Public Safety Committee on Nov. 24th, 2016

[Suzanne Legault]

Yes. We haven't detailed what that section 15 entails, but it's a very broad definition. It has multiple subsections dealing with military tactics and strategy, quantity, characteristics, capabilities, deployment of weapons. A very long list of things are included in that provision.

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

Is it fair to say that it's odd that your office would have access to all this information but a security-cleared committee of parliamentarians would not?

[Suzanne Legault]

That's somewhat the point I'm trying to make. The experience we've had in reviewing these records is that there are significant over-claims.

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

Absolutely.

You're suggesting we delete the ministerial veto power in paragraph 8(b). CSIS director Michel Coulombe testified in front of us. His example and a justification for a refusal might be that it would prejudice ongoing operations by pulling people out of the field. That makes a certain degree of sense. Would you be more comfortable with paragraph 8(b) if it were limited to a circumstance such as that?

[Suzanne Legault]

The more specific it can be, the better it's going to be. I think it would be important to recognize that the committee is also there to serve the public interest in the oversight of security agencies—and that's what I'm not seeing in the bill—and to have the possibility of the review of those decisions.

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

When we get to clause 14, your advice, I take it, would be to delete paragraphs 14(b) to 14(g), keep cabinet confidence, and also to delete all of clause 16. Is that correct?

[Suzanne Legault]

Yes.

If you want to be more surgical, I have less of a concern when we're dealing with human sources, if that remains there in protecting this type of information.

The two I have the most concerns with are paragraph 14(b), because that's very broad, and also paragraph 14(e), dealing with ongoing investigations, everything that can be excluded under the Security of Information Act, because that's—

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

Yes, though interestingly, we had Mr. Fadden before us last week, and he said you wouldn't need sources nine times out of 10, which raises the question that maybe you do need them some of the time.

[Suzanne Legault]

I agree.

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

We had the government representatives before us talking about a first step and improving this over time. I've been trying to find some middle path myself. If we don't delete all of clause 14, other than paragraph 14(a), and we don't delete all of clause 16, what does that middle ground look like?

I actually took your previous testimony at the privacy committee at heart about the importance of discretionary exemptions. If we were to move paragraphs 14(b) to 14(g), currently automatic exemptions, into clause 16, which would make them discretionary, and also require the additional criterion of “injurious to national security”—and I recognize you have issues with that as well, and you want judicial review—would that strike a better balance, in your view?

[Suzanne Legault]

It would strike a better balance, but we're still dealing with the Security of Information Act, which I think now captures everything that's in clauses 14 and 16.

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

It captures everything, and in my view it would be better than clause 14. Clause 14 is an automatic exemption. Clause 14 doesn't require reasons, and clause 14 doesn't require the additional criterion of “injurious to national security”. So it would be not perfect, in your view, but it would be better.

[Suzanne Legault]

It would be better, and it would be better if there were a public interest recognition of the work of the committee and judicial review.

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

Judicial review would be a critical element of that as well.

[Suzanne Legault]

I think so, because it would provide case law over time. It would provide some direction. It would actually act as a discipline measure in how the refusal is done.

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

And confidence in the interpretation of “injurious to national security”.

[Suzanne Legault]

Exactly.

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

Thanks very much.

[The Chair, Liberal, Rob Oliphant]

Thank you very much, Commissioner. In terms of public interest recognition in the different senses of that word, thank you for your public service both in Canada and around the world, and for what you do in taking Canadian understandings of openness of information around the world. It's very much appreciated by our committee.

Thank you both.

We're going to take a brief pause and we're going to move into an in camera business meeting.

[Proceedings continue in camera]