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Standing Committee on Public Safety and National Security


NUMBER 043 
l
1st SESSION 
l
42nd PARLIAMENT 

EVIDENCE

Thursday, November 17, 2016

[Recorded by Electronic Apparatus]

  (1530)  

[English]

    I'm going to call this meeting to order.
    This is our 43rd meeting of the Standing Committee on Public Safety and National Security. Pursuant to the order of reference of October 4, we are considering Bill C-22, an act to establish the national security and intelligence committee of parliamentarians and to make consequential amendments to certain acts. This is one of our ongoing meetings as we prepare for amendments and then eventual consideration of the act.
    We're very pleased to have Professor Leman-Langlois joining us by video conference from Université Laval.
    Also, we have the Privacy Commissioner of Canada, Daniel Therrien, and Ms. Fournier-Dupelle, also from the Office of the Privacy Commissioner.
    Our usual practice is to start with the witness who is coming to us by video conference just in case things fall apart, which they do from time to time. It will give us more time to get you back online.
    For 10 minutes we'll hear from Professor Leman-Langlois. After that we'll hear from the Privacy Commissioner.
    Take it away.

[Translation]

    My comments will be divided into three broad categories: first, I will make some positive remarks, then I will discuss some more negative elements, and finally, I will raise the very negative aspects.
    I would like to specify that even if my presentation focuses on the negative aspects, the bill is very interesting overall and should be supported, with a few small amendments, however.
    I would first like to emphasize the importance of Parliament overseeing intelligence and national security activities in their entirety. That is very important. Canada is a particular case in the western world, and I think it is high time we invested in the oversight of these activities. In the final analysis, we do this on behalf of the public, and parliamentarians should be involved in the oversight of national security activities. That is very important.
    Another aspect of this bill that makes me very enthusiastic is the idea that the entity discussed today will focus on all national security activities. The committee will not be targeting, one, two or three organizations that are more readily associated with national security, but also several others that engage in national security activities, although that is not their main activity. These two aspects are very important, and in my opinion mean that this bill must absolutely go forward.
    I will now discuss what I would describe as problems that concern the way in which the bill is structured.
    First, I believe the mandate is much too broad. There is an intent to review all national security organizations, at every level and in every way, which is a plus, but if people try to submit all of that to the committee, the work will be very incomplete, in my opinion, and the committee will not be able to keep its promises.
    Clause 8 refers to “reviewing the legislative, regulatory, policy, administrative and financial framework”, which is very relevant, in my opinion. That is the type of work parliamentarians have to do. They must ask themselves if the spirit of these laws is being respected when they are applied in these organizations, and whether the will of citizens is being reflected in the law and in practice. That is exactly the type of work parliamentarians must do, and it is incumbent upon them, in fact.
    This is also work that is not covered by the current oversight mechanisms, such as those of SIRC and the CSE Commissioner. They are much closer to what happens on a daily basis and generally limit themselves to determining if, yes or no, the organization that is being observed followed the law, in other words, whether it complied with the general parameters set by law that apply in this case.
    Parliamentarians must also ask themselves if the law in its current form is adequate or if it contains major gaps that mean that the organizations can commit certain abuses that run counter to the spirit of the law because it is drafted rather broadly.
    In addition to ensuring that the activities of the CSE, SCIS or other organizations comply with the law, we have to ask whether the law governing these activities is the one we want as Canadians. I think that is the work of parliamentarians.

  (1535)  

    That said, subclauses 8(b) and 8(c) involve daily activities and operations. There are two problems. First, the subject is really complex and is far beyond the scope of parliamentarians. I don't want to pass any judgments on the parliamentarians who will sit on this committee, but you need some very advanced skills, if only to understand the alphabet soup they use, starting with the acronyms, such as CSE. I thus think that we are headed for disaster, or that this committee will serve absolutely no purpose.
    In fact, this nine-person committee will have to examine so many activities and organizations that even with staff at their disposal, this will not be enough. We don't know what the budget of the committee will be. Even with an ideal budget, the activities that must be assessed and overseen are far beyond the capacities of the committee that is being created.
    Furthermore, this is a duplication of what is supposed to be the work of the oversight organizations. These bodies, such as SIRC or the CSE, are supposed to review daily activities, down to the fine details of programs, to see what was done and whether any abuses were committed against anyone. I don’t think the parliamentary committee should deal with that. It should leave that to the oversight organizations and focus far more on other issues. For instance, it should determine whether the programs as a whole truly reflect the wishes of Canadian citizens, whether the laws are adequate, and whether the budgets are sufficient. In other words, to comply with the bill's mandate, the role of the committee should correspond to what is described in subclause 8(a), rather than in subclauses 8(b) and 8(c), which describe a much broader mandate.
    In addition, the creation of this parliamentary committee adds little to what the oversight organizations are already doing. The parliamentary committee will add a grain of sand to the sandy beach of oversight.
    If the problem is due to the inadequacy of the oversight of operational activities by oversight organizations, the solution is not to add a layer of political monitoring, but to improve the structure of those organizations and increase their budgets. The budgets of SIRC and the CSE have been stagnant for years and years. They represent a laughable fraction of the budgets allocated to national security activities. I do not think the solution to the lack of effectiveness or power of these organizations is to create an additional layer that will have a great deal of difficulty navigating all of this.
    I see another problem regarding access to information. I think this has already been said before elsewhere. There are far too many restrictions on access to information. There is a whole slew of reasons that can be invoked to avoid parliamentary oversight. In light of the Security of Information Act, I think the committee is being granted investigative powers that will be easy to counter. I am not suggesting that the organizations being monitored would not act in good faith or would attempt to avoid this monitoring, but I think the law should cover all possibilities. We must not assume that the people who work in these organizations are angels and that they will be thrilled to be monitored. That may be the case, but we have to prepare for the worst case scenario, the one where people may actively try to avoid oversight. The act must be equipped and armed to deal with that.
    There is also the restriction for cases where national security is at stake. I think there is a semantic issue here. The committee is supposed to examine activities relating to national security, but there is a restriction: if national security is at stake, it can't access the documents. So there is a real problem there, since there is no definition, it's just being thrown out there and is very vague. I think a situation could arise where all of the activities to be subject to the committee's oversight could fall under the national security restriction, and no documents would be made available to the committee. I think this is a good way of shooting yourselves in the foot.
    I want to conclude by mentioning two things that are not issues contained in the bill as such, but constitute potential problems.

  (1540)  

    First, I am very concerned that after the government has adopted Bill C-22, it will put an end to the project to improve the oversight of national security agencies, that is to say that there will be no more oversight and the file will be closed, since there will now be the parliamentary committee. However, I am afraid that a lot of things may escape that committee.
    I am also concerned that the impression may be created that the new, very broad powers that have been granted by the Anti-Terrorism Act will be adequately offset by this committee of parliamentarians which, as I said earlier, will not be able, operationally, to meet the objectives that will be set for it.
    Thank you very much.
    Thank you very much.
    We will continue with the Privacy Commissioner of Canada.

[English]

     Thank you, Mr. Chair, and members of the committee, for inviting me here to discuss this important piece of legislation.
    I'm joined today by Leslie Fournier-Dupelle, a policy and research analyst in my office.
    Our interest in commenting stems from the intersections between the work of this proposed committee and the work of my office. Let me say up front that the Office of the Privacy Commissioner of Canada is supportive of parliamentary oversight for security and intelligence activities, which has been proposed many times in the past. While we applaud this as a long-overdue development, some amendments could be considered to ensure this new committee will be as effective as possible in this important area.
    We understand that the committee would be mandated to review three main things: first, the legislative, regulatory, policy, and administrative and financial framework for national security and intelligence; second, any activity carried out by a department that relates to national security, but subject to a ministerial override; and third, any matter relating to national security and intelligence that a minister refers to the committee.
    By and large, we believe the creation of this committee would contribute positively to the necessary discourse around the work of security and intelligence agencies which, due to their secrecy, can be sometimes ill-understood. Among the positive aspects of Bill C-22, this committee would ensure that Canada keeps pace with other democratic nations, most of which already have some form of parliamentary oversight.
    There are very real advantages to parliamentary oversight, principally that it enjoys democratic legitimacy since membership is comprised of elected officials. It has the additional advantage of situating security and intelligence activities within the context of the whole-of-government actions or broader parliamentary priorities. As such, a committee of this kind is well placed to directly influence policies in that it can recommend passing or amending legislation based on its findings. Finally, it can oversee broader financial frameworks, such as value for money and resourcing issues writ large, which specialized oversight bodies cannot typically undertake.
    That said, there remains a definite and ongoing role for expert oversight bodies, which, given internal knowledge developed over a period of time, are well positioned to undertake more detailed analyses of the operations of national security agencies. Furthermore, expert bodies with a complaints investigation function, such as my office, are well positioned to spot systemic concerns that can inform the conduct of audits and compliance reviews or otherwise provide a window into the workings of the agency for which they are responsible.
    In order to effect meaningful review, these bodies must have the capacity for proactive review and to educate both citizens and stakeholders, be non-partisan, and acquire and maintain in-house expertise.

  (1545)  

[Translation]

    We note that the bill allows explicit cooperation between the committee and certain named security and intelligence review and oversight bodies, which partially addresses gaps identified in the O'Connor Commission. However, the bill stops short of authorizing the sharing of information between oversight bodies, which should be remedied in order to support effective review.
    We have on several occasions called for integrated oversight between ourselves and our oversight colleagues, including the Security Intelligence Review Committee, which oversees CSIS, the Office of the Communications Security Establishment Commissioner, which oversees the Communications Security Establishment, and the Civilian Review and Complaints Commission which oversees the RCMP.
    Given the fact that information--including personal information--is the lifeblood of national security agencies, my office has a relevant role to play in ensuring that a proper balance is struck between security and civil liberties.
    As you know, we have deep and extensive expertise in the area of privacy and personal information, from which other review bodies could benefit. We continue to advocate strongly for an appropriate balance between privacy rights and public safety. Consequently, I would recommend that my office be added to the list of oversight bodies to which information could be disclosed by the committee.
    I would add a final point on transparency.
    We note that the committee's meetings are to be held in camera “if any information that a department is taking measures to protect is likely to be disclosed during the course of the meeting or if the chair deems its necessary”. In order for the committee's work to contribute to the public discourse on security and intelligence, in camera meetings should be the exception rather than the rule. It may be helpful to introduce a clearer threshold before a meeting is to be closed.
    A helpful threshold, which appears in the CSIS Act, the Canada Evidence Act, the Immigration and Refugee Protection Act and elsewhere, is if information “injurious to national security” is likely to be disclosed during the course of a meeting, then it would proceed in camera. This expression should be included in clause 18 of the bill, which discusses in camera meetings. I know that the expression “injurious to national security” has been discussed in this committee in order to determine if this limit should be imposed either on the mandate of the parliamentary committee, on the type of information the committee should have access to in the course of its work, or on the information that should appear in its reports.
    I am aware of these discussions. I would be happy to answer your questions on that or any other topic involving the bill.
    Thank you.

  (1550)  

    Thank you very much.
    We will begin the first round with Ms. Damoff.

[English]

    Thank you to all our witnesses who are here today.
     Mr. Leman-Langlois, you brought up insufficient budgets for the oversight agencies, which I thought was interesting. I know the mandate refers to “financial framework for national security and intelligence”.
    Do you think that's sufficient wording to cover that type of review of these oversight agencies' budgets? I hadn't read it that way, so I thought it was interesting when you brought that up.
    I wish it did, but if it says, “financial framework for national security and intelligence”, to me, that applies.... I'm not a lawyer so I'm not really that good at interpreting the law, but it seems to me that it really only applies to the financial framework of the agencies that are under review. It doesn't apply to the review bodies that look at CSIS or CSE. It should probably create another review body that would look into what the RCMP does. The complaints committee of the RCMP doesn't do national security. All kinds of other agencies don't have this kind of.... The budget is at zero. It doesn't even exist. It should be created in the first place and then—
    Are you saying that we should add something to Bill C-22 to define that?
    Probably. I never thought of that. It's a really good suggestion.
    I think the financial framework and that part of the mandate should probably be reworded so it looks at the framework in the budgets that apply also to the oversight agencies.
    Okay, thank you for that.
    Mr. Therrien, you had mentioned previously your concerns that the nine MPs and senators appointed to the committee, even though they're sworn to secrecy, weren't necessarily subject matter experts.
    Do you think the secretariat will be able to properly brief the members of the committee so they are able to properly review what comes to the committee?
    When I said something along the lines of what you suggest, it was not to say that the members of the committee or their staff would have insufficient expertise to review the issues that are the subject matter of the mandate of the committee. If I said something like that, it would be akin to what Mr. Leman-Langlois was saying, which is that in order to have good review overall, you need a number of types of review, one of which is parliamentary review with its advantages, particularly the democratic legitimacy of that process. But it is not sufficient.
    You also need expert review that can look into the operations of agencies more deeply, I would suggest, than a committee of parliamentarians. You also need judicial oversight. You need all kinds of oversight in order to have a fully effective system.
    There is a role for parliamentarians, but I think the gist of what I said before is that the surveillance, the review of national security agencies, cannot be limited to parliamentary review, and I would suggest that as a committee looking at this proposed legislation you should not think that a review by parliamentarians is sufficient. It is absolutely a good idea, but it is not sufficient. There needs to be judicial, expert review, and other reviews.
    The translation was lost a little bit. You had said that your agency should be added to the bodies that did something, and I didn't catch that. Sorry.

  (1555)  

    The bill lists three review bodies with which the proposed parliamentary committee would be able to share information. I'm suggesting that my office should be added to that list of review bodies, because we do have a role in these matters and I think it would be a good idea that all relevant players be able to share information in order to have efficient review, but complete review as well.
    Okay, thank you.
    Do you believe this committee will have sufficient ability to report any concerns they have to the public as it's set out now? If not, how would you amend the bill?
     I will take that question as referring to the limits to the contents of reports, which are found in the bill, and expand it a little to the issue of limitations, either to the mandate or to access by the committee or to what would be reported, which I think has been the subject of considerable discussion before this committee.
    The bill, in a number of places, clauses 8, 14, 16, and 22, and you're referring to clause 22 in the report of the committee, says that information, the disclosure of which would be injurious to national security, would have certain limiting effects to, one, the mandate of the committee, two, to the information that the parliamentary committee should have access to, and three, to what the committee would be able to report on.
    The committee of parliamentarians should not be subject to limits in terms of its mandate in relation to information that would be injurious to national security. The committee should have a broad, comprehensive mandate. That's the first point.
    In terms of access to information by the committee, the limits in clauses 14 and 16 are too broad. There are too many limits. Maybe some of these limits are desirable, for instance, the protection of sources or witnesses who deserve protection. I don't believe that it would be necessary for the committee of parliamentarians to do a proper review of the issues to be reviewed. They don't need to know the identities of sources of information or witnesses to do a proper job. Therefore, in clauses 14 and 16, I suggest that the list of exceptions or limitations should be reduced, but there may be legitimacy to some limits.
    Coming finally to your question about the reporting, that's the toughest question, because I think the committee should have access to everything, more or less, and should certainly have a mandate that is quite broad. However, regarding what the committee would report, there is an issue in terms of what should be reported publicly. Care needs to be taken so as not to report on some details that would indicate to the subjects of investigation, the national security agencies, certain methods of operations, and so on and so forth. For reporting, there is a better argument for protection.
    My last point on that would be that the bill proposes that the executive, that the Prime Minister, direct what would be protected. I think you should give some thought as to whether the committee should have more latitude, discretion, authority, on that question. Conceptually, it is justified that some limits to what details are reported be there. I'm not convinced that the decision-making authority should rest with the executive.
    Thank you, very much.
    Mr. Miller.
     Thank you, Mr. Chairman.
    Witnesses, thank you for being here.
    Mr. Leman-Langlois, I want to touch on something Ms. Damoff mentioned on insufficient budgets, because I flagged that one as well.
    Were you worried in the sense that the government would restrict the committee from doing its job just by saying that there aren't enough funds? Is that what you meant by that? I'm not sure I'm clear on that.

  (1600)  

     I'm afraid I wasn't particularly clear about that.
     I was concerned about the resources that we allocated to the committee and whether it was going to be able to do its work properly. There's nothing about that in the law. It's normal. There's nothing in the law about budgets, but budgets are quite a concern.
    When I brought up the budget, I was really talking about the existing oversight committees, some of which haven't followed inflation for the last 15 years. That's the case of the review committee of CSIS, for instance, whose budget has not moved in 15 years, while the CSIS budget is being brought up stratospherically since then. The CSE budget is also way up. That causes a multiplication of activities, a multiplication of new programs, and there's no way that the oversight committee can follow up.
     Okay, that clears it up, then. It's not really the committee that you were worried about there. The other thing that you mentioned, that's another issue all together.
    You also mentioned about the mandate being much too broad. I think you made the comment that many organizations come under this, which is true. You also said that you think it is something that could be extremely partial, or it would be. Can you enlarge on that a bit more?
    If you have a multiplication of agencies that are going to be under surveillance, then to me it's a good thing. That's a positive part, because finally we have a central authority that can do oversight of a vast number of different agencies. This is good, but that creates a workload that's very large. If you go down the list of the three mandates, I think that if you limited this committee to mandate (a), which is the political, regulatory, financial, and oversight, etc., then that sounds like it's manageable, but if you go down (b) and (c), and you give the mandate of looking into specific programs across this vast number of different agencies, then to me it sounds like a job for a very large organization and not a committee of nine parliamentarians. Even if they second 12, 15, or 20 staff, it's not going to be enough.
    Outside of the committee, the committee members have their work to do, and I think, without getting into the details, that it's self-explanatory what they do. Of course, you have, just as this committee does, clerks and analysts, and what have you, who are there to assist us in information, etc. Are you thinking that wouldn't be the case here?
    If you have a very large organization, as I said before, and if you really have a huge budget and you centralize all this oversight in one place, then it might work, but I don't see that being too likely. What we're going to have with this committee will be like the committee you have right now exactly, except with the security clearances that allow you to look into more confidential national security matters with the restrictions I spoke about before. You'll have your work cut out for you. This is huge. Just overseeing CSE is very difficult, and the CSE commissioner has a really hard time overseeing CSE.
    If you have to look at 10, 15, or 20 organizations that are the backbone or infrastructure of national security in Canada, then I don't see that as being possible. What's going to happen is that it's going to look a bit like it is in Great Britain, where you have parliamentary oversight and a parliamentary committee looks at budget questions in depth across the board for different organizations, but it really doesn't do a thorough oversight of everything. It picks and chooses certain things that are important in the media or things that have caused some public attention. Exactly how the committee decides what it's going to look at, I'm not sure, but it's more like a standing inquiry commission that looks at four, five, or six different topics every year and not the 600, 700, or 800 different programs that we're proposing here.
    I'm limited on time, but you also made a statement that you thought there were too many restrictions on access to information. Can you give me a couple of examples?

  (1605)  

    I think Mr. Therrien touched on that problem, also. The whole point of having parliamentarians in a special committee that has special oversight, that is bound by secrecy, that is going to look at stuff in camera, and that is going to have security clearance is precisely to facilitate access to all the different kinds of information. If you start limiting it, and it's a national security thing that is worded in a very loose way, then that might reduce it quite a bit. In investigations where everything is going really well, then things are going to be perfectly fine, but when there's a public controversy or something like that, then it's going to start driving, and people are going to think that the committee is not going all the way to the bottom of the matter because some doors are blocked.
     Okay.
     Mr. Therrien, would you comment further on that part of it?
    Just briefly, please. I'll give you an extra minute because we had an extra minute on this side.
    I'll be brief. In addition to what I said before, I would make the following analogy. If you look at the rules around access to information and reporting by courts, that would be a good indication of what the committee of parliamentarians should look at. Courts that review the legality of activities of national security agencies have access to almost everything, with extremely limited exceptions, but when they report on the legality of certain activities, there can be redactions, and we've seen that in a recent judgment of the Federal Court. This is a good analogy for what should happen with the committee of parliamentarians.
    You talked about in camera meetings. Having sat on a municipal council for a number of years, as Ms. Watts and maybe some others have, from time to time we had to go in camera. Most meetings were public meetings, but sometimes something came up in the meeting and one of the members of the council simply made a motion that we go in camera and then we came out in public afterwards. Would that same kind of thing satisfy your concerns there?
    Having some rules for in camera hearings makes sense, given the nature of the information at play. I said in my remarks that the proposed standard for deciding on in camera hearings, i.e., whether the government is “taking measures to protect information” is a bit of an unknown, and it would be preferable to use the test that is known elsewhere in law, which is “injurious to national security”.
    Thank you very much.
    Mr. Dubé gets an extra minute too.

[Translation]

    Thank you, Mr. Chair.
    Mr. Therrien, I want to go back to the reports as well as to the Prime Minister's power to make changes to them. In fact, we are proposing an amendment to allow the public to know what type of content was removed and what justification was given. That is a minimum to us. That power still goes too far in our opinion, but at least in this way the public, when it sees the report with the changes that were made, would know that changes were made and would know the justification behind them.
    Would you support this measure, as a minimum? Would you consider it important?
    With regard to the existing text, it would be preferable in my opinion that the executive demonstrate that the fact of disclosing some detail would cause harm, injury, a prejudice. Clearly, that should be proven. It should not be left strictly to the discretion of the Prime Minister.
    As to who should determine if the injury is sufficiently serious, the question is debatable. In the case of courts that issue judgments involving national security, the government tells the judge about the harm that could ensue if the information were disclosed. The judge examines this and renders a decision later. That sort of process could be helpful and should be considered. As for whether the decision should ultimately be made by the committee or by the Prime Minister as the representative of the executive, I have no firm opinion.

  (1610)  

    Thank you.
    The fact of that you alluded to the judicial process is interesting.
    Concerning that aspect of the bill, one argument the government often raises is the cooperation between the chair of the committee and the executive. I don't know if you have an opinion on that, but the United Kingdom finally chose to elect the chair of its committee. The current chair of the committee over there told us that that was a desirable solution because of the relationship the committee could and should entertain with the executive, and the need to win the public's trust.
    Do you have an opinion on that?
    All other things being equal, in my opinion it would be good if all the branches of government, the executive, the judicial and the parliamentary, played a role and were treated relatively independently. Clearly the executive and the judicial branch must demonstrate complete institutional independence one from the other. We should encourage the independence of the parliamentary branch with regard to the executive as to the mandate and operation of the committee in question. As to whether there should be total independence as in the case of the judicial branch, I will let you be the judge of that.
    Thank you.
    The CSE Commissioner testified here last Tuesday. He indicated that under the National Defence Act, they are legally obliged to report any activity the CSE engages in that is in violation of the law. Currently, this committee does not have the mandate of reporting such acts to the ministers responsible, who are the Minister of Public Safety and Emergency Preparedness and the Minister of Justice.
    Would this be a good element to add? In this way, when the committee became aware that the law had been broken, it would have the obligation to divulge, as does the Commissioner of the CSE, for instance.
    You are touching on the issue raised by Mr. Leman-Langlois, that is to say the role the parliamentary committee should play. If the mandate of the committee were to report breaches to the law, this would be closer to operations. The point would be to determine if the operations broke the law. I am not excluding that. I think that the parliamentary committee should examine operations to get some idea of the legislative framework it should adopt.
    If the parliamentary committee had to give its opinion on the legality of a program, it would be less to report the illegality of a certain operation than to determine to what extent the legislative framework should be improved to limit the possibility of such violations of the law.
    Thank you.
    Much has been said about the importance of having access to information and about the limits to that access.
    The meetings of the parliamentary committee would be held in camera; the information would not be disclosed publicly. There are already serious sanctions should parliamentarians not respect these obligations. Therefore there is really no reason to prevent parliamentarians from having access to information.
    Going by your comments, I think you both agree with that?
    Yes.
    Mr. Leman-Langlois, how do you feel?
    I agree, and I have nothing more to add to what you said.
    Thank you.
    Mr. Therrien, given the nature of your work, how important is it to you and your team to have access to the information you need to prepare your reports? If we want the parliamentary committee to be able to fulfil its mandate, it will have needs similar to yours regarding information.
    This may be difficult for you to summarize, but I would like to hear your opinion.

  (1615)  

    It is absolutely essential to have access to a maximum amount of information. In the case of recent reports we have prepared about the CSE and the disclosure of information to the Five Eyes intelligence alliance, we had to know the details of what had happened in order to make useful recommendations which were relevant and likely to improve the protection of the rights of Canadians.
    The identity of individuals, and the sources used by security services and witnesses have to be protected. I am not convinced that...
    Forgive me for interrupting you. I only have one minute left and I want to go back to an important point you have raised several times.
    There is an expression in English I appreciate very much, with regard to the committee's access to information: it is the “web of inference”. For example, something CSE did regarding a source could ultimately have consequences for another individual.
    It is important that we protect our sources. Nevertheless, do you think the parliamentary committee should know the identity of sources in cases where, according to this concept of the web of inference, this could provide it with additional information and help it to do its work?
    It's not inconceivable. However, all things considered, I don't think it's generally necessary to know the identity of sources, except in rare cases, such as for an organization like mine or for the committee of parliamentarians.
    So it would depend on the operation or actions taken.
    Exactly.
    Thank you.
    Thank you, Mr. Dubé and Mr. Therrien.
    We'll continue with Mr. Di Iorio.
    Ms. Fournier-Dupelle, Mr. Therrien and Professor Leman-Langlois, thank you for your help.
    Professor Leman-Langlois, you said that the mandate was too broad. You were referring to section 8 of Bill C-22. Is that correct?
    I don't remember whether it was section 8.
    That's what I noted. Section 8 starts with paragraph (a), which states the following:
8. The mandate of the Committee is to review

(a) the legislative, regulatory, policy, administrative and financial framework ...
    Do you know what that means?
    I think that, in terms of the regulatory, policy, administrative and financial framework, it means that we want to know whether our agencies are relatively well equipped to handle what they themselves define as national security and also what the parliamentarians will choose to define as national security. It also probably means determining whether the legislation gives enough power to agencies to carry out their work, but no more than that, and whether the regulations according to which the departments manage the agencies under their responsibility enhance effectiveness and ensure the rights of Canadians.
    I noted that you agreed with paragraph 8(a) and you found it acceptable. However, you had a problem with paragraphs 8(b) and 8(c).
    Paragraph 8(b) provides for the review of any activity carried out by a department that “relates to national security or intelligence.” However, the same notion of national security and intelligence is found in paragraph 8(a).
    Basically, it says that if these issues affect departments rather than agencies, the committee can review them regularly. Unless I'm mistaken, you don't have a problem with this.
    No. I don't have a problem with reviewing the departments. The problem arises when we talk about “activities.” Does it mean that the list of activities will be reviewed, and of the thousand activities, three will be scrutinized?
    It clearly refers to any activity that “relates to national security or intelligence.” The same terms are used in paragraph 8(a).
    Paragraph 8(c) obviously refers to a minister. This paragraph seemed to bother you. Why would there be an objection to a minister asking the committee to review a national security issue if, over time, national security had become the committee's specialty?
    Paragraph 8(c) concerns me less than paragraph 8(b).
    Paragraph 8(b) refers to a committee that focuses on operations and activities, or on “... any activity carried out by a department that relates to...” However, paragraph 8(a), which refers to “the legislative, regulatory, policy, administrative and financial framework,” is much broader. It deals with the policy and legislative aspect, whereas the other paragraph deals with operations and practices. Does the committee of parliamentarians need to duplicate the work done by review agencies that already exist?

  (1620)  

    If you look closely, these aren't agency activities. They're department activities. The departments aren't investigative and review agencies. We're talking about departments here.
    Yes. However, there's quite a long list of departments. If we want—
    Do you know of any departments that carry out review and intelligence activities? I'm not aware of any.
    Are you asking me whether intelligence activities are carried out within the departments?
    No department carries out intelligence or spy activities. The agencies carry out those activities.
    The agencies carry out those activities, but there are still possibilities. Many analysts and intelligence processing centres fall directly under departments. They don't work for agencies.
    Can you name one? Is there a department with an intelligence processing centre?
    Yes. The Canada Revenue Agency conducts cross-checks and communicates with the Financial Transactions and Reports Analysis Centre of Canada, or FINTRAC. There's also the Department of Public Safety and Emergency Preparedness.
     The Canada Revenue Agency carries out intelligence activities?
    Yes. The Canada Revenue Agency carries out intelligence activities and works with FINTRAC to obtain information on the funding of various activities.
    Okay. I see the time passing, and I have some questions for Mr. Therrien.
    Mr. Therrien, section 33 of the bill reads as follows:
33. The Governor in Council may make regulations

(a) respecting the procedures and practices for the secure handling, storage, transportation, transmission and destruction of information ...
    Who should establish these regulations? Should it be the government or the committee?
    I didn't understand the last part of your question.
    Should these regulations be established by the government or by the committee itself? We're talking about the destruction of information here.
    We're dealing with the committee of parliamentarians' independence or lack thereof. Under the bill, the committee reports to the Prime Minister. The committee is therefore part of the executive. In this context, it would be normal for the Governor in Council to establish the regulations.
    However, this model isn't the only one. There may be a model in which the committee is more independent from the executive and could therefore establish regulations or rules for these issues.
    Okay.
    You said earlier that

[English]

the committee “should not be subject to limits”

[Translation]

regarding the notion of

[English]

“injurious to national security”?

[Translation]

    I was talking about the mandate. I think the mandate should not be subject to exceptions or limitations.
    In terms of access to information, the limitations in the bill should be reduced.
    In terms of the type of report, certain limitations may be reasonable.
    Paragraphs 8(a), (b) and (c) describe the mandate. However, Professor Leman-Langlois has just told us that the mandate is already very broad. Paragraph 8(b) doesn't restrict the mandate. Instead, it broadens the mandate, given that it includes the departments' activities. Paragraph 8(c) also broadens the mandate.
    My opinion is slightly different from the opinion of the other witness.
    I think—

[English]

    Very briefly, please.

[Translation]

    I think to conduct an informed review in accordance with paragraph (a), it's useful to review the activities in accordance with paragraphs (b) and (c). If paragraph (b) is limited, the application of paragraph (a) may be affected.

[English]

    Thank you very much.
    Ms. Watts, for five minutes.
    A lot of the discussion questions have been answered, and I think everybody has talked about the independence of the committee. One of the challenges that we've heard and seen, whether we've gone across the country or had witnesses coming before us, is the way it's currently structured within the bill. It's reporting to the Prime Minister. The Prime Minister recommends committee members; the Prime Minister appoints members of the Senate; the Prime Minister appoints the chair, which he's already done before the mandate of the committee came forward. Starting off on that footing, it would seem to me that it's not instilling a lot of confidence as we move forward at this point in time.
    I want to get your thoughts on if we had a blank slate what the structuring of the committee would look like.
    The question is for both of you, please.

  (1625)  

    I will say that the way in which the committee is proposed to be structured under the bill is certainly preferable to the status quo. It would be certainly possible, and I think desirable, to have more independence in the way the committee is structured than what the bill proposes. As I said in answer to Mr. Dubé, I would err in favour of more independence, but does it have to be the same independence as the courts have vis-à-vis the executive? Perhaps not. The bill is better than the status quo. It would be preferable to have more independence, but I'm not suggesting that there should be complete independence.
    I understand that comment. I just want to say I think all of us here want to get it right. Anything is better than the status quo, but is that the right way to do it? I think it's more about looking at the right way to do it, and moving forward that way.
    Can I get your comments as well?
     As I said in my opening remarks, basically this bill is a great way forward. It's a very important step forward—a little late, but very good. I'm extremely positive on the whole about this new committee. I didn't talk about independence all that much, but I added certain things about how a committee is going to be able to look at strategic things, without picking and choosing very specific things, and giving the impression that everything else has also been looked at and doing a very incomplete sampling of intelligence activities in Canada. That would be my first thing: make the mandate look at only policy, law, and the regulations, and the rest should be left to the existing oversight committees. Hopefully, some day there will be another bill about making these committees work better, but for now, I think that would be very important: amending the mandate to do what parliamentarians do best. The second and the most important thing is removing most of the restrictions on what information is to be made available to the parliamentarians on the committee. But for the rest, I'm very satisfied with the basic ideas that are there in the bill.
     Thank you.
    Mr. Spengemann, for three or four minutes.
    Thank you, Mr. Chair. I may not even need the full three or four minutes.
    Mr. Therrien, you mentioned that you would like to see the Office of the Privacy Commissioner added under the definition of a review body, and 2(d), effectively, would be the paragraph in which you would be added.
    Can you sharpen that view a bit and tell the committee how you see the interactions between your office and the other three listed review bodies? How would this play out in practice if it were done tomorrow?
    The other three committees are subject matter experts for the national security operations of the agency they supervise. The Office of the Privacy Commissioner of course is an expert on privacy as it relates to all government departments, including national security agencies, so there's a complementarity to the mandates of SIRC, and so on, and the Office of the Privacy Commissioner. To have a fully effective review I think requires a number of layers: a parliamentary review, an oversight review by experts, and experts who bring significant added value to the exercise, and we think we add value, too, in privacy knowledge.
    Would you see anything else that is legislatively required other than to add you to that provision and to have the umbrella mandate to co-operate with the other review bodies or would you suggest more specific amendments to integrate—

  (1630)  

    In my remarks I referred to a few. On the question of to what extent the disclosure of information that would be injurious to national security limits the mandate, access, and reporting, I think these deserve amendments as well.
    Mr. Chair, with your indulgence, I would like to take one more minute.
    I'd like to take you to paragraph 2 of your written submissions. You say that the nature of the security and intelligence work is sometimes ill-understood due to secrecy. What is your assessment of the knowledge of the Canadian public on matters of security and intelligence?
    It is certainly better than it was a few years ago, particularly before the revelations by Edward Snowden, but it is still very imperfect and weak overall.
     Does your office have any research that you could point this committee to, opinion research, any kind of social science research, that goes into a bit more detail about what Canadians think about national security, the role of their government, and the role of oversight bodies?
    I can certainly undertake to provide this information to you.
    I think that would be helpful to the committee.
     Yes.
     Thank you so much.
    Mr. Chair, thank you.
    Thank you very much.
    I think that brings an end to our first round.
    Thank you very much again to our witnesses near and far. We're going to take one moment as we say goodbye to you and welcome our next panel.

  (1630)  


  (1635)  

     We're going to come back to order.
    Welcome to our witnesses, and thank you for agreeing to appear and give your thoughts on Bill C-22.
    Because it continues with the last panel, we're going to begin with Mr. Doucet from SIRC for 10 minutes. Then we will have Mr. Neve from Amnesty International, for 10 minutes, and then questions from the committee.
    Chair and members, good afternoon and thank you for having invited SIRC to appear before you today to discuss Bill C-22, the national security and intelligence committee of parliamentarians act. Our chair, the Honourable Pierre Blais, sends his regrets for not being able to join us.
    I'm joined by Charles Fugère, acting senior counsel and director, and Marc Pilon, legal counsel, both from SIRC's legal and registry services team.

[Translation]

    This discussion on national security accountability is very timely. For months, there has been healthy public debate on the powers that should be given to our national security bodies, and in parallel, the checks and balances required to ensure these powers are used properly. The government’s proposal to create a national security committee of parliamentarians goes to the heart of this matter.

[English]

    SIRC has been following this committee's work on Bill C-22 with much interest. We are aware that you have had very productive exchanges with government officials, legal experts, scholars, and practitioners.
    Today, I hope to advance the discussion and to enrich your study of this bill by focusing on three key points: first, to outline the value of the work performed by expert review; second, to discuss SIRC's possible relationship with the proposed committee of parliamentarians; and third, to take the opportunity to discuss the notion of horizontal expert review for Canada's national security community.
    I will not take much time now to describe SIRC's mandate and responsibilities. I will be pleased to answer any questions about our work following my remarks. I will simply state that SIRC is an independent external review body that reports directly to Parliament on CSIS's activities through an annual report.
    SIRC has three core responsibilities: to certify the CSIS director's annual report to the Minister of Public Safety; to conduct investigations into complaints; and to carry out in-depth reviews of CSIS's activities. Simply put, SIRC is key in providing accountability for CSIS.
    This brings me to my first point. SIRC and expert review bodies play a crucial role in ensuring proper accountability of our national security agencies. Allow me to briefly outline what we feel are some distinct benefits of expert review, namely independence, expertise, and continuity.
    First, SIRC is an independent body that operates at arm's length from government. It acts autonomously in its decision-making, including in determining which matters to investigate and report on. This independence allows SIRC to make findings and recommendations in an impartial and non-partisan manner.
    Second, SIRC's reputation and credibility are built on its expertise. Our full-time research and legal staff have access to all information under the control of CSIS, with the exception of cabinet confidences. Our staff devote their days to reviewing CSIS's activities in all programs and across the world. They also keep abreast of changes taking place at CSIS, not to mention political, legal, or other relevant developments in the environments in which CSIS operates.
    Third, SIRC's reviews involve continuous, ongoing, and detailed examinations of CSIS's core operations. A true benefit of SIRC's model is its ability to provide this detailed level of scrutiny on an ongoing basis. Our reviews provide a series of snapshots of CSIS's activities that when taken as a whole and over time yield a comprehensive assessment of CSIS's performance.
    Let me use a recent example to highlight the value of expert review. In early November, the Federal Court issued a public judgment regarding CSIS's retention of associated data unrelated to threats to the security of Canada. SIRC first brought this serious matter to the attention of the Federal Court.
    In SIRC's 2014-15 annual report, which was tabled in Parliament in January of this year, we reported on our review of CSIS's use of metadata. One of the recommendations stemming from this review was that CSIS advise the Federal Court of the particulars of its retention and use of metadata collected under warrant. This recommendation, which was rejected by CSIS, caught the Federal Court's attention and triggered a series of events leading to the ruling. To borrow Minister Goodale's words, SIRC blew the whistle on this matter and had a vital role to play in accountability.
    From our perspective, this case serves to illustrate the value of SIRC's work. More importantly, I would argue this case underscores the importance of expert review bodies such as SIRC being properly resourced. On this point, I can assure you we are working diligently to secure capacity funding for our organization to ensure we can continue to carry out our mandate effectively.
    On the second issue I wish to discuss with you, our relationship with the committee of parliamentarians, SIRC looks forward to establishing a positive and productive work relationship.

  (1640)  

     Three year ago, before a Senate committee, SIRC noted the importance of a future parliamentary committee working lockstep and hand in glove with SIRC to avoid duplication and achieve complementarity. This position holds true today. For this reason, we are pleased that the proposed legislation explicitly states that the new committee and review bodies will take all reasonable steps to co-operate with each other to avoid any unnecessary duplication.
    Overall, the goal of accountability benefits from having parliamentary oversight and expert review. The proposed new committee will examine the legislative, regulatory, policy, administrative, and financial frameworks for national security and intelligence. This means it will be well placed to examine large public policy questions and the objectives, policies, and programs of operating agencies, as well as the overall purposes of the government's national security policy. This high-level coverage will serve to complement the detailed, in-depth operational reviews carried out by SIRC.
    There has been some discussion around whether there is a need to further frame the relationship between this new committee and expert review bodies. SIRC believes there is merit to maintaining some flexibility on this issue and providing the new committee and review bodies time to establish rapport and to define points of intersection.
    Having said this, SIRC believes there are ways in which it could engage with this new committee.
    For example, SIRC could share its annual research plan to the committee to make it aware of its research focus. It could appear before the committee to discuss its work, findings, and recommendations, or to provide briefings on topics in which it has expertise. SIRC could also provide clear value to the proposed committee’s functions in relation to the clauses that would limit its ability to review CSIS activities or access CSIS information.
    For example, should the Minister of Public Safety decide that the committee of parliamentarians could not review a specific CSIS activity, following a determination that the review would be injurious to national security, or that the committee could not have access to specific CSIS information, SIRC would be uniquely placed, given its unfettered access, to the refused information and the reasonableness of this recommendation.
    SIRC could also, under its own mandate, decide to conduct a review of the CSIS activity in question. SIRC would then be able to report its findings to the committee and to Canadians in its annual report. This would represent a key safeguard, considering the limitations being placed on the committee’s access to activities and information.
    To summarize, we believe that expert review can complement and contribute to the higher level, broad oversight by a committee of parliamentarians. I have no doubt that there will be a mutual willingness by all parties to work together, and there will clearly be comfort that if the proposed committee is precluded from reviewing a CSIS activity or having access to CSIS information, then SIRC has the ability to review it and to report on it.
    The third and final issue I wish to raise relates to the need for a horizontal expert review of Canada’s national security community. Without doubt, greater parliamentary oversight represents an important step forward for accountability. In our view, there remains an important gap in our accountability framework as it relates to the ability to carry out community-wide expert review.
    Canada’s national security accountability framework has fallen out of sync with contemporary national security activities. Existing review bodies like SIRC are ill-equipped to review our increasingly integrated national security activities. For a number of years, SIRC has said publicly that it lacks the ability to carry out joint reviews with existing review bodies and to follow the thread of information as our mandate does not extend beyond CSIS.
    These challenges underpin a broader structural deficiency and the siloing of review. It highlights the need for an expert community review body with authority to examine all national security activities. This is all the more important, as most of the departments engaged in national security activities are not currently subject to independent review.
    While I appreciate that this issue falls outside the scope of Bill C-22, it is nonetheless appropriate to raise it here today, because it is intertwined with our discussion on strengthening national security accountability.

  (1645)  

[Translation]

    Let me conclude by thanking you for your dedicated work on this matter. The government has made a firm commitment to enhancing national security accountability. The SIRC looks optimistically ahead to having its work support and further this goal.
    I'm happy to answer your questions.

[English]

     Thank you very much.
    I just need to say that's the first time a witness has ended at exactly 10 minutes and zero seconds. Thank you.
    Your credibility has just gone right through the roof.
    That's a high standard, Mr. Neve.
    Thank you very much, Mr. Chair, and committee members.
    Amnesty International very much welcomes the opportunity to share our views and recommendations with you on this very important topic.
    Let me begin by highlighting where we start any time we enter into a discussion about national security, and it is to say the obvious but the necessary, which is that respecting and upholding human rights is not an obstacle to protecting national security in any way. It is, in fact, the very key.
    That is why throughout the consultations and reforms under way right now we have been urging the government to move toward adopting a human rights based approach to national security which would have three dimensions to it. The first is that the regard for human rights is recognized as a foundational pillar to our security framework; second, that there are human rights safeguards adopted as part of the national security framework; and third, that provisions in our laws and policies that fail to conform to either national or international human rights obligations must be reformed. That human rights approach is what guides our response to Bill C-22.
    Review bodies and processes play very important roles in boosting human rights protection in any context. Authorities who are aware that their actions are subject to scrutiny may take greater care not to commit human rights violations. Lessons learned will help avoid human rights violations in the future. Public confidence and trust increases the odds that officials will respect human rights. There may be potential to curtail violations, even while they are occurring, and human rights violations amounting to criminal conduct may be exposed and lead to accountability.
    The need for review is particularly great when it comes to government action in the realm of national security for obvious reasons. National security agencies have considerable powers that have the potential for very serious impact across a range of human rights. National security agencies around the world abuse those powers in ways that have resulted in serious human rights violations. The operations of national security agencies are shrouded in secrecy. They make the potential for abuse of powers all the greater, and because of that secrecy, national security agencies are shielded from the full force of other forms of scrutiny that generally bring human rights concerns into the public realm, such as the role played by the media, civil society, and even the courts.
    Amnesty International first expressed concerns about significant gaps in Canada's national security review apparatus while we were responding to the case of Maher Arar over 12 years ago. It was obvious from the very beginning that existing review bodies which might have been an option for him or his family had inadequate powers, and they were hampered by not being able to carry out reviews in a coordinated way that examined the ways in which security agencies worked together. There was also no clear means of turning to parliamentarians for review and remedy. There was truly nowhere to turn, and the only means forward became the costly and extraordinary step of convening a public inquiry, which lasted for over two years.
    During the Arar inquiry, we urged that national security review in Canada be strengthened in two fundamental ways: first, by instituting a review role for parliamentarians; and second, by establishing a comprehensive national security review process that would ensure all agencies are reviewed by bodies with adequate powers that are able to work together in an integrated fashion.
    That is what Justice O'Connor recommended in his 2006 report. Ten years later—it has been a decade—we have Bill C-22, which is very welcome, but it only takes us partway. Amnesty has four key recommendations with respect to Bill C-22 and Canada's approach to national security review more broadly. The first two deal with what is in the bill; the last two deal with what is not.

  (1650)  

    First, this law must make it clear that national security review is intended to play a key role in upholding human rights. In that regard, clause 8 of Bill C-22 should be amended to specify that the mandate of the committee of parliamentarians explicitly includes reviewing the activities of all departments and agencies that relate to national security or intelligence to ensure conformity with Canada's national and international human rights obligations.
    Second, we urge that measures be taken to ensure that the committee has access to the information it requires to conduct not just a review, but a robust review. That is the goal here.
    We seriously urge changes to the following provisions: Paragraph 8(b) should be amended to remove the power given to the minister to bar review of activities he or she determines to be injurious to national security. The exceptions regarding the committee's access to information in clause 14 should be significantly scaled back, in particular, paragraph 14(b) with respect to ongoing defence intelligence activities supporting military operations; paragraph 14(d) broadly covering information from which the identity of confidential sources can be inferred; and paragraph 14(e) with respect to ongoing law enforcement investigations that may lead to a prosecution.
    Those exceptions are broad and each has the potential to go to the heart of what is often contentious and troubling in the relationship between national security and human rights. There are several important high-profile cases in which robust review could have helped guard against human rights violations, all of which would still be significantly hampered by those exceptions.
    Similarly, the overarching power of the minister in clause 16 to refuse to provide information to the committee if it is considered to be special operational information or if the provision of the information would be injurious to national security should be removed. Why? National security review, to be effective, requires full access to all necessary information for the review body in question. That is vital because of the secrecy that surrounds national security agencies and their operations. If the review body cannot examine all relevant information, who can?
    Of course there needs to be assurance that the committee will not disclose to the public information that should be kept secret for legitimate reasons. The provisions in clauses 10 through 12 of Bill C-22 provide that assurance, requiring committee members to be security cleared, prohibiting committee members from disclosing information, and removing parliamentary privilege for unlawfully disclosing information. That provides a sufficient legal framework.
    Let me end quickly by highlighting two important aspects related to national security review that are not addressed by Bill C-22. Amnesty International urges this committee to press the government to go further with respect to both.
    First, echoing the comments from Mr. Doucet, we too want to highlight how important it is to go beyond this important measure of instituting parliamentary national security review and ensure that independent expert review—horizontal review, as Mr. Doucet highlighted—is improved in Canada. The current approach is fragmented; bodies have uneven powers; in some instances there are no bodies in existence with respect to important bodies, and as has been repeatedly pointed out, those bodies are not enabled to work together in an integrated fashion. This is critical and it would be a serious shortcoming and in many respects stands to even hamper the efficacy and work of the parliamentary committee if this is not addressed.
    Finally, as I noted in my opening comments, one of the important functions of review in any context dealing with human rights is to lay the groundwork for accountability when violations are exposed. A central component to accountability is ensuring proper redress for individuals who experience human rights violations in national security contexts.
    Canadian practice here falls far short of what is required under international law. I consider two particularly notorious instances, both of which have attracted the attention of the United Nations. The first is the three cases that were examined by Justice Iacobucci in the course of his 2006-08 review: Abdullah Almalki, Ahmad Abou El Maati, and Muayyed Nureddin. It has been eight years since that report was released, and there's still no redress for those three men for a series of serious human rights violations to which Canada did contribute.

  (1655)  

     Second, in 2008 and again in 2010, the Supreme Court of Canada ruled unanimously that Canadian officials had breached Omar Khadr's charter rights, stemming from their interrogations of him at Guantanamo Bay, knowing that U.S. officials were violating his internationally protected rights. Six and eight years after those two rulings, Mr. Khadr has received no redress.
    Why do I raise this here? It is little comfort to establish new review processes without confident assurance that wrongdoing that is exposed will be remedied. Parallel to reforming the review process, therefore, steps urgently need to be taken to ensure fair redress for individuals whose rights have been violated through national security operations in the past.
    Thank you.
    Thank you very much.
    Mr. Di Iorio, I'm going to keep our time quite tight to try to get everybody in. You have seven minutes.

[Translation]

    Thank you, Mr. Chair.
    Mr. Fugère, Mr. Pilon, Mr. Doucet and Mr. Neve, thank you for contributing to our committee's work.
    I will first speak to Mr. Doucet.
    I want to talk about section 9 of the bill. You referred to the relationship between the committee of parliamentarians and the SIRC, which you lead. Section 9 addresses the notion of duplication of work.
    Did you have section 9 in mind when you made your comment? Do you want to add something to the section or remove something from it?

[English]

    If I understand your question correctly, speaking to clause 9 on the co-operation between the committee of parliamentarians and SIRC, were you asking should it—
    You refer that it should contain the notion of unnecessary duplication, but it does contain it.
    I'm of the opinion, when I read clause 9, that there is no unnecessary duplication. I'll speak specifically to the mandate of SIRC and what I see as the intended mandate of the committee of parliamentarians.
    Absolutely there could be some duplication in the sense that the committee of parliamentarians may be looking at—and we'll use an example of information sharing among 17 agencies that deal with national security. SIRC will only have the mandate to look at information sharing from the nexus of CSIS, and we would look very deeply into the CSIS organization in doing so. Could the committee of parliamentarians and SIRC be looking at the same items or the same operations? Absolutely we could be, but I would guess and I would put out today that we would be looking at them from a different nexus.
    I'll direct you to clause 8, if I may. When you look at paragraph 8(a), my understanding is that SIRC does not do what is described in paragraph 8(a). Am I correct?

  (1700)  

    SIRC will definitely look at policy frameworks within CSIS. We'll look at whether they are abiding by their own policies and so on. Of course we will look at the legislated mandate of CSIS contained in the CSIS Act, and we will ensure that they are staying within their lane as defined by legislation. We tend not to look at administrative or financial matters.
    Do you do what is described in paragraph 8(b)?
     As I mentioned earlier, SIRC has unfettered access to CSIS facilities, to CSIS people, and CSIS information, with of course the exception of cabinet confidences. We can look at any information activity at CSIS. Under paragraph 8(b), it says “the appropriate Minister determines that the review would be injurious to national security” for the committee of parliamentarians. We have no such section in our enabling legislation in the CSIS Act.
    Are there matters that a minister of the crown would refer to you as we see in paragraph 8(c)? Do you see that done with SIRC?
    Under section 54, the minister can ask SIRC to carry out a specific review, but I want to be very clear on that. He can only ask. We are not compelled to do it. If you look at the issue on metadata that surfaced in the news a little while ago, the minister has asked us to take a look at that under section 54. However, he has not compelled us to do it.
     Do the members of the committee have some basic knowledge in matters of intelligence?
    That's a great question. We have a very diverse committee, a committee of five, and we refer to them as eminent Canadians. They have varying levels of expertise in what I would call a wide area or wide domains. They all bring their specific expertise to the table, but it's not a requirement that they bring expertise within national security when the Prime Minister names them to SIRC.
    SIRC has been effect for how long, 30 years?
    Thirty-one and change.
    Thirty-one years. Okay.
    Do you gain institutional expertise?
    Absolutely. As I mentioned in my opening remarks, we hire lawyers and researchers with tremendous backgrounds. We have that level of continuity within the organization with full-time staff members attacking the problems that are required of us.
    Bill C-22 provides for a review after five years to contemplate that it will have acquired institutional expertise after five years and that, therefore, we could complement it and add to the powers of the committee and eliminate some other restrictions that it contains.
    Have you seen this institutional expertise being developed over time that enables—
    If I speak to the SIRC example, we have tremendous institutional expertise and knowledge within our organization. Of course, we have the benefit of having done 31 years' worth of review, specifically, of CSIS. I expect that over time, the secretariat that supports the committee of parliamentarians will develop a certain and specific expertise.
    I'd like to turn to Mr. Neve, briefly.
    Mr. Neve, you referred to some of the items that need to be removed, and you argued that it should be full access with very few restrictions.
    I'll share with you my concern. My concern is that the members of Parliament initially will have very little institutional experience, expertise, and knowledge. With time, they will acquire it, and they will be able to either leave it to their successors or keep it to themselves, if they remain long enough on the committee.
    Wouldn't it be more appropriate for the committee to gain some of that expertise and knowledge before deciding what we remove from there? As you know, there's a review in five years from now.

  (1705)  

    You have five to 10 seconds.
    Measures perhaps need to be taken to ensure that the capacity building happens quickly enough to deal with it, but five years of review that would be limited in these very serious ways would be insufficient review, in our mind. Five years would be a long time to wait to remedy a process that would have a lot of shortcomings, in terms of the scope, the access, and the depth of the review being carried out.
    Thank you.
    Mr. Doucet, what is the budget for SIRC for a year?
    Right now, our budget is roughly $2.5 million on a yearly basis. As you probably know, we have capacity funding for this fiscal year that pretty much doubles our budget this year.
    Does that mean $5 million?
    Roughly $5 million, yes.
     I don't understand those words.
    Oh, I'm sorry. Our standard if you want to call it A base, or our standard budget, is in the order of $2.5 million to $3 million.
    Operating budget?
    Operating budget.
    We received capacity funding—
    What does that mean?
    That means additional funds. I'm sorry.
    This year, we have additional funds in the order of $2.5 million.
    What's that for?
    That's for expert review, to increase our ability to review CSIS. Those funds will expire at the end of March 2017. We're currently working diligently to have capacity funding extended past this fiscal year.
    Okay. I'm just putting it in the perspective of the secretariat budget. There is budget capacity for $3.2 million as the secretariat's budget, which would be higher than SIRC's budget for its expertise, so there would be the ability to hire good people.
    Absolutely.
    Okay.
    Ms. Watts.
    I appreciate the presentations.
    Mr. Doucet, I have a couple of questions on some of the comments that you made, that your mandate is specifically with CSIS, of course, and CSIS activities only, and you lack the capacity of all security agencies. If you're following an investigation, has that hampered you in any way?
     It has hampered us in the sense that in our post-9/11 era, our intelligence agencies are working much more closely together, and they co-operate much more than they have in the past. As they're co-operating more, we cannot follow the thread of information when it goes from CSIS to another one of the agencies. It doesn't necessarily hamper our view of CSIS or CSIS activities, but it hampers our view broadly on the intelligence community.
    My understanding, in looking at Bill C-22, is that the committee of parliamentarians will have that broad access across the 17 agencies that deal in national security information. They probably won't go to the depth we go to.
    We're on record at various committees saying that we are hampered, and we call it following the thread of information from agency to agency.
    To that point, in some of the discussions we've had across the country, it's been brought up many times that the committee of parliamentarians can't get into the weeds on a number of issues, as you can, and that we should have a look at broadening that mandate so that there's the overarching parliamentarian group and then the one that's underneath. I want to get your comments on that.
    With the human rights safeguards, Mr. Neve, you mentioned that Bill C-22 is lacking those safeguards. Can you let us know what it is you would specifically want to see embedded in there?
    I'll address the question of parliamentary review of the 17 agencies with the national security nexus and what I would refer to as a horizontal review by an expert review body that would look at all 17 agencies. My opinion is that expert review at that horizontal level would be beneficial to accountability in national security. You would have the committee of parliamentarians that looks at certain levels, such as the strategic level, financial level, and so on. Expert review horizontally could not only dig into information at any one of the 17, but as information transits from one national security organization to another, you could follow that thread of information.

  (1710)  

    Right, and then that would feed up to the parliamentarian committee.
    Potentially it would feed up, depending on the operational nature, and so on.
    Fair enough.
    The point about human rights safeguards was a broader point about the need for there to be human rights safeguards for our entire national security framework. In the submission we made to this committee more broadly about the national security review, we highlighted five human rights safeguards necessary for our framework. One is that we have in place strong parliamentary review combined with, exactly what you were just discussing with Mr. Doucet, integrated agency-wide expert review. The two go hand in hand. I guess that would be one of the things we would say is missing here.
    The other is that we've also made a recommendation that a key human rights safeguard across the entirety of our national security legislation needs to be to embed clear references to our international human rights obligations. That's why we've made the recommendation that with respect to Bill C-22, the mandate of the committee should be amended to make it very clear that one of the things the committee is looking for is to review for compliance with our international human rights obligations. The activities of national security agencies need to have that kind of a human rights review.
    Perfect.
    Thank you.
    Monsieur Dubé.
    Monsieur Doucet, I want to ask about access to information, because I'm having a bit of trouble reconciling.... Monsieur Coulombe has said many times that there is no hampering of their operations with the information they give you, but you stated that the committee of parliamentarians would have access to less information.
    Before I get into some of the comments you made further to that, can you see any justification for this committee of parliamentarians having less access than existing bodies such as your own already have?
     That's a good question, and let me begin with our unfettered access to information, minus cabinet confidence. I always have to say that. We tend to do review of past operations, or historical review, and that does not hamper a typical ongoing operation of those sorts of things. We're looking retrospectively. We're looking in the past.
    In the legislation there are potentially limits on information that the committee of parliamentarians can get. I don't necessarily feel comfortable in commenting on that, other than saying an accountability system is more than one organization. You have ministerial accountability; you have Michel Coulombe's accountability as the head of CSIS; you have our position in accountability, as you would have potentially the committee of parliamentarians. If you look at it as a complete framework, I think you're pretty well covered.
    That brings me to my next point. I understand that you're hesitant to comment on why the committee of parliamentarians would not have access to the same information, specifically, but in the end, the proposal you're putting forward of working together, collaborating, is more of a solution that you're proposing as opposed to anything that precludes the committee of parliamentarians from having that full access.
    It's not something necessarily that I'm proposing, other than to state that we're part of the accountability framework.
    Sir, if I may, I don't mean to belabour this, but from your comments I am a bit concerned as I get the sense that in the end, because the committee of parliamentarians would have less access, I almost understood it as being they would have to wait for the SIRC report that everyone else would see anyway before being able to have the full access that you already have.
    I find it interesting the way you phrased that.

  (1715)  

    I'm just trying to be clear that I'm trying to understand the justification. The government has stated that the need for this prohibition on information for the committee is for operational reasons, etc., but I'm understanding that if you have the unfettered access, then I'm just trying to make the connection of why the committee of parliamentarians can't have the exact same access and still work collaboratively, as you have so well said.
    Certainly. I can't comment on the government's position, as it relates to access for the committee of parliamentarians, but I'd like to go back again to the accountability framework in which there are multiple players that give us and give Canadians a very good view of CSIS's activities and give them some comfort that CSIS is carrying out its activities responsibly, legally, and so on. We're very key to that, as would be the committee of parliamentarians, once again looking across that national security nexus.
    If we're looking to comfort Canadians and restore confidence in national security agencies, and that's part of the objective of this exercise, you cannot see any reason then for the committee of parliamentarians to not have identical access as SIRC does?
    I didn't say that, and I would phrase it that we want to increase Canadians' confidence in the national security apparatus. As I mentioned earlier, I think that the committee of parliamentarians working with the review bodies would help to increase that level of confidence.
    I don't want to get into too specific a case, but if we look at Justice Noël's decision and the fact that it went on for 10 years, were there any challenges that were presented to you that made it so that it went on for as long as it did? We appreciate the work you did, because given what happened in front of the court, if it hadn't been for that, we wouldn't have known about it, but what limitations caused it to take so long?
    Thank you for that question. I really like that one.
    I speak of the waterfront of CSIS activities, and I speak of an increasing waterfront of activities. They're doing more. They've been given more powers, and they've had an increase in budgets. SIRC, as a review body, has what I would refer to as limited resources to look at that waterfront of activities, and we're very careful and very surgical in what we look at. Every year we have a research plan that outlines what we're looking at, and there are a number of ways in which we determine that and bring it to our committee. If you look at the Justice Noël decision, this was an observation of SIRC and a recommendation that CSIS take a closer look at this and inform the courts. I would say the system worked as it relates to that metadata issue. Now you're speaking to the timelines—
     That's what I was going to ask. Can we say that it worked if it took 10 years to uncover?
    I wouldn't necessarily say that it took 10 years to uncover. I think it took less than that as we went through our research cycle, as we brought it to committee, as we brought those recommendations to CSIS, and as it was then published in the annual report. There were a lot of activities that happened well before Justice Noël's decision that came out in November.
    We could speak to the timeliness. It comes down to a workload thing and, at any given point in time, how much we can look at.
    Your mandate is to review. Do you believe that if another body, whether yours or another one, had a mandate for oversight, that sort of illegal data collection could have been prevented?
    I wouldn't necessarily guess to that, because at the end of the day we had a disagreement with CSIS. We gave them the recommendation. We thought there was an issue. They did not think there was an issue. They did not follow our recommendation. It turned out that it was an issue.
    On the questions of is more oversight good, is more review good, you will have to hit what I would call the sweet spot on the amount of review that is necessary.
    Thank you very much.
    Mr. Mendicino.
    Mr. Doucet, I'm going to start at the end of this and put a question to you. I wonder whether you see a scenario in which the committee of parliamentarians makes a request of CSIS, or through the minister, about an ongoing intelligence or national security activity and then, under the co-operation provisions of Bill C-22, turns to SIRC and says, “We think this might be a good activity for you to do a review on.”

  (1720)  

    I see the day when there is an activity there that the committee of parliamentarians wants to look at. I see the scenario where they cannot.
     We will be informed of that, and we will decide as an independent agency if we want to look at it or not. We may have looked at it last year. We may already have it in our plans for the following year.
     If we are working well with a committee of parliamentarians, and “well” means that we discuss with them in the March time frame and say “here is our review cycle for the next fiscal year and here's what we're looking at”, that's good information for them. They cannot compel us to look at something. They may suggest to us or, if they've been refused information, we'd know that, but as an independent organization, we decide what we want to look at within our review cycle.
    I was careful in my question to say that they wouldn't direct you to, but that they might suggest that it would be a subject matter for you to study as a result of a request made by the committee of parliamentarians to the minister. The short answer is yes, you do see a day in which the scenario I articulated very briefly would actually come to fruition.
    I see the day when our relationship with the committee of parliamentarians is such that we know what they're doing and they know what we're doing.
    I want to be clear on the directing or the compelling. Nobody can direct SIRC on what to do as it relates to our review cycle.
    That makes perfect sense.
    The mandate of SIRC is not defined the same as the mandate of the committee of parliamentarians is under Bill C-22.
    Mr. Michael Doucet: That's correct.
    Mr. Marco Mendicino: Would you agree that this provides a plausible explanation or rationale as to why the degrees of access between the committee of parliamentarians and SIRC as it exists today are not the same as well?
    I wouldn't necessarily comment on why the degrees of access are different. If you look at the proposed bill and you look at our enabling legislation, you see that they're absolutely different. Expert review requires powers to carry out review. It requires funding to carry out review. It requires resources to carry out review. It's important that—
    Let's set aside the resources. You do agree that the mandates are defined differently.
    Absolutely.
    You're aware, as you have been studying this committee's work on this particular bill, that there are those who are advocating that there should be the exact same degree of access provided to the committee of parliamentarians, in other words, unfettered access save and except for cabinet confidences.
    As I try to understand the distinction between the level of access of the committee of parliamentarians and SIRC, it's that the mandates aren't the same, or they're not defined the same, and that usually provides a logical explanation as to why the degree of access may not be the same. Is that a fair summary?
     That could be a fair summary. As I mentioned earlier, we have three mandates: the certification—
    No, I don't need you to repeat what the mandates are. Thank you.
    With regard to prescribing what have been called in the Arar report the “statutory gateways” for co-operation, we've heard from the minister that he would, I think, envision a scenario in which that's not explicitly spelled out in statute, at least in Bill C-22, and at least for now. He would rather see that develop organically between the committee of parliamentarians and SIRC. Let's spend a minute or two on that.
    What does that look like? What does the memorandum of co-operation look like between the committee of parliamentarians and SIRC? Does it involve objectives? Does it involve principles? Does it involve triggers for co-operation?
    That's a great question.
    That's why I asked it.
    Voices: Oh, oh!
    Mr. Marco Mendicino: What's your answer?
    My answer would be that it may be premature to talk about a memorandum of understanding as to how the committee of parliamentarians and SIRC—
    So what's in it? I don't mean to be curt, but I have very little time.
    Okay. What's in that MOU?

  (1725)  

    Yes.
    I think that would have to be defined once Bill C-22 is enacted.
    What would it look like? Without holding you to gospel truth, what are the kinds of things that you would envision it containing?
    Do you want to cover that one, Charles?
     For example, we've discussed the issue of review plans being shared. That would be an issue of ensuring that as SIRC develops its review plans, there is a process built in to make sure that consultation takes place with the committee of parliamentarians to avoid that duplication. The issue of advance planning in a way that is coordinated, so that both institutions can deliver on their mandates without duplication, is something that could be involved in there.
    We've noted, for example, that while there is a mechanism whereby the committee of parliamentarians will refer to SIRC situations where information was denied to it under clause 16 of the bill, there is no mechanism whereby the committee of parliamentarians has explicit language as to where they would advise SIRC of a review that they were told not to do under clause 8, for example. Determining the mechanics of how they can approach us to do that, how we can respond and advise our committee, and how they can engage on that, is something that could be part of the mechanics.
    Of course, the committee will be master of its own procedures and will develop its own guidelines. Regulations may be enacted as well, by the Governor in Council. We're masters of our own procedure. There's a lot of flexibility, but those are examples of things that could be built in more easily and quickly to ease in that sort of increased co-operation early on.
    Thanks for that.
    Thanks, Mr. Chair.
    Thank you.
    I'm going to use the chair's prerogative to ask a question.
    I look at SIRC and its membership, and I see people such as Chuck Strahl, Deborah Grey, and Yves Fortier. Two of these people are former parliamentarians. Their expertise would be similar to that of the parliamentarians we're appointing.
     You have a budget of $2.5 million. This has a budget of $3.2 million and the potential of more expertise than SIRC would have, with $700,000's worth of smart people, with the capacities of the Governor in Council appointments being similar to those of the parliamentarians who are elected by the people of Canada. I'm trying to figure out why yours is called any more expert than the committee of parliamentarians, who have an equal capacity to hire experts and who have similar backgrounds at the executive level.
    When I talk of expert review and talk about how SIRC carries out its function—and I certainly get the point on the different levels of funding—we have our funding base to solely look at CSIS and to dive deep in CSIS, whereas the committee of parliamentarians and the staff or the secretariat within the committee of parliamentarians are looking, at the end of the day, at 17 organizations with a national security nexus, so I think their work will be at a different level.
    Because it has that horizontal capacity across all those bodies at a supra level, with commensurate expertise, could it not itself provide the horizontal review you're talking about? Just from a parliamentarian's point of view, why would we have to go to you because you have additional powers over us even though we have more money and people who are just as smart?
     The other thing is you have to remember that, of course, SIRC has its three functions, and its quasi-judicial function, where we handle complaints against CSIS. Think of us as having three bubbles of activities and think of the committee of parliamentarians not necessarily fulfilling the certification of a report, nor handling the complaints against the intelligence agencies.
    It gives them more time to do horizontal review.
    Could I just say one word on that?
    One word.
    I think it's a fascinating question and I think—
    I may be wrong.
    Well, no. It's a good question, but I think there are a couple of other things to keep in mind here.
    One is I totally agree with Mr. Doucet's reminder that there's a depth to the work that a body like SIRC can do because of its singular focus that is absolutely crucial. Let's not forget that there are a lot of intelligence security bodies that don't have that at all. The CBSA isn't subject to that, and Passport Canada isn't subject to that, so there's a considerable imbalance. We also have the fact that the bodies, even the existing bodies, don't have equivalent powers such that the level and scrutiny of the work they're doing is not equal either.

  (1730)  

    Okay, I think that has come to an end. We'll have bells shortly, so I thank you very much. I loved your testimony. It was very helpful for us.
    The meeting is adjourned.
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