Public Safety Committee on Nov. 3rd, 2016

[Pam Damoff, Liberal, Oakville North—Burlington, ON]

You'd need both of those together, then, if he were doing it in camera?

[Ron Atkey]

Yes. In a perfect world, yes, you would, but you might not get it.

[Pam Damoff, Liberal, Oakville North—Burlington, ON]

Okay. Thank you.

[The Chair, Liberal, Rob Oliphant]

Thank you, Ms. Damoff.

Mr. Miller, you have five, or maybe five and a half minutes, because of the ice cream.

[Some hon. members]

Oh, oh!

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

Thank you, Mr. Chair.

Gentlemen, thanks very much for being here. Your testimony has been very helpful.

I want to continue, Mr. Atkey, on what Ms. Damoff was talking about, the Prime Minister's having the ability to redact and what have you.

I guess my question is what reasons would be acceptable, in your opinion, for the Prime Minister of the day to use in order to redact? Could you enlarge on that a bit?

[Ron Atkey]

I think redaction would be acceptable if the information would jeopardize an operation of one of the security agencies, such as CSIS or the Canadian military.

Let me, Mr. Miller, give you the flip side of that. What information that has been redacted in the past should not have been redacted and was found by Justice Noel?

There were 2,000 words in the Arar commission case. About 1,000 were eventually released, and most of those released related to the fact that the words “a foreign agency” had been used, whereas in fact the foreign agency involved was the CIA. It was the identification of the CIA or the FBI that Justice O'Connor wanted the public to know about, and their involvement in this whole operation in Canada, which the Prime Minister's Office had sought to excise or redact because it would be embarrassing to Canada to embarrass our neighbours to the south, because the CIA said they never wanted to see their name appear in a Canadian public document.

Justice in this situation was served, because the information came out, and incidentally, our relationship with the United States and the CIA didn't change.

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

Thanks for that example.

Mr. Wark, I think one thing you said in your testimony was to be careful about exempting operational procedure information.

Can you enlarge on what brings about that concern of yours and add a little more detail?

[Wesley Wark]

Mr. Miller, thanks for the question.

I was referring, though my mind was going a little foggy at that precise moment, to this element of the Security of Information Act, the special operational information that's written into Bill C-22, as an area that could be excluded from the committee's access.

The reason I say be careful about this is that, as Mr. Clement indicated, this really is a kitchen sink of potential exemptions—not that the government would always seek to use it, but the potential is there—and frankly I don't see the need for it. It rather overlaps with some things that are already excluded in section 14, and I think there could be a simpler formula for indicating the grounds on which a minister would exclude access to information; for example, the kinds of things Mr. Atkey is talking about, information that would be injurious or prejudicial to the operations of elements of the Canadian security and intelligence community. I think that's more clearly understood.

I should also say, just thinking back to the passage of the Anti-terrorism Act—I don't know how many members were around the table in this place back in 2001—that I tried to make a little bit of noise in 2001 when testifying on the Anti-terrorism Act saying that this special operational information and that whole Security of Information Act was not right, but my protestations did not get any attention. We're not going to go back to it now, but I don't think it's a good idea to import it into Bill C-22.

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

You also commented on the U.K. model, and I think you said that it should be followed. We all know that the British model was reviewed and changes were made in 2013, and some of those changes definitely haven't been adopted in Bill C-22. Do you have a comment on that?

[Wesley Wark]

I'm puzzled why some of those changes weren't followed. I think perhaps it was the result of an excess of caution on the part of the government. They were wanting to start up this parliamentary exercise, particularly on control of membership and how membership would be appointed and the election of a chair, which were all new measures brought in in 2013.

What was also brought in in 2013 was a practice I think the committee somewhere down the road could usefully follow, which is creating a memorandum of understanding between the committee and the Prime Minister that would be tabled in Parliament. It would contain some of the more specific activities of the committee and what it would cover.

There are two things in particular about the changes to the British practice post-2013 that I think we could usefully follow. One is the specific listing of agencies that would be a primary concern to the Security Intelligence Review Committee, which was expanded in 2013. The other goes back to this question of the circumstances in which the Prime Minister could direct the committee not to release aspects of a report. The revised legislation in 2013 indicated that if that were going to be the circumstance and the Prime Minister felt strongly enough about it, then the Prime Minister would have to consult with the committee chair and explain the reasons. At the same time, the committee—and here I may slightly disagree with my colleague, Ron Atkey—would have the power to at least indicate where in the report released to Parliament the redactions occurred, and it would do so by a series of ellipses. That would be symbolic, but probably would be important as an exercise of committee power.

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

Thank you, gentlemen.

[The Chair, Liberal, Rob Oliphant]

Your testimony has been very helpful to the committee. We passed a motion earlier in our committee that any testimony we received on Bill C-22 that could apply to broader oversight issues in our national security framework study would be transferred to that study. So you have gone beyond Bill C-22 appropriately, but don't despair, because it will be taken as evidence in our broader study on oversight.

The second thing is just a note. Don't underestimate the ability of this committee to do very effective work to improve this legislation—we can do it—and don't underestimate our ability to do it in a very good bipartisan, tripartisan way. I think this committee will work very hard on this legislation, so don't despair on that either.

Thank you very much for this. We're going to take a brief pause to get our next witness by teleconference, and I'm going to have ice cream.

[Some hon. members]

Oh, oh!

[The Chair, Liberal, Rob Oliphant]

I'd like to begin.

Thank you very much, Professor Forcese, for joining us today.

We also have Professor Roach, who is on teleconference. We won't see his face, but we will hear his voice.

Are you there?

[Prof. Kent Roach, Professor, Faculty of Law, Munk School of Global Affairs, University of Toronto, As an Individual]

Yes, I am.

[The Chair, Liberal, Rob Oliphant]

Actually, I think we're going to go with you first, Professor Roach, just in case something goes wrong, or do you want Dr. Forcese to go first?

[Prof. Kent Roach]

Yes.

[The Chair, Liberal, Rob Oliphant]

Okay.

[Professor Craig Forcese, Associate Professor, Faculty of Law, University of Ottawa, As an Individual]

We structured it so I went first.

[The Chair, Liberal, Rob Oliphant]

Okay.

The other thing I was going to mention to the committee is that professors Forcese and Roach have presented a paper to us. It will be available once it's been fully translated. That paper will come to us also as evidence, just so you know that our committee has not read it, but they have read everything else you have written, so we're looking forward to your testimony.

[Prof. Craig Forcese]

I'm pleased to hear that because that puts them ahead of my students.

[The Chair, Liberal, Rob Oliphant]

I'll begin with you, Professor Forcese.

[Prof. Craig Forcese]

Just by way of information, because I knew the comparative issues involving Five Eyes countries and their parliamentary review systems would come up, I prepared a table of comparison. I brought some copies. It's not yet translated, but if people want copies....

[The Chair, Liberal, Rob Oliphant]

We will have it translated to make it fully available. I believe you can't distribute it, but if someone walked by and picked it up, that could happen, I guess.