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.
3:55 p.m.
Adjunct Professor, Osgoode Hall Law School, York University, As an Individual
One moment, please.
3:55 p.m.
Liberal
3:55 p.m.
Adjunct Professor, Osgoode Hall Law School, York University, As an Individual
Okay.
3:55 p.m.
Adjunct Professor, Osgoode Hall Law School, York University, As an Individual
SIRC, with its staff and its established history of some 25 to 30 years, is an experienced review body that goes into the detailed monitoring and investigation of particular operations after the fact. It's the sort of detailed work that members of a parliamentary committee, even with the best staff in the world, will not have time to do. I think it's a recognition that in some cases where there is a problem—and there will always be problems—the committee of parliamentarians would be the first committee to which that problem would be referred.
It may well be that there will be a working relationship between the committee of parliamentarians and SIRC, and that the committee of parliamentarians might ask SIRC to undertake a particular investigation or conduct particular hearings. I don't believe a parliamentary committee, certainly from my experience appearing before them, has the sort of structure to hold individual hearings, where persons come with individual complaints, and the committee acts, in effect, as a court of law.
I think the purpose of the parliamentary committee will be to look at the efficiency of the operation, the efficacy of the operation, the productivity of the operation, and where there's alleged wrongdoing to at least highlight where the wrongdoing has occurred, and then to recommend, as an “overview committee”—a term I've used before—which body should be taking appropriate action, either in terms of reference to a minister or reference to one of the expert review bodies. If it involves CSEC, the Commissioner for CSEC would perhaps have the same expertise related to that organization.
There are other bodies in the Government of Canada, such as the CBSA, for which there is no review body. That is a problem in the makeup of the current security intelligence review mechanism in the Government of Canada. I'm not sure if Bill C-22 is going to fix that, but I think it could be highlighted by committee members of Parliament.
3:55 p.m.
Liberal
Nicola Di Iorio Liberal Saint-Léonard—Saint-Michel, QC
Thank you.
Based on your experience as chair of the Security Intelligence Review Committee, could you tell us how you would have fulfilled your role as chair had Bill C-22 been in force?
3:55 p.m.
Adjunct Professor, Osgoode Hall Law School, York University, As an Individual
I believe that the Security Intelligence Review Committee would have continued in its function. I don't think there's going to be an overlap or a duplication. Again, I use the term the “committee of parliamentarians” as being parliamentarians having responsibilities other than just full-time responsibilities for the security intelligence matters before them. It's a necessary system in a democracy, but it is not a substitute for the detailed expert review that is undertaken by some of the other mechanisms, such as SIRC. I think the 25 to 30 year history of SIRC has proven that with a variety of members and a very expanded staff, and the enhanced budgeting granted by the previous government, it has been able to undertake the necessary research, which would be complementary to the work of a committee of parliamentarians.
4 p.m.
Visiting Professor, Graduate School of Public and International Affairs, University of Ottawa, As an Individual
Certainly. I think it's the clear intention in the mandate provided to the committee of parliamentarians that CBSA, along with other security and intelligence departments and agencies, would fall under its purview. In fact, if the committee is tempted to follow my suggestion of actually listing as part of the mandate the core agencies that will be the primary preoccupation of the committee, CBSA would be there and named alongside CSIS, the Communications Security Establishment, the RCMP, and the Department of National Defence. I think that's the core set of security and intelligence agencies that will be the subject for study by the committee.
Certainly, CBSA will find itself under the scrutiny of the parliamentary body. It will be up to the government to decide, I suppose post-Bill C-22, what it's actually going to do—this comes back to your question to Mr. Atkey—about the existing mechanisms for independent review. Is it going to roll them all together to make the system more efficient rather than have them siloed and independent as they are currently?
If I may add to that, on the other question that you asked Mr. Atkey, I certainly agree with him that you are going to continue to need another layer of review, another and more detailed layer that can, in particular, dig into questions of propriety, that is, lawfulness and following the directions of ministers. The committee of parliamentarians, on the other hand, I think is going to take that higher level strategic look at the activities of the security intelligence community, with a particular focus on just how well they are performing their functions, and are they serving the national security as they are meant to do?
November 3rd, 2016 / 4 p.m.
Conservative
Tony Clement Conservative Parry Sound—Muskoka, ON
Thank you, gentlemen, for supplying your expertise and overview of the situation.
I want to start by turning to clause 16, “Refusal of information”, because I believe both of you mentioned that.
Professor Wark, I believe you were referring to this section because it does reference subsection 8(1) of the Security of Information Act. I don't want to paraphrase you inaccurately, but I believe you were mentioning that you found this to be broad. Certainly, when I was made aware of subsection 8(1), it had a “kitchen sink” feel to it, again, depending upon whether the section is reasonably interpreted or interpreted in a very restrained or constrained way.
Mr. Atkey, I believe you keyed in on this section, as well, in calling it or the potential application of it “open-ended and dangerous”. Again, we're into trying to predict future activity and whether there's going to be an issue there.
I want to make sure that I'm understanding properly what your critiques were, gentlemen. Could both of you expand on that?
4 p.m.
Visiting Professor, Graduate School of Public and International Affairs, University of Ottawa, As an Individual
Thank you, Mr. Clement. It's an excellent question.
I'll draw the attention of committee members to what section 8 of the Security of Information Act says under the heading of “Special Operational Information and Persons Permanently Bound to Secrecy”. I think Mr. Clement is absolutely right in describing this as a kind of kitchen sink catch-all. The dimension of it that particularly concerns me, if it were literally applied to the work of the committee in terms of information that the committee would not have access to, is under paragraph (f) of subsection 8(1). I'll read it. It's a short paragraph, but this is what it says, to give you the flavour of it. Under the Security of Information Act, special operational information would include:
the means that the Government of Canada used, uses or intends to use, or is capable of using, to protect or exploit any information or intelligence referred to in any of paragraphs (a) to (e), including, but not limited to, encryption and cryptographic systems, and any vulnerabilities or limitations of those means
It also refers to the analysis of information, collection of information, and handling reporting systems for all of this. It is everything under the sun.
You could rely perhaps on the discretion of the government in power not to abuse that exemption power, but on the other hand, there is no particular need to have this written into the legislation. I would encourage the committee to follow the U.K. practice, which is simpler in terms of exemptions. In a quite common sense form, it refers to exempting information from the committee in very limited circumstances, whereby the provision of information might be, in the intelligence security committee legislation, injurious or prejudicial to the practice of the intelligence and security agencies of the government. That can also be broadly interpreted, I suppose, but it seems to me a narrower exclusion and, in a way, easier to interpret by both the executive and legislative branches, than what you would have by reference to special operational information here.
4:05 p.m.
Adjunct Professor, Osgoode Hall Law School, York University, As an Individual
Based on experience, sometimes you can over-legislate, and you're looking for too many exceptions. In my experience in dealing with CSIS over five years and subsequently with the Arar commission and as a special advocate, CSIS wants to protect two things at all costs. I think this is true of other security agencies within the government as well. One is their human sources, which they call the holy grail, what we want to protect. The other is methods of operation. They don't like to disclose the particular methods of operation to anyone they don't have to do so.
We would have long meetings with CSIS and we'd ask where they got this information. They would reply, “From a source in Vancouver”. We'd ask who was the source. They would reply that they'd prefer not to tell us. They would acknowledge that we had the right to that source if it were fundamental to our investigation, but there would be discussion among top secret security cleared people back and forth as to what was appropriate. In many cases, CSIS would persuade us that we did not need to know the particular name or address of that source or the methods of operation, because some of them were quite sophisticated. Some of them were related to simpler surveillance under wiretap legislation. We did get to know that. Now most of that is in the public domain.
A healthy tension existed between the review body and the agency, and it worked. From time to time there might have been disputes. In our CSIS act, we had the power to get anything within the body of CSIS, except cabinet confidences. We honestly never felt that we were frustrated, except in one situation that I can explain to you. In 1989 we wanted to have an inquiry into Air India, because CSIS wasn't being totally forthcoming with us on what was going on with Air India. We had many meetings back and forth. CSIS had to remind us—and it was there in the legislation, as our lawyers told us—that our jurisdiction only related to CSIS and the trail related to security accountability, which led into the RCMP and other agencies like Transport Canada. It was a more complicated type of situation, which ultimately was not resolved until the appointment of John Major and the Major commission in the next century. That was the only time we came to a fundamental disagreement.
We were right in our hearts but wrong in law, because the CSIS act said we shouldn't go into that. Sometimes, as in Bill C-22, there is a tendency to over-legislate, because this is new and it's a fresh step. But to be bold, a committee of parliamentarians, if they're supposed to do their work, should all be top secret security cleared. Having gone through a top secret security clearance with fear and trepidation on three occasions, it's not that bad. That should be fundamental for a committee of parliamentarians, and they should have access to everything, except confidences of the Privy Council.
4:10 p.m.
NDP
Murray Rankin NDP Victoria, BC
I'd like to say thanks to both of you. It's terrific to have such eminent experts in front of us. I have only seven minutes, so I'm going to jump right in, starting with Mr. Atkey.
I just wrote down very quickly what I thought were some of the amendments to the bill that you thought were appropriate. Based on your experience in cabinet, and as the chair of SIRC, and with the Arar commission, do you think the following would strengthen this bill? I have the following five recommendations from what I think was in your testimony.
First, remove paragraph 8(b) that allows a minister to block investigations injurious to national security.
Second, narrow or remove the discretionary power of ministers to withhold information from the oversight committee.
Third, amend subsection 21(5) to require that any use of the redaction powers of the Prime Minister be transparent; in other words, so Canadians can see how much information was removed or revised and for what specific reasons.
4:10 p.m.
Adjunct Professor, Osgoode Hall Law School, York University, As an Individual
It's not Canadians, but the committee of parliamentarians.
4:10 p.m.
NDP
Murray Rankin NDP Victoria, BC
That's right.
Fourth—and this I'm not entirely sure about—have an elected chair rather than one appointed by the Prime Minister. I think you said that you didn't like notification and thought that at the very least ratification by Parliament made sense.
4:10 p.m.
Adjunct Professor, Osgoode Hall Law School, York University, As an Individual
Yes, I was perhaps being more symbolic than real in the current context of a majority government. I think a prime minister would propose a chair, but propose that to Parliament, and it would be in law and would inform the decision of Parliament. In a minority Parliament, it would be open such that, if Parliament agreed, a member of an opposition party could be the chair.
4:10 p.m.
NDP
Murray Rankin NDP Victoria, BC
The last point I think I took from your testimony as a proposed amendment was about having a subpoena power to compel testimony and necessary documents.
4:10 p.m.
Adjunct Professor, Osgoode Hall Law School, York University, As an Individual
That's correct.
4:10 p.m.
NDP
Murray Rankin NDP Victoria, BC
Thank you for that. I just wanted to make sure I had that on the record.
Before I turn to Mr. Wark, I have another question for you. Given your experience with SIRC, is it your understanding that the proposed committee would have a lower level of access to information than SIRC does? I think you said that. If so, how might this affect its ability to co-operate with SIRC and other review bodies?
I'll give you an example. At a practical level, would your staff have had to manually redact documents from CSIS or classified SIRC reports for ministers before they could be shared with this oversight committee?
4:10 p.m.
Adjunct Professor, Osgoode Hall Law School, York University, As an Individual
No, I think that's one of the difficulties. The proposed committee of parliamentarians would be under a different set of rules than would SIRC or the commissioner for CSEC, and that doesn't make sense.
4:10 p.m.
NDP
Murray Rankin NDP Victoria, BC
So there would be a sort of misalignment of powers, and one might not be able to share with the other because of the practical concerns of classification.
