Evidence of meeting #106 for Public Safety and National Security in the 42nd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was charter.
A recording is available from Parliament.
Conservative
Glen Motz Conservative Medicine Hat—Cardston—Warner, AB
To the officials, Mr. Chair, there's nothing, then, currently in the act that would prevent the commissioner from requesting additional information?
Director General, National Security Policy, Department of Public Safety and Emergency Preparedness
The act is specific. If the intelligence commissioner rejects the decision, he or she will give the reasons why so the minister will know why it was rejected and have the opportunity to resubmit.
Perhaps the other issue with the drafting here is that there's no flexibility, in the sense that the commissioner “must” request information in all cases. There's no option on that.
Liberal
Sven Spengemann Liberal Mississauga—Lakeshore, ON
Mr. Chair, I'll be brief because the point has essentially been made by Mr. Davies. The commissioner has a binary decision in front of her or him, which is to accept or reject the decision. If the commissioner is compelled to do additional new research, then you risk having her or his responsibility sliding into that of the minister. I would echo what Mr. Davies said on that point.
NDP
Matthew Dubé NDP Beloeil—Chambly, QC
Chair, I'm just wondering about this. The word “must” was being evoked as the one that gave no flexibility, and perhaps the officials can guide me here, but my reading of the bill is that with this amendment there are three options. There are currently two options. It says:
...the Commissioner, in a written decision,
(a) must approve the authorization...; or
(b) must not approve....
Those things obviously can't happen at the same time, so I don't see what harm there is in adding a third option saying “or can go back for information”.
To the point that was made following the questions from my Conservative colleagues, I'm wondering if, for the sake of efficiency with real-time oversight, it is not more efficient for the commissioner to be able to ask for that additional information, rather than to say no and send it back to the minister. While this whole ping-pong is going on, national security is at play and, on the other side of the coin, potentially peoples' rights as well.
Liberal
The Chair Liberal John McKay
Is there further debate?
(Amendment negatived [See Minutes of Proceedings])
We've dealt with PV-4.
We're on CPC-16.
Conservative
Pierre Paul-Hus Conservative Charlesbourg—Haute-Saint-Charles, QC
Amendment CPC-16 asks that the commissioner provide the decision to the person whose conclusions are being reviewed within 24 hours.
We ask that the 30 days proposed in the bill be replaced with 24 hours. We want it to be fast, because national security issues require intervention in real time and we don't have the privilege or luxury to wait 30 days to receive a decision.
Raymond Boisvert and a number of other experts have said that the time frame is paramount when making decisions related to security. That is why we are asking that the decision be made within 24 hours. I would like to know what the experts before us think so that I can figure out if it makes sense.
Mr. Davies, what do you think?
Liberal
The Chair Liberal John McKay
You've introduced it. We will now call for debate. Members have precedence over witnesses.
Director General, National Security Policy, Department of Public Safety and Emergency Preparedness
This part of the act was reported exactly from the National Defence Act that dealt with the office of the CSE commissioner, where 30 days was the limit, or “as practical” is the wording. For the most part, the intelligence commissioner will be looking at authorizations that are on an annual basis, so there's going to be a natural cycle. The concern with 24 hours is that you're giving a lot of information to that commissioner. You wouldn't want that commissioner to be rushed and to make decisions on an artificial timeline. Thirty days is seen as a better time to process that information.
On the dataset issue in particular, there is a provision in Bill C-59 to allow for decisions to be made more quickly, or “as feasible”.
Liberal
Sven Spengemann Liberal Mississauga—Lakeshore, ON
Thank you, Mr. Chair.
Mr. Davies' last point gives me comfort. My concern was that it's a 24-hour requirement regardless of whether the decision is needed or is urgent. It's a heavy, onerous requirement and may actually rush the commissioner. The calibration that was pointed out is adequate to instill that protection: that if there is an urgent decision, it will be taken quickly.
Conservative
Glen Motz Conservative Medicine Hat—Cardston—Warner, AB
I have two questions for the officials.
As witnesses today, do any of you have any experience in real-time national security protocols?
Scott Millar Director General, Strategic Policy, Planning and Partnerships, Communications Security Establishment
The ministerial authorizations under which we operate now do not cover specific lines of inquiry, but actually cover our complete intelligence collection program. Should the annual authorizations lapse, the whole program shuts down. The ministerial authorizations give comfort and meet the test for the minister that what we're doing is reasonable and proportionate, lines up with charter requirements, and that what we're collecting is essential. It allows for the seamless, ongoing operational space by virtue of those authorizations. I just wanted to clarify that. From a CSE perspective, those authorizations allow us to conduct different types of operations as long we're within the ambit of a charter-resilient and complete ministerial program.
Conservative
Glen Motz Conservative Medicine Hat—Cardston—Warner, AB
Has anything changed in the National Defence Act? Has anything changed in the environment since the National Defence Act was written?
Director General, National Security Policy, Department of Public Safety and Emergency Preparedness
The intelligence commissioner is switching the role from review to more oversight, as making decisions on reasonableness.
As my colleague said, the authorizations brought to the minister have an annual cycle, for the most part. You need to be careful of putting artificial deadlines on how much of a rush needs to be put on those authorizations. It may compromise the due diligence and the ability of the commissioner to respond effectively and make observations for the minister.
Conservative
Director General, Strategic Policy, Planning and Partnerships, Communications Security Establishment
This provision of the National Defence Act was inserted in 2001.
Conservative
Glen Motz Conservative Medicine Hat—Cardston—Warner, AB
Certainly our national and international risk on national security has changed. Does it seem reasonable that what was provided before is no longer the best for national security? Maybe we need to tighten it up, shorten it up, and deal with it in a more timely manner?
Director General, Strategic Policy, Planning and Partnerships, Communications Security Establishment
I could add, though, that under Bill C-59 there is this provision that's been added in there in terms of an emergency authorization. If there is a new threat that emerges and there is not the time necessary or available to get the intelligence commissioner to review the minister's decision, we could still proceed under that emergency authorization. It would only be valid for five days, though. Then, if anything continued beyond that, it would require the review of the intelligence commissioner. That has been worked in there to deal with an emergency situation.