Public Safety Committee on Nov. 29th, 2016

[The Chair, Liberal, Rob Oliphant]

We have a comment just before we move on to Ms. Damoff. Go ahead, Ms. Sheehy.

[Heather Sheehy]

I would just clarify that the approach in the bill only restricts members' immunity under parliamentary privilege. If they disclose classified information that they have received through their participation on the committee of parliamentarians, it does not restrict. Just to be very clear, it does not restrict their parliamentary privilege for other matters. It is only related to information that they have received through their participation in the committee.

I should also say, if I could, that it would not limit members' ability to draw perceived deficiencies in government performance to the attention of Parliament, as long as they did not reveal the details of that classified information.

[The Chair, Liberal, Rob Oliphant]

Okay.

Ms. Damoff is next, and then Mr. Dubé, and then Mr. Erskine-Smith.

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

I'll be very brief, but I think without this clause in the bill, the committee will not get any information. I have the utmost respect for parliamentary privilege and its importance, but if someone were to stand up in the House and say something, it would be too late by then. You can't take it back once it's public. I just think you will completely limit the information that's shared with this committee if this clause is not left in there. You're going to completely gut the bill itself.

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

Chair, I'm just seeking some clarity. I know we're public, so I don't want to go too much into what we discuss in committee business, but is this an open-ended meeting, or are we just going until clause by clause is over, because I see they're arriving with food?

[The Chair, Liberal, Rob Oliphant]

I did mention at the last meeting that notwithstanding a vote, we would attempt to go through clause by clause, because we have another meeting scheduled. I'm not going to be insensitive to human needs, and my hope is that we would go now until the bells ring, because we were asked to be in this building in case there was a vote. We're in this building, so we may be able to stay a little longer once the bells start ringing.

It's a 30-minute bell, and we do have supper. I was seeing how far we would get, how the tone was, and those kind of things, but I'm hoping we can push on, because we're getting through the bill.

[Nicola Di Iorio, Liberal, Saint-Léonard—Saint-Michel, QC]

Mr. Chair, do you include heating in the human needs you're talking about?

[Some hon. members]

Oh! Oh!

[The Chair, Liberal, Rob Oliphant]

Yes, heating too.

[Nicola Di Iorio, Liberal, Saint-Léonard—Saint-Michel, QC]

I would be grateful if you would consider this need in this room.

[The Chair, Liberal, Rob Oliphant]

What do you say, Mr. Clerk?

You can look into it. Maybe we'll get some sweaters.

I have Mr. Erskine-Smith and Mr. Mendicino on the amendment from the Green Party.

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

I think Ms. Sheehy's evidence is pretty compelling. It's very much limited to disclosing state secrets that they've learned through the committee. You're not going to get trust from the agencies and the committee is not going to effectively do its job. There's narrowly a limit to that. I think we should move on.

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

Expand it a bit so that it's very clear when you read it and we don't have to have this discussion about what it means. Why should we...?

The language in there should be very clear.

[The Chair, Liberal, Rob Oliphant]

As Mr. Clement really appropriately put out, because this is a public record, our discussion here will inform it. It is a strange thing, but testimony in our hearing as to what was in our minds when this bill was passed at committee stage could be used even in a court of law if it needed to be. This is a note to drafters in the future that it would be helpful, but I think our committee has done its work.

I know, Mr. Mendicino, that you wanted to speak, but I have a feeling we've reached something on this. We have an amendment from the Green Party, and I just want to see how many are in favour. Are you in favour of the amendment carrying?

(Amendment negatived)

(Clause 12 agreed to)

(On clause 13)

I'm going to try to plow through clause 13. My goal was to get to clause 13 before the vote, so I'm right on schedule.

We have three amendments for clause 13. NDP-5 is the first one. Would you like to present that?

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

Yes, Mr. Chair, I am proposing the amendment.

I will leave it to my colleague Mr. Rankin to present it.

[Murray Rankin, NDP, Victoria, BC]

Thanks, Chair.

I guess this is pretty straightforward. In our view and the view of most witnesses who dealt with this issue, the committee lacks a very basic power, namely the power to compel witness testimony and the production of documents. Both the CSE commissioner and SIRC have that power. Indeed, this committee would have had that power, but as Ms. Sheehy pointed out, we're not a parliamentary committee. Since the committee we're creating here is not a parliamentary committee, it doesn't automatically inherit the powers of a parliamentary committee. We need to specify this very basic power.

My amendment to grant the power is supported by Craig Forcese, Kent Roach, and Ron Atkey, who testified, as well as others. If we don't pass this amendment, then we're forcing the oversight committee to rely entirely on requests to government minsters as their sole channel for getting information. In my view, as well as that of Messrs. Forcese, Roach, and Atkey, that places much too much power in the hands of the government of the day and undermines the faith Canadians would have in this new committee.

Lastly, Mr. Chairman, I note that this power is necessary on its own merits, regardless of the decisions we take in a few moments on amendments to the committee's access to information, proposed sections 14 and 16. To be clear, it is not inconsistent for the committee to fall short of unrestricted access to information and have the power to call and hear directly from witnesses.

Mr. Atkey said this, when he talked about the power to compel documents and testimony:

This may be necessary where public servants are reluctant to respond to reasonable requests by the committee, or in situations where private sector individuals have particular knowledge about a security activity being carried out by a particular department

For those reasons, Mr. Chair, I think this is perhaps an oversight, but I think it's necessary for us to correct this deficiency.

[The Chair, Liberal, Rob Oliphant]

Mr. Di Iorio is next.

[Nicola Di Iorio, Liberal, Saint-Léonard—Saint-Michel, QC]

Mr. Chair, the amendment proposed by my wise colleague and the remarks that he is making have made me prick up my ears. I must tell you that I, myself, have given much thought to this issue and that I was inclined to propose an amendment like this.

However, as I was thinking about it, I realized something. The power to subpoena witnesses is mostly found when an entity exercises judicial or quasi-judicial functions. We must not forget that we are looking at it from the committee's perspective. We demand and give the opportunity to demand that people come and testify and bring documents. In doing so, we would significantly restrict the freedom of individuals in Canada. We would end up judicializing the process. The subpoenas would be challenged in the courts. That is precisely what we wanted to avoid. We wanted the parliamentary committee to be able to manage its own way of governing.

We expect the committee to be able to develop rules. There will certainly be rules that could be developed. What won't appear is the power of constraint. The power of constraint is precisely what would bring us into a sphere other than revision, in a sphere other than the oversight of entities. Here we want to see how entities that depend on the federal government do their job. With respect to these entities, the committee is inevitably leveraged through the executive, through the government, to ensure the presence of individuals and the production of documents.

Thank you.

[The Chair, Liberal, Rob Oliphant]

I have Mr. Clement and Mr. Rankin.

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

Chair, this is not an ideological issue. It's not a partisan issue, as far as I'm concerned. This is just a common sense tweaking of the legislation to restore what we would as parliamentarians recognize as a right of a collection of parliamentarians sitting as a body such as this. I don't see any downside whatsoever. I see it as common sense, and that's why I would be supportive of this amendment.

[The Chair, Liberal, Rob Oliphant]

Go ahead, Mr. Rankin.

[Murray Rankin, NDP, Victoria, BC]

Thanks.

I appreciate the thoughtful comments of Mr. Di Iorio. I just want to say, though, that many of our parliamentary committees would never be seen as judicial or quasi-judicial, but they all enjoy the power to make sure people come and testify before them.

I was counsel to SIRC for many years, and I don't think they ever needed to use the power to compel, but the fact that it was there made it obvious that people would come and testify. Sometimes, Mr. Chair, the agency may choose to send the head honcho or they may send a public relations person, but what the committee needs is the Calgary analyst or some individual down the chain in order to do the job. If they choose to balk at that and we never get the person who is really at issue, then we can't do our job for Canadians.

I think Mr. Clement has nailed it. This is a common sense provision, without which I do not see the credibility of this committee.

[The Chair, Liberal, Rob Oliphant]

Mr. Erskine-Smith is next.

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

I wanted to pick up on Mr. Rankin's comment.

My understanding is that Standing Order 108 gives every standing committee subpoena powers. They're rarely exercised, but they're there in the event that they're ever needed. It makes good sense to me that this committee wouldn't typically exercise such powers, but they're there if they're ever needed. There's going to be compliance and co-operation, because everyone knows that in the end they are there. I'm supportive of subpoena powers as a result, in principle, but I just wonder about the language.

Mr. Rankin, the amendment would change section 13 for access to information. I think a more elegant way to keep the crux of clause 13's subclauses on access to information and protected information and inconsistency or conflict would be to have it read—and I'm open to your thoughts—“Despite any other Act of Parliament, but subject to sections 14 and 16, the Committee is entitled to send for persons, papers, and records”—that mirrors Standing Order 108—“and to have access to any information that is under the control”, and on it goes.

In my opinion, that would be a simpler way. It wouldn't change subsequent sections in such a serious way.

[Murray Rankin, NDP, Victoria, BC]

I think that's an excellent suggestion, and I would be happy to proceed along those lines.