Evidence of meeting #46 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 activity.

A recording is available from Parliament.

On the agenda

MPs speaking

Also speaking

Allen Sutherland  Assistant Secretary, Machinery of Government, Privy Council Office
John Davies  Director General, National Security Policy, Department of Public Safety and Emergency Preparedness
Nancy Miles  Senior Legal Counsel, Privy Council Office
Heather Sheehy  Director of Operations, Machinery of Government, Privy Council Office

4:15 p.m.

NDP

Murray Rankin NDP Victoria, BC

Thank you.

I certainly agree with what Ms. Watts has said. If you just look at the language, you see it's so different from other legislation. It's been around for 30 or 40 years. The Access to Information Act and the Privacy Act use words like “reasonably be expected to be injurious”, which gives a certain discretion and an ability to meet an objective test. Here it allows any appropriate minister—the Minister for CBSA, or the 17 agencies to which this bill is subject—to roll in and say, “This review would be injurious to national security.” There would be no opportunity to address that anywhere else. It could be a unilateral reason, which certainly this government wouldn't use to hide things simply because they were embarrassing, but other governments might do so, and this is a bill that's here for a long time. It's not going to be amended anytime soon.

It also has to be understood, in response to Mr. Mendicino, in the context of the existence of sections 14 and 16; hence the triple lock. Just to refresh the committee's memory about what Ron Atkey said, he said we've had this open-ended power, and it's not ever been abused. He said there have been tensions from time to time, but matters have been worked out, and to his knowledge, security operations have not been compromised.

I don't understand why the government wants a triple lock and why they would erode so dramatically the credibility of this entire exercise.

4:15 p.m.

Liberal

The Chair Liberal Rob Oliphant

Are there any other comments?

4:15 p.m.

NDP

Matthew Dubé NDP Beloeil—Chambly, QC

Mr. Chair, could I ask for a recorded vote?

4:20 p.m.

Liberal

The Chair Liberal Rob Oliphant

Certainly. We will do that.

(Amendment negatived [See Minutes of Proceedings])

We now can move to amendment CPC-4.

4:20 p.m.

Conservative

Tony Clement Conservative Parry Sound—Muskoka, ON

I would like to move it and ask for a recorded vote.

4:20 p.m.

Liberal

The Chair Liberal Rob Oliphant

Are there comments on amendment CPC-4, which you have before you now?

We've had a request for a recorded vote as well, so I'll turn to the clerk.

(Amendment negatived [See Minutes of Proceedings])

We're moving now to amendment LIB-4.

Is there someone to move that?

4:20 p.m.

Liberal

Marco Mendicino Liberal Eglinton—Lawrence, ON

Yes, Mr. Chair, I'd like to move that.

In many ways, expanding on the dialogue that we just had with respect to clause 8, my amendment would be responsive to some of the evidence that has been cited by my colleagues on the opposition side.

What I propose is that we begin by amending clause 8, replacing lines 11 and 12 on page 4, for those who wish to read along, with the following language:

[re]lates to national security or intelligence, unless the activity is an ongoing activity and the appropriate Minister determines that the review would

be injurious to national security.

The next part of my amendment would add, after line 16 on page 4, the following: a new subsection, which would become subsection 8(2). It would read as follows:

If the appropriate Minister determines that a review would be injurious to national security, he or she must inform the Committee of his or her determination and the reasons for it.

It would also create a new subsection 8(3), which would read as follows.

If the appropriate Minister determines that the review would no longer be injurious to national security or if the appropriate Minister is informed that the activity is no longer ongoing, he or she must inform the Committee that the review may be conducted.

There would be a concurrent amendment, which will likely come up later in the day, under clause 31.

Mr. Chair, I'm in your hands as to whether I should wait to advocate for that at the appropriate time or whether we should just leave it to my moving the amendments under clause 8.

4:20 p.m.

Liberal

The Chair Liberal Rob Oliphant

Thank you.

4:20 p.m.

Liberal

Marco Mendicino Liberal Eglinton—Lawrence, ON

I'm sorry, Mr. Chair; I was asking for your guidance as to whether you wanted me to address concurrent amendments under clause 31 or just move—

4:20 p.m.

Liberal

The Chair Liberal Rob Oliphant

No—

4:20 p.m.

Liberal

Marco Mendicino Liberal Eglinton—Lawrence, ON

—the amendments.

I haven't given my reasons in favour of this, so I hope you'll permit me to do so very briefly.

I think this is responsive to some of the testimony we heard before this committee. It would limit the application of the ministerial discretion to stop reviews or stop proceeding to reviews of those ongoing national security activities; it would not provide for the stoppage of a concluded activity; and furthermore, it would require the minister to provide reasons when there is a refusal on the basis of an activity's being ongoing—which is, I think, consistent with what the minister said would be the committee of parliamentarians' bully pulpit function.

The other thing my amendments do is put a positive obligation on the minister to remain apprised of and up to date on the status of those activities that have been requested by the committee. If the status of those ongoing activities is that they are stopped, for whatever reason, then the minister must report back to the committee; this would then ostensibly allow them to conduct a review, which is part of their mandate.

4:25 p.m.

Liberal

The Chair Liberal Rob Oliphant

Thank you.

As a member of the clergy, I always worry about “bully pulpit” being used.

Go ahead, Monsieur Dubé.

4:25 p.m.

NDP

Matthew Dubé NDP Beloeil—Chambly, QC

Thanks, Mr. Chair.

I'm just asking for your guidance on how to proceed. I have four subamendments to the amendments that I'd like to move. Do you want me to do them as a block, or one at a time?

4:25 p.m.

Liberal

The Chair Liberal Rob Oliphant

One at a time would be my preference. You might want to alert us to the four before you move them; I think that may be helpful for the committee. Then we'll move one at a time.

4:25 p.m.

NDP

Matthew Dubé NDP Beloeil—Chambly, QC

Sure.

4:25 p.m.

Liberal

The Chair Liberal Rob Oliphant

I'm just going to leave you a little leeway to give some narrative, if it's important to set a context for the four of them, if you think that's helpful. It's not exact procedure. Then we'll have the four in a row.

4:25 p.m.

NDP

Matthew Dubé NDP Beloeil—Chambly, QC

Sure, I can—

4:25 p.m.

Liberal

Marco Mendicino Liberal Eglinton—Lawrence, ON

Mr. Chair, are these in writing?

4:25 p.m.

Liberal

The Chair Liberal Rob Oliphant

Do you have them in writing?

4:25 p.m.

NDP

Matthew Dubé NDP Beloeil—Chambly, QC

No. It's just words being added, one word here, one word.... Each one is essentially a word. There's one that might be seven words.

If members want to follow along, I'll keep Mr. Mendicino's amendment in front of me, and then we can read along.

The overarching narrative of the four subamendments is adding clarity to the language, in keeping with some of the concerns we've raised in our discussion of the powers that are conferred on the minister.

With that in mind, the first subamendment I would move is to part (a) of Mr. Mendicino's amendment. After the word “ongoing”, we would add the word “operational”, to read: “to national security or intelligence, unless the activity is an ongoing operational activity and the appropriate Minister determines that the review would”.

Mr. Chair, if I may offer an explanation for this, it is simply that it avoids a situation such as with Air India, about which it could be argued that it's an ongoing activity but not an operational one. It allows the committee the latitude, in that kind of instance.

I'll wait for your cue to move on, or do you want me to...?

4:25 p.m.

Liberal

The Chair Liberal Rob Oliphant

I think we'll take one at a time.

4:25 p.m.

NDP

Matthew Dubé NDP Beloeil—Chambly, QC

Okay.

4:25 p.m.

Liberal

The Chair Liberal Rob Oliphant

It sounds as though they're going to go sequentially quite easily.

Is there any discussion, then, on the subamendment?

4:25 p.m.

Liberal

Marco Mendicino Liberal Eglinton—Lawrence, ON

I would just say that in adding “operational” it has the very strong likelihood of defeating or running contrary to clause 16 of the bill, where there is a separate but related ministerial discretion to refuse requested access to information if it meets the definition of special operational information.

About the rest of the amendments, I'll obviously wait to hear from Mr. Dubé.

4:25 p.m.

Liberal

The Chair Liberal Rob Oliphant

Mr. Erskine-Smith is next.