Public Safety Committee on May 13th, 2019

[The Chair, Liberal, John McKay]

I'll bring this meeting to order.

Welcome to the 162nd meeting of the Standing Committee on Public Safety and National Security.

We have the Honourable David McGuinty and Rennie Marcoux. Thank you to both of you for coming and presenting the annual report of the National Security and Intelligence Committee of Parliamentarians, which has the unfortunate name of NSICOP. I'm sure Mr. McGuinty will explain in his own inimitable style what NSICOP actually does.

Welcome, Mr. McGuinty, to the committee. We look forward to your comments.

[David McGuinty, Chair, National Security and Intelligence Committee of Parliamentarians]

Thank you very much, Mr. Chair.

Good afternoon, colleagues. Thank you for your invitation to appear before your committee. I am joined by Rennie Marcoux, executive director of the Secretariat of the National Security and Intelligence Committee of Parliamentarians, or NSICOP.

It's a privilege to be here with you today to discuss the 2018 annual report of the National Security and Intelligence Committee of Parliamentarians.

The committee's first annual report is the result of the work, the dedication and the commitment from my colleagues on the committee. It is intended to contribute to an informed debate among Canadians on the difficult challenges of providing security and intelligence organizations with the exceptional powers necessary to identify and counter threats to the nation while at the same time ensuring that their activities continue to respect and preserve our democratic rights.

NSICOP has the mandate to review the overall framework for national security and intelligence in Canada, including legislation, regulations, policy, administration and finances.

It may also examine any activity that is carried out by a department that relates to national security or intelligence.

Finally, it may review any matter relating to national security or intelligence that a minister refers to the committee.

Members of the committee are all cleared to a top secret level, swear an oath and are permanently bound to secrecy. Members also agree that the nature of the committee, multi-party, drawn from the House of Commons and the Senate, with a broad range of experience, bring a unique perspective to these important issues.

In order to conduct our work, we are entitled to have access to any information that is related to our mandate, but there are some exceptions, namely, cabinet confidences, the identity of confidential sources or protected witnesses, and ongoing law enforcement investigations that may lead to prosecutions.

The year 2018 was a year of learning for the committee. We spent many hours and meetings building our understanding of our mandate and of the organizations responsible for protecting Canada and Canadians. The committee was briefed by officials from across the security and intelligence community and visited all seven of the main departments and agencies. Numerous meetings were also held with the national security and intelligence adviser to the Prime Minister. NSICOP also decided to conduct a review of certain security allegations surrounding the Prime Minister's trip to India in February 2018.

Over the course of the calendar year, the committee met 54 times, with an average of four hours per meeting. Annex E of the report outlines the committee's extensive outreach and engagement activities with government officials, academics and civil liberties groups.

The annual report is a result of extensive oral and written briefings, more than 8,000 pages of printed materials, dozens of meetings between NSICOP analysts and government officials, in-depth research and analysis, and thoughtful and detailed deliberations among committee members.

The report is also unanimous. In total, the report makes 11 findings and seven recommendations to the government. The committee has been scrupulously careful to take a non-partisan approach to these issues. We hope that our findings and recommendations will strengthen the accountability and effectiveness of Canada's security and intelligence community.

The report before you contains five chapters, including the two substantive reviews conducted by the committee.

The first chapter explains the origins of NSICOP, its mandate and how it approaches its work, including what factors the committee takes into consideration when deciding what to review.

The second chapter provides an overview of the security and intelligence organizations in Canada, of the threats to Canada's security and how these organizations work together to keep Canada and Canadian safe and to promote Canadian interests.

Those two chapters are followed by the committee's two substantive reviews for 2018.

In chapter 3, the committee reviewed the way the government determines its intelligence priorities. Why is this important? There are three reasons.

First, this process is the fundamental means of providing direction to Canada's intelligence collectors and assessors, ensuring they focus on the government's, and the country's, highest priorities.

Second, this process is essential to ensure accountability in the intelligence community. What the intelligence community does is highly classified. This process gives the government regular insight into intelligence operations from a government-wide lens.

Third, this process helps the government to manage risk. When the government approves the intelligence priorities, it is accepting the risks of focusing on some targets and also the risk of not focusing on others.

The committee found that the process, from identifying priorities to translating them into practical guidance, to informing ministers and seeking their approval, does have a solid foundation. That said, any process can be improved.

In particular, the committee recommends that the Prime Minister's national security and intelligence advisor should take a stronger leadership role in the process in order to make sure that cabinet has the best information to make important decisions on where Canada should focus its intelligence activities and its resources.

Moving on, chapter 4 reviews the intelligence activities of the Department of National Defence and the Canadian Armed Forces. The government's defence policy, “Strong, Secure, Engaged”, states that DND/CAF is “the only entity within the Government of Canada that employs the full spectrum of intelligence collection capabilities while providing multi-source analysis.”

We recognize that defence intelligence activities are critical to the safety of troops and the success of Canadian military activities, including those abroad, and they are expected to grow. When the government decides to deploy the Canadian Armed Forces, DND/CAF also has implicit authority to conduct defence intelligence activities. In both cases, the source of authority is what is known as the Crown prerogative. This is very different from how other intelligence organizations, notably CSE and CSIS, operate. Each of those organizations has clear statutory authority to conduct intelligence activities, and they are subject to regular, independent and external review.

This was a significant and complex review for the committee, with four findings and three recommendations.

Our first recommendation focuses on areas where DND/CAF could make changes to strengthen its existing internal governance structure over its intelligence activities and to strengthen the accountability of the minister.

The other two recommendations would require the government to amend or to consider enacting legislation. The committee has set out the reasons why it formed the view that regular independent review of DND/CAF intelligence activities will strengthen accountability over its operations.

We believe there is an opportunity for the government, with Bill C-59 still before the Senate, to put in place requirements for annual reporting on DND/CAF's national security or intelligence activities, as would be required for CSIS and CSE.

Second, the committee also believes that its review substantiates the need for the government to give very serious consideration to providing explicit legislative authority for the conduct of defence intelligence activities. Defence intelligence is critical to the operations of the Canadian Armed Forces and, like all intelligence activities, involves inherent risks.

DND/CAF officials expressed concerns to the committee about maintaining operational flexibility for the conduct of defence intelligence activities in support of military operations. The committee, therefore, thought it was important to present both the risks and the benefits of placing defence intelligence on a clear statutory footing.

Our recommendations are a reflection of the committee's analysis of these important issues.

We would be pleased to take your questions.

Thank you.

[The Chair, Liberal, John McKay]

Thank you, Mr. McGuinty.

Mr. Picard, you have seven minutes, please.

[Michel Picard, Liberal, Montarville, QC]

Thank you.

Welcome to our witnesses.

This my first experience with this committee, and I am very enthusiastic about it.

My first question is very basic, Mr. McGuinty, just to get the discussion rolling.

The NSICOP is a new organization and there is currently a learning curve associated with it. It is an addition to our current structures.

To help us better understand what our intelligence organizations do, can you explain how this organization, the NSICOP, adds value to what was done in the past, before it was established?

[David McGuinty]

Thank you for the question.

I would start by saying that the added value comes first from the fact that members of NSICOP have access to all classified information, to all documents, to presentations and to witnesses. Having access to the most in-depth information helps a great deal.

Then I believe that, this year, NSICOP has shown that it is very possible for parliamentarians of all parties, from both Houses of the Parliament of Canada, to work together in a non-partisan way. That is being done against a currently very partisan backdrop, I feel.

My colleagues and I decided from the outset that we would check the partisan approach at the door because of the importance of the work. Matters of national security are simply too important for us to be part of the normal daily tensions on the political stage.

The year was not easy because, in a sense, we had to learn how to get the plane off the ground. We formed a secretariat, we hired about a dozen full-time people and we have a budget of $3.5 million per year.

We are proud of what we have done to get NSICOP started in its first year.

[Michel Picard, Liberal, Montarville, QC]

Thank you.

So I am now going to ask you a more technical question. I would like to go back to your comment about military intelligence.

You made a comparison between the intelligence services, the agencies working in intelligence, such as the Canadian Security Intelligence Service, or CSIS, and the Security Communications Establishment, or CSE, on the one hand and, on the other hand, the other agencies engaged in intelligence activities.

When you talk about military intelligence, you say that the Department of National Defence encompasses the entire range of intelligence services. Are the services similar to the extent that we can consider them equal?

How are military intelligence activities broader in scope than those in the other agencies?

What comparisons can the government use to evaluate the issue of military intelligence? For example, can it rely on best practices in other countries in order to properly evaluate the needs in terms of military intelligence?

[David McGuinty]

First of all, we cannot forget that the legislative basis for the Department of National Defence always remains the prerogative of the Crown.

What we know about the Crown prerogative is that it's several centuries old. It's a very old vestigial power vested in the Crown that allows countries to, for example, deploy troops, prosecute wars and conduct foreign policy.

The powers vested today in CSIS and CSE, for example, also sprang forth from the original concept of the Crown prerogative, but as a result of evolving, both of those organizations now have four corners of a statute within which to operate. They have their own law. They have their own enabling legislation, and by its own admission, in the government's defence paper, the Department of National Defence indicates that it's the only full spectrum organization in the country. In other words, it does what CSIS, CSE and the RCMP do combined.

It also plans on expanding the number of intelligence personnel by 300 over the next several years. It is a major actor in the intelligence sphere.

We took a long hard look at the statutory footing on which it's operating and began to ask some difficult probative questions. The report tries to walk a fine line between the merits of the government considering a statutory footing, new legislation, and some of the inherent risks that the department has brought to our attention. We've been very careful in the report to put it in very plain black and white for people to understand. In so doing, we wanted to simply raise the profile of this issue and ignite a debate, not only amongst parliamentarians but in Canadian society.

[Michel Picard, Liberal, Montarville, QC]

For the remaining time, my last question will be on one of your findings. On page 54 it states:

F7. Performance measurements for the security and intelligence community is not robust enough to give Cabinet the context it needs to understand the efficiency and effectiveness of the security and Intelligence community.

Do we have any example of prejudice caused by the lack of effectiveness? Would you expand on this finding please?

[Rennie Marcoux, Executive Director, Secretariat of the National Security and Intelligence Committee of Parliamentarians]

I'll answer the question.

What we've indicated in the report is that we did not have access to the actual cabinet documents, since it's a limit in our legislation. What we saw were all the discussions, the briefing materials and the minutes of meetings leading up to that. I think it's in the overall process, from start to finish, where we identify the result, that cabinet did not get enough in terms of answering these questions: What are the risks? What are the benefits? Where are the gaps in collection? Where are the gaps in assessment? Could we contribute more to the alliance?

It was the whole gamut of information, in terms of measuring the committee's performance, that we felt could be better.

[Michel Picard, Liberal, Montarville, QC]

Thank you.

[The Chair, Liberal, John McKay]

Thank you, Mr. Picard.

We'll hear from Mr. Paul-Hus for seven minutes, please.

[Pierre Paul-Hus, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

Thank you, Mr. Chair.

Thank you, Mr. McGuinty and Ms. Marcoux.

On page 26 of your report, paragraph 66, you talk about espionage and foreign influence.

Do you consider election campaigns, such as for the election coming up, to be a national security issue?

[David McGuinty]

NSICOP has not yet looked deeply into the whole matter of the integrity of elections, specifically the one coming up.

[Pierre Paul-Hus, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

Do you feel that foreign interference in elections is a matter of national security? In paragraphs 66 and 67, you say that Russia and China are two countries known to be major players in political interference. You also talk about activities designed to influence political parties as well.

It is mentioned in your report. It is a known fact.

Is NSICOP currently in a position to take measures to help stop the Chinese Communist Party trying to interfere in the coming election campaign?

[David McGuinty]

Let me be clear on two things.

We included Russia and China in the report because we relied on open sources. So that is what was repeated there.

Then, we announced that one of the reviews that we will be doing in 2019 is about foreign interference. Eventually, we will have much more to say about it.

[Pierre Paul-Hus, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

So clearly, we will not have the information before the next campaign. Is that right?

[David McGuinty]

Probably not.

[Pierre Paul-Hus, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

When you undertook the study on the trip the Prime Minister took to India, it was likely because a matter of national security would normally be involved. Is that correct?

[David McGuinty]

Yes.

[Pierre Paul-Hus, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

Minister Goodale appeared before this committee during the hearings on Bill C-59, I believe. At that time, he told us that he could not answer certain questions because it was a matter of national security. After that, in the House of Commons, Minister Goodale said the opposite. Daniel Jean also testified before our committee that it was not a matter of national security.

In your opinion, is it a matter of national security?

[David McGuinty]

In the report, we included a letter to the Prime Minister in which we clearly deal with it.

We told him that, as per our terms of reference, we had examined the allegations of foreign interference, of risks to the Prime Minister’s security, and of inappropriate use of intelligence.

The report deals with those three matters specifically. The Department of Justice clearly redacted the report and revised it.

[Pierre Paul-Hus, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

Your report on the trip to India mentions that the Prime Minister’s Office did not screen the visitors well and that an error in judgment was probably made.

Has the Prime Minister or a member of his staff responded to your recommendations?

[David McGuinty]

No, not yet. We are still waiting for a response from the government to both reports.

[Pierre Paul-Hus, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

So you submit your reports but there has been no follow-up or reply on the recommendations. Is that right?

[David McGuinty]

NSICOP hopes that there will be some follow-up. We are still waiting for a response. We have raised the matter with the appropriate authorities.