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.
Adjunct Professor, Osgoode Hall Law School, York University, As an Individual
That's correct.
NDP
Murray Rankin NDP Victoria, BC
All right.
Mr. Wark, I understand that you told this committee during a previous appearance that you had assisted a member of Parliament, Joyce Murray, in the design of an earlier private member's bill, Bill C-622, and that, compared to this bill, that bill granted the committee broader access to information and the power to compel testimony.
So in your view, do such powers enhance a committee's ability to undertake operational oversight?
Visiting Professor, Graduate School of Public and International Affairs, University of Ottawa, As an Individual
If my memory serves me correctly, we also conducted a round table on Ms. Murray's bill, which you took part in.
Putting it in context, we were aware, at the time, those of us who assisted Ms. Murray in drawing up the private member's bill, that the private member's bill had no chance of passage, so we were trying to design an ideal scheme. Part of my advice to the committee today is that you may not need an ideal scheme in the current circumstances, because you're going to get, finally, a committee of parliamentarians. but there is some fine tuning that can be done.
Don't get hung up on membership. The key issue here for the committee, whatever you emerge with in terms of rules on the election of a chair and how members are appointed, is that as long as you're satisfied that this works for you as Parliament, in terms of the House and Senate, then I think you're probably good, as long as you get good people.
I would agree, in many respects, with my colleague, Ron, that there are ways the legislation could be fine-tuned in terms of both restriction to material and the refusal to allow the committee to publish. Without having to redesign the wheel on all that, my suggestion to the committee is to have a comparative look at the British legislation, which is a product of experience that we haven't had. The U.K. intelligence and security committee legislation, particularly the changes made in 2013, provide a good model for us. We don't have to follow it slavishly, but it is a simpler, clearer model of both restrictions on reporting and restrictions on access, which I think we could usefully borrow from.
If I could take a minute and beg to differ slightly with Ron Atkey on clause 14 of Bill C-22, I'm not sure that we should just let clause 14 entirely fly. In particular, it would remove from the purview of the committee, among some technical areas of information, such as FINTRAC and the Investment Canada Act, and this is under paragraph 14(b), “information respecting ongoing defence intelligence activities”, etc. I think you have to be careful about letting that stand as written, because the ability to review defence intelligence activities in a retrospective sense is going to be very important to the committee, because, in fact, the Department of National Defence's intelligence agency is the largest single agency in the Canadian government.
I'm going on and stealing Mr. Rankin's time, so I'll just end on that.
NDP
Murray Rankin NDP Victoria, BC
Thank you.
I'm going to continue a little bit on clause 14 with Mr. Atkey.
You talked about this earlier. Clause 14 has a number of those exceptions Professor Wark talked about, exceptions to the right to have access. They're pretty well understood by the security community. You talked about the identify of sources, as a great example. In most cases, the identity of sources would not be necessary to do the work, but in some cases, it may be crucial in assessing whether an agency was operating effectively and appropriately. For instance, it might matter a great deal whether a target was a journalist.
In your view, do you think we should carve out permanent exceptions, as Bill C-22 does, to the committee's access, or should we broaden access and let the committee work with the agencies on a case-by-case basis to determine whether operational details are required? I think that's what you said the experience of SIRC was.
Adjunct Professor, Osgoode Hall Law School, York University, As an Individual
I think those clause 14 areas are within the list that has always been operative in the security community in which I've operated for 30 years. I don't want to say that it's beyond debate, but it's generally accepted that this is the list. It came originally from CSIS. It was attempting to put into law, from various statutes, including the Privacy Act, the Access to Information Act, the Criminal Code, and other things, a list. Clause 14, in my opinion, captures those. I wouldn't waste too much parliamentary energy trying to fiddle with them.
Liberal
Pam Damoff Liberal Oakville North—Burlington, ON
First, I want to thank you both for appearing before the committee. Your experience and expertise, for all of us, is extremely helpful, so thank you.
Mr. Wark, I want to start with you. When you appeared before the committee on the national security framework, you talked about how we have a silo system of oversight. Do you see this security intelligence committee as being able to help build bridges between those silos?
Visiting Professor, Graduate School of Public and International Affairs, University of Ottawa, As an Individual
Historically, we do have a siloed system. We've created independent external review bodies that are focused on a particular agency of the government, SIRC for CSIS, the CSE commissioner for CSE, and what is now the Civilian Review and Complaints Commission for aspects of the RCMP. Many other elements of the security intelligence community, as Mr. Atkey has pointed out, have not been subject to independent review. When we talk about a siloed system for review, or “oversight” as some people call it, that's really what we're referring to.
What Bill C-22 does is partly fix that problem by giving this proposed new committee of parliamentarians the opportunity, with the mandate written into Bill C-22, of taking a very broad look at all of the agencies of the security intelligence community. My only caveat about that is simply the cautionary reminder that while it can do that, it won't be doing that most of the time. There are going to be core agencies they need to look at, and maybe Parliament and the public of Canada need to understand that as it's written out legibly in the legislation, these are the key agencies that matter, but it will have that strategic level look.
The piece of work that remains—possibly for this committee, in the context of looking at the national security framework and the green paper, and possibly for the government down the road—is that it's one thing to create a committee of parliamentarians, but what are you going to do about the legacy review accountability mechanisms, including these siloed agencies and the relationships between the proposed committee of parliamentarians and other standing committees in terms of what they will look at? There is a lot of work that needs to be done. The Minister of Public Safety has referred to this a bit by suggesting he's open to the idea of creating something like a super-SIRC or bringing the siloed agencies together as a different layer of review.
I think the government has focused on Bill C-22 as it's first act in this field, but I think more work will have to be done.
Liberal
Pam Damoff Liberal Oakville North—Burlington, ON
My next question is for both of you, because you've already answered in terms of the restrictions that are in the bill, which you feel are too strong. Mr. Wark, in particular, has mentioned that the bill isn't perfect.
Do you think that's something we could leave in the bill now and then review it when it's up for review in five years, or is it important to change it now?
Visiting Professor, Graduate School of Public and International Affairs, University of Ottawa, As an Individual
Do you want to go first?
Adjunct Professor, Osgoode Hall Law School, York University, As an Individual
I have a view on this, and I tipped my hand on this a couple of weeks ago when I appeared before you in Toronto. If you leave it for three or four years, you're into 2018 and, if I recall, there's probably going to be a federal election in 2019 and reviewing national security legislation in the year just prior to an election is not a good idea, in my experience. I think in the last period, 2015—
Adjunct Professor, Osgoode Hall Law School, York University, As an Individual
It would be. Is it three years from when—
Adjunct Professor, Osgoode Hall Law School, York University, As an Individual
It's five years, that's correct, but some have suggested that some review be held in three years. Some have suggested in five years. My big concern is that Bill C-22 is all you're going to do and that everything else is too delicate and too difficult to fix. If you do Bill C-22, the government has fulfilled its mandate on its promises during the election—
Adjunct Professor, Osgoode Hall Law School, York University, As an Individual
Nothing will happen. In my view, that would be a mistake.
November 3rd, 2016 / 4:20 p.m.
Visiting Professor, Graduate School of Public and International Affairs, University of Ottawa, As an Individual
I'm an optimistic academic and I'm convinced that the government will, indeed, move to fulfill its election promises to amend the problematic aspects of Bill C-51 that are now embedded in different forms of legislation.
With regard to your best path forward, I've said that this isn't perfect legislation. I've suggested, as Mr. Atkey has done, that elements of it can change. What I would really see, and I agree fully with Ron on this, is this legislation passed in some form in this parliamentary session to allow us to get on with the work. It will be reviewed in five years.
I would be more encouraged to see a genuine all-party consensus on revised legislation. That would be a big achievement. I'd care less about the exact details of how you're going to revise it. I think there are certain elements of it that you should focus on. I wouldn't focus on the membership questions. I would do some fine-tuning of the powers of the committee in terms of access to information and the exclusionary elements that it can't get into. Elements of that can be fine-tuned, but I don't think you need to go through the whole thing with a fine-toothed comb. Large elements would stand.
If, at the end of the day, you're happiest in an all-party sense to just pass the legislation as it is, I would still, in a way, cheer to the heavens. I've been waiting for a very long time to see this kind of parliamentary activism on national security, and the biggest benefit it will have in the long run will be to better educate Canadians about the realities and challenges of national security and intelligence work in Canada, where I think we have a profound democratic deficit.
Liberal
Pam Damoff Liberal Oakville North—Burlington, ON
That was actually a question I was going to ask you, whether you thought it would do that. You have said yes.
Mr. Atkey, you talked about the Prime Minister's ability to redact information and you compared it with the Arar case, in which half of it ended up being made public.
Can you tell us what changes you think we should make to this legislation, in particular to that section?
Adjunct Professor, Osgoode Hall Law School, York University, As an Individual
You can do one of two things: you can remove the section, which may not happen, or you can perhaps provide that, if the Prime Minister is going to redact it, he has to provide reasons to the committee—not to the public, but to the committee of parliamentarians—explaining why the redaction is taking place, just as a minister would have to provide reasons if he's going to deny information or deny—
Liberal
Pam Damoff Liberal Oakville North—Burlington, ON
I only have a few seconds left.
If he were to do that, you'd have to have a dispute mechanism; they'd have to be going together, wouldn't they? If the Prime Minister came and you weren't happy with the answer, how would you get around that?
Adjunct Professor, Osgoode Hall Law School, York University, As an Individual
Well, the dispute mechanism I recommended is—
Adjunct Professor, Osgoode Hall Law School, York University, As an Individual
—the Federal Court, the designated nine judges of the Federal Court.
