Public Safety Committee on Nov. 15th, 2016

[Larry Miller, Conservative, Bruce—Grey—Owen Sound, ON]

To carry that a little further, Mr. Major, I'm sure that you're probably aware of some framework models in place in other countries such as Britain and what have you. Does any other country have anything like that in terms of the concerns you have here as far as solicitor-client privilege goes?

[John Major]

I would look to the U.K., and I would be surprised if.... Mind you, they do not have charter protection. We have. But I would think, based on the common law in the U.K. and tradition and what they call their “common law charter”, that they would not permit that disclosure.

[Larry Miller, Conservative, Bruce—Grey—Owen Sound, ON]

You're saying that of any country out there, none of them have that clause, that you're aware of.

[John Major]

Not that I'm aware of, but remember, I'm not particularly familiar with this. That stood out as soon as I read the act: that it would be very difficult to get that past constitutional scrutiny.

[Larry Miller, Conservative, Bruce—Grey—Owen Sound, ON]

Okay.

[John Major]

I'm sure your legal advisers can be more specific, but I'd surprised if they didn't see that as a problem.

[Larry Miller, Conservative, Bruce—Grey—Owen Sound, ON]

Thank you.

Ms. Carvin, on that note, are you aware of any country that has something in place that would give rise to the same concerns that Mr. Major has?

[Prof. Stephanie Carvin]

I regret that I am unfamiliar with.... That's not to say that there isn't, but I wouldn't want to speak to something that I'm not familiar with. My apologies.

[Larry Miller, Conservative, Bruce—Grey—Owen Sound, ON]

Certainly, that's fair enough.

Early in your comments, Ms. Carvin, you mentioned working with foreign countries. I got the impression, and maybe wrongly, that you were hesitant about the sharing of information and what have you. Do I have the right assumption?

The reason I'm asking is that in this day and age, whether it's terrorism or whatever, we're living in a different world than we were not that many years ago, so it would seem to me that allies have to work together. Could you enlarge a bit on what you were saying there?

[Prof. Stephanie Carvin]

I wasn't speaking to the issue of sharing information with other countries specifically, but as you're asking that question, there are issues such as the foreign traveller issue. This has become a real issue. We have to work with other democracies and other countries in Europe as we look at the flow of travellers, for example, who are joining the Islamic State. I strongly suspect that those numbers are down, given the losses that the Islamic State has experienced, but that said, they often travel through Europe and countries like this. We need to be able to partner and work better with these countries.

The challenge is that no country likes giving information on their citizens. No country really likes exchanging names. What we've seen increasingly, particularly given Canada's experience in the 2000s with regard to some of the inquiries, is that more and more caveats are being attached to information and trying to have better systems in place and more regular communication going forward.

In some cases, it has proven to be very helpful. For example, there was the case of young girls from Toronto who were trying to go to the Islamic State, and they were stopped in Turkey. You must have some kind of coordinated information sharing.

This is a really great issue that I think parliamentarians on this committee could look at in terms of trying to help the security services find guidance and balance. I could add just one more thing to that, if I may. I think there's a perception in Canada that security services don't want more regulation or oversight. I can't stress to you how much that it's simply not the case. They want guidelines. They want to know where the boundaries are, so they don't cross them. I think this parliamentary committee could work with the security services on these challenging issues, such as sharing information.

I agree with the premise of your question. That's going to benefit everyone going forward.

[The Chair, Liberal, Rob Oliphant]

Thank you, Dr. Carvin.

Mr. Erskine-Smith, for five minutes.

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

Thanks very much.

Justice Major and Ms. Carvin, you have the bill before you. If we could turn to clause 14, I want to start with paragraph 14(e). That's

information relating directly to an ongoing investigation carried out by a law enforcement agency that may lead to a prosecution.

In the operation of clause 14, if it falls within these categories, it's excluded de facto. My worry here is that when we had the minister before us, we spoke about the bully pulpit. Where information is refused, the committee can actually refer to that information in the report and use that as a bully pulpit, but if it falls within clause 14, it's going to be very difficult to use the bully pulpit, because the minister can say, “Well, I'm obliged by the legislation.”

When we had Professors Roach and Forcese in front of us, Justice Major, and they in fact said that an ongoing investigation carried out by a law enforcement agency would in fact include the Air India bombing, because there's still an active investigation. I would put it to you that when we talk about access to information, should we have the provision of paragraph 14(e) in the act as an exclusion without any refusal related to “injurious to national security”? There's not that additional factor that exists in clause 16, and without any reasons provided by the minister.

[The Chair, Liberal, Rob Oliphant]

I suggest that Mr. Major start.

[John Major]

I think you could penetrate a lot of sources of information with warrants, and I think for the right of access under subclause 13(2), if you were to obtain a warrant from a Federal Court judge disclosing the reason why, you'd need to have, in my opinion, substantial grounds, but if the safety of the country were in some way endangered, you'd get a search warrant that would be similar to a warrant to search a residence. I think that with a warrant you could get this information.

For instance, solicitor-client information does not include the commission of a crime. If that communication discloses a crime, there's no protection. Similarly, I think a warrant would be sufficient. You'd need to have substantial grounds to convince a judge to give you the warrant, but once you had the warrant, you'd be entitled to that information.

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

Ms. Carvin, I'll give you an opportunity to respond as well, and again, could you speak more broadly to access to information? I would note that in the U.K., access to information can be refused for national security reasons. The minister is required in all cases to provide a refusal, unlike in this act, and there is a ministerial directive that it's expected to be required to be exercised rarely.

I would also note that in the U.S., for the Senate select committee on intelligence and the U.S. House permanent select committee on intelligence, the executive cannot withhold any information from them except temporarily and under extenuating circumstances, such as in relation to highly covert and time-sensitive operations. If you could, please speak to access to information with specific reference to clause 14.

[Prof. Stephanie Carvin]

Yes, I have that underlined a number of times.

I think that for me the issue is “ongoing investigation”. As I've already said, some of these investigations go on for years. There's the Air India inquiry, for example, but just your regular run-of-the-mill domestic terrorism investigation can take two to three years before you feel that you have the appropriate level of evidence against someone who you can bring in and actually prosecute.

Part of it might be how “ongoing investigation” is defined or understood in terms of this particular clause in paragraph 14(e). I like the suggestion of perhaps something along the lines of paragraphs 16(1)(a) and 16(1)(b). If you added something here in terms of “injurious to national security”, as in paragraph 16(1)(b), that might be appropriate.

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

I want to pick up on that. Paragraph 14(b) is duplicated. You'll see that in clause 16 there's a reference to “information constitutes special operational information”. I won't take you to the Security of Information Act, but trust me, paragraph 14(b) is duplicated in section 8 of the Security of Information Act, and paragraph 14(d) is also duplicated, largely.

If we were to remove paragraphs 14(b) and 14(d), and subject paragraph 14(e) to a refusal and to the additional criterion of !injurious to national security”, would that make good sense?

[Prof. Stephanie Carvin]

Offhand, I would say yes.

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

I think I'm out of time.

[The Chair, Liberal, Rob Oliphant]

You're out of time.

As chair, I just want to clarify something with Mr. Major. With respect to the exceptions in clause 14, you're talking about warrants that could be issued under clause 13. Just to clarify, are you saying, though, that the information that is excluded in clause 14 would be trumped by clause 13 powers?

[John Major]

I'm not sure that I understand that question. Clause 14—

[The Chair, Liberal, Rob Oliphant]

There are exceptions in clause 14.

[John Major]

Do you have any particular subclause in mind?

[The Chair, Liberal, Rob Oliphant]

I'd say all of them. For example, there is paragraph 14 (e), which mentions

information relating directly to an ongoing investigation carried out by a law enforcement agency that may lead to a prosecution

That is an exception for material that would be available to the committee of parliamentarians. I might have misheard when I was trying to understand. You seemed to say that this could be gathered if under clause 13 a warrant is gained

[John Major]

What I think I wanted to say was that the information sought under subclause 13(2) as it's presently drafted would not permit solicitor-client exchange, and that the solicitor-client privilege under our charter would preclude that disclosure without the benefit of a warrant.