Notices of Meeting include information about the subject matter to be examined by the committee and date, time and place of the meeting, as well as a list of any witnesses scheduled to appear. The Evidence is the edited and revised transcript of what is said before a committee. The Minutes of Proceedings are the official record of the business conducted by the committee at a sitting.
Good afternoon, members of the committee, witnesses, and officials who are here to help us as we continue, pursuant to the order of reference of Tuesday, October 4, 2016, our consideration of Bill C-22, an act to establish the national security and intelligence committee of parliamentarians and to make consequential amendments to certain acts.
We welcome Mr. Sutherland, Ms. Sheehy, and Ms. Miles from the Privy Council Office, and Mr. Davies and others who are with us.
Welcome, as well, to Madam May, who is joining us today.
We're continuing consideration of the bill at clause 17. As we did last week, we will proceed relatively slowly. I'm not going to repeat the instructions that I gave at the start of the bill consideration. If anyone needs any time to sort anything out, please do ask the chair for a motion to suspend, and we'll certainly entertain that accordingly.
It's actually kind of funny. I was subbed in to the justice committee last week, and they were doing clause-by-clause study that day for the genetic discrimination bill. There were only two amendments, so I felt lonely and strange.
In any event, CPC-9 is a small amendment. This came pursuant to some of the testimony we heard that perhaps there should be some reference to a quorum requirement for the committee. It basically says that at the first meeting it would be up to the committee to establish that.
I understand that, but now there's no quorum. If the chair calls a meeting and nobody shows up, the chair can basically have a meeting by himself or herself because there are no guidelines for a quorum or anybody else needing to be there.
I would like to read into the record, Chair, for the purposes of this committee and its record, that the response from Nancy indicates that quorum could be a topic of conversation at the meeting of the committee.
Mr. Chair, I have an amendment to clause 19. I will read it and then move it. We have it in writing in both official languages.
The motion is that Bill C-22 in clause 19 be amended by replacing lines 8 and 9 on page 8 with the following, “only in the case of a tie.” So the amended clause would read, “The Chair may vote at meetings of the Committee only in the case of a tie”.
I will move the amendment. It's amending the reporting so it would include the number of times in the preceding year that ministers exercised their discretionary authority to stop a review from proceeding under clause 8.
(Amendment agreed to [See Minutes of Proceedings])
My next amendment is also directed to the same thing, somewhat in the alternative.
The intent here is just to remind people when we get to the power of a prime minister in the first reading version of the bill, under subclause 21(5), the “Prime Minister may direct the Committee to submit” to himself or herself as Prime Minister a revised version of the annual or special report.
My amendment is that “the Prime Minister may advise the Committee to submit”. It's an attempt to ensure that the committee, bearing in mind that the committee is empowered to maintain state secrets, is fully confidential in its makeup, and the goal is to ensure that it's the committee, not the Prime Minister, who makes the decision about exactly how the revisions are conducted. The Prime Minister may “advise” as opposed to “direct”. That's the essence of my amendment.
Again, this is an alternative approach to the same goal, in that the Prime Minister may advise the committee to submit as opposed to.... It's a change in language with the same purpose, to change from the Prime Minister directing, to the Prime Minister advising.
We're going back. Sorry. This has just been brought to my attention. For the record, to bring up an issue with respect to Ms. Damoff's amendment, LIB-12, which has passed, it has as its final point, item (d)(ii) “decided to refuse to provide information under subsection 16(1).” Since clause 16 no longer exists, it would be problematic because the numbering will change. It refers to nothing. We just want to state, on the record, that it refers to nothing.
If I had unanimous consent, I could revert to consideration of LIB-12, or it could be done at report stage, if someone wanted to do it there.
There is. I'm just wondering if you would like to wait until the end to deal with that. It deals with after line 11, so do you want to wait until we've done the other ones to deal with this one or do you want me to read it in?
I move that Bill C-22, in clause 21, be amended by adding after line 11 on page 9 the following:
(5.1) If the Committee is directed by the Prime Minister to submit a revised version, the revised version must be clearly identified as a revised version and must indicate the extent of, and the reasons for, the revisions.
I just want to add a couple of things on the record.
I now understand what the mover was trying to get at. I would just say that in these matters, greater clarity is better than lesser clarity. If you're dealing with a situation when a report has been ordered to be revised by the Prime Minister of Canada, parliamentarians have a right to know which departments are involved in that and not only the nature and the reasons of the decision, but to go behind the veil, as it were, to find out the particulars as they are laid out in my revised subclause 7.
I think that my amendment is superior in many ways to the proposed amendment.
Just for clarification purposes here, with the piece removed, that removes the openness and transparency from any department that has made suggestions that it be redacted, so there is no accountability by any department in this process.
The act allows the Prime Minister to direct that certain information that's injurious to national security be redacted from the report.
The act gives the authority to the Prime Minister to request that information be redacted from the report. It is the Prime Minister who would request that, not the departments, and then the committee is responsible for determining how that redaction is made in the report.
Okay, what I'm hearing then is that.... The Prime Minister isn't going to arbitrarily start redacting stuff without getting advice from a variety of departments. That's just common sense. What I'm hearing is that there are provisions still embedded within this whereby the committee has the ability to get that information as to which department and why that advice was given to the Prime Minister. Is that correct?
The bill is silent on what information, on how that information is communicated to the committee, or what constitutes the information that the Prime Minister gives to the committee in terms of the redaction. It just says that the Prime Minister can indicate to the committee that certain things have to be redacted. The bill does not provide for how that information is considered in that direction nor what analysis has to be provided to the committee.
Okay, so if the bill is now silent on that, and the committee is an oversight committee, and there have been redactions by the Prime Minister, there is no ability for the committee to get any of that information as to who and why that redaction occurred because the bill is silent on it now. Is that correct?
Clause 21 is about the public report, what the public will see, but the committee will see everything, including what's redacted. I just want to make sure it will be clear which departments are involved in the redactions because you can see everything. This is about what is made public, and the key about the bill is the Prime Minister will make that call. It's not about hiding anything or redacting anything before the committee sees it. This is about what is appropriate to be released publicly.
I fully get that, because it's not necessary for the general public to have that information. My concern was around the committee having that information, going through the process of redaction and who's doing what and advising whom on what.
As with a lot of other public reports, in court proceedings and so on, in the end it's a give and take. It's a back and forth in terms of discussion on what should be released and what should not be released.
I get all that. I just want to make sure that there's a provision that, before it goes to the general public, the information is given to the committee in terms of why there was a redaction, who was advising to redact it. That was my point.
I heard from Ms. Sheehy that it was silent on that; therefore, the information wasn't there. I just want clarification. I just want to make sure.
I guess that's my point. The Prime Minister isn't arbitrarily going to start changing documents because he thought so that day. There's a process that's undertaken. There are advisers who would give him that information. My question was around, would the committee not be able to have that information now?
The committee is writing the report. The committee sees everything. In the back and forth that goes on with the redaction, it's going to be clear which agency the report is on and where the information comes from. At the end of the day, it's the Prime Minister's decision, but there is not going to be any information hidden from the committee or any discussion that's not going to be revealed on why a redaction did or did not occur. Every review body goes through this as they issue a public report.
The reason I'm trying to understand this is that an amendment was made to take that language out. I still want to make sure that the committee needs to fully understand why there was a redaction and which organization put that forward, so the committee will have full understanding of what that looks like.
I would also just point out that I slightly misspoke. I want to be very clear that, in Bill C-22, at subclause 21(5), where I said “injurious to national security”, I should have been more accurate in saying:
the disclosure of which would be injurious to national security, national defence or international relations or is information that is protected by litigation privilege or solicitor-client privilege
Then the clause goes on, but I just want to clarify that I had misspoken on that point.
I want to clarify one thing on process. The amendment that was passed added language and no language was taken out. That would have come in a later amendment, which is now not eligible. Just so people are clear and the public record is clear, what we have done is we have the original subclause 21(5), which has two lines added to it, which will make other motions ineligible; however, it has added the requirement for reasons to be given to the committee.
You still have the floor, Ms. Watts, and then Mr. Rankin, followed by Mr. Mendicino.
I thank you for that. I do understand that. I just want to make sure that with the redaction, if a committee member asks who advised that this be redacted, whether it's CSIS or whoever it is, it doesn't matter; that information would be forthcoming to the committee.
I get that it would be injurious to public security and all that other stuff, the reasons why. I just want to understand that there is still is a process in place whereby the committee has the information that they need.
To your point, the act is silent on that, including with the amendment. To Mr. Davies' point, one can imagine that they'll be back and forth with the committee in terms of the redactions that are requested, but the act is silent.
Fair enough, but I think it should be coloured by what we heard from Mr. Davies. The amendment, which was approved by the committee, in no way prohibits the reasons from including references to the departments which are asserting privilege, so it's because of this that I think this amendment is obviously not in any way going to foreclose reasons that will shed light on the area that you were probing.
Actually, it does, because it says if any department was consulted in authorizing the revision, as well as the extent, that that be given to the committee. That was an amendment that we had put forward. That's why I wanted clarification, because this clearly stipulates that the information from whatever department or agency will come to the committee. Now it's silent on that. That can be interpreted a thousand different ways, is my point. To me, that's problematic because it's not clear.
I'm not going to read all of this into the record, but in essence what it does is the report that is tabled in the House will also be referred to either the Senate Standing Committee on National Security and Defence, or some other name, as it may be named later, and the Standing Committee on Public Safety and National Security of the House. It came up in testimony that it would be advisable for that report to be tabled with the appropriate committee, so it amends the bill to have that done.
(Amendment agreed to [See Minutes of Proceedings])
We obviously heard a lot about the horizontal integration and the learning curve that comes with such a committee. This amendment seeks to have the existing bodies provide different reports to the committee of parliamentarians. Specifically, we're talking about special reports from the RCMP's Civilian Review and Complaints Commission; reports from the CSE commissioner to the Attorney General on activities that may not be in compliance with the law; and the contents of the special briefings prepared by SIRC, and the special reports prepared by SIRC, two different things worth distinguishing. This was endorsed by Craig Forcese, Kent Roach, Ron Atkey, and Richard Fadden as well, so I hope I will have the support of the committee for this amendment.
It says the review bodies may provide to the committee, and then under “Exceptions”, what it must not, whereas our amendment says that in addition to the information the review body may provide—sorry, am I reading the right thing here? The “appropriate review body must provide to the Committee the following” and it makes those mandatory, as opposed to the more open language that is there. These reports aren't enumerated with a “must” before them in the legislation as drafted.
(Amendment negatived [See Minutes of Proceedings])
I'll move it anyway, I suppose, but it was more as a follow-up housekeeping amendment had we adopted our previous amendment, which would have just made cabinet confidences the only item that cannot be shared between the committee and the review bodies. It's a bit irrelevant now, because it was a complementary piece to the previous amendment.
Therefore, as an overview committee, there are other review committees that don't have to give us any information, and that has crippled the committee. They can't do the job, basically, is what this is doing.
I get it. I just want to make sure that in moving forward with this there's a clear understanding that, as an oversight committee, this is not what's being set up, because any other review committee doesn't have to give us information. It is what it is.
The clause enables the review bodies to share information with the committee, subject to limitations under what were clauses 14 and 16. The provision is necessary, because the review bodies are otherwise subject to legal prohibitions under their legislation that does not allow them to disclose the information that they have access to.
This particular clause allows them to provide information to the committee, pursuant to anything else that's in the act.
I think this speaks directly to what the Privacy Commissioner had said about them deciding not to give information around a program that was being undertaken, and it had nothing to do with national security or the fact that they were gathering data and holding data on Canadians.
They still have that ability, and they don't have to give it to us. Okay. I just want to be clear.
I want to put on the record that it's a difference of opinion on whether this cripples the committee, because in our opinion, it doesn't cripple the committee at all. Clause 22 is still very permissive in what it allows the committee to receive from the review body.
Just to answer the concern, as I read the legislation, subclause 15(1) states, “If the Committee is entitled to have access to information that is under the control of a department, the Committee may make a request to the appropriate Minister for that department that the information be provided to the Committee.”
Then if you go to subclause 15(3), it states, “After the appropriate Minister receives the request, he or she must provide or cause to be provided to the Committee, in a timely manner, the requested information to which it is entitled to have access.”
Maybe we can have clarification. If a request is made pursuant to clause 15, and it doesn't include information that is related to clauses 14 or 16, then clause 15 would not be an answer. I would appreciate knowing that as well.
It's nice to see you, Ruby. I feel like we should be talking about electoral reform. We're veterans, here.
This amendment very clearly attempts to turn on its head what both subclause 31(1) and subclause 31(2) accomplish. At the moment, the effect of subclause 31(1) and particularly subclause 31(2) is to make the decisions of a minister refusing to provide information pursuant to subsection 16(1) not only final insofar as government decision-making goes, but also exempt from normal review through our federal courts.
It's a very straightforward amendment. I am proposing to replace eight lines with four—economy of purpose. We would no longer have subclauses (1) and (2), and the amendment would say:
The appropriate Minister's decision to refuse to provide information under subsection 16(1) is final, except for judicial review under the Federal Courts Act.
I think the purpose is clear. You've certainly heard expert witnesses to the effect that this is the sort of area where too much.... The Federal Court can certainly handle confidential information. The decision-making by a minister of the crown can go to Federal Court, and that process can also be as secure for purposes of public security and the national interests as any other body one could imagine. It would certainly improve the decision-making under this act and the access to information that is critical to a parliamentary committee of both MPs and senators whose job is national security and intelligence. They certainly will not be able to do their job if ministers do not provide information. That should be an exception, and it should be difficult for ministers to make that decision. They should know that their exercise of discretion is open to Federal Court review on tests that have been developed through the ages.
It certainly doesn't open this process to abuse or to leaking secure information from our intelligence services, but it is a check on the inappropriate exercise of discretion by ministers.
Mr. Chair, with respect to amendment BQ-8, it's important to point out that disagreements between the government and parliamentary committees are settled in Parliament. Disagreements between the committee specified in this bill and the government should be handled the same way, in other words, they should be settled in Parliament, rather than through legal action.
We are talking about a committee of parliamentarians. With respect to the committee's conduct and governance, despite the provision tying it to the executive branch, the fact remains that the committee is made up of parliamentarians and deals with the government, whose members are accountable to Parliament. Those debates, then, should take place within Parliament.
To that point, it isn't a committee of Parliament; it is a committee of parliamentarians. I think the rules are a bit different, in terms of how things should work through. Therein lies the difference. We can't go to Parliament to fix this. It has to be embedded in the legislation.
The Standing Orders do not apply to this committee as they do to the standing committees of the House of Commons, or even special committees of the House of Commons. It is not a special committee, nor is it a standing committee. It is a statutory committee of parliamentarians.
Mr. Chair, the committee is made up of parliamentarians. The bill we are studying clause by clause expressly sets out that the committee be made up of parliamentarians, and that carries a certain meaning. It says right in the bill that the committee's membership must be made up of members of Parliament.
Intrinsically, what that means is that those who sit on the committee come from and report to Parliament. Therefore, any discussions, debates, or differences of opinion that need to be settled should be dealt with by the institution to which those individuals are bound, in other words, Parliament.
I would ask the officials if they want to comment. The only thing I would say is that it is not just members of Parliament, but members of Parliament and senators. We'll have both houses represented. I am not sure if the officials want to comment on that or not.
31.1 The Committee must inform the appropriate Minister and the Attorney General of Canada of any activity that is carried out by a department and is related to national security or intelligence and that, in the Committee's opinion, may not be in compliance with the law.
While those copies are being circulated, by way of an explanation, we did speak with some of the witnesses about what's prescribed in the National Defence Act in terms of the whistle-blowing duty that CSE has to report to the appropriate minister and the Attorney General of any activity that may not be in compliance with the law. This is wording that we were able to agree on to get this amendment through, and it was moved from where I originally placed it, just to keep it more in line with the content of the bill.
The Chair: Now we move to clauses 32 to 46. Do I have unanimous consent to consider them together?
Some hon. members: Agreed.
(Clauses 32 to 46 inclusive agreed to)
(On clause 47)
The Chair: Now we're moving to clause 47, on which we have some amendments.
Because of our action at the last meeting, amendment LIB-16 was already dealt with; therefore, amendments NPD-9 and NDP-13 may not be moved. We will then go simply to clause 47 as amended because of the consequential amendment from our last meeting.
Mr. Chair, I'd like to move amendment LIB-1, that Bill C-22, in clause 2, be amended by replacing line 18 on page 1 with the following:
Governor in Council made under that Act;
(c.1) with respect to a parent Crown corporation as defined in subsection 83(1) of the Financial Administration Act, the appropriate Minister as defined in that subsection; or
The rationale, Mr. Chair, is straightforward. It is simply to broaden the ambit of the act to include parent crown corporations. It's one of the most compelling examples. There aren't many, I should say, in the area of national security. There is CATSA, which is the Canadian Air Transport Security Authority. It's a crown corporation deeply involved in security matters. It is simply the aspiration of this amendment to extend the scope of the act to include parent crown corporations involved in this field.
Mr. Chair, could I ask a question on status? It was my recollection that we had stood elements, if not all, of clause 15 as well, because at least LIB-10 was consequential to the previous amendment that was just moved.
Can you give the committee a status update on LIB-9 and LIB-10? Were those stood or were those moved at the last—
Mr. Chair, my comment was in no way directed at Her Majesty the Queen. It is simply that legal requirements and considerations around prosecution come into play when an oath is broken. The current wording seems to me to be the most appropriate, given the serious legal ramifications associated with breaking the oath. I would therefore keep it as is.
When we were sworn in as parliamentarians, we all took an oath that had the language around the Queen, and we took an oath to be parliamentarians for the House of Commons. Perhaps we should look at the language embedded in there. I am not sure what the exact language would be, but we all took the oath, so it might be....
Would the oath that the parliamentarians take when they are sworn into Parliament, either the House of Commons or the Senate, still stand as an oath that would apply? This would be a further oath to the original oath.
“Her Majesty” would have already been in that oath. Am I correct on that?
I will read it for the record, if you'd like: “The Act states: 'Every Member of the...House of Commons'”—and I assume the Senate would have something similar —“'shall before taking his [or her] Seat therein take and subscribe before the Governor General or some Person authorized by him [or her]...the Oath of Allegiance'”, which is “I...do swear, that I will be faithful and bear true Allegiance to Her Majesty Queen Elizabeth the Second”, or a similar oath.
My point is that, since they have taken that oath, if that oath is all that is needed, then there is no need for this oath. If there is a need for this oath, then it should be in the same form and style as our oath as parliamentarians, and in the normal course.... I swore the same oath as a cabinet minister, and I am still bound by that, by the way.
Mr. Chair, I would actually disagree with that. There is a need for this oath, because it relates specifically to the mandate of the committee, as well as the confidentiality of the information obtained by the members thereof.
I will be opposing the motion, with all due respect to Her Majesty, simply because I feel that it is redundant. We have sworn one oath, and this is complementary to that.
We have sworn an oath to Her Majesty, and this is supplemental to that. I am hesitant to start playing with oaths that have been drafted as part of this bill. We have sworn an oath to Her Majesty, and I am confident that we will continue to be loyal to Her Majesty.
I disagree with the honourable member on a couple of points.
First of all, this deference to the drafters.... We are drafters. We are lawmakers; that's what we do. Drafters can advise us, but we are the lawmakers, so it's our say and there is no reason why we have to defer to them on our adherence to the monarch of Canada.
Second, I would say to you that if that is the logic, that we have already sworn an oath to the monarch.... We have already sworn an oath to Canada, too, and yet the oath to Canada is there. I think that, in order to be consistent, we should swear an oath both to Canada and its people, and to the monarch.
The Chair: Shall I report the bill as amended to the House?
Some hon. members: Agreed.
The Chair: Shall the committee order a reprint of the bill?
Some hon. members: Agreed.
The Chair: That is finished.
I just want to take a moment to thank our officials for bearing with us at two meetings and for being helpful to our process. I also want to thank our legislative clerks who have helped us, as well as our analysts and our clerk.