Procedure and House Affairs Committee on Oct. 3rd, 2024

[The Chair, Liberal, Ben Carr]

Good morning colleagues.

Good morning, everyone.

I hope you had a lovely few days in the Outaouais.

Welcome to meeting number 126 of the Standing Committee on Procedure and House Affairs.

Today we are continuing our consideration of Bill C‑377, An Act to amend the Parliament of Canada Act (need to know).

I just have a friendly reminder for witnesses and colleagues. Please make sure that your earpiece, when not in use, is placed on the sticker in front of you to protect the safety and well-being of our translators, who work so hard on our behalf.

With us today, we have two witnesses: Michel Bédard, law clerk and parliamentary counsel; and Marie-Sophie Gauthier, senior legal counsel and team leader of legal services.

Welcome.

Mr. Bédard, I'm not sure if you intend to split your time or if you'll be speaking on your own. However, we'll give you the five minutes to use, and then we'll go into our regular line of questioning. Once we hit the hour, we will suspend briefly in order to transition over to our second hour.

It looks like we're ready to go.

Mr. Bédard, the floor is yours.

[Michel Bédard, Law Clerk and Parliamentary Counsel, House of Commons]

Mr. Chair, members of the committee, thank you for your invitation to appear today regarding Bill C‑377, An Act to amend the Parliament of Canada Act (need to know), which has been referred to the committee after second reading in the House.

As you said, Mr. Chair, I am joined today by Marie‑Sophie Gauthier, senior legal counsel and acting team leader in my office.

We hope our testimony today will assist the committee in its consideration of this legislative initiative.

My office provides legal services and legislative drafting services to the House of Commons, its committees, members of Parliament, the Board of Internal Economy and the House administration. Our legislative drafting services include the drafting of private members’ bills, such as Bill C-377, and motions and amendments at committee and report stages. Our legislative drafting services are provided confidentially to members of Parliament, and the information I will provide today to the committee will factor in these expectations with regard to my office.

Bill C-377 proposes to amend the Parliament of Canada Act so that members of Parliament and senators who apply for a security clearance from the Government of Canada are, for the purposes of the consideration of their application, deemed to need access to the information in respect for which the application is made.

Access to information of the Government of Canada that is either protected or classified is a two-step process. First, there must be a need or justification to initiate the security screening process, which will result in the individual receiving a reliability status for protected information or a security clearance for classified information. Such a need or justification is traditionally identified by a government department or agency.

Second, there is the need-to-know principle, which restricts access to sensitive information to those whose duties and functions necessitate access to the information. A person is not entitled to access information classified at a certain level merely because they have the appropriate level of classification or clearance. They need to know the information as part of their functions, regardless of their clearance. I note that the unauthorized releasing of classified information may lead to legal consequences such as prosecution under the Security of Information Act.

A distinction must be made between access to protected or classified information on a need-to-know basis by individuals holding the appropriate level of clearance and the House of Commons parliamentary privilege to send for persons and records.

This power, generally exercised by committees, supports the role of the House as the grand inquest of the nation and is essential to the proper exercise of the House’s right to institute and conduct inquiries.

The power to send for persons and records would be unaffected by Bill C‑377. Moreover, new proposed subsection 13.1(2) of the Parliament of Canada Act would make this unambiguously clear by stating that the proposal is not to be construed as a way of “limiting in any way the powers, privileges, rights and immunities of the Senate or the House of Commons or their members.”

The privilege of freedom of speech would also be untouched by Bill C‑377 and members speaking in the House and committees would continue to benefit from a criminal and civil immunity for their words spoken as part of parliamentary proceedings.

That said, this immunity does not apply outside of parliamentary proceedings and members would be, as any other citizens, amenable before courts of law for words spoken or communication outside the House and committees.

This concludes our opening remarks. We would be happy to answer questions.

[The Chair, Liberal, Ben Carr]

Thank you, Mr. Bédard.

Mr. Ruff, the floor is yours for six minutes.

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

Thanks, Chair.

Thanks for coming today. I think you highlighted very clearly what my bill is trying to achieve here and why it's so important.

I have a couple of quick questions to highlight the first step of parliamentarians needing to have that access.

Are you aware of historical examples of Parliament asking to see classified or secret-level documents?

[Michel Bédard]

In your speeches in the House of Commons and before the committee, you referred to some examples.

There is, of course, the Winnipeg lab documents precedent. That was a few years ago. It led to a ruling from the Speaker. Eventually, there was an agreement reached between the government and the opposition as to how those documents would be made accessible to members of Parliament. As part of this process, a panel of parliamentarians was created. One of the conditions was that they get a security clearance.

This precedent was inspired by another one in 2009-10, during the previous government: the Afghan detainee documents. Similarly, there was an order for production and some resistance. There was dialogue between the opposition and the government, and the same deal was struck between them.

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

Since then, have there been any concerns flagged by Parliament about leaking information outside of government, now that Parliament has more members with a secret security clearance?

[Michel Bédard]

I'm not aware of any concerns that have been expressed.

The two precedents I referred to were limited to a number of members who received the declassified documents. Since then, there have also been other precedents. The Johnston report and related information was made available to some members who agreed to receive a security clearance. The government agreed to provide it to them, provided they went through the process.

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

I'll go to another subject.

Foreign interference has been very prevalent. There is this desire among parliamentarians. Some have flagged to the government and the House a need to get greater levels of detail and information, especially when there are threats against them.

In your opinion, would it be valuable to have these members at a higher security clearance so they can properly have access to information and intelligence that is potentially putting them at risk?

[Michel Bédard]

In such cases, what is important is that members be made aware and have the relevant information, so they can take appropriate measures to protect themselves.

Now, whether the information required to achieve that objective is provided on a case-by-case basis, and whether there's a need to share classified information with members so they can protect their security, I think this is a genuine need that should be addressed.

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

Can you speak about your office's involvement, should this bill pass and the clearances be granted? What role would you play? How long does it take?

When we look at historical examples where, ultimately, a decision was made.... It takes time to get a security clearance and have a proper vetting process, should you be successful. This delays the necessary accountability and transparency. I don't mean transparency in the public view. It's about transparency to enable parliamentarians to do their jobs.

[Michel Bédard]

It is important to underline that, in the government security screening process, the House of Commons is not involved. It's a process led by the government.

Once a person has demonstrated that, as part of their function, they need access to classified information, they go through the screening process and receive the clearance. Then there is a second step: the need to know regarding specific information. The custodian of the information that is classified will assess whether or not this person needs to know the information.

It's a process that belongs with the government. Our office and House administration will not be involved in that process.

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

For my final question, do you have any suggestions for amendments?

Some of the concerns that have been raised during my appearance and testimony, even on Tuesday.... There was some confusion around the two-step process and understanding that my bill was only about allowing parliamentarians the right to apply.

Do you have a suggestion for an amendment that would make that clear?

[Michel Bédard]

This is indeed something that I noted when I was reviewing the bill as I was preparing for this appearance.

As I mentioned, access to classified information is a two-step process. You were very clear in the House and before this committee that you want to address the first step of the process, so that members of Parliament are deemed, as part of their function, to require access to classified information from time to time. The second step of the process is the need to know, which is on a case-by-case basis.

I think there might be some confusion or some ambiguity with the bill because, while you're addressing the first step of the process, the need to know is really terminology that is used for the second step of the process.

If there's a will to address this ambiguity or if the committee feels that there's ambiguity, we'll be pleased to assist the committee in proposing and preparing the appropriate motions and amendments.

[The Chair, Liberal, Ben Carr]

Thank you very much, Mr. Ruff.

Ms. Fortier, the floor is yours for six minutes.

[Mona Fortier, Liberal, Ottawa—Vanier, ON]

Thank you, Mr. Chair.

Thank you for being here today, Mr. Bédard.

I think, thanks to your expertise, we are finally able to understand your interpretation of Bill C‑377 and the repercussions it will have if it is passed as it stands.

My questions will relate to your expertise and experience. If you have any suggestions to make to clarify anything for members of the committee, we are always prepared to consider them.

My first question relates to parliamentary privilege.

What can you tell us about the relationship between this privilege and the right to information?

Do parliamentarians have an inherent right to information?

[Michel Bédard]

As I said in my opening remarks, there is the parliamentary privilege to send for persons to question them and the parliamentary privilege of ordering the production of records. When those privileges are exercised, they enable the House of Commons or a committee to access documents.

However, the exercise of those privileges requires the decision of a committee and a decision of the House. A parliamentarian may not exercise those privileges as an individual.

[Mona Fortier, Liberal, Ottawa—Vanier, ON]

Does Bill C‑377 as it now stands have an impact on those privileges?

[Michel Bédard]

Bill C‑377 would mean that members who so request would be able to follow the process provided to get a security clearance. There is a clear saving provision in the bill, to avoid weakening the privileges.

The purpose of the bill is neither to claim nor to create new privileges. It would therefore not allow members to get more rights to access information, but it would allow them to get the necessary security clearance for accessing the information the government might disclose to them. It would still be the government that made these decisions, because it is still information that belongs to the government.

[Mona Fortier, Liberal, Ottawa—Vanier, ON]

Yes.

[Michel Bédard]

It is therefore up to the government to decide whether or not it wants to disclose information to members that they ask for, because the information belongs to the government.

[Mona Fortier, Liberal, Ottawa—Vanier, ON]

In your opinion, are there already processes or mechanisms that would allow parliamentarians to get the same level of access as what is proposed in Bill C‑377?

[Michel Bédard]

Certain precedents have already been discussed before the committee. Special groups of parliamentarians have already been set up to provide access to certain information on certain conditions. One of the conditions that had to be met in order for the records to be made available was that the members be able to get a security clearance.

If there were cases of foreign interference, the government would certainly be able, if it wanted, to disclose more information to the members affected if they have the necessary clearances.

[Mona Fortier, Liberal, Ottawa—Vanier, ON]

In your opinion, if Bill C‑377 were enacted, what organization would be responsible for doing the security checks of members and holding the authorizations?

[Michel Bédard]

That is essentially a government exercise. The House of Commons is not involved.

In the House of Commons, when an employee has to get a security clearance, our contact is the Privy Council Office, and CSIS, the Canadian Security Intelligence Service, is also involved in the process.

[Mona Fortier, Liberal, Ottawa—Vanier, ON]

After getting this security clearance, how do you think access to secret classified information would be obtained? Would this be paper copies in a secure location, a facility with a secret classification?

Do you have any ideas about how things should be done so that parliamentarians are able to use this clearance?