Good afternoon. I call to order the 46th meeting of the Standing Committee on Public Safety and National Security for the consideration of Bill .
We thank you, officials, for joining us today.
From the Privy Council Office, we have Mr. Allen Sutherland, Ms. Heather Sheehy, and Ms. Nancy Miles, senior legal counsel. As well, from the Department of Public Safety and Emergency Preparedness, we have John Davies.
Thank you for joining us.
We also welcome independent members to the committee today; we're very pleased that you're with us.
Welcome to this meeting of the Standing Committee on Public Safety and National Security.
Today we are beginning our clause-by-clause consideration of Bill , and I'm going to warn the committee at the beginning that I'm going to be going slowly through today's meeting and through the amendments we have received to make sure that we give due consideration to the amendments and that we're understanding the process as we go. Because the committee has only done one clause-by-clause study before, and it was somewhat less complicated than this bill with the number of amendments we have, I want to review the process.
I'll just remind the committee that we have help with our legislative responsibilities with legislative clerks—we thank you for joining us today—as well as our usual clerk, who will keep me in order.
I'd like to provide members of the committee with a few comments on how committees proceed with clause-by-clause consideration of a bill.
As you would know and as the name indicates, this is an examination of each and all of the clauses in the order in which they appear in the bill, unless you choose otherwise.
I will call each clause successively, and each clause is subject to debate and a vote. If there are amendments to the clause in question, I will recognize the member proposing each amendment, who may explain it. The amendment will then be open for debate. When no further members wish to intervene, the amendment will be voted on.
Amendments will be considered in the order in which they appear in the package that each member received from the clerk. If there are amendments that are consequential to each other, they will be voted on together.
Just as a reminder, we received a package of amendments that have come in from various members of the House of Commons to our committee; however, other amendments are allowed as we proceed; we're aware of that as well.
In addition to having to be properly drafted in a legal sense, amendments must also be procedurally admissible. I as chair may be called upon to rule amendments inadmissible if they go against the principle of the bill or beyond its scope, both of which were adopted by the House when it agreed to the bill at its second reading, or if they offend the financial prerogative of the crown.
If you wish to eliminate a clause of a bill altogether, it is inappropriate to propose an amendment to the bill to remove a clause. If you want to remove a clause altogether, the proper course of action is to vote against the clause when the time comes, not to propose an amendment to delete it.
As I said, since this is only the second time our committee has been tasked with a clause-by-clause examination, I will go slowly to allow all members to follow the proceedings properly. If you have questions, do not be afraid to ask me, and then I will ask someone who knows, who is probably our legislative clerk at that point.
During the procedure, if the committee decides not to vote on a clause, that clause can be put aside so that the committee can revisit it later in the process.
As indicated earlier, the committee will go through the package of amendments in the order in which they appear and vote on them one at a time. Amendments have been given a number—it's in the top right-hand corner of each page—to indicate which party submitted them.
There's no need for a seconder when moving an amendment. Once it has been moved, you will need unanimous consent to withdraw it; however, you do not need to propose it, even if it is in the package.
During debate on an amendment, members are permitted to move subamendments. These subamendments do not require the approval of the mover of the amendment. Only one subamendment may be considered at a time, and that subamendment cannot be further amended.
When a subamendment is moved to an amendment, it is obviously voted on first. Then another subamendment may be moved, or the committee may consider the main amendment and vote on it at that time.
Once every clause has been voted on, the committee will then vote on the title, the bill itself, and an order to reprint the bill, which may be required if amendments are adopted, so that the House has a proper copy to receive at report stage.
Finally, the committee will have to order the chair to report the bill to the House. That report contains only the text of any adopted amendments as well as an indication of any deleted clauses.
I think the most difficult thing for me in clause-by-clause examination is the fact that if we take a certain action on an amendment at one point, it has effects consequentially, down the line. That may mean that an amendment is not able to be moved later in the process because we've already dealt with something that would nullify its effect. I will be trying to signal that to you as we go, on each of the amendments. For me, when I've done clause-by-clause study before, that has always been the trickiest part. You have to pay a lot of attention to what you're voting on. You may have forgotten that there's an amendment later that we will not be able to consider because it is consequential to what has happened already in the meeting.
I'm thanking you in advance for your patience with me and for your attention as we set out to have a very productive meeting. I am hoping for a very good and thorough consideration of what I think is an extremely important bill for this House to consider.
Are there any questions about that before we begin?
Are there any other questions?
We will proceed.
As a reminder, we will not deal with clause 1. Pursuant to Standing Order 75(1), we will deal with clause 1 at the very end of the proceeding, when everything else has been voted on, as a final act of clause-by-clause consideration.
Turning first to clause 2, I want to call members' attention to two options we have with respect to dealing with clause 2. We have received two motions, amendment motions LIB-1 and LIB-2, with respect to clause 2.
Before they're moved, I just want you to consider that the committee can decide by a motion to stand clause 2 and leave it until we come to the very end. If the committee decided to do that, the reason would be that amendments LIB-1 and LIB-2 would automatically put amendment LIB-10 into play, and it would then be deemed to have been moved and approved, changing clause 15.
If we do that, then amendment CPC-7 would not be admissible to be heard, because it would be in contradiction with LIB-10.
We have two options. Option one is to stand clause 2 and leave it to the end, thus allowing us to go on to clause 3, and then we would hear amendments LIB-1 and LIB-2 at the end of the meeting. Option two is that we could hear amendments LIB-1 and LIB-2 now, which would then take clause 10 into consideration and negate amendment CPC-7.
It is your decision whether you would like to do that. I don't need unanimous consent; I could have a motion to stand clause 2 until the end so that we could deal with all related motions further on in the meeting.
Are there any other comments?
Seeing none, shall the amendment carry?
(Amendment negatived [See Minutes of Proceedings])
The Chair: Now we consider the whole of the fifth clause at this point.
(Clause 5 as amended agreed to)
(On clause 6)
The Chair: We'll move now to clause 6, designation of the chair.
I will just note that there are some line conflicts in the amendments as presented. If PV-1 is adopted, then NDP-2, BQ-2, and CPC-3 cannot be moved, as they amend the same lines. NDP-2, BQ-2, and CPC-3 would not be eligible to be moved because they are essentially the same as PV-1. Well, they amend the same line, but they're not the same.
If it's defeated, we can move to the next one.
All right, that is deemed moved. Ms. May, would you like to comment on it?
Yes, thank you, Mr. Chair, and thank you to the members of the committee.
I'll just take a moment to say that on November 18, under your deadline, I submitted to this committee a brief on the substance of what was formerly known as Bill , in which I made commentary on this piece and particularly on how Bill is a much-appreciated bill. However, in and of itself it is insufficient to remedy the damage done to our security system by Bill C-51. You may not have that in your inboxes yet because I didn't submit it in both official languages. I hope you will take the time to consider it.
This amendment is very straightforward, and as you noted, Mr. Chair, it's similar to that put forward by other committee members. It deals with the current version of Bill , which says that the Governor in Council is to designate the chair of the committee. As you will know from evidence before this committee, the committee process of the Parliament of Westminster, upon which Bill C-22 is based, does not have the appointment of the chair by the government of the day. In fact, based on a revision of their committee in 2013, the chair of the committee is elected by members of the committee. That is entirely the purpose of amendment PV-1. It is to ensure that the chair is elected by the members of the committee, and of course, the members of the committee, as you've previously approved in clause 5, are appointed by the Governor in Council.
Thank you, Mr. Chair.
Are there any comments? Seeing none, shall this amendment carry?
(Amendment negatived [See Minutes of Proceedings])
(Clause 6 agreed to)
(Clause 7 agreed to)
(On clause 8)
The Chair: We will move now to clause 8, which has a number of competing motions.
We will begin with BQ-3, and then, just for your knowledge, we will go to NDP-3, CPC-4, LIB-4, and Green Party 2. If BQ-3 is adopted, then NDP-3, CPC-4 and LIB-4 cannot be moved, as they amend the same line. If BQ-3 is defeated, the next amendment that can be moved would be NDP-3, and so on.
First, it is deemed that BQ-3 has been moved. Are there any comments on BQ-3?
Go ahead, Mr. Di Iorio.
I think members will remember that Craig Forcese, among others, called the access provisions in this bill a “triple lock” that could “make the committee...stumble.” This is right in the middle of the mandate, giving any appropriate minister the ability to simply unilaterally determine that any review would be injurious to national security. I am pleased to see that an identical amendment has been moved by the Conservatives as CPC-4.
The objective of this amendment is to try to provide more credibility to this committee. It would grant the oversight committee essentially the same powers that the Security Intelligence Review Committee has had for many years and that the CSE commissioner enjoys today.
The issue of oversight interfering with operations is, indeed, a real concern—that's acknowledged—but it is hardly a new problem. SIRC and CSIS have testified that they resolve these disagreements routinely and have done so for decades. I am simply proposing that this committee conduct itself with the same powers and discretion that SIRC has had.
I just want to remind the committee of two key points of witness testimony. Ron Atkey, who was the first chair of SIRC, said that this ministerial veto “reflects a reluctance to have the committee...act as a true watchdog.”
Second, the Information Commissioner said this: “This override essentially turns the committee's broad mandate into a mirage. It will undermine any goodwill and public trust that may have been built up towards the committee and, by extension, the national security agencies it oversees.”
Mr. Chair, I would urge members to heed her warning and adopt this amendment, which is endorsed by Kent Roach, Craig Forcese, and the Privacy Commissioner of Canada.
It's eerily similar to my amendment, so we were obviously thinking the same way. As a consequence of that, I would support Mr. Rankin's amendment and merely add to the record that if we are going to go ahead and have an oversight committee, which was a Liberal campaign idea and something they pursued in the election campaign as part of their response to Bill C-51, then let's make sure it is actually capable of doing its job.
Mr. Mendicino or anybody else can say, “When you were in power, you said this or did that.” That's all ancient history. They ran on this platform, Mr. Chair, and they were elected, and now I think they have been turned away from their own campaign pledge by the skittishness of the advice they are getting from bureaucrats. It's kind of sad to see, really.
I would encourage members on the other side to remember their campaign pledges and the principles upon which they sought election and were elected, and to vote in favour of this amendment.
Let me just begin by saying that in short course I will be moving an amendment that I think does reflect some of the testimony we heard from the likes of Professor Forcese and Mr. Atkey.
I had an exchange with Mr. Forcese about his use of the metaphor of the “triple lock”. I think it really misconstrues a proper understanding of what ministerial discretion is, and it conflates discretion with automatic exclusion.
You can't have an automatic triple lock if there is some proper exercise of ministerial discretion. I think he acknowledged that in our exchange. As public trust and confidence are enhanced over time as this committee get its footing, even Professor Forcese did take a moment to say, in evidence, that he understood the minister would have the ability to exercise his or her discretion, under clause 8 or clause 16, in a manner consistent with the purpose and the broad mandate of this committee as drafted.
The other thing I would say is that in the evidence given by Professor Forcese and Mr. Atkey, there were moments.... We wouldn't want to see an ongoing national security activity potentially compromised by sharing this information with the committee. I don't see that as necessarily interfering with the mandate of the committee, although I accept that the committee will be security-cleared.
If we are going to be referring to the stated evidence saying that it has to be balanced, certainly completely deleting any ministerial discretion under clause 8 would not be consistent with what this committee heard.
I certainly agree with what Ms. Watts has said. If you just look at the language, you see it's so different from other legislation. It's been around for 30 or 40 years. The Access to Information Act and the Privacy Act use words like “reasonably be expected to be injurious”, which gives a certain discretion and an ability to meet an objective test. Here it allows any appropriate minister—the Minister for CBSA, or the 17 agencies to which this bill is subject—to roll in and say, “This review would be injurious to national security.” There would be no opportunity to address that anywhere else. It could be a unilateral reason, which certainly this government wouldn't use to hide things simply because they were embarrassing, but other governments might do so, and this is a bill that's here for a long time. It's not going to be amended anytime soon.
It also has to be understood, in response to Mr. Mendicino, in the context of the existence of sections 14 and 16; hence the triple lock. Just to refresh the committee's memory about what Ron Atkey said, he said we've had this open-ended power, and it's not ever been abused. He said there have been tensions from time to time, but matters have been worked out, and to his knowledge, security operations have not been compromised.
I don't understand why the government wants a triple lock and why they would erode so dramatically the credibility of this entire exercise.
Yes, Mr. Chair, I'd like to move that.
In many ways, expanding on the dialogue that we just had with respect to clause 8, my amendment would be responsive to some of the evidence that has been cited by my colleagues on the opposition side.
What I propose is that we begin by amending clause 8, replacing lines 11 and 12 on page 4, for those who wish to read along, with the following language:
||[re]lates to national security or intelligence, unless the activity is an ongoing activity and the appropriate Minister determines that the review would
be injurious to national security.
The next part of my amendment would add, after line 16 on page 4, the following: a new subsection, which would become subsection 8(2). It would read as follows:
||If the appropriate Minister determines that a review would be injurious to national security, he or she must inform the Committee of his or her determination and the reasons for it.
It would also create a new subsection 8(3), which would read as follows.
||If the appropriate Minister determines that the review would no longer be injurious to national security or if the appropriate Minister is informed that the activity is no longer ongoing, he or she must inform the Committee that the review may be conducted.
There would be a concurrent amendment, which will likely come up later in the day, under clause 31.
Mr. Chair, I'm in your hands as to whether I should wait to advocate for that at the appropriate time or whether we should just leave it to my moving the amendments under clause 8.
No. It's just words being added, one word here, one word.... Each one is essentially a word. There's one that might be seven words.
If members want to follow along, I'll keep Mr. Mendicino's amendment in front of me, and then we can read along.
The overarching narrative of the four subamendments is adding clarity to the language, in keeping with some of the concerns we've raised in our discussion of the powers that are conferred on the minister.
With that in mind, the first subamendment I would move is to part (a) of Mr. Mendicino's amendment. After the word “ongoing”, we would add the word “operational”, to read: “to national security or intelligence, unless the activity is an ongoing operational activity and the appropriate Minister determines that the review would”.
Mr. Chair, if I may offer an explanation for this, it is simply that it avoids a situation such as with Air India, about which it could be argued that it's an ongoing activity but not an operational one. It allows the committee the latitude, in that kind of instance.
I'll wait for your cue to move on, or do you want me to...?
Thanks, Chair. I have just three quick points.
First, “activity” is undefined and it seems broader than “operation”.
Second, when the Security of Information Act talks about “special operational information”, it's clear what they are talking about. In paragraphs 14(a) through (g) it is sources, military plans, methods, targets, agents, and the like. I think in the community, under the security tent, there's a pretty good understanding of what that means.
Third, remember that the Information Commissioner came here and testified that CSIS refused to give information on a campus outreach program. It had nothing to do with operational information. That's precisely why we need to narrow this.
The motion is to consider this after we consider Liberal-15.
All in favour with standing this?
(Amendment allowed to stand)
(On clause 9)
The Chair: We're moving now to clause 9, which we have not received any amendments for.
(Clause 9 agreed to)
(On clause 10)
The Chair: Moving to clause 10, we do have an amendment that has been submitted by the Green Party, which is PV-3. It causes two lines to be deleted, lines 23 and 24 on page 4.
The Chair: That takes us to clause 10 in its entirety.
(Clause 10 agreed to)
(Clause 11 agreed to)
The Chair: Moving to clause 12, we have an amendment from the Green Party, which is PV-4, deleting lines 14 to 19 of clause 12, regarding evidence.
Does anybody care to speak in favour of or in opposition to this amendment?
First of all, I must say that I am well aware of the remarks that the Honourable Tony Clement made. We must use tremendous caution in addressing the issue of this privilege, which is called parliamentary immunity, a privilege many centuries old that goes back a long way in British parliamentary history. If this exception is made, I think it should be done in the most restrictive way possible.
This is what I suggest by way of solution.
I understand from subclause 12(2) that the restriction or exception to parliamentary immunity applies essentially and only to the situation where a member of the committee of parliamentarians would rise in the House and disclose government secrets. That is the only place where it would apply.
obviously, if we want to prove it, we have to be able to extract the statement made in the House, with supporting evidence. It's recorded on television, it's written down, so there are other forms of testimony or evidence. It is only from this perspective that a restriction is placed on parliamentary privilege.
For the rest, all other privileges of parliamentarians are not affected by this bill, because constitutional principles are involved.
I say this, but I don't even know if the exception I provided earlier is allowed in Canadian constitutional law.
So while I'm voting in favour of this provision, I understand that it is an extremely limited restriction that serves only to put into evidence the disclosure that a committee member would make to the House or the Senate.
I guess this is pretty straightforward. In our view and the view of most witnesses who dealt with this issue, the committee lacks a very basic power, namely the power to compel witness testimony and the production of documents. Both the CSE commissioner and SIRC have that power. Indeed, this committee would have had that power, but as Ms. Sheehy pointed out, we're not a parliamentary committee. Since the committee we're creating here is not a parliamentary committee, it doesn't automatically inherit the powers of a parliamentary committee. We need to specify this very basic power.
My amendment to grant the power is supported by Craig Forcese, Kent Roach, and Ron Atkey, who testified, as well as others. If we don't pass this amendment, then we're forcing the oversight committee to rely entirely on requests to government minsters as their sole channel for getting information. In my view, as well as that of Messrs. Forcese, Roach, and Atkey, that places much too much power in the hands of the government of the day and undermines the faith Canadians would have in this new committee.
Lastly, Mr. Chairman, I note that this power is necessary on its own merits, regardless of the decisions we take in a few moments on amendments to the committee's access to information, proposed sections 14 and 16. To be clear, it is not inconsistent for the committee to fall short of unrestricted access to information and have the power to call and hear directly from witnesses.
Mr. Atkey said this, when he talked about the power to compel documents and testimony:
||This may be necessary where public servants are reluctant to respond to reasonable requests by the committee, or in situations where private sector individuals have particular knowledge about a security activity being carried out by a particular department
For those reasons, Mr. Chair, I think this is perhaps an oversight, but I think it's necessary for us to correct this deficiency.
I appreciate the thoughtful comments of Mr. Di Iorio. I just want to say, though, that many of our parliamentary committees would never be seen as judicial or quasi-judicial, but they all enjoy the power to make sure people come and testify before them.
I was counsel to SIRC for many years, and I don't think they ever needed to use the power to compel, but the fact that it was there made it obvious that people would come and testify. Sometimes, Mr. Chair, the agency may choose to send the head honcho or they may send a public relations person, but what the committee needs is the Calgary analyst or some individual down the chain in order to do the job. If they choose to balk at that and we never get the person who is really at issue, then we can't do our job for Canadians.
I think Mr. Clement has nailed it. This is a common sense provision, without which I do not see the credibility of this committee.
I wanted to pick up on Mr. Rankin's comment.
My understanding is that Standing Order 108 gives every standing committee subpoena powers. They're rarely exercised, but they're there in the event that they're ever needed. It makes good sense to me that this committee wouldn't typically exercise such powers, but they're there if they're ever needed. There's going to be compliance and co-operation, because everyone knows that in the end they are there. I'm supportive of subpoena powers as a result, in principle, but I just wonder about the language.
Mr. Rankin, the amendment would change section 13 for access to information. I think a more elegant way to keep the crux of clause 13's subclauses on access to information and protected information and inconsistency or conflict would be to have it read—and I'm open to your thoughts—“Despite any other Act of Parliament, but subject to sections 14 and 16, the Committee is entitled to send for persons, papers, and records”—that mirrors Standing Order 108—“and to have access to any information that is under the control”, and on it goes.
In my opinion, that would be a simpler way. It wouldn't change subsequent sections in such a serious way.
I would probably word it this way. Do we have unanimous support to have NDP-5 withdrawn and to consider an amendment from Mr. Erskine-Smith immediately?
I am seeing a nodding—a nodding off?
I think, then, we now have before us an amendment from Mr. Erskine-Smith, which inserts about 10 words.
We have bells going, so I need unanimous consent to finish this, if you'll give it to me in the next five minutes. Is that okay?
Some hon. members: Agreed.
The Chair: Good.
We'd like Mr. Erskine-Smith to repeat his insertion, which comes from Standing Order 108.
An hon. member: There is no unanimous consent on that.
The Chair: There is no unanimous consent on...?
Okay. I'll just give you the legal underpinnings.
Usually a subpoena power and a power to compel documents is in relation to a review body that either has adjudicative powers or has an individually initiated complaint review power. That is the case with respect to SIRC, to the commissioner of CSE, and to the RCMP complaints commission. In all three cases, that's why they have subpoena powers. It's because it's important to have an individual appear before them and give testimony with respect to something.
In this case, we've crafted the act in a different way, in a high-level Westminster model that would have the minister accountable for the documentation that would be presented. In that regard—and you'll see it further on in the text of the bill—in section 13 we have the right to access, obviously, but also in section 15 the obligation of the minister to provide the information that's relevant and within the mandate of the committee, and also the ability of the minister to present it orally before the committee, if that's the way it is most efficient, or if the minister so chooses.
You already have, then, an obligation to compel the documentation, and as well there is the ability to appear before the committee.
If I can just build off one thing, it's easy to be lost in the amendments and the clauses, but just observe that this would be the biggest change in a generation to the intelligence review system in Canada. This is something big and important, and part of what would make it a success is if it can build trust. It's what we heard from the British parliamentarians. It's what heard when he looked at different models: build trust in the committee of parliamentarians so that the information flows effectively. It's trust within the committee, it's trust with the public service, and it's trust between the committee and the public service.
What we're trying to build here, then, is something that uses the role of the minister and a minister's central role in the Westminster system to provide the flow of information through to the committee. If we do it right, we know that the committee would receive information that they have certainly never seen before, and it would help inform the debate in Parliament and indeed within the country.
I would say too that if the committee is not satisfied with the information it's receiving, it's very important that it does have remedies. It can complain in Parliament. It can complain to the Prime Minister. It can complain publicly in the annual reports, and indeed, it can complain it its special reports. It has remedies.
As we get up the learning curve on how to ensure there is a good flow of information, it's important that rather than judicializing it—which, I would argue, will set different parts of the system against each other—we can work it through together and build a trust environment.
By the way, you also have a five-year review mechanism, so if you're finding that this isn't giving the committee of parliamentarians the access that is anticipated, it can be reviewed within five years and adjusted.
There are a couple of things I'd like to say in response to the interventions.
First of all, this is an oversight committee. It's not just an arm of the Prime Minister or his office. It's deliberately created to provide oversight, so it does need tools—always exercised reasonably, of course—in order to fulfill that function. I know what you're saying about building trust within the security apparatus, but the committee also has to build trust with the people of Canada and to illustrate that it is serious, because the public will not have the information available to it. It will be this oversight committee, and so you have to build a trust network on that side of the equation as well. Otherwise, it will come to naught, in my view.
That's my first point. It's an oversight committee.
The second point, if I may say so—and I know it's spilled milk and water under the bridge—is that to build trust with all members of the political parties that will have representatives on this committee, one of the things you may want to consider is not appointing the chairman of the committee before the bill is even past the stages of debate and approval in the House. However, that is what has been done, so I would put it to members that in order to build trust with us, other things to build that trust would be appreciated, including this clause-by-clause review.
We all want to take this seriously. We all understand this is a very serious responsibility, but it doesn't help if opposition views are not taken seriously. I would just relate to my colleagues on the other side of the table here that trust works in both directions. It's not just trust in the process. We would like to trust the process too, but you have to have some trust in us and in our ability to do our job.
Is it going to be necessary to have subpoena power? It may not be. I don't know. To be honest, none of us knows. We're trying to predict the future, but why remove a perfectly reasonable and responsible tool that is not just used in judicialized functions? It's used in legislative functions, it's used in deliberative functions, and it certainly should be used in oversight functions.
With everything that I've heard up to now.... We heard from Mr. Sullivan, who said that when talked to his British counterpart, they didn't agree with having this kind of power to subpoena, but did he talk to the counterpart in New Zealand? I don't think so, from the comment I heard, and this isn't new stuff.
I would point out to the members across the way that if the government, Mr. Chair, is worried about this process—and for the life of me, I really can't figure out why—remember that the government has the majority, and if the majority of the committee decides it doesn't want to subpoena somebody, the person isn't subpoenaed. It's that simple. It's a numbers game. We all know that.
The government won't always be the government, and we have to look at this in a fair way. At the end of the day, the powers are there for a reason at our regular committees today, and the powers should be there for this committee. There isn't really a downside to it.
Anyway, there's not much more to say on it.
I can synthesize, having answered questions from colleagues on both sides of the committee.
In drafting this legislation, there was an attempt to be faithful to the Westminster model; therefore, instead of using subpoena language and infusing subpoena powers, we went with a model that would engender public trust and confidence, with good communication between the minister and the committee of parliamentarians.
That said, a request is not just a request out of politeness. There is an underlying entitlement to that request. In Mr. Rankin's hypothetical case, you would still be able to ask to have the victim produced, and not just the janitor. You would be entitled to get the victim there. If you didn't get the victim, you would be able to use the bully pulpit to demonstrate your concern about being at an impasse through the lack of that particular individual's being produced. That is in keeping with the Westminster model.
Using subpoena powers imports all other potential consequences, including judicial review, which quite clearly the bill is attempting to avoid, for a number of reasons.
Is that a fair summary?
Thank you to the witnesses.
I just want to address, and have on record, the issue of trust. It is a reminder to the committee that this bill has come out of a study done by this committee in 2009 with respect to the conditions of Mr. Maher Arar and Mr. Almalki, Mr. Abou-Elmaati, and Mr. Nureddin.
The trust issue was not whether parliamentarians could be trusted with information. That was not the issue. The issue was whether our security and intelligence agencies could be trusted with the care and concerns of Canadian citizens. The trust we are attempting to engender by somehow saying that we have to build the trust of our agencies toward parliamentarians, I need to tell you, I find very difficult to stomach. I worked on this committee to present our report to Parliament regarding the need for oversight, by parliamentarians, of our security and intelligence agencies. That's the genesis of this bill. That's the first issue of trust.
The second issue of trust I think the committee needs to be aware of is that the report went to Parliament, to the House of Commons, and was concurred in, and Parliament decided that we should have a committee of parliamentarians. That did not take place throughout the whole last government. To hear at this committee that somehow the opposition needs to build trust in what the government has finally undertaken, which is to get a committee of parliamentarians to put this in place, perfect or not perfect, I need to say is a little bit rich for me after waiting for seven years to get this work done. We are ready to do it, and I think the time has come for us to do it.
That's enough said. I feel better.
I move the amendment, Chair.
Let me say that this is, if not the key issue, certainly one of the key issues for us. It's something we've been hearing from witnesses, of course, but it's also, interestingly enough, the same language as in a Liberal MP's bill from the previous Parliament, a bill tabled by our colleague Joyce Murray—Bill —and of course Bill , sponsored by former Senator Segal, whom we had the chance of hearing in Toronto. Wesley Wark, whom we heard during the study, called the amendment we're proposing “an ideal scheme”.
I think it's challenging, because on the one hand we have the discretionary powers of blocking investigations and on the other hand we have this situation concerning what information is already available to begin with to the committee. We heard SIRC, for example, say that they can collaborate with the committee and that it's okay and the committee doesn't need the same powers, but the fact of the matter is that a great many bodies covered by this bill don't actually have oversight—we can think of CBSA, among others—and this committee will be the only review body available.
We can look at this narrow view of saying that SIRC already has access to this information and therefore the committee doesn't need it, but it's much broader than that, and that is certainly something we've heard from witnesses.
While I know that the process on this bill has been perhaps more difficult than we had hoped it would be, it's hard for me to envision a scenario whereby we can gain public trust as well as the trust of the parliamentarians on the committee. As well, as Mr. Rankin pointed out earlier today, while we may trust the current government, we don't know what the future holds for us. We need to get this right, and now, and I think that this full access to information is the way to do it.
I won't be supporting this particular amendment, but that's simply because I have a differently worded but similar amendment, LIB-6.
I agree that the only mandatory exclusion should be cabinet confidences, exactly as Mr. Dubé has outlined here. Subclause 14(1) is no longer necessary, in my view, because we kept that language in clause13, whereas my amendment to clause 14 reduces it to:
||The Committee is not entitled to have access to a confidence of the Queen's Privy Council for Canada, as defined in subsection 39(2) of the Canada Evidence Act.
I would note that we heard from a number of witnesses, especially from the minister, that this is baby steps. Certainly the experience of the U.K. has been that they deny information when the providing of information would be injurious to national security. They have different language, but effectively that's it.
My compromise solution between the government's position and full access is to move paragraphs 14(b) to 14(g), leaving cabinet confidence in clause 14—that's the mandatory exclusion—and moving all of the other items to clause 16, which is the subject of a subsequent amendment, LIB-11.
The advantage is that, first, it's discretionary and requires the minister to give reasons, and the other advantage is that it requires not just that it be that information, but also that the provision of that information be injurious to national security, which I think is a very high bar.
As I say, then, I won't be supporting NDP-6 but will be supporting amendment LIB-6.
I will also note that I don't want to get into the uncomfortable position of individuals voting for amendment LIB-6 but then not voting to put information back into clause 16. I thus need some assurance from the other side that if you are supportive of amendment LIB-6 or amendment NDP-6—the idea of limiting mandatory exclusions to cabinet confidence—whether it's through amendment NDP-6 or amendment LIB-6, I need some assurance that we are all willing to put these items back into clause 16 under amendment LIB-11.
I'm certainly not opposed; quite the opposite. I would be supportive of Mr. Erskine-Smith's amendments on the one hand, but we're not there yet. I don't want to get too ahead of myself, but there is one for which we will have a proposal for a subamendment, and we'll get to that.
I would echo Mr. Clement, in that I appreciate the effort at compromise, but it's hard for me.... It's not in terms of any particular member, but in looking at the government's vision for this bill, it's hard for me to imagine that anyone listening to the testimony we heard, with quotes like those of Kent Roach, who was saying that “full access to information” is one of several “critical criteria for success”.... For me, when we hear things like that, it's difficult to fathom that the government wouldn't recognize their importance.
Some of the stuff we've debated today might seem cosmetic, such as the election of a chair and things like that. It's very inside baseball to folks, some of that procedural stuff. I don't want to diminish the importance of those points, because we certainly still consider them essential, but access to information is what this is all about.
Unfortunately, I wasn't here at the last meeting, when we heard from the Information Commissioner, but I did read her testimony. Reading between the lines of what she was saying, I could see she was basically asking this question rhetorically: how can the committee be expected to accomplish its objectives without this full access? To think that as a parliamentarian, whether it's me or another colleague around the table sitting on that committee, we would have less access than other review bodies, I would pose the question that you would have to ask yourself: what the heck is the point?
That said, if we can take a smaller step in the right direction, I certainly won't be opposed to it, but I think it bears saying on the record that this is the heart of what's wrong with this bill. Certainly it bears mentioning today, and it won't be the last time that we mention it.
Let's look at clause 14.
Paragraph (a) involves confidences of the Queen's Privy Council for Canada, which includes Cabinet. Everyone here agrees on excluding this.
Paragraph (b) involves information about ongoing activities. In the English version, it appears as “information respecting ongoing”. Every witness, aside from the Privacy Commissioner of Canada, agreed that the committee did not need such information.
Paragraph (c) concerns witnesses and identity. All witnesses, even the Privacy Commissioner of Canada, said that we did not need information of this nature.
Then, paragraph (d) again concerns identity. The witnesses gave the same answer.
Paragraph (e) uses the words “renseignements qui ont un lien direct avec une enquête en cours” in the French version. The English version reads “ongoing investigation”. Again, almost all witnesses unanimously agreed.
I'd like to make you understand that the government, as we will see a little later, has amendments that will respond to the concerns that have been expressed. Basically, it's important to keep in mind that this is a committee that oversees organizations that gather information and that, from the outset, both ministers promoting this bill have clearly indicated that we also need to find a balance.
I would suggest that the balance has been found. There may be a number of ways to find a balance, but the model we have here finds the balance, and restores it. It may even be perfect a little later after a few more amendments.
I don't think we should adopt this amendment.
Seeing no other comments, all in favour of the subamendment, which deletes a whole bunch of things?
(Subamendment negatived [See Minutes of Proceedings])
The Chair: Now we move to amendment LIB-11, which would transfer paragraphs 14(b) through to 14(g) to clause 16 for ministerial discretion.
(Amendment agreed to [See Minutes of Proceedings])
The Chair: That carries, with one abstention.
We can still do Green Party amendment PV-5, amending after line 17. It is deemed moved. It's similar to an earlier motion, I believe, binding people to secrecy.
(Amendment negatived [See Minutes of Proceedings])
The Chair: Now we are looking at clause 16 in its totality. Clause 16 has been amended by LIB-11. Shall clause 16 as amended carry?
All in favour? All opposed?
Let me check this again: all in favour?
I honestly can't tell how people are voting, because they've changed their votes.
All in favour? Any opposed?
(Clause 16 as amended negatived)
The Chair: The clause is defeated. There is no clause 16.