Public Safety Committee on Nov. 3rd, 2016

[Prof. Craig Forcese]

Okay. It's right there on the corner.

[The Chair, Liberal, Rob Oliphant]

We will have it translated, so it'll be available in both languages for the committee, but it's not being distributed.

[Prof. Craig Forcese]

Thanks very much.

Thank you for inviting me to appear before you. As noted, Professor Roach and I have coordinated our presentations.

I'm going to start off by focusing on why we support Bill C-22, and then outline a key concern, some of which you've heard in the prior presentations, namely the proposed committee's access to information.

Let me begin by looking across the Atlantic. In November 2014, the United Kingdom Intelligence and Security Committee of Parliamentarians published a 200-page report on the intelligence relating to the murder of Fusilier Lee Rigby by two terrorists on the streets of south London. That report concluded that seven different security agencies had flagged the two terrorists as persons of interest. Errors were made in these operations, although even without these mistakes, it was unlikely the services would have been able to predict and prevent the murder of Fusilier Rigby.

The report also considered, however, the wider policy implications of its findings. It drew lessons learned and recommendations on how interagency relations could be improved.

Juxtapose this with the situation in Canada. Just over two years ago, Corporal Nathan Cirillo and Warrant Officer Patrice Vincent were killed by terrorists in separate incidents, including the one that terminated in Parliament itself. We have no public accounting of any real sort of what happened. What did our services know? Why did they make the decisions they did? What are the lessons learned? At best, we have a heavily redacted accounting of the security systems on the Hill, as if the questions concerning national security started only when the terrorist entered the parliamentary precinct.

We do not, in other words, do lessons learned exercises well in Canada. Judicial commissions of inquiry such as that concerning the treatment of Maher Arar or the much delayed review of the Air India bombing investigation are episodic, and once they end, their recommendations usually die with them.

Our existing expert review bodies, meanwhile, are stovepiped to individual agencies and incapable of conducting seamless reviews of operational activities that cross agency boundaries. Their focus is usually on compliance with law and policy, what we call propriety review, and they rarely make recommendations on what we call efficacy questions, that is, how well our national security systems work, and especially work together.

That is why we support Bill C-22. It invests parliamentarians with a serious national security accountability function for the first time in Canadian history, and in that respect, aims to catch up to a role legislators now play in essentially all western democracies. Even more critically, it opens the door for the first time to all-of-government review by a standing body able to follow the thread of its inquiry across departments and to conduct efficacy review, as well as the more classic propriety review. This body will endure, and will be capable of follow-up in a manner impossible for ad hoc commissions of inquiry.

But we support Bill C-22 with serious caveats. The success of the proposed committee of parliamentarians will ultimately depend on three criteria.

First, the parliamentarians undertaking this role must be able to perform their functions in a serious-minded manner, in good faith, and without regulatory capture by the agencies. We need, in other words, the right people. Second, parliamentarians will, in practice, be part-time participants on the review committee, and turnover among parliamentarians will occur, especially between parliaments. A stable, well-resourced expert staff is required to ensure continuity and institutional knowledge, and to ensure that the committee can actually function. Third, the committee must have robust access to secret information.

In my remaining moments, I wish to emphasize this third axiomatic point. Unless the committee can access information allowing it to follow trails, it will give the appearance of accountability without the substance. On this point, unfortunately, if enacted in its present form, the proposed Bill C-22 committee will not be as robust a reviewer as are the existing expert bodies, at least on paper.

For one thing, its capacity in paragraph 8(b) to delve into the actual operational details that are a necessary focus of proprietary review is subject to a veto by the executive. Prior witnesses focused on this issue.

Also, the committee will have a much more limited access to information than at least two of the existing expert bodies. There are two principal reasons for this.

First, under clause 14, there are classes of information the government will automatically deny the committee. Take the example of paragraph 14(b) concerning military intelligence. Again, this was raised by the prior witnesses. I would hazard that this exclusion would mean that the parliamentary committee could not delve into the Afghan detainee affair in any full manner, meaning that we would still be left without any independent body able to get fully to the bottom of that matter.

Likewise, take the example in paragraph 14(e) concerning “ongoing” law enforcement investigations. These can endure essentially indefinitely. The RCMP, even now, decades later, still has an active law enforcement investigation into the 1985 Air India bombing. Even now, the new committee could be denied information concerning the disastrous security and intelligence community conduct in relation to Canada's most horrific terrorist incident.

Even the exception in paragraph 14(d) dealing with sources is potentially far-reaching. The reference to inferences opens the door to carving away considerable swaths of information, especially if the government applies its infamous “mosaic theory”; that is, it posits that individual units of information that are themselves innocuous should not be released since they could be stitched together by an omniscient observer to reveal sensitive information—in this case, informer-identifying information.

On top of that, there is an additional limit: clause 16. It gives every minister responsible for an agency whose information may be in play a limited veto power, allowing the minister to deny the committee something called “special operational information”. The items listed in this concept appear at first blush to be modest in scope, but again would have the effect of excluding information on things like Afghan detainees. There is also that open-ended word, infer, in the governing statute and cross-referenced by Bill C-22, that is, the Security of Information Act, which inevitably would have the effect of greatly broadening the universe of information that ministers can deny the committee.

There are three layers of constraint on the new committee of parliamentarians being an effective review body: clause 8 in paragraph (b), clause 14, and clause 16. It is this triple lock on parliamentary reviews that I feel could well make the committee of parliamentarians stumble.

In sum, Bill C-22 opts for a model that treats parliamentarians as less trustworthy than the often former politicians who sit on SIRC, or the judges who hear security cases, or ministers who sit at the apex of the security and intelligence services. It is not at all clear to me why security-cleared parliamentarians sworn to secrecy, subject to the criminal penalties of the Security of Information Act and stripped of their parliamentary privileges in terms of defending against those charges, are less trustworthy than their former colleagues who often staff review bodies.

I would strongly urge, therefore, amendments that would place the committee on the same footing in terms of access to information as these review bodies: full access to information except for cabinet confidences.

Thank you for your interest.

[The Chair, Liberal, Rob Oliphant]

Thank you very much.

Professor Roach.

[Prof. Kent Roach]

Picking up from my colleague who addressed the access to information issues, I want to stress the importance of making the committee as non-partisan as possible and ensure that it has as much expert assistance as it needs.

Starting with subclause 4(2) of Bill C-22, I think there needs to be attention paid to ensure that there is not government domination of the committee. I think subclause 4(2) is a good start, certainly something that we don't see with other parliamentary committees, but of course as members know, the representation in the Senate now is evolving. I think it would be important to make this as nonpartisan as possible.

That brings us to clause 6, which contemplates that the chair of the committee would effectively be a prime ministerial appointment, as opposed to what you heard about in the last testimony, whereby the U.K. allows the members of their committee to elect their own chair. It is a bit concerning that this provision is there, especially when the Prime Minister also plays such a key role with respect to possible redactions from reports. Those features are an area that perhaps should be looked at, in keeping with trying to make the committee as non-partisan as possible.

I would also add that I agree with Mr. Atkey's suggestion that, rather than have the Prime Minister, you would in an ideal world have a neutral third party make a decision about what can go in and what can go out of a committee's report. Like the Federal Court, that provision can balance the competing interests of national security and transparency. Given that such may not and is not likely to be the case, there is a concern about potential government domination of the committee, which could be one factor leading to increased partisanship.

Second, the committee rightly has a very broad mandate, which relates to activities carried out by all departments involving national security or intelligence. This is the sort of whole-of-government mandate that was given to the Arar, the Iacobucci, and the Air India inquiries. I think it is very appropriate, given that we have an all-of-government approach to security. That said, we should not underestimate the steep learning curve that any person would have in exercising an all-of-government mandate.

In this respect, I think it is positive that the proposed committee, unlike most other parliamentary committees, is going to have a dedicated secretariat. I would urge that the secretariat be composed in such a way that there would be the maximum of flexibility in hiring staff, that the secretariat be able to use independent legal advice, be able to use the cadre of security-cleared special advocates, who could pop in on an as-needed basis. Obviously this committee's mandate will evolve over time. At certain times it will need certain expertise, and at other times it will need other expertise. The secretariat, in my view, should be less based on a permanent civil service model than a hire-as-required model.

Those are two of my thoughts about how to create conditions for success for the committee. In addition to full access to information, I think those are critical criteria for success, but it is also critical that the right people be available to assist the committee, and that the committee be as non-partisan as possible.

Thank you very much.

[The Chair, Liberal, Rob Oliphant]

Thank you, both.

We will begin with Mr. Erskine-Smith.

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

I'd like to start with the comment in your remarks that you would strongly urge “amendments that would place the committee on the same footing in terms of access to information as these review bodies...”. If we were to adopt that recommendation, what would that look like for the purposes of this act? We have clauses 8, 14 and 16, the triple lock, as you put it. What do we need to change specifically?

[Prof. Craig Forcese]

You would certainly take out clauses 14 and 16. Paragraph 8(b) doesn't go to access to information; it's about a veto on actual reviews, so close consideration should be given as to whether there should be a veto. Clauses 14 and 16 would be replaced with language you could take right out of the CSIS Act that relates to SIRC. The SIRC language guards access to information. It also contains some of the powers that Mr. Atkey was discussing in terms of capacity to compel information. The limit on SIRC access to information is confined strictly to cabinet confidences.

The language is already drafted and it would be, to a certain extent, a matter of carbon copying.

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

Okay, so would you recommend removing paragraph 8(b) as well or, sorry, not all of paragraph 8(b), but the exception for the minister?

[Prof. Craig Forcese]

Yes. Paragraph 8(b) really relates to what I suppose we would call operational reviews. The concept is the capacity of the committee to review activities. “Activities” is the terminology used to describe what CSIS and CSE do. It is the term used in their statutes. We're talking about operations here.

I understand the concern on the part of the government that you could have circumstances in which a review of an operation could impede that operation, and so you want to leave the prospect of pulling the plug in the hands of the minister. I think you can accommodate that concern with more careful drafting, rather than an absolute veto.

For example, Professor Wark raised the example of the United Kingdom's ISC. Not so much in their statute, but in the memorandum of understanding between the ISC and the executive branch, there are some criteria that describe when it would be appropriate for the ISC to review operational matters and when it wouldn't.

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

It would be much more specific with respect to—

[Prof. Craig Forcese]

It would be more specific and less open-ended.

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

You mentioned the U.K., so I'd like to turn to access to information with respect to the U.K. committee. My understanding is that information can be excluded from the committee if it's sensitive information and it's information that, in the interests of national security, should not be disclosed to the ISC. Sensitive information is then specifically defined. In Bill C-22, we don't see any dual test; it's just “injurious to national security” and it's completely undefined.

Would you speak to how we might be able to improve it? Should we adopt language from the U.K. if we're to go down that road, or should we just leave it as “injurious to national security”, without any definition whatsoever?

[Prof. Craig Forcese]

You avoid this issue if you pursue the course that I've suggested, which is to remove clauses 14 and 16 and go with the SIRC-style language about cabinet confidences. You don't have this issue anymore, because now you've moved beyond the dilemma posed by the U.K. language. If you were to persist with some kind of qualification on access to information, I'm not sure I would be as fully comfortable with the U.K. model as were some of the prior witnesses, in part because, if you look at the description, it's quite open-textured, and so the scope is potentially, in practice, broader than the enumerated list that you find in clauses 14 and 16.

In practice, though, the one distinguishing feature in the U.K., as I understand it, is that there's not an absolute bar, and so there's no equivalent to clause 14. Clause 14 in the current Bill C-22 says that you don't get this information ever, regardless of any exercise of discretion by the minister. In the U.K. context, the exclusion of information is discretionary, and the memorandum of understanding with the government and the ISC says that discretion will rarely be exercised. So, if you're going to retain a limitation on committee access to information, remove the idea of absolute bars; leave it as discretionary, and try to circumscribe the conditions under which that discretion would be exercised.

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

To pick up on that, then, it might make sense, rather than having the broad term “injurious to national security”, to tie it to something specific as the U.K. does. They have a defined term “sensitive information”.

[Prof. Craig Forcese]

Again, yes, the defined term is “sensitive information”, although that's roughly analogous to our special operational information.

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

That's with respect to clause 16, though.

With respect to clause 14, which you were just mentioning, where it's an auto exclusion, if we are to cure that and not remove it entirely, one way might be to make reference to “injurious to national security” as well, the same as clause 16 does, and require some discretion to be imposed.

[Prof. Craig Forcese]

Yes. In other words, clause 14 is no longer an automatic bar to a whole class of information.

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

Okay.

With respect to specific items in clause 14, I wanted to walk through paragraph 14(b). When we look at the definition of “special operational information”, paragraph 8(b) seems to be completely unnecessary.

[Prof. Craig Forcese]

It's redundant.

Again, I call this the triple lock. Paragraph 8(b) is a lock. Clause 14 is a lock. Clause 16 is a lock. These are all means to deny access to the committee.

Moreover, incidentally, I would assume that the provisions in the Canada Evidence Act that allow a minister to issue a certificate and deny a disclosure of information could equally apply to this proceeding, as well as a court proceeding.

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

It seems to me that once you have clause 16, with “special operational information”, and you have the discretion imposed under clause 16, clause 14 then precludes that for certain items. So paragraph 14(b).... It's stated in paragraph 8(1)(b) of the act. We have paragraph 14(d). It is stated in paragraph 8(1)(a). At the very least, we have to remove those under clause 14.

[Prof. Craig Forcese]

I would say so.

I would also ask the committee to recognize what subsection 8(1), “special operational information” in the Security of Information Act is supposed to do. That's the class of information that if you reveal, you go to jail. That's disclosure in a matter that's quite prejudicial to national security. You go to jail.

They're using that definition of “special operational information” to control a closed-door access by a committee where everyone is security cleared and is also subject to the Security of Information Act. They're using an apple for purposes of an orange, if I can use that analogy.

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

Thanks very much.

One last question is on paragraph 14(e). If we don't take out all of 14, it seems to me, based on your testimony, it would be incredibly important to remove paragraph 14(e).

[Prof. Craig Forcese]

Certainly, either remove it or qualify it.

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

Okay.

Thanks very much.