Public Safety Committee on Nov. 22nd, 2016

[Anil Kapoor]

Yes, I agree entirely with Luc.

Look, I've done a lot of this work, and the identity of the informant, almost nine times out of ten, is irrelevant. What's important is what information was provided and how the agency dealt with that particular person. Their name has very little value added. They could be X, or Smith, or Jones, or Kapoor.

[Nicola Di Iorio, Liberal, Saint-Léonard—Saint-Michel, QC]

We also had a Mr. Cavalluzzo who testified and he made a distinction between oversight and review. Committees such as SIRC are review committees, and he emphasized that this committee should be an oversight committee.

Mr. Portelance referred to the concept in his initial remarks. I would like him to expand on that, and then you, please, Maître Kapoor.

[Luc Portelance]

There's a lot of debate on oversight versus review. I think that a committee such as this one does not want to be in the midst of ongoing investigations to the point where are guiding the investigation and guiding and influencing decisions. I think there's a general agreement that people who are in charge should be making decisions and let things unfold, but then there's a timing issue.

Review does not have to mean a year after the fact. For instance, let's take a case such as the one Michel Coulombe referred to. If the committee wants to understand what transpired in that particular case, there's an opportunity to do it fairly quickly, but I think the idea is that it shouldn't be in real time.

[The Chair, Liberal, Rob Oliphant]

Thank you.

[Anil Kapoor]

Yes. I think a real-time oversight is really impractical. Can you imagine if you're running a police investigation and you have a parliamentarian saying to you, “Well, why don't you go get a search warrant?” In the meantime, you're trying to investigate a case. I just think it's unworkable.

[The Chair, Liberal, Rob Oliphant]

Thank you.

We need to end there.

We have one or two minutes for Mr. Viersen.

[Arnold Viersen, Conservative, Peace River—Westlock, AB]

Thank you, Mr. Chair.

Thank you to our guests for being here today.

Mr. Kapoor, I was interested in the fact that right at the very beginning you talked about the value of this committee, and particularly about how it would re-engage Canadians and restore their trust. Could you talk about that a bit more, particularly in terms of trust in the RCMP? You more or less alluded to that trust having been eroded. Where do you get that information from? How do you see this committee improving that situation?

[Anil Kapoor]

In terms of the RCMP, there are any number of cases. We just had this whole problem, I suppose, of the settlement coming out of the sexual harassment. Also, there are other instances in which the RCMP has had difficulty.

I think there wasn't one particular instance, but a general feeling, and I think this committee can provide efficacy. It can actually reassure Canadians.

I'll give you an example. Let's say that some event happens and people are wondering how it happened. When the committee issues its report and says that everything was in place and that there was no way it could have been prevented, that goes some distance, right? It isn't always a bad news story. There could be circumstances in which somebody was intercepted, arrested, and convicted. A report can come out indicating how well the agencies transacted, which can also provide confidence.

I do think there needs to be a public role for the committee. Our current review committees have no public role.

[Arnold Viersen, Conservative, Peace River—Westlock, AB]

One thing I know is that if you can't measure it, you can't manage it. Is there any template out there that is currently measuring Canadians' trust in the RCMP?

You cite some cases in which the trust has been eroded, and I wouldn't deny that, but how do we know that Canadians' trust has gone down or up because of those cases? If we're bringing in this committee to re-engage that trust, is there a measurement of Canadians' trust in these institutions that we can use to say, “Hey, we've brought in this committee and now Canadians' trust in these institutions is going up”?

[Anil Kapoor]

I don't know of any metric by which you're going to do it. Pollsters are routinely getting everything wrong, so I don't think they're the answer. I would say, though, that there is a concern. If there have been spectacular, publicly renowned instances of problems with the agencies, I think our assumption has to be that there's going to be some erosion.

I should also say that this committee's role isn't only that. They also have a value-added role to the agencies themselves, but the knock-on effect is, I think, to provide public confidence. Maybe that's a better word than “restore”.

[The Chair, Liberal, Rob Oliphant]

Thank you.

I think we need to end there. We're going to take a brief moment to recess while we change panels.

Thank you very much for your testimony today.

[The Chair, Liberal, Rob Oliphant]

We'll resume.

We're just getting our other witness available by video conference. Normally we begin with the video conference witness, just in case something goes wrong.

Can you hear me?

[Peter Edelmann, Executive Member, Immigration Law Section, Canadian Bar Association]

I can hear you.

[The Chair, Liberal, Rob Oliphant]

We can hear you too, Peter Edelmann. That's very good

We're going to start with Mr. Edelmann, from the Canadian Bar Association. We'll hear from him for 10 minutes and then turn to Mr. Fadden.

You are invited to give your address to the committee members now. Thank you.

[Peter Edelmann]

Thank you very much.

The Canadian Bar Association is a national association that represents 36,000 lawyers, notaries, law professors and law students across Canada.

The association's main objectives are to improve the law and the administration of justice. The brief provided to the committee was prepared by the sections of immigration law, criminal law, consumption tax law, customs and trade law, military law, as well as the CBA national privacy and access law section.

As you can see, the large number of Canadian Bar Association sections involved in preparing this has to do in large part with the broad scope of the concerns around national security in the legal context. We are generally supportive of the creation of a committee of parliamentarians dealing with national security review and oversight; it is important to understand it in the context of the overall framework and the existing framework.

There are still some major holes or problems, and a lot of those discussions are happening in the context of the green paper. It's a bit difficult, in some ways, to comment on the current composition of the committee without being privy to the overall vision for the framework of the national security oversight mechanisms.

The role of the committee would be twofold, and what's important with respect to both these aspects [Technical difficulty—Editor] the representatives who are on the committee in terms of the parliamentarians themselves. The second aspect is with respect to the institutional framework. Given the fact that parliamentarians are neither long-term experts—or that not all members of the committee would be long-term experts—nor would they be full-time in dealing with review, the creation of the institutional aspects of the parliamentary review committee are obviously important. It will be important that it be properly funded as well in terms of being able to provide the institutional knowledge and ability going forward.

I'll have comments both with respect to the mandate and with respect to the tools that are available to the committee.

With respect to the role of the committee, the role of having the parliamentarians in place would be for the higher-level and broad issues within the national security infrastructure in terms of policy and law. It would be very difficult, in our view, for the committee to get involved in the minutiae of complaints or of specific items with respect to the individual agencies. Thus, it continues to be important that the individual agencies that currently do not have independent oversight.... The Canada Border Services Agency is a good example of that, in which we have a very large law enforcement agency that's very heavily involved in the national security context, with no oversight whatsoever outside of the ministerial chain of command.

Also, with respect to the co-operation amongst those agencies, we've seen a broad expansion of the sharing of information between agencies, in particular with the information sharing act that was brought into law with Bill C-51, which has increased the co-operation in information sharing between the agencies, but we continue to see the restrictions on the ability of those agencies to communicate with each other.

In this piece of legislation, we also see a continuing of that siloing effect, in the sense that the committee is not able to share information with the oversight agencies that they would not otherwise have access to. This again creates a problem, where the committee may be aware of things that might be relevant to SIRC, but if that wouldn't otherwise be available to SIRC, the committee is prohibited from telling them about it.

There are some concerns with respect to how the overall framework is going to work and how this fits into it. We are happy to continue to be involved in providing commentary and assistance in developing that framework, but with the information we currently have and the current framework we're working with, we have some concerns with the bill.

The first is with respect to the mandate. We have a reference to “national security” in the mandate, but it's not clear which definition of national security is being referred to or what the scope is. There are two in particular, the one that we see in the CSIS act, which is used quite broadly in other national security-related issues, and then the one in the information sharing act, which is significantly broader. It's unclear which scope of national security the legislature or the drafters have in mind as to whether or not it's the broader one. Presumably, it is, but some clarity on that aspect would be helpful, although you have our comments on the information sharing act where we had concerns about the overbreadth of that definition of national security and the reasons why that's problematic.

There's a second issue with respect to the mandate. Having a clear mandate in terms of having a committee of parliamentarians is a very important mechanism to provide confidence. When we're dealing with the national security context where a lot of things happen in secret and are not accessible to the public, it is important that the public have confidence that the committee actually can and will do its job. We have comments on the composition and functioning of the committee, but I won't belabour them. I'll refer you to our written materials on that basis.

With respect to the the ability of the committee to undertake studies, clause 8 provides some unnecessary restrictions and gives a great deal of control to the ministers in paragraphs 8(b) and 8(c). In other words, on the broad legislative policy issues that are set out in paragraph 8(a), there doesn't appear to be any restriction, but paragraphs 8(b) and 8(c) would appear to create significant control by the ministers over the topics or issues that the committee could look into. It's unclear to us why those would be necessary. In fact, they should be deleted.

The other aspect of the work of the committee that is of significant concern is the access to information that the committee will have. These problems arise in both clauses 14 and 16 of the act as currently drafted.

I won't go into the individual paragraphs of clause 14, but it's unclear why, on the one hand.... Either there's trust in the committee.... It's clear—there's no question—that there does need to be trust in the committee, both from the public side and from the national security establishment or the people who are involved in doing national security work. If there's no buy-in, for lack of a better term, from those agencies and from the people working for those agencies, obviously the committee will be hampered in its work. But with clarity in terms of its mandate, if there's trust in the committee and the structure itself, it's unclear why these types of limitations on access to information are necessary or even desirable, because either we have a committee that can be trusted or we don't. If it cannot be trusted, it shouldn't be doing this work at all, and if it can be trusted, then the restrictions only serve to undermine the confidence of the public in what the committee can and cannot do, as the ministers have a great deal of control both over the mandate and the topics, but also over the information that the committee might be able to have access to.

With that, I think I've used most of my 10 minutes. I'm more than happy to answer questions. I thank you for your invitation.

[The Chair, Liberal, Rob Oliphant]

That's perfect. Thank you very much, and you will get questions, I know.

Mr. Fadden.

[Richard Fadden, As an Individual]

Thank you.

Thank you very much for having me here today. I'm particularly happy to be able to talk about a topic that I've thought about over the years.

I think the time has come for an effective role for Parliament in national security matters. Although this new role may not guarantee full public confidence in national security, I suspect that, along with the review bodies, the courts, and the media, Canada will be well on its way.

I would state unequivocally that substantive public confidence in the work of the national security entities is necessary if their work is to be effective. This is not only necessary for the public and for Parliament. If the national security agencies do not have the confidence of the public, then they can't do their work either, and this bill really should help.

Broadly speaking, I think Bill C-22 is a good document. To put it in different terms, if I were one of you, I would have quite happily voted “yea” at second reading.

Having said this, I have a couple of comments. Based on my time both as someone who has worked in national security and as someone who has worried about accountability issues and machinery-of-government issues, at the meta level I would argue that what's needed is post facto review, not the ongoing oversight of national security operations. We sometimes forget that oversight is characteristic of the United States' system of governance, and we shouldn't adopt it here lightly. It's not something that we do commonly in Canada, and just because the Americans do it doesn't mean that we should adopt it.

Clearly, now the work of the committee would extend to operations. I would note that it's not the case in Australia. Also, in the case of the United Kingdom, it took them several years before they gave their equivalent committee access to operations. My advice would be, let's take it slowly and see how the committee does.

To put this into context, the only people in Canada who really know a great deal about national security are ministers and officials. It's a very complex and complicated area. It seems to me that to ask a committee to start off by doing everything from legislation to operations is taking a bit of a risk. I would argue that, to the extent that you allow the committee to carry on in operations, it would be helpful to have some sort of declaration, which says that it should not do so in a way that would interfere with the effectiveness of the work of the various committees.

The bill retains the review bodies and also retains the role of the courts. I appreciate that the burden would vary between the three and four core national security agencies and those who are involved in the periphery, but I do want to suggest that it's worthwhile thinking about the burden that is imposed. The national security departments and agencies exist to promote national security, not to provide opportunities for oversight, review, evaluation, and audit. I'm making a bit of a joke of it, but it's not all that funny when you have a multiplicity of bodies all looking at the same thing, sometimes at the same time.

I think it would be worthwhile if the committee were to consider providing additional guidance in the bill to the committee and the review bodies on the nature of their relationship. If I recall correctly, even Mr. Goodale, when he spoke to you, suggested that this was a potentially problematic area. The bill could say that the review bodies' annual reports are to be tabled in the committee, that the chairs of those committees are susceptible to being called before the committee, and that there be a requirement that the work programs of everyone are to be shared with everyone else.

I make this point in part because over the years I've had a fair bit to do with statutory officers. They tend to take their statutory duties fairly seriously, and a general injunction to co-operate, even with full good behaviour and good intent, may mean that there will be difficulties in the relationships between the review committee and the bodies.

My last point relates to the protection of “special operational information” as it's defined in the Security of Information Act. The bill says that the minister may refuse to disclose such information. I would argue that special operating information, a large chunk of which comes from our allies, is so sensitive that the protection should be reversed and that it should only be released with the specific authority of the minister. It's not so much information about what is being done; it's often information on how things are done, in terms of technical information. I'm not sure the committee would need this all the time.

In any event, it's important that the committee, as previous witnesses have said, has not only the support of Parliament, the public, and the agencies, but also that of the allies. We need to make sure that organizations in countries with which we share information are absolutely certain that this is a reasonable bill and that their information will be protected.

As I said at the beginning of my remarks, I think this is generally a good bill. It will benefit not only Canadians but the national security departments and agencies.

I hope my comments are helpful. I'd be glad to try to answer any questions you might have.

Thank you.

[The Chair, Liberal, Rob Oliphant]

Very good.

Thanks to both of you.

Mr. Erskine-Smith.

[Nathaniel Erskine-Smith, Liberal, Beaches—East York, ON]

Thanks very much.

I'd like to begin, Mr. Fadden, with access to information. You mentioned a bit about it at the end with regard to clause 16.

Obviously the CBA has their submissions, but in fact, the majority of testimony we've heard has focused on the triple lock and the inability to have fulsome access to information. I specifically wanted to mention SIRC. The testimony of SIRC before this committee was that they have access to everything other than cabinet confidences. In your experience, why would this committee have differential access than SIRC has? What would be the justification for that?

[Richard Fadden]

I think basically it would be because, Mr. Chairman, the committee of parliamentarians and SIRC have somewhat different mandates. If you look at the CSIS act and the mandate that is provided to SIRC, it really directs it to detail, to making sure that its ongoing operations are lawful and to a variety of other things.

My colleague from the Canadian Bar Association was saying that it's not entirely clear what the mandate of the committee is. The way I interpret the bill is that it will have a broad overarching review of all of the activities in the national security area, which would not require the same level of detailed access. If it had the same access, would the world come to an end? No, I don't think so—

[Nathaniel Erskine-Smith, Liberal, Beaches—East York, ON]

I tend to agree with you. Look at paragraph 8(a). That's efficacy review and broad strokes looking at how different agencies are working together and how review agencies are all working together. There's more horizontal access for this committee than other committees. If you look at paragraph 8(b), you see that it mentions “any activity carried out by a department that relates to national security or intelligence”. There may be a situation where a public inquiry is called for and this committee would want to undertake that inquiry and get into the nuts and bolts of it. Don't you think that clauses 14 and 16 would impede that?

[Richard Fadden]

Yes, I think so. It's one of the reasons why I think the relationship between the review bodies and the committee needs to be clarified. I think there's something to be said for the committee of parliamentarians to have the authority to mandate SIRC, for example, to do a review on behalf of the committee. In duplicating all these detailed reviews, at one level I can understand the value, because you bring a slightly different perspectives to bear, but I think we should have some pity on the bodies that are being reviewed. At some point, there's going to be too much.

Whatever can be said about SIRC, they're very good at getting a grip on what's going on in detail. I would argue that it would be worth considering having them do these reviews on behalf of the committee of parliamentarians.

[Nathaniel Erskine-Smith, Liberal, Beaches—East York, ON]

Though for SIRC, they came before us and they are masters of their own domain. They determine what they're going to do regardless of even what the minister asked them to do, unlike this committee. There may be situations where the committee undertakes to do something, and clause 9 does suggest that there won't be duplication and that they will establish trust and a working relationship.

We had Mr. Portelance before us from a security perspective, who suggested that in collaboration this differential access to information might actually impede that collaboration. Do you think that's fair to say?

[Richard Fadden]

I think it is. I was sitting in and listening to part of Mr. Portelance's conversation with you. It seems to me that if there's one thing that oversight or review would benefit from, it is a clear understanding that the committee and the review bodies can share information both ways.

[Nathaniel Erskine-Smith, Liberal, Beaches—East York, ON]

If SIRC has fulsome access to information and this committee does not, SIRC may be constantly wondering what information they can share with the committee.