Evidence of meeting #44 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 security.
A recording is available from Parliament.
4:05 p.m.
Voices
Oh, oh!
4:05 p.m.
NDP
Matthew Dubé NDP Beloeil—Chambly, QC
I want to hear your thoughts on another interesting point as well. Something we've heard from other witnesses is how some of the limitations that exist currently in the bill would prevent the review of operations that took place rather a long time ago but are ongoing and that really require the kind of review that Parliament needs, such as Afghan detainees or Air India.
Perhaps I could I have your thoughts on that, given your experience on Air India in particular. How important is it that even though there are certain ongoing elements of those investigations, the committee does need to get access to that information to do its work?
4:05 p.m.
Special Advocate, Kapoor Barristers, As an Individual
What I was alluding to earlier were the kinds of things that Michel Coulombe was referencing: real-time and in-progress problems. When a crime has been committed, and it's 25 years late, this committee can certainly take a look at the information. Frankly, the information is coming in a confidential way to begin with.
The real problem is the extent to which the committee is going to draft a report for public consumption that's going to compromise an investigation. Giving it to the committee doesn't compromise the investigation unless the investigation is at an intense point where resources cannot be devoted.
4:10 p.m.
NDP
Matthew Dubé NDP Beloeil—Chambly, QC
How can we define that in the bill, then, to make sure we're not stepping on the toes of CSIS, as you and Mr. Coulombe described? You can say 25 years later, and that sounds obvious. What would be your suggestion for how we should call it?
4:10 p.m.
Special Advocate, Kapoor Barristers, As an Individual
I'd say it would be a current ongoing investigation where production to the committee could prejudice the investigation. You might want to tie it to the resources of the agencies, because that's really the problem here. When you're in the middle of an operation—and certainly Luc can speak to it—you don't want to devote resources to some review committee, but when you're down the line, review is a fact of life.
4:10 p.m.
NDP
4:10 p.m.
Liberal
4:10 p.m.
As an Individual
Just to add to that, in terms of clause 14, there is no reference, as far as I can tell, to ongoing CSIS investigations: it's ongoing criminal investigations. CSIS tends to run its investigations in the long term. I don't see much in terms of problems with the committee having access to its investigations. What Michel Coulombe described was just a few days of very dynamic investigation.
Law enforcement is another issue. I think there will have to be a reasonableness test, because if you're running a criminal investigation, an active criminal investigation, I can see where you don't want to jeopardize that investigation, but then there's a difference between something that runs year over year, where the case remains open, with no track towards a potential prosecution. I think there's a bit of a grey area there that will have to be worked out.
November 22nd, 2016 / 4:10 p.m.
Liberal
Marco Mendicino Liberal Eglinton—Lawrence, ON
Thank you, Mr. Chair.
Thanks to both of you. This committee is very fortunate to have the benefit of your evidence today.
Mr. Portelance, I want to begin with you. You mentioned during the course of your opening remarks that you had some concerns with regard to clause 9 of Bill C-22 and the absence of a sufficiently articulated architecture when it comes to the oversight of national security.
Can you elaborate on that? What are the principles of architecture that you think that the government and, by extension this committee, should be taking into consideration when we talk about enhancing oversight and accountability?
4:10 p.m.
As an Individual
In general terms, if you consider the creation of this committee, the new committee, it's being bolted on to what we'll call an architecture that is fairly long-standing. Certainly, SIRC has operated in a certain way now for over 30 years.
I think it was discussed when SIRC was here that, at the end of the day, SIRC is led by a part-time chair and part-time members, with a professional staff. It looks like what the new committee of parliamentarians will be: part-time committee members with a professional staff.
If you think about this new committee and what the existing review bodies do, this is done absent understanding what else could occur within the review environment. They follow the thread. For instance, the ability for some of these organizations to take their review beyond the walls of the organization they review has been mentioned as a problem going back years. The Air India commission mentioned this. I think it is a fundamental problem.
As you bolt on this new committee, absent an architecture that says more specifically that there will be coordination and there will be collaboration, the final point I would make is that once upon a time there were two review bodies at CSIS. There was an inspector general, and there was SIRC. The inspector general position was abolished a few years back, but I can tell you that when I was running operations at CSIS it wasn't unusual to have both looking at the same general issues. The coordination seemed to be the responsibility of CSIS, because the two review bodies would say “we have a mandate and we will do what we will”.
I would be worried for the agencies that there would be this sort of redundant and uncoordinated activity. That's what I mean by an architecture.
4:10 p.m.
Liberal
Marco Mendicino Liberal Eglinton—Lawrence, ON
Clause 9 mandates the committee of parliamentarians to work with existing civilian oversight to avoid duplication of scarce resources. We've heard evidence from SIRC, when they were pressed on this point, that in the early days conversations would include SIRC's essentially sharing their operational plans with the committee of parliamentarians to avoid the kind of redundancy that I think you're worried about.
Can you take just a brief moment—because then I have some questions for Mr. Kapoor—to talk about the kinds of “statutory gateways”, which have been referred to in the Arar commission and elsewhere, that would trigger co-operation between the committee of parliamentarians and existing civilian oversight? What are the principles upon which we can build that co-operation?
4:15 p.m.
As an Individual
Again, I think that if the starting point is a realization that the new committee of parliamentarians must leave in-depth ongoing review to the other review bodies, you have to figure out a mechanism that perhaps is able to task those review bodies absent the new committee's taking on the responsibility.
As the commissioner for CSEC and others in SIRC build their annual report, does this committee have an interest in a horizontal piece? Do you have the ability to say that “this year it would be useful if everyone looked at this element, because this committee would like to bring this together”?
4:15 p.m.
Liberal
Marco Mendicino Liberal Eglinton—Lawrence, ON
Just by way of example—you've alluded to this explicitly—there is no existing civilian oversight for CBSA, nor for the vast majority of other branches that fall within the Public Safety overarching apparatus, so it seems to me that the committee of parliamentarians, within the early stages of its mandate, would have a lot of work just there in terms of overall efficacy, in looking at how to enhance oversight for everybody outside of CSIS, through SIRC and the Office of the Communications Security Establishment Commissioner for the National Defence portfolio. Is that a fair comment?
4:15 p.m.
Liberal
Marco Mendicino Liberal Eglinton—Lawrence, ON
Okay.
Mr. Kapoor, I want to take you to the part of your written submission that addresses clause 16. There's been quite an abundance of evidence before this committee on access to information. I want to take you to the second paragraph, where the CBA says, “Put simply, section 16 would gut the proposed law...”. That's a fairly strong statement.
I assume that this assumes that the minister, when exercising his or her discretion under that provision, would be doing so in a very restricted and constrained way and would be using the discretion to “impasse” the flow of information to the committee of parliamentarians.
4:15 p.m.
Special Advocate, Kapoor Barristers, As an Individual
Right. Well, I mean, I don't know if they'll be doing it that way or not. We know from past experience that ministers aren't shy to claim privilege.
4:15 p.m.
Liberal
Marco Mendicino Liberal Eglinton—Lawrence, ON
If we don't know, then it's equally possible that the discretion could be exercised in a manner that allows the committee to fulfill its mandate under paragraphs (a), (b), and (c) of subclause 16(3).
4:15 p.m.
Special Advocate, Kapoor Barristers, As an Individual
I guess I would say that discretion in the minister to withhold information from the committee is corrosive to the review process, and the minister just ought not have that discretion except for the very limited circumstance that I have indicated, keeping in mind that the information is not going to have public exposure in the first instance. It's going to come to the committee in a secure manner.
4:15 p.m.
Special Advocate, Kapoor Barristers, As an Individual
I just don't see the case for withholding information.
4:15 p.m.
Liberal
Marco Mendicino Liberal Eglinton—Lawrence, ON
I just wanted to make sure I understood that statement, “gut the proposed law”, and that it was founded on an assumption that the minister would be exercising discretion in a way that would obstruct the flow of access to information to the committee of parliamentarians.
4:15 p.m.
Special Advocate, Kapoor Barristers, As an Individual
No, it's the opposite. If you as a committee member want to look at something as part of your mandate, you ought to be able to. It's not that the minister is going to misconduct himself or herself. It's that you ought to have access.
4:15 p.m.
Liberal
Marco Mendicino Liberal Eglinton—Lawrence, ON
Right.
Is that my time, Mr. Chair? It goes by so quickly in this round.
