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.
Professor, Civil Law Section, University of Ottawa, As an Individual
Certainly.
Liberal
Ramez Ayoub Liberal Thérèse-De Blainville, QC
It is always said that an out-of-court settlement is better than one arising from a ruling. If it's a process that works, so much the better.
Professor, Civil Law Section, University of Ottawa, As an Individual
Liberal
Professor, Civil Law Section, University of Ottawa, As an Individual
I think there are internal processes within the public service. Of course, internal controls are required, and the Auditor General must be able to conduct inquiries into the bidding processes in order to have an overall perspective. He must be able to determine whether the rules have been followed, for instance.
Liberal
Ramez Ayoub Liberal Thérèse-De Blainville, QC
I was wondering who determines that it's a national security exception. Doesn't this decision lead to protection and a process that ultimately eliminates certain procedures?
Professor, Civil Law Section, University of Ottawa, As an Individual
That's right.
What I understand from the testimony in February and the tribunal's decision that was referenced is that, rather than proceeding on a case-by-case basis, the government decided to categorically invoke the national security exception, meaning all bids related to the government's computer systems. The government also categorically invokes the effects, in that, according to the government, it eliminates—
Liberal
Professor, Civil Law Section, University of Ottawa, As an Individual
In my view, this is not supported by the legislation nor by the Agreement on Internal Trade. The exception must always be linked to a specific case, there must be a justification.
Liberal
Professor, Civil Law Section, University of Ottawa, As an Individual
Only to the extent that it could be demonstrated that, in all cases of the category, there is a real concern. There may be categories like that. Perhaps it can be said that in all computerized bidding cases, information related to the architecture of the system will be kept confidential, for example. Yes, I think it's possible to say that. However, it went much further. It was said—
Liberal
The Vice-Chair Liberal Yasmin Ratansi
Thank you very much.
We go now to the five-minute round.
Mr. McCauley.
Conservative
Conservative
Alupa Clarke Conservative Beauport—Limoilou, QC
I have a quick question. When you say that the Canadian International Trade Tribunal should be the one to determine whether the use is appropriate, do you mean before there is a challenge?
Professor, Civil Law Section, University of Ottawa, As an Individual
Conservative
Alupa Clarke Conservative Beauport—Limoilou, QC
So we need a mechanism that comes before a challenge. Don't you think it should be parliamentary?
Professor, Civil Law Section, University of Ottawa, As an Individual
Yes, maybe so.
I believe that before there is a challenge, there must be internal processes within the public service to ensure that the exception is not invoked excessively. Since the public service is under the control of Parliament, you may have a role to play in this regard.
I don't think it's easy for a committee like yours to review on a case-by-case basis all the public tenders that the government submits in a year. Your role would probably be to ensure that the government is putting in place procedures so that the national security exception is invoked for more specific contract categories, and also to clarify what aspects of the applicable rules should be excluded from the Agreement on Internal Trade, for example. You might say that this or that rule won't apply, and not just say there will be no more control or rules. That is the meaning of the general exemption currently being invoked.
Conservative
Alupa Clarke Conservative Beauport—Limoilou, QC
I understand, thank you.
I'll give Mr. McCauley the floor.
Conservative
Kelly McCauley Conservative Edmonton West, AB
Thanks.
Mr. Grammond, you were actually answering some of the questions I was going to ask. You mentioned setting up strong external controls on NSEs and a neutral review process. I wonder if you could expand a bit on how you might see that set up.
The reason I ask is that, at a previous meeting on NSEs, we heard one of our assistant deputy ministers who signed off on NSEs basically saying she automatically approved everything, including photocopy paper and paper clips, which obviously are hardly national security issues. I'm wondering if you or any of the three of you could give us a bit of feedback in the very short time we have on how you might see the strong external controls that you mention.
Professor, Civil Law Section, University of Ottawa, As an Individual
First, you have to maintain the power of the tribunal to assess whether the exception has been invoked rightly or wrongly.
Professor, Civil Law Section, University of Ottawa, As an Individual
Before that, if you have that rule in place, it will force the public service to say to itself, “When we want to invoke the national security exception, we need to have a specific rationale, and we need to identify which effects it will have in particular. Does it mean we will keep this kind of information confidential? Does it mean we will suspend a particular rule dealing with fairness to bidders?”, and so on. We don't just invoke the exception and that's it.
Possibly this committee could ask the government what policies it has put in place to ensure that the national security exception is justified when it is invoked. This would discipline the public service to invoke the exception only when it is actually mandated.
Conservative
Head, Commercial Litigation, Mann Lawyers LLP, As an Individual
I think it can be done through the CITT, if you're looking for external controls.
Conservative
Kelly McCauley Conservative Edmonton West, AB
I mean external controls so it doesn't have to get to the CITT, and so we don't end up with an ADM just automatically signing off—like we've seen in Shared Services—a blanket NSE on everything. How do we set up internally so that it becomes an exception rather than a rule?