Public Safety Committee on Oct. 30th, 2023

[Randall Koops]

I'll try my best to answer.

When we look at the amendment to clause 35, which is to expand the grounds of who can, in essence, request the commission's assistance, it is consistent with a change made earlier in the bill that this be expanded to third parties. It does not change the responsibility or the authorities of the commission to determine whether it wishes to investigate that complaint or whether that complaint meets the statutory threshold that exists elsewhere in the bill.

Expanding the class of persons who can bring the complaint doesn't change the process by which the commission itself, or the RCMP or CBSA, will make a determination, if it believes that the person has adequate standing, which could extend to consent or other grounds. It would, using its delegated authority in the statute, decide whether that third party has sufficient grounds to bring the complaint.

[Glen Motz, Conservative, Medicine Hat—Cardston—Warner, AB]

Thank you.

[The Chair, Liberal, Ron McKinnon]

We'll now go to Ms. O'Connell.

[Jennifer O'Connell, Liberal, Pickering—Uxbridge, ON]

Thank you, Mr. Chair.

The answer given really explains it, but to drive the point home once again, I think that allowing this will put in the legislation that there is the opportunity for this through the act. However, there are regulations and internal processes that still exist that allow for the commission to determine whether it meets an internal threshold.

We need to keep it open, not close off the ability, because you sometimes don't know what situations might arise. I appreciate the Bloc's amendment to this. You want to provide the opportunity in the event there is a situation where it could be of great public interest for an investigation to look at the situation. Limiting the scope in the act limits the flexibility with the commission.

I think this provides that opening. There are still checks and balances in place to ensure that they're not frivolous, and that they're not based on an episode of Border Security, or whatever else is being referenced, but that there is that opportunity and we're not limiting the scope too severely. It's a good balance between keeping it open and allowing for the flexibility to ensure that frivolous complaints are not being filed.

[The Chair, Liberal, Ron McKinnon]

Seeing no further discussion, the vote is on Ms. O'Connell's subamendment.

(Subamendment agreed to on division)

(Amendment as amended agreed to on division [See Minutes of Proceedings])

(Clause 35 as amended agreed to on division)

[The Chair, Liberal, Ron McKinnon]

That brings us to the new clause 35.1 and NDP-23.

Mr. Julian, go ahead, if you please.

[Peter Julian, NDP, New Westminster—Burnaby, BC]

Thank you very much, Mr. Chair.

This is a recommendation that comes from Breaking Barriers Together. It's for further clarity that the use of non-disclosure agreements is prohibited in this act by the commission, the RCMP and CBSA when dealing with complaints of misconduct, both internally and externally.

It would create a new clause 35.1, which is:

Complaints made under this Act shall not be subject to a non-disclosure agreement.

Mr. Chair, very briefly, some of the members around the table have been part of the discussions at Canadian Heritage. We saw how the absence of safety in sports was covered up over many years by the use of non-disclosure agreements in a rampant and inappropriate way.

The recommendation from Breaking Barriers makes sense. It is that non-disclosure agreements shouldn't serve to hide an activity that is happening. For complaints of misconduct, there should not be the ability to obscure that and not be transparent through the use of NDAs.

[The Chair, Liberal, Ron McKinnon]

Thank you, Mr. Julian.

We'll go now to Mr. Shipley.

[Doug Shipley, Conservative, Barrie—Springwater—Oro-Medonte, ON]

Thank you, Chair.

The question is for our officials.

Is this currently an issue? Are NDAs currently used in the civilian complaint process?

[Randall Koops]

NDAs aren't generally used in a review process. They are a tool that is employed sometimes in the context of civil litigation and in settlements arising from civil litigation.

There's no provision in the act whatsoever that an NDA would preclude the commission from having access to necessary information. We would view it as an unnecessary provision.

My colleague from the commission may have more details about the current situation.

[Lesley McCoy]

Yes. There's no provision in the act either allowing or prohibiting non-disclosure agreements, but they aren't typically used. Certainly the commission has never imposed a non-disclosure agreement.

I suppose it could conceivably arise in the informal resolution process, at either the RCMP or the CBSA, but I'm not aware of it having been used.

[The Chair, Liberal, Ron McKinnon]

Mr. Lloyd.

[Dane Lloyd, Conservative, Sturgeon River—Parkland, AB]

I was a bit confused about this. I was wondering if we were subjecting the Civilian Review and Complaints Commission to say they can't utilize NDAs, but it seems clearer now that this is about previously agreed-upon NDAs from civil litigation that happened that led to a complaint. What this amendment is trying to say is that NDAs can't supersede the complaint process.

A concern I have is whether the government really has the power to break an NDA. If somebody is going to break an NDA in order to make a complaint to the commission, there's nothing that the government can do to protect that person from a reopening of a civil litigation. It seems to me there could be a concern that we might be confusing people and making them think that they can tell anything to the complaints commission without consequence.

Of course we want them to be able to tell the complaints commission everything that they feel is necessary, but I wouldn't want people to be confused in thinking that they're protected under the NDA. I'm not that familiar with NDAs myself. I'm just concerned that we could be creating confusion. That's what I have to say about that.

Do the witness have any thoughts, perhaps?

[Lesley McCoy]

Yes. I think you're correct. It could create confusion, because it would apply only to NDAs under the PCRC act. In fact, as you indicated, the NDAs agreed to in civil litigation would not be prohibited by this provision. Individuals might then be restricted in what they can disclose based on previous civil litigation NDAs.

That is correct.

[The Chair, Liberal, Ron McKinnon]

Go ahead, Mr. Motz.

[Glen Motz, Conservative, Medicine Hat—Cardston—Warner, AB]

I appreciate the civil side. My question relates more to complaints that might arise that have a national security flair to them. There may be some non-traditional, non-civil non-disclosure agreements based on some national security issues.

Would this addition cause some concern if there was a complaint made about an investigation done by the RCMP, for example, in a matter that is of national security concern? Maybe they overstepped an authority or there's the allegation that they've overstepped an authority. At some point throughout that, because of the national security concerns, there was a non-disclosure agreement arrived at at some point in time with a witness or whomever. Would that create a problem with that investigation?

I see non-disclosure agreements as a blanket, having huge concerns for investigations. You can make a decision only based on the information you have. If information is being withheld because of a non-disclosure agreement, civil or otherwise, you have a less than fulsome suite of evidence to use.

I'm just curious to know whether a national security concern would play into this at all. Should we be alarmed by having this particular amendment considered under the act?

[Randall Koops]

We offer that it is a foreseeable concern, but that the national security provisions in the act governing both the access of the commission to national security information and then any further public release of national security information.... The provisions that are already in the act would prevail.

[Glen Motz, Conservative, Medicine Hat—Cardston—Warner, AB]

Again, with an overarching non-disclosure agreement, does this clause cause concern about the strength of this legislation?

[Randall Koops]

I think the best view we can offer is that it appears unnecessary to us. The commission or the agencies may have more direct experience with that.

[Glen Motz, Conservative, Medicine Hat—Cardston—Warner, AB]

I'll defer to the CBSA and RCMP to answer that if there's an issue, but I think that statement is enough for me to recognize that it's probably not necessary, and I won't be supporting it.

Thank you.

[The Chair, Liberal, Ron McKinnon]

Thank you, Mr. Motz.

We'll go to Ms. O'Connell.

[Jennifer O'Connell, Liberal, Pickering—Uxbridge, ON]

Thank you, Chair.

Again, I think the witnesses clarified this, but I want to hit home the point that in matters of national security...those who have the information would be subject to other legislation in terms of protecting national security. Whether they are members of the RCMP or the CBSA, or they are a third party who had access to that information, would they not still be subject to it?

Anyone who has gained access to national security documents.... Glen and I have both had this. Before you sign, you're indoctrinated. It's such a weird title. You have to sign it, and you are subject to that for life. A non-disclosure agreement would actually be the lesser of the legal ramifications. Anyone who has access to national security information is already subject to much stricter legislation in terms of revealing that.

Is that correct?

[Joanne Gibb]

Yes. The Security of Information Act would apply.

[Jennifer O'Connell, Liberal, Pickering—Uxbridge, ON]

Thank you.

I don't have the national security concerns that were outlined on this, because, as I said, there is stronger and higher legislation that covers that, with stricter penalties.

However, in terms of non-disclosure agreements and banning them, I'm of two minds. I understand that there could be a legitimate reason for wanting one, but I think that more often than not, non-disclosure agreements are used to silence victims.

I think that the harm outweighs the good. They're often used as a bargaining opportunity. I'm not saying there was any wrongdoing done here, but I'm looking at what Mr. Julian pointed out, in the instances with Hockey Canada, etc.

I think, though, that they are meant to settle things quickly and quietly, and oftentimes, as a result, might resolve an individual person's grievance or complaint but allow for systemic issues to continue.

On the whole, as I said, I can see where there could be opportunities or times when a non-disclosure agreement may be completely legitimate and fine, but I think the potential harm outweighs the rare instances where they'd be used in a way that is fine. I think they often are used to hide systemic issues, and the public, even the agencies themselves, may not fully understand the extent of a problem because of the overuse of non-disclosure agreements.

I will support this amendment for that reason. I can certainly understand both arguments, but ultimately I think the potential harm outweighs the good of having them.

[The Chair, Liberal, Ron McKinnon]

Thank you.

Mr. Julian.