Public Safety Committee on Nov. 1st, 2016

[The Chair, Liberal, Rob Oliphant]

Thank you very much for being here.

Mr. Erskine-Smith, we'll begin questions with you. You have seven minutes.

[Nathaniel Erskine-Smith, Liberal, Beaches—East York, ON]

Perfect. Thanks very much.

I think we're all on the same page that a review is important. CBSA we don't have reviewed, but the other three bodies that we're going to talk about, the RCMP, CSE, and CSIS, currently have review mechanisms.

For the officials of those four bodies, does anyone have any issue with the information you're currently required to give over to the respective review agencies? Is there any concern at all about the information you have to give over? No? Okay.

That leads me to this question, then. I understand from Professor Forcese that in fact the review agencies have more access to information than the parliamentary committee as designed under Bill C-22. Why wouldn't this committee have the same access to information as the review bodies, if none of the agencies have any concerns with the sharing of that information?

I'll put it to Mr. Brown or Mr. McCowan.

[Ian McCowan]

I guess I would say there are a couple of differences here. First of all, the review agencies all have a complaints function as part of their framework, and they operate in a quasi-judicial frame. They're a slightly different creature, if you will.

Also, what's trying to be achieved here in terms of this proposal is something that's fundamentally different, I would argue, in a couple of ways. First of all, the design is to give parliamentarians direct access to information on national security matters, and to do so in a way that's right across government.

You referenced the review agencies. Obviously, they operate in three particular spheres. What this committee does is give a broader frame in terms of being able to pursue national security and intelligence matters right across the board.

[Nathaniel Erskine-Smith, Liberal, Beaches—East York, ON]

I forget from which minister we heard it, but there's to be a collaborative arrangement between the expert review bodies and this parliamentary committee. If the parliamentary committee has less access to information than the review agencies, is that not going to impede that collaborative spirit?

[Ian McCowan]

The statute, as you'll have seen, allows for the transfer of information back and forth between the review bodies and the committee in certain defined circumstances. There's also a request that ideally they work in a way to try to avoid duplication.

I think Minister Goodale did a good job of describing what it is hoped will unfold here in terms of the committee operating in conjunction with the review bodies, and—

[Nathaniel Erskine-Smith, Liberal, Beaches—East York, ON]

I do understand that they're to work in conjunction. Professor Forcese noted, though, that if you have certain bodies with certain access to private information and you have a parliamentary committee that's going to work with those bodies but can't access the same information, according to Bill C-22, isn't that going to impede their ability to work together in some instances?

[Ian McCowan]

I guess what I'd say, again, is that there are different purposes here. In terms of the review bodies, again, there is, for example, a complaints function and there's a quasi-judicial frame. So it's not exactly the same frameworks that are being compared here. What we've tried to do is maximize the co-operation possible between them, recognizing that they're obviously looking at areas that have some similarities at times.

[Nathaniel Erskine-Smith, Liberal, Beaches—East York, ON]

We see “injurious to national security” at least three times, in clauses 8, 16, and 21, and probably more times. When it comes to the exclusion of information in the legislation from our allies, the inclusion is very specific and defined in the legislation. I notice there's no definition of “injurious to national security”. Shouldn't we have a definition in the act?

[Ian McCowan]

There's no definition for national security intelligence and there's no definition for injurious to national security. These are terms that are used elsewhere in the legal framework. They are felt to provide the necessary guidance in terms of the relevant decisions that you just referenced.

I think Minister Goodale indicated earlier, though, in terms of suggestions for amendments, that he was willing to look at whatever the committee might offer up on those fronts. I guess what I'd say is that the words that were used were the best we could find in terms of trying to fashion the necessary threshold.

[Nathaniel Erskine-Smith, Liberal, Beaches—East York, ON]

When it comes to the ability for the minister to exclude, we have paragraph 8(b), where the minister can actually shut off investigations directly, and no reasons need to be provided to the committee. We have under clause 14 a number of exclusions, and no reasons need to be provided to the committee. But then we see, in clause 16, reasons do need to be provided to the committee. I wonder why. If I look to the U.K., the minister is compelled in all instances of refusal to provide information about that refusal. Shouldn't we be doing the same thing?

[Ian McCowan]

As you noted, there's only the one instance in the statute where reasons are required. If the committee feels that determinations are being made in an inappropriate way, obviously they will be able in their reports to make note of that and to flag the fact that in their view there is a problem that is occurring.

The various clauses that you referenced are different decision points. The first one talks about the review of national security matters at a high level, and then the other ones talk about access to specific information.

In terms of answering your question, what I'd say is that the bottom line is that if the committee is not satisfied with what they're seeing, they're perfectly at liberty to note that in their report.

[Nathaniel Erskine-Smith, Liberal, Beaches—East York, ON]

Talking about the interface between the committee and the agencies, it's interesting to note that, obviously, this bill was significantly modelled on the U.K. legislation. In the U.K., my understanding is that the committee interacts directly with the agencies, and the idea there is really to establish trust between the agencies and the committee, at the end of the day.

I think the minister made a good point that this is a first step. We need to build not just public trust, but trust between the agencies and parliamentarians. In this bill, those interactions and the request for information all flow through the minister. I wonder, wouldn't we be building up more trust between agencies and this committee of parliamentarians if there was a direct interface and the parliamentarians were asking for information directly from the agencies?

[Malcolm Brown]

The presumption is in fact that the requests, because each minister is responsible for each of the agencies, technically would flow that way, but practically, our expectation is that each of the heads of agencies and their staff, as appropriate, responding to whatever demands for information that a committee may have, would appear before the committee on a regular basis. There is nothing in the legislation that would preclude that from.... The legislation is very permissive in terms of the committee being able to meet with and talk to whoever they like.

[The Chair, Liberal, Rob Oliphant]

Thank you, deputy.

Mr. Miller.

[Larry Miller, Conservative, Bruce—Grey—Owen Sound, ON]

Thank you very much, Mr. Chair.

To all of our witnesses, thank you very much for being here.

I had some questions that I would like to have asked the ministers, but of course there's never enough time. What I want to ask about here is that Ms. Chagger mentioned about doing things differently and that goes from everything from how chairs are selected to money for access to ministers, etc.

I think, Mr. Brown or Mr. McCowan, as deputy ministers you may be the ones to answer this. Going forward, since we're doing things differently, does this mean that all committees, standing committees, special committees, etc., will now have the chairs appointed by the Prime Minister?

[Ian McCowan]

I'm not sure how much further I can add to what the minister said earlier other than to say that this committee is an unusual committee. It would be a statutory committee of parliamentarians, a creature of the executive, not a creature of Parliament. It's fundamentally distinct and different from the other committees that you mentioned, where I understand there is the election of chairs. There is a distinction between the two.

[Larry Miller, Conservative, Bruce—Grey—Owen Sound, ON]

That's a good point, that it's something different. Back in 2008 we had an unfortunate listeria outbreak in Canada. Unfortunately, a number of Canadians died as a result of that. There was a special committee formed and what have you. By chance I was elected as chair of that committee. A number of us were of course appointed to the committee, but the chair was elected. It was a different kind of committee as well, but the chair was still elected. What makes this different?

[Ian McCowan]

I'm not familiar with that particular committee. All I can say in terms of what makes this one different is that it is a creature of the executive, similar to how the U.K. started out when they first went down this road. In that manner, it is distinct and different from the other committees of Parliament. Beyond that, I'm not sure what I can add to what the minister said earlier.

[Larry Miller, Conservative, Bruce—Grey—Owen Sound, ON]

Okay. I respect that. I don't agree with it. It's not that I disagree with you, but just with the point of it.

Mr. Goodale, when he was here, implied, or rather said, that this committee is new, so it basically doesn't need to learn from the examples from Britain or anyone else. We know that Britain had this committee in place for a long time. I believe in 2013 they did a review of it. They made some major changes to do with the committee reporting to Parliament, not the Prime Minister, etc. Would it not be prudent to learn from other countries' mistakes, I could say? I don't think the British framework was a mistake. It's just that you learn over time. They made some changes, and Canada isn't adopting that.

[Ian McCowan]

I think the minister, when he responded earlier to a question in this area, indicated that similar to the U.K. we were starting with a certain basic framework. In the U.K. it was over a fairly long period of time before they made it a committee of Parliament. As the relationships grew and the committee grew, if you will, they hit a point where they decided to move over and become a parliamentary committee.

Obviously something you'll have noted is that a five-year review is built in. I imagine there will be a regular review of the statute. Assuming that the bill is passed in its present form, parliaments of the future will be able to review if we reach a point when the evolution that happened in Britain will happen here. I guess we'll have to see how that unfolds.

[Malcolm Brown]

If you'll permit me, I would also add that I think the committee in the proposed legislation that's before the committee is in fact in many ways substantially more broad than the committee in the U.K. in terms of scope and the degree to which the mandate of the committee...ability in terms of looking at, as the minister's been very clear, ongoing operations.

I think actually not in every case, but I think if Minister Goodale were here, he'd point to areas where it's not just simply a cookie-cutter approach with a model of 15 years ago.

[Larry Miller, Conservative, Bruce—Grey—Owen Sound, ON]

Okay. You know, when he did that, it was a pretty cheekish comment that basically because this committee was new we shouldn't learn from other countries.

At any rate, I'll go back to some earlier questioning about Chair McGuinty and his travel to Britain, I believe, to London and France. Travel isn't free. Obviously somebody paid his travel. Who would have paid that travel? Was it the government, your department...?

[Malcolm Brown]

I believe it was the Department of Public Safety, but I can confirm that for you.

[Larry Miller, Conservative, Bruce—Grey—Owen Sound, ON]

Even though he hasn't been elected as chair, that was paid.

[Malcolm Brown]

That would be correct.

I'll confirm that. If it's incorrect, we will correct the record.