Public Safety Committee on Nov. 29th, 2016

[Pam Damoff, Liberal, Oakville North—Burlington, ON]

I have just a quick question, because I'm not a lawyer, and a few times I wondered whether you're using a term that, because we're not lawyers or drafters of bills.... You keep going back to “entitled”. It's in here twice. Subclause 13(1) says “the Committee is entitled to have access”, and then you were just talking about subclause 15(3), where again it's “the requested information to which it is entitled to have access”.

Is there any way they can get out of that?

[Heather Sheehy]

Again, the committee is entitled.... I'm trying to find another word to use. The committee has the right—I'll use that language, though it's always dangerous language—to the information that it requests within the construct of the bill. There are clauses within the bill that limit the information—clause 14, clause 16—but other than within those constructs, the minister must give the committee of parliamentarians the information.

[Pam Damoff, Liberal, Oakville North—Burlington, ON]

Under Mr. Rankin's example, in which the committee wanted to speak to a specific person or had concerns about the information it was receiving, it says here that the minister must provide that information. Is it not, then, actually stronger than a subpoena?

[Heather Sheehy]

The bill says that the information must be provided; it does not say that a specific person must be provided. Again, if there is concern that information is not being provided that is relevant to the deliberations of the committee of parliamentarians, the committee of parliamentarians has the capacity, through its reports and otherwise, to make those concerns known.

[Pam Damoff, Liberal, Oakville North—Burlington, ON]

Okay. Thank you.

[The Chair, Liberal, Rob Oliphant]

Ms. Watts, do you have a question?

[Dianne Lynn Watts, Conservative, South Surrey—White Rock, BC]

I'm good, thanks.

[The Chair, Liberal, Rob Oliphant]

I'm going to ask the vice-chair to take the chair for a moment, because I would like to make a comment.

[Rob Oliphant, Liberal, Don Valley West, ON]

Thank you to the witnesses.

I just want to address, and have on record, the issue of trust. It is a reminder to the committee that this bill has come out of a study done by this committee in 2009 with respect to the conditions of Mr. Maher Arar and Mr. Almalki, Mr. Abou-Elmaati, and Mr. Nureddin.

The trust issue was not whether parliamentarians could be trusted with information. That was not the issue. The issue was whether our security and intelligence agencies could be trusted with the care and concerns of Canadian citizens. The trust we are attempting to engender by somehow saying that we have to build the trust of our agencies toward parliamentarians, I need to tell you, I find very difficult to stomach. I worked on this committee to present our report to Parliament regarding the need for oversight, by parliamentarians, of our security and intelligence agencies. That's the genesis of this bill. That's the first issue of trust.

The second issue of trust I think the committee needs to be aware of is that the report went to Parliament, to the House of Commons, and was concurred in, and Parliament decided that we should have a committee of parliamentarians. That did not take place throughout the whole last government. To hear at this committee that somehow the opposition needs to build trust in what the government has finally undertaken, which is to get a committee of parliamentarians to put this in place, perfect or not perfect, I need to say is a little bit rich for me after waiting for seven years to get this work done. We are ready to do it, and I think the time has come for us to do it.

That's enough said. I feel better.

[The Chair, Liberal, Rob Oliphant]

Are we ready to vote? I just need to remind you that if we vote in the affirmative on this amendment, then amendments BQ-4 and CPC-5 would not be introduced.

Right now we have an amendment from Mr. Erskine-Smith that would change the language in clause 13.

(Amendment agreed to)

We now have an amended clause 13. Shall clause 13 carry as amended?

(Clause 13 as amended agreed to [See Minutes of Proceedings])

(On clause 14)

There are many consequential activities as we go through clause 14. We will begin with NDP-6. If it is adopted, it would also apply to NDP-13, on clause 47. BQ-5 would not be moved if NDP-6 passes. I will continue like that, but let's begin with NDP-6.

[Matthew Dubé, NDP, Beloeil—Chambly, QC]

I move the amendment, Chair.

Let me say that this is, if not the key issue, certainly one of the key issues for us. It's something we've been hearing from witnesses, of course, but it's also, interestingly enough, the same language as in a Liberal MP's bill from the previous Parliament, a bill tabled by our colleague Joyce Murray—Bill C-622—and of course Bill S-220, sponsored by former Senator Segal, whom we had the chance of hearing in Toronto. Wesley Wark, whom we heard during the study, called the amendment we're proposing “an ideal scheme”.

I think it's challenging, because on the one hand we have the discretionary powers of blocking investigations and on the other hand we have this situation concerning what information is already available to begin with to the committee. We heard SIRC, for example, say that they can collaborate with the committee and that it's okay and the committee doesn't need the same powers, but the fact of the matter is that a great many bodies covered by this bill don't actually have oversight—we can think of CBSA, among others—and this committee will be the only review body available.

We can look at this narrow view of saying that SIRC already has access to this information and therefore the committee doesn't need it, but it's much broader than that, and that is certainly something we've heard from witnesses.

While I know that the process on this bill has been perhaps more difficult than we had hoped it would be, it's hard for me to envision a scenario whereby we can gain public trust as well as the trust of the parliamentarians on the committee. As well, as Mr. Rankin pointed out earlier today, while we may trust the current government, we don't know what the future holds for us. We need to get this right, and now, and I think that this full access to information is the way to do it.

[The Chair, Liberal, Rob Oliphant]

Okay.

Are there any comments?

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

I won't be supporting this particular amendment, but that's simply because I have a differently worded but similar amendment, LIB-6.

I agree that the only mandatory exclusion should be cabinet confidences, exactly as Mr. Dubé has outlined here. Subclause 14(1) is no longer necessary, in my view, because we kept that language in clause13, whereas my amendment to clause 14 reduces it to:

The Committee is not entitled to have access to a confidence of the Queen's Privy Council for Canada, as defined in subsection 39(2) of the Canada Evidence Act.

I would note that we heard from a number of witnesses, especially from the minister, that this is baby steps. Certainly the experience of the U.K. has been that they deny information when the providing of information would be injurious to national security. They have different language, but effectively that's it.

My compromise solution between the government's position and full access is to move paragraphs 14(b) to 14(g), leaving cabinet confidence in clause 14—that's the mandatory exclusion—and moving all of the other items to clause 16, which is the subject of a subsequent amendment, LIB-11.

The advantage is that, first, it's discretionary and requires the minister to give reasons, and the other advantage is that it requires not just that it be that information, but also that the provision of that information be injurious to national security, which I think is a very high bar.

As I say, then, I won't be supporting NDP-6 but will be supporting amendment LIB-6.

I will also note that I don't want to get into the uncomfortable position of individuals voting for amendment LIB-6 but then not voting to put information back into clause 16. I thus need some assurance from the other side that if you are supportive of amendment LIB-6 or amendment NDP-6—the idea of limiting mandatory exclusions to cabinet confidence—whether it's through amendment NDP-6 or amendment LIB-6, I need some assurance that we are all willing to put these items back into clause 16 under amendment LIB-11.

[The Chair, Liberal, Rob Oliphant]

Go ahead, Mr. Clement.

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

Thanks, Nathaniel, for your intervention. I can give you that assurance, certainly, on behalf of our caucus, but there are still some problems. I don't want to suggest that if that's the nature of how these votes go and then we're left with your potential amendments, that's the land of milk and honey for us, because it's not.

We're still very concerned over the ability and the authority of ministers to exclude information. We think it's quite.... I know you're trying to hem that in and I respect that, but it's still quite broad, in our estimation. It takes a strong minister to withstand the pressure from her or his department to take a certain course of action. It takes a strong minister, and I know this may sound like apostasy, but not every minister is strong. Not every minister can withstand the bureaucratic pressures that she or he is under. I'm just stating that from my own experience in life. That's where the problem lies.

Having said all of that, I'll say that sometimes one has to put a little bit of water in the wine and then hope for the best. I still support NDP-6 as a better solution. I think it's a more direct solution. When the time comes, if it comes, then certainly I would respect both of your motions as one package.

[The Chair, Liberal, Rob Oliphant]

Monsieur Dubé is next.

[Matthew Dubé, NDP, Beloeil—Chambly, QC]

Thank you, Mr. Chair.

I'm certainly not opposed; quite the opposite. I would be supportive of Mr. Erskine-Smith's amendments on the one hand, but we're not there yet. I don't want to get too ahead of myself, but there is one for which we will have a proposal for a subamendment, and we'll get to that.

I would echo Mr. Clement, in that I appreciate the effort at compromise, but it's hard for me.... It's not in terms of any particular member, but in looking at the government's vision for this bill, it's hard for me to imagine that anyone listening to the testimony we heard, with quotes like those of Kent Roach, who was saying that “full access to information” is one of several “critical criteria for success”.... For me, when we hear things like that, it's difficult to fathom that the government wouldn't recognize their importance.

Some of the stuff we've debated today might seem cosmetic, such as the election of a chair and things like that. It's very inside baseball to folks, some of that procedural stuff. I don't want to diminish the importance of those points, because we certainly still consider them essential, but access to information is what this is all about.

Unfortunately, I wasn't here at the last meeting, when we heard from the Information Commissioner, but I did read her testimony. Reading between the lines of what she was saying, I could see she was basically asking this question rhetorically: how can the committee be expected to accomplish its objectives without this full access? To think that as a parliamentarian, whether it's me or another colleague around the table sitting on that committee, we would have less access than other review bodies, I would pose the question that you would have to ask yourself: what the heck is the point?

That said, if we can take a smaller step in the right direction, I certainly won't be opposed to it, but I think it bears saying on the record that this is the heart of what's wrong with this bill. Certainly it bears mentioning today, and it won't be the last time that we mention it.

[The Chair, Liberal, Rob Oliphant]

Go ahead, Ms. Damoff.

[Pam Damoff, Liberal, Oakville North—Burlington, ON]

My question might be directed towards the chair. I listened to Mr. Erskine-Smith and I want to compliment him on what I think is a very reasonable compromise on clause 14; however, I'm being asked to remove paragraphs (b) through (g) in clause 14 before I'm voting on clause 16. I know that he was just asking that question, but procedurally how do we have an assurance that we can insert those paragraphs back into clause 16 after we've voted on it?

[The Chair, Liberal, Rob Oliphant]

We're not quite there yet. We're just at NDP-6, so once we get to LIB-6, there is no guarantee procedurally, because we have a procedure of going through....

We could stand clause 14 until we get to clause 16, and then go back to clause 14. That is a way to do it.

[Pam Damoff, Liberal, Oakville North—Burlington, ON]

If we do that, are we still voting on clause 14 first, and then on clause 16?

[The Chair, Liberal, Rob Oliphant]

Not necessarily. We can stand the whole of clause 14. Yes, we'd have to stand the whole of clause 14 and do clause 16 first.

[Pam Damoff, Liberal, Oakville North—Burlington, ON]

Okay.

[An hon. member]

But if they have their—

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

This is the central question, of course. This is what we've been debating for hours now. You have to have a certain amount of trust in parliamentarians. I just gave you my undertaking that we wouldn't vote for one and against another. We won't do that.