Public Safety Committee on Nov. 1st, 2016

[Malcolm Brown]

I do think there's a flow to this.

[Ian McCowan]

The limits of the information in the statute, as you know, are focused on information being held by departments. I think it's an open question on just how far the committee could go in that direction, if that's where it chooses to go.

[Sven Spengemann, Liberal, Mississauga—Lakeshore, ON]

It's culture change, it's evolutionary, and practices may dictate the outcomes in the future.

My last question, time permitting, is this. What constraints, if any, do you see in terms of public engagement in the area of security overall? We all represent this committee as being the link to the public, but in light of classification levels and a subject matter that perhaps is not well understood by the public, how good a link will this committee be to the Canadian public?

[Ian McCowan]

I think the annual reports will be an opportunity for parliamentarians to speak to Canadians once they have had a chance to immerse themselves in the issues, the documents, whatever issue they choose to pursue. Once they have done that, they're going to have a regular chance to write a report. Canadians will get a chance to see that report and what the committee's assessment is of the wider range of activities that are going on in this country.

[The Chair, Liberal, Rob Oliphant]

Thank you, Mr. McCowan.

Mr. Clement, you have five minutes—five real minutes.

[Tony Clement, Conservative, Parry Sound—Muskoka, ON]

Okay.

I'm just going to drill down a little bit more, ladies and gentlemen, on the definitional issue. I can see both sides of this issue, “injurious to national security” as an example of that, where it's hard to define. The fear would be that, if we define it, something would be excluded that in essence shouldn't be excluded, or vice versa. That's the issue before us.

I'm reminded of the American jurist who said about another issue that you can't define it, but you know it when you see it. I understand that, but I think we should at least try to create some parameters that we can all live with. You see it in clause 16 and then in clause 21. In clause 16 it's part of “special operational information”, plus “injurious to national security”. Then in subclause 21(5) you have a whole list that includes disclosure “injurious to national security, national defence or international relations”.

Something injurious to international relations could be.... I mean, somebody has to help us define that, because I can see us easily getting into a disagreement on what is injurious to international relations. That, to me, is even less defined than injurious to national security.

Deputy, perhaps you could expand your thoughts on how we could nail this down just a little bit more without getting into a situation where we've created a dilemma. I would appreciate your, or any of your colleagues', addition to this testimony.

[Ian McCowan]

I think you summarized the tension very nicely. Obviously, there are other risks that arrive with being more specific. I think Minister Goodale indicated that he was willing to look at whatever suggestions the committee might come up with in terms of alternate language. I think there are definitely some possibilities there.

I would make three points just in terms of clause 16, which was the subject of the earlier questions. First of all, it is a ministerial discretion. So assuming that the threshold and the task stays exactly the way it is right now, the minister of the crown who is responsible for the agency in question has to sign off that that standard has been met in the circumstances.

Second, if the committee is not satisfied with how that exception is being applied consistently across a period of time, they can make note of that in the report. Those are clear checks and balances that exist in the system.

My third point is just a clarification that the one reference to special operational information is defined in the Security of Information Act. So there is some precision around that particular term, but I take your earlier point that there are a number of the other thresholds that are cast at a higher level.

[Tony Clement, Conservative, Parry Sound—Muskoka, ON]

Sorry, I don't have the Security of Information Act before me. Could we just read into the record what that definition is, if anybody has it?

[Malcolm Brown]

No, I don't actually have the definition. I'm sorry, Minister. I have a different section of the act in front of me for different purposes.

[The Chair, Liberal, Rob Oliphant]

Could we ask you to submit that?

[Tony Clement, Conservative, Parry Sound—Muskoka, ON]

Mr. Coulombe might have it there.

[Michel Coulombe]

It's a long definition, because there are six or seven categories. I can provide a copy, if you want.

[Tony Clement, Conservative, Parry Sound—Muskoka, ON]

It looks like I have it in front of me right now, so I'll review that in time.

Do we have time for Madam Watts to ask a question?

[The Chair, Liberal, Rob Oliphant]

She will get five minutes.

[Tony Clement, Conservative, Parry Sound—Muskoka, ON]

I'm done with my questioning for now.

[The Chair, Liberal, Rob Oliphant]

Okay.

Let's push on to Mr. Di Iorio, s'il vous plaît.

[Nicola Di Iorio, Liberal, Saint-Léonard—Saint-Michel, QC]

Thank you, Mr. Chair.

Thank you all for your valuable contribution and outstanding work.

My question is for Commissioner Paulson and Director Coulombe. If other people wish to add to the answer, that would also be appreciated.

Clause 8 states:

The mandate of the Committee is to review (a) the legislative, regulatory, policy, administrative and financial framework for national security and intelligence; (b) any activity carried out by a department that relates to national security or intelligence, unless the appropriate Minister determines that the review would be injurious to national security;

Something bothers me. The members of the committee are sworn to secrecy, correct? The members of the committee cannot disclose the information they receive. So if they cannot disclose the information they receive, how could sharing information with them be injurious to national security?

Mr. Coulombe, Mr. Paulson, in your organizations, people work in secret, in teams and a number of people are already familiar with the information. How would disclosing the information to seven or eight more people compromise national security?

[Ian McCowan]

Perhaps I could start, and then my colleagues can add in as they see fit.

Paragraph 8(b) is very much focused on determining whether or not there is a certain review, as opposed to information. At a higher level, is there a certain review of a certain matter that would be injurious to national security and, as a result of that, wouldn't be appropriate to pursue?

For example, if there was an act of ongoing operation where in some dimension of it there was a potential injury to national security and the minister determined, in these circumstances, that it was appropriate, there would be a limit there. But it could well be—when you are looking at the application of 8(b)—that, if the committee wants to look at a certain area, perhaps there is only 10% of what they want to look at that would engage 8(b), and there is 90% that could proceed. As they, then, proceed against that particular 90%, there are the subsequent provisions that exist in terms of access to information and exemptions that apply. But 8(b) is focused, at the higher level, just on determining whether there is a specific matter that, in and of itself, is beyond review.

I would invite my colleagues to comment further as they see fit.

[Commr Bob Paulson]

I have nothing else to add.

[Michel Coulombe]

I could provide an example. The problem is more related to the timing than to the sharing of information.

Take, for example, what happened on August 10. Had that lasted for three or four days and had it been a counterterrorism investigation—fast-paced with a lot of resources involved—and had resources been assigned to send information to the committee, that would have been a distraction from the operation in progress. In a case like that, we would ask that the review be postponed.

Once again, the problem has more to do with the timing than with the information being sent to the committee.

[Nicola Di Iorio, Liberal, Saint-Léonard—Saint-Michel, QC]

My question is for Mr. McCowan.

In reading subclause 11(1), we see that there is no time limit. That's odd. Information is disclosed to the members of the committee, but there is no indication of how long they have to keep it secret.

[Ian McCowan]

They need to keep it confidential.

[Nicola Di Iorio, Liberal, Saint-Léonard—Saint-Michel, QC]

Forever? Life?

[Ian McCowan]

Yes.

[Malcolm Brown]

There is the same requirement for public servants.