Evidence of meeting #50 for Public Safety and National Security in the 45th Parliament, 1st session. (The original version is on Parliament’s site, as are the minutes.) The winning word was nato.
A video is available from Parliament.
Liberal
The Chair Liberal Jean-Yves Duclos
Thank you, Ms. Dandurand, for your customary graciousness.
Mrs. DeBellefeuille, you have six minutes.
Bloc
Claude DeBellefeuille Bloc Vallée-du-Haut-Saint-Laurent, QC
Mr. Forcese, I may have misunderstood, so I'd like to verify something with you.
On seven occasions, you informed the government that there was a problem with the polygraph, either because of overreliance on it or due to its lack of reliability. You raised the issue seven times, yet it doesn't seem to have had any impact or influence, since the Canadian Security Intelligence Service and other agencies continue to use the polygraph as an indicator in assessing security. Have I understood correctly?
Vice-Chair, National Security and Intelligence Review Agency
The situation is actually worse than that: Our predecessor raised concerns seven times, and we've done so twice ourselves, so that brings the total up to nine times.
Bloc
Claude DeBellefeuille Bloc Vallée-du-Haut-Saint-Laurent, QC
So it's nine times. I don't know whether you're aware of this, but I greatly appreciate the work of the National Security and Intelligence Review Agency, and I believe it's my responsibility to highlight that work, because I don't understand how a government can set aside nine recommendations from an agency whose primary mandate is oversight and investigation.
Let me ask another question. The minister came before us and stated that, with respect to the case of the alleged NATO spy, he had directed his department to investigate quickly. Was that investigative mandate assigned to your agency, given that this is your specialty? Did you receive a mandate from the minister to conduct such an investigation?
Bloc
Claude DeBellefeuille Bloc Vallée-du-Haut-Saint-Laurent, QC
Would you have been able to conduct a quick investigation in Ms. Zhang's case? Do you have the resources and expertise to conduct such an investigation?
Vice-Chair, National Security and Intelligence Review Agency
In terms of our review work, a number of considerations would drive our priorities in the review space, including the attention a matter is generating in the interest of parliamentarians. In deciding how to scope a review, we would be preoccupied with making sure that our observations were sufficiently systemic.
Our task is to review the conduct of the Government of Canada, not the conduct of private individuals. Our focus would always be on looking at the government activities, not trying to conduct a collateral investigation of an individual.
Bloc
Claude DeBellefeuille Bloc Vallée-du-Haut-Saint-Laurent, QC
So, basically, what I understand is that if the ministerhad asked your office to investigate, to make it a priority and to instruct his department to provide you with all the necessary information within a set time frame, you could, as a monitoring and investigation specialist, have investigated the case presented to us today for consideration, namely Ms. Zhang's case.
Vice-Chair, National Security and Intelligence Review Agency
We would have the competence to see all information in the possession or control of any of Canada's national security agencies, with the exception of cabinet confidences. We would ingest that information, run it through our internal methodology to ensure quality control, conduct the factual accuracy exercises we engage in and issue a report. Our reports would then go to the minister. In some circumstances, redacted versions of our reports would, after the redaction process, become public.
Bloc
Claude DeBellefeuille Bloc Vallée-du-Haut-Saint-Laurent, QC
All right.
What I see, then, is that the minister deprived himself of your expertise and experience in the case we have before us today.
I know you have carried out other studies in the past. Take the case of Jeffrey Delisle, which you investigated and found to have involved shortcomings and a lack of rigour in the process, including in the review of his security clearance. Security clearances at the secret and top secret levels are reviewed in accordance with the terms set out in Treasury Board policy and, in the case of Jeffrey Delisle, the naval officer, you determined in your investigation that the reassessment had not been carried out correctly.
So I have a lot of questions: If the minister thought the matter was so important, why didn't he give you a mandate to investigate Ms. Zhang?
I look at your public reports and I know, for example, that an investigation begun in 2023 was completed in 2026. So, naturally, I find myself thinking that the minister perhaps considers you too slow in reporting on your investigations, but I think I understand why. At present, I know that you have produced a report on national defence that you wish to make public, but that this department is taking legal action against you, prohibiting you from publishing it, and that the Canadian Department of Justice is supporting this department in preventing you from publishing your report.
I question how seriously the government takes your agency. We have proof: You wish to publish a transparent report on defence, but the government is opposing this through two bodies, two departments. Furthermore, it is not seeking your assistance at all in Ms. Zhang's case.
So I think one of the recommendations we're going to make is that the agency be considered in cases like this as an independent, very important agency to consult from the outset, rather than requesting an internal review of its own departments.
Liberal
The Chair Liberal Jean-Yves Duclos
Thank you, Mrs. DeBellefeuille.
Mr. Caputo, you have the floor for five minutes.
Conservative
Frank Caputo Conservative Kamloops—Thompson—Nicola, BC
Thank you, Mr. Chair.
I'd like to thank all of our witnesses for being here.
One of the things that struck me from the minister's testimony last week and got me thinking is that we often talk about how not everything can be known. I think an ex-CSIS director said that. There will be things that aren't always known.
The problem is that some mistakes in life are bigger than others. A nuclear meltdown is a one-time mistake, for instance. I know it's an extreme example. The point is that, sometimes, you aren't really in an arena in which mistakes can be made, because, eventually, the repercussions are so severe. We don't really get a mulligan.
It's against this backdrop that I was thinking about this. What is so troubling about the Zhang case, in my view.... I know you may not be able to comment specifically on the case, but you can certainly comment on the circumstance. The circumstance is this: Everything was knowable. Everything was there to be seen. She had lied on an application. The red flags were present. This isn't just a matter of not getting the right references or calling the right people. This was a matter of—I'll be blunt—failure at some level.
Can somebody comment on that, please?
Privacy Commissioner of Canada, Offices of the Information and Privacy Commissioners of Canada
We have not investigated this specific situation, but when we look at privacy breaches that happened in government departments, we look at them in this sense: What happened? Could it have been prevented? Were the mechanisms in place sufficiently robust? Were they followed appropriately? Were the standards the right ones? Was there enough communication among the senior decision-makers? Was it quick enough? Was there enough reaction time? We look at whether it should have happened and what lessons can be learned to correct it. We look at things like robust safeguarding, siloed information and risk.
Certainly, necessity and proportionality would say that the greater the risk, the greater the safeguards.
Conservative
Vice-Chair, National Security and Intelligence Review Agency
We would do much the same on our complaint side. We would look at the information collected in support of a security clearance process, and we would ask whether the information was accurately conveyed to the ultimate decision-maker. Now, those processes are driven by persons who are discontented with the outcome, so we're ensuring that procedural fairness and substantive fairness have been observed.
I will say that in our review work—in which we look more systemically, at least, at the practices of individual departments such as the CSE—one of the observations we've made for both the CSE and CSIS is the primacy they put on a polygraph. In our recent 2023 focus on the CSE, this primacy meant that other facets that might reasonably be employed for purposes of conducting a thorough security clearance were not being pursued to the extent that we believe would be warranted. When you talk about the prospect that steps might be missed, this is the sort of observation we have made in the past.
Conservative
Frank Caputo Conservative Kamloops—Thompson—Nicola, BC
I'd like to build on that, please, Mr. Forcese, and this is why.
In the case of a polygraph—and I'm far from a polygraph expert—you have an examiner who subjectively interprets the results. Now, that person is highly trained—don't get me wrong—but you have false positives and maybe some false negatives. False positives are the ones people often really care about, but false negatives can be just as bad. That's somebody who's interpreting the results. It's like, “Okay, did we get it right or not?”
In the Zhang case, there was objective evidence in that there was a finding of fraud. In fact, there was a finding of fraud in a case that was a reported decision—I believe it was a reported decision, but I'd have to double-check that. For example, it's on a website, that type of thing. When we talk about polygraphs, I guess I'm not sure if I would go down that path. This was so blatantly available. Is this not just a failure?
I'm mindful of your limitations. I'm not trying to put you in a box. However, when there's concrete evidence... It's not “Do we think this or not?” This person committed fraud while an employee of the federal government. Is it not a catastrophic failure if we don't know that somebody committed fraud or if—the alternative—we give them a security clearance, knowing they are fraudulent in the information they provide?
Liberal
The Chair Liberal Jean-Yves Duclos
—but there is no time for a great answer. I need to turn to MP Housefather for five minutes, please.
Liberal
Anthony Housefather Liberal Mount Royal, QC
The theatrical flourish at the end of Mr. Caputo's questions was so amazing.
I'm going to ask Mr. Forcese a couple of questions.
Mr. Forcese, I heard your answer to Madame DeBellefeuille that at this point the agency has not unilaterally decided to review the activity carried out in the Zhang case. Did you make this decision because your interpretation of paragraphs 8(1)(b) and 8(1)(c) of the act is that you can only review an “activity carried out by a department that relates to national security or intelligence” and a “matter that relates to national security or intelligence that a minister...refers” to you? Do you believe you don't have the capacity to independently launch such a review of the Zhang case?
Vice-Chair, National Security and Intelligence Review Agency
No, we would take the view that the subject matter of safeguarding—and this would include security clearances—remains within our purview under section 8, and we wouldn't rely on a ministerial referral. In circumstances in which there have been ministerial referrals, we don't limit the scope of our review simply to the parameters the minister has suggested through paragraph 8(1)(c). We independently trigger the other aspects of our mandate to make sure there's a full airing of all the relevant materials. We're not like a commission of inquiry, which is confined by the four squares of the terms of reference. We have a wider remit.
Liberal
Anthony Housefather Liberal Mount Royal, QC
In that case, how come you've decided not to launch an investigation into the Zhang case?
Vice-Chair, National Security and Intelligence Review Agency
Well, to be clear, the decision has not been not made, I shall say. The matter is in the public eye. I will say that, in relation to an investigation that touches on the conduct of an individual, our priority is to assess the conduct of government actors. That's our remit: to assess the conduct of government actors. We are also preoccupied in any instance that might involve an individual in which.... By reason of procedural fairness, we don't want to get into an assessment of their conduct in circumstances in which they have no opportunity to be heard or to provide input. Our focus is squarely on government conduct.
In a circumstance like this, in which we are conducting a review, we would be looking at systemic issues and not simply the specifics of any one case. This is because we have the crosscutting ability to follow the thread in a review mandate, an ability that doesn't exist on our complaint side.
Liberal
Anthony Housefather Liberal Mount Royal, QC
Of course, I completely understand. Your issue would not be Ms. Zhang herself. Your issue would be whether there was a systemic flaw in the processes leading to the fact that information related to a fraud—assuming the fraud is substantiated—was not shared or was disregarded. I'll leave it to you, but it sounds quite serious.
Can I come to the question Madame Dandurand asked about centralization? It seems relatively surprising to me that any department—the deputy head or whatever we're calling the person who has supervisory authority of the department related to this issue—could grant clearance to an individual despite the fact that the RCMP or CSIS may have advised them not to. I know they don't say, “Don't do it,” but they could have provided information that would have led to the average person saying that it should not have been provided.
Would you agree with me that there should be at least some contemplation that—in the event that the deputy head is choosing to ignore a recommendation or important factual information from the RCMP and CSIS that would otherwise lead to a clearance not being granted—they should need to have the authority of a minister, maybe the Minister of Public Safety, to do that?
Vice-Chair, National Security and Intelligence Review Agency
I don't have any position on the policy merits as to what should happen in those sorts of circumstances. I can, though, note that in the 2014 standard on security screening, which is the one we've been most involved in because, of course, it has been in existence for some time, there is a certain primacy given on the security assessment.
The balancing of equities has been a task undertaken by the deputy head, who has to offset the security preoccupations that might be communicated in a security assessment, as against other equities. It seems, in those circumstances, that the Treasury Board made the decision to ensure that a full airing of pros and cons, and not simply being driven by the security services, would determine the question of clearance.