Public Safety Committee on Nov. 22nd, 2016

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

I'm very happy to call to order this 44th meeting of the Standing Committee on Public Safety and National Security as we continue our study of Bill C-22, an act to establish the national security and intelligence committee of parliamentarians and make consequential amendments to certain acts.

We're getting down to the short strokes on this study of the bill.

We're delighted to have two witnesses with us for this first hour: Luc Portelance and Anil Kapoor.

Do you have a preference for who goes first? I think we'll start with Mr. Portelance for 10 minutes, and then go to Mr. Kapoor. Then we'll have questions from the committee members.

[Luc Portelance, As an Individual]

Thank you, Mr. Chairman and members of the committee, for inviting me here today to speak to you in support of your study of Bill C-22.

I must admit that this is a new experience for me. I have appeared before this committee before, always as the representative of a government department, and this is the first time I've done so on my own. I have a very brief opening statement, and I look forward to the committee's questions afterwards.

I am aware, of course, that in your deliberations you've already heard from a number of witnesses, including experts from various fields, who have mostly endorsed the creation of a national security and intelligence committee of parliamentarians. Let me add my voice of support by stating that I, too, welcome this significant addition to our national security review architecture.

I believe that Minister Goodale, in his testimony, mentioned how this piece of legislation is part of a broader suite of changes required to our national security framework. In fact, the current consultations undertaken by the government are likely to yield a significant public debate around investigative capabilities, privacy, and accountability.

Review is of course a critical element of this complex ecosystem. In many respects, Bill C-22 is the beginning of the broader debate, and the committee of parliamentarians, once created, will have a significant role to play in defining the future of national security in Canada.

As many have said, the legislation as currently drafted is not without some imperfections. You've already received useful advice about the scope of the mandate, exceptions and exemptions, coordination, and other critical clauses.

Thus, as I appear before you today, it strikes me as most useful if I approach my comments from the perspective of someone who was the subject of review for 24 years at CSIS. Of course, I also bring with me the perspective of having led the Canada Border Services Agency for a number of years, an organization whose apparent absence of external review has come under some criticism.

As such, there are only two issues I want to bring to this committee's attention this afternoon.

The first is a question about the value proposition for Canadians. How does this committee differentiate itself from the existing mechanisms, and what might success look like a few years from now?

Some would say that the mere creation of this new committee is a major step forward. Perhaps, but from my perspective, it's less about creating a new review body and more about creating a new mechanism for accountability, transparency, and support. In fact, more review will not necessarily mean better review, unless the committee understands and remains laser-focused on its value proposition.

As currently worded, clause 8 of the bill supports the committee's purpose of bringing about a greater level of accountability and public confidence. Craig Forcese, in his earlier testimony, accurately suggested that Canada—unlike the U.K.—doesn't have a solid track record of accounting for events, other than episodic enquiries over the past 10 years. I believe he is right, and the new committee will fill this important gap, particularly as a result of its broad horizontal reach.

It's important to remember, however, that accountability applies equally to departments and ministers, which should guide your consideration of potential modifications to clause 16 of the bill.

Similarly, I would avoid the temptation to list organizations that fall under the committee's purview, and, rather, let the evidence lead the way, as suggested by MinisterGoodale.

A critical element of the value proposition must also include what I refer to as “support”. A mature, experienced committee of parliamentarians will be invaluable in determining whether our national security agencies are adequately tooled and resourced to keep Canadians safe.

Whereas paragraph 8(a) does reference several administrative elements the new committee could review, there is no reference to performance, effectiveness, or adequacy. This may not require explicit mention, as long as this aspect of the committee's mandate is implicitly understood.

While agencies will not stand in the way of increased scrutiny, they will welcome the opportunity to explain their challenges to a receptive but critical interlocutor whose views can shape national security policy.

The value proposition of the committee is encapsulated in two paragraphs of clause 8, which speak to the what but not really the why. Most stakeholders would benefit from greater clarity, as will the new committee, as it seeks to position itself.

My second issue and my key area of preoccupation is the absence of a well-defined overall review architecture and the simplicity of clause 9 as currently drafted. Frankly, I see this as a considerable risk, and one that should not be left to the review committees that are taking reasonable steps to co-operate. Unquestionably, the brunt of agency review will still be conducted by the existing review bodies.

As stated by a previous witness—I believe it might have been Ron Atkey—the new committee will not be a substitute for a detailed review. The relationship between the review bodies—the complementarity, the hierarchy, if any, and the dependencies—should be clearly articulated.

Poor alignment in terms of access, along with the inability of existing review bodies to follow the thread horizontally, are bound to create friction. Any confusion, particularly duplication, redundancy, and lack of coordination, will unquestionably impact the agencies under review. Although these things may sort themselves out over time, there is a real risk that operational capacity will be impacted while review bodies assert their mandate with no mechanism to arbitrate. The government should likely re-examine everyone's roles and mandates, including those of parliamentary and Senate committees whose mandates cover national security and public safety.

In conclusion, there was a prevailing view at CSIS that the existence of SIRC since its creation in 1984 ultimately made the service better. In today's threat environment, with rapid advances in technology, diminishing investigative capacity, and pressure for more transparency and accountability, this new committee of parliamentarians must quickly find the balance between seemingly competing interests. Ultimately, its value will be measured on its contribution to the betterment of Canada's safety and security.

[The Chair, Liberal, Rob Oliphant]

Thank you very much.

Mr. Kapoor.

[Anil Kapoor, Special Advocate, Kapoor Barristers, As an Individual]

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.

[The Chair, Liberal, Rob Oliphant]

Thank you very much.

We'll begin with Mr. Spengemann, for a seven-minute round.

[Sven Spengemann, Liberal, Mississauga—Lakeshore, ON]

Thank you, Mr. Chair.

Thanks to both of you for being here.

Mr. Portelance, thank you for your work in our public service. It's good to have you here in a personal capacity so that you can speak freely and in an unencumbered fashion.

I want to continue very much along the direction that you've both already taken, to see if you can help the committee assemble a number of different intentions, ideas, and concepts that we've heard about over the course of the testimony we've received here.

I want to start with Minister Goodale's paradigm, which is basically that we're providing both our cherished charter rights and good security to the public, and it's balancing that fundamental tension, if you will, that we're concerned about.

You both spoke about public trust in government. I think that is really the nub of the value added for this committee, but equally, there is the protection of the efficacy of the process and providing good security. For both of those reasons, the public will either support or reject this committee.

We've talked a lot and heard a lot of testimony about the elimination of overlap with existing review bodies. This body would be a latecomer to the process. It would have to find its own way culturally.

Mr. Kapoor, you spoke very well about how to do that and how to prevent regulatory capture. I think that's a very important component, and I'd like to hear a bit more about that.

We also heard testimony about the tension between experts and parliamentarians. The chair himself pointed out that many of these kinds of committees are staffed by former parliamentarians, so maybe we're underestimating the role that a parliamentarian would take when she is appointed to this committee. She may be more expert than we think. I'd like to hear a bit more from both of you on that.

Lastly, there is the question of how much access and how much review? I think there are many of us who think that we should at least have broad and wide-ranging access, but there is also the question of how much review. What about the exemptions that are being created? What about the definition of “injurious to national security”?

I want to put all those tensions back into your laps to see if you can construct for us, through a thought experiment, how this committee might operate tomorrow were it to start tomorrow, and what, for each of you, are the fundamental gaps that really must be closed through this process that we're engaged in here.

[Luc Portelance]

Simple question....

[Voices]

Oh, oh!

[Luc Portelance]

I'll give it a shot in terms of where you might start on day one.

One of the interesting issues is the comparison with the U.K. and the U.S. and some of the existing review mechanisms in those countries. I think what you'll find, certainly in the U.K. and the U.S., is a long history of that sort of review oversight, a maturity, and a sort of handover from period to period for either parliamentarians or congressmen, whatever the term is.

This particular committee, I would estimate, will spend the early days in just getting educated. I think that will take a while. That will have to be structured and constructed, and I think Anil spoke to this. It's not so much about finding out where the bodies are buried, initially. I would say that it's for the committee to figure out where the value added is, such as what is the game plan of SIRC and some of the other review bodies. I understand that there is no real mechanism to align that, but the early days will be about education, learning, and figuring out where to go next.

Part of the question is whether it is better to articulate today the relationship between review bodies in terms of the value added, or to wait and have it grow organically, which I think has been recommended. I'm sort of on the fence with that. I would like to see words that force co-operation, because my fear would be that it's sort of the shiny thing, right, or in other words, the issue du jour. Maybe, as Michel Coulombe mentioned, it could draw SIRC, could draw other parliamentary committees, and could draw the new parliamentary committee, and suddenly everyone is looking at the same thing.

To me, there needs to be bit of a hierarchy of review. I think it goes to Anil's point. It requires considerable resources and expertise to be able to do effective review, because you have to understand the environment, know where to look for things, and have the proper conversations.

It will take a while for this committee to really reach that level of maturity. In the meantime, what kinds of relationships can exist with organizations like SIRC, that continue to do the brunt of the review, and then how does this new committee position itself perhaps more strategically?

[Sven Spengemann, Liberal, Mississauga—Lakeshore, ON]

Can I interrupt you on that point?

Mr. Kapoor spoke about the risk of capture. I would assume that it's particularly acute during that early period that the committee may be captured by the entities that it's supposed to review.

[Luc Portelance]

Let me put it this way. I think the agencies will look forward to having the conversations and educating parliamentarians, because I know many of them look forward to having a debate about means, capacity, shortcomings, gaps, and so on.

I wouldn't say that there is a real risk. I think there is a partnership that is required, but as to how that partnership gets defined, I think Mr. Kapoor is right. There has to be a line drawn. It is a little bit about partnership because there is the notion of review, but there is also a notion of shaping public policy around national security. To do that, it has to be somewhat of a partnership.

[Sven Spengemann, Liberal, Mississauga—Lakeshore, ON]

Can I put a final question to Mr. Kapoor?

With regard to the state of knowledge on the part of the Canadian public about matters of security, including the existing security and review architecture that we have, how much of a challenge is it? How can the secretariat help to bridge that? The committee will issue periodic reports. Nobody reads them, as far as the public is concerned anyway. How do we make sure the public is engaged and actually recognizes the value that this committee will bring?

[Anil Kapoor]

I think one of the problems we have is that our review agencies have no real public profile. I was in the U.K. just last week, dealing with David Anderson, who is the independent reviewer. He gives regular interviews to the press, and the press covers it in a way that our press would if our people made themselves available. The issue is very interesting to the public. We just need to access them, so the chair, whoever that is, has to have a public role. It is important that part of the secretariat's responsibility be media liaison. That's an opportunity that we have just missed, frankly, in terms of our review.

[Sven Spengemann, Liberal, Mississauga—Lakeshore, ON]

There is room for some culture change on that front.

[Anil Kapoor]

Yes.

[Sven Spengemann, Liberal, Mississauga—Lakeshore, ON]

Mr. Chair, I think that's slightly under my time, but those are my questions.

[The Chair, Liberal, Rob Oliphant]

You are a little under. We'll remember that.

Mr. Clement, go ahead.

[Tony Clement, Conservative, Parry Sound—Muskoka, ON]

Thank you, gentlemen, for participating in our review.

Without a doubt, and as you have referred to, there have been some common themes. I want to tease out some of these themes a little more in a series of questions.

First, perhaps I can direct this to Mr. Kapoor. We had a series of deponents here who were concerned about the information flow that you referred to. I think it was Professor Roach who called it—it just stayed in my mind—“a triple lock”. You have clause 8, then clause 14, and then you have clause 16 and the interplay of all those clauses. He was worried—and instilled the worry in me—that there are all sorts of off-ramps for the government to not provide the information.

Both of you gentlemen have said that we are busy parliamentarians who want to do a good job for the people of Canada. It doesn't matter what side of the House you are on: you want to do that. But if we are going to do this.... I came from a government that didn't want to do this, but now we're at the point where we are doing it—

[Anil Kapoor]

That's in Macbeth's speech.

[Tony Clement, Conservative, Parry Sound—Muskoka, ON]

Yes, as follows:If it were done when 'tis done, then 'twere well
It were done [well]

Lady Macbeth said “done quickly”, but I would say “done well”. From my perspective, if we are going to do this, let's do it well. Let's not waste our time.

I wanted your comments on this triple lock idea, because I found it a good synopsis of the hurdles in the bill for good flow of information.

Perhaps, Monsieur Portelance, you can comment on this, too, because I think this is the crux of the issue when it comes to the information flow.

[Anil Kapoor]

My response to that is that we don't need a triple lock. The only thing that the committee should not gain access to in real time.... If there is a real-time concern on an investigation, then I entirely accept that the integrity of the investigation needs to be protected, and frankly they don't have time to fund the committee with information and manage all that, because it's a burden on these agencies. But when that has passed, it's over: the committee gets it, period, full stop.

[Tony Clement, Conservative, Parry Sound—Muskoka, ON]

Yes.

Monsieur Portelance.

[Luc Portelance]

I'm not sure if your question goes to this, but what I would call the misalignment of access between SIRC and the new committee I think ultimately will be a problem. I know there are discussions about how if this committee had no access, would you task SIRC? That doesn't seem to me to be a workable model. In other words, if you're going to clear everyone to top secret, I think there will be a maturity where people understand what is a legitimate concern in terms of public disclosure and what isn't.

I see the misalignment of access to be ultimately a bit of an issue. I think it will cause friction down the road, including, by the way, in the lack of horizontal reach of the review bodies.

[Tony Clement, Conservative, Parry Sound—Muskoka, ON]

Yes.

[Luc Portelance]

I think that misalignment is also a problem because what this creates is that the committee of parliamentarians has the ability to review horizontally, but the existing review bodies don't.