Evidence of meeting #43 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 activities.
A recording is available from Parliament.
Liberal
The Chair Liberal Rob Oliphant
Just briefly, please. I'll give you an extra minute because we had an extra minute on this side.
Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada
I'll be brief. In addition to what I said before, I would make the following analogy. If you look at the rules around access to information and reporting by courts, that would be a good indication of what the committee of parliamentarians should look at. Courts that review the legality of activities of national security agencies have access to almost everything, with extremely limited exceptions, but when they report on the legality of certain activities, there can be redactions, and we've seen that in a recent judgment of the Federal Court. This is a good analogy for what should happen with the committee of parliamentarians.
Conservative
Larry Miller Conservative Bruce—Grey—Owen Sound, ON
You talked about in camera meetings. Having sat on a municipal council for a number of years, as Ms. Watts and maybe some others have, from time to time we had to go in camera. Most meetings were public meetings, but sometimes something came up in the meeting and one of the members of the council simply made a motion that we go in camera and then we came out in public afterwards. Would that same kind of thing satisfy your concerns there?
Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada
Having some rules for in camera hearings makes sense, given the nature of the information at play. I said in my remarks that the proposed standard for deciding on in camera hearings, i.e., whether the government is “taking measures to protect information” is a bit of an unknown, and it would be preferable to use the test that is known elsewhere in law, which is “injurious to national security”.
Liberal
NDP
Matthew Dubé NDP Beloeil—Chambly, QC
Thank you, Mr. Chair.
Mr. Therrien, I want to go back to the reports as well as to the Prime Minister's power to make changes to them. In fact, we are proposing an amendment to allow the public to know what type of content was removed and what justification was given. That is a minimum to us. That power still goes too far in our opinion, but at least in this way the public, when it sees the report with the changes that were made, would know that changes were made and would know the justification behind them.
Would you support this measure, as a minimum? Would you consider it important?
Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada
With regard to the existing text, it would be preferable in my opinion that the executive demonstrate that the fact of disclosing some detail would cause harm, injury, a prejudice. Clearly, that should be proven. It should not be left strictly to the discretion of the Prime Minister.
As to who should determine if the injury is sufficiently serious, the question is debatable. In the case of courts that issue judgments involving national security, the government tells the judge about the harm that could ensue if the information were disclosed. The judge examines this and renders a decision later. That sort of process could be helpful and should be considered. As for whether the decision should ultimately be made by the committee or by the Prime Minister as the representative of the executive, I have no firm opinion.
NDP
Matthew Dubé NDP Beloeil—Chambly, QC
Thank you.
The fact of that you alluded to the judicial process is interesting.
Concerning that aspect of the bill, one argument the government often raises is the cooperation between the chair of the committee and the executive. I don't know if you have an opinion on that, but the United Kingdom finally chose to elect the chair of its committee. The current chair of the committee over there told us that that was a desirable solution because of the relationship the committee could and should entertain with the executive, and the need to win the public's trust.
Do you have an opinion on that?
Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada
All other things being equal, in my opinion it would be good if all the branches of government, the executive, the judicial and the parliamentary, played a role and were treated relatively independently. Clearly the executive and the judicial branch must demonstrate complete institutional independence one from the other. We should encourage the independence of the parliamentary branch with regard to the executive as to the mandate and operation of the committee in question. As to whether there should be total independence as in the case of the judicial branch, I will let you be the judge of that.
NDP
Matthew Dubé NDP Beloeil—Chambly, QC
Thank you.
The CSE Commissioner testified here last Tuesday. He indicated that under the National Defence Act, they are legally obliged to report any activity the CSE engages in that is in violation of the law. Currently, this committee does not have the mandate of reporting such acts to the ministers responsible, who are the Minister of Public Safety and Emergency Preparedness and the Minister of Justice.
Would this be a good element to add? In this way, when the committee became aware that the law had been broken, it would have the obligation to divulge, as does the Commissioner of the CSE, for instance.
Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada
You are touching on the issue raised by Mr. Leman-Langlois, that is to say the role the parliamentary committee should play. If the mandate of the committee were to report breaches to the law, this would be closer to operations. The point would be to determine if the operations broke the law. I am not excluding that. I think that the parliamentary committee should examine operations to get some idea of the legislative framework it should adopt.
If the parliamentary committee had to give its opinion on the legality of a program, it would be less to report the illegality of a certain operation than to determine to what extent the legislative framework should be improved to limit the possibility of such violations of the law.
NDP
Matthew Dubé NDP Beloeil—Chambly, QC
Thank you.
Much has been said about the importance of having access to information and about the limits to that access.
The meetings of the parliamentary committee would be held in camera; the information would not be disclosed publicly. There are already serious sanctions should parliamentarians not respect these obligations. Therefore there is really no reason to prevent parliamentarians from having access to information.
Going by your comments, I think you both agree with that?
Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada
Yes.
Full Professor, École de service social, Université Laval, As an Individual
I agree, and I have nothing more to add to what you said.
NDP
Matthew Dubé NDP Beloeil—Chambly, QC
Thank you.
Mr. Therrien, given the nature of your work, how important is it to you and your team to have access to the information you need to prepare your reports? If we want the parliamentary committee to be able to fulfil its mandate, it will have needs similar to yours regarding information.
This may be difficult for you to summarize, but I would like to hear your opinion.
Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada
It is absolutely essential to have access to a maximum amount of information. In the case of recent reports we have prepared about the CSE and the disclosure of information to the Five Eyes intelligence alliance, we had to know the details of what had happened in order to make useful recommendations which were relevant and likely to improve the protection of the rights of Canadians.
The identity of individuals, and the sources used by security services and witnesses have to be protected. I am not convinced that...
NDP
Matthew Dubé NDP Beloeil—Chambly, QC
Forgive me for interrupting you. I only have one minute left and I want to go back to an important point you have raised several times.
There is an expression in English I appreciate very much, with regard to the committee's access to information: it is the “web of inference”. For example, something CSE did regarding a source could ultimately have consequences for another individual.
It is important that we protect our sources. Nevertheless, do you think the parliamentary committee should know the identity of sources in cases where, according to this concept of the web of inference, this could provide it with additional information and help it to do its work?
Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada
It's not inconceivable. However, all things considered, I don't think it's generally necessary to know the identity of sources, except in rare cases, such as for an organization like mine or for the committee of parliamentarians.
NDP
Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada
Exactly.
Liberal
The Chair Liberal Rob Oliphant
Thank you, Mr. Dubé and Mr. Therrien.
We'll continue with Mr. Di Iorio.
November 17th, 2016 / 4:15 p.m.
Liberal
Nicola Di Iorio Liberal Saint-Léonard—Saint-Michel, QC
Thank you, Mr. Chair.
Ms. Fournier-Dupelle, Mr. Therrien and Professor Leman-Langlois, thank you for your help.
Professor Leman-Langlois, you said that the mandate was too broad. You were referring to section 8 of Bill C-22. Is that correct?
Full Professor, École de service social, Université Laval, As an Individual
I don't remember whether it was section 8.