Public Safety Committee on Nov. 22nd, 2016

[Richard Fadden]

I was director of CSIS for four years, and during that time, no, although we did have a few discussions about whether they really needed the information. On a few occasions, we came to an understanding that it wasn't really necessary.

Also, there's a difference between a SIRC analyst going to CSIS, having access to absolutely everything, writing up a summary, and then reporting to the committee, as opposed to CSIS testifying before the full committee—and if Mr. Clement will forgive me—with officials in the room and everything else, and a large number of people being made aware of it.

Generally speaking, no, although in a few circumstances we convinced them it wasn't absolutely necessary. In a couple of other instances, they sent an analyst who looked at the stuff and the analyst aggregated it up to the satisfaction of the committee. Generally, it has not been a problem.

[Alistair MacGregor, NDP, Cowichan—Malahat—Langford, BC]

Thank you.

In principle, do you see any problem with the committee of security-cleared parliamentarians enjoying a level of access that is sort of on par with existing review bodies, keeping in mind that for many agencies, such as the CBSA, this committee will be the only oversight mechanism?

[Richard Fadden]

To some degree, you are picking up on the conversation I had with Mr. Clement.

I think you have to go back to what you expect the committee to do. As I understand the bill—and I am subject to correction—the committee is not intended to do detailed investigations. To the extent that this is true, I don't think they need access to every piece of paper produced by CSEC or CSIS. However, I mitigate that by saying that I think the committee of parliamentarians should have access to what CSEC and SIRC produce. I do believe there is a rationale for differentiating access between the various bodies somewhat.

[Alistair MacGregor, NDP, Cowichan—Malahat—Langford, BC]

I'll get one more question in here.

We've proposed an amendment to require the expert review bodies to provide to the committee as well copies of specific classified reports that they produce for ministers. Would you support such a change?

[Richard Fadden]

That is consistent with what I said at the very beginning, so the short answer would be yes.

[Alistair MacGregor, NDP, Cowichan—Malahat—Langford, BC]

Thank you, Chair.

Thank you for bearing with me.

[The Chair, Liberal, Rob Oliphant]

Ms. Damoff, go ahead.

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

Thanks to both of you for being here today.

Mr. Fadden, I had prepared some other questions, but you mentioned that the committee would be reviewing legislation, and I wanted to ask you about that. In the mandate, paragraph 8(a) talks about reviewing legislation and a number of other things that this committee actually does. Can you explain in what context you see this new committee reviewing legislation?

[Richard Fadden]

I think, Mr. Chairman, that it would be largely in those circumstances where it's other work: either policy review, regulatory review, or general discussions with the review bodies, or when the departments and agencies involved in national security suggest to them that there is a need for a legislative change.

My understanding of Mr. Goodale's intent, when he presented this piece of legislation, is that your committee would continue to be the legislative committee. I think you need a relationship with the committee of parliamentarians that doesn't involve this committee knowing every secret, but it would involve them articulating in whatever fashion the House thinks appropriate their views on when legislative change is necessary. In other words, they would have access to a level of detail that spans all of the departments and agencies, which you would not necessarily have, simply because you don't have the time to do it. Then they could make suggestions to you.

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

Do you see a reporting role where they would report to this committee, which is not in our...?

[Richard Fadden]

I don't believe that happens often between committees of the House. You don't really report to one another, but surely there would be some means, such as by exchange of letters between the chairs, or between the staff, for that matter. I don't really have a view, but it seems to me that if you insisted on a reporting relationship, you would probably get yourselves in difficulty with the clerk's office, if no one else.

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

Thank you very much.

Mr. Edelmann, you've given us a number of suggestions in terms of changes that you would like to see in the legislation.

I have a very quick question. If changes weren't made, would you still see this bill as something that's needed and is better than what we had?

[Peter Edelmann]

I think we generally support the proposal of having a committee of parliamentarians. Where we see some danger is in creating something that's toothless and in which the public is not going to have any confidence. That's not necessarily going to make the situation any better; you're just going to have an additional layer. I can see some problems there.

In terms of your previous question to Mr. Fadden with respect to the legislative questions, I would point out that there is an entire body of legal interpretations that are secret and upon which the agencies are relying. A good example of that would be in the recent decision from Justice Noël, where we learned that there were internal interpretations that were secret of what metadata is and how that can be dealt with. What this committee might think it's legislating about and what the agencies are actually interpreting that legislation as, or how they are applying that legislation, are often two very different things.

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

When we're balancing privacy and national security, who do you think is in the best position to make the decision on what should be shared publicly? We are obviously having a lot of discussion about what this committee can receive in terms of information. Would it be the committee deciding what is shared publicly?

[Peter Edelmann]

The process within the committee for sharing information is through the report, so there are mechanisms for providing.... It's one thing for members of the committee—for example, opposition members—to be privy to the information. That's a trust question. The second question is in terms of their being able to share the information outside the committee, and the mechanism for that is through the reports. There is no other mechanism for them. An individual member has no power to take information obtained within the committee and share it unilaterally outside the committee. There is a process within the committee.

We would imagine that there would be two processes that would limit that information. One is the need-to-know principle. In other words, the committee itself would not hear information that wasn't necessary, and that's an important principle that would be applied across the board. Even when Mr. Fadden was the head of CSIS, he would, presumably, get only information that he needed to know. Even the head of CSIS doesn't know the name of every informant, or every witness in protection, or whatever it may be, if they don't need to know those things.

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

When we were talking about what information is shared with the committee, we had some testimony about the fact that if you're still not allowing everything to be shared, at the very least the minister should provide reasons to the committee: “we're not going to share this information with you and this is why.” Do you see that as something that you could live with in terms of changes that would be made?

[Peter Edelmann]

The question is in terms of who has control over making the decision in the end, and whether it's Parliament or the executive. In terms of getting access to information and the reasons why, the executive needs to have that control. That ultimate decision should lie with the executive. I think that's ultimately a decision for Parliament to make. The question is, what is the rationale for the executive having the last say about information? That's not the case with respect to most other committees. If a parliamentary committee requests information in other contexts, it's not within the power of the departmental executives to say that they're not going to give you information or that they've decided you don't need this information.

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

I'm going to cut you off there because I only have about a minute left.

Mr. Fadden, you've talked about how important it is for Canadians to be more informed about threats. Clause 21 lays out how the committee will communicate with the public. I'm wondering whether you feel that clause is adequate or if there's anything that needs to be added.

[Richard Fadden]

No, I think it's pretty good, but I would also say that while most of the hearings of the committee should be in secret, I could conceive of circumstances where they might want to have some open hearings. I would hope, as well, that circumstances would allow the chair of the committee to periodically be able to make statements or hold a press conference when the report is tabled or things of that nature.

As you suggest, there's a real lack of understanding in this country about these things. The more the committee can do while protecting the information, I think would be to everyone's advantage, but I think this is pretty adequate.

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

Thank you.

[The Chair, Liberal, Rob Oliphant]

Thank you.

On the issue of the inter-committee reporting or relationship, one factor would be that we are a standing committee of the House and they're a committee of parliamentarians, so there's a little difference. I'm looking into the possibility of a requirement under the Standing Orders that their report could have to be automatically referred to this committee, just like the Auditor General's report and reports of the officers of Parliament are automatically referred to a standing committee. I'm looking into the logistics of that now to see whether we can figure that one out, perhaps as an addendum to our report on the actual clause-by-clause.

Ms. Watts.

[Dianne Lynn Watts, Conservative, South Surrey—White Rock, BC]

Thank you.

It's interesting that this was brought up, because we heard other testimony that said most of the meetings should be done in public, and only through certain criteria should they be allowed to be in camera. I think there are opinions on both sides.

I want to drill down to my fellow Surreyite, who is there in Surrey, I understand. Hello.

In the report here, in terms of having no definition of national security, which is very broad, I know that in Bill C-51 there were a lot of elements that tried to identify what that would look like. In terms of having no definition, do you think that it is more problematic to leave it that broad, or should we be attempting to define it?

[Peter Edelmann]

I can say that this concern arose from both sides. As I said, many of the sections were involved in the drafting of this document. One of the concerns that was raised with this actually came from the military law section, and it had to do with whether or not you were going to get buy-in from the national security establishment itself. The concern is around both the public and the individuals, the people who are working under the agencies, having confidence in what the purpose is. What is this committee doing? Why are they doing what they're doing? Does it make sense? What is the definition that you're working on with national security? Why are you trying to undertake this study or asking for this information?

With an unclear mandate.... The reason that the mandate is unclear is that, after Bill C-51, we now have a multiplicity of definitions of national security floating around in our legislation. The question is, are we dealing with this extremely broad definition that is in the information sharing act, or are we dealing with a more restricted definition that is in the CSIS act or in other pieces of legislation that generally refer back to the CSIS act with respect to that definition?

It creates some concerns on both sides around understanding what this committee is doing, and why. In terms of the public, what is this committee doing and what is its mandate? Also, from the perspective of the agencies that are under review, there is concern in terms of understanding why the committee is engaging with them and having those working relationships with those agencies.

[Dianne Lynn Watts, Conservative, South Surrey—White Rock, BC]

Would it be your recommendation that we try to, not in the broadest of terms, kind of drill down and begin to identify what national security we will be looking at, whether it's cybersecurity, border integrity, or whatever? Do you think we should in those general terms put some type of a framework around that?

[Peter Edelmann]

Especially when you have a committee that's going to be working in secret, it would be helpful to know what the committee is doing and what are the boundaries of what the committee is expected to be looking at.

With respect to our recommendation of which definition to use, we made submissions at the time of the passage of Bill C-51 about why the definition in the information sharing act was problematic, in the sense that it's extremely broad. It is not helpful in that respect, because that leads to an overreach and then a dilution of the resources you have with respect to looking at the relevant information. If you have a mandate that's extremely broad or amorphous, the committee may not have the focus, or there won't be the confidence that the committee is focused on the issues that actually matter.

The flip side is that if you have a definition that's too narrow, it may be siloed or not able to look at other issues. This is the problem that arises with respect to.... If the information sharing act is going to continue with its very broad definition, then it makes sense to have a committee that has a similarly broad mandate. Our ideal scenario, or what our suggestion would be, is to restrict the definition in the information sharing act to an appropriate scope that would then reflect that of the committee as to what actually are concerns around national security.