Evidence of meeting #41 for Public Safety and National Security in the 42nd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was c-22.
A recording is available from Parliament.
5 p.m.
Conservative
Dianne Lynn Watts Conservative South Surrey—White Rock, BC
Most certainly, your testimony has been very relevant and has cleared up a lot of issues that I think we have struggled with and I think we've heard along our travels, as well. Then we had the minister on Tuesday, along with the staff who drafted this legislation.
It has been particularly worrisome when we look at some of these clauses, the limited access to information, the control of the membership, the control of the chair, the redaction capabilities, all of those things, because it seems in every way that the committee is supposed to function there's a barrier in the way so it can't function.
Most of my questions, actually, were along the same line that were just previously asked, but I would just say, because in listening to the minister—and we're sort of in a bit of a box because the Prime Minister has already appointed a chair, which doesn't instill that transparency and openness piece. So we need to deal with that. The minister is looking at going back to a quasi 2006 U.K. model, because in discussions we asked why we wouldn't use the model of 2013, and he wanted to take baby steps.
Can you give us your best advice in terms of how we proceed? I think everything that you've said here makes perfect sense, in terms of if you want the committee to function as it should function. Given what we have currently, it's impossible for it to function as it should function.
Is there something you can add to the conversation on how we deal with these elements that are already cemented in place?
5 p.m.
Prof. Craig Forcese
I want to make sure that Professor Roach gets in on this.
There are the concrete amendments that we proposed, which I think will resolve some of the issues. On this idea of baby steps or small steps before you run, there's certainly a sense that this is a process in which the parliamentarians have to earn the trust of the security services and therefore it's needed to have this triple lock and security clearance and the like. That's an analog to the U.K. experience, but there's a cost to that. The cost is that the U.K. committee has had growing pains. If you talk to people in civil society in the United Kingdom, it hasn't always been viewed as the most credible body, in part because it's had these strictures that, over time, have meant that it hasn't necessarily performed as robust a function as people had hoped.
I also think that we don't need to start at the same point as the U.K. did, because we have a long tradition of review in this country. CSIS, from it's beginning, was subject to review. CSE has been reviewed for 20 years, so they are habituated to the idea of review in a way that wasn't true of the U.K. when the ISC started. I think we can start that much further ahead.
November 3rd, 2016 / 5 p.m.
Professor, Faculty of Law, Munk School of Global Affairs, University of Toronto, As an Individual
Yes, if there was only one amendment, it would probably be to clause 14, that is, to take out paragraph (g), just to argue that the new parliamentary committee needs the same access as SIRC has, but also needs to work as closely as possible with SIRC, the CSE commissioner, and the RCMP review body. Indeed, I think there is some potential that the secretariat of the new committee, which I think will be critical to its success, could work with those existing review bodies that have the confidence of the agencies. Although the idea of having to win trust from the agencies is not a particularly palatable one for an affected parliamentarian, I think that reforming clause 14, which, as my colleague has said, is a very broadly defined no-go area, will undermine public expectations about what a parliamentary committee could do, say, with respect to something like the Afghan detainees, while working closely with the existing review bodies.
I guess one of my greatest fears about Bill C-22 is that it could lead people to think that this is somehow duplicative of the work of the existing review bodies. The Arar commission found that the review structure was inadequate in 2006, and it could be seen to be much more inadequate today after Bill C-51. There needs to be a very close relationship between the new committee and the existing review bodies. I think this will benefit the executive watchdog review and will help the new parliamentary committee to gain credibility while being educated about where they should be placing their limited resources and time.
5:05 p.m.
Conservative
5:05 p.m.
NDP
Murray Rankin NDP Victoria, BC
My thanks to Professor Forcese and Professor Roach for their excellent testimony.
In answer to a question that my colleague Mr. Erskine-Smith asked you, Professor Forcese, in respect of paragraph 8(b), you said close consideration should be given to whether it was removed. Earlier today, Ron Atkey suggested it be removed or modified. There's no such veto, he pointed out, in SIRC and it hasn't been a problem in the real world. I would just like to pin you down, if I could, on your views on paragraph 8(b) and whether it should be removed.
5:05 p.m.
Prof. Craig Forcese
The portion that follows the comma, the “unless” part and forward, is the ministerial veto, and this is the part that troubles. You wouldn't want to get rid of the portion before that. I would be very content, however, to see the veto go, in part because I don't understand why this committee of parliamentarians should be on a different footing than the expert review bodies.
5:05 p.m.
NDP
Murray Rankin NDP Victoria, BC
Thank you very much.
I think you have been extremely clear on the issue of access to information. You said amendments would place the committee on the same footing in respect of access to information as those review bodies, namely, full access, except cabinet confidences. I think you've been very clear on that.
I'd like to ask you about redacting reports in clause 21. I just want to quote something you wrote before. You said that the “ability of the PM to redact final committee reports is broader than ideal—at the very least there should be a capacity for the committee to signal that redactions have been made”.
Would your concern be resolved if this committee adopted an amendment to clause 21 to require that any revised reports are marked as such and show exactly how much information was redacted and for what reason?
5:05 p.m.
Prof. Craig Forcese
Yes, I think those sorts of indicators would be important. I would also indicate that the practice with ISC, as I understand it, is that when redactions are made it's not just a series of asterisks, which gives you no indication as to the volume of redactions, but there's a blank space, which communicates exactly how much has been removed.
I would also flag for you the practice in, I believe it's Australia, where if a redaction is made, notice is given to Parliament.
5:10 p.m.
NDP
Murray Rankin NDP Victoria, BC
Thank you.
Professor Roach, I'm not really sure if this is a question for you or for Professor Forcese, because Professor Forcese called the appointment of the chair by the Prime Minister “a controversial practice in the U.K., abandoned in reforms several years ago”. I think you support it, but I didn't hear either of you specifically say that you supported the election of a chair. I wonder if I could ask you what your thoughts are. I'm starting with you Professor Roach because you addressed it in your remarks.
5:10 p.m.
Professor, Faculty of Law, Munk School of Global Affairs, University of Toronto, As an Individual
I would support an election of the chair. It wouldn't be the first amendment on my priority list. One of the things I tried to point out is that the combination of prime ministerial appointment of the chair and then prime ministerial redaction, even subject to a designation, are things that could potentially undermine public confidence.
5:10 p.m.
NDP
Murray Rankin NDP Victoria, BC
It's been 35 years ago already since the McDonald commission recommended that there be an election of a chair, that the chair be a member of the opposition party, and that the parties be represented on the committee roughly in proportion to their strength in the House. So it's not a new idea.
Professor Roach, you made a very intriguing point about the secretariat during your presentation. If I understood you, you said special advocates, who are security-cleared, private sector lawyers working on immigration matters, could be available on a case-by-case basis in a particular area, as required. I thought that was a really intriguing perspective, because it would not allow the secretariat to simply become a government agency, but would presumably enrich its expertise with people who've done this work before courts and boards. Is it already possible, or do we need an amendment? I note that clause 29 has the contracting power available to the secretariat anyway, so I wasn't sure if you were suggesting that if we wanted to take that excellent idea to heart whether we would need to change the statute to do so.
5:10 p.m.
Professor, Faculty of Law, Munk School of Global Affairs, University of Toronto, As an Individual
Clause 29 does look as if it could accommodate that, but the other thing I was trying to get across was that the secretariat needs to be robust and it should not be based on a permanent civil service model. One of the lessons of public inquiries in Canada is, when you bring people from the outside to look at these matters they tend to have a somewhat more critical perspective.
You also mentioned immigration, and that is definitely an expertise of the special advocates, but they are now being used in a wide variety of section 38 CSIS disruption matters, so it's very important that the secretariat be flexible enough that you could get the expertise that you need for a certain time, because in reality, this committee is going to have to make difficult choices about where to focus its limited attention and resources.
5:10 p.m.
NDP
Murray Rankin NDP Victoria, BC
I want to end on a question for either of you, but perhaps I can start with Professor Roach. It's on the issue of dispute settlement. There are a number of decision points where ministers appear to have a final say in the bill, in clauses 8, 16, and the like. Should those decisions be final, or should there be a mechanism to resolve disputes over access or redaction?
Minister Goodale has said that would be done simply by resorting to what he calls the bully pulpit, but I'm wondering if you think we need to have more robust dispute resolution mechanisms available.
5:10 p.m.
Professor, Faculty of Law, Munk School of Global Affairs, University of Toronto, As an Individual
I agree with Mr. Atkey that in the best of worlds you would use this under section 38. Of course, section 38 itself has a ministerial veto, a controversial ministerial veto, one that has not been exercised to my knowledge, but it is there. Section 38 also calls for some light judicial review of the ministerial veto.
5:10 p.m.
NDP
Murray Rankin NDP Victoria, BC
Just to be clear for the record, you mean section 38 of the Canada Evidence Act.
5:10 p.m.
Professor, Faculty of Law, Munk School of Global Affairs, University of Toronto, As an Individual
Yes, exactly.
5:10 p.m.
Liberal
The Chair Liberal Rob Oliphant
Thank you very much.
I have one question of clarification from Professor Roach. To Mr. Rankin's question, you were agreeing to election of the chair. Mr. Atkey was referring to election of the chair by Parliament. Could you clarify whether you're talking about election by Parliament, which would be the House of Commons and the Senate, or by the committee, once struck?
5:15 p.m.
Professor, Faculty of Law, Munk School of Global Affairs, University of Toronto, As an Individual
Of those, my preference would be for the committee, given the need for the committee to work as a collegial body.
5:15 p.m.
Liberal
Marco Mendicino Liberal Eglinton—Lawrence, ON
Professors Forcese and Roach thank you for your testimony today.
I want to start by thanking you both for your public support of Bill C-22, although I understand from your testimony that it comes with certain qualifications, and that's part of why we're here, to discuss those qualifications and to see how we might improve on this bill.
On any reading of Bill C-22, this new committee of parliamentarians will be bestowed with a rather broad mandate. You would agree with that sentiment, would you not?
5:15 p.m.
Prof. Craig Forcese
Yes, I would.
5:15 p.m.
Liberal
Marco Mendicino Liberal Eglinton—Lawrence, ON
Looking at paragraph 8(b), we see that the mandate of the committee is to review any activity, and I'm paraphrasing here, that would relate to national security or intelligence. The parameters have been set to be just about as broad as you can imagine.
Would you agree with that?