Public Safety Committee on Nov. 15th, 2016

[The Chair, Liberal, Rob Oliphant]

Okay. Thank you very much.

We started late, and I thought that because the New Democratic Party didn't have a chance to ask questions when Mr. Major was here, I could give another couple of minutes to Mr. Dubé.

That's if you have questions, Mr. Dubé.

[Matthew Dubé, NDP, Beloeil—Chambly, QC]

Yes. Thank you, Chair. I just have one question, so I won't use up too much of that indulgence.

Justice Major, you spoke of the Prime Minister's ability to redact the report, that component of the bill. We have an amendment that, in what we see as the minimum standard, would make that report to at least be clear on where and by whom it was redacted. If I could just, with your indulgence, read the the key component of the amendment, that would be helpful. I'll paraphrase as much as I can.

If the committee has been directed by the Prime Minister to submit “a revised version”, under subclause 21(5), we say that “the report laid before each House of Parliament must be clearly identified as a revised version and must indicate the extent of, and reason for, the revision”. For us, despite the fact that we have issues with the definitions of what can be redacted and the subjectiveness of it, that is the minimum required to at least ensure that Canadians know the motivation behind “the use of the Sharpie”, if you'll allow me that turn of phrase. Perhaps I could quickly get your thoughts on that.

[John Major]

Well, I agree with what you're proposing. What more can I say? I think that's appropriate.

[Matthew Dubé, NDP, Beloeil—Chambly, QC]

That's more than sufficient for me. Thank you very much, Justice Major.

[The Chair, Liberal, Rob Oliphant]

That's pithy.

Thank you very much to both our witnesses. We're going to take a quick turnaround of three or four minutes to change panels.

We thank you, Justice and Dr. Carvin, for being with us.

[The Chair, Liberal, Rob Oliphant]

I'd like to begin our second panel for today. We will try to end close to 5:30 p.m., splitting between the two panels the time we lost.

We have with us the Civilian Review and Complaints Commission for the RCMP, represented by its chair, Ian McPhail. I believe Mr. Evans is with him. We also have with us the Office of the Communications Security Establishment Commissioner, and the commissioner is here, as well as Mr. Galbraith.

Welcome.

I think we'll begin with Mr. McPhail for 10 minutes, move to Monsieur Plouffe, and then have the questioning.

Take it away.

[Ian McPhail, Chairperson, Civilian Review and Complaints Commission for the Royal Canadian Mounted Police]

Thank you, Mr. Chair. My remarks will take a bit less than 10 minutes.

I would like to first of all thank you and the committee for inviting me here today as a representative of the commission. Mr. Evans is the senior director of operations of the commission.

I welcome the opportunity to share my views on the proposed legislation and the role of expert review bodies.

As you know, in 2014, amendments to the RCMP Act resulted in the creation of the Civilian Review and Complaints Commission. At that time, the commission’s mandate was expanded beyond public complaints to include systemic reviews of RCMP activities to ensure they are carried out in accordance with legislation, regulations, ministerial direction, or any policy, procedure, or guideline.

The commission now has the ability to review any RCMP activity without having a complaint from the public or linking it to member conduct.

We are currently undertaking two such systemic reviews: one into workplace harassment, at the request of the Minister of Public Safety, and the other, which I initiated, into the RCMP’s implementation of the relevant recommendations contained in the report of the commission of inquiry into the actions of Canadian officials in relation to Maher Arar. The RCMP’s national security activities came under intense scrutiny during the O’Connor commission of inquiry. As such, I felt it was important to undertake an independent review of the RCMP’s implementation of Justice O’Connor’s recommendations.

As a key component of Canada’s security and intelligence framework, enhancing the accountability and transparency of the RCMP’s national security activities is the ultimate goal of the CRCC review. The commission’s review is examining six key areas based on the relevant recommendations of Justice O’Connor, namely: centralization and coordination of RCMP national security activities; the RCMP’s use of border lookouts; the role of the RCMP when Canadians are detained abroad; RCMP information sharing with foreign entities; RCMP domestic information sharing; and, training of RCMP members in national security operations.

The review is ongoing at this time, and it requires the examination of sensitive and classified information. Given that some experts and observers have previously raised concerns regarding whether the commission would get access to privileged information, it is important to note that we have reviewed classified material made available by the RCMP.

Upon completion of the investigation, a report will be provided to the Minister of Public Safety and the Commissioner of the RCMP. A version of the report will also be made public.

This ongoing investigation highlights the key role of the CRCC in reviewing RCMP national security activities. I believe that the expert review provided by the CRCC and its counterparts, including SIRC and the Office of the CSE Commissioner, will be complementary to the work of a committee of parliamentarians.

This bill highlights the critical role of parliamentarians in the national security accountability framework, while acknowledging the contribution of expert review bodies. In that regard, I look forward to a collaborative working relationship with the committee.

Thank you for giving me this opportunity to share my thoughts.

[The Chair, Liberal, Rob Oliphant]

Thank you very much.

Now we move on to Mr. Plouffe.

[Jean-Pierre Plouffe, Commissioner, Office of the Communications Security Establishment Commissioner]

Chair and honourable members, I am pleased to appear before this committee on the subject of Bill C-22. I am accompanied by Mr. Bill Galbraith, the executive director of my office.

Before I make a few remarks about the bill this committee is examining, and since this is my first appearance before this committee, I will very briefly describe the role of my office.

You have my biographical note and a summary of my mandate, so I won’t go over them here, but I would like to say that I have found that my decades-long experience as a judge has stood me in very good stead in more than three years as CSE Commissioner.

Being a retired or supernumerary judge of a superior court is a requirement set out in the National Defence Act, the legislation that mandates both my office and the Communications Security Establishment.

The CSE Commissioner is independent and arm’s length from government. My office has its own budget granted by Parliament.

I have all the powers under Part II of the Inquiries Act which gives me full access to all CSE facilities, files, systems and personnel, including the power of subpoena, should that be necessary.

The commissioner's external, independent role, focused on CSE, assists the Minister of National Defence, who is responsible for CSE, in his accountability to Parliament, and ultimately to Canadians, for that agency.

Let me turn now to Bill C-22.

I have stated on numerous occasions that a greater engagement of parliamentarians in national security accountability is indeed welcome.

In particular, following the disclosures by Edward Snowden of stolen classified information from the U.S. National Security Agency and its partners, including CSE, the public trust in the intelligence agencies, and in the review or oversight mechanisms, was called into question. Those disclosures dramatically changed the public debate.

I believe that a security-cleared committee, along with the expert review bodies, such as my office and that of my colleagues at the Security Intelligence Review Committee, SIRC, which reviews the activities of the CSIS, along with the Civilian Review and Complaints Commission—the CRCC—for the RCMP, headed by Mr. McPhail, can provide a strong complementary and comprehensive framework for accountability of security and intelligence activities and can indeed enhance transparency.

I believe this committee will help restore and enhance public trust, but it will not be without challenges. Historically, the CSE commissioner was rarely invited to appear before parliamentary committees and the work of my office may not have received its full due. The committee of parliamentarians may help to focus attention on the important work of the expert review bodies. My office and I look forward to working with the committee and its secretariat.

For maximum effectiveness, however, the respective roles of the committee of parliamentarians and of the expert review bodies must be well defined, to avoid duplication of effort and wasting resources. In my view, this is of paramount importance.

Avoiding duplication was an obvious theme and I was pleased to see it stated in the bill, in clause 9 entitled “Cooperation”. The words are straightforward but we will have to work closely with the committee secretariat to ensure this happens in practice. The objectives, to my mind, are to ensure comprehensive overall review and encourage as much transparency as possible.

I have some thoughts on how we might begin a productive relationship with the committee and its secretariat. Perhaps we can explore this issue during our question period.

There are, however, some points that should be discussed. I have a number of observations about various parts of the bill. The three-part mandate of the committee, provided for in clause 8 of the bill, is very broad in relating to any activity that includes operations as well as administrative, legislative, and other matters. As written, this will be another reason why we must work closely with the committee from the outset to ensure the rules are defined in practice, and not just to avoid duplication, but to ensure complementarity.

I am not privy to the government’s intentions with respect to this broad approach. However, the combination of this three-part mandate could adversely impact the effectiveness of the secretariat’s work. The committee will have to establish its priorities. And again, this is where the committee and the review bodies can work closely together for effective overall accountability.

What is clear is that the government wants to have a review of the national security and intelligence activities of those agencies and departments not currently subject to review. It is critical for effective review to maintain the capacity for expert review that we have now and to develop it for those agencies and departments not currently subject to review. This could be done by establishing another review body or bodies, or dividing them among the existing review bodies. The committee of parliamentarians will, I expect, turn its attention to this issue.

As I read the bill in its current form, it is clear that the committee does not have the same freedom of access as my office or, for that matter, as SIRC. In paragraph 8(b) the committee can review “any activity” that relates to national security and intelligence “unless the appropriate Minister determines” otherwise. This provides a potential restriction on what the committee may or may not see.

This is where I believe the complementarity between the committee and the existing review bodies comes in, with reassurance that the latter have unfettered access to the agencies they review. The gap is the departments and agencies not yet subject to review.

In conclusion, I would suggest a couple of small changes to provide clarity, and I could provide these in writing subsequently, if you so wish, Mr. Chair.

Thank you for this opportunity to appear before you today. My executive director and I would be pleased to answer your questions.

[The Chair, Liberal, Rob Oliphant]

Merci.

I should always mention to the witnesses that if at the end of the meeting there's anything that you wished you had said and didn't, it's very appropriate for you to submit that in writing to the clerk, and it will be considered by the committee. That is no problem.

We will begin with Mr. Erskine-Smith for seven minutes.

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

Thanks very much.

I want to start with the collaborative working relationship that you mentioned, Mr. McPhail, and the emphasis on the complementary nature of the parliamentary committee and the expert review bodies.

Mr. Plouffe, you mentioned that you have more access to information than certainly this committee would have as it's currently written, not only under paragraph 8(b), but also in terms of limitations on access to information under clauses 14 and 16.

We've had other witness testimony that has emphasized that this could be a problem for the collaborative working relationship and could actually get in the way of that complementary approach. I wonder if you have something to say about that.

[Ian McPhail]

The access to information provisions aren't identical, as you point out, Mr. Erskine-Smith. For example, the RCMP Act gives the CRCC somewhat broader access to information on ongoing investigations, in that the RCMP commissioner is required to outline in writing why that would be inappropriate.

The reality is, though, that as a review body the last thing we would want to do would be to interfere with an ongoing criminal investigation, so definitely we would back away from that. Likewise, I would anticipate that the committee of parliamentarians, which is also a review body, would share that policy.

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

I appreciate this if we want to establish a working relationship. We've heard other witness testimony that it's very important to establish a good working relationship, not just with the expert review bodies but with the agencies themselves, but of course, you would have that interaction directly with the commissioner and the commissioner would provide reasons. In this case, that conversation would be closed down from the outset pursuant to clause 14 in particular.

[Ian McPhail]

That is possible, and I would say that the committee will have to feel its way. It may well be that amendments to the legislation could be made now. Over the next few years, you'll see how it works in practice—

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

But in your view, in practice, that working relationship—where you interact directly with the RCMP commissioner and the commissioner provides reasons for refusals and there's a bit of back and forth—works fairly well.

[Ian McPhail]

As a matter of fact, the example I gave dealt with matters relating to ongoing criminal investigations. I mentioned in my opening remarks our review of the implementation of Justice O'Connor's recommendations. In that review, we have had access to privileged and classified information. The RCMP has been fully co-operative. We anticipate that this co-operation will continue. If it doesn't, the act does provide a mechanism to determine what processes should take place.

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

It sounds like it works fairly well, that back and forth, and not having completely restricted access to information—

[Ian McPhail]

If I can make one further comment, although the act prohibits the position of chairperson—my position—being held by a former member of the RCMP, fortunately we do have some former senior members of the RCMP on our staff, such as Mr. Evans for example, and because of that, our people also know where to go, what information is going to be kept, and where it's going to be kept. So it's not an uninformed request for material and, in that respect, getting back to the first part of your question, I think the commission could be of assistance to the committee of parliamentarians.

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

Mr. Plouffe, perhaps you could speak to that access-to-information disparity between the CSE commissioner and the parliamentarians committee.

[Jean-Pierre Plouffe]

The way I see it is that as a CSC commissioner I have my own mandate to focus on, and the committee will have its own mandate to focus on. This is why I stressed in my remarks that complementarity between the two committees is very important, so that this problem of access in theory is not a problem in practice.

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

But it may be a problem in practice, as pointed out by Professors Roach and Forcese, for example. They used a number of different examples. One example would be being precluded from ongoing law enforcement operations. They say that there's still an active ongoing law enforcement operation with respect to the 1985 Air India bombing. They also speak to the Afghan detainee affair.

Where the parliamentarians committee would be precluded from accessing information related to these issues, and where they may want to of their own volition engage in an inquiry that the public is certainly concerned about, isn't that something we should worry about? Couldn't the parliamentarians committee work together with the CSE commissioner on the same footing, with the same access to information?

[Jean-Pierre Plouffe]

I think you are referring to the exceptions contained in clause 14.

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

That's right.

[Jean-Pierre Plouffe]

We might agree or disagree with those exceptions, but in my view they are not unreasonable, taking into account the bill as a whole, the purpose and scheme of the bill and the entire context. I also believe that another witness who appeared before you previously, Mr. Atkey, commented on this when he appeared before you, saying that he accepted them for the most part.

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

Yes, although he said we should eliminate clause 16 and the limitation in paragraph 8(b).