.
9:55 a.m.
NDP
Erin Weir NDP Regina—Lewvan, SK
To stay on this idea of the CITT being able to review the invocation of national security exceptions, I think an alternative view would be that those decisions should be reviewable by the regular court system. I believe that the federal government is actually appealing the Hewlett-Packard decision on that basis, so I would invite witnesses to comment on that perspective.
9:55 a.m.
Head, Commercial Litigation, Mann Lawyers LLP, As an Individual
This goes back to an earlier question. I'll be very brief.
In a procurement dispute, there are a number of routes you can take. One is to the CITT. One is to the Federal Court, with an application for just a review, an administrative process where you're asking the court to determine whether a decision was made with the proper authority. The other is to go off to the regular courts in seeking damages.
In the context of the application for judicial review, that's where I can see the ability to challenge the invocation of a national security exception if you're impacted by it. The Federal Court will look at whether or not the decision was made with the proper authority. I don't think you're going to get them to look at whether or not there's a legitimate national security interest at play.
9:55 a.m.
Fellow, Centre for Security, Intelligence and Defence Studies, Norman Paterson School of International Affairs, As an Individual
I am hesitant about the judgment of what is or is not a security issue, which is the responsibility of the executive to interpret, having a number of bodies anywhere, and even a committee of Parliament, engaging in a critique of it.
On the other hand, apart from that, all that we've heard this morning in terms of oversight and scrutiny I think is fine. I'm just not excited about the possibility of a discussion of the interpretation of what the executive has decided.
9:55 a.m.
Professor, Civil Law Section, University of Ottawa, As an Individual
If I may add to that, when courts or tribunals review decisions that are made by the executive and that have a policy component, they typically show deference, in the sense that they do exercise some form of control but they recognize that the executive has a margin of discretion.
They typically ask themselves if the executive decision was reasonable. They don't ask themselves what decision they would have made had they been in the Prime Minister's shoes or the ADM's shoes. Rather, they look at reasonableness. It's the same thing for security certificates, for example. This is a standard of a review that has proven practicable and that does not intrude too much on the kind of discretion that is necessary when matters of national security are at stake.
10 a.m.
Liberal
The Vice-Chair Liberal Yasmin Ratansi
Thank you, Mr. Weir. Your time is up.
We're going into one more round. We have half an hour, and I want the committee's indulgence. Could we go with five at five minutes, so that you will get your five, you will get your five, and you will get your five? That way we will have five minutes for committee business. Is it agreeable that instead of seven minutes we're going to go to five minutes?
With that, Madam Shanahan.
May 2nd, 2017 / 10 a.m.
Liberal
Brenda Shanahan Liberal Châteauguay—Lacolle, QC
Thank you very much, Madam Chair.
Really, I must thank the witnesses this morning, because you are bringing a degree of subtlety to an area in which too often, especially after events of 9/11, and terrorism on our continent, it's been very easy to invoke fear and to invoke issues of national security to effectively take away individuals' rights, let alone to get into projects of questionable cost and effectiveness.
The reason we've called you here is to learn more about the use of the national security exception in other countries and how we can improve that application here, particularly in regard to IT services, to Shared Services.
For you, Mr. Cox, how does Canada compare to our Five Eyes allies in the use of exemptions with IT infrastructure, which admittedly is a whole new territory? We're not talking about weapons and so on, but it can be just as effective a weapon.
10 a.m.
Fellow, Centre for Security, Intelligence and Defence Studies, Norman Paterson School of International Affairs, As an Individual
From the papers I read over the weekend, my general impression is that Canada is the calmest of the Five Eyes in using this. All of the others have a more acute interpretation of security—the Americans and the British, and even the Australians. I don't have any specifics in terms of tables or quantities or times of use, yet this is the impression I get from the reading I've done. So in comparison with our Five Eyes allies, I don't think we are at all overenthusiastic in the use of the NSE. I don't think we are using it as much as the others are.
10 a.m.
Liberal
Brenda Shanahan Liberal Châteauguay—Lacolle, QC
Specifically to IT, to Shared Services, are we in line with the others? Have they done the same thing with their IT?
10 a.m.
Fellow, Centre for Security, Intelligence and Defence Studies, Norman Paterson School of International Affairs, As an Individual
I can't speak to the details of the other government departments in the rest of the countries, but I'll give you a specific example that isn't well known that impacts in this area, which may sort of eliminate the competition. It happens fairly often in the area of cryptological equipment, and the people who are the most advanced in that in the world are the Americans. In terms of the Five Eyes, you will occasionally have the Americans saying here's a piece of equipment that all of us have to have, and it's a question of getting it or not, and therefore staying in the Five Eyes or not. There are occasional examples of that over time where the Americans have said, here's a neat piece of equipment, and that automatically invokes an NSE, and Canada says okay.