Evidence of meeting #45 for Public Safety and National Security in the 42nd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was records.
A recording is available from Parliament.
Information Commissioner of Canada, Office of the Information Commissioner of Canada
I would be fired for sure. I'm subject to—
Conservative
Dianne Lynn Watts Conservative South Surrey—White Rock, BC
You're governed by legislation, which is no different from what any one of us would be in terms of any breaches of information. I think that puts aside the element of partisanship and who the government is or isn't. In something like this, it has to be conducted in a fashion of trust and accountability, and governed by the necessary acts related to national security.
I do want to say that I found your report very helpful, because there is a thread that we've heard from many witnesses. Again, having someone who actually deals with the files that you deal with reconfirms what we've heard about the changes that should be undertaken if we want to have success. At the end of the day, all of us sitting around this table want to make sure we have success in terms of the oversight, in terms of the mandate and what we're supposed to undertake.
This was just a comment in terms of your giving us this information based on your expertise and looking at it and making sure we get it right. Thank you for that.
Wayne Stetski NDP Kootenay—Columbia, BC
Thank you.
I have to start by saying I found it quite a strange concept that a Liberal member of Parliament would protect information on national security better than a Conservative or an NDP member of Parliament would.
I want to turn back to the thing that started a lot of this for us, and that was Bill C-51.
Right across my riding of Kootenay—Columbia, which is located in southeastern British Columbia, in the Rocky Mountain area, there were protest rallies in many communities around Bill C-51, and a lot of it was focused on the need for oversight. Canadians truly want to have complete confidence that the committee can provide meaningful oversight over national security and intelligence, and I really appreciate the depth of the information that you've provided us today on how we can better get there.
I do have a question for you. There are many grounds on which a government may withhold necessary information from the oversight committee. Some are automatic and others are discretionary, but in all cases, the way the government chooses to interpret the exclusions is key.
Let's take one example, which is actually the least controversial of all, cabinet confidences. In February you said the following to the ethics committee when you met with them:
Under the law right now, cabinet confidences are described very broadly.... For instance, any record that contains anything that's described in the whole definition of cabinet confidence can be excluded as a cabinet confidence. In our investigations at this time, we are not allowed to see the records. We see a schedule, a brief description of the records. Without seeing any records, in 14% of the cases of cabinet confidence investigations we find that it was improperly applied....
In other words, even the least controversial exemption, if interpreted too broadly, can lead to a significant amount of information being withheld inappropriately.
What advice can you give us about the general manner in which governments interpret these types of exemptions or tests, such as being injurious to national security? In your view, would it be preferable for the committee to simply have an all-access pass, as other existing review bodies do?
Information Commissioner of Canada, Office of the Information Commissioner of Canada
Well, first, on the very specific, on the cabinet confidence, the way it is in Bill C-22, it actually refers to the Canada Evidence Act. This definition of cabinet confidence is not the same definition as we have in the Access to Information Act. The jurisprudence has actually interpreted that to include some weighing of public interest, which I think is actually good here in C-22, the way that it's referring to the Canada Evidence Act for cabinet confidences. That's better than what we have in the Access to Information Act.
As I said, I do believe that the committee needs to have access to the information to do its work. There are too many ways to preclude information from being shared with the committee for the committee to do its work. What I did recommend is if, at the end of the day, Parliament decides that it's appropriate to keep these caveats as they are here, at the very least, if there were a discretionary component in a public interest override and the possibility of having the ministerial decisions reviewed in Federal Court, it would actually provide some measure of oversight on the exercise of discretion to disclose or not disclose to the committee. At the very least that would provide a little bit of discipline in the overall scheme, which I think would improve it quite significantly.
Under the access act currently, the exemption for national security is actually a discretionary exemption. So what you have in Bill C-22 is actually more restrictive than what we have currently under our Access to Information Act. I think we should keep the same model. I mean, why not? It has worked. As I said, it has not resulted in breaches of national security information certainly in a review function of my office.
The committee is supposed to be specifically mandated to do this work. It's going to be subject to significant penalties if there are breaches of security. Parliamentary privilege does not apply to protect the members. The Security of Information Act will apply in terms of consequences. Those are very, very serious consequences. We are putting in place a scheme where the participants in this committee, the members of this committee, will have a very high threshold of responsibility with this information, so I think the flip side should be that we should provide the committee with the necessary information it requires.
If Parliament decides to keep all of these restrictions, then at the very least there should be discretionary public interest override and the possibility of judicial review. The parliamentary budget officer has the ability to get these decisions on disclosure reviewed by the Federal Court. My office has the ability to do that. It provides a good measure of discipline in the process when the decisions are made not to disclose because the participants know that it is subject to judicial review by a court. I think that would at least provide some discipline extra to Bill C-22 that might actually go some way. If the purpose is to see with experience how this unfolds, it will allow us to see how it unfolds, but it will provide the potential scrutiny of the Federal Court which, by the way, has a lot of expertise in reviewing matters of national security in the first place.
NDP
Wayne Stetski NDP Kootenay—Columbia, BC
Without putting you on the spot too much, I really do think it's important that the committee have the complete confidence of Canadians, that they will provide meaningful oversight over national security and intelligence. How comfortable are you that without the recommendations you put forward Canadians will have that sense of confidence?
Information Commissioner of Canada, Office of the Information Commissioner of Canada
I think what can possibly happen is it's very difficult when you have a statutory creature that's given a very broad mandate but not the tools to do that mandate, it's over time that the public trust erodes because the committee will be hamstrung in doing its work. It's over time that public trust will diminish. That's what I think is a likely possibility.
Liberal
Pam Damoff Liberal Oakville North—Burlington, ON
Thank you for the information that you provided to us. This chart is very helpful.
Ms. Watts was asking what the repercussions would be if something were provided to the public, and you said, “I'd be fired.” But in fact, it could be catastrophic.
I know that, on the first point in the chart, you're okay, but we'll just go to the second point, on information respecting ongoing defence intelligence activities supporting military operations. That looks different from the type of information that you're given. Certainly, if that type of information were ever to be made public in any way, it would be catastrophic. Is that the kind of information you're given, ongoing information? How often does that come up?
Information Commissioner of Canada, Office of the Information Commissioner of Canada
Currently on our inventory, we have 400-and-some files dealing with national security. We see everything that we need to see. Whenever there are requests for information, we see the full gamut of the information. However—and this is an interesting option for the committee being formed under Bill C-22—when we're dealing with highly sensitive information, we go on site to view and review the information. We don't actually take it out physically from where it is. The information doesn't leave it's location, if it is at CSIS or CSEC or wherever. As I said before, the fact that the committee would be provided with the information does not mean that the information would become public. I think it's very important to understand the distinction. For a review committee or a review body to have access to information to properly assess what it is assessing at the time—and, as I said, the mandate is very broad—it really does need to see the relevant information. Seeing the relevant information does not mean disclosing the information.
Liberal
Pam Damoff Liberal Oakville North—Burlington, ON
No, and I wasn't.... It's certainly much more than that, right?
Information Commissioner of Canada, Office of the Information Commissioner of Canada
Yes.
Liberal
Pam Damoff Liberal Oakville North—Burlington, ON
We had testimony last week that getting information on ongoing operations could be difficult for the body, whatever it might be. The witness felt that it wouldn't be necessary to get it immediately because it could interfere with what they were doing.
Do you get information real time to divert attention away from what the...?
Information Commissioner of Canada, Office of the Information Commissioner of Canada
We do. If it is the subject of a request and the subject of a complaint, we have the ability to review all the records, regardless of whether it's ongoing, not ongoing, human sources. We see all the information.
Liberal
Pam Damoff Liberal Oakville North—Burlington, ON
Okay.
I have one last question and then I'm going to share my time with Mr. Mendicino.
Clause 21 lays out how the committee is going to report to the public. If it was not given information, do you think it would be helpful if it reported the number of times it wasn't given information?
Information Commissioner of Canada, Office of the Information Commissioner of Canada
It is helpful. That's the kind of thing that would go to the issue of public trust, and it then becomes an issue of public trust for the government, as well. It will actually touch both politically and on the work of the committee. Ultimately, it is a decision for Parliament, but I think those are the concerns.
Liberal
The Chair Liberal Rob Oliphant
I'm just letting you know that you will get five more minutes on this side after Mr. Miller. You can share if you want, because sharing is good, but somewhere on this side you'll get another five minutes.
Mr. Mendicino.
Liberal
Marco Mendicino Liberal Eglinton—Lawrence, ON
Thank you, Mr. Chair.
Thank you, Ms. Legault, for your very thoughtful evidence.
I, too, have found the chart that you put before this committee to be helpful. I've also taken a look at your mandate as the Information Commissioner. Looking at section 4 of your enabling statute, as well as some other related provisions under section 30, your mandate is also very broad. You have a complaints and inquiries function. Am I right in saying that?
Information Commissioner of Canada, Office of the Information Commissioner of Canada
It's a review. We basically investigate the government's decisions on disclosure.
Information Commissioner of Canada, Office of the Information Commissioner of Canada
It does.
Liberal
Marco Mendicino Liberal Eglinton—Lawrence, ON
Essentially, as long as you're a Canadian citizen or a permanent resident, you can request, or have a right on request to be given access to any record under the control of any government institution.
Information Commissioner of Canada, Office of the Information Commissioner of Canada
Subject to exemptions.