Thank you very much, Mr. Chair and members of the committee. I'm happy to be here.
In particular, I want to address you from the perspective of a special advocate—which is part of what my practice entails—in relation to this bill, Bill C-22. This piece of legislation is crucial to public trust in our security intelligence apparatus.
Commissioner Paulson said as much on November 1 when he said that it's “vital” to the success of the RCMP and their mission that they have the trust and confidence of Canadians in their ability to do their job. Michel Coulombe said on the same date that it's important that there be “an informed discussion” so that people understand “the threat environment that's out there in terms of classified information”.
What is the threat? What are the gaps in the tools that are available to us? From the CBSA, we hear that trust is absolutely essential. From the CSE, we hear similar comments, and in particular, that this will provide this committee, namely, a nice opportunity for the security and intelligence community to speak with one voice, and the committee will have an opportunity to strategically look at the community as a whole.
People are looking to this committee as possibly funding what I call a trust deficit—possibly. There exists a trust deficit today, and we know this from any number of decisions from our courts about the conduct of the RCMP, the conduct of CSIS, and, most recently, Justice Noël's judgment, where he said this:
...in regard to the CSIS’s duty of candour, I conclude that it had an obligation, beginning in 2006, to fully inform the Court of the existence of its collection and retention of associated data program. The CSIS also had the duty to accurately describe this program to the Court. The fact that it did not do so until 2016...amounted to a breach of the...duty of candour.
In my view, you can't have a situation where an intelligence agency for 10 years does not tell the court what is going on. This committee, potentially, if properly constructed, can go some distance to recovering that trust deficit. How do we do this?
You've heard from my colleague Kent Roach and from Professor Forcese. They had the three components to the overall security review process, with the committee of parliamentarians being one. Another was a consolidated and enhanced expert review body, and you heard their evidence on that point. You also heard their evidence about the need for an independent monitor of national security law, built on the U.K. or Australian model. But today I want to address you on the three fundamental aspects of this bill. There are three components that I think you should consider. One I call the architecture of the bill. The other is who is on the committee. The third is support for the committee.
Let me deal firstly with the architecture of the bill. There are many things you have read in this bill that people have testified before you are problematic. Most strikingly, I would say, from my perspective as a special advocate, is the fact that this top-secret cleared committee can have information withheld from it. We have had this problem in security certificate cases from the beginning, where the service has not provided us with information that we are entitled to. It took us all the way to the Supreme Court of Canada in Harkat and in Charkaoui number two to get proper disclosure.
That sort of—how can I put it?—passive-aggressive approach from the service just cannot be acceptable with this committee. This committee, those of you who may be on it, will be top-secret cleared. You can be trusted with the information. It's no different from what the Supreme Court of Canada said in Harkat about special advocates. They said, “The special advocates...have the ability to distinguish between...public and confidential” information. They said, “The judge should take a liberal approach in authorizing communications...”. In other words, special advocates can be trusted. Committee members can be trusted.
What's the difference, frankly, if you're on the government side of the House and you're sitting on this committee, and then a week later the Prime Minister appoints you the Minister of Public Safety? The day before that happens, we can't get inside the kimono, and the day after, it's open kimono. But you're the same person: you're able to maintain a secret.
In my view, this notion that the minister and these agencies can withhold information from this committee ought to be rejected.
One example is the example that Michel Coulombe gave in his evidence. It is interesting, because what was put to him was about “injurious to national security”. The example he gave was highly operational. Just for your reference, it's from November 1, at page 17, and he said:
I could provide an example.
...Take, for example, what happened on August 10. Had that lasted for three or four days and had it been a counterterrorism investigation—fast-paced with a lot of resources involved—and had resources been assigned to send information to the committee, that would have been a distraction from the operation....
I agree. If you're in the middle of an operation, the last thing you want to be doing is dealing with a review committee. The review committee is meant to review things that have happened, so I have no problem with that kind of operational postponement of information, but the test, “injurious to national security”, has a particular meaning in law, and it is far broader than that. Also, it applies when an operation is concluded.
It can be to protect foreign agencies. It can be to protect sources. Part of your job as a committee may be to inquire into the service's handling of sources, and the appropriateness with which they do so, and you ought to be able to. There's a difference between what you learn in closed...and what you put in a public report. In my view, parliamentarians, top-secret cleared, are capable of making that distinction, just as special advocates are.
Who is on the committee is the next point. This is unglamourous work, trust me. I've been involved in a lot of these national security cases, both on CSIS work and on security certifications, and when I was commission counsel on Air India. It is hard work, it is laborious, and it takes a particular aptitude to get into the weeds and then to be able to get out of the weeds. When you staff it with your committee members, you need that kind of person: someone who is rigorous, diligent, and has the aptitude for what I call unglamourous and rather bookish work.
Finally, on support for the committee, this is crucial. This committee of parliamentarians cannot do this job without a properly staffed secretariat, and I mean this. You are all busy people. You have other things. You have constituents. You have all kinds of things going on. You need to be able to rely upon the secretariat to properly brief you and to give you direction on where the bodies are hidden, to use the vernacular.
How are you going to do that? Well, you need a competent, highly skilled director of the secretariat—I think that's what they called it—and then you need to staff it up. How do you staff it up? It can't be government lawyers, obviously, so you staff it up with relatively junior and highly skilled people, who are top-secret cleared, to do what I call the grunt work. Then, I suggest, what you need to have are two or three senior counsel who are top-secret cleared and who can direct the inquiry, provide it with focus and shape, and ensure that your staff does what you want the staff to do.
Then you will be briefed. I don't think it's appropriate for counsel to examine witnesses. I think the committee ought to examine witnesses. You will be briefed and you will make your decisions as a matter of policy on what you want to cover. You may have matters one to ten and you may choose to cover one to four, but you will be expertly briefed and able to execute on the questions.
Most particularly, you will not be co-opted by the agencies. You will not. This is a real concern, because they will come in and they will talk to you about the threat level and all the things they need to do. You need to guard yourself against it. Some of it you may accept, and some of it you may not, but review must be skeptical. You can go back to what Justice Noël said about ten years of a lack of candour. That can't happen. You can stop it. You can deal with the public trust deficit.
Thank you.