Public Safety Committee on Nov. 17th, 2016

[The Chair (Mr. Robert Oliphant (Don Valley West, Lib.)), Liberal, Rob Oliphant]

I'm going to call this meeting to order.

This is our 43rd meeting of the Standing Committee on Public Safety and National Security. Pursuant to the order of reference of October 4, we are considering Bill C-22, an act to establish the national security and intelligence committee of parliamentarians and to make consequential amendments to certain acts. This is one of our ongoing meetings as we prepare for amendments and then eventual consideration of the act.

We're very pleased to have Professor Leman-Langlois joining us by video conference from Université Laval.

Also, we have the Privacy Commissioner of Canada, Daniel Therrien, and Ms. Fournier-Dupelle, also from the Office of the Privacy Commissioner.

Our usual practice is to start with the witness who is coming to us by video conference just in case things fall apart, which they do from time to time. It will give us more time to get you back online.

For 10 minutes we'll hear from Professor Leman-Langlois. After that we'll hear from the Privacy Commissioner.

Take it away.

[Stéphane Leman-Langlois, Full Professor, École de service social, Université Laval, As an Individual]

Good afternoon.

My comments will be divided into three broad categories: first, I will make some positive remarks, then I will discuss some more negative elements, and finally, I will raise the very negative aspects.

I would like to specify that even if my presentation focuses on the negative aspects, the bill is very interesting overall and should be supported, with a few small amendments, however.

I would first like to emphasize the importance of Parliament overseeing intelligence and national security activities in their entirety. That is very important. Canada is a particular case in the western world, and I think it is high time we invested in the oversight of these activities. In the final analysis, we do this on behalf of the public, and parliamentarians should be involved in the oversight of national security activities. That is very important.

Another aspect of this bill that makes me very enthusiastic is the idea that the entity discussed today will focus on all national security activities. The committee will not be targeting, one, two or three organizations that are more readily associated with national security, but also several others that engage in national security activities, although that is not their main activity. These two aspects are very important, and in my opinion mean that this bill must absolutely go forward.

I will now discuss what I would describe as problems that concern the way in which the bill is structured.

First, I believe the mandate is much too broad. There is an intent to review all national security organizations, at every level and in every way, which is a plus, but if people try to submit all of that to the committee, the work will be very incomplete, in my opinion, and the committee will not be able to keep its promises.

Clause 8 refers to “reviewing the legislative, regulatory, policy, administrative and financial framework”, which is very relevant, in my opinion. That is the type of work parliamentarians have to do. They must ask themselves if the spirit of these laws is being respected when they are applied in these organizations, and whether the will of citizens is being reflected in the law and in practice. That is exactly the type of work parliamentarians must do, and it is incumbent upon them, in fact.

This is also work that is not covered by the current oversight mechanisms, such as those of SIRC and the CSE Commissioner. They are much closer to what happens on a daily basis and generally limit themselves to determining if, yes or no, the organization that is being observed followed the law, in other words, whether it complied with the general parameters set by law that apply in this case.

Parliamentarians must also ask themselves if the law in its current form is adequate or if it contains major gaps that mean that the organizations can commit certain abuses that run counter to the spirit of the law because it is drafted rather broadly.

In addition to ensuring that the activities of the CSE, SCIS or other organizations comply with the law, we have to ask whether the law governing these activities is the one we want as Canadians. I think that is the work of parliamentarians.

That said, subclauses 8(b) and 8(c) involve daily activities and operations. There are two problems. First, the subject is really complex and is far beyond the scope of parliamentarians. I don't want to pass any judgments on the parliamentarians who will sit on this committee, but you need some very advanced skills, if only to understand the alphabet soup they use, starting with the acronyms, such as CSE. I thus think that we are headed for disaster, or that this committee will serve absolutely no purpose.

In fact, this nine-person committee will have to examine so many activities and organizations that even with staff at their disposal, this will not be enough. We don't know what the budget of the committee will be. Even with an ideal budget, the activities that must be assessed and overseen are far beyond the capacities of the committee that is being created.

Furthermore, this is a duplication of what is supposed to be the work of the oversight organizations. These bodies, such as SIRC or the CSE, are supposed to review daily activities, down to the fine details of programs, to see what was done and whether any abuses were committed against anyone. I don’t think the parliamentary committee should deal with that. It should leave that to the oversight organizations and focus far more on other issues. For instance, it should determine whether the programs as a whole truly reflect the wishes of Canadian citizens, whether the laws are adequate, and whether the budgets are sufficient. In other words, to comply with the bill's mandate, the role of the committee should correspond to what is described in subclause 8(a), rather than in subclauses 8(b) and 8(c), which describe a much broader mandate.

In addition, the creation of this parliamentary committee adds little to what the oversight organizations are already doing. The parliamentary committee will add a grain of sand to the sandy beach of oversight.

If the problem is due to the inadequacy of the oversight of operational activities by oversight organizations, the solution is not to add a layer of political monitoring, but to improve the structure of those organizations and increase their budgets. The budgets of SIRC and the CSE have been stagnant for years and years. They represent a laughable fraction of the budgets allocated to national security activities. I do not think the solution to the lack of effectiveness or power of these organizations is to create an additional layer that will have a great deal of difficulty navigating all of this.

I see another problem regarding access to information. I think this has already been said before elsewhere. There are far too many restrictions on access to information. There is a whole slew of reasons that can be invoked to avoid parliamentary oversight. In light of the Security of Information Act, I think the committee is being granted investigative powers that will be easy to counter. I am not suggesting that the organizations being monitored would not act in good faith or would attempt to avoid this monitoring, but I think the law should cover all possibilities. We must not assume that the people who work in these organizations are angels and that they will be thrilled to be monitored. That may be the case, but we have to prepare for the worst case scenario, the one where people may actively try to avoid oversight. The act must be equipped and armed to deal with that.

There is also the restriction for cases where national security is at stake. I think there is a semantic issue here. The committee is supposed to examine activities relating to national security, but there is a restriction: if national security is at stake, it can't access the documents. So there is a real problem there, since there is no definition, it's just being thrown out there and is very vague. I think a situation could arise where all of the activities to be subject to the committee's oversight could fall under the national security restriction, and no documents would be made available to the committee. I think this is a good way of shooting yourselves in the foot.

I want to conclude by mentioning two things that are not issues contained in the bill as such, but constitute potential problems.

First, I am very concerned that after the government has adopted Bill C-22, it will put an end to the project to improve the oversight of national security agencies, that is to say that there will be no more oversight and the file will be closed, since there will now be the parliamentary committee. However, I am afraid that a lot of things may escape that committee.

I am also concerned that the impression may be created that the new, very broad powers that have been granted by the Anti-Terrorism Act will be adequately offset by this committee of parliamentarians which, as I said earlier, will not be able, operationally, to meet the objectives that will be set for it.

Thank you very much.

[The Chair, Liberal, Rob Oliphant]

Thank you very much.

We will continue with the Privacy Commissioner of Canada.

[Daniel Therrien, Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada]

Thank you, Mr. Chair, and members of the committee, for inviting me here to discuss this important piece of legislation.

I'm joined today by Leslie Fournier-Dupelle, a policy and research analyst in my office.

Our interest in commenting stems from the intersections between the work of this proposed committee and the work of my office. Let me say up front that the Office of the Privacy Commissioner of Canada is supportive of parliamentary oversight for security and intelligence activities, which has been proposed many times in the past. While we applaud this as a long-overdue development, some amendments could be considered to ensure this new committee will be as effective as possible in this important area.

We understand that the committee would be mandated to review three main things: first, the legislative, regulatory, policy, and administrative and financial framework for national security and intelligence; second, any activity carried out by a department that relates to national security, but subject to a ministerial override; and third, any matter relating to national security and intelligence that a minister refers to the committee.

By and large, we believe the creation of this committee would contribute positively to the necessary discourse around the work of security and intelligence agencies which, due to their secrecy, can be sometimes ill-understood. Among the positive aspects of Bill C-22, this committee would ensure that Canada keeps pace with other democratic nations, most of which already have some form of parliamentary oversight.

There are very real advantages to parliamentary oversight, principally that it enjoys democratic legitimacy since membership is comprised of elected officials. It has the additional advantage of situating security and intelligence activities within the context of the whole-of-government actions or broader parliamentary priorities. As such, a committee of this kind is well placed to directly influence policies in that it can recommend passing or amending legislation based on its findings. Finally, it can oversee broader financial frameworks, such as value for money and resourcing issues writ large, which specialized oversight bodies cannot typically undertake.

That said, there remains a definite and ongoing role for expert oversight bodies, which, given internal knowledge developed over a period of time, are well positioned to undertake more detailed analyses of the operations of national security agencies. Furthermore, expert bodies with a complaints investigation function, such as my office, are well positioned to spot systemic concerns that can inform the conduct of audits and compliance reviews or otherwise provide a window into the workings of the agency for which they are responsible.

In order to effect meaningful review, these bodies must have the capacity for proactive review and to educate both citizens and stakeholders, be non-partisan, and acquire and maintain in-house expertise.

We note that the bill allows explicit cooperation between the committee and certain named security and intelligence review and oversight bodies, which partially addresses gaps identified in the O'Connor Commission. However, the bill stops short of authorizing the sharing of information between oversight bodies, which should be remedied in order to support effective review.

We have on several occasions called for integrated oversight between ourselves and our oversight colleagues, including the Security Intelligence Review Committee, which oversees CSIS, the Office of the Communications Security Establishment Commissioner, which oversees the Communications Security Establishment, and the Civilian Review and Complaints Commission which oversees the RCMP.

Given the fact that information--including personal information--is the lifeblood of national security agencies, my office has a relevant role to play in ensuring that a proper balance is struck between security and civil liberties.

As you know, we have deep and extensive expertise in the area of privacy and personal information, from which other review bodies could benefit. We continue to advocate strongly for an appropriate balance between privacy rights and public safety. Consequently, I would recommend that my office be added to the list of oversight bodies to which information could be disclosed by the committee.

I would add a final point on transparency.

We note that the committee's meetings are to be held in camera “if any information that a department is taking measures to protect is likely to be disclosed during the course of the meeting or if the chair deems its necessary”. In order for the committee's work to contribute to the public discourse on security and intelligence, in camera meetings should be the exception rather than the rule. It may be helpful to introduce a clearer threshold before a meeting is to be closed.

A helpful threshold, which appears in the CSIS Act, the Canada Evidence Act, the Immigration and Refugee Protection Act and elsewhere, is if information “injurious to national security” is likely to be disclosed during the course of a meeting, then it would proceed in camera. This expression should be included in clause 18 of the bill, which discusses in camera meetings. I know that the expression “injurious to national security” has been discussed in this committee in order to determine if this limit should be imposed either on the mandate of the parliamentary committee, on the type of information the committee should have access to in the course of its work, or on the information that should appear in its reports.

I am aware of these discussions. I would be happy to answer your questions on that or any other topic involving the bill.

Thank you.

[The Chair, Liberal, Rob Oliphant]

Thank you very much.

We will begin the first round with Ms. Damoff.

[Pam Damoff, Liberal, Oakville North—Burlington, ON]

Thank you to all our witnesses who are here today.

Mr. Leman-Langlois, you brought up insufficient budgets for the oversight agencies, which I thought was interesting. I know the mandate refers to “financial framework for national security and intelligence”.

Do you think that's sufficient wording to cover that type of review of these oversight agencies' budgets? I hadn't read it that way, so I thought it was interesting when you brought that up.

[Stéphane Leman-Langlois]

I wish it did, but if it says, “financial framework for national security and intelligence”, to me, that applies.... I'm not a lawyer so I'm not really that good at interpreting the law, but it seems to me that it really only applies to the financial framework of the agencies that are under review. It doesn't apply to the review bodies that look at CSIS or CSE. It should probably create another review body that would look into what the RCMP does. The complaints committee of the RCMP doesn't do national security. All kinds of other agencies don't have this kind of.... The budget is at zero. It doesn't even exist. It should be created in the first place and then—

[Pam Damoff, Liberal, Oakville North—Burlington, ON]

Are you saying that we should add something to Bill C-22 to define that?

[Stéphane Leman-Langlois]

Probably. I never thought of that. It's a really good suggestion.

I think the financial framework and that part of the mandate should probably be reworded so it looks at the framework in the budgets that apply also to the oversight agencies.

[Pam Damoff, Liberal, Oakville North—Burlington, ON]

Okay, thank you for that.

Mr. Therrien, you had mentioned previously your concerns that the nine MPs and senators appointed to the committee, even though they're sworn to secrecy, weren't necessarily subject matter experts.

Do you think the secretariat will be able to properly brief the members of the committee so they are able to properly review what comes to the committee?

[Daniel Therrien]

When I said something along the lines of what you suggest, it was not to say that the members of the committee or their staff would have insufficient expertise to review the issues that are the subject matter of the mandate of the committee. If I said something like that, it would be akin to what Mr. Leman-Langlois was saying, which is that in order to have good review overall, you need a number of types of review, one of which is parliamentary review with its advantages, particularly the democratic legitimacy of that process. But it is not sufficient.

You also need expert review that can look into the operations of agencies more deeply, I would suggest, than a committee of parliamentarians. You also need judicial oversight. You need all kinds of oversight in order to have a fully effective system.

There is a role for parliamentarians, but I think the gist of what I said before is that the surveillance, the review of national security agencies, cannot be limited to parliamentary review, and I would suggest that as a committee looking at this proposed legislation you should not think that a review by parliamentarians is sufficient. It is absolutely a good idea, but it is not sufficient. There needs to be judicial, expert review, and other reviews.

[Pam Damoff, Liberal, Oakville North—Burlington, ON]

The translation was lost a little bit. You had said that your agency should be added to the bodies that did something, and I didn't catch that. Sorry.

[Daniel Therrien]

The bill lists three review bodies with which the proposed parliamentary committee would be able to share information. I'm suggesting that my office should be added to that list of review bodies, because we do have a role in these matters and I think it would be a good idea that all relevant players be able to share information in order to have efficient review, but complete review as well.

[Pam Damoff, Liberal, Oakville North—Burlington, ON]

Okay, thank you.

Do you believe this committee will have sufficient ability to report any concerns they have to the public as it's set out now? If not, how would you amend the bill?

[Daniel Therrien]

I will take that question as referring to the limits to the contents of reports, which are found in the bill, and expand it a little to the issue of limitations, either to the mandate or to access by the committee or to what would be reported, which I think has been the subject of considerable discussion before this committee.

The bill, in a number of places, clauses 8, 14, 16, and 22, and you're referring to clause 22 in the report of the committee, says that information, the disclosure of which would be injurious to national security, would have certain limiting effects to, one, the mandate of the committee, two, to the information that the parliamentary committee should have access to, and three, to what the committee would be able to report on.

The committee of parliamentarians should not be subject to limits in terms of its mandate in relation to information that would be injurious to national security. The committee should have a broad, comprehensive mandate. That's the first point.

In terms of access to information by the committee, the limits in clauses 14 and 16 are too broad. There are too many limits. Maybe some of these limits are desirable, for instance, the protection of sources or witnesses who deserve protection. I don't believe that it would be necessary for the committee of parliamentarians to do a proper review of the issues to be reviewed. They don't need to know the identities of sources of information or witnesses to do a proper job. Therefore, in clauses 14 and 16, I suggest that the list of exceptions or limitations should be reduced, but there may be legitimacy to some limits.

Coming finally to your question about the reporting, that's the toughest question, because I think the committee should have access to everything, more or less, and should certainly have a mandate that is quite broad. However, regarding what the committee would report, there is an issue in terms of what should be reported publicly. Care needs to be taken so as not to report on some details that would indicate to the subjects of investigation, the national security agencies, certain methods of operations, and so on and so forth. For reporting, there is a better argument for protection.

My last point on that would be that the bill proposes that the executive, that the Prime Minister, direct what would be protected. I think you should give some thought as to whether the committee should have more latitude, discretion, authority, on that question. Conceptually, it is justified that some limits to what details are reported be there. I'm not convinced that the decision-making authority should rest with the executive.

[The Chair, Liberal, Rob Oliphant]

Thank you, very much.

Mr. Miller.

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

Thank you, Mr. Chairman.

Witnesses, thank you for being here.

Mr. Leman-Langlois, I want to touch on something Ms. Damoff mentioned on insufficient budgets, because I flagged that one as well.

Were you worried in the sense that the government would restrict the committee from doing its job just by saying that there aren't enough funds? Is that what you meant by that? I'm not sure I'm clear on that.

[Stéphane Leman-Langlois]

I'm afraid I wasn't particularly clear about that.

I was concerned about the resources that we allocated to the committee and whether it was going to be able to do its work properly. There's nothing about that in the law. It's normal. There's nothing in the law about budgets, but budgets are quite a concern.

When I brought up the budget, I was really talking about the existing oversight committees, some of which haven't followed inflation for the last 15 years. That's the case of the review committee of CSIS, for instance, whose budget has not moved in 15 years, while the CSIS budget is being brought up stratospherically since then. The CSE budget is also way up. That causes a multiplication of activities, a multiplication of new programs, and there's no way that the oversight committee can follow up.

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

Okay, that clears it up, then. It's not really the committee that you were worried about there. The other thing that you mentioned, that's another issue all together.

You also mentioned about the mandate being much too broad. I think you made the comment that many organizations come under this, which is true. You also said that you think it is something that could be extremely partial, or it would be. Can you enlarge on that a bit more?

[Stéphane Leman-Langlois]

If you have a multiplication of agencies that are going to be under surveillance, then to me it's a good thing. That's a positive part, because finally we have a central authority that can do oversight of a vast number of different agencies. This is good, but that creates a workload that's very large. If you go down the list of the three mandates, I think that if you limited this committee to mandate (a), which is the political, regulatory, financial, and oversight, etc., then that sounds like it's manageable, but if you go down (b) and (c), and you give the mandate of looking into specific programs across this vast number of different agencies, then to me it sounds like a job for a very large organization and not a committee of nine parliamentarians. Even if they second 12, 15, or 20 staff, it's not going to be enough.

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

Outside of the committee, the committee members have their work to do, and I think, without getting into the details, that it's self-explanatory what they do. Of course, you have, just as this committee does, clerks and analysts, and what have you, who are there to assist us in information, etc. Are you thinking that wouldn't be the case here?

[Stéphane Leman-Langlois]

If you have a very large organization, as I said before, and if you really have a huge budget and you centralize all this oversight in one place, then it might work, but I don't see that being too likely. What we're going to have with this committee will be like the committee you have right now exactly, except with the security clearances that allow you to look into more confidential national security matters with the restrictions I spoke about before. You'll have your work cut out for you. This is huge. Just overseeing CSE is very difficult, and the CSE commissioner has a really hard time overseeing CSE.

If you have to look at 10, 15, or 20 organizations that are the backbone or infrastructure of national security in Canada, then I don't see that as being possible. What's going to happen is that it's going to look a bit like it is in Great Britain, where you have parliamentary oversight and a parliamentary committee looks at budget questions in depth across the board for different organizations, but it really doesn't do a thorough oversight of everything. It picks and chooses certain things that are important in the media or things that have caused some public attention. Exactly how the committee decides what it's going to look at, I'm not sure, but it's more like a standing inquiry commission that looks at four, five, or six different topics every year and not the 600, 700, or 800 different programs that we're proposing here.

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

I'm limited on time, but you also made a statement that you thought there were too many restrictions on access to information. Can you give me a couple of examples?

[Stéphane Leman-Langlois]

I think Mr. Therrien touched on that problem, also. The whole point of having parliamentarians in a special committee that has special oversight, that is bound by secrecy, that is going to look at stuff in camera, and that is going to have security clearance is precisely to facilitate access to all the different kinds of information. If you start limiting it, and it's a national security thing that is worded in a very loose way, then that might reduce it quite a bit. In investigations where everything is going really well, then things are going to be perfectly fine, but when there's a public controversy or something like that, then it's going to start driving, and people are going to think that the committee is not going all the way to the bottom of the matter because some doors are blocked.

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

Okay.

Mr. Therrien, would you comment further on that part of it?