National Defence Committee on Feb. 14th, 2024

[The Chair, Liberal, John McKay]

I bring this meeting to order. I thank colleagues for being here as timely as can be. We're only about 10 minutes behind, which is pretty good for us.

We have with us today an old friend of the committee, Monsieur Drapeau, who has been here many times, as has Mr. McSorley. We appreciate both of you being here.

We also have Richard Shimooka, senior fellow at the Macdonald-Laurier Institute, by video conference. I appreciate you joining us today.

All of you are familiar with the proceedings of the committee. We give five minutes for opening statements, and then we move to questions. Since we have a 90-minute session, I'm going to propose going three rounds in sequence.

With that, given that video conferences are inherently unstable—we don't trust them—I'm going to ask Mr. Shimooka to proceed with his five-minute opening statement. Then I'll proceed to Mr. Drapeau and Mr. McSorley.

[Richard Shimooka, Senior Fellow, Macdonald-Laurier Institute, As an individual]

Thank you very much for letting me speak today to the committee on the topic of transparency within the Department of National Defence and the Canadian Armed Forces. It is of great relevance for me for a variety of reasons, but none so much as it deeply affects my ability to undertake research in defence policy and strategy in Canada. The most effective tools I possess are the Access to Information Act system and interviews with policy-makers.

I'm going to focus my discussion on how these areas have changed over the past 20 years and affected transparency overall.

Why is this research important? The traditional and most immediate view is that this is a critical form of independent accountability and oversight on government. However, there are other benefits. Our system of governance lacks institutional knowledge. The history that has guided policy creations is frequently forgotten, even if the policies remain in place. Filling that gap can assist policy-makers craft better policies in the future.

Finally, such research can benefit the government to better communicate policies to domestic and foreign audiences. Even the most talented ministers will be limited in their opportunity to explain these contextual factors. Analysis by outside researchers can be an important communication source to help advance policy goals.

Unfortunately, undertaking public policy research has become increasingly challenging over the past two decades. I started around 2002, when transparency and oversight were heavily influenced by the fallout of the Somalia inquiry. It revealed systemic efforts by the department to obfuscate aspects of the crisis, which extended to ATI. The lack of transparency forced the department to reform how it operated for the next decade.

Over the past 20 years, ATI has become an increasingly ineffective system to obtain useful information on a timely basis. In 2002, a relatively straightforward ATI query would generally provide a good return of documents. A set of ATIs I used to examine the 1996 intervention in Zaire provided over 2,000 documents with a very high level of complexity, including a large number of foreign confidences, advice and sensitive information. The original request took about a year to be released and provided an in-depth view of what occurred during that operation. This would be unheard of today.

The number of pages has decreased year on year, and officials frequently employ highly restricted interpretations in an effort to suppress the disclosure of some documents, or claim that no such records have been found. In other cases, requesters are advised that the scope of their request is too broad and are forced to truncate their query. Finally, requests frequently take years to be fulfilled, severely diminishing ATI's value as a research tool.

Not all of the reasons for this situation are necessarily intentional. The ATI system today relies heavily on departmental staff to assess documentation for release, the same staff who are already overburdened with their day-to-day work. It is far from an ideal approach to handling ATI requests.

Concurrent to the ATI system's enfeeblement, there's been a consistent effort to curtail the ability of officials to discuss policies with interested parties. In the years after the Somalia inquiry, DND employed a fairly liberalized communication policy, and access to officials was fairly good. One of the most helpful aspects was that departments made available subject matter experts to discuss specific areas.

However, in 2005, the policy changed dramatically, in part due to the belief that the war in Afghanistan required message discipline, and a preference by the Harper government to centralize communication strategies. Access to information was curtailed and replaced by superficial media response lines from public affairs representatives.

Furthermore, the ability to maintain working relationships with officials has become increasingly strained. One of the most serious ruptures occurred after 2015, when Vice-Admiral Mark Norman was charged with a breach of trust and members of the future fighter capability project were forced to sign a gag order. These events had a serious chilling effect on the bureaucracy, as individuals felt fear towards the potential consequences of talking outside of government. While we have recently witnessed a greater engagement by defence officials in the past year, there remains a significant reluctance to speak with candour on issues.

Where are we today? Overall, I believe that the poor state of transparency in defence has largely been counterproductive for the government. Public understanding of the military is at an all-time low and contributes to the lack of support. This is in part due to the lack of open information available and the adversarial relationship that has developed between government and outside bodies over access to information.

Unfortunately, I don't have an easy solution to this problem. There is a deep-seated view that the current approach is the only way to successfully manage public relations. Seeing past the immediate situation to a radically different future is a tough sell for any government. I fear that it will require another Somalia-scale scandal to impel a government to shift its behaviour, which will benefit no party or the country as a whole.

Thank you.

[The Chair, Liberal, John McKay]

Thank you, Mr. Shimooka.

Go ahead, Mr. Drapeau.

[Colonel, Retired) Michel Drapeau (Professor, As an Individual]

Thank you. It's an honour for me to appear before this committee.

Let me open briefly by outlining my background.

I first served in the Canadian Armed Forces for 34 years, retiring in 1993. At the time of my retirement, I was acting as the corporate secretary of the National Defence headquarters. Soon after, I attended law school. After articling in the Federal Court of Appeal, I was called to the Ontario bar—exactly 22 years ago today.

On this day in 2002, I opened the first law practice in Canada specializing in military law. In 2009, the University of Ottawa appointed me as an adjunct professor in the faculty of law, where I taught military law and access to information and privacy. I've since co-authored a number of legal texts, including one on federal access to information and privacy and another on Canadian military law.

As part of my law practice, I use the access regime on a regular basis on behalf of my clients—individuals and corporates—in order to gain access to information and public records in the pursuit of their individual claims. To give you an idea of the scope of my reliance on the access and privacy law, suffice it to say that since September 2007, my firm has submitted a total of 4,645 access requests under the federal access law and some provincial access laws to over 250 federal institutions. We did not hit them all, but we hit a number of them. As you may well imagine, in the process, we have come across every frustration possible.

In my experience, the federal access and privacy processes are bogged down by long delays, which are made even worse—I don't think this part has been discussed by your committee yet—by the Office of the Information Commissioner and the Office of the Privacy Commissioner. They are tasked with investigating complaints and take, on average, a minimum of one year to complete their investigations. This is enough to test the quality of perseverance and patience of most users in the access regime.

I want to cover three other aspects.

The first one is grievances. Also as part of my law practice, we regularly represent military clients whose submission is grievances. In a six-page brief that I prepared for distribution to members in both English and French, I've provided you with examples that we have come across over the last 90 days in the office, specifically on this subject and others.

The grievance system's malfunction at the moment is due, I think, in large part to the extraordinary time taken by the final authority in a grievance process. Who is the final authority? It's the chief of the defence staff.

In my experience, it is not unusual for the CDS to take between four and five years to issue a final decision. Such a prolonged delay leads to great frustration and a feeling held by grievers of being unappreciated and unvalued. Only when the chief of the defence staff signs the final decision is a griever able to go to the Federal Court for a judicial review to get justice.

Finally, I want to talk about the Military Police Complaints Commission. As part of my practice, I also submit complaints to the MPCC on behalf of clients. I have no quarrel with the MPCC. However, as part of the MPCC complaint process, complaints are first sent to the provost marshal in the section called the office of professional standards to examine the complaint. That process takes months and years. By way of example, yesterday I wrote to the chair of the MPCC, explaining that one of the complaints has been sitting with professional standards for two years and four months and the complainant is waiting for a decision by the MPCC.

On that, I'll conclude. I will be happy to take your questions.

[The Chair, Liberal, John McKay]

Thank you, Mr. Drapeau.

Mr. McSorley, you have the final five minutes.

[Tim McSorley, National Coordinator, International Civil Liberties Monitoring Group]

Thank you, Chair and members of this committee, for the invitation to speak with you today for your study on transparency at the Department of National Defence.

I'm the national coordinator of the International Civil Liberties Monitoring Group, a coalition of 45 Canadian organizations that, since 2002, has worked to address the impact of national security and anti-terrorism laws on civil liberties in Canada and internationally.

As you can imagine, working in this field has meant that we often come up against issues of secrecy and transparency. A large part of our work has been to push back against the ever-growing creep of secrecy and the ongoing erosion of transparency under the guise of protecting national security.

Transparency itself is key for accountability and the protection of fundamental rights and freedoms enshrined in the Canadian charter. Secrecy breeds unaccountability, which invariable leads to abuses. This is especially troubling when it comes to areas like national security and national defence, which engage some of the most complex issues and often run the risk of the gravest rights violations.

Given our specific mandate, our work has focused on the Communications Security Establishment, which falls under the mandate of National Defence. We have also monitored recent developments regarding National Defence's intelligence-gathering operations and Canada's past actions in Afghanistan.

While CSE is just one piece of the Department of National Defence, it carries out a wide range of activities, including intelligence collection, surveillance, and active and defensive cyber-operations. As per its mandate, CSE also provides support across National Defence and to other government departments. It also happens to be one of the most secretive bodies, not just within DND but within the entire Canadian government.

Given that our concern is transparency and accountability, I would like to direct your attention to the CSE and DND's relationship with national security review bodies—the National Security and Intelligence Committee of Parliamentarians and the National Security and Intelligence Review Agency. Both are relatively new bodies. Their raison d'être is to provide the kind of accountability that ostensibly cannot be provided directly to the public because CSE, DND intelligence, and other national security agencies work in secret. These review bodies are essentially stand-ins for the ability of these national security agencies to be accountable directly to the public.

These review and oversight bodies are sworn to secrecy and work in secure facilities. Much of the work itself is redacted when it is released publicly. Given all of these precautions, a person would assume and expect that CSE, the Department of National Defence and other bodies would co-operate fully with the review bodies. Unfortunately and shockingly this isn't the case.

Both NSICOP and NSIRA have reported strongly and on multiple occasions that the CSE in particular is slow to provide information, does not provide access to files in a way that allows for independent research and verification, and fundamentally obstructs these bodies in their ability to carry out their work.

For example, NSICOP reported that the departments it reviews, including the CSE, have refused to hand over information based on reasons that are not allowed for by the law, or have simply decided to refuse to provide relevant information based on their own decisions. NSIRA has reported that CSE has failed to establish a system to grant it independent access to information, resulting in CSE staff themselves determining what information to provide to NSIRA, making it impossible to ensure the independence of a review. NSIRA also reported significant delays in CSE providing it with information, thereby disrupting the progress of reviews and violating the CSE's legal requirements towards NSIRA.

We've raised these issues on multiple occasions, but time and again, there has been no action, no accountability, for this obstruction.

These concerns go further than the CSE. It is important to remember that one of the events that led to the creation of NSICOP is the never-resolved controversy of the transfer of Afghan detainees from Canadian Force's custody to the Afghan army, despite credible allegations and accounts of torture and abuse. These review bodies are in place, imperfect as they may be—and we can discuss ways that they may be improved—to help ensure that such abuses cannot pass in secret.

When national security agencies unlawfully withhold information and obstruct and delay reviews, and when there are no consequences for doing so, it poses a grave risk, not just to fundamental freedoms but to the safety and lives of individuals around the world.

My time is limited. I have other recommendations we can discuss.

I'll just leave with the point that both the legislation enacting NSICOP and the legislation enacting NSIRA and the CSE—the National Security Act, 2017—have expired the statutory deadline for review by parliamentary committees. Engaging in those reviews might be one way to further explore ways to get to the problems and address the issues at hand.

Thank you.

[The Chair, Liberal, John McKay]

Thank you, Mr. McSorley.

We'll now go to our six-minute round.

We're starting with Mr. Kelly.

Go ahead, Mr. Kelly.

[Pat Kelly, Conservative, Calgary Rocky Ridge, AB]

Thank you.

Thank you, Mr. Drapeau.

When I was a rookie member of Parliament, shortly after this government was elected on a promise of openness by default and to be the most open and transparent government in history, I was at an ethics committee meeting where you were a witness. During that meeting, you talked about the motivation and lack of motivation to fully respond to requests within government. You said:

It's because they understand, they read the signals. They read the signals from the centre, the Clerk of the Privy Council, the deputy minister, the assistant deputy minister, or director general.

There's a higher penalty to be paid if you're zealous in releasing records that you know are being requested and proceeding with them sharply, and only excluding what needs to be excluded, where you have the discretion not to exempt certain parts, and having the information out there, than in saying no, and delaying or invoking exceptions and letting the requesters go through the complaint mechanism.

It has been eight years. How much has changed?

[Col (Ret'd) Michel Drapeau]

I haven't changed my mind on it. I would say exactly the same words.

[Pat Kelly, Conservative, Calgary Rocky Ridge, AB]

We're here eight years later, and we still have—

[Col (Ret'd) Michel Drapeau]

As I said, Mr. Kelly, there is no penalty. If a request is not met with a disclosure of documents or not answered—both of them happen—the requester can file a complaint. If he files a complaint, he has to wait a minimum of a year—normally it's two years—before he gets a decision, which may or may not go in his favour. The complaint mechanism, in fact, is at fault.

At the same committee, I said that perhaps we should have the audacity to give the Information Commissioner a deadline so that she has to come up with a decision on a complaint, say, within a year.

[Pat Kelly, Conservative, Calgary Rocky Ridge, AB]

The Commissioner has testified at multiple committees that her office is hopelessly under-resourced to do what you have described because they are overwhelmed with complaints.

[Col (Ret'd) Michel Drapeau]

I disagree.

At the same committee, I said that it's one of the tribunals with the heaviest senior management. They have three assistant commissioners and many DGs for a staff of 90 people at the expense of having investigators.

[Pat Kelly, Conservative, Calgary Rocky Ridge, AB]

Does a culture of secrecy still pervade at DND and within the CAF?

[Col (Ret'd) Michel Drapeau]

I wouldn't call it a culture of secrecy—that's too nasty—but it's inefficiency. Call it what you want; the system doesn't work. I think you would be faulted if you only looked at the defence department or the organization. They try to do the best they can with the resources they have.

Let me tell you, the system of access to information I think costs taxpayers $90 million per year, if I look at the budget over the past year or so. It's the only system of that particular value that I know of in Canada that has never had a system audit or an AG examining whether or not the various ATIP offices in various organizations have the staff and procedures required and examining the manner in which they can deliver the product. They are left to their own devices, and it's a problem.

[Pat Kelly, Conservative, Calgary Rocky Ridge, AB]

Thank you.

I would love to keep going. I want to get Mr. Shimooka into it too, though.

Mr. Shimooka, you published a report through Macdonald-Laurier in 2019, “The Catastrophe: Assessing the Damage from Canada's Fighter Replacement Fiasco.” You spelled out how the political persecution of retired Vice-Admiral Norman by this government put a chill on DND.

Can you describe the depths of the chill on would-be whistle-blowers, please?

[Richard Shimooka]

Certainly. I wouldn't even say it's would-be whistle-blowers.

As I said in my prepared remarks, I think there was a general decrease in regular staff members' willingness to talk about day-to-day issues. Much of it may not be controversial, but certainly the twin events—as I said, Mark Norman's charges and the gag order that was put in place, which was pretty substantial and was not well received at all within DND—made individuals reassess whether they should be talking about it and ask whether it could come up in some sort of review. I think that really caused trouble for a lot of researchers, whereas previous contacts had been willing to talk or discuss—

[Pat Kelly, Conservative, Calgary Rocky Ridge, AB]

You mentioned the problem within the CAF itself. How does a lack of transparency affect morale within the CAF?

[Richard Shimooka]

I think it is significant. I could talk to you about specific cases where individuals were aghast at what occurred. We entrust these individuals in a lot of cases—

[Pat Kelly, Conservative, Calgary Rocky Ridge, AB]

Is it a contributing factor to the crisis of retention and recruitment?

[Richard Shimooka]

Absolutely. I can think of specific cases where individuals left because of the gag order.

[Pat Kelly, Conservative, Calgary Rocky Ridge, AB]

Thank you.

Do you have any outstanding ATIPs from 2019 or earlier?

[Richard Shimooka]

I do. I have one that was filed early in 2019, specifically to do with the Super Hornet purchase. I never received a reply.

[Pat Kelly, Conservative, Calgary Rocky Ridge, AB]

Is this common? At our meeting on Monday, it looked like Mr. Bezan might have been the only person in Canada with an outstanding ATIP, but you have one.

Are you aware of anyone else? Do any of your colleagues at Macdonald-Laurier have outstanding ATIPs from 2019?

[Richard Shimooka]

I would have to take a look. I heard the minister's response, and maybe these are the only five that exist out there, but I'd be surprised if they were.