Public Safety Committee on Nov. 24th, 2016

[Marco Mendicino, Liberal, Eglinton—Lawrence, ON]

Subject to the exemptions that are enumerated later in the act.

There is no complaints or inquiries function currently listed within the mandate of Bill C-22. Am I right about that, as well?

[Suzanne Legault]

That members of the public could complain to the committee—

[Marco Mendicino, Liberal, Eglinton—Lawrence, ON]

Right.

[Suzanne Legault]

—under Bill C-22? Not that I can see.

[Marco Mendicino, Liberal, Eglinton—Lawrence, ON]

Okay.

When looking at paragraph 8(b), it says that the mandate of the committee is to review:

(b) any activity carried out by a department that relates to national security or intelligence, unless the appropriate Minister determines that the review would be injurious to national security;

There are two parts. One is that, obviously, there's some ministerial discretion involved there. The other is that the activity has to relate to national security or intelligence. It does not say that it would have to relate to national defence. Am I right?

[Suzanne Legault]

That would probably be included in there.

[Marco Mendicino, Liberal, Eglinton—Lawrence, ON]

Okay, but it is not in the language that we have before us in Bill C-22.

[Suzanne Legault]

It depends what you mean by “national defence”.

[Marco Mendicino, Liberal, Eglinton—Lawrence, ON]

As it is defined under the National Defence Act.... That phrase is not used under paragraph 8(b), nor is “international affairs”.

I guess what I—

[The Chair, Liberal, Rob Oliphant]

I'm afraid I need to end it there.

[Marco Mendicino, Liberal, Eglinton—Lawrence, ON]

I would just like to be able to ask one more question.

If what we are talking about is just the mandate under 8(b), there is, it seems to me, some definition of what the domain of that information is. That's national security or intelligence. Is that fair?

[Suzanne Legault]

That's what I am reading there, yes.

[The Chair, Liberal, Rob Oliphant]

Thank you.

Mr. Miller, it's a five-minute round.

[Larry Miller, Conservative, Bruce—Grey—Owen Sound, ON]

Thank you, again. There are two things here, Ms. Legault.

You made the statement earlier, and these are your exact words, that, first, “there should be no ministerial override of the committee's review function”—nada, zero.

Obviously, that isn't the intention of the government here, as you correctly point out. Should that include the Prime Minister?

[Suzanne Legault]

I think so.

[Larry Miller, Conservative, Bruce—Grey—Owen Sound, ON]

Again, under the worst-case scenario, what would be your biggest concern as Information Commissioner, if that isn't changed?

[Suzanne Legault]

It just seems to me that there could be a political decision to refuse to disclose information to the security committee. If that is the wish of Parliament, then that's what will happen. In my view, that is going to undermine the work of the committee. That's my own personal view. That's why I am here testifying. Obviously, the legislators are going to decide what they want.

At the very least, if there is a decision such as this.... The difficulty is making a determination that something is injurious to national security. The experience that I have is that this is over-claimed. That's the worry. If that remains, then there should be some assessment of whether or not it is in the public interest—notwithstanding that disclosing information could be injurious to national security—to have the committee, in its oversight function of security agencies, get information in order to do its work, and that decision should be reviewable in Federal Court.

Then it becomes a question of whether the decision of the minister involved was reasonable under the circumstances. That seems like an appropriate discipline to put into a scheme like this. As I said, the Federal Court does have a lot of experience in terms of security matters. It would be a fairly simple way to amend this bill in order to provide a little more discipline and oversight in the decisions to not disclose information by the various actors here.

[Larry Miller, Conservative, Bruce—Grey—Owen Sound, ON]

Your worry here is about a political decision versus—not to put words in your mouth—a practical decision. Just so we get an understanding of what could happen, can you think of a situation, going back as many years as you want, where a bad political decision that was made may have jeopardized something?

[Suzanne Legault]

I think the example that we have—and I am sure most of us will remember—was when the parliamentary committee wanted to review the situation of Afghan detainees. That led to Speaker Milliken's ruling. I think that was a very difficult time. This was an ongoing national security and national defence issue, a military issue. At the same time, grave concerns were expressed by many involved, in terms of what was happening with the treatment of Afghan detainees. There was significant resistance to providing information, based on cabinet confidences, national security issues, and so on.

The question becomes, was it something that was appropriate for parliamentarians to be able to scrutinize at the time? Eventually, a means was found in order to properly do this work.

That's a very recent example of something that I think would have seen the weighing of the national security interests and the public interest at play.

[Larry Miller, Conservative, Bruce—Grey—Owen Sound, ON]

I have one last issue. You talked earlier about the concern you had with in camera meetings. This has come up in testimony at previous committee meetings.

Going back to my days on municipal council, and I know Ms. Damoff and some.... Very few meetings ever start in camera. You have a council meeting, but from time to time, whether it's personnel or whatever, the committee moves to go in camera and then comes back out after the issue has been dealt with. Is that not a way in camera meetings and your concerns with them could be addressed? Would you agree with that?

[Suzanne Legault]

I think that's a very easy fix in the legislation.

To say meetings are to be held in private.... The bill should probably have the open court principle and open by default in mind and say that meetings should be held in public except in those.... I think it's more of a perception as well for the functioning of the committee and the transparency around the committee.

I think that's quite an easy fix. It's a question of giving the public the perception that whatever can be conducted in public will be. I think it's just a reversal of language here.

[The Chair, Liberal, Rob Oliphant]

Thank you, Madam Legault.

The last questioner is Mr. Erskine-Smith, for five minutes.

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

It's nice to see you again today.

I want to start with national defence.

My understanding, sitting on the privacy committee, and you've attended before us, is that when someone makes an access to information request related to national defence, they're entitled to it, but there's a discretionary exemption for national defence. Then you would review that information to make sure it is an appropriate refusal in accordance with a national defence matter. In reviewing that discretionary exemption, you would be entitled to review all this information. Is that correct?

[Suzanne Legault]

Yes.

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

You have significantly more access to information specifically on national defence, but also on almost every other item in clause 14, than the committee would.