Public Safety Committee on Nov. 29th, 2016

[The Chair, Liberal, Rob Oliphant]

I call this meeting back to order after our brief suspension.

We're on clause 13. Just to review where we are, an amendment that was presented by Mr. Dubé was withdrawn. We agreed unanimously that a substitute could be presented by Mr. Erskine-Smith, which is where we are at this point.

Let's now debate the amendment from Mr. Erskine-Smith.

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

In proposing subpoena powers, I had a conversation with Mr. Sutherland, Ms. Miles, and Ms. Sheehy. I'd like the committee to hear the same answers, and the committee can then determine whether the answers are sufficient.

Ms. Miles, perhaps you can explain to the committee why subpoena powers, both for requiring witnesses to attend and for requiring the production of documents, are either unnecessary, redundant, or problematic.

[Nancy Miles]

Okay. I'll just give you the legal underpinnings.

Usually a subpoena power and a power to compel documents is in relation to a review body that either has adjudicative powers or has an individually initiated complaint review power. That is the case with respect to SIRC, to the commissioner of CSE, and to the RCMP complaints commission. In all three cases, that's why they have subpoena powers. It's because it's important to have an individual appear before them and give testimony with respect to something.

In this case, we've crafted the act in a different way, in a high-level Westminster model that would have the minister accountable for the documentation that would be presented. In that regard—and you'll see it further on in the text of the bill—in section 13 we have the right to access, obviously, but also in section 15 the obligation of the minister to provide the information that's relevant and within the mandate of the committee, and also the ability of the minister to present it orally before the committee, if that's the way it is most efficient, or if the minister so chooses.

You already have, then, an obligation to compel the documentation, and as well there is the ability to appear before the committee.

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

As I understood it from our discussion previously and just to confirm it, the subpoena power to compel the production of documents is redundant because proposed subsection 15(3) requires them to be provided in any event through the minister. Is that fair to say?

[Allen Sutherland]

I think it is, yes.

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

I note that in part II of the Inquiries Act, the CSE commissioner has the authority to subpoena individuals to testify before him.

Can you explain why it would be problematic, if it is problematic, to provide this committee with the same authority?

[Nancy Miles]

What would happen with respect to giving them subpoena powers is that it would result in having a process that has become more judicialized, if I may say so. The subpoena would have to be enforced somehow. That would normally take the form of a court order. That is against the whole concept of how we've tried to draft the bill.

We've tried to draft it as a very high-level Westminster-style bill in which ministerial responsibility and trust between the minister and the committee will provide for the flow of information. We also have an express provision, as you know, in clause 31 that indicates that a decision of the minister is final and would not be adjudicated.

Introducing a subpoena power into it would necessitate the judiciary's taking a look at the process and might very well have them take a look at section 31 and say, “This really isn't an overall structure in which we are looking for political solutions. The courts are entitled to take a look at every decision that is being made here, including high-level ministerial decisions as to what is injurious to national security.” It's contrary to what the bill is proposed to do and really does defeat the purpose of proposed section 31.

[Allen Sutherland]

If I can just build off one thing, it's easy to be lost in the amendments and the clauses, but just observe that this would be the biggest change in a generation to the intelligence review system in Canada. This is something big and important, and part of what would make it a success is if it can build trust. It's what we heard from the British parliamentarians. It's what Minister Goodale heard when he looked at different models: build trust in the committee of parliamentarians so that the information flows effectively. It's trust within the committee, it's trust with the public service, and it's trust between the committee and the public service.

What we're trying to build here, then, is something that uses the role of the minister and a minister's central role in the Westminster system to provide the flow of information through to the committee. If we do it right, we know that the committee would receive information that they have certainly never seen before, and it would help inform the debate in Parliament and indeed within the country.

I would say too that if the committee is not satisfied with the information it's receiving, it's very important that it does have remedies. It can complain in Parliament. It can complain to the Prime Minister. It can complain publicly in the annual reports, and indeed, it can complain it its special reports. It has remedies.

As we get up the learning curve on how to ensure there is a good flow of information, it's important that rather than judicializing it—which, I would argue, will set different parts of the system against each other—we can work it through together and build a trust environment.

By the way, you also have a five-year review mechanism, so if you're finding that this isn't giving the committee of parliamentarians the access that is anticipated, it can be reviewed within five years and adjusted.

[The Chair, Liberal, Rob Oliphant]

Go ahead, Mr. Clement.

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

Thank you.

There are a couple of things I'd like to say in response to the interventions.

First of all, this is an oversight committee. It's not just an arm of the Prime Minister or his office. It's deliberately created to provide oversight, so it does need tools—always exercised reasonably, of course—in order to fulfill that function. I know what you're saying about building trust within the security apparatus, but the committee also has to build trust with the people of Canada and to illustrate that it is serious, because the public will not have the information available to it. It will be this oversight committee, and so you have to build a trust network on that side of the equation as well. Otherwise, it will come to naught, in my view.

That's my first point. It's an oversight committee.

The second point, if I may say so—and I know it's spilled milk and water under the bridge—is that to build trust with all members of the political parties that will have representatives on this committee, one of the things you may want to consider is not appointing the chairman of the committee before the bill is even past the stages of debate and approval in the House. However, that is what has been done, so I would put it to members that in order to build trust with us, other things to build that trust would be appreciated, including this clause-by-clause review.

We all want to take this seriously. We all understand this is a very serious responsibility, but it doesn't help if opposition views are not taken seriously. I would just relate to my colleagues on the other side of the table here that trust works in both directions. It's not just trust in the process. We would like to trust the process too, but you have to have some trust in us and in our ability to do our job.

Is it going to be necessary to have subpoena power? It may not be. I don't know. To be honest, none of us knows. We're trying to predict the future, but why remove a perfectly reasonable and responsible tool that is not just used in judicialized functions? It's used in legislative functions, it's used in deliberative functions, and it certainly should be used in oversight functions.

[The Chair, Liberal, Rob Oliphant]

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

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

Thank you.

With everything that I've heard up to now.... We heard from Mr. Sullivan, who said that when Minister Goodale talked to his British counterpart, they didn't agree with having this kind of power to subpoena, but did he talk to the counterpart in New Zealand? I don't think so, from the comment I heard, and this isn't new stuff.

I would point out to the members across the way that if the government, Mr. Chair, is worried about this process—and for the life of me, I really can't figure out why—remember that the government has the majority, and if the majority of the committee decides it doesn't want to subpoena somebody, the person isn't subpoenaed. It's that simple. It's a numbers game. We all know that.

The government won't always be the government, and we have to look at this in a fair way. At the end of the day, the powers are there for a reason at our regular committees today, and the powers should be there for this committee. There isn't really a downside to it.

Anyway, there's not much more to say on it.

[Murray Rankin, NDP, Victoria, BC]

I fear we're pushing uphill here and may not be able to succeed, but I just would note—and the point was made by Mr. Clement—that there are all sorts of examples in which non-judicial or quasi-judicial bodies have the power to summon witnesses or to get information. Standing Order 108 would be a pretty good place to start.

Second, there appears to be nothing that would allow the committee to summon an individual here. Subclause 15(4) says that information may be provided orally—the official “may appear before the Committee”—but there is nothing to say that if an agency wanted to stonewall this committee and bring only somebody who is their PR person when the committee felt it needed to have an individual who knew what they were doing on the file, there's no way we can get that information that I can see in the bill, short of having a summons power. I don't see anything in the bill that would allow that.

[The Chair, Liberal, Rob Oliphant]

Go ahead, Ms. Miles.

[Nancy Miles]

It's true that there is no individual subpoena power; it is an entitlement to information, and that information flows from the minister. Much as in the case of parliamentary committees in general, the minister will determine who he or she feels is most acceptable to appear before the committee, if it's to give information orally; otherwise, it can be given in writing exclusively.

[The Chair, Liberal, Rob Oliphant]

Go ahead, Ms. Watts.

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

Finish your thought, Murray.

[Murray Rankin, NDP, Victoria, BC]

All the lawyers on this committee surely know from your slip and fall at the Safeway store that to get the PR person for Safeway to come in, first it's a case of getting the janitor who caused that can that's broken to be on the floor, which caused me to break my back. You don't want the head honcho from head office; you want the person who knows what's going on. To not get that is to make this a joke.

[Nancy Miles]

What you're suggesting is an individual complaint process and not an overview review of activities.

[Murray Rankin, NDP, Victoria, BC]

With respect, I entirely disagree. Once we have before us a certain subject area that the committee thinks is important, it has the ability and should have the tools to delve into it, not simply to take the minister's idea as to who the most appropriate person to come would be. It's part of the mandate of the committee to do its job and to delve where it has to and to go where the evidence takes it.

[The Chair, Liberal, Rob Oliphant]

Go ahead, Ms. Watts.

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

After listening, Ms. Miles, to what you were saying earlier, I have a couple of questions. The underlying premise of your group in crafting this legislation was not around independence of the committee, correct?

[Nancy Miles]

I don't understand.

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

Concerning oversight and the independence of the committee, what I'm hearing you say is that it's not about being independent, because the minister will determine what the committee will see, what it won't see, who it will call in, who it won't call in, and the veto powers of the minister or the Prime Minister are embedded in that.

[Allen Sutherland]

I think—

Oh, sorry.