Public Safety Committee on Nov. 22nd, 2016

[Richard Fadden]

True enough, but that's often the case in this area.

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

Fair enough.

To the CBA, I was a bit worried about one of your comments about access to information. You noted:

The Canadian Bar Association opposes passage of Bill C-22 if it contains section 16, and recommends that section be deleted.

Clause 14 seemed to me to be a more worrisome clause, because it doesn't allow for any discretion to be exercised by the minister and doesn't have any additional criterion that would require the disclosure of the information to the committee to be “injurious to national security”.... It was mandatory.

We can look at the U.K., hearing from the ministerthat this committee is largely built on the U.K.'s experience. The minister does have discretion to veto providing information to the committee where it's sensitive information and where the provision or disclosure is deemed to be counter to the interests of national security.

I wonder if you could perhaps speak to why you're so worried about clause 16, and why the additional criterion of “injurious to national security” and the discretion that the minister would exercise—hopefully rarely, akin to the U.K.—is so worrisome. Why would you opposed the bill if it's not removed?

[Peter Edelmann]

In regard to the concerns we have in terms of information sharing, I think a number of the concerns were raised by Mr. Fadden as well. The committee itself would presumably be trained and take quite seriously the practices of security clearances in terms of saying that they would only request or want information on a need-to-know basis. The question is whether or not a committee can be effective when there is a veto power by the ministers.

What would be a much more effective process would be to say that if the minister has concerns that information shouldn't be shared with the committee, because of the impact on allies or because of the impact on ongoing operations or whatever the situation might be, those concerns can be communicated to the committee as to why the committee doesn't need to know these things or does not need to know them right now or at this particular or with respect to the study they're doing—

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

I'm sorry. I only have a minute left, so if could, I'll jump in.

Should we be that worried about a minister having veto power, where the committee, as Minister Goodale said, can use the report itself as a bit of a bully pulpit if the minister repeatedly refuses information? If the provision of information to a secret committee would be injurious to national security, that seems to me to be a very high bar: where the provision of information in and of itself to the secret security-cleared committee would be injurious to national security....

Clause 16 in fact doesn't worry me nearly to the extent that clause 14 does. I wonder if you could comment on that.

[Peter Edelmann]

I think clause 14 is of some concern. One of the things it had where there had been some discussions was whether or not the two parts.... Right now, the way clause 16 reads is that the two aspects of it are conjunctive. In other words, they both have to be in place for—

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

That allays my fear to a great degree.

I'm sorry, but I only have a few seconds left, and I wonder, Mr. Fadden, if you could comment. If we were to move paragraphs 14(b) to (g) into clause 16 to require that where that information is refused, it would be the additional criteria of “injurious to national security”, would that be a fair compromise in striking a balance?

[Richard Fadden]

In my view, yes.

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

Thanks very much.

[The Chair, Liberal, Rob Oliphant]

Thank you.

Mr. Clement.

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

Thank you, Mr. Chair.

Thank you, gentlemen, for participating in this.

I want to go over some ground and make sure I understand your depositions correctly.

Maybe I'll start with you, Mr. Fadden. I detected a certain amount of reticence in your remarks in regard to some of the risks associated with having a committee of parliamentarians. In my mind, however this committee is composed after the amendments pass or do not pass—it's all in the future, so we don't really know—presumably a party's leadership is going to want to have individuals who are worthy enough to be sworn into the Privy Council. Presumably, there's going to be some sort of swearing in at the Privy Council so that you can be given secrets. That's how we do it in our system.

You are talking about people who are likely to be—and I think invariably will be—people who are trustworthy, who are honourable members, and who want to represent Canadian interests appropriately. I guess I'm trying to reassure you that the risks associated with that are as low as when CSIS hires somebody and sometimes they turn out to be Snowden—unfortunately. Am I running this analogy too far, or do you see my point of view as well?

[Richard Fadden]

I see your point of view. I simply take the position that there are some limited categories of information, and when it is not absolutely necessarily for anybody—be it a parliamentarian or anybody else—to have them in order to discharge their functions, then they shouldn't have them. Witness protection is one. Information relating to informants is another.

I really assume that whoever is appointed to this committee will do so in good faith—they'll swear the oath and whatnot—but it does mean that there will be eight more people, their staff, committee staff, and I can keep going on.... In order to be able to serve the committee, these various agencies are going to create secretariats within themselves, which will also have information being shared when it would not necessarily have been the case.

I want to be clear. I'm not talking about general information. I'm talking about very restricted information: informants, military operations, and, in my view, special operating information. The minute you give access to one person, you are in fact giving access to five or six people in this town, just in practical terms.

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

Well, not necessarily. I'll give you an example from when I was the president of the Treasury Board. We had all sorts of secret information, sensitive information about various government departments, but there were times when we had to deal with supersensitive information.

At those times, the packages of information were not circulated to the staff of the ministers of that committee. They were available when we showed up. We kicked out every member of the secretariat except for the deputy minister, and we had the discussion in camera. Once the meeting was over, all of the documents were returned, and there was no other record that was available to the cabinet members who were members of the Treasury Board.

There are ways of doing this, which are reasonable and responsible, to allay that particular concern you have.

[Richard Fadden]

I agree with you, and again, I don't think the world is going to come to an end if your view prevails over mine, but in the case of the Treasury Board, those circumstances where you had those ultra-secret bits of information were relatively rare. It was easy to put into place these very special circumstances.

If this committee does its job properly, it's going to need them rather more frequently. It's going to need to have some measure of archives or something to keep an eye on what they have done and where they're going. I am simply expressing the preference for less rather than more. I do think, though, that generally speaking, with the exception of clauses 14 and, I guess, clause 16, if I had my way, they should get everything else.

I've worked in this area for a couple of decades. Rare were the opportunities, when one of the review bodies really wanted information, that the responsible minister or agency wasn't prepared to make it available. In particular, in this case, when the committee can make a public issue of non-provision, it seems to me that it's a balance.

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

True enough.

Do I have time for a question to Mr. Edelmann?

[The Chair, Liberal, Rob Oliphant]

You have two minutes.

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

I just want to tease out some of your testimony as well. You said at one point that the committee obviously will be operating mostly in secret, almost exclusively in many cases, but that the public has to have confidence that the committee will do the job. It struck me that this is a good construction of it. The public is not going to know what the committee is doing most of the time. It will be issuing reports. At that point, there will be something public. In terms of month to month, or what have you, the veil cannot be pierced.

The structure of the committee, or the architecture of the committee, to use your terminology, is very important. If the public doesn't have confidence in it being a true representation of the public interest, then there's really not much point in having the committee. I don't mean to put words in your mouth, but is that what you meant when you uttered that phrase?

[Peter Edelmann]

I agree very much with that statement in terms of saying that the very purpose of the committee is to provide confidence that there is oversight and that there is review.

Because it happens in secret, the only thing we can see, from the perspective of the public, is what those structures are. When we're dealing with structures that have significant control and limitations that are in the hands of the ministers, or in other words, in the hands of the very people the committee is being designed to provide review and oversight of, the very point of having the committee is to say that we need to have some oversight outside of the executive, and this is oversight of the executive.

The relationship between the committee and the executive is an important mechanism. In this context, the information sharing is crucial, both in terms of the mandate and the topics the committee can look into, and also in terms of the information they have access to.

[The Chair, Liberal, Rob Oliphant]

Thank you.

Mr. MacGregor, welcome to Public Safety and National Security.

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

Thank you, Mr. Chair.

I hope the committee will bear with me. I'm trying to impersonate Mr. Rankin here and deliver the questions he's left with me.

[Voices]

Oh, oh!

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

Mr. Fadden, I'm going to start with you. I want to follow up on the exchange you had with Mr. Erskine-Smith.

As you said, public confidence is key. To clarify your answer to Mr. Erskine-Smith, just imagine a scenario in which a foreign terrorist carries out an attack in Canada. We have a detailed investigation, which is called for, into the failures or the gaps that allowed the incident to occur. SIRC could examine CSIS's conduct, but only this new committee could look at the Canada Border Services Agency.

Is it your testimony, then, that clauses 14 and 16 could undermine the committee's ability to conduct a fulsome and detached operational review to the standard necessary for public confidence?

[Richard Fadden]

That, Mr. Chairman, is quite the question.

I start from the premise that, except for the three or four core national security entities, all of the others that are listed in the annex to the act do national security part time. I think that's an important thing to keep in mind. It means that the committee of parliamentarians will only be nipping in and nipping out of CBSA, because a large chunk of what they do has absolutely nothing to do with national security.

I think I said during my remarks that I believe that one of the shortcomings in the current bill is that it doesn't provide for a full exchange of information between the review bodies and the committee of parliamentarians. I think that if you, the House, and the Senate eventually put in a provision ensuring that, clauses 14 and 16 don't become so important. It means that the committee can utilize the existing review bodies, which have full access across the board. Someone I think made reference to Bill C-51 and the sharing of information. As long as information is being shared and originates from one of the core national security agencies, I think the review bodies and the committee of parliamentarians should have access.

That's sort of a roundabout answer, because I don't think there's a perfect answer to your question.

After the Bibeau incident on Parliament Hill a while ago, three or four police bodies did enquiries and investigations. None of them were really made public. A committee of Parliament didn't really look at them. The situation is somewhat analogous. A lot of this stuff can be looked at in camera—I think, anyway—not even in secret. I think there's an important distinction to be drawn. When something happens in public, a lot of what happens and the response by various agencies can be looked at without people being sworn to the level of top secret. I don't think it's as large a problem in the circumstances that you set out as it might be if you were talking about espionage or the proliferation of nuclear weapons, for example.

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

Thank you.

Under the National Defence Act, the CSE commissioner currently has an obligation to inform the relevant minister and the Attorney General of Canada of any activity that he or she suspects not to be in compliance with the law. Do you see any harm in the committee of parliamentarians expanding this whistle-blowing duty to other departments and agencies?

[Richard Fadden]

No. I think the committee should organize itself in such a way that for anyone who believes that for a department or agency working in national security and is aware that the law has been violated, there should be a means of providing that information. I wouldn't call it whistle-blowing, because it's a slightly different construct, but no, I think that the responsible minister, the Attorney General, or the committee should be made aware.

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

I apologize if this is a repetitive question or if you have already testified to this.

Michel Coulombe appeared before this committee. Both he and the director of the CSE testified that they've never been uncomfortable with the information they've had to provide to their respective expert bodies or the level of access those bodies have. Do you share that view? Have you ever had concerns about SIRC's level of access?