JURI Committee Meeting

STANDING COMMITTEE ON JUSTICE AND HUMAN RIGHTS

COMITÉ PERMANENT DE LA JUSTICE ET DES DROITS DE LA PERSONNE

EVIDENCE

[Recorded by Electronic Apparatus]

Wednesday, May 26, 1999

• 1536

[English]

The Chair (Mr. John Maloney (Erie—Lincoln, Lib.)): I'll call the meeting to order. Our first witness this afternoon is from the Canadian Security Intelligence Service.

Welcome back, Mr. Elcock. We're here on the main estimates for CSIS. Do you have a presentation today to add to the one that we heard several weeks ago?

Mr. Ward P.D. Elcock (Director, Canadian Security Intelligence Service): No, Mr. Chairman, I don't.

The Chairman: Okay. Then perhaps I'll open it up to questioning.

Mr. Abbott, these are seven-minute rounds.

Mr. Jim Abbott (Kootenay—Columbia, Ref.): Thank you very much.

Thank you for coming here, Mr. Elcock. I really appreciate the opportunity to be able to ask a few questions, because clearly the role of your department is very important to the Canadian people and particularly to business in Canada. I'm thinking specifically now of the example that we have in the United States with the dust-up between the U.S. and China. I'm conscious of the fact that Canadian defence companies and subsidiaries of U.S. companies in Canada are presently staring down the barrel of a situation, that the U.S. is thinking seriously of creating a situation of them needing to have some kind of special exemption in order to do certain military work.

Does CSIS get involved in overseeing that kind of thing? In other words, what I'm saying here is that the U.S. seems to feel that there really is some kind of a security problem. I wonder if you could comment on that.

Mr. Ward Elcock: There's no question, Mr. Chairman, that we, like most countries and other security services in other countries, have an aggressive counter-intelligence program, if that's what you're asking. I'm not going to comment on what countries we would be targeting in that context. I've said before that I wouldn't identify targets, but having said that, the program is an aggressive one, and any concerns we had about foreign countries targeting Canadian companies or Canadian government entities we would of course take up.

Mr. Jim Abbott: One of the things that is a bit of a mystery to me when I take a look at CSIS, CSE, and CISC is that I see some tumbling over between them. I'm am interested in what the distinctions might be. Recognizing that you don't want to get really close to commenting on specific issues, I'm trying to think of an example. For example, in regard to future electronics and the whole issue that the RCMP is going through there, presumably there would be some connection with their CISC division or with CSIS. Where does this all sort itself out?

Mr. Ward Elcock: We all have fairly different responsibilities. CISC is essentially a police intelligence body concerned with, if you will, criminal intelligence. There may be times when those things overlap. After all, ultimately, if a terrorist is ever to be arrested it's the RCMP or another police force that would have to arrest him or her. They do overlap, but at the end of the day CISC is a criminal intelligence body. Obviously we talk to them occasionally, but we're not in the same business, if you will.

Mr. Jim Abbott: There must be common turf that you have to get sorted out fairly regularly.

Mr. Ward Elcock: No, I wouldn't say that there's common turf that has to be sorted out regularly. There will be cases where we need to be sure we're talking to the police, less so to CISC, clearly, than to another organization like the Royal Canadian Mounted Police or another police force in Canada that's undertaking an investigation and where we find ourselves investigating similar targets; then, obviously, we talk to each other.

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Mr. Jim Abbott: How would a person go about finding out—as a matter of public interest, I believe, particularly in light of the revelations in the U.S. yesterday—about the relationship of those kinds of revelations and the current situation at an organization or a company like Future Electronics? Who is doing what to who when? I guess that is the question. Do you have any liberty to be able to comment on that?

Mr. Ward Elcock: I can't comment on specific investigations that others may have ongoing. From our point of view, obviously we're not in a position to talk about specific targets. We do provide information to the government. It provides the government with information upon which it can take action. In the case of a police investigation, obviously either the warrant or the denouement of an investigation will in fact confirm or clear up what may or may not be a problem.

Mr. Jim Abbott: Help me understand. You provide information to the government. Who in the government would you provide information to? Help me understand the pecking order, how that works.

Mr. Ward Elcock: We provide information to a wide variety of people within government. It depends on the kind of information you're talking about. Information with respect to an immigration problem obviously would go to the immigration department; if indeed it's foreign intelligence we're providing, obviously it goes to some other consumer. There are a wide variety of people who would receive information from CSIS from time to time.

Mr. Jim Abbott: Would it be fair to assume that there would have been a fair level of cooperation between CSIS and the U.S. agencies investigating this China connection to Canada?

Mr. Ward Elcock: We have very close relationships with the American agencies, including the Bureau. I'm not going to comment on specific cases, but we do have very close relationships with the Bureau.

Mr. Jim Abbott: In what way could we be aware of helping CSIS? I'm thinking of the China connection only by way of an example, but I think it's a pretty definitive example of the situation whereby our Canadian defence companies and Canadian U.S. subsidiaries are faced with this possible sanction from the U.S. because of their fear of things being loose in Canada. What should we know? How can we help? What do you need in order to do a more effective job? That is not questioning your effectiveness; I'm saying, how can we help you be more effective?

Mr. Ward Elcock: I think that in terms of counter-intelligence operations, we certainly are effective. As I said, the information is provided to government, obviously, rather than to this committee or to members of the committee. Information is provided to government to allow it to take decisions on what's required and, indeed, where it's necessary, to share it with others. It's for the government to decide how the information actually gets used. Under our legislation, I can specifically only report to government.

Mr. Jim Abbott: In a lexicon, sometimes we're working from different perspectives. When I think of the word “government”, I think of the Prime Minister and the cabinet; is that “government” to you, when you say “provide information to the government”?

Mr. Ward Elcock: It's all of, if you will—the terminology doesn't fit our system as exactly as it does the Americans'—in a sense, the executive part of government, which is the Prime Minister, cabinet, and government officials, broadly read, but it does not, at this juncture, include Parliament or members of Parliament.

Mr. Jim Abbott: So if some people in our cabinet, which, for sake of this discussion, I am calling “the government”, were concerned about some of the allegations that were raised yesterday in the United States, they would be made aware that you could provide them information on a very exclusive basis to help them in order to be able to respond to the U.S. concerns.

Mr. Ward Elcock: To the extent that anybody within the Canadian government, whether an official, a member, or a minister, wanted information, we would presumably, I would hope, be able to provide it if it's a problem on which we're working. That said, obviously we do work closely with agencies in other countries and do share information directly from time to time.

Mr. Jim Abbott: It's just that with this having the probability of having a direct impact on Canadian defence businesses—and I read a figure of as much as a billion dollars Canadian in U.S. government contracts—it strikes me that.... Would it be reasonable to assume that you would be providing that information fairly regularly or just on an as-required basis? We're talking about a billion dollars of trade here.

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Mr. Ward Elcock: At the end of the day, Mr. Chairman, I don't have any direct role in the issue of trade or the rules with respect to trade, in particular in defence projects, defence products, within the government. All we do is collect information.

In the case of counter-intelligence, all we do is target those who might seek to collect information in Canada. At the end of the day, we make sure we provide that information to whoever requires it, whether in government or.... In some cases where it's appropriate, we share it with foreign agencies. That's our role. We think we do it very well. We do it very aggressively and have no sense, frankly, that anybody thinks we aren't doing our function.

The Chairman: Thank you, Mr. Abbott. We'll come back to you.

[Translation]

Mr. Marceau.

Mr. Richard Marceau (Charlesbourg, BQ): Mr. Elcock, thank you for coming to speak to us today.

How much time do I have, Mr. Chairman?

[English]

The Chairman: Seven minutes.

[Translation]

Mr. Richard Marceau: You must know that about a week ago, a rather troubling story surfaced in the area around Quebec city. It was about the involvement of a real estate agent, Ms. Mona Naess, in a scheme undertaken by her partner, Ms. Chantal-Annick Tremblay, a CSIS agent, who wanted to relocate and to protect a terrorist in Canada. This was published in the papers and has now been made public.

How do you explain CSIS using the services of a person outside the agency to take part in a mission that would not only compromise the personal safety of Ms. Naess, but that would also personally link this person to the agent in charge of the case, Ms. Tremblay?

[English]

Mr. Ward Elcock: Mr. Chairman, I have no comment to make about the specific case, which appeared in the press. I neither confirm nor deny any of the suggestions that were made there.

I would say a couple of things apart from that. One, of course, is that there are mechanisms if people have legitimate concerns about how they've been treated by the service at any time. There are indeed places that they can take those concerns—and appropriate places to take those concerns. Other than that, I have no comment to make.

[Translation]

Mr. Richard Marceau: Mr. Elcock, is it current or occasional practice, without naming names, for CSIS to deal with people who aren't employees, in order to protect its informants? Is that done?

[English]

Mr. Ward Elcock: Mr. Chairman, I said before and have said in other places that what allows a security service in any country to function is people, and it's people accepting the role of a security service and being willing to assist from time to time. So of course it does happen from time to time that people do assist the service.

[Translation]

Mr. Richard Marceau: Is it current practice for CSIS to protect informants or those who act as sources from foreign intelligence services?

[English]

Mr. Ward Elcock: Mr. Chairman, we always protect sources very carefully. Indeed, the CSIS Act requires us to do so.

[Translation]

Mr. Richard Marceau: Including when they are sources from foreign secret services?

[English]

Mr. Ward Elcock: I have no comment to make with respect to the issue of foreign sources.

[Translation]

Mr. Richard Marceau: Just a minute. I hope that you have comments to make.

Is your service responsible for protecting sources from countries Y, Z, B or W when agreements have been signed between a foreign country and Canada?

[English]

Mr. Ward Elcock: Mr. Chairman, any operation that CSIS undertakes is taken in accordance with Canadian law. It's strictly in accordance with the law. We are, after all, reviewed by SIRC on an annual and onerous basis. We do anything we do very carefully and in accordance with the law. Other than that, I won't comment on specific methods that we might or might not use.

[Translation]

Mr. Richard Marceau: Mr. Elcock, whether I ask you a specific or a general question, you aren't the most talkative person. I find that somewhat unfortunate, especially since you have come before elected members and because you are controlled not only by an independent body, but also by the Parliament of Canada. Your organization must also be accountable to Parliament.

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In the case of the German source who was relocated and protected by CSIS in Canada, it has been stated publicly that this person has received a lump sum of $300,000 from the German secret service when that person was transferred to Canada. How much did it cost CSIS to insure the person's protection, or how much is it costing the Canadian taxpayers to assume the responsibilities of the German secret service?

[English]

Mr. Ward Elcock: Mr. Chairman, as I said a second ago, I have no comment to make. The facts that are quoted in the newspaper article may indeed be public, but I am not prepared to either confirm or deny any of those facts.

[Translation]

Mr. Richard Marceau: Without naming anyone, do you have an idea? If so, could you tell us how much the Canadian taxpayers are paying to protect sources from foreign countries who come to live in Canada?

[English]

Mr. Ward Elcock: No, Mr. Chairman. It would be contrary to national security for me to do anything like that.

[Translation]

Mr. Richard Marceau: To answer this question?

[English]

Mr. Ward Elcock: I'm not prepared to provide that information, Mr. Chairman.

[Translation]

Mr. Richard Marceau: To give us a figure would be contrary to Canada's national security?

[English]

Mr. Ward Elcock: Mr. Chairman, as I'd remind the committee, in fact, the budget of CSIS that is publicly available is only two figures. We don't provide any figures out of the CSIS budget, and I'm particularly not prepared to provide that information.

[Translation]

Mr. Richard Marceau: Mr. Chairman, he isn't answering. I find this completely ridiculous. What use is it to ask someone to appear if he won't answer questions from a parliamentary committee? It's absolutely ridiculous.

[English]

The Chairman: We have to balance the national security interest, Mr. Marceau.

[Translation]

Mr. Richard Marceau: Maybe it's up to us to do it. Maybe it's up to the parliamentarians.

I am asking fairly general questions. I wonder how much it costs Mr. and Ms. Taxpayer, to protect sources from foreign countries. After all, those who work for CSIS are paid by the Canadian taxpayers. It seems to me that in answering this question, neither the place, nor the names, nor the location of these sources, nor the method of protecting them, would be revealed.

[English]

The Chairman: Mr. Elcock, do you have a comment?

Mr. Ward Elcock: I'm sorry, Mr. Chairman. I understand what the honourable member is asking, but unfortunately I cannot provide him with that information.

The Chairman: Okay.

Mr. Lee.

Mr. Derek Lee (Scarborough—Rouge River, Lib.): I think that at this point, Mr. Chair, it might be useful for the witness to indicate to the committee why he is not providing the information. That would be useful, just for the record.

The Chairman: Mr. Elcock.

Mr. Ward Elcock: I think I've already provided that, Mr. Chairman. It would not be in the interest of national security for me to provide that information.

The Chairman: Are you finished, Mr. Marceau?

Mr. Richard Marceau: That's BS.

Mr. John McKay (Scarborough East, Lib.): What's the translation?

The Chairman: Mr. MacKay.

Mr. Peter MacKay (Pictou—Antigonish—Guysborough, PC): Thank you, Mr. Chair.

Thank you, Mr. Elcock, for your presence here.

The information that my colleague, Mr. Marceau, is interested in, these financial figures and sources, would that be part of the review by SIRC that takes place, the “annual and onerous” review that you referred to?

Mr. Ward Elcock: Those figures and that information would certainly be available to SIRC and I am sure that at one time or another they have reviewed all of those numbers.

Mr. Peter MacKay: That takes place, as you say, on an annual basis. There's a financial audit. That's part of the actual...?

Mr. Ward Elcock: We are audited as well by the Auditor General, Mr. Chairman—if the concern is a purely financial one. Having said that, I assume that the comment of the member was not directed to pure financial audit concerns. Over a year, SIRC would, on a continuing basis, undertake—and you can ask them more clearly about what their program is from year to year—a number of reviews across the service.

Mr. Peter MacKay: All right. Just to change gears for a moment, I want to ask you a question with respect to the presence of the Kosovars and the recent appearance in Canada of these refugees. Has CSIS raised concerns or have they undertaken certain security precautions with respect to the presence of these refugees in Canada?

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Mr. Ward Elcock: Mr. Chairman, we worked closely with Immigration Canada in the course of the program to bring in Kosovar refugees. Obviously the issues that would arise if any of those individuals applied for permanent status in Canada are different from the situation of refugees being given housing on the premise that they will ultimately return to Kosovo. Clearly we have worked with CIC to this point in trying to make sure that there are no problems. We will, if there are applications for some more permanent status, undertake the normal kind of investigation if we're requested to. If the information is passed to us by CIC, we'll review that and provide advice to CIC.

Mr. Peter MacKay: I agree with you that there is a difference between the short-term and long-term presence of these individuals—if in fact there is any concern. I guess that's my question. To date, has there been any reason for concern, particularly with respect to terrorist activity that might stem from their presence in Canada, either initiated by them or initiated towards them?

Mr. Ward Elcock: I'm not going to comment on the specific case, Mr. Chairman, but to address in general the member's concerns, clearly, in regard to any group that sought to advance its political interests by violence—which essentially defines a terrorist—we would be interested in looking at it and we would investigate.

Mr. Peter MacKay: Mr. Elcock, you obviously don't feel comfortable or mandated to answer specific questions, so I want to ask you a general question that arises from some of the main estimates.

But on one note, there was a gentleman whom I believe you would know, a David Harris, the former chief of the strategic planning for CSIS, who recently appeared before a United States committee and delivered what I would view as a very scathing indictment of Canada's ability to confront terrorism in this country. He, amongst other things, noted lax security laws and the federal policy of multiculturalism, which I thought was an interesting remark.

He stated that within the Canadian Security Intelligence Service there is a laissez-faire attitude towards terrorists who use Canada as a base to raise money and execute international terrorism. He noted that CSIS has a major counter-terrorism responsibility, yet the budget for CSIS has fallen steadily since 1993—which coincided with the election of this Liberal government—and that staffing has been cut to below 2,000 from the 2,700 that existed just prior to that period.

My question from all of those facts that were put forward by Mr. Harris to a U.S. committee: how does CSIS plan to continue to fight or fight on an ongoing basis terrorism in this country when they don't have the proper funding, according to a high-level individual who was involved in your organization?

Mr. Ward Elcock: Mr. Chairman, I don't know Mr. Harris. I've never met him. Mr. Harris was with the organization for something in the order of nine months, and the position of chief in our organization is not a particularly senior position. It's not junior, but it's not senior either.

I don't accept his views with respect to our ability to do our job, and indeed, we have said clearly—and I have said clearly to the minister—that we believe we can do the job. I don't know what he's relying on to say that we can't. He's simply wrong.

Mr. Peter MacKay: Presumably, with respect—

Mr. Ward Elcock: Which isn't to say, Mr. Chairman, that like everybody else, we wouldn't like more money. Everybody would, but the fact of life is that we believe we can at this juncture manage the threats to the national security of Canada, including terrorist threats.

Mr. Peter MacKay: I wouldn't expect you to say anything different, but what do you have to say about these cuts? According to these figures, you're down by over 750 personnel, and with respect to funding cuts, we know from the Auditor General's reports and from reports before the House that there have been significant budgetary restrictions imposed upon your department. I take it from that remark that you would obviously like more money, but do you feel that this is threatening your officers' ability to carry out their responsibilities?

Mr. Ward Elcock: No, Mr. Chairman, I don't.

Mr. Peter MacKay: You don't.

Now, I acknowledge that you haven't embraced any of Mr. Harris's opinions, but what do you say about his comment about the government's policy of multiculturalism as a cause for growing terrorism in Canada? He talks about the majority of immigrants coming to this Canada being peaceful and productive citizens, but says a small portion of them bring hostilities and resentments from their countries of origin; he speaks specifically of countries like Africa, the Middle East, Asia, and other troubled areas where counter-terrorism exists.

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With this backdrop and this statement that's been made by Mr. Harris—whether you embrace it entirely—how do you deal with this suggestion that CSIS should toughen up on terrorism without sounding racially motivated?

Mr. Ward Elcock: I have two things, Mr. Chairman. One, as an organization, we are tough on terrorism. In the period of the Cold War, as an organization we were concentrated much more heavily on counter-intelligence than we were on counter-terrorism. We now spend upwards of 60% of our budget on counter-terrorist issues. I don't think we are inadequately prepared to deal with the terrorist issue that confronts Canada from time to time, on which I've commented before.

That said, what was driving Mr. Harris? I don't know. He may have thought he was helping us; if he did, he wasn't. We believe we have the tools to do the job.

Mr. Peter MacKay: You're in regular contact with American forces that are tasked with a similar job within the United States—the FBI, the CIA. Is there a growing feeling in the United States that their country is vulnerable because of Canada's lax anti-terrorism and anti-organized crime response? Has that ever been expressed to you?

Mr. Ward Elcock: Mr. Chairman, in terms of the relationship we have with the American agencies, I would say that they have never expressed concerns to me, nor do I believe they have any grounds to express concerns with respect to our ability to do our job.

Mr. Peter MacKay: Thank you, Mr. Chair.

The Chairman: Thank you, Mr. MacKay.

Ms. Carroll.

Ms. Aileen Carroll (Barrie—Simcoe—Bradford, Lib.): Thank you, Mr. Chair.

Mr. Elcock, I realize you're in an awkward position. Maybe I wouldn't even describe it as awkward; it's just a position that doesn't allow you to give out the tools of your trade.

I jotted down some notes last night in advance of the big write-up that the Cox report got in today's National Post, but I had already started down that road, particularly because we have our procurement sector in serious difficulty vis-à-vis the Americans' withdrawal of the comparable defence term for “most favoured nation status”. I'm sure that you're well aware of the costs that they're now going to face since that special status has been removed.

Beginning there, and moving, then, in light of the Cox report, which shows massive Chinese penetration of some of their sectors, especially in nuclear development, and given that, from my reading of the Cox report—it's been a quick read—it seems to me that what it's showing is as much if not more penetration of their own industries.... Yet the retaliation is being directed toward the Canadian sector that, pre-Cox report, I think, and again now, from their point of view, it's our community that is leaking like a sieve.... Do you see that as an attempt on the part of the Americans to off-load, to use a diversionary response here, nailing the Canadian industry, when their own is in as bad or worse a situation as far as security goes?

Mr. Ward Elcock: There's no question, Mr. Chairman, that counter-intelligence problems tend to extend to more than one country. We all have them from time to time. I can't comment on what the motives of the American government might or might not be, and indeed, as I said in response to an earlier question, I'm simply the provider of information and the “carrier out” of investigations into foreign services that want to target Canada. I don't have any role in the policy issue with respect to Canadian companies being able to participate in the American defence industry.

Ms. Aileen Carroll: But surely, Mr. Elcock, as part of the intelligence-gathering community and being a very important part of intelligence as a technique of statecraft.... Because you indeed report to the government and, as has been pointed out, it's to cabinet, as it should be. You don't just gather. You have to assess, because raw intelligence data is useless to anyone other than the trained professional, which you are.

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In fact, what you need to hand off to government is an analysis of the intelligence you've gathered so as to equip them, as government, to utilize that as a technique of statecraft. I would suggest that their role—or our role, since we're members of that government—is to be able to take the intelligence that you have analysed and given them and, in this instance, alert the Canadian business community, which is being so negatively impacted by what they're learning from you.

If you are not able to alert that Canadian sector so that the kind of repercussion that is falling our way doesn't occur, as you've pointed out, because you can only go to the government.... But it seems to me that you have to do just that and accompany your reports and analysis of the intelligence you've gathered for the government with a suggestion that they do that.

Mr. Ward Elcock: I think we're saying the same thing, Mr. Chairman. That's essentially what we provide the government. All I was trying to say is that apart from providing that advice to government about what is or is not being targeted and who might or might not be targeting Canadian industries, Canadian companies, Canadian technology, whatever it happens to be, we don't have an actual role in the decisions of the Canadian government with respect to how it carries out its response to that policy, so I can't really comment on it one way or the other.

But clearly, our job, as you described it, is to collect intelligence on who is interested in Canadian technology, in Canadian industry, and on who is seeking to target it, and to try to deal with that, ultimately to try to stop it or to ensure that anybody who is doing it is ultimately arrested and dealt with—or expelled from the country, if that's the case.

Ms. Aileen Carroll: Thank you. You would not then be able to answer the question about to what extent the Chinese have penetrated the Canadian interests, particularly, I would suggest, our scientific community. That would be information you would have, would have analysed, and would have conveyed to the government.

Mr. Ward Elcock: If I had such information, Mr. Chairman, I would certainly have given it to the Canadian government.

Ms. Aileen Carroll: The other area I wanted to ask you about was your reference to the fact that since the demise of the Cold War your shift has been more to counter-terrorism rather than counter-intelligence, on this sixty-forty split or—

Mr. Ward Elcock: It's roughly sixty-forty.

Ms. Aileen Carroll: Since we are now in a very different world—the Kosovo situation is possibly a good example of that—since the demise of what was a bloc-to-bloc confrontation, we're not in a bipolar world but a multipolar one, which many analysts see as inherently unstable. Do you see that impacting on the service you provide? In what way, do you think, does that change in the international profile impact on your service?

Mr. Ward Elcock: Anything that happens in the world tends to have an impact on what we do. As I have said before, I think, the main source of the problems that we would confront if you look at it from a terrorism point of view would originate from homeland conflicts around the world—not that all immigrants from countries around the world are by definition a problem at all. We're talking only about a very small fraction of any part of any population, but in many cases there are individuals who seek to come to Canada and bring the conflict with them in one way or another.

On the counter-intelligence side, there are clearly a wide number of services that continue to operate and continue to believe that they can either advance their countries' interests by seeking new technology or access to new processes or by seeking information of value to the government purely as government, economic, political information. Our work continues; nobody has taken a break out there. At the end of the Cold War, there was a hope that in the new world order there would not need to be organizations like mine or that organizations like mine would have less work to do. In fact, I think, the reality has not borne it out. We're still very busy and still highly occupied.

Ms. Aileen Carroll: I would agree with you in that regard. In fact, one might argue, perhaps, that it was relatively more simple to operate within the realm of the Cold War situation than it is today.

Mr. Ward Elcock: The rules were certainly clearer in the Cold War than they often are now.

The Chairman: Thanks, Ms. Carroll.

Three-minute rounds now, Mr. Abbott.

Mr. Jim Abbott: You've repeated two or three times that—forgive me if this isn't precise—it's not directly your responsibility that Canada be able to participate in the U.S. defence industry; obviously you have a contribution to that, but that isn't your responsibility.

• 1610

I would suggest that when I read, “There's no question Canada has been used by the Chinese to set up companies to do a variety of things”, said Joel Johnson, vice-president of the Aerospace Industries Association.... I would suggest that in the light of this report that we've referred to a number of times, my earlier question, about what it is that we as parliamentarians could be recommending to the government to help you do your job better, is a friendly gesture, certainly on my part and, I would think, on behalf of the other people of like mind on this committee, because it appears to me that from this revelation and other revelations that there are indeed some lapses. When you make the assertion, “we believe we can do the job”, perhaps there are.... Maybe you can generally do the job, but maybe not precisely.

Mr. Ward Elcock: Mr. Chairman, I didn't take what the member said earlier as being a threat. I took it as being a friendly gesture. When I said that we can do the job.... The basic business of an intelligence agency is risk management, so by definition you're always managing the risk level of what confronts you. No service ever has enough resources to do the job, to do every facet of the job you might possibly do. Every service always wants more money. I'm sure the Stasi felt that they didn't have enough resources even when they had half of the population watching the other half of the population.

The reality is, you do need resources and you would like resources. The fact is that nonetheless we have the resources to do the job; we believe we do a very good job. There is no question that from time to time in the best-run organizations or the best-managed countries with very competent intelligence organizations, you run into trouble. There are many countries around the world that have had problems even within their own services in terms of penetration and so on. It happens.

That said, we are very good at what we do, and I think we have done a very good job of providing information to government on issues such as the one that you're concerned about.

Mr. Jim Abbott: I have the greatest respect for you and for your organization, so I don't want to engage in an argument, but—

Mr. Ward Elcock: No. I'm not trying to.

Mr. Jim Abbott: —with these current comments about the China situation and the Canadian connection to the China situation in the U.S., and given that we are faced with a potential billion-dollar cutback in economic activity in Canada's defence industries, I would suggest that perhaps you could use more resources.

Mr. Ward Elcock: Mr. Chairman, I have said—I think I've said it publicly, and I think it appeared in the report of the Senate committee—that we would like additional resources to deal with issues of technology. Those issues may or may not have anything to do with the kind of issue that you are now talking about; they deal with a bunch of different problems. That said, we have said we would like some more resources, and we have made that clear to the government. At the end of the day, it will be for the government to decide what sort of resources we have.

Do we have enough resources to deal with what we believe to be the level of the intelligence threat to Canada? Yes, we do, at this juncture. We believe we're managing the threats and doing a good job of managing the threats. It's not impossible, even in the best-managed environment, to find cases that you either miss or that may slip by, but we don't miss very many, and if you look at other countries, you'll find that they have perhaps missed even more.

The Chairman: Thank you, Mr. Abbott.

Mr. Derek Lee.

Mr. Derek Lee: Thank you.

Mr. Elcock, I want to acknowledge your recent appointment for a further five years—perhaps there's some room for both congratulations and condolences.

Mr. Ward Elcock: Thank you for the congratulations, Mr. Chair.

Mr. Derek Lee: The service, as part of its work and under the statute, must work with or alongside or under the eye of the inspector general of CSIS. Does the inspector general of CSIS maintain an office in your premises?

Mr. Ward Elcock: They use office space in our building from time to time when they're working, Mr. Chairman, but in point of fact, the major review agency is clearly the SIRC rather than the IG.

Mr. Derek Lee: Well, with respect to the IG, I think we understand the IG as being the eyes and ears of the Solicitor General in regard to the service. Who is the current inspector general?

• 1615

Mr. Ward Elcock: At the moment the office is vacant, Mr. Chairman.

Mr. Derek Lee: Do you know how long it has been vacant?

Mr. Ward Elcock: Off the top of my head, no.

Mr. Derek Lee: When was the last time you remember an inspector general on the case?

Mr. Ward Elcock: The last one was Mr. Peel. I don't know when his last day in the office was.

Mr. Derek Lee: It's been quite a while, then, because you don't remember, I guess.

Mr. Ward Elcock: I remember Mr. Peel; I don't remember his last day in the office.

Mr. Derek Lee: When was the last time you saw Mr. Peel?

Mr. Ward Elcock: I don't think I've seen Mr. Peel in three or four years.

Mr. Derek Lee: Okay. Now, the inspector general, under the statute, has to provide a certificate to the Solicitor General that CSIS is doing the right thing.

Mr. Ward Elcock: No, Mr. Chairman—

Mr. Derek Lee: Has the issue been brought to your attention that there might not be a certificate available because we don't have an inspector general?

Mr. Ward Elcock: Mr. Chairman, the inspector general doesn't provide a certificate saying that the service has done nothing incorrect. As I recall the act, the inspector general simply assures the minister that the report we have provided to the minister is correct. It's SIRC, in point of fact, that is largely responsible for reviewing our activities.

Mr. Derek Lee: So the certificate that I've referred to and which you've referred to is going to be outstanding so long as we don't have an inspector general. Do I have that right?

Mr. Ward Elcock: That's right, Mr. Chairman. As long as there is no inspector general, there is no certificate.

Mr. Derek Lee: You don't know when Mr. Peel left and you have no idea when he'll be replaced...?

Mr. Ward Elcock: I said I can't remember his last day in the office. It was some weeks or months ago. I haven't seen him for a while.

Mr. Derek Lee: Have you ever discussed this subject with the Solicitor General?

Mr. Ward Elcock: At the end of the day, Mr. Chairman, there is not a lot of interest in our views on inspectors general or on SIRC because they are our review agencies, and inherent in that relationship is a certain amount of—

Mr. Derek Lee: They're kind of a pain in the butt.

Mr. Ward Elcock: If they do their work right, yes.

Mr. Derek Lee: You're just as happy to see the office vacant.

Mr. Ward Elcock: No, Mr. Chairman.

Mr. Derek Lee: This makes me nervous, because the inspector general's office was one of the key elements of oversight put in place by this Parliament in 1984.

Mr. Ward Elcock: I think the key element was SIRC, Mr. Chairman, but clearly there is a role for the inspector general. We expect that one will be appointed in the not too distant future.

Mr. Derek Lee: I happen to think that the inspector general's office is pretty key too. You and I can differ on that, but in any event, thank you for answering that.

I would just ask the witness for clarification for the record, because this may come up again. From time to time, you will feel that you don't want to or can't answer questions that are put to you. You gave as a reason earlier that you didn't think it was in the best interests of national security. Could you hang that one on the wall for me? Could you nail that down for me in terms of law or procedure here in Parliament as to where that excuse for a non-answer could be found? Where did you learn it?

Mr. Ward Elcock: That's certainly the parliamentary practice, Mr. Chairman. I understand the honourable member's question, and he and I have had this discussion before. I suspect that it is not a very fruitful discussion.

Mr. Derek Lee: Beauty is in the eye of the beholder, Mr. Elcock, and I'm just curious about where that response might fit in law or procedure here in Parliament. If you don't know, it's okay to say you don't know, because maybe you don't know. Do you know where that sits in law or procedure on a parliamentary basis?

Mr. Ward Elcock: I know where it sits on a parliamentary basis, Mr. Chairman, but I don't think the discussion...from my point of view I don't think there's much point to it at the end of the day.

Mr. Derek Lee: Could you articulate that, then?

Mr. Ward Elcock: At the end of the day—

Mr. Derek Lee: Could you articulate where it sits on a parliamentary basis?

Mr. Ward Elcock: No, Mr. Chairman, I'm not prepared to get into that discussion. At the end of the day, I am here as a representative of the minister and the limit of what I can talk about is limited by national security.

Mr. Derek Lee: With your indulgence, Mr. Chairman...?

You say it's limited by national security. Could you put some meat on the bones and describe what you mean by that? As a member of Parliament reading the rules of Parliament, that particular rubric doesn't show up in my lexicon, and I'm asking you to help me understand what that means. When you say “national security”, what does this mean on a parliamentary basis? You say you know but you don't want to explain it. I'd like you to help me out a little bit here.

• 1620

Mr. Ward Elcock: Mr. Chairman, as I've said, my position unfortunately is that I'm unable to provide the information that another member sought earlier because of national security. I really can't go farther than that, though the practice within Parliament in committees for some considerable period of time has been not to provide that information. At the end of the day, if Parliament decides in its wisdom to change the approach, it's within Parliament's ability to do so, but further than that I can't comment.

Mr. Derek Lee: That's a good start. Thank you, Mr. Chairman.

The Chairman: Mr. Peter MacKay.

Mr. Peter MacKay: Is that decision solely your own or is there something you can point to that gives you that discretion not to answer a question? I think that's what Mr. Lee is getting at.

Mr. Ward Elcock: Mr. Chairman, I think we're talking about a matter of parliamentary practice and a committee practice that's gone on over a long period of time. It's not within my power to change it. At the end of the day, if Parliament wishes to change it, it may. But as the practice has been, in my position at this juncture, I'm not in a position to provide the information that was requested.

Mr. Peter MacKay: But I'm not concerned about the specific answers to the questions that were posed by the member from the Bloc. I think what Mr. Lee is getting at.... I've only been a member of this committee for a short time. You've been appearing here for a number of years and Mr. Lee has been a member of this committee for a number of years. I haven't heard anything yet, aside from “it's a practice”. In the past number of years, I have seen witnesses appear here who didn't claim privilege and answered very specific questions. I'm just wondering what it is you can point to in statute, policy, regulation, or guideline in your department or elsewhere that allows you to withhold information.

Mr. Ward Elcock: Mr. Chairman, my business is not parliamentary procedure. I don't propose, nor do I think the members would find it useful, to get into a discussion on parliamentary procedure—on which I don't pretend to be an expert. If members want to have this discussion, they should perhaps have it with somebody else.

My position is director of CSIS and there are limitations, frankly, on what I can provide. At the moment, unless somebody tells me otherwise, I have to balance national security in the interest of protecting national security and I'm not in a position to provide detailed information to some of the requests that have been made. Where I can answer them, I will answer the questions that are asked, but if I can't, I won't, unless and until the rules have changed.

Mr. Peter MacKay: So you simply make a judgment call on whether it's a threat to national security to disclose the information.

Mr. Ward Elcock: Well, at the end of the day, Mr. Chairman, as the custodian of the information, if you will, I'm not sure who else would make the decision about whether national security is relevant or not.

Mr. Peter MacKay: Okay.

You've denied that the Americans have expressed to you or that anyone, I take it, has expressed to you that there is a concern on the part of American security intelligence that they are becoming more vulnerable as a result of either budgetary restraints or cutbacks within your department.

We know that in June our Solicitor General, Mr. MacAulay—your boss—is going to be meeting with U.S. Attorney General Janet Reno in Washington to discuss some of these matters, including terrorism and gang members that are entering the United States through Canada. Amongst the discussions, I'm sure they'll be talking about funding on both sides of the border to combat this cross-border trafficking of drugs and other contraband materials, organized crime, terrorism, telemarketing fraud, and firearms trafficking, which appears to be a big concern for this government.

What, in your opinion, is going to happen at those discussions? Is Canada going to be chastized for the fact that we're not holding up our end of the bargain? You've said in your remarks here today that part of the increased cost is the need for technical material. I take it that includes surveillance material and the ability to monitor Internet trafficking and this type of thing. What is going to be Canada's position when we meet with the U.S. Attorney General?

Mr. Ward Elcock: Mr. Chairman, I don't want to appear unhelpful, but I don't think I've said anything quite the way the member has enunciated it. I think what I said, Mr. Chairman, was that nobody has ever raised with me whether as an agency we had an incapacity to do our job or has given me the sense that they believed we did not have the capacity to do the job. Indeed, most of the jobs the member described are not jobs for which I have a mandate. I am not in the business of investigating bucket shops and fraud across the border, amongst other things.

• 1625

That said, I believe that as an organization we do have and do fulfil...we clearly have a mandate in respect of a number of issues and we fulfil that mandate. I believe that the agencies with which we work believe as well that we fulfil that mandate. That said, as well, as I also indicated, we have made it clear that in the future we will require additional moneys if we're to be able to maintain the effectiveness of our organization as it stands today.

We will require input to deal with the technological challenges that are coming down the road. Whether those challenges come from encryption or whether they come from new methods of communications and so on, we're going to have to meet those challenges as a country, and not only us but police forces are going to have to meet them. That will require some new investment. But absent that, I believe we do have the tools to do the job and indeed have a capacity to do the job.

The Chairman: Thank you, Mr. MacKay.

Mr. John McKay.

Mr. John McKay: Mr. Elcock, the last time you appeared before the committee you and I had an exchange concerning some Turkish Kurds, and I had given to you a letter, which you professed not to have received at the time, signed by ten Turkish Kurds who made some pretty serious allegations concerning the way CSIS does its security checks on Turkish Kurds. I know you have this letter and I know you've read it, because I gave you the letter and you read it while you were at the committee last time.

I'll refresh your memory with the third paragraph:

During our security interviews, each one of us has been asked to inform on our fellow Kurds and we have been told it will be easier for us to be landed if we did. We have nothing to hide as each of us will speak about ourselves but we will not be used against each other. We also know of Kurds who are landed or who are citizens who are still be[ing] harassed and intimidated in this manner.

Those are pretty serious allegations, Mr. Elcock, about CSIS and its authority.

I've been looking through the mandate of CSIS, and what I see in the mandate is: espionage or sabotage that is against Canada or detrimental to the interests of Canada; foreign influence activities within or relating to Canada or detrimental to the interests of Canada; activities within or relating to Canada directed toward the use of acts of serious violence, etc.; and activities towards undermining or covert unlawful acts directed to the overthrow of the constitutionally established Government of Canada.

So my question, Mr. Elcock, is this: how do you go from the clear mandate of CSIS, which is to protect the security interests of Canada, and end up in a situation where you do, effectively, freelance investigations for the Department of Immigration in order to land people? I don't see how that is within your mandate. Can you bridge that for me, please?

Mr. Ward Elcock: Mr. Chairman, I have a number of things. One, the matter to which the member refers is under review by SIRC. We're awaiting a decision. We've certainly put in our case to SIRC and there will be a decision forthcoming in the not too distant future, I hope, which will deal with that issue.

The honourable member suggested that I might not have had the letter. Indeed—if he has any lack of assurance about that—I had not had the letter at the time of the last discussion he and I had at one of these meetings

As to our mandate, the member may want to read sections 14 and 15 of the act.

Mr. John McKay: When is this review with SIRC taking place? Is it a completed review at this point?

Mr. Ward Elcock: My understanding is that it's completed. We're awaiting the writing of the review or the delivery of the review. At this juncture, it's—

Mr. John McKay: So we could reasonably anticipate within a reasonable period of time a response on the part of SIRC with respect to the activities of CSIS and the allegations contained in this.

Mr. Ward Elcock: You'd have to ask SIRC precisely when they propose to report or when the report will be coming down.

Mr. John McKay: But would that be a reasonable surmise on my part?

Mr. Ward Elcock: That would not be unreasonable, I would have thought.

Mr. John McKay: Thank you.

The Chairman: We've come to the end of our time. I know there are people who would like to ask more questions, but we've designated an hour. I know there are some who have indicated to me and have not had an opportunity yet, but I think we're going to have to conclude this portion of the meeting.

Mr. Elcock, we appreciate your presence here today.

• 1630

With respect to the comments and concerns about Mr. Elcock's ability or inability to answer questions, I think that perhaps you might take that under advisement and pursue it further if that is the committee's wish. I think the committee would feel better if they had clarification. Mr. Elcock may or may not be within his rights, but I think people want to know precisely. I don't know whether we approach that with SIRC or with our own Parliament, but we will pursue that if you like.

Mr. Elcock, again, thank you very much for being here.

Mr. Ward Elcock: Thank you.

The Chairman: We'll adjourn for five minutes and then move on to consideration of miscellaneous statutes.

• 1631

• 1642

The Chairman: We're resuming consideration of the Miscellaneous Statute Law Amendment Act.

We have at the table, from the Department of Justice, Mr. Kooiman, Mr. Macpherson, and Mr. La Fontaine.

Gentlemen, do you have comments or presentations on any of the material that we have before us?

Mr. Don Macpherson (Legislative Counsel, Legislation Section, Department of Justice): If you permit, Mr. Chairman, I will make some introductory remarks—

The Chairman: Yes, sir.

Mr. Don Macpherson: —followed by some introductory remarks by my colleague, Vincent Kooiman, who will speak to part II of the MSLA. After we've completed our remarks, we have several witnesses present on the back benches who will speak to particular laws and particular statutes.

The Chairman: We like backbenchers.

Mr. Don Macpherson: At any time, Mr. Chairman, indicate it to me and we'll invite them to the table to answer questions, perhaps after the introductory remarks, as a group or individually if questions are raised concerning the law in which they are interested.

It's a pleasure for me and my colleagues to participate with you in your review of the Miscellaneous Statute Law Amendment Act. Although it's perhaps not a matter of high international intrigue as were the previous matters in front of you, it's a very important collaboration between the parliamentary draftsmen and parliamentary members to ensure that the statute book is kept up to date and reflects the law as it stands.

The Miscellaneous Statute Law Amendment program was established in 1975 as a law reform initiative to expedite the passage of housekeeping amendments to the Statutes of Canada. In fact, one of the purposes of the law reform was to involve the backbenchers in the very important statute law reform that some of these housekeeping questions raise.

There have been eight bills since the inception of the program and this is the ninth MSLA package that's been put forward. The program provides for a non-partisan procedure to allow minor changes and corrections of errors in the statutes without taking up too much time in either House.

Basically the procedure involves a pre-study by committees of both Houses, and any proposal that either committee objects to is dropped. The approved proposals only are then reprinted in a bill, which is introduced in Parliament, customarily read three times, and passed without debate or subsequent consideration by committees.

• 1645

This is the committee stage, effectively, although it is a pre-study. We're here to assist you in satisfying yourselves that these proposals meet the program criteria and should be passed into law.

Most of these 1998 proposals that you have in front of you were submitted by federal departments and agencies, but some by individuals. Anyone can make a proposal to correct an error or make a minor amendment to the Statutes of Canada. In most cases, departments and agencies submitted the proposals through their legal services, which then submitted them to the legislation section for drafting. In the summers of 1997 and 1998, our fallow period while Parliament is in recess, we distributed the proposals among drafters and they were drafted as a group effort.

After the proposals were drafted, my francophone colleague and I reviewed them against the program criteria. I might underline that the proposals were reviewed against program criteria at three times: first by legal services lawyers when they were submitted to the legislation section; second by the legislative drafters who drafted them; and third by me and my francophone colleague in putting the proposals together.

The parliamentary review is really the heart of the process and this committee review is to assure yourselves that it does meet the program criteria as established.

I might mention to you that the Senate committee reported the proposals to the Senate without amendment on May 13, 1999, after an extensive review.

On to the criteria, if you turn to page 1(a) of the proposals, you'll see, under “explanatory notes”—

Mr. Derek Lee: On a point of order, our witness has embarked on a process, making reference to a document, and I want to say that the only document that I have is the one prepared by the Library of Parliament. I don't have the Miscellaneous Statute Amendment Act proposal in any original form.

The Chairman: These were circulated to offices before the break.

Mr. Derek Lee: My office has indicated to me that we did not receive it, but I'm pleased to know that the effort was apparently made.

Mr. Peter MacKay: The opposition got it, Derek, if that's any consolation.

Mr. Derek Lee: Did you?

I am now armed. Thank you. I'm prepared to continue.

The Chairman: Thank you.

I'm sorry, Mr. Macpherson. Go ahead.

Mr. Don Macpherson: The program criteria are on page 1(a). For an amendment to be allowed in this miscellaneous statute law amendment program, it must not be controversial, it must not involve the spending of public funds, it must not prejudicially affect the rights of any persons, and it must not create new offences or subject a new class of persons to an offence.

The main criterion of the program to allow a proposal to go through this expedited process and not be subject to full debate in Parliament is that it be “not controversial”. That term might appear unclear. To aid the committee, I'll refer to Minister Otto Lang's comment on “non-controversial” in his second reading speech when he announced the program in 1975. He said:

Determination of the criterion will not be difficult to establish. A proposal would become controversial as soon as one of the parties expressed opposition to it.

I think that's the essence of the non-partisan process, and if there's a substantial disagreement with any of the proposals in this package, the proposal will be dropped.

Just before we begin the review, I might point out that there is a document that was sent in a letter to the Clerk of the House of Commons, dated May 11. I'm not sure if you've received this, Mr. Lee. It lists 21 proposals that have been withdrawn from this package—which you didn't receive—since it was tabled in Parliament on November 5, 1998.

• 1650

Most of these were withdrawn because the proposals were included in bills that were tabled in Parliament subsequent to November 1998, and it also has a list of some proposals that were amended again because of bills that were tabled subsequent to November of last year. None of these changes contain new policies or new proposals. There are some that, after a reading of the report of the Library of Parliament that identified some proposals as being controversial, were withdrawn voluntarily by the departments that had originally submitted them.

Those are my introductory remarks. Before I pass this over to Mr. Kooiman, perhaps I could indicate to you, Mr. Chairman, who the other witnesses are that would be prepared to answer questions on specific proposals.

We have with us Michael Richard, who will answer questions about the Federal Real Property Act. We have Jeff Richstone, who will answer questions about the amendments to the Copyright Act. Alain Prévost will answer questions about financial institutions legislation: the Bank Act, trust and loans, insurance, and other financial institutions legislation, which appears throughout the proposals. Jim Buchanan is here to answer any questions you may have about the bankruptcy act. We have Elizabeth Britt for the Trade-marks Act, Anne-Marie Murphy for the Telecommunications Act, and Luc Leduc for the Employment Insurance Act.

When you are ready to ask questions perhaps they can come to the table, Mr. Chairman, and entertain the members' questions.

Mr. Kooiman just has a few introductory words about part II of the MSLA, which is a special part dealing with revised references to the Income Tax Act.

The Chairman: Mr. Kooiman.

Mr. Vincent Kooiman (Legislative Counsel, Regulations Section, Department of Justice): Gentlemen and ladies, I just wanted to say that the second part of the MSLA proposals, although contained in what is called a Miscellaneous Statute Law Amendment Act, are really not amendments at all in the sense that they do not change the law. They are the last instalment, in fact, of the statute revision process, which started so long ago that not everybody remembers how long that took.

What happened was that when the Statutes of Canada were revised, the main body of the eight principal volumes did not contain the Income Tax Act, for reasons of a technical nature and also because of the tremendous amount of work that the Income Tax Act as a statute has caused. More or less in concordance with the members of the fiscal community, after the whole body of the other acts were revised, after the four first supplements to the revision, we revised the Income Tax Act. So there were eight plus four volumes finished, and by that time, we started revising the Income Tax Act.

That means that in the statutes contained in the other volumes of the Revised Statutes, all the references to the Income Tax Act were references to the pre-revision act. After the Income Tax Act was revised and the new Income Tax Act came into force on March 1, 1994, there had been, of course, a considerable number of years that had passed, and we then started going through all the statutes, which is a bit easier now with the informatics that we have.

Nevertheless, we started going through the statutes and checking all the references to the Income Tax Act and, where necessary, we proposed changes either to numbering or, in a certain number of cases, to the terminology also. That was important, particularly so for the French text, because as is generally known, I think, in the last statute revision one of the principal objects was the improvement of the French version of the statutes, which in many cases, in older acts particularly, had been drafted in French by translators in a hurry, often after the statutes were already passed into law. So there are a certain number of differences in terminology.

• 1655

The clauses are only clauses 245 to 267, so there are only about 20 clauses involved. I think that is about all that can be said: that in fact there are other words used but the law is not changed.

The Chairman: Thank you, Mr. Kooiman. The package of materials was circulated to members of committee in the week before the recent recess. I appreciate, Mr. Lee, that you may be working at some disadvantage because you have not received these.

The Reform Party has indicated to me that they could not have a member present but that they are content with the material that has been presented to us.

Do any other members have questions or concerns that we might address to anyone? The experts are in the back benches to assist us.

Mr. Lee.

Mr. Derek Lee: Yes. I didn't want to give the impression that I hadn't prepared, Mr. Chairman. I had the benefit of the excellent document prepared by our own staff, so I have prepared, and I'm armed and—

The Chairman: We're very happy, Mr. Lee. Go ahead.

Mr. Derek Lee: —possibly dangerous. I'm going to start by asking a kind of an off-the-wall question, but I only get a chance to ask this once every 10 or 20 years.

Can I ask Mr. Kooiman when the citizens of Canada might expect a new Revised Statutes of Canada, given that the last one was in 1985?

Mr. Vincent Kooiman: I really couldn't give an answer to that, for the simple reason that I doubt that even my department and its head and deputy head know that yet. Sometimes, I think, there are two schools of thought. One is that maybe we should dispense with revisions at all, but I think that as long as we work with printed texts, although I won't be the one who will be working at it any more.... I would hope that another revision will be prepared within, well, at least the next 10 years or whenever it might be.

Some hon. members: Oh, oh!

An hon. member: When was the last time?

Mr. Derek Lee: Let the record show exasperation and exclamation marks.

Okay. That's fine. What's the problem? Money? Resources?

Mr. Vincent Kooiman: The normal—

Mr. Derek Lee: Law books that are 15 or 20 years out of date are useless—give me a break.

Mr. Vincent Kooiman: In the past, the normal intervals between revisions have been about 20 to 25 years.

Mr. Derek Lee: Except in Ontario, where it was every 10 years. I was spoiled.

Mr. Vincent Kooiman: Yes, I'm talking about the federal revisions. And of course nowadays there is such a volume of legislation that maybe shorter periods would be desirable—

Mr. Derek Lee: That's fine.

Mr. Vincent Kooiman: —but I don't think I'm the one to....

Mr. Derek Lee: Thank you.

On a point of order, Mr. Chairman, was it your view that we would address only matters that committee members wish to take up or were we going to walk through this in a particular order?

The Chairman: No, I wasn't going to walk through it in any particular order. The committee should have had an opportunity to review the material. If members had some concerns.... It is rather detailed and complex.

Mr. Derek Lee: All right.

The Chairman: We could be here for a considerable length of time if you're going to go through it clause-by-clause.

Mr. Derek Lee: Oh, I know. We could be here for days.

The Chairman: My point was to deal with areas of specific concern to members.

Mr. Derek Lee: I had made a number of notes.

The Chairman: Go ahead.

• 1700

Mr. Derek Lee: I have to thumb through them until I get to the first one of major concern. Can I go to the Boards of Trade Act, that is, clause 29 of the statutes?

The Chairman: What page, Mr. Lee?

Mr. Derek Lee: I'm sorry. It's MSLA clause 29. My preparatory work was done with our committee's document, not with the MSLA document I've just received.

The Chairman: I've been advised that clause 29 in the Boards of Trade Act has been withdrawn.

Is that your understanding, Mr. Macpherson?

Mr. Derek Lee: It's withdrawn? So all my hard work....

The Chairman: It just goes to show that there is—

Mr. Derek Lee: Clearly my eyes caught something of interest.

The Chairman: You've been very efficacious.

Mr. Derek Lee: Now, MSLA clause 46, Canadian Environmental Assessment Act.

The Chairman: Apparently that has been withdrawn as well.

It might be helpful for staff to advise us which sections have been withdrawn. It might circumvent a lot of work.

Mr. Don Macpherson: Would you like me to read them out, Mr. Chairman?

The Chairman: Perhaps, yes, and maybe we could—

Mr. Derek Lee: Mr. Lee would.

Mr. Don Macpherson: The proposals that are withdrawn are clauses 15, 17, 29 to 32—

The Chairman: Can we just slow down here, sir?

Mr. Don Macpherson: They are clause 15, clause 17, clauses 29 to 32, clause 34, clauses 46 to 49—those are the amendments to the Canadian Environmental Assessment Act—clause 69, clause 114, clause 123, clause 158, clause 192, clause 236, clauses 262 and 263, clauses 268 and 269, and clauses 270 and 271. There were some amendments to subclause 4(1), clauses 56 to 58, and clause 267, and there was a new conditional amendment added, subclause 272(1). That's the complete list of changes since November, when the proposals were tabled.

Mr. Derek Lee: That reduces some of the homework, then.

Did I hear you correctly? Is the Canadian Environmental Protection Act MSLA clause 50 still in business?

Mr. Don Macpherson: Yes.

Mr. Derek Lee: My disability when I went through this document was in not having the original document. I wasn't able to look at actual words so I'm going to pass on taking that matter up.

In regard to the Competition Act, clause 56, perhaps you could explain that again, because I was a little bit unclear as to the reason for the change.

Mr. François La Fontaine (General Counsel, Legislative Services Branch, Department of Justice): The change is basically to put back the text that was in the Revised Statutes, because this change of wording, if you will, somewhat changes the test, but as the revision is not a process by which you can make new law, the revision can only revise the wording, change the references, and so on. The law is the same; it's section 4 of the Revised Statutes of Canada, 1985 Act, that says that, so we're reverting to the original text to make sure that the test is the same.

• 1705

Mr. Derek Lee: As I understand it, the wording at some point in the past was “believes on reasonable grounds”. Those are the words that are used now.

Mr. François La Fontaine: Yes. You have the existing text on page 20(a) in the explanatory note. You see that in (b) it says “believes on reasonable grounds”.

Mr. Derek Lee: That's the wording now. As I read it, I tend to think that changing the wording to “has reason to believe” is more than just technical, and I'm asking you to indicate to me why you feel justified in using what I would call new words.

Mr. François La Fontaine: Again, those are the words that were in the pre-revision version, if you will.

Mr. Derek Lee: How did they get changed in the revision?

Mr. François La Fontaine: Pardon?

Mr. Derek Lee: How did it come to pass that those words were changed in the revision?

Mr. François La Fontaine: A lot of rewording happens in the revision. That's part of the exercise sometimes: to try to improve a provision that might be unclear or too long. During the revision, the drafters are allowed to split, for example, a subsection and two different subsections and so on and make changes in terms of the terminology.

Here I think it was certainly not intended, but by changing the existing text, which is whenever he has “reason to believe that”, to whenever he believes “on reasonable grounds”, I think it could be argued that the test is not exactly the same, except that by adding those new words, if they were to change in any way the existing test...the revision didn't have the authority to do that because you can't change the law by the revision. So in fact the test always stayed the same. That's why, to really get rid of any ambiguity there, we're reverting to the original terminology.

Mr. Derek Lee: So this will then correct what you believe to have been an error that occurred during the revision process.

Mr. François La Fontaine: Yes.

Mr. Derek Lee: To me that sounds like kind of a significant error to happen in a revision process, but that's not your responsibility, and as it has been painfully pointed out here, it was 15 years ago at least. Or do you know which revision caused the...?

Mr. François La Fontaine: The last one in 1985.

Mr. Derek Lee: Okay.

Mr. François La Fontaine: But you have to consider that Mr. Kooiman would be maybe more able than I am to tell you how long and how complicated that procedure was with respect to the thousands of pages that had to be revised. In a sense, I'm not too surprised that mistakes happened.

Mr. Derek Lee: Yes. I can handle that. I'm prepared to move on from that one, thank you.

I want to go to clause 73, under the Copyright Act. That particular clause would delete a reference to persons with perceptual difficulties. While there is an explanation given in the documents, and the explanation is to the effect that the presence of the words there would be moot because the extra charges or the exemptions or whatever...the charges wouldn't be applied in the first place to persons with perceptual disabilities, so the removal of the words would be moot.

I think that is the explanation, but because it involves a class of Canadians who have special recognition occasionally in statutes and regulation, I wanted to get it confirmed on the record that it is absolutely moot and that nothing is being taken away from this class.

• 1710

Mr. Don Macpherson: Mr. Chairman, could we ask Jeff Richstone, counsel to Canadian Heritage, to assist Mr. Lee?

The Chairman: If you you feel it would be helpful to ask some of the resource people at the back to come forward, please go ahead and ask them. Don't ask my permission.

Mr. Jeff Richstone (Senior Counsel, Department of Justice): I can confirm that it's completely moot. I can give a long explanation if you like, but I have a very quick and short one. If you want a longer one, I will give it to you.

Mr. Derek Lee: A short one, please, but I would prefer that you use not my words but your own.

Mr. Jeff Richstone: Certainly.

In the first version of Bill C-32, at first reading, there was a clause put in the Copyright Act for an exception for persons with perceptual disabilities: that it would not be a royalty-free licence, that the persons or people acting on behalf of persons would have to pay royalties.

Because of that provision there was this other provision that you're referring to in that clause, which said that because they had to pay royalties there would be a tariff structure and tariff hearings and these people or persons, on behalf of persons with perceptual disabilities, would be able to file oppositions. At second reading stage in this House, the provision dealing with royalties was taken out. It's now a royalty-free licence. Persons with perceptual disabilities or people acting on behalf of persons with perceptual disabilities can act within the exception and do it on a royalty-free basis.

Given that removal of the royalty, the subsequent reference to oppositions to a tariff became moot because there is no more tariff. Since there's no tariff that would apply to this exception, therefore, there is no need for persons with perceptual disabilities or people acting on behalf of them to file oppositions to a non-existent tariff.

Mr. Derek Lee: Is it your view also that there would be no other residual interests on the part of those with perceptual disabilities which would need to be addressed in a tariff revision process?

Mr. Jeff Richstone: Yes, it is my belief that there are no further interests, because since the persons with perceptual disabilities or the people acting on behalf of them would not be paying a tariff, there would therefore not be any interests in that regard.

Mr. Derek Lee: Thank you.

The next clause is clause 82, under the Crown Liability and Proceedings Act. I was somewhat torn in looking at the amendment. This one would delete a long-standing notice period which was inserted at some point in statute to provide for a very short seven-day notice period when an individual wished to sue the crown. I dare say the crown has from time to time relied on it, but it seems like an awfully short notice period. I gather that this amendment would simply delete the seven-day notice period. Does that mean that there will be no notice period?

Mr. Don Macpherson: That's right. This is a special privilege that the crown has in occupier's liability actions against the crown. These are slip-and-fall cases in which they sue the federal government. The crown has a residual privilege over other parties to litigation. They have a one-week notice period after the fall. Otherwise, the action can be ruled out. If you look further, in subsection 12(2) it says that failure to give the notice within seven days can be waived by the court. So even the existing law says the court can overlook this requirement, but normally you have to give notice within seven days if you're going to sue the crown in one of these actions.

This change came about as a result of a study inside the Department of Justice, a study of procedural and evidentiary immunities of the federal crown which was designed to eliminate immunities that can no longer be justified. I have a quotation from that study. It says:

The basis of the commitment to eliminate these immunities was the recognition of ostensible unfairness in the presence of legal advantages emanating from specific immunities or privileges which fall to the crown simply by reason of its status, particularly in view of current expectations of equality flowing from the Charter of Rights.

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So what this report recommended was to put the crown on the same footing as other litigants and remove evidentiary and procedural immunities that are not necessary. This is really a very small item since there aren't very many occupier's liability cases against the crown. Civil servants who usually would sue the crown are covered by the Government Employees Compensation Act. Really, it just puts the crown on the same footing as another litigant.

Mr. Derek Lee: Is there a notice period at all?

Mr. Don Macpherson: There is no notice period...the same notice period as would apply to ordinary limitation periods for other litigants.

Mr. Derek Lee: So there are limitation periods.

Mr. Don Macpherson: I think there are limitation periods that apply to litigants for these kinds of things.

Mr. Derek Lee: You see the thing that bothers me is that the crown doesn't really insure itself—it's self-insured—and the crown has a whole lot of land all over the place. It doesn't have people necessarily occupying the land; it just happens to own the land, either from the beginning of time or in fee simple or however it acquired it. I didn't think a notice would be unreasonable, simply because of those extensive holdings of land all over the place. I'm not thinking here just of office buildings; I'm thinking about 2.5 million acres in the southwest corner of Baffin Island or something, where you might have a slip-and-fall every couple of hours.

But in any event, you think what's there now adequately provides for the crown, for the public—and here we're talking public interest, not just Her Majesty—in the absence of a notice.

Mr. Don Macpherson: I think the same limitation periods would apply that apply to any other litigant, and in regard to an obligation to notify within seven days of an accident, no other litigant but the crown would benefit from that kind of notice period.

It may be of comfort to you that about half the provinces, I think, have similarly done away with these notice periods. I think half the provinces retain the crown privilege, but you'll notice that in regard to that crown privilege, even in subsection 12(2), the court may waive it; the court may say that it's basically unfair to require seven days' notice.

Mr. Derek Lee: Yes. So if we get rid of the notice period, then all you have is limitation periods—

Mr. Don Macpherson: That's it.

Mr. Derek Lee: —for commencing an action, and you think that protects the public interest well enough. Someone must have looked at that and come to the conclusion that notice was no longer needed, whether it was for 7 days or 100 days or 300 days, and that no notice was in fact going to be necessary when you sued the crown; you would simply have a limitation period. Has someone come to that conclusion?

Mr. Don Macpherson: I believe that in filing the action a notice will be required to be given to the crown once the statement of claim is filed. That would be the normal notice that litigants would receive. The crown doesn't receive a preferential treatment if this is repealed.

Mr. Derek Lee: So if I fall off a loose rock on Baffin Island and I come back five years later and decide I'm going to sue, do you think the crown is adequately protected? Because there's no notice—

Mr. Don Macpherson: The normal limitation period for bringing an occupier's liability case against the crown will apply. Whether you are suing a private company or whether you're suing the crown, the same limitation and notice provisions will apply. What we're doing is abandoning a vestigial privilege of “the King, the Crown”, where the federal crown got better treatment than other litigants. It was a prerogative privilege that the crown had and we think it's no longer necessary. The movement is away from those special privileges. Particularly in view of the charter and equality, these royal privileges are being dropped. This is one that we thought had no particular importance.

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Mr. Derek Lee: Dare I ask if there are any cost implications? Has anyone studied whether removal of a notice period would entail cost implications?

Mr. Don Macpherson: I believe that this seven-day notice period was not rigorously enforced by the courts and that if a litigant came back within the limitation period a year later and filed a statement of claim and the crown objected that they hadn't received notice within seven days, the court tended to exercise its discretion in favour of allowing the litigation to proceed.

Mr. Derek Lee: Okay. As you know, there's no insurance company looking after the risk management here. All we have is the crown, which happens to be the owner of all this real estate, and it won't be managing risk. We're all self-insured, so who's looking after the public purse? We've just walked away from a peg...anyway, I'll accept that as a reasonable explanation, Mr. Chairman.

The Chairman: I have a question on that myself. Would not one of the reasons for a seven-day notice period be that if there were a blatant problem on crown property it could be rectified very promptly so that other people wouldn't have the same injuries?

Mr. Don Macpherson: I'm sorry, Mr. Chairman, but I didn't—

The Chairman: Well, I'm trying to figure out what the reason was for the seven days. It was my understanding that in the Public Authorities Protection Act and acts of this nature, one of the reasons for a notice period was that the municipality or the crown would be made aware of a problem on their properties and would move to correct a situation so that others would not fall into the same trap and become so injured.

Or am I dreaming? Is that something from law school?

Mr. Don Macpherson: I would think it was just to give the crown an advantage and close down actions.

Perhaps Michael Richard could be of some assistance.

Michael, do you have anything to add on tort liability cases?

Michael Richard is with the real property group at the justice department.

Mr. Michael Richard (General Counsel, Property Law Section, Department of Justice): Mr. Chairman, I think that probably was one of the rationales for it, but clearly it stems from the crown prerogative and the right that the crown would be treated differently when it came to actions against it as a result of injuries suffered on crown property.

The Chairman: I don't take issue with getting rid of the seven days, because it's eminently fair. I'm just wondering: if that was one of the rationales for it, we're losing that rationale as well. There is the potential that if you didn't give notice within seven days, your claim could be nullified, negated. It's the first limitation period...it just doesn't wash, seven days. Anyway, I don't necessarily mean to take issue with this, because I think it's an eminently fair proposal that we are removing it. I'm just wondering whether we're losing some of the other reasons for it as well. How often is the crown sued under occupier's liability cases?

Mr. Don Macpherson: I believe that there are fewer and fewer. A lot of crown agencies are being privatized. If it is an employee, they can go under the Government Employees Compensation Act. I think things have changed since the original Crown Liability and Proceedings Act was enacted. The effort here is to modernize statutes in getting rid of archaic privileges. I'm sorry I can't be more helpful in the origin of this particular privilege. It may have been for the reasons you suggest, Mr. Chair.

The Chairman: Perhaps we could move on, unless there are any other questions. Are there any other points?

Mr. Derek Lee: I have one on clause 109. It's the same statute, I think, isn't it? I'd appreciate a better explanation of the reason for that clause. This has to do with ministers' signatures.

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Mr. Michael Richard: Yes. Under section 18 of the Federal Real Property Act, there are a series of provisions dealing with clarifying that while the crown has ownership of property, individual ministers have what's called administration of the property. They have custody of the property and are able by virtue of that to deal with the real property, to give leases and licences and to dispose of the property. It is ministers who have administration of federal real property who have the ability to sign conveyancing documents to effect the transactions. Typically, of course, the ministers have delegated those powers to government officials.

There has been some difficulty, particularly in the cases where the crown acquired the property many decades ago. In instances where we've acquired property recently, it's very clear which department and which minister has the use of the property, has custody of it, and therefore has administration.

Where we've acquired property decades ago, sometimes 100 years ago, the departmental records were not maintained in the kind of rigorous fashion in which real property records are maintained now in the government. There are gaps in the records and it becomes difficult to determine with certainty which minister legally has administration or legally has control of the property. That's very important for the scheme under the Federal Real Property Act, because it is ministers who have administration who are given authority to deal with the property.

So this provision is in here for essentially two purposes. One, which is the paramount purpose, I think, is to protect parties that acquire property from the federal real property, to assure parties that if a minister or the delegate of the minister signs a document basically purporting to have administration of the property, if there are any problems they will be internal to the government, that in no way will we prejudice the rights of a third party when they acquire property from the crown.

Secondly, this provision is in here to allow, in some instances where there's uncertainty as to which minister has administration, for a minister to go through a process to arrive at a point where he or she is reasonably assured that they have administration and signs the document.

Mr. Derek Lee: Thank you.

I have one last item, and that is in relation to the National Energy Board Act, clause 182. It says here that the section would create a new regulatory power to temporarily prohibit excavations in the vicinity of a pipeline.

I didn't have the wording at the time, but it seems to me that it is arguable that this provision would create a new offence, in pretty apparent contradiction to one of the requirements of the MSLA statute. I'm not saying that it does. I'm just raising the issue. It just looks like it. Without answering that question—I'm not asking you to say yes, it does, or no, it doesn't—perhaps whichever one of you is responsible for this part of the envelope could explain the elements of the background that give rise to the amendment.

Mr. Don Macpherson: I think you're quite right to underline the concern that the committee should address with this proposal. Does it create a new offence or subject a new class of persons to an existing offence? Does it affect rights? There's a balance that has to be drawn here.

This proposal comes near the borderline of the MSLA program in that there may be effects on rights of private landholders, although it doesn't directly create an offence. Contraventions of the regulations created under this new authority would not be an offence under the National Energy Board Act. There's not a provision in the act that says contravention of the regulations is an offence.

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Nonetheless, pipeline companies are required to keep records and report contraventions of the regulations to the National Energy Board and the board could inquire into a particular contravention of a regulation made under this new power and issue an order for a compliance. Eventually, a person who excavated in the zone in which excavation was prohibited—the new zone—while a pipeline was being laid could be pursued for non-compliance with an order of the board if it issued an order.

Your concern is justified. Does this subject people to a law that they aren't currently subject to and could they be punished if they scoffed at that law?

This issue was also addressed by Mr. Peter Noonan, who came from the National Energy Board to testify in front of the Senate committee. The balancing interest that directed them to approve or send this proposal forward, despite some concern about its effect on rights, was public safety. I'll quote Mr. Noonan's opening remarks. He says:

Pipelines are inherently dangerous and tragedies in relation to them do occur. As recently as April 1 of this year, a man excavating near a pipeline at Savanna, Alberta, was killed when his bulldozer punctured a gas pipeline owned by Nova Gas Transmission Limited. The resulting explosion created a fireball 30 metres in height, according to the witnesses to the explosion.

The intention of this particular power is public safety; it's to regularize regulations that have already been made under the National Energy Board Act respecting temporary restricted areas. Right now, section 112 of the National Energy Board Act says that it is an offence to excavate within 30 metres of a pipeline.

The regulatory power we're seeking now is to prohibit excavation in the vicinity of a pipeline, that is, beyond 30 metres of a pipeline while the pipeline is being laid, for a three-day period from the time a request is made to lay a pipeline until the pipeline is staked. We're asking for authority for the Governor in Council to prohibit excavation in the vicinity of the pipeline, which could be wider than that 30-metre area. The 30-metre area can't be defined until the pipeline is laid, so from the time a request is made to lay the pipeline until the area is staked out, they're asking for regulatory authority to establish a temporary restricted area in an area that would be larger than the safety zone of 30 metres on either side of the pipeline.

This amendment has its genesis in an opinion from the Standing Joint Committee on the Scrutiny of Regulations that the existing pipeline-crossing regulations that authorized these temporary restricted areas go beyond the legislative authority in the act. Those pipeline-crossing regulations authorize temporary restricted areas beyond the 30-metre safety area for the three-day period in which the pipes are being laid.

They've never been challenged in a court of law and they are legally valid now, but the Standing Joint Committee for the Scrutiny of Regulations suggested that the National Energy Board Act should be amended to ensure that those regulations were intra vires, and the amendment was included in the MSLA in order to do that.

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It will be up to the committee to determine whether it meets the criteria of the MSLA. Is this an unnecessary intrusion on rights of landowners in order to protect them, in a way, from accidents during the three-day period in which a pipeline decides where to lay its pipes? Does the safety concern overbalance any possible sanction that someone would eventually incur if they refuse to comply with the pipeline-crossing regulations?

I believe that counsel for the National Energy Board indicated in his opening remarks at the other place that this proposal was on the edge of acceptability under the MSLA. It's up to this committee to decide what is in fact the balance. Is this a proposal that is acceptable, that is, within a miscellaneous statute law amendment?

I might point out the name of the act is of some elucidation; it's not only to correct errors and certain anomalies but also to give authority to deal with matters of a non-controversial and uncomplicated nature so that policy changes can be made through the MSLA process.

The question for the committee is this: is it a non-controversial change to give an additional regulatory authority to allow the National Energy Board to regulate a temporary restricted area during the three days that a pipeline is being laid?

Mr. Derek Lee: One may also ask this question: might it subject a new class of persons to an existing offence? I realize the amendment doesn't create a new offence, but it does expand the zone in relation to which a prohibition—and therefore an offence—may take place.

Given the genesis of the problem and the encouragement of the SJC, I'm not going to pursue it any further. I'm happy with that, Mr. Chairman, and that concludes my list.

The Chairman: Thank you, Mr. Lee.

Ms. Carroll, do you have any concerns or comments?

Ms. Aileen Carroll: No, I don't, Mr. Chair.

The Chairman: That being so, it would appear there are no other concerns or comments from any of the members of the committee.

We appreciate your presence here today and the information that you had. You're certainly very thorough in your knowledge of the information in being able to respond to our questions. Thank you.

Mr. Lee.

Mr. Derek Lee: In disposing of this, do we do it now or will we do it later?

The Chairman: We're going to look into that, Mr. Lee. We're not sure what we're doing now. If it has to be by way of motion, we don't have the quorum to do so.

Mr. Derek Lee: I see. We would report it back. Thank you.

The Chairman: Thank you for bringing that to our attention. We're already looking into it. It doesn't happen that often. Once every 15 years, isn't it?

We're adjourned.