Public Safety Committee on Nov. 3rd, 2016

[Prof. Craig Forcese]

Yes, I would. In fact, I find that the mandate of the committee, clause 8, subject to the conversation we just had about the ministerial veto, to be quite attractive.

[Marco Mendicino, Liberal, Eglinton—Lawrence, ON]

Let me turn to the limitations. We had the minister testify just a couple of days ago. He spoke about this committee's power to follow the evidence wherever it would lead, although he acknowledged in an exchange with me that there were limitations. We spent some time talking about those limitations, and they boil down to three categories: paragraph 8(b), which includes the restriction on any activity unless it would be injurious to national security; clause 14, which has the enumerated categories of automatic refusal; and subclause 16(1), which talks again about restricting access to information on the basis that it might be injurious to national security or it would fall under the definition of special operations.

You've described this as a triple lock. In fairness, though, in two of the three categories that we've discussed, there is an exercise of ministerial discretion involved. Do you see a scenario in which over time, the exercise of that ministerial discretion could evolve as public confidence in the committee is strengthened, as well as its relationship to the House of Commons, to Parliament, through its reporting?

[Prof. Craig Forcese]

Certainly, and the pattern in the United Kingdom is that this practice has been codified. What's unique about the 2013 amendments to the U.K. system is they provided that a lot of the details would be articulated in a memorandum between the ISC and the U.K. executive, and that's now been published. As I say, it specifies criteria that ease some of the concerns about the otherwise broadly textured language in the statute itself.

[Marco Mendicino, Liberal, Eglinton—Lawrence, ON]

Professor Roach, did you have a comment about that?

[Prof. Kent Roach]

Yes, I agree, and ministerial decisions, particularly those as under subclause16(2) that require reasons, I think are better than the categorical sorts of exceptions in clause 14.

[Marco Mendicino, Liberal, Eglinton—Lawrence, ON]

As you both have written, a committee has to walk before it runs, and I believe that's a verbatim phrase that you used in one of your recent op-ed pieces. Let's just assume for the moment that for the short term, there might indeed be a more narrow exercise of that discretion such that the committee of parliamentarians may feel as though it's not able to fulfill the broad parameters of its mandate.

I would submit, and I would be interested in hearing your responses, that there are least two options it can pursue. One would be to avail itself of certain statutory gateways in collaboration with pre-existing civilian oversight through SIRC and the commissioner of CSE, for example. I want to touch on that for a moment, because what we heard from the minister in his evidence before this committee was that rather than prescribing that collaboration and the way that parliamentarian oversight and civilian oversight will work together, he envisions the relationship will evolve organically.

Do you see that playing out in the same way, or do you think that is a discussion that needs to be had at this stage, either in the bill or through some other regulatory framework?

[Prof. Craig Forcese]

Things playing out organically is the Canadian way, otherwise known as muddling through. It's suboptimal because it creates unnecessary conundrums. Ron Atkey, in his prior testimony, raised concerns about the degree of interface that's now possible, given the current drafting of Bill C-22, between the expert review bodies and the committee.

While there are gateways anticipated, those gateways themselves would be subject to the constraints on access to information by the committee. You could imagine the awkward scenarios that might arise.

[Marco Mendicino, Liberal, Eglinton—Lawrence, ON]

Can I stop you right there? Can I take it just from those comments that you would suggest that we as a committee actually reflect in more detail about how parliamentarian oversight needs to collaborate and co-operate with civilian oversight?

[Prof. Craig Forcese]

I think you have to think that through, although I know you're constrained in these sorts of amendments that you can make to the bill in its present form. But at the very least, you're in a position to say that the expert review bodies and the parliamentary committee need to be on an even keel in order to interface well, and that means even keel in terms of access to information.

[Marco Mendicino, Liberal, Eglinton—Lawrence, ON]

I actually want to take you to task on that because one of the things that you're advocating for today is levelling the access playing field.

As I look at SIRC and its mandate in the CSIS Act, and I look at the committee of parliamentarians in Bill C-22, they actually do not share the same mandate. I think we could talk a bit about whether or not the parameters are more focused for SIRC, but the point is that they're not identical and that may offer a plausible explanation as to why access would not be the same. In other words, it may very well be that as the committee of parliamentarians gets its footing, in a scenario like the one I've just described, where it would find that it did not have access, it would rely on existing civilian oversight—and we've heard that from Professor Atkey, for example—as a way of referring a matter to that body for the purposes of investigation.

Let me hear your thoughts on that.

[Prof. Craig Forcese]

Let me put this more—

[The Chair, Liberal, Rob Oliphant]

Very briefly, please.

[Prof. Craig Forcese]

If we imagined a scenario where we wanted an Air India style of investigation, we'd see the committee would be blocked because of clause 14. It refers the matter to the RCMP civilian complaints and review committee and to SIRC. The RCMP body has its own restrictions on information. SIRC can see everything. But SIRC and the RCMP body can't collaborate. What we have then is the prospect of things falling between the cracks because of the uneven access to information.

[The Chair, Liberal, Rob Oliphant]

Thank you very much.

We have Mr. Clement for five minutes.

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

I'd like to pursue this line of questioning from a bit of a different perspective from Mr. Mendicino.

From what you've been saying, we're in this situation where it's not as if we're a young infant on these matters because we've had a history in this country of oversight, Professor. You've said that. Yet we have in this bill this inclination to go back.

If we're somehow emulating what has happened in the U.K., as an an example, we're going back in time to the initial structure and accountability mechanisms and constraints and so forth of the U.K. experience rather than going to the 2013 experience, where they have learned all their lessons and they've had their collaborations and they're on the 2.0. We've decided to go all the way back to the 1.0.

Mr. Mendicino's point is that we have to walk before we run. I heard the minister say that, too, on Tuesday. But your point is, we actually have this experience already. Am I paraphrasing you correctly?

[Prof. Craig Forcese]

Yes, I think we have a substantial amount of experience that did not exist when the U.K. stood up its ISC. So if I were to use an analogy, I would say we should at least be able to conduct ourselves at a light jog.

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

Sure. I think that's an important distinction if we're going to compare and contrast with the U.K. model.

Professor Roach, it's good to hear your voice, if not see your face. Did you want to elaborate on this point as well?

[Prof. Kent Roach]

Yes.

Also, to go back to your colleague's prior question, one of the reasons I think we can jog is that we have all this expertise with SIRC and the CSE commissioner.

One of my concerns is that if you make the interactions between the new committee and those existing review bodies more sticky than they have to be, you're actually going to, potentially, make both worse.

For example, I think a first task of the secretariat should be to make all of the classified reports—there are 100 classified reports by SIRC and the CSE commissioner—part of a library that parliamentarians and a security-cleared secretariat can access and can use to hold ministers to account for the way they respond to that.

One of my worries is that by making the triple lock very complicated, you're going to get into a situation where the lawyers are going to tell you, “It would be nice to have that study from SIRC, but we're not really sure.”

As you know, Mr. Clement, lawyers tend to be risk averse. They tend to be risk averse when they're looking at the Security of Information Act with its penalties and so forth.

I think you need to get it right now, because it is going to be more difficult to fix three or five years down the road.

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

I'm becoming persuaded by that argument.

What I've learned today from your testimony and previous testimony is that it's not a choice without an impact. In other words, it's not an academic discussion about whether you're going back to the U.K. example of 12 years ago versus what's happening now. Your point, in particular—and I believe Mr. Atkey and the other gentleman also alluded to this—is that it could be a situation in which we're creating a knowledge gap, an information gap among all the stovepipes, and that could have an impact on our national security and intelligence.

I don't want to put words in your mouth, but am I on the right track, in your opinion?

[Prof. Kent Roach]

Exactly. Stovepipes and silos work to the detriment of both propriety and efficacy.

As Professor Forcese said, we started off with the efficacy picture. You need to have something that can break down those silos. There's a certain amount of stickiness in this legislation that perhaps needs to be eased through some amendments.

[The Chair, Liberal, Rob Oliphant]

Thank you.

Mr. Spengemann, we have time for a five-minute round, if people will indulge us to go a couple of minutes over.

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

Thank you very much, Mr. Chair.

Thank you both for being here.

I want to take advantage of the remaining few minutes to take you a little bit away from the mechanics of effective review, which is most of what we heard this afternoon both in this panel and in its predecessor, to look at the social and political environment in which this committee is going to operate, with a specific focus on and interest in the creation of a public value of trust in government.

I sit on the defence committee as well. That committee has received evidence that I will put to you. The single biggest threat against Canadian society is domestic terrorism. In fact, it is domestic terrorism that really has brought some very specific concerns by particular communities in Canada with respect to the former Bill C-51. When we talk about the creation of trust in governments specifically through that lens of domestic terrorism, I think it's a very salient topic. Public Safety's “2016 Public Report On The Terrorist Threat To Canada” outlines that in some detail.

Assuming, then, that a good chunk of the committee's work is taken up by a review of action, intelligence gathering, and other activities with respect to domestic terrorism, what will that mean for this committee, both with respect to the mechanics of effective review, as we've discussed it, and equally important, with respect to its role, as has been described by Professor Wark, as an educator and as an outreach mechanism to the Canadian public?

My hunch is that the Canadian public isn't at par even with the parliamentarians who will be appointed to this committee with respect to an understanding of national security, and this committee will face some constraints in terms of bridging that gap.

I wanted to hear from you what levers are reflected in the bill and what levers are at our disposal administratively or in terms of resourcing this committee to make sure it can play that role well and enhance public trust in government.

[Prof. Craig Forcese]

On that, I'd make two points, and this goes less to law than it does to culture.

Mr. Atkey, who appeared in front of you, was the first chair of SIRC. Mr. Atkey, in the course of being chair, established a culture at SIRC that was quite robust and probably made more of that body than many people feared it might, so the initial culture of this body, which means the initial staffing and the initial focus and resourcing, will have an impact in terms of how it's perceived. If it starts off on the wrong foot, with the wrong people, the wrong resourcing, and without credibility, it will find it very difficult to recover. That's my first point.

The second point is that one of the issues in national security is that expertise in this area tends to be monopolized within executive government, so conversations on national security issues can be quite rudimentary outside of government. One of the virtues, it seems to me, of investing parliamentarians with more competence in this area is that they will be better legislators and better able to communicate to the public, even without spilling any bean, that is, a national security secret, the dilemmas that are in play. That is another social value that this committee could serve.

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

Thank you.

Professor Roach, do you have views on this as well?

[Prof. Kent Roach]

Yes. I would also go back to where Professor Forcese started. If this committee did a 200-page report on what went wrong on October 22, 2014, that would provide for more informed policy-making. The Canadian public would be extremely interested in it, and it would also help to educate the public both about risks that we can control and about some risks that it may not be possible to control.