Debates of June 16th, 2021

Government's Alleged Non-compliance with an Order of the House

[The Assistant Deputy Speaker, Carol Hughes]

The hon. member for Central Okanagan—Similkameen—Nicola is rising on another point of order.

[Dan Albas, Conservative, Central Okanagan—Similkameen—Nicola, BC]

Madam Speaker, I rise on a point of order. Five minutes ago I raised a point of order with you, and you asked the member to be relevant. He is basically reviewing the annual reports of his committee, which is not the subject of tonight's debate.

He is not a rookie. He certainly has a committee role that is important, but I would ask you to rule whether he is being relevant to the issue or simply disregarding your ruling and this House.

[Mark Gerretsen, Liberal, Kingston and the Islands, ON]

Madam Speaker, on that same point of order, the entire premise of the government's position hinges on the committee the member represents. The entire argument from the government has to do specifically with this committee, so the member explaining why this committee is the important committee for this is extremely relevant to the argument that the government made.

I would encourage the Speaker to allow him to continue his speech.

[The Assistant Deputy Speaker, Carol Hughes]

Once again, I appreciate the points of order. I would like to remind members that the question of privilege hinges on the motion and, therefore, there is some latitude.

However, the hon. member for Central Okanagan—Similkameen—Nicola is correct that the hon. member for Ottawa South must ensure that his speech revolves around the question of privilege. That discussion needs to be there. I would suggest the hon. member ensure that his speech is relevant and that he references the motion on the question of privilege.

The hon. member for Ottawa South.

[David McGuinty, Liberal, Ottawa South, ON]

Madam Speaker, I will not be long and the relevance will become quite evident.

Following our examination of the documents provided to the committee and our meetings with DND CAF officials, the committee formed an opinion that DND intelligence activities conducted as part of overseas operations may not be in compliance with the Privacy Act. The committee referred this matter to the Attorney General pursuant to its obligation under section 31.1 of the National Security and Intelligence Committee of Parliamentarians Act, which requires it to make such referral when, in its opinion, an activity may not be in compliance with the law.

The review built on the committee's 2018 recommendation that the government give serious consideration to providing explicit legislative authority to the conduct of defence intelligence activities and went further in recommending that the Minister of National Defence introduce legislation governing defence intelligence activities.

In 2020, members of the committee, like all Canadians, were faced with the unprecedented situation of the pandemic. As such, the committee decided to provide the Prime Minister the only consolidated overview of threats to Canada's national security.

The committee found that the threats posed by organized crime and the proliferation of weapons of mass destruction did not fundamentally—

[The Assistant Deputy Speaker, Carol Hughes]

There is a point of order from the hon. member for York—Simcoe.

[Scot Davidson, Conservative, York—Simcoe, ON]

Madam Speaker, I was wondering if the hon. member could table the report that he is reading, or go on to the report about the Lake Simcoe clean-up fund, which we are waiting for in York—Simcoe. We would love to hear that.

[The Assistant Deputy Speaker, Carol Hughes]

That is not really a point of order. I would say it is debate.

I again want to remind the hon. member for Ottawa South that he should ensure his speech is relevant. I will read the motion on the question of privilege, which states:

That this House find the Public Health Agency of Canada to be in contempt for its failure to obey the Order of the House, adopted on June 2, 2021, as well as the orders of the Special Committee on Canada-China Relations, adopted on March 31 and May 10, 2021, and, accordingly, orders its President to attend at the Bar of the House....

Does the hon. member for Ottawa South want me to continue, or does he have the motion before him? Will he make sure that his speech is relevant to it?

[David McGuinty, Liberal, Ottawa South, ON]

I have the motion, and as I was saying earlier—

[The Assistant Deputy Speaker, Carol Hughes]

Perfect. I would suggest he references it every once in a while during his speech.

The hon. member for Ottawa South has the floor.

[David McGuinty, Liberal, Ottawa South, ON]

Thank you, Madam Speaker, for your indulgence.

The committee, of course, has been reviewing the major threats for the country, such as terrorism, espionage, foreign interference and cyber actors, for example. We have reported very openly now for Canadians on the question of terrorism, the growth of ideologically motivated violent extremists, the rise of groups embracing xenophobic violence, anti-authority violence and gender-driven violence. We have seen a growing number of examples of neo-Nazis, white supremacists, misogynist groups and individuals planning or conducting attacks, a trend which is mirrored around the world.

Finally, while the restrictions imposed as part of the COVID lockdowns, such as limitations on travel, have disrupted terrorism facilitation efforts, the pandemic and the concurrent protests increased anti-government rhetoric connected to ideologically motivated violent extremism.

In conclusion, the point of this evening's speech is to illustrate there is a highly functioning committee composed of good members from all sides of the House of Commons and of course members from the other place as well. It has been working well now for over three and a half years, has produced seven fundamental reviews and three annual reports. I have tried to set out for members, colleagues and Canadians how we conduct reviews under the legislation, when we are asked to redact, how we are asked to redact and the limitations on being asked to redact.

The message I want to leave with all parliamentarians is the following: Committee members form a dedicated non-partisan group of parliamentarians from both houses who take pride in undertaking serious work on serious national security and intelligence issues.

[Alex Ruff, Conservative, Bruce—Grey—Owen Sound, ON]

Madam Speaker, I would like to correct the member. In his speech, he talked about the National Security and Intelligence Committee of Parliamentarians as a proxy of Parliament. I remind him that, unlike similar bodies in other Five Eyes countries, such as the Intelligence and Security Committee of Parliament in the U.K. or the Parliamentary Joint Committee on Intelligence and Security in Australia, the NSICOP is not a special committee nor a standing committee of the Parliament of Canada.

It is, in fact, part of the executive of government. Therefore, it does not report to the House, it reports to the Prime Minister.

[David McGuinty, Liberal, Ottawa South, ON]

Madam Speaker, the hon. member is partly correct and partly incorrect. NSICOP is located halfway between Parliament and the executive. The committee is housed within the executive body of government and does report to the Prime Minister, but it is composed of parliamentarians. It is not bound by the procedural rules of parliamentary committees and operates at arm's length.

However, the Five Eyes organizations the member refers to for comparative purposes have their own variations on structure. As I mentioned in my speech, the ISC in the United Kingdom has a very similar, if not identical, reporting relationship with its Prime Minister, who also is involved in redactions of reports before those reports are made public by being tabled in their house, just as our reports here are made public by tabling through the Prime Minister.

Committee members from all political stripes contribute their unique perspectives as legislators to national security and intelligence matters. They have a range of experience, but together they represent perspectives from across this country.

[Jack Harris, NDP, St. John's East, NL]

Madam Speaker, the suggestion that this committee is appropriate was basically rejected by the Speaker in his ruling today. In reference to the National Security Intelligence Committee of Parliamentarians, he said:

However, as the members for Louis-Saint-Laurent and St. John’s East have pointed out, the act also makes clear that, despite its composition, this body is not a committee of Parliament. It exists outside of Parliament. In these circumstances, the Chair cannot conclude that the documents submitted to the National Security and Intelligence Committee of Parliamentarians fulfills an order of this House or of its committees.

That is very clear, and I invite you to refute that ruling.

[The Assistant Deputy Speaker, Carol Hughes]

I am not going to refute it. I will ask the hon. member to do that.

However, before I ask the hon. member to do that, I am going stop the clock and ask him to maybe unplug and then plug in his mike again. There seems to be an issue for the interpreters. If he could do that and then maybe give me a quick test.

We can continue, and if there is an issue, I will raise it again.

The hon. member for Ottawa South.

[David McGuinty, Liberal, Ottawa South, ON]

Madam Speaker, as I have noted in my remarks, the NSICOP​ Act allows the committee to review any matter relating to national security or intelligence that a minister of the Crown refers to it. The committee carefully deliberates before beginning one of its reviews, and it undertakes them on a very consensus basis. Deliberations can include discussions with relevant officials or with other review agencies or open-source research. The committee, of course, posts the launch of each of its reviews on its website.

I can confirm this evening that the committee has received a letter of referral from the Minister of Health. I can also confirm that the committee has received documents forwarded by the Public Health Agency of Canada in unredacted form.

[Larry Bagnell, Liberal, Parliamentary Secretary to the Minister of Economic Development and Official Languages (Canadian Northern Economic Development Agency)]

Madam Speaker, given it is almost summer, I hope members will indulge me before I ask my question.

As this may be my last chance to speak before the break, I would like to thank my staff for their hard work over the years, especially during the pandemic, which has added additional stress for everyone. I thank my Whitehorse team, Susan Moorhead Mooney, Ellen MacDonald and Alisha Khalik, as well as my Ottawa team, Aaron Casselman and Brad Weston. Being the MP for Yukon has been the honour of my life, and I want to thank Yukoners for continuing to put their faith in me year after year.

My question is related to the point of privilege and on which committee this should go to.

I was very excited when NSICOP was created, as I thought long before that we really needed it. I assume that previously many of the most serious safety issues for Canada and security issues for Canadians were not being dealt with by parliamentarians because they did not have the right security clearance. However, the member's report suggests that has been much improved since the committee was created. From the reports he outlined tonight, I would like the member to confirm that it is true, that these serious issues—

[The Assistant Deputy Speaker, Carol Hughes]

The hon. member for Ottawa South.

[David McGuinty, Liberal, Ottawa South, ON]

Madam Speaker, to my colleague for Yukon, maybe I will take a moment to go back to a theme that I think is important to tonight's debate, and that is the question of whether the Prime Minister may direct a committee to revise its reports, and he may, but the discretion to do so is not unlimited.

The Prime Minister may only direct NSICOP to remove information that would be injurious to national security, national defence or international relations where that is a matter of solicitor-client privilege. The use of the word “would” in the legislation is a high bar. The process that determines which information qualifies is modelled on the process used by the Federal Court to redact information from public decisions. Finally, on that point, since the creation of the committee and throughout our seven comprehensive reviews, the government has never directed the committee to remove information from a report that was not legitimately injurious.

[Dan Albas, Conservative, Central Okanagan—Similkameen—Nicola, BC]

Madam Speaker, I have a quick comment and then two brief questions.

First of all, I want to congratulate the member for completely ignoring the question before the House today. He read his way right through it.

Second, the member did give a very good, non-partisan overview of his committee, and so I would ask if he would be willing to come to my rotary club to give that presentation. We do not talk politics at our rotary club.

Finally, in his capacity as the member of Parliament for Ottawa South, will he be voting yea or nay for the actual motion?

[David McGuinty, Liberal, Ottawa South, ON]

Madam Speaker, the member's question gives me an opportunity to come back to an important theme that runs through the debate going on right now, which NSICOP members have been scrupulously careful not to directly participate in because of our special responsibilities. I mentioned the significant constraints that we all carry with respect to sharing information and the fact that our parliamentary privilege is waived in the context of the work we undertake. I know the member understands that and respects it.

I want to add to comments I made earlier, for his benefit and for the House's benefit, on government direction to the committee, a theme that has been raised in different places. The government has never pressured the committee to select or avoid a topic for review. It has never pressured the committee to change a finding or a recommendation. I think all members of our NSICOP committee would agree that we jealously guard the integrity and independence of the committee because we are seized with such profoundly important responsibilities in the area of national security and intelligence.

[Alexis Brunelle-Duceppe, Bloc, Lac-Saint-Jean, QC]

Madam Speaker, I will give our hon. colleague a second chance to answer my Conservative colleague's question, since he just failed to answer it.

Will he vote in favour of the motion, yes or no?

[David McGuinty, Liberal, Ottawa South, ON]

Madam Speaker, I will wrap up my presence this evening in the House, which was for sharing the work of NSICOP: the membership, the act, the powers it possesses, the restrictions, its role and its mandate.

I really want to thank all of the members who have served on the committee since the committee was created three and a half years ago. I really want to welcome the new members from the Bloc Québécois, the Conservative Party and the Liberal Party, who are joining other members, including a member from the NDP, and three senators. I am anxious for us to come together to continue to serve the Canadian people by taking on this enormous responsibility and sharing our findings with parliamentarians from all sides of the House.

We think we have an important role to play, and we believe we are acquitting ourselves reasonably well. However, we are always open to suggestions for improvement. I would ask the House to consider that there is a mandatory five-year review of the legislation that created NSICOP. It will be up for review in 2022, and I know all members of the committee would very much appreciate good guidance and recommendations for improvement in the way we operate.

[Michael Chong, Conservative, Wellington—Halton Hills, ON]

Madam Speaker, the motion on the floor of the House tonight asks the House to find the Public Health Agency of Canada to be in contempt for its failure to obey three orders, one being an order of the House and the other two being orders of the Special Committee on Canada-China Relations, and to order the president of the Public Health Agency of Canada to appear at the bar of the House to receive a formal admonishment and deliver the unredacted documents ordered by the House.

The issue in front of us today is simple. Has the government complied with the order made by the House on June 2 of this year and the two orders made by the special committee on March 31 and May 10 of this year, orders which mandated that the government provide the unredacted documents concerning the government's National Microbiology Laboratory in Winnipeg, Manitoba? The answer is clearly no.

These three orders are binding. They are not resolutions of the House or its committees. They are not an expression of the opinion of the House or of its committee. They are orders that must be complied with, just as Canadians have been required to comply with the public health orders of the government during the last 15 months of the pandemic, orders that concerned quarantines, movement, mask-wearing and many other things.

Since the adoption of the order on June 2, the government has said it has given the unredacted documents to NSICOP. That is not where the House order specified the unredacted documents be delivered to. The House order was clear. In part (a) it states:

(a) these documents shall be deposited with the Law Clerk and Parliamentary Counsel, in both official languages, within 48 hours of the adoption of this order

NSICOP is not the Law Clerk and Parliamentary Counsel. It is that simple. The government does not get to decide what part of a binding House order it gets to comply with and what part of a binding House order it gets to ignore, just as Canadians do not get to decide what part of quarantine orders they get to comply with and what part of quarantine orders they get to ignore.

Let us set aside for a moment the fact that the House order compels the government to deliver the documents to the Law Clerk and Parliamentary Counsel. Let us set aside for a moment that House order. Let us think about, in general terms, in the absence of these three orders, whether or not NSICOP is the appropriate place to hold the government accountable.

In our Constitution there is only one place to which the government is accountable and that is the House of Commons. We do not elect governments in Canada. We elect a legislature of 338 members, out of which a prime minister and government are appointed by the Governor General, on the assessment of the Governor General as to which member has the support of the majority of the members of the House. That is why this place is the only place in the land where the confidence convention exists.

The government's accountability to the House is not just a singular moment when it is appointed based on that assessment. The government's accountability to the House is not just the confidence convention. It is the daily and ongoing proceedings of the House and its committees, through question period, through committees, through debate, through votes and through so many other proceedings.

One reason that NSICOP is not the right place to hold the government accountable is that NSICOP is not a committee of this place. It is not a committee of the other place. It is not a committee of Parliament.

The act that governs NSICOP is the National Security and Intelligence Committee of Parliamentarians Act, and in subsection 4(3), under “Not a committee of Parliament”, it states:

The Committee is not a committee of either House of Parliament or of both Houses.

Not only is it not a committee of Parliament, but MPs and senators on NSICOP actually give up their parliamentary rights. Subsection 12(1) of the act says:

Despite any other law, no member or former member of the Committee may claim immunity based on parliamentary privilege in a proceeding against them in relation to a contravention of subsection 11(1) or of a provision of the Security of Information Act or in relation to any other proceeding arising from any disclosure of information that is prohibited under that subsection.

Furthermore, subsection 5(1) of the act governing the committee says:

The members of the Committee are to be appointed by the Governor in Council, on the recommendation of the Prime Minister, to hold office during pleasure until the dissolution of Parliament following their appointment.

In other words, members of NSICOP hold office at the pleasure of the Prime Minister.

Subsection 6(1) of the act says:

The Governor in Council is to designate the Chair of the Committee from among the members of the Committee, on the recommendation of the Prime Minister.

In other words, the Prime Minister decides who will chair the committee.

Subsection 16(1) gives the minister the authority to refuse information requested by the committee. Paragraph 8(1)(b) gives a minister the right to block the committee's review of any matter. Subsection 21(5) gives the Prime Minister the power to direct the committee to revise reports and remove information. It says:

If, after consulting the Chair of the Committee, the Prime Minister is of the opinion that information in an annual or special report is information the disclosure of which would be injurious to national security, national defence or international relations or is information that is protected by litigation privilege or by solicitor-client privilege or the professional secrecy of advocates and notaries, the Prime Minister may direct the Committee to submit to the Prime Minister a revised version of the annual or special report that does not contain that information.

These provisions allowing the Prime Minister to direct the committee to revise reports on the Prime Minister's opinion that information is injurious to national security, national defence, international relations or solicitor-client privilege are so broad and all-encompassing that they give the Prime Minister great latitude to see reports revised that might be embarrassing to the government.

NSICOP is not a committee of Parliament. Its members give up the rights they have as parliamentarians. Its members and its chair serve at the pleasure of the Prime Minister. Any minister has the broad latitude to refuse the committee information and to block a committee's review, and the Prime Minister has the broad power to change committee reports before they are made public.

All of this is not new. It is the exact criticism Information Commissioner Suzanne Legault gave in her testimony about Bill C-22, which passed in the last Parliament and now governs this committee. Clearly it is the wrong committee to hold the government accountable. It is like the fox guarding the henhouse, and that is why it is the wrong committee for the redacted documents to be sent to.

The argument I have just made about NSICOP being the wrong committee is really beside the point, because the three orders of the House and its special committee are clear. The unredacted documents are to be sent to the Law Clerk and Parliamentary Counsel, not to NSICOP.

I have heard the government make reference to the fact that NSICOP is similar to committees that exist in other democracies. That is not accurate. NSICOP is not similar to the U.K.'s Intelligence and Security Committee. Unlike NSICOP, the U.K.'s Intelligence and Security Committee is not under the control of the British prime minister. In addition, the U.K.'s Intelligence and Security Committee is a committee of Parliament. It consists of nine members, one of whom is the chair. While the prime minister nominates candidates for the committee, both houses of Parliament must confirm their respective parliamentarians, and both the House of Commons and the House of Lords have the power to reject the nominated candidates. Also, the chair of the committee is not appointed on the recommendation of the prime minister, but is elected by committee members at the first meeting of the committee.

As a result, the U.K.'s Intelligence and Security Committee has autonomy from the Prime Minister and the government. It is a committee of Parliament, with the ability to hold the British government accountable.

The government has said it will not hand over the documents because it is concerned about national security. That argument is not cogent, because in all three orders of the House and its special committee, a provision was made to protect national security or any details of an ongoing criminal investigation. In the order adopted by this House on June 2, paragraph (d) says:

(d) the Law Clerk and Parliamentary Counsel shall confidentially review the documents with a view to redacting information which, in his opinion, could reasonably be expected to compromise national security or reveal details of an ongoing criminal investigation, other than the existence of an investigation;

There is a difference between the three orders with respect to the Winnipeg lab documents and the House order of December 2009 that required the previous Conservative government to hand over documents concerning Afghan detainees. The difference is this. All three orders of this House and its special committee in this Parliament regarding the Winnipeg lab documents have provisions to protect national security and any details of an ongoing criminal investigation. The House order of December 2009, which had been moved by Mr. Dosanjh on December 10, 2009, contained no such provisions. It simply ordered the government to hand over the documents about Afghan detainees in their original and uncensored form forthwith, which meant they would have to be immediately and publicly released without any redactions. We took great pains in the drafting of these three orders for the Winnipeg lab documents to address the national security concerns expressed by the government at that time.

Another point to make is this. The first two orders adopted by the special committee had the support of all members of the committee, including members of the ministerial party. That was not an oversight. The members of the ministerial party knew exactly what they were voting for and knew exactly what the order of the committee said. Therefore, even members of the ministerial party believed the government must hand over these documents to the House and the special committee.

Since March 31, two and a half months ago, the government has ignored these orders, and now its ignorance has caught up to it. Initially, the government hid behind the Privacy Act, ignoring parliamentary supremacy and ignoring the fact that paragraph 8(2)(c) of the Privacy Act itself grants an exemption for personal information that is disclosed in compliance with an order made by a body with jurisdiction to compel the production of information.

After that argument did not seem to hold any more water, the government hid behind the excuse of national security, ignoring the fact that all three orders made provisions for the protection of national security. The reality is that one has to conclude that the government is doing nothing more than buying time to avoid providing this House and its special committee with information, hoping the clock will run out with the adjournment of the House next week on Wednesday.

My colleagues and I have not taken this decision lightly to pursue this motion of censure and to call the president of the Public Health Agency of Canada to the bar. We understand the constitutional implications of this and we understand the stress that public servants at the Public Health Agency of Canada must be feeling. However, there are bigger issues at stake here, including the strength of our parliamentary institutions, their rights and their privileges, which have been under immense pressure in the last year, some would even say in retreat because of the restrictions of the pandemic.

Since March 31, we have repeatedly urged the government to comply with the order. We have given the government ample time to comply with the orders, making clear the consequence of not doing so, including earlier this week at the special committee meeting on Monday evening. Despite all these admonitions, despite all these urgings, the government has chosen not to comply.

I make one last appeal to the government at this late hour. I urge the government to comply with the orders of this House and its special committee and deliver the unredacted documents to the Law Clerk and Parliamentary Counsel of the House. I urge all my colleagues in the House to vote for this motion if the government continues to refuse to comply with these orders.

[Jack Harris, NDP, St. John's East, NL]

Madam Speaker, I want to thank the member for his very clear exposition of what took place at the Canada-China committee. We are both members of the committee. I am a vice-chair.

To reiterate, you tried to find an explanation as to why the government is refusing to make this information available. The Liberals claimed legal authority at one time by a lawyer who was brought to the committee.

Do you think they are acting upon legal advice, or do you think there is another reason?