Public Safety Committee on Nov. 29th, 2016

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

I'll just comment on the point.

The first thing is “activity” is very vague and we're not talking about investigations because, once again, we're talking about jeopardizing operations and operational resources that are in the field. It's a point that's been raised. Again, the two best examples we've heard from witnesses of situations where arguably there are still investigations are Air India and the Afghan detainees. Therefore, we really are talking about operations. If anything, Mr. Di Iorio's point raises our concern of the vagueness of “activity”, because it could be operations and investigations. I know Mr. Rankin wants to address this as well.

[The Chair, Liberal, Rob Oliphant]

Mr. Rankin is next, and then Mr. Mendicino.

[Murray Rankin, NDP, Victoria, BC]

Thanks, Chair. I have just three quick points.

First, “activity” is undefined and it seems broader than “operation”.

Second, when the Security of Information Act talks about “special operational information”, it's clear what they are talking about. In paragraphs 14(a) through (g) it is sources, military plans, methods, targets, agents, and the like. I think in the community, under the security tent, there's a pretty good understanding of what that means.

Third, remember that the Information Commissioner came here and testified that CSIS refused to give information on a campus outreach program. It had nothing to do with operational information. That's precisely why we need to narrow this.

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

Well, my primary concern stems from the inconsistency of language, which is where this conversation began.

The first thing I would note is that my amendment only deals with, I believe, lines 11 and 12, where the ministerial discretion is defined. The operative word there—and I'm sorry to use “operative”—says “relates to national security or intelligence unless the activity is an ongoing activity”. The proposal now is to change “activity” to “operations”, but it does not deal with the first part of paragraph 8(b), which refers to “any activity”, so there is an inconsistency of terminology that I think would lead to confusion.

Whether or not it's judicial or ministerial, if we start trying to wordsmith without really understanding what it is that the opposition intends to define in its use of the term “operations”.... I take Mr. Rankin's point about wanting to broaden the limits of curtailing the ministerial discretion, but it is going to lead to a lot of confusion if we start just parachuting new words and terminology into these clauses with subamendments.

[The Chair, Liberal, Rob Oliphant]

We have Mr. Dubé and then Mr. Spengemann.

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

Thanks, Chair.

I would argue that while we are drafting legislation for this power to be there and there is no judicial review and it's a discretionary power for a minister, I think the word is important, because it deals with the political costs attached to using this discretionary power. The fact is that we have a committee of parliamentarians, and when the minister is exercising this power, there is a cost attached to that.

Given, as has been stated numerous times and as I just said, that there's no judicial review, I'm less concerned about how a judge interprets “operation” and more concerned about how a minister interprets it and how the committee will receive that decision. It certainly changes the dynamics there, and it's a dynamic that's important to be mindful of in the drafting of this legislation, given that we want to give the minister these powers.

[Sven Spengemann, Liberal, Mississauga—Lakeshore, ON]

Mr. Chair, my point has been largely addressed, except that we should keep in mind what it is we're trying to address with both the “injurious to national security” side and the “ongoing operation” side.

I think it's also a problem of the capacity of the committee to pursue or to go alongside maybe numerous ongoing operations or investigations. Simply from a capacity perspective, how could the committee engage in that?

[The Chair, Liberal, Rob Oliphant]

Go ahead, Mr. Miller.

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

Mr. Chair, I certainly could have supported Mr. Dubé's first subamendment, but at his wishes I'm certainly going to support this one.

Mr. Chair, based on Mr. Erskine-Smith's question to the bureaucrats here, there was nothing in Ms. Miles's answer that would indicate to me that there's any problem here. I'd remind you, Mr. Chair, that the government has indicated they're very flexible and willing to look at some amendments. I haven't seen much of that today, so I'm hoping to see it here.

[Some hon. members]

Oh, oh!

[The Chair, Liberal, Rob Oliphant]

Be patient, Larry, be patient.

Go ahead, Mr. Clement.

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

Mr. Chair, are these proceedings part of the record of this committee?

[The Chair, Liberal, Rob Oliphant]

Yes. We're not in camera.

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

Right, so my point to Mr. Mendicino is that if he's worried about how this will be interpreted by a minister, the minister—she or he—will have access to the debate we've had and will know the intention of the committee, and Bob's your uncle—metaphorically, of course.

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

Turning back to the officials, I think all of us know the intent of the direction in which Mr. Dubé is going—that “activity” is too broad—and you don't like the word “operation”. Is there, then, a word that you could suggest we could amend it to, other than “activity” and “operation”?

[John Davies]

I think “activity” is the best word up front, because you're talking about review overall; you're not talking about specific pieces of information, potentially injurious to national security or not. I think “activity” captures what the intent is here.

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

But if you listen to our witness testimony, you'll find that they talked about “operation”. Nobody wants to interfere with an active, ongoing operation. That's where Mr. Dubé is coming from.

I think the feeling is that “activity” is too broad a word to define that, and there's also the witnesses' testimony talking about not interfering with an ongoing operation.

Is there a middle ground that is more definitive than “activity”? If there isn't, that's fine, but I'm trying to find a middle ground here.

[John Davies]

I'm personally hesitant to draft on the fly. I think one of the points here is that whatever the minister's decision is, that decision will be reported on. There are incentives to be narrow and not overuse this clause down the road anyway. You have to give the rationale.

Moreover, there's a temporal aspect to this, because it's “ongoing”. Eventually the ongoingness will stop and the committee will be free to report.

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

Okay.

[The Chair, Liberal, Rob Oliphant]

Ms. Watts is next.

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

Was it your group of individuals that crafted the original legislation?

[Allen Sutherland]

Yes.

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

Obviously, then, you would have an intention as to what you want in the legislation and as to what will or will not be amended, based on what directions you were given. What was your intent when you put “activity” in there?

[Allen Sutherland]

The intent was really more on the focus, as it says, of “injurious to national security”. As Minister Goodale said to this committee earlier, it's intended not to be used very often, but the focus really is whether there is injury to national security.

You've cottoned on to the fine difference in definition between “operation” and “activity”. I would say that overall, “activity” is broader, and that breadth may be required, but the real focus is whether there is injury to national security, and if there is, I offer a reminder that it's meant to be used very rarely. If the committee has a problem with it, they can report it in the annual report and they can complain about it in Parliament.

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

Right. My next question, based on that explanation, is to ask where I would find that in the legislation that you crafted originally.