National Defence Committee on Feb. 14th, 2024

[Col (Ret'd) Michel Drapeau]

It is absolutely essential. If you want to protect the rule of law, that's one main aspect of it. We don't want to return to what it used to be, having brown envelopes and people feeling compelled to leak information to get attention to it. Someone exercising his quasi-constitutional right to put a right of access to documents should have it, if not in 30 days then very close to it, and that should be the rule, not the exception. At the moment, it's not.

A couple of weeks ago, we received an answer to four of our requests, a decision that authorized the organization 1,000 60-day extensions. What do you do? We had to submit a complaint to the Information Commissioner. It will take two or three years before we get it.

There's no disclosure there. It's creating a parallel avenue for getting access to information. That's what will happen.

[Chad Collins, Liberal, Hamilton East—Stoney Creek, ON]

I have one last question, very quickly, on cost. I know you've made past recommendations on revising the fee structure for those participating in the process. Can you provide recommendations in that regard?

[Col (Ret'd) Michel Drapeau]

I'm not so sure we should be having any costs at all if it's a quasi-constitutional right, as there are only a few of them. I think you shouldn't be asking for it. Government should be paying the freight. It does in any event, as five dollars does not cover the cost of a single request. In fact, it's probably creating five dollars' worth of costs to handle the cheque and process it.

[Chad Collins, Liberal, Hamilton East—Stoney Creek, ON]

I think you're right.

[The Chair, Liberal, John McKay]

Thank you, Mr. Collins.

That completes the second round. For the third round, we have MPs Fast, Lalonde, Normandin, Mathyssen, Bezan and Fisher.

Mr. Fast, you have five minutes. Welcome to the committee, by the way.

[Ed Fast, Conservative, Abbotsford, BC]

It's good to be with you.

Mr. Shimooka, in 2019, the Macdonald-Laurier Institute published a report entitled “The Catastrophe: Assessing the Damage from Canada’s Fighter Replacement Fiasco”. You were the author. You spelled out how the political prosecution of retired Vice-Admiral Mark Norman put a chill on DND and CAF leadership speaking out about the decisions on the fighter jet file that could irreparably damage the fighter force.

Could you describe in depth the chill that might have been felt by whistle-blowers within DND and CAF?

[Richard Shimooka]

I covered this somewhat before. It goes back to the discussion I had with Mr. Bezan earlier and the answers that Colonel Drapeau suggested. CAF members certainly know their rights. They know what their position entails and they're pretty fastidious about it. As I was trying to answer earlier, we don't really have a culture of brown envelopes and leaks compared with how it is in other countries, such as the United States or the United Kingdom, where you see a significant leakage of documentation to affect policy or public perceptions.

I think the onerous nature of the gag order made a lot of people within the department question the trust that's been placed in them, given that they have unlimited liability to serve the country, and they really had a negative view of what had occurred. I think that was very much apparent in my discussions with people who were either under the gag order or who may not have been covered by it but saw it as unreasonable that other people had to face that sort of requirement.

[Ed Fast, Conservative, Abbotsford, BC]

The gag order you're referring to is the NDA. Is that right?

[Richard Shimooka]

No, this referred to people who were part of the future fighter capability program, which was to replace the CF-18s and ultimately ended up purchasing the F-35s. I believe it also included individuals who were part of the interim buy with the Super Hornets and then later on the surplus Australian Air Force F/A-18As.

[Ed Fast, Conservative, Abbotsford, BC]

Okay.

Professor Drapeau, you mentioned something about whistle-blowers. You suggested that whistle-blowers should be contacting legal counsel to pursue their complaints, which of course entails legal costs.

What do you suggest should be done to address this disincentive—in other words, the legal costs—which would cause whistle-blowers not to come forward when they probably should?

[Col (Ret'd) Michel Drapeau]

I don't know, unless legal counsel has a source of alternate funding to pay for these costs.

[Ed Fast, Conservative, Abbotsford, BC]

To me, it seems counterproductive to impose a cost on a whistle-blower that would prevent or discourage a whistle-blower from coming forward with serious allegations about conduct within DND or CAF.

[Col (Ret'd) Michel Drapeau]

The whistle-blower in those conditions has a choice to make. He has a career and reputation to maintain and defend. He can act alone or he can act with the chain of command, which by training he is required to do. There are risks involved. It's hypothetical depending on the circumstances, but he certainly would need legal counsel.

Now, whether or not legal advice is successful in achieving his aim, in the process, being able to obtain some type of reimbursement for legal expenses spent by him is a different scenario.

[Ed Fast, Conservative, Abbotsford, BC]

Mr. McSorley, you mentioned that CSE and DND often obstruct oversight bodies like NSICOP for reasons perhaps not allowed by law. You also mentioned that you had some additional recommendations to make. What are those recommendations, or have you canvassed them already in your subsequent remarks?

[Tim McSorley]

I covered a few of those recommendations. There are a few more that we could make.

I think right now there are no repercussions for those who avoid their legal obligations to NSICOP or NSIRA. Providing the legislation for it to be an offence not to provide the information or to obstruct their work would give some accountability and responsibility to those who do obstruct their work.

There's also the question—

[The Chair, Liberal, John McKay]

Unfortunately, Mr. Fast's time is over. I'm sure you'll be able to work those answers back in.

Madam Lalonde, you have five minutes, please.

[Marie-France Lalonde, Liberal, Orléans, ON]

Thank you very much.

Thank you to all the witnesses for being here today.

I think I'll build a bit on the questions from my colleagues and go deeper, if I could.

There was mention of the trust between agencies and NSIRA and NSICOP. As most of you know, these are fairly new agencies. I certainly commend our government for that, but they can be entrenched in their ways sometimes as we proceed, and certainly in the department.

Can you provide this committee with a recommendation on how agencies like CSIS or CSE should work with these newly formed agencies?

[Tim McSorley]

I can try to make some recommendations.

One of the things we've seen is that multiple departments have developed good working relationships, and it isn't every department where there are these concerns. In CSE in particular, time and again, these issues have come up, so there's a question of whether it is about building a deeper relationship or about concerns around over-classification and a culture of secrecy that need to be addressed internally, especially at CSE but to a degree at CSIS as well. From speaking with members of NSIRA in particular, I know they've been working closely to develop those relationships, and we recognize that it takes time to build them.

One thing that could be done better.... For example, there's the national security advisory committee on transparency. There could be a role for them to work more closely with these agencies to talk about the importance of transparency, and even to possibly look at training to better ensure there's an openness there.

It's true that it does take time, but we have seen differences among agencies, so there's a question as to why it has taken some agencies less time to be open to this culture of review and others have remained entrenched in not sharing information.

[Marie-France Lalonde, Liberal, Orléans, ON]

Would anyone else like to speak? I have another question otherwise.

On this I think we can all agree. In order to build trust—and I think this goes back, Mr. McSorley, to what you're saying—organizations have to pull back the curtains on how they work while still protecting highly classified information and the sensitive nature of their work. We've seen, during the war in Ukraine, allies like Britain and the U.S. classifying information almost in real time.

I would certainly appreciate it if any of you could give us some recommendations on how Canadian agencies could do this better.

[Tim McSorley]

For our part, just briefly, we've been looking at the Finnish example and the idea that instead of classifying by default, there's an overt and conscious process of classification. That would go a long way. It's obviously a change in culture, but we think it's necessary in order to address this over-classification we've seen. Recently, in the commission on foreign interference, that was a key part of the discussions, and we saw very clearly that there are concerns around over-classification. That needs to change.

[The Chair, Liberal, John McKay]

Mr. Shimooka, go ahead.

[Richard Shimooka]

I would say that one of the biggest things I've noticed when comparing Canada to, let's say, the United States or other countries is that any information connected to foreign sources or anything that is even remotely within that area immediately gets classified or is subject to much greater scrutiny for classification. In some cases, this has led to over-classification for stuff that's very routine. It's stuff that's routinely published in the media in the United States by the U.S. Department of Defense, but in Canada it's classified for foreign....

[The Chair, Liberal, John McKay]

You have 30 seconds.

[Marie-France Lalonde, Liberal, Orléans, ON]

Mr. Drapeau, You brought some information that unfortunately we have not yet seen due to translation. Do you have any thoughts to share quickly on those briefs?

[Col (Ret'd) Michel Drapeau]

My thought is on the grievance process. A member of the military's only avenue of redress is to put in a grievance, whether that member is demoted, released prematurely or something happens to his allowances or his performance evaluation report. His life comes to a standstill until the grievance process is looked after through three levels, and only at the end of three levels is he entitled to go to the Federal Court. When he goes to the Federal Court, he has to hire legal counsel to do that, so it's a long process.

As a Canadian, he is denied the rights that every other Canadian has. When suffering from some type of prejudice, you can go to court to seek relief because of a decision made by whomever, but the military member cannot.