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Publications - June 8, 2005
 

38th PARLIAMENT, 1st SESSION

Subcommittee on Public Safety and National Security of the Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness


EVIDENCE

CONTENTS

Wednesday, June 8, 2005




¹ 1530
V         The Chair (Mr. Paul Zed (Saint John, Lib.))
V         Mr. J. Alan Leadbeater (Deputy Information Commissioner, Office of the Information Commissioner of Canada)
V         The Chair
V         Mr. J. Alan Leadbeater
V         The Chair
V         Mr. J. Alan Leadbeater
V         Hon. Roy Cullen (Etobicoke North, Lib.)
V         Mr. J. Alan Leadbeater
V         Hon. Roy Cullen
V         The Chair
V         Mr. Kevin Sorenson (Crowfoot, CPC)
V         Hon. Roy Cullen
V         Mr. Kevin Sorenson
V         Hon. Roy Cullen
V         Mr. Kevin Sorenson
V         The Chair
V         Mr. Kevin Sorenson
V         The Chair
V         Mr. J. Alan Leadbeater
V         The Chair
V         Mr. J. Alan Leadbeater
V         The Chair
V         Mr. J. Alan Leadbeater

¹ 1535
V         The Chair
V         Mr. Kevin Sorenson
V         Mr. Peter MacKay (Central Nova, CPC)
V         Mr. J. Alan Leadbeater

¹ 1540
V         Mr. Peter MacKay
V         Mr. J. Alan Leadbeater
V         Mr. Peter MacKay
V         Mr. J. Alan Leadbeater
V         Mr. Peter MacKay
V         Mr. J. Alan Leadbeater
V         Mr. Peter MacKay
V         Mr. J. Alan Leadbeater
V         Mr. Peter MacKay
V         Mr. J. Alan Leadbeater
V         Mr. Peter MacKay
V         Mr. J. Alan Leadbeater
V         Mr. Peter MacKay

¹ 1545
V         Mr. J. Alan Leadbeater
V         Mr. Peter MacKay
V         Mr. J. Alan Leadbeater
V         Mr. Peter MacKay
V         Mr. J. Alan Leadbeater
V         Mr. Peter MacKay
V         The Chair
V         Mr. Serge Ménard (Marc-Aurèle-Fortin, BQ)

¹ 1550
V         Mr. J. Alan Leadbeater
V         Mr. Serge Ménard
V         Mr. J. Alan Leadbeater
V         Mr. Serge Ménard
V         Mr. J. Alan Leadbeater
V         Mr. Serge Ménard
V         Mr. Daniel Brunet (General Counsel, Office of the Information Commissioner of Canada)
V         Mr. Serge Ménard
V         Mr. Daniel Brunet
V         Mr. Serge Ménard
V         Mr. Daniel Brunet
V         Mr. Serge Ménard
V         Mr. Daniel Brunet
V         Mr. Serge Ménard
V         Mr. Daniel Brunet
V         Mr. Serge Ménard
V         Mr. J. Alan Leadbeater

¹ 1555
V         Mr. Serge Ménard
V         Mr. J. Alan Leadbeater
V         Mr. Serge Ménard
V         Mr. J. Alan Leadbeater
V         Mr. Serge Ménard
V         Mr. J. Alan Leadbeater
V         Mr. Serge Ménard
V         Mr. J. Alan Leadbeater
V         Mr. Serge Ménard
V         Mr. J. Alan Leadbeater
V         Mr. Serge Ménard
V         Mr. J. Alan Leadbeater
V         Mr. Serge Ménard
V         Mr. J. Alan Leadbeater
V         Mr. Serge Ménard
V         Mr. Daniel Brunet
V         Mr. Serge Ménard
V         Mr. J. Alan Leadbeater
V         Mr. Serge Ménard
V         Mr. J. Alan Leadbeater
V         Mr. Serge Ménard
V         Mr. Daniel Brunet

º 1600
V         Mr. Serge Ménard
V         The Chair
V         Mr. Serge Ménard
V         Mr. Daniel Brunet
V         The Chair
V         Mr. Joe Comartin (Windsor—Tecumseh, NDP)
V         Mr. J. Alan Leadbeater
V         Mr. Joe Comartin
V         Mr. J. Alan Leadbeater
V         Mr. Joe Comartin
V         Mr. J. Alan Leadbeater
V         Mr. Joe Comartin
V         Mr. J. Alan Leadbeater
V         Mr. Joe Comartin
V         Mr. J. Alan Leadbeater
V         Mr. Joe Comartin
V         Mr. J. Alan Leadbeater

º 1605
V         Mr. Joe Comartin
V         Mr. J. Alan Leadbeater
V         Mr. Joe Comartin
V         Mr. J. Alan Leadbeater
V         Mr. Joe Comartin
V         Mr. J. Alan Leadbeater
V         Mr. Joe Comartin
V         Mr. J. Alan Leadbeater
V         Mr. Joe Comartin
V         Mr. J. Alan Leadbeater
V         Mr. Joe Comartin
V         Mr. J. Alan Leadbeater
V         Mr. Joe Comartin
V         Mr. J. Alan Leadbeater
V         Mr. Joe Comartin
V         Mr. J. Alan Leadbeater

º 1610
V         Mr. Joe Comartin
V         The Chair
V         Hon. Roy Cullen
V         Mr. J. Alan Leadbeater
V         Hon. Roy Cullen
V         Mr. J. Alan Leadbeater
V         Hon. Roy Cullen
V         Mr. J. Alan Leadbeater
V         Hon. Roy Cullen
V         Mr. J. Alan Leadbeater
V         Hon. Roy Cullen
V         Mr. J. Alan Leadbeater
V         Hon. Roy Cullen
V         The Chair

º 1615
V         Mr. Tom Wappel (Scarborough Southwest, Lib.)
V         Mr. J. Alan Leadbeater
V         Mr. Tom Wappel
V         Hon. Roy Cullen
V         Mr. Tom Wappel
V         Mr. J. Alan Leadbeater
V         Mr. Tom Wappel
V         Mr. J. Alan Leadbeater
V         Mr. Tom Wappel
V         Mr. J. Alan Leadbeater
V         Mr. Tom Wappel
V         Mr. J. Alan Leadbeater
V         Mr. Tom Wappel
V         Mr. J. Alan Leadbeater
V         Mr. Tom Wappel
V         Mr. J. Alan Leadbeater
V         Mr. Tom Wappel
V         Mr. J. Alan Leadbeater
V         Mr. Tom Wappel
V         Mr. J. Alan Leadbeater
V         Mr. Tom Wappel
V         Mr. J. Alan Leadbeater
V         Mr. Tom Wappel
V         The Chair
V         Mr. Kevin Sorenson
V         Mr. J. Alan Leadbeater
V         Mr. Kevin Sorenson
V         Mr. J. Alan Leadbeater
V         Mr. Kevin Sorenson
V         Mr. J. Alan Leadbeater
V         Mr. Kevin Sorenson
V         Mr. J. Alan Leadbeater

º 1620
V         Mr. Kevin Sorenson
V         Mr. J. Alan Leadbeater
V         Mr. Kevin Sorenson
V         Mr. J. Alan Leadbeater
V         Mr. Kevin Sorenson
V         Mr. J. Alan Leadbeater
V         Mr. Kevin Sorenson
V         Mr. J. Alan Leadbeater
V         Mr. Kevin Sorenson

º 1625
V         Mr. J. Alan Leadbeater
V         Mr. Kevin Sorenson
V         Mr. J. Alan Leadbeater
V         The Chair
V         Mr. Kevin Sorenson
V         Mr. J. Alan Leadbeater
V         The Chair
V         Mr. Tom Wappel
V         Mr. J. Alan Leadbeater
V         Mr. Tom Wappel
V         The Chair
V         The Chair
V         Mr. Timothy Farr (Associate Executive Director, Security Intelligence Review Committee)
V         Mr. Peter MacKay

º 1635
V         The Chair
V         Mr. Peter MacKay
V         The Chair
V         Mr. Kevin Sorenson
V         Mr. Peter MacKay
V         The Chair
V         Mr. Joe Comartin
V         The Chair
V         Mr. Kevin Sorenson
V         The Chair
V         Mr. Tom Wappel
V         The Chair
V         Mr. Timothy Farr

º 1640

º 1645

º 1650
V         The Chair
V         Mr. Peter MacKay
V         Mr. Timothy Farr
V         MS Marian McGrath (Senior Counsel, Security Intelligence Review Committee)
V         Mr. Peter MacKay
V         Mr. Timothy Farr
V         Mr. Peter MacKay
V         Mr. Timothy Farr
V         Mr. Peter MacKay
V         Mr. Timothy Farr
V         Mr. Peter MacKay
V         Mr. Timothy Farr
V         Mr. Peter MacKay
V         Mr. Timothy Farr
V         Ms. Marian McGrath
V         Mr. Peter MacKay
V         Ms. Marian McGrath

º 1655
V         Mr. Peter MacKay
V         Mr. Timothy Farr
V         Mr. Peter MacKay
V         Mr. Timothy Farr
V         Mr. Peter MacKay
V         Mr. Timothy Farr
V         Mr. Peter MacKay
V         The Chair
V         Mr. Serge Ménard
V         Mr. Timothy Farr
V         Mr. Serge Ménard

» 1700
V         Mr. Timothy Farr
V         Mr. Serge Ménard
V         Mr. Timothy Farr
V         Mr. Serge Ménard
V         Ms. Marian McGrath
V         Mr. Serge Ménard
V         Ms. Marian McGrath
V         Mr. Serge Ménard
V         Ms. Marian McGrath
V         Mr. Serge Ménard
V         Ms. Marian McGrath
V         Mr. Serge Ménard
V         Ms. Marian McGrath
V         Mr. Serge Ménard
V         Ms. Marian McGrath
V         Mr. Serge Ménard
V         Ms. Marian McGrath
V         Mr. Serge Ménard
V         Ms. Marian McGrath
V         Mr. Serge Ménard
V         Ms. Marian McGrath
V         Mr. Serge Ménard
V         Ms. Marian McGrath
V         Mr. Serge Ménard
V         Ms. Marian McGrath
V         Mr. Serge Ménard

» 1705
V         Ms. Marian McGrath
V         Mr. Serge Ménard
V         Ms. Marian McGrath
V         Mr. Serge Ménard
V         Ms. Marian McGrath
V         Mr. Serge Ménard
V         The Chair
V         Mr. Tom Wappel
V         Mr. Timothy Farr
V         Mr. Tom Wappel
V         Mr. Timothy Farr

» 1710
V         Mr. Tom Wappel
V         Mr. Timothy Farr
V         Mr. Tom Wappel
V         Mr. Timothy Farr
V         Mr. Tom Wappel
V         Mr. Timothy Farr
V         Mr. Tom Wappel
V         Mr. Timothy Farr
V         Mr. Tom Wappel
V         Mr. Timothy Farr
V         Mr. Tom Wappel
V         Mr. Timothy Farr
V         Mr. Tom Wappel
V         Mr. Timothy Farr
V         Mr. Tom Wappel
V         The Chair
V         Mr. Tom Wappel

» 1715
V         Mr. Timothy Farr
V         Mr. Tom Wappel
V         Mr. Timothy Farr
V         Mr. Tom Wappel
V         Mr. Timothy Farr
V         Mr. Tom Wappel
V         Mr. Timothy Farr
V         Mr. Tom Wappel
V         Mr. Timothy Farr
V         Mr. Tom Wappel
V         The Chair
V         Mr. Timothy Farr
V         The Chair
V         Mr. Kevin Sorenson
V         The Chair
V         Mr. Kevin Sorenson

» 1720
V         Mr. Timothy Farr
V         Mr. Kevin Sorenson
V         Mr. Timothy Farr
V         Mr. Kevin Sorenson
V         The Chair
V         Mr. Kevin Sorenson
V         Mr. Serge Ménard
V         Mr. Kevin Sorenson
V         Mr. Tom Wappel
V         The Chair
V         Mr. Kevin Sorenson
V         Mr. Timothy Farr

» 1725
V         Mr. Kevin Sorenson
V         Mr. Timothy Farr
V         Mr. Kevin Sorenson
V         Mr. Timothy Farr
V         The Chair
V         Mr. Kevin Sorenson
V         Mr. Timothy Farr
V         The Chair
V         Mr. Tom Wappel
V         The Chair
V         Mr. Kevin Sorenson
V         The Chair
V         Mr. Kevin Sorenson
V         Mr. Timothy Farr
V         Mr. Kevin Sorenson
V         Mr. Timothy Farr
V         The Chair
V         Mr. Kevin Sorenson
V         The Chair
V         Mr. Timothy Farr

» 1730
V         The Chair
V         Mr. Timothy Farr
V         The Chair
V         Mr. Timothy Farr
V         The Chair










CANADA

Subcommittee on Public Safety and National Security of the Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness


NUMBER 015 
l
1st SESSION 
l
38th PARLIAMENT 

EVIDENCE

Wednesday, June 8, 2005

[Recorded by Electronic Apparatus]

*   *   *

¹  +(1530)  

[English]

+

    The Chair (Mr. Paul Zed (Saint John, Lib.)): Colleagues, today I want to welcome Alan Leadbeater and Daniel Brunet, from the Office of the Information Commissioner of Canada.

    I understand that you do not have opening remarks.

+-

    Mr. J. Alan Leadbeater (Deputy Information Commissioner, Office of the Information Commissioner of Canada): I don't have a prepared statement. I have some comments to make at the beginning to put things into context, if you'll permit me.

+-

    The Chair: Okay. That would be great, if you wouldn't mind.

    Welcome, and please proceed.

+-

    Mr. J. Alan Leadbeater: I have the feeling that since there's a slippery floor, with the chairs rolling toward the door, and it's a hot room, I take the message to be quick and get out of here.

+-

    The Chair: Brevity is the soul of wit.

+-

    Mr. J. Alan Leadbeater: First, let me thank the committee for hearing from the Office of the Information Commissioner.

    Today the Information Commissioner is co-hosting with the Privacy Commissioner all of the provincial information and privacy commissioners in Canada, and a couple internationally. We're grateful that you were prepared to hear from the small fry.

    The commissioner made remarks to the Special Senate Committee on the Anti-terrorism Act on May 31. I'm more than willing to table a copy with you, if you'd like to have that. I'm in your hands.

    We're all very much aware that the Anti-terrorism Act was born out of a sense of urgency and fear around 9/11. It is now the time for this committee and Canadians in general to reflect on it from the point of view of Canadian values and our own historical perspective.

    I was thinking recently that we just came through the sixtieth anniversary of VE Day. It's a reminder that it's an entrenched part of Canadian values that we're willing to give our lives for freedom, and not the reverse, which would be to give up our freedom for fear of our lives.

    It was also only a few days ago that we heard about the unmasking or the coming forward of Deep Throat, the former deputy director of the FBI, in the United States. It reminded us too that at the very senior levels of government, the power of the state can be abused.

    Those are important things to remember by way of context, as we look at this legislation.

    From the point of view of the Office of the Information Commissioner, we are concerned that it upsets a careful balance established by Parliament in the Access to Information Act between the need for national security secrecy and the need for openness and accountability through transparency. The potential for abuse is just that—a potential for abuse.

    The concerns that we had have not arisen under this act. They relate to the certificate provision of section 38.13 of the Canada Evidence Act. They have not yet arisen, but they are ripe for abuse. I don't accept the proposition that since they haven't been used, they must therefore be acceptable. We're concerned about section 38.13 of the Canada Evidence Act. We're concerned about the amendment to the Access to Information Act, which is in section 87. We're also concerned about a provision in the Security of Information Act, which is in section 29.

    I thought that if I briefly gave our six recommendations, it might help us to focus.

    First, we recommend that section 38.13 on the certificate process, which allows the Attorney General of Canada a cloak of secrecy, be removed from the Canada Evidence Act.

+-

    Hon. Roy Cullen (Etobicoke North, Lib.): I have a point of order, Mr. Chairman.

    I'm sorry to interrupt the witness, but rather than giving us a set of recommendations, it would be helpful to the committee if you could give some background and context. Then we won't waste a lot of time trying to probe the sense of what is taking you there.

+-

    Mr. J. Alan Leadbeater: Sure.

+-

    Hon. Roy Cullen: That would certainly be helpful to the committee.

+-

    The Chair: Mr. Sorenson.

+-

    Mr. Kevin Sorenson (Crowfoot, CPC): There is no brief, and I can appreciate that, but I would like you to do it the way that you were going to present to committee. Give us your recommendations. We can question you, if we have any concerns about those recommendations.

    Although the parliamentary secretary jumped up and doesn't like the way you're making your presentation, I'd still like to hear your recommendations, your presentation, and your concerns, however you want to present that.

+-

    Hon. Roy Cullen: Mr. Chairman, I'll remind Mr. Sorenson of that when we all try to grapple with what exactly the Information Commissioner is asking for.

    That's quite all right.

+-

    Mr. Kevin Sorenson: We can figure it out, Roy.

+-

    Hon. Roy Cullen: Well, I wouldn't give that to you to figure out.

+-

    Mr. Kevin Sorenson: Well, maybe you can give me a lesson, Roy, because you're so important.

+-

    The Chair: All right, guys. I'm going to go ahead and listen to the witness.

+-

    Mr. Kevin Sorenson: The courtesy is that when they come with a presentation, we listen to their presentation. If they want to give us a picture or draw us a picture, we'll look at it. Whatever way they want to bring forward their presentation is the way we want to hear it.

+-

    The Chair: Please proceed.

+-

    Mr. J. Alan Leadbeater: I'm in your hands, Chairman.

+-

    The Chair: I think you see that there's a lot of interest in what you might have to say, so if you could say it--

+-

    Mr. J. Alan Leadbeater: Yes.

+-

    The Chair: --and then we'll get it into a round of questions.

    Thank you.

+-

    Mr. J. Alan Leadbeater: I'll try to walk sort of a halfway point. I take counsel from everyone who has spoken.

    That certificate in section 38.13, I think, for reasons that I'm prepared to discuss later, has no justification in the current context and in the context of our existing law. If that certificate is not removed from the legislation, it is our recommendation certainly that it should not have the effect of putting an end to Information Commissioner investigations, which it now does by virtue of the section 69.1 amendment to the Access to Information Act, which is in section 87 of the Anti-terrorism Act.

    We are anxious also that if section 87 is not amended, if it's kept in, it not be in the broad scope it is now but that it be rewritten into the precise language the Privacy Commissioner's investigations are written in, in sections 103 and 104.

    We are very much concerned about the lack of substantive independent review of the certificates, so we are recommending that section 38.131 of the Canada Evidence Act be amended to permit substantive review of a section 38.13 certificate. As it is now, a judge is limited only to a determination of whether or not the information relates to national security.

    I have some stories for you, if you'd like to hear them, about information that relates to national security but isn't sensitive.

    We recommend also that the effective period of a section 38.13 certificate, if that provision is kept, certainly be reduced. We wouldn't disagree with what the Canadian Bar Association, the Privacy Commissioner, and others are saying, that it be five years maximum.

    Finally, we recommend that the Information Commissioner be added to subsection 10(3) of the Security of Information Act as a person, along with judges of the Federal Court, the Governor General, and so forth, who cannot be permanently bound to secrecy.

    Those things, as a package, if not corrected, we think result in overreaching by the state for reasons unrelated to national security and would give them merely a tool to avoid possible embarrassment in areas of national security investigations.

    Thank you, Mr. Chairman.

¹  +-(1535)  

+-

    The Chair: Thank you.

    Mr. Brunet, did you want to say something? No?

    Okay, thanks.

    I guess we'll start with Mr. Sorenson or Mr. MacKay.

+-

    Mr. Kevin Sorenson: Mr. MacKay.

+-

    Mr. Peter MacKay (Central Nova, CPC): All right, I'll go first. Thank you.

    Thank you, Mr. Chair.

    Mr. Leadbeater and Mr. Brunet, we appreciate your presence here.

    I just want to pick up on your last point. You said you had some stories relating to incidents you're aware of that are not of a nature that would be prohibited from release that perhaps demonstrate examples where these security certificates were invoked or not invoked. I would invite you to relay that information to us.

+-

    Mr. J. Alan Leadbeater: The idea in section 38.13 of a certificate of this nature has been on the wish list of the intelligence community for a long time. I can only tell you of the instances we've publicly reported, because we are under obligations of secrecy ourselves, but I'll give you one example. You can see if you want to go any further.

    An access request was received at the Privy Council Office for a security and intelligence assessment prepared for cabinet. It concerned the likelihood of the demise of communism in East Germany before the fall of the Berlin Wall. The access request was made by one of Canada's own intelligence analysts who had been involved in the preparation of the intelligence assessment. He wanted to cleanse this through the Access to Information Act so that he could then frame it and put it up in a prominent place in his office or home to remind him that intelligence assessment is a very dicey business, fraught with possibilities of difficulty. Of course, the Privy Council Office refused it, based on national security concerns, and we received a complaint.

    In the course of the complaint, we were unable to see what would be the injury. Every intelligence agency in the western world got it wrong. Every intelligence agency thought there was a vibrant Communist influence in East Germany. Most of them were speaking out publicly, on TV and so forth, about how they got it wrong.

    I remember the coordinator of security intelligence saying that this was something that, as a precedent, should never be released. When we threatened to go to court, because we couldn't see the injury, they did relent and give it out. The country didn't come to an end, there was no loss of face, and foreign agencies did not stop giving intelligence to Canada--but we were told that's precisely the kind of information that would be covered by a certificate, if they'd had the power.

¹  +-(1540)  

+-

    Mr. Peter MacKay: So now they do have the power.

+-

    Mr. J. Alan Leadbeater: Now they do have the power, yes.

+-

    Mr. Peter MacKay: Along that same line of questioning, are you aware of incidents in your time, or previous to that, where information that was requested was denied by virtue of a security certificate? You just listed one.

    If you are aware of incidents, what grounds were discussed at that time?

+-

    Mr. J. Alan Leadbeater: The security certificate in section 38.13 did not exist prior to the Anti-terrorism Act. The provisions of the Canada Evidence Act that permitted unreviewable secrecy by government only related to cabinet confidences. Even those, the Supreme Court of Canada said in the case of Babcock, had to be limited to ensure that the discretion of cabinet was exercised fairly and in the public interest, not in a self-serving way, and in accordance with principles. Legitimate inquiries shouldn't be stifled by the use of cabinet secrecy.

+-

    Mr. Peter MacKay: So nothing since the act came into play.

+-

    Mr. J. Alan Leadbeater: Nothing since, no.

+-

    Mr. Peter MacKay: Were you aware that the Privacy Commissioner, when she was before us, suggested that a special advocate might play a role in this process where there were disputes over appropriateness of information, security imperatives around disclosure? Do you have an opinion on the possibility of the injection of a special commissioner of sorts to aid in this process?

+-

    Mr. J. Alan Leadbeater: Isn't that what the Information Commissioner's role is?

+-

    Mr. Peter MacKay: That was my take on it, but she seemed to think there was the necessity of another level. I was just garnering your opinion.

+-

    Mr. J. Alan Leadbeater: I don't know if any of you have had an opportunity ever to look at section 15 of the Access to Information Act. This is the section that allows government to keep secret any information that is sensitive to national security. It takes five pages, and it's one exemption. That already is considered to be probably the most stringent exemption in the world for national security. In the last 23 years, under the Access to Information Act...whenever that's invoked, the Information Commissioner sees the information and makes an assessment of whether or not it meets these tests, which are rather low tests.

    So I don't see any argument for some other process.

+-

    Mr. Peter MacKay: Okay.

    I would invite you to perhaps explore for us further your comment about the need to reduce the date of expiry, this 15-year period. You seem to think that's too long and that there should be a five-year maximum. In fact prior to taking the post, the current justice minister expressed similar reservations that he felt that it was too long, and he has since, I guess, been convinced otherwise. You think this five-year period is more appropriate, and you didn't comment—unless I missed it—about the renewal process for these certificates and whether you believe that the renewal aspect in effect can also be abused or used to withhold information.

+-

    Mr. J. Alan Leadbeater: I don't think that at any point they should be unreviewable by an independent body—be that the Information Commissioner or the court. If we are to have unreviewable certificates, it sticks in my throat to say even five years, but it has to be less than 15 years in a democracy.

+-

    Mr. Peter MacKay: Okay. There was an op-ed piece in the Globe and Mail not long ago in which a gentleman by the name Craig Forcese, who is a University of Ottawa professor, was talking about section 4 of the Official Secrets Act, which is now incorporated in the Security of Information Act. He was critical of the way it was written, particularly around the parameters of the word “secret” as being quite broad or undefined. He claims that this opens the possibility of being found criminally culpable in kind of a nebulous way. Do you have an opinion on that particular subject matter—section 4—and on the fact that the act itself criminalizes receipt as much as disclosure, so that if you are in receipt of information that has been leaked, as opposed to being the one who's leaking it, you're just as susceptible to being charged, according to this section?

¹  +-(1545)  

+-

    Mr. J. Alan Leadbeater: Well, there's part of that question that I don't think is within my area of competence, but part of it is. I am at a loss to understand the design of an act that doesn't define secrets and yet creates disclosing them as an offence. That's what the Access to Information Act does. It defines the legitimate secrets of the Government of Canada. There are only 13 reasons. It's notwithstanding any other act of Parliament that the Access to Information Act.... It doesn't matter if somebody is stamping things “top secret” or “secret” or whatever; if it's not one of those 13 reasons it doesn't count. So to me that's the starting point: if something is a proper secret as defined by the Access to Information Act, under one of those 13 exemptions, and it is improperly disclosed, then it's up to Parliament to decide what the results should be.

+-

    Mr. Peter MacKay: I have just one further question for you, Mr. Leadbeater. As the situation exists now under the act, my understanding is that if an access request is denied and a person has the recourse of complaining about it to the Information Commissioner's Office, then they can go to the Federal Court, as I understand it, in the chain of command to obtain a release of documents. In the case of the former Prime Minister's agendas—you would be familiar with this case—I believe you've been ready to go to court on this particular matter, as I understand it, and you may in fact have to go to court, given the current circumstances.

    As for your recommendations to release agendas that have been implemented, that have now come to pass, I guess the long and the short of it is there's recourse to the courts always. That seems to be the de facto appeal process. Do you think there are other provisions in Bill C-36 that take away the recourse? Is it your understanding that in the current bill, ministerial certificates, for example, or other sections can in fact trump the courts? Or is that court option still available? What's your interpretation of that?

+-

    Mr. J. Alan Leadbeater: You may recall that when the bill was originally introduced with the section 38.13 certificate, there was much criticism of the then Minister of Justice for cutting the courts out entirely. There was no review. Then amendments came in. A new version came in that provided the process that you'll find in section 38.131, which is probably around page 93 of your bill. That process allows a section 38.13 certificate to be reviewed by a single judge of the Federal Court of Appeal. If you look at subsection 38.13(8), you'll see the judge gets to decide only one thing, and that is whether or not the information relates to information obtained in confidence from a foreign government, or if it relates to information as defined in subsection 2(1) of the Security of Information Act, or to national defence or national security.

    As I just mentioned to you in my story, a lot of information can relate to those things but have no justification for secrecy. If you compare that with the review that's available under the previous section of the Canada Evidence Act, which you'll find on page 88 of your bill, section 38.06, you'll see there that the judge has a right to determine whether disclosure of the information would be injurious to international relations or national defence or national security.

    The judge has a substantive role, but when it comes to a section 38.13 certificate, there's no substantive role. So that review is window dressing. Federal Court judges don't want it. If they could come here and testify, they'd probably tell you the same thing.

+-

    Mr. Peter MacKay: You think the standard should be the same.

+-

    Mr. J. Alan Leadbeater: Exactly.

+-

    Mr. Peter MacKay: Thank you.

+-

    The Chair: Thank you, Mr. MacKay.

    Monsieur Ménard.

[Translation]

+-

    Mr. Serge Ménard (Marc-Aurèle-Fortin, BQ): From what you are telling us, I think that the changes that were brought about by the Anti-Terrorism Act were useless given that the Information Access Act already allowed the government to keep secret information potentially injurious for national security or international relations.

¹  +-(1550)  

+-

    Mr. J. Alan Leadbeater: Yes. You are right to a certain extent, but as far as our court case is concerned, for instance, the government might have to refuse to disclose a certain type of information. It is a totally different matter that is not related at all to the Access to Information Act.

+-

    Mr. Serge Ménard: Could you give me an example of something that would come under the new provisions of the Anti-Terrorism Act, but that would not be included in the new classes of information added to the access to information legislation? I am talking about information that can be kept secret.

[English]

+-

    Mr. J. Alan Leadbeater: I gave you the example of an immigration proceeding in which the government wants to refuse to disclose some information. That's not related to an access-to-information process at all. They may wish to use a certificate to refuse to disclose the information.

    If it had been an access request, yes, there would have been a way to protect it under the access act, but it just doesn't happen that something like that would be a situation of an access request.

[Translation]

+-

    Mr. Serge Ménard: Then, it limits access requests for information concerning immigration…

+-

    Mr. J. Alan Leadbeater: Yes.

+-

    Mr. Serge Ménard: ... from someone who has been refused immigrant status…

    But wouldn't it be covered by other provisions?

+-

    Mr. Daniel Brunet (General Counsel, Office of the Information Commissioner of Canada): Would you allow me to interject?

+-

    Mr. Serge Ménard: Yes.

+-

    Mr. Daniel Brunet: Obviously, there was the Access to Information Act which applies when people make an access request. Furthermore, before the Anti-Terrorism Act, there was section 38 of Canada Evidence Act that protected that type of information. Section 37 was about public interest and the objection to disclosure and section 38 dealt with national security and international relations issues.

    As my colleague the Deputy Information Commissioner told you, those two structures existed, they were perfectly valid and they covered that kind of situation.

+-

    Mr. Serge Ménard: And they are still valid.

+-

    Mr. Daniel Brunet: Section 38 was replaced by this new mechanism.

+-

    Mr. Serge Ménard: Yes, that's right.

+-

    Mr. Daniel Brunet: Section 38 provisions are in the Canada Evidence Act which had been passed in 1982 at the same time as the Access to Information Act. A cumbersome and complicated mechanism has been put in place in Bill C-36. The Deputy Information Commissioner told you that our experience at the Office of the Information Commissioner of Canada has been that some of those provisions are going beyond what are acceptable limits in a healthy democracy.

+-

    Mr. Serge Ménard: This is exactly what I understood. I think that the Deputy Commissioner was ready to go as far as I was suggesting. In fact, with the legislation already existing before 9/11, the government had all the tools required to face that new situation and to refuse to disclose classified information on the grounds of national security or Canada's international relations.

+-

    Mr. Daniel Brunet: This is our understanding and that of the Office of the Information Commissioner of Canada.

+-

    Mr. Serge Ménard: In a state of emergency, everyone wants to do something and legislators want to play a part. So to show that they are doing something, rather than using existing laws, they enact new ones.

[English]

+-

    Mr. J. Alan Leadbeater: It should be remembered that the Access to Information Act and the Canada Evidence Act came into force--these provisions--at the same time in 1983, after we had the experience of terrorism in this country, after the experience of the War Measures Act. It was very much in the minds of Parliament at that time to make sure that these were vibrant enough protections for our national security, and they're in there.

    So this additional thing is a wish list that is not so much related to national security needs as just to give greater control to government to make sure that it always has the whip hand, I guess, in deciding whether or not there will be disclosure to the public.

¹  +-(1555)  

[Translation]

+-

    Mr. Serge Ménard: Of course, if you had a more important role to play, it would be necessary for you to do so in a timely manner. I would like to know what is your average processing time for the denied access appeals that you are receiving.

+-

    Mr. J. Alan Leadbeater: About six months.

+-

    Mr. Serge Ménard: What are your longest cases? And do you have cases that take less than six months to process?

+-

    Mr. J. Alan Leadbeater: Yes. Six months is the average.

+-

    Mr. Serge Ménard: It is an average between what and what?

+-

    Mr. J. Alan Leadbeater: It depends on the case.

[English]

In the case of the Prime Minister's agendas, because of court cases that we've been taking and all that, it's over four years.

[Translation]

+-

    Mr. Serge Ménard: Could it be as long as four years?

+-

    Mr. J. Alan Leadbeater: Yes.

+-

    Mr. Serge Ménard: Could it be less than 15 days, for instance?

+-

    Mr. J. Alan Leadbeater: No, it cannot be 15 days.

+-

    Mr. Serge Ménard: It takes at least a few months.

+-

    Mr. J. Alan Leadbeater: Yes, at least one month or 30 days.

+-

    Mr. Serge Ménard: Do you do it sometimes in a month?

+-

    Mr. J. Alan Leadbeater: What was the question?

+-

    Mr. Serge Ménard: Does it happen that the turnaround time is one month?

+-

    Mr. Daniel Brunet: Please allow me to answer. The Office of the Information Commissioner of Canada is not an administrative tribunal. It works as a kind of commission of inquiry. It means that a citizen whose access request is denied has the right to lodge a complaint to the Information Commissioner who will investigate the grounds of the objection.

    You will understand that the Commissioner has a rather large mandate. There are many kinds of complaints. However, when the Office investigates an access request refusal, it is sometimes dependent on the goodwill of the government as in the case of the Prime Minister. The government has launched 27 judicial review proceedings against the Information Commissioner on several procedural issues. You will understand then that things might be quite difficult for the Commissioner. Depending on the nature of the investigation, processing times could be rather long. It is the case for the Prime Minister's agendas affair.

+-

    Mr. Serge Ménard: I shall give you an example. I want to access an RCMP internal investigation which led to recommendations for improvements. I am sent a report of which 90 per cent has been obliterated. I know that 11 recommendations have been made, but I don't know what they are. How much time would you require to study the report, look at what was obliterated and decide what information should be disclosed and which ones should be protected?

    I give you this example because it did occur, but also because it is very similar to cases related to section 38.13 that you might have to investigate.

[English]

+-

    Mr. J. Alan Leadbeater: Well, you certainly have a point. No investigation can be done overnight. No court proceeding that reviews administrative action happens overnight either, but I'm not sure that I'm understanding the point about investigations. Was the point that if investigations take a long time, there shouldn't be the investigations?

[Translation]

+-

    Mr. Serge Ménard: Very briefly because I probably don't have much time left, do you have a shortage of staff? If we removed those provisions that were added only to show that something was done following 9/11, even if it was not necessary to change the law since it already included mechanisms to protect all the information needed to be protected, those requests would therefore be sent to you. Would you require more staff to process those requests?

+-

    Mr. J. Alan Leadbeater: Yes.

+-

    Mr. Serge Ménard: I see you nod, but it must be recorded. It is yes.

+-

    Mr. Daniel Brunet: As the Information Commissioner has said on several occasions, Mr. Ménard, we get our financial resources from the Treasury Board. It is the Treasury Board that controls the budget of the Information Commissioner. Obviously, there is a direct link between the efficiency of the Office of the Information Commissioner and the financial resources at its disposal. There is also a direct link between the time required to make an investigation and those resources. The Office of the Information Commissioner gets about 1,100 complaints per year. In fact, it receives 1,100 complaints and tries to process about the same number. This is what we are trying to do, but unfortunately, there is a backlog accumulating year after year. You will find those numbers in the annual report that we have tabled earlier this week.

º  +-(1600)  

+-

    Mr. Serge Ménard: I understand why he could not prepare a written statement.

+-

    The Chair: Thank you.

+-

    Mr. Serge Ménard: But you are still very useful.

+-

    Mr. Daniel Brunet: Thank you. We try.

[English]

+-

    The Chair: Merci.

    Mr. Comartin.

+-

    Mr. Joe Comartin (Windsor—Tecumseh, NDP): Merci.

    To follow up on the point about section 38.13 certificates, I wasn't quite clear. You'd like the certificates gone completely, I understand, but if they're going to stay, are you saying the absolute maximum you'd want the certificate to be in place would be five years, and it could not be renewed or reissued?

+-

    Mr. J. Alan Leadbeater: It shouldn't be reissued without the possibility of review, but if the government can demonstrate that there is some prejudice from disclosure, of course. I mean, with the passage of time there's a presumption that will diminish, but it can rebutted by certain circumstances, yes.

+-

    Mr. Joe Comartin: Would that be within your existing criteria, as opposed to the criteria of the agency?

+-

    Mr. J. Alan Leadbeater: If you're saying within the existing criteria under the Access to Information Act, then yes. We would like to see definitions in the Anti-terrorism Act that would track what's in the Access to Information Act. If you want to say what is sensitive and what is secret in the national interest, Parliament has taken five long pages to describe that in the Access to Information Act, and nowhere does it do it in the Anti-terrorism Act.

    So it would be useful, I think, to, give the government the power to keep its national security secrets, yes, but define what the limits of this power are. That was exactly what Parliament did in section 15 of the Access to Information Act.

+-

    Mr. Joe Comartin: When the Privacy Commissioner was here last week, she recommended that there be a five-year review and an automatic sunset clause. Has your office addressed that issue with regard to the sections of the act that affect your department?

+-

    Mr. J. Alan Leadbeater: If we're unsuccessful in having changes to this legislation with respect to the secrecy provisions that I've mentioned, of course, the more frequently it can be looked at the better. I think that goes without saying. Speaking realistically, though, almost every sensitive piece of legislation now has a mandated review, but it doesn't necessarily mean it gets a review.

+-

    Mr. Joe Comartin: The difference she was making was an automatic sunset clause.

+-

    Mr. J. Alan Leadbeater: Yes, exactly. I think if you put a five-year period in for the certificates, that is in effect an automatic sunset at the end of five years.

+-

    Mr. Joe Comartin: With regard to some of the questions Mr. Ménard was asking, has the work by your agency increased as a result of this legislation? Have you had more requests as a result of this legislation than you would have had otherwise?

+-

    Mr. J. Alan Leadbeater: No, we have not.

+-

    Mr. Joe Comartin: Have you had any requests?

+-

    Mr. J. Alan Leadbeater: We have a lot of requests in the national security field, but I'm not sure if it's related to this legislation. They relate to the Maher Arar matter and different immigration issues. There have been some requests related to policy behind the anti-terrorism drafting in the first place, but it's very difficult for me to say it's directly related to this legislation. In general, I think the public is anxious to know more about how their tax dollars are being spent in the national security field, and how their rights are being handled in this context of secrecy and lack of accountability.

º  +-(1605)  

+-

    Mr. Joe Comartin: Let me ask it this way. You obviously were getting requests pertaining to intelligence and national security about these agencies prior to this law coming into effect in December 2001. Can you tell us how many inquiries you were getting at that time versus how many you were getting in 2003 and 2004?

+-

    Mr. J. Alan Leadbeater: I think what you have in mind are inquiries that involve information exemptible under, for example, section 15. I would have to do that research and get that for you. I can tell you that our law requires that investigations about those kinds of complaints must be done by only four specially delegated investigators.

+-

    Mr. Joe Comartin: Those are established in your office?

+-

    Mr. J. Alan Leadbeater: Those are within the office. That was the number that was identified in 1983, and that's still the number, and they are still able to handle our section 15 exemption cases. We have never been overwhelmed with section 15 types of cases. Our special delegation officers are able to manage their caseloads. Our increase in workload, which is around 10% per year, is not attributable to national security issues. Most members of the public understand that there's a realm of secrecy that's legitimate for government. While there's more interest in that field now, it's not an enormous interest.

+-

    Mr. Joe Comartin: Is the interest more about what it's costing, or is it in other areas?

+-

    Mr. J. Alan Leadbeater: It's both. It's policy and it's dollars--where they are spent, how the airports are using them, and the effectiveness: is airport screening effective, is airport screening not effective, those kinds of questions.

+-

    Mr. Joe Comartin: Has the pattern of the response that you've had from the agencies or departments under this act changed in any way?

+-

    Mr. J. Alan Leadbeater: Yes. There's much less willingness to release information that has any relationship whatsoever to our national security since the 9/11 incident in the United States.

+-

    Mr. Joe Comartin: Has that not increased your workload in terms of the number of hours you have to spend or your staff have to spend on these requests?

+-

    Mr. J. Alan Leadbeater: Yes, it has. I'd be happy to try to get those numbers. I can tell you we've had an increased interest in this area, but I'm not able to quantify it for you.

+-

    Mr. Joe Comartin: But you believe that information would be available.

+-

    Mr. J. Alan Leadbeater: I can find out how many cases we've had every year that involved section 15 exemptions. We do track that information.

+-

    Mr. Joe Comartin: How long is it taking to process each inquiry, as opposed to what it was before?

+-

    Mr. J. Alan Leadbeater: Yes, we have turnaround times. We maintain hours booked on every file.

+-

    Mr. Joe Comartin: I'd like to go to a different area. Have you done any analysis of other jurisdictions where our security and intelligence services share information? I'm particularly thinking of the U.S., U.K., Australia, and New Zealand. What type of legislation do they have in terms of access to information, and has it had any impact on the sharing of information?

+-

    Mr. J. Alan Leadbeater: We have had communication with those jurisdictions because of the argument put forward by the former minister at the time this bill was introduced that the reason this secrecy was required was in order to assure our allies that information they provided us would be maintained in strict confidence. So we communicated with our counterpart organizations in those countries and asked if they could give us any insight into whether or not there was concern that Canada was a leaky ship.

    The minister could not provide us with any evidence that any country had that concern, and none of the counterparts we spoke to...and it just so happens that our counterpart in the United States is the justice department, because there is no commissioner. The justice department made it clear to us that the United States has a freedom of information act--in fact, ours was patterned on it. They expect to have independent review of these decisions about secrecy, and do not have a section 38.13 certificate in the United States.

    By virtue of this provision, we have the tightest secrecy provision of our counterpart jurisdictions in the other countries you mentioned. None of them have told us there was any fear of Canada being a leaky ship under the existing provisions of the Access to Information Act.

º  +-(1610)  

+-

    Mr. Joe Comartin: We had the same experience this past summer when we were doing the work on parliamentary oversight in each of those jurisdictions. None of them expressed any concern about Canada as a whole being, as you put it, a leaky ship.

    Thank you, Mr. Chair.

+-

    The Chair: Thank you, Mr. Comartin.

    Mr. Cullen, please.

+-

    Hon. Roy Cullen: Thank you, Mr. Chair.

    Thank you, Mr. Leadbeater and Mr. Brunet.

    I want to follow up on the point about information that is made available by other governments. Would you say then it would not be a realistic criterion to say that information that might jeopardize information-sharing with our allies would be reasonable grounds to withhold that information?

+-

    Mr. J. Alan Leadbeater: It's definitely a reason, and that's why there's a mandatory exemption in the Access to Information Act, section 13, that says the government may not disclose--no discretion--“any record requested under this Act that contains information that was obtained in confidence from the government of a foreign state...”.

+-

    Hon. Roy Cullen: So you don't have any problem with that.

+-

    Mr. J. Alan Leadbeater: No. That's already in the law. But it's reviewable. We get to see it and make sure it was obtained in confidence from a foreign state. We get to see the exchange of correspondence, and so forth.

+-

    Hon. Roy Cullen: Looking at other jurisdictions, like-minded states have a concern about balancing the requirements to provide access to information against the national security interests of the country. You sort of touched on that. But how have our allies or like-minded countries structured their access-to-information legislation to protect their national security interests adequately? I wonder if you'd just elaborate on that.

+-

    Mr. J. Alan Leadbeater: All of the countries we consider our allied countries that would be providing us with intelligence information have access-to-information provisions, very similar to our section 15, that permit governments to protect national security information. They all have independent review. Even post-9/11, independent review is still available in the other jurisdictions, but not here.

+-

    Hon. Roy Cullen: Okay. Mr. Reid and perhaps you yourself at the Senate committee touched on the need, as you expressed it, for greater oversight in terms of security information systems and a more coordinated or cohesive approach to that. Could you describe why you would say that, and could you describe the kind of oversight you would envisage in that sort of scheme?

+-

    Mr. J. Alan Leadbeater: Frankly, it's not my area of expertise. As they would say in the United States, it's above my pay grade. Because there are so many institutions involved in security and intelligence now in the Government of Canada—and they're becoming more coordinated through the Privy Council Office and Minister McLellan's department—there is a feeling in the oversight community that perhaps there should be more coordination of oversight as well, whether or not that should be one body similar to the Security Intelligence Review Committee--which you will hear from--that has a broader mandate with respect to the intelligence functions of the RCMP, for example, but it's just not my area of expertise. Thank you for asking.

+-

    Hon. Roy Cullen: Are you saying yours, or the Information Commissioner's, or...you personally?

+-

    Mr. J. Alan Leadbeater: I'm speaking personally. I was at the session, and he got into that discussion as a result of mentioning that he had been at a conference. I think we made it clear there that we were happy to engage in reportage of what we'd heard at that conference, but that it was not to be taken as expert opinion on either of our parts.

+-

    Hon. Roy Cullen: Thank you.

+-

    The Chair: Next is Mr. Wappel.

º  +-(1615)  

+-

    Mr. Tom Wappel (Scarborough Southwest, Lib.): Thanks. I'm sorry I was a little late. I hope I don't ask--

+-

    Mr. J. Alan Leadbeater: You were the only one here last time.

+-

    Mr. Tom Wappel: There you go. I hope that atones for my being a little late today.

+-

    Hon. Roy Cullen: We can adjourn the meeting.

+-

    Mr. Tom Wappel: I apologize if these questions have been asked. I hope they have not. I understand you had some recommendations with respect to section 38.13.

+-

    Mr. J. Alan Leadbeater: Yes.

+-

    Mr. Tom Wappel: What about section 37? Does section 37 bother you? This is the objection to disclosure of information on the grounds of specified public interest.

+-

    Mr. J. Alan Leadbeater: No, it doesn't.

+-

    Mr. Tom Wappel: Why?

+-

    Mr. J. Alan Leadbeater: Because it's subject to independent review. I specifically refer you to subsections 37(4.1) and 37(5), which allow the court to determine whether or not there was an encroachment upon a specified public interest, and to go to the bottom with a substantive review.

+-

    Mr. Tom Wappel: Okay, and that's the difference between sections 37 and 38, in your view?

+-

    Mr. J. Alan Leadbeater: If you compare it with section 38.131, the review provision governing certificates issued under section 38.13--you'll find that at page 93, I think--and look at subsections 37(8), (9), and (10), you will see that the judge's role is not to go to the bottom of it substantively, but merely to determine whether it relates to information. No injury test is to be assessed.

+-

    Mr. Tom Wappel: What about subsection 38.02(1.1) ? Is that at all troublesome for you? I presume you're one of the entities listed in the schedule, if I'm reading this correctly.

+-

    Mr. J. Alan Leadbeater: That's not a concern to us; no.

+-

    Mr. Tom Wappel: No--so that's okay. I'm just curious, because it says here:

When an entity listed in the schedule, for any purpose listed there in relation to that entity, makes a decision or order that would result in the disclosure of sensitive information or potentially injurious information...

    How does anyone know what sensitive information or potentially injurious information is?

+-

    Mr. J. Alan Leadbeater: Well, they're defined terms. In section 38 it says:

“Potentially injurious information” means information of a type that, if it were disclosed to the public, could injure international relations or national defence or national security.

And it also says:

“Sensitive information” means information relating to international relations or national defence or national security that is in the possession of the Government of Canada, whether originating from inside or outside Canada, and is of a type that the Government of Canada is taking measures to safeguard.

+-

    Mr. Tom Wappel: How would the commissioner know that?

+-

    Mr. J. Alan Leadbeater: I think to go back to section 38.02, to the part that you just read, it doesn't really expect us...because we don't make decisions or orders. We're an “ombudsbody”. We make recommendations to--

+-

    Mr. Tom Wappel: But you have access to information, do you not?

+-

    Mr. J. Alan Leadbeater: Yes, but it cannot be withheld from us, based on that, because we don't make orders.

+-

    Mr. Tom Wappel: But you do make decisions.

+-

    Mr. J. Alan Leadbeater: No, we make recommendations.

+-

    Mr. Tom Wappel: All right.

    Very good. That's it. Thank you.

+-

    The Chair: Okay. Mr. Sorenson, please.

+-

    Mr. Kevin Sorenson: Do you make recommendations directly to the Minister of Public Safety and Emergency Preparedness?

+-

    Mr. J. Alan Leadbeater: To the head of whatever institution received the access request in the first place.... So if it happened to be that department, it would the Minister of Public Safety and Emergency Preparedness.

+-

    Mr. Kevin Sorenson: In Quebec it's the same again. You give recommendations to the minister who has requested information, who has received the request.

+-

    Mr. J. Alan Leadbeater: And denied it. The request is received at a department, say the Privy Council Office. It's denied--

+-

    Mr. Kevin Sorenson: Usually by a journalist? Usually by anybody, I guess.

+-

    Mr. J. Alan Leadbeater: It can be anyone. The biggest group of requesters are businesses. Journalists and members of Parliament are fairly low down on the list in terms of percentage of requests received. Businesses are the big users. Then it would be denied, and we'd get a complaint. We would investigate it and make a report to the complainant and to the head of the institution that received the access request and denied it.

+-

    Mr. Kevin Sorenson: This is with all kinds of information. This isn't just terrorism information.

+-

    Mr. J. Alan Leadbeater: All kinds of requests. The national security ones tend to be around Foreign Affairs Canada, CSIS, the RCMP, the immigration department. SIRC is covered, for example, by the Access to Information Act...Communications Security Establishment, these sorts of institutions. And the emergency preparedness department, of course, receives most of the requests that concern national security information.

º  +-(1620)  

+-

    Mr. Kevin Sorenson: Are there lots of requests on the RCMP?

+-

    Mr. J. Alan Leadbeater: There have been around the Maher Arar issue, yes. They receive a lot of requests. Not a large percentage of them deal with national security.

+-

    Mr. Kevin Sorenson: Are lots of requests denied around the RCMP?

+-

    Mr. J. Alan Leadbeater: Well, we only see what goes wrong in our office. I suspect that in most offices about 10% of the requests received end up in complaints to our office. Most departments do pretty well, actually--90% is not bad.

+-

    Mr. Kevin Sorenson: Getting the information...?

+-

    Mr. J. Alan Leadbeater: Well, answering the request without generating a complaint. So there must be some level of satisfaction with the requester.

+-

    Mr. Kevin Sorenson: As you know, there's been a proposal for the establishment of a parliamentary committee to basically review some of the national security agencies and also the intelligence-gathering agencies. It's been accepted by the Minister of Public Safety and Emergency Preparedness. Some of us have sat on the committee that was basically looking into the establishment of this committee.

    On April 4 the Minister of Public Safety and Emergency Preparedness tabled some details of the proposed national security committee, and part of the mandate of that committee would be to review the framework of some of those agencies. We've been waiting for the government to come forward with legislation. By the looks of things, we'll be waiting for some time yet. Although they've taken the report that we worked on through the summer last year, and they have studied it and made up a bit of an idea of what they would like to see, compared to what the committee reported, they aren't close to any kind of legislation right now.

    Does that committee have any impact on your office? Is it just another government committee? Are there any views on this committee?

+-

    Mr. J. Alan Leadbeater: I think an improved level of oversight in the intelligence community would certainly improve the public confidence and therefore might reduce the number of access requests and complaints. It might have an effect on it that way.

    It might be a forum for independent review, but if you're asking me if it's a good substitute for the courts and the independent investigations by the information commissioner on these matters, I don't think so, no.

    I'll tell you why. I don't think a committee would have the investigative tools. We enter premises, we conduct searches, we subpoena witnesses, we plug into computer systems, and that's something the courts and the committee, I think, would have difficulty doing. Courts also don't have the burden of politics. For their side, they are relieved of that issue, which members of the House would have when they're looking at these issues.

+-

    Mr. Kevin Sorenson: Are you saying you don't think that committee would have the ability to get the results you're getting, basically?

º  +-(1625)  

+-

    Mr. J. Alan Leadbeater: I think it's a very important role, but at a policy level and not so much at an individual level— should this record be released, or should that secret be kept? I think the process Parliament has already put in place in the Access to Information Act is exactly the right one.

+-

    Mr. Kevin Sorenson: What do you think when the Minister of Public Safety comes forward—this is going back to basically what you said—and says that the national security risk and the risk of terrorism is greater today than it was in 2001, and when SIRC comes here and says it's not a matter of if we're attacked, but a matter of when? Then in your submission today you said it's time, in dealing with Bill C-36, that we reflect on it from the perspective of Canadian values and whether or not the power of the state has been abused.

    Does it frustrate you when the Minister of Public Safety talks about a much greater, increased threat?

+-

    Mr. J. Alan Leadbeater: I don't know who said it, but I'm always struck by that adage that if the only tool you have is a hammer, everything starts looking like a nail. I work in the Access to Information Office, so everything looks as though the solution is openness; the minister is working in an area of policing and intelligence, so everything may look like a threat.

    I think your role as parliamentarians is to give perspective to all of this. You'll hear from all of us who have our own little narrow views, and I'm hoping that what will shine through are those Canadian values we've had historically, which are that our freedoms are more important to us than our lives—at least we're willing to give up our lives for them—and we don't trust our governments very much. We want to know what they're doing. We really want to know; we want them to be transparent.

+-

    The Chair: Okay.

+-

    Mr. Kevin Sorenson: What freedoms, to you, are more important than your life?

+-

    Mr. J. Alan Leadbeater: I think that's why I invoked the sixtieth anniversary of VE Day in Europe. We don't want to lose our ability to be a society that is tolerant, that is inclusive, where we can have freedom of speech and freedom of assembly and very strong privacy rights, the kinds of things we have a charter to protect.

+-

    The Chair: Thank you.

    Your last question?

+-

    Mr. Tom Wappel: Yes, I notice the time is going.

    Mr. Leadbeater, I have just a question. On those things that you said, is there any evidence today that any of those values have been actually attacked by anything in Bill C-36?

+-

    Mr. J. Alan Leadbeater: No.

+-

    Mr. Tom Wappel: Thank you.

+-

    The Chair: Thank you very much, gentlemen, for your presentation. We're going to suspend to get prepared for the next panel of witnesses.

    Thank you.

º  +-(1628)  


º  +-(1633)  

+-

    The Chair: Colleagues, I'm now pleased to invite the Security Intelligence Review Committee, represented today by their associate executive director, Tim Farr; Marian McGrath, senior counsel; and Sharon Hamilton.

    Welcome. I understand that you have some opening remarks, and then we'll invite colleagues to begin some questioning.

+-

    Mr. Timothy Farr (Associate Executive Director, Security Intelligence Review Committee): My name is Tim Farr. I'm the SIRC's associate executive director. Marian McGrath is SIRC senior counsel, and Sharon Hamilton is one of our senior researchers.

    Before I begin, I'd like to extend greetings from our committee, whose members could not be here today, and also from our executive director, Susan Pollak, who is ill. Although I'm not nearly as eloquent, I would like to reassure you that I'm speaking on their behalf. I sincerely hope that our comments will assist your review of the Anti-Terrorism Act.

    Wayne Cole, your clerk, has assured me that members already received a copy of this publication, Reflections, which recounts our history and describes our role and our structure. Therefore, I would like to move directly to the Anti-Terrorism Act.

+-

    Mr. Peter MacKay: Mr. Chair, I don't think we have received a copy of that. We didn't receive it at our office.

º  +-(1635)  

+-

    The Chair: The researcher is telling me that they were distributed, but it's possible that you didn't receive it. I'm not arguing with you; it's possible.

+-

    Mr. Peter MacKay: Neither Mr. Sorenson nor I have received it.

+-

    The Chair: Then there's a conspiracy.

+-

    Mr. Kevin Sorenson: I've known that for some time.

+-

    Mr. Peter MacKay: Which one?

+-

    The Chair: You did get one, then?

    Mr. Comartin, did you get one?

+-

    Mr. Joe Comartin: I did, yes.

+-

    The Chair: Then it was you, Mr. MacKay, and Mr. Sorenson who were kept in the dark, so I apologize.

+-

    Mr. Kevin Sorenson: Is there anyone over there who can investigate this?

+-

    The Chair: Did you get one, Tom?

+-

    Mr. Tom Wappel: Yes, I did.

+-

    The Chair: All right. That's not your fault, but there will be other things, I'm sure, that we could blame you for.

+-

    Mr. Timothy Farr: I'd like to then move directly into a discussion of the Anti-terrorism Act, and I'd like to do two things. First, I'd like to discuss CSIS's role in the terrorist entity listing process; and second, I'd like to raise some questions with respect to the Security of Information Act, which regards SIRC's role with respect to the public interest defence when a person who is permanently bound to secrecy discloses classified information.

    When Parliament originally considered Bill C-36, SIRC wasn't anticipating any significant changes to our work, or to CSIS, for that matter, as a result of the bill's passage. CSIS did not receive any new powers and its mandate under the CSIS Act, as well as SIRC's, was left unchanged. As a result, SIRC assumed that the Anti-terrorism Act would not greatly affect the service's operations, because only a single section of the CSIS Act was amended by the Anti-terrorism Act.

    That change was to the definition of “threats to the security of Canada”, which was amended to include the words “religious or ideological” in paragraph 2(c). It now reads:

...activities within or relating to Canada directed toward or in support of the threat or use of acts of serious violence against persons or property for the purpose of achieving a political, religious or ideological objective within Canada or a foreign state,

    SIRC did, however, predict that the bill's passage would result in more complaints to SIRC from groups or individuals placed on the terrorist entity list, which was established under the Criminal Code. Three years later, that has not proven to be the case. In fact, we haven't received any complaints in relationship to the terrorist entity listing process--and I'm going to refer to it from now on as the TEL process. Nevertheless, SIRC has conducted our first review of CSIS's participation in the TEL process, and we've identified three concerns that we'd like to bring to your attention. The first concern relates to the authorities under which CSIS collects information for the purposes of the listing process and the extent of their collection activity. The other two relate to our ability to review the listing process.

    The TEL process is mandated under the Criminal Code as amended by the Anti-terrorism Act. Basically, CSIS plays a role in the TEL process by creating security intelligence reports, or SIRs, which are considered by the Minister of Public Safety and Emergency Preparedness in making a recommendation to the Governor in Council concerning whether or not an entity should be listed.

    When we completed our review of the TEL process, it raised several questions. What is the service's authority to participate in the TEL process? What is the meaning of “threats to the security of Canada” as defined in section 2 of the CSIS Act, and is that definition consistent with the definition of “terrorist activity” in the Criminal Code?

    These questions are not hypothetical, because there are several entities on the Criminal Code list, which currently numbers 38, that do not appear to fall within the definition of “threats to the security of Canada” under the CSIS Act.

    Let me give you two examples. The Japanese cult Aum Shinrikyo is a listed entity, but it has not committed any terrorist acts on Canadian soil and does not have an obvious presence or support apparatus in Canada. Similarly, the listed Colombian group, AUC, clearly commits terrorist activity in Colombia, but it doesn't appear to represent a threat to the security of Canada.

    Section 2 of the CSIS Act is very specific, owing to the importance that Parliament placed on clear legislative boundaries to the service's collection activities. It defines“threats to the security of Canada” as activities against Canada or detrimental to the interest of Canada; activities within or relating to Canada; or activities directed toward undermining the established system of government in Canada. Canada and Canadian interests are the common denominator in all four definitions of threat to the security of Canada.

    In contrast, the Criminal Code defines terrorist activity as an act or omission corresponding to the listed offences that is committed in or outside Canada. So while the CSIS Act specifies a particular relationship to Canada, within or relating to Canada, the Criminal Code definition includes activities that may take place outside of Canada and that need not specifically relate to Canada.

    The bottom line is that it's not necessary for a terrorist activity to have a clear relationship to Canada in order for it to meet the definition of “terrorist activity” in the Criminal Code.

    To put it another way, what this means from SIRC's perspective is that the listing process may require CSIS to collect, retain, and analyze information that does not fall within the definition of “threats to the security of Canada” in the CSIS Act.

º  +-(1640)  

    This is a very complicated issue, so the way we've tried to describe it in the office is to think of two concentric circles. The inner circle represents the service's activity that is authorized under section 12 of the CSIS Act, and that's limited to threats to the security of Canada. The outer circle, which is a bit bigger, represents the services's collection, analysis, retention, and advice concerning information on terrorist activity for the TEL process as mandated by the Criminal Code.

    Much of the information in those two circles coincides, and it does fall within the service's mandate under the CSIS Act, but some does not. So what do we do when the circles do not fully coincide? Is that an indication of inconsistency between the two definitions? Is there a reason for concern? As a result of our review, the committee concluded that there is an area where the circles do not coincide.

    We recognize that the service has the statutory authority to collect information and intelligence for the TEL process pursuant to ministerial direction. I should note, however, that for the first year of the TEL process CSIS performed its new duties without formal ministerial direction. Of course, ministerial direction cannot expand CSIS's mandate; it can only provide authority to CSIS to act within the limitations already established by the CSIS Act.

    I want to be clear before I continue here. We do not fault CSIS for this situation. It is not an issue of their making. These are matters of legislative authority over which CSIS has no control.

    Overall, in our review of the TEL process, we found that the service's collection of information was undertaken in accordance with ministerial direction, once this direction was provided, and according to relevant operational policies. Nevertheless, we concluded that the process required the service to collect some information that does not fall under the authority set out in the CSIS Act in regard to threats to the security of Canada. As a review body, we believe that any extension of CSIS's collection activity warrants particular attention, and that given the lack of clear authority for this process, we would hope that this issue would be addressed as part of your review.

    I'd now like to say a few words regarding SIRC's ability to review CSIS's role in this process. When your colleagues on the Senate special committee examined Bill C-36, several senators expressed concern that the TEL process wasn't subject to independent review, and they objected to CSIS's involvement in the two-year review of the list. Basically, they were saying that the list would be reviewed by the same people who created it.

    At that time, Minister McLellan, who was then the Minister of Justice, argued that existing review mechanisms were sufficient. She told senators that we have ongoing oversight mechanisms that have proven effective--be it SIRC or be it the courts. She said at that time that she would therefore be disinclined to think about the creation of a new oversight mechanism that was separate and apart from those that exist.

    The senators raised this concern again with Minister McLellan during her February appearance before their special committee, and Minister McLellan again cited SIRC as one of the important safeguards and accountability mechanisms with respect to the Anti-Terrorism Act. Since Minister McLellan has specifically cited our ability to review the list as an important safeguard, it's important to signal to you that although we can perform a fairly comprehensive review of the service's role in the process, we cannot perform a complete review. That is because SIRC cannot see the security intelligence reports, or SIRs, upon which the Governor in Council's decisions are based, owing to cabinet confidence.

    We accept that the CSIS Act prevents SIRC from gaining access to cabinet confidences. We also recognize that there are other checks and balances that are built into the TEL process. Nevertheless, the committee believes that you need to be aware of this constraint on our conducting of our review of the process.

º  +-(1645)  

    In the past, on the few occasions when SIRC has encountered an issue of cabinet confidence, we've reached agreement with past Solicitors General to satisfy our concerns. Our former chair, Madame Paule Gauthier, has raised this concern twice with Minister McLellan in writing and once face to face. To date, SIRC has still not received a response.

    An additional but lesser concern is that another agency such as the RCMP could prepare a SIR. In the section of the Criminal Code on judicial review of the listing process, the code refers to “any security or criminal intelligence reports considered in listing the applicant”, but it doesn't specify which agency or department might prepare these reports. The inclusion of the word “criminal” here suggests that the RCMP could play a role in this process. I simply want to underline for you that if the RCMP were to prepare a SIR, SIRC would have no jurisdiction to review it because our mandate is restricted to CSIS.

    Finally, I'd like to raise an aspect of the Anti-terrorism Act that relates directly to SIRC. The Official Secrets Act was repealed by the Anti-terrorism Act and replaced by the Security of Information Act. That act created a new responsibility for us. Section 15 provides for a public-interest defence where an individual who's permanently bound to secrecy discloses “special operational information”, as defined by the act. That defence would only be available when the individual had first brought the information to his or her deputy head or the Deputy Attorney General of Canada, and, in the absence of a response from those individuals, to SIRC.

    We have several questions in relation to these provisions. Specifically, what was Parliament's intention when it created a role for SIRC? Although the provision allows us to receive special operational information, our role, upon receipt of that information, is not defined. If Parliament intended that the committee would conduct an investigation relating to the special operational information, what would our statutory powers be? Would we make findings and recommendations? To whom would our responsibility be to report?

    These issues remain unclear to SIRC, and no clear link has been made to our existing mandate under the CSIS Act. Considering the potentially serious repercussions to government employees when they disclose such information, the committee would welcome more clarity in this matter.

    That concludes my remarks.

    I'd like to thank you for giving us an opportunity to appear before your subcommittee. I hope this will assist you in your review, and my colleagues and I look forward to trying to answer any questions you may have.

º  +-(1650)  

+-

    The Chair: Thank you, Mr. Farr.

    Mr. MacKay, go ahead, please, if you want to begin.

+-

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

    Thank you, Mr. Farr, Ms. Hamilton, Ms. McGrath, for your presence.

    I just want to pick up on your last point, because I find that a little troubling too, when it comes to the mandate and reporting of SIRC and recommendations that they would be making. My understanding is that they would go to the minister if they're recommendations directly about CSIS, or actions thereof. Is that correct?

+-

    Mr. Timothy Farr: Well, it basically would be completely new ground for us, because it hasn't happened yet.

    I'll let Marian McGrath, our senior counsel, respond to that.

+-

    MS Marian McGrath (Senior Counsel, Security Intelligence Review Committee): Mr. MacKay, what the Security of Information Act would provide would be that any employee, from any department, could come to SIRC. We review the activities of only CSIS. Does this mean that SIRC would now be engaged in reviewing activities of other departments? What would be the process by which the individual would come to us? Would it be as a complaint, under section 41 of the CSIS Act?

    We have very limited functions. We have two functions: we have a review function, which is to review only CSIS activities, or we have a complaint function.

+-

    Mr. Peter MacKay: What about an oversight function? Can you draw the distinction between review and an oversight body that would be, I guess, tasked with actually providing direction from time to time on issues? Do you see a role for SIRC in that capacity, as oversight, as opposed to simply after-the-fact review?

+-

    Mr. Timothy Farr: Mr. MacKay, our legislation is the CSIS Act, the same as for the service.

    We are a review agency, so we're always looking retrospectively. We don't look at current operations. We only look at things that have already taken place.

+-

    Mr. Peter MacKay: Can I ask you if you have an opinion on parliamentary oversight, where there is an opportunity to interject in operational activities, as opposed to simply doing a retrospective? Do you have an opinion on that as far as SIRC is concerned, a parliamentary body that would provide oversight, as opposed to simple review?

+-

    Mr. Timothy Farr: Last September SIRC appeared before the interim committee that was consulting on the establishment of a new parliamentary committee. I think in our testimony before the committee we welcomed the establishment of a parliamentary committee with a broader mandate. This is an area that deserves scrutiny; there are not a lot of groups that are involved in it, so I think it would be a positive step.

+-

    Mr. Peter MacKay: You've not been made aware of any fears from SIRC about overlap or competition or a sense of duplication?

+-

    Mr. Timothy Farr: From CSIS, you mean?

+-

    Mr. Peter MacKay: Well, from SIRC firstly, but CSIS, I suppose, indirectly through you.

+-

    Mr. Timothy Farr: I think the concern CSIS would express--I don't want to put words in their mouth, but it's one we would share--is that you wouldn't want a situation where these organizations were reviewed to death, if I could put it that way. It would get in the way of what they're doing. But I do think there's a way to strike the right balance to make sure you can provide assurance, as we try to do with Parliament, that they're acting lawfully.

+-

    Mr. Peter MacKay: Have there been any official complaints about CSIS you're aware of, since the enactment of the anti-terrorist bill, that SIRC has undertaken to review?

+-

    Mr. Timothy Farr: To the best of my knowledge, no, but I'll just get confirmation from Ms. McGrath.

+-

    Ms. Marian McGrath: Perhaps I should get some clarification. Do you mean complaints in general, or complaints that would be emanating because of the operation of the Anti-terrorism Act?

+-

    Mr. Peter MacKay: I mean official complaints around CSIS activity that emanate from their acting in their capacity as a result of the anti-terrorism bill.

+-

    Ms. Marian McGrath: We have complaints of any act or activity an individual can file. We also have complaints about revocation of security clearance.

    I can't say that because they were undergoing an activity per se with respect to the Anti-terrorism Act.... I think you have to bear in mind that the activities of CSIS are to prevent or to provide advice regarding threats to security. Insofar as they're going to protect the security of Canada and the Anti-terrorism Act would support that, I can't say the Anti-terrorism Act has precipitated complaints.

º  +-(1655)  

+-

    Mr. Peter MacKay: I'm asking, since the enactment of Bill C-36, has the number of complaints gone up? What I'm referring to--I don't want to beat around the bush--is that we've heard unofficial complaints from the Muslim and Arab community that relate to security agencies and police--it's not just CSIS--making inquiries into private religious practice, devotional habits, and political convictions of those under investigation or potentially under investigation. They are subject to--in the wording I've seen--“soft use” of national security powers, where these informal review processes and investigations take place without charges ever being laid. But the interviews are seen as being intimidation, and the methods that are used are not official investigations, so there are no statistics that back this up and there's plausible deniability, then, on some level.

    Again, I'm curious about this, because one in particular that was reported from the Canadian Council on American-Islamic Relations says CSIS and the RCMP were engaged in this type of aggressive behaviour. In particular, young Arab males seem to be predominant in the responses of those surveyed. It's this issue of racial profiling, which isn't being adequately addressed. Are you aware of and can you comment on these concerns?

+-

    Mr. Timothy Farr: The short answer to your question, then, would be no if it's on the issue of racial profiling, but let me clarify. We can't investigate complaints on the basis of hearsay. If you look at the statistics--

+-

    Mr. Peter MacKay: There is no official complaint that you're aware of?

+-

    Mr. Timothy Farr: No. There hasn't been a spike under section 41 of the act--that's what Marian was referring to, “any act or thing done by the Service”--in the number of complaints since 9/11. We haven't received a specific complaint related to racial profiling, nor have we, when we've conducted our reviews, come across any evidence that would suggest they're engaging in this practice. But there is a lot of anecdotal evidence that has been raised, and certainly we're aware of the allegations that have been made and reported in the media, and we take this pretty seriously.

+-

    Mr. Peter MacKay: Let me just interject this. If you take it seriously, you can tell me, has SIRC embarked on any action as a result of either official or unofficial or anecdotal recitation of this?

+-

    Mr. Timothy Farr: Actually, last week we met with Senator Mobina Jaffer, who has raised this issue, I think, on several occasions. She's done tours across Canada. The committee met with her to discuss her experiences, some of the things she had heard, and we also encouraged her to encourage the people she's meeting to come forward and file a complaint with us. We're certainly prepared to take it on.

+-

    Mr. Peter MacKay: Thank you for that.

+-

    The Chair: Thank you.

    Mr. Ménard, please.

[Translation]

+-

    Mr. Serge Ménard: Has your life changed a lot since the passage of the Anti-Terrorism Act? What changes have you seen in your functions following the passage of that legislation?

[English]

+-

    Mr. Timothy Farr: I'm sorry, Mr. Ménard, I'm just trying to get my simultaneous translation.

    Could you restate your question, please, sir?

[Translation]

+-

    Mr. Serge Ménard: Has your work changed since the passage of the Anti-Terrorism Act?

»  +-(1700)  

[English]

+-

    Mr. Timothy Farr: No, it has not changed since the passage of the act. SIRC's role is defined in the CSIS Act, in the legislation, and as Marian said, we are basically responsible for two functions, reviews and complaints. We've been doing the same thing for 20 years; what we do hasn't changed, but the focus of what we do changes over time.

    What I talked to you about earlier, looking at the terrorist entity listing process, is an example of looking at a new activity CSIS is involved in, but it's part of our ongoing review program.

[Translation]

+-

    Mr. Serge Ménard: But you had to intervene only in one case, if I am not mistaken.

[English]

+-

    Mr. Timothy Farr: That would be the one that would be most specifically related to the Anti-terrorist Act.

[Translation]

+-

    Mr. Serge Ménard: Thank you.

    I think that you have a role to play in the immigration security certificate process.

+-

    Ms. Marian McGrath: During this process, some people might make a complaint against CSIS about the information given to Citizenship and Immigration Canada. This is the only role that we might play.

+-

    Mr. Serge Ménard: You are saying that some people might make a complaint. It means that it has not happened.

+-

    Ms. Marian McGrath: It does happen quite often. It may be because the delay is too long or the information is not complete or true. As far as we are concerned, this is the only type of advice that CSIS gives to the Department. It is not about the immigration process.

+-

    Mr. Serge Ménard: Okay, but what kind of assessment do your make?

+-

    Ms. Marian McGrath: We can access all their files. We can read and even assess the type of advice that CSIS gives to the Immigration Department. Furthermore, we can verify if the information is correct.

+-

    Mr. Serge Ménard: So you actually did process several of these cases.

+-

    Ms. Marian McGrath: Yes, that's right.

+-

    Mr. Serge Ménard: To follow up on the question Mr. MacKay has raised, have you seen, in the immigration refusals, a tendency—maybe unconscious—towards racial profiling? For instance, is there a tendency to suspect Arabs more than Europeans?

+-

    Ms. Marian McGrath: I never saw any information that might confirm it.

+-

    Mr. Serge Ménard: After receiving and investigating complaints, how could you establish if the refusal was justified or not?

+-

    Ms. Marian McGrath: When CSIS realizes that someone is a threat to national security, it is on the basis of information coming from another country, from a foreign state. We have access to that information and we can see all the data that are given to the service by another government or another intelligence agency. We are then able to verify if that person might constitute a threat for the security of Canada.

+-

    Mr. Serge Ménard: Okay.

    You said that you did a number of those investigations.

+-

    Ms. Marian McGrath: Yes.

+-

    Mr. Serge Ménard: About how many within a year?

+-

    Ms. Marian McGrath: I cannot give you a precise number as I do not have it.

+-

    Mr. Serge Ménard: What is it approximately? Are you talking about several hundreds?

+-

    Ms. Marian McGrath: Oh, no! No more than a dozen.

+-

    Mr. Serge Ménard: Have you come to the conclusion that some immigration applications have been rejected on unfair grounds? In other words, did you find that certificates should have been delivered in some cases?

+-

    Ms. Marian McGrath: Let me alert you to something because I don't want to move into an area which is not our own.

    Immigration is the responsibility of the Minister for Citizenship and Immigration. CSIS can only give advice or opinions that the Minister can accept or refuse. He is the one who decides. Then, our role is to verify the advice given to see on what grounds it was based. This is the only thing that we verify.

+-

    Mr. Serge Ménard: You are not investigating specific cases.

+-

    Ms. Marian McGrath: Yes, we investigate specific complaints.

+-

    Mr. Serge Ménard: Have you come to the conclusion in every case that these complaints were not justified?

»  +-(1705)  

+-

    Ms. Marian McGrath: No. We have to establish not if the complaints but if the advice and opinion given were justified in the case of threats, for instance.

+-

    Mr. Serge Ménard: I would like to come back to the different definitions that you have already mentioned. From what I understand, the definition of terrorist activity is not the same in the Act creating your agency as it is in the Criminal Code. Is it correct?

+-

    Ms. Marian McGrath: Yes, the definition given in the CSIS Act refers to threats against the security of Canada. The other definition concerns terrorist activities.

+-

    Mr. Serge Ménard: Even in a foreign country.

+-

    Ms. Marian McGrath: Yes.

+-

    Mr. Serge Ménard: That's all.

[English]

+-

    The Chair: Thank you.

    Mr. Wappel, please.

+-

    Mr. Tom Wappel: Thank you, Mr. Chairman.

    Thanks for coming. I found your evidence fascinating.

    First, can you provide us with a copy of the letter your chair sent to Minister McLellan, to which you have no answer yet?

+-

    Mr. Timothy Farr: I don't think that would be appropriate, because it's correspondence between our chair and the minister. It's classified as well.

+-

    Mr. Tom Wappel: I want you to check to see if you can do it. If not, we'll ask the minister if she'll do it. While your evidence was interesting to me, it's easier for me to comprehend things if I see them than if I hear them. If there were a letter outlining the concerns and we could read it, digest it, and consider it, it would go further than what you've said to us. So see what you can do about that. Maybe you can check with the Information Commissioner, or whatever. Maybe we can get it that way.

    You highlighted some interesting concerns you had. Do you have any specific recommendations to deal with those concerns, as they relate to the act?

+-

    Mr. Timothy Farr: We basically exist as a result of the CSIS Act, and it was Parliament that passed the legislation that created us. I don't think it's appropriate for us to tell you how to go about fixing this. But we are trying to say we think there's a problem here, perhaps as a result of the hurry in passing that original act. Maybe it's time now to look at the question of the definitions, look at what the act currently allows CSIS to do, and maybe make some changes to the legislation. But beyond that, you're really the experts in this area.

»  +-(1710)  

+-

    Mr. Tom Wappel: We are? Okay.

    The only reason I'm chuckling is because you're familiar with the speech your chair gave on May 18 to the international symposium on review and oversight. She was obviously not shy in making recommendations, including pretty direct recommendations to MPs and senators, which we'll get to in a minute. So why are you reticent about making recommendations to this committee?

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    Mr. Timothy Farr: In the case of the chair's speech and many of the recommendations she made to CSIS, parliamentarians, and her colleagues in the review and oversight community, her term just expired yesterday, and I think she was in the position where she wanted to be a bit more frank. She also prefaced her remarks by saying she was speaking as a concerned citizen. It's not something on which SIRC has taken an official position.

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    Mr. Tom Wappel: All right. Let's just change direction for a moment. I have quick questions.

    Has SIRC received and investigated complaints of racial profiling by CSIS?

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    Mr. Timothy Farr: It's similar to what Mr. MacKay was raising, and the answer is no.

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    Mr. Tom Wappel: Has SIRC looked at the issue of racial profiling, as part of its auditing of CSIS activities?

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    Mr. Timothy Farr: We haven't done a specific review on racial profiling, but in all of the reviews we've conducted to date we haven't seen any evidence of it. We expect that if the issue came up it would be through the complaints process, and as I said, we haven't seen any increase in the number of complaints since 9/11, but we're certainly aware of the anecdotal evidence.

    Our problem here is that it's a quasi-judicial process, and we can't act on the basis of hearsay. We need somebody to come forward and make a formal complaint so we can investigate it.

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    Mr. Tom Wappel: Let's talk about your former chair's speech. I've got it in front of me. I admit I haven't got it memorized. I'm sure you're right that it's here, but I can't find the exculpatory sentence where you say she spoke only as a private citizen.

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    Mr. Timothy Farr: It's on page 9.

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    Mr. Tom Wappel: Page 9? You'd think it would be on page 1.

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    Mr. Timothy Farr: It says:

I want to share with you my perspective as a concerned citizen about where we need to go in the years ahead.

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    Mr. Tom Wappel: Okay. Then let's turn to page 5, which is before that exculpatory statement. She says:

I believe Canadians want assurances that the RCMP--like CSIS--is subject to a review mechanism that ensures it respects the delicate balance between individual rights and national security. With two decades of experience in this area, SIRC has the credibility and the expertise to do the job.

    Could you expand on that?

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    Mr. Timothy Farr: As you are aware, Mr. Justice O'Connor is undertaking a public inquiry now. Part of it is a factual inquiry, and the other part is a policy review. He is to make recommendations on a review mechanism for the RCMP's national security function.

    SIRC, along with many other groups, has made a submission to Justice O'Connor. The chair is referring to a submission SIRC made in February of 2005, where we indicated that we felt we would be capable of taking on that review function, if he felt it appropriate.

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    Mr. Tom Wappel: Is that classified, or can we get a copy of that?

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    Mr. Timothy Farr: It's available through the commission. I have a copy here.

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    Mr. Tom Wappel: Would you be kind enough to provide us with a copy, then? That would be very interesting and helpful.

    Don't we have the RCMP Complaints Commission coming next?

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    The Chair: Next, yes.

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    Mr. Tom Wappel: That's pretty good, pretty good timing.

    Let's get back to her speech. I think the rest of it comes after the exculpatory sentence you read--and I mean, “exculpatory” is my word. She recommended that CSIS should become more involved in the collection of security intelligence outside of Canada, including recourse to covert activity, if required. Can you elaborate on her thoughts there?

»  +-(1715)  

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    Mr. Timothy Farr: I couldn't elaborate on what's in her speech. At that point, she really was speaking as a private citizen. She has strong views on this subject. SIRC as a committee hasn't taken an official position on this, but I think she laid it out in her speech. She basically said that--

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    Mr. Tom Wappel: She said: “In my view, they”--meaning CSIS--“should be engaging in covert activities abroad on a regular basis, just as MI6 does for Great Britain.”

    That's a pretty dramatic comment. Does that fit with section 12?

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    Mr. Timothy Farr: Yes. We have examined the question of the collection of intelligence under section 12, and we believe CSIS believes, as I think the director of the service has said publicly, they have the authority to do this now. What the chair was saying was that she thinks they should be doing more of it. She feels that in the current environment, it's not enough for us to rely on others for that type of intelligence; we have to be prepared to also collect more of it ourselves.

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    Mr. Tom Wappel: Do I understand correctly, then, that SIRC has a memorandum, or has an opinion, that would agree with maybe CSIS's assertion that it can go ahead and do this already, and there is no need to change any acts? Did I hear you correctly, that you have such a memorandum, or such an opinion, or...?

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    Mr. Timothy Farr: I believe it's in our annual report for 2003-04, and it's a summary of a review we did in that fiscal year, where we touch on that.

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    Mr. Tom Wappel: Do you have a copy of the review that you could make available to us?

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    Mr. Timothy Farr: Not the classified review, but certainly a copy of the vetted summary.

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    Mr. Tom Wappel: Which would be more or less than, or the same as, what's in the booklet you're referencing?

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    Mr. Timothy Farr: Every year SIRC produces an annual report that is tabled in front of Parliament by the public safety minister. The classified reviews that we do through the course of the year are vetted to remove any national security considerations or privacy issues. That vetted summary is what appears in the annual report.

    One of those reviews touches on what you're discussing now, Mr. Wappel.

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    Mr. Tom Wappel: All right. Thank you.

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    The Chair: Thank you.

    I don't want to argue with the witness, but certainly the chairman was speaking as the chairman. She was invited as the chairman, not as a private citizen. When she gave her speech, she wasn't invited as the citizen, she was invited as the chairman of SIRC.

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    Mr. Timothy Farr: She wasn't invited. SIRC was the co-host of that event.

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    The Chair: So clearly she was there in her capacity as the chairperson and not as a private citizen. I don't want to argue with you, but it just seems to me that it needs some clarification.

    Mr. Sorenson or Mr. Ménard, any last-minute questions before a vote?

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    Mr. Kevin Sorenson: Yes, I actually have quite a few questions.

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    The Chair: Okay, take your time.

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    Mr. Kevin Sorenson: This came out in the last meeting. A lot of the questions around racial profiling, mainly dealing with terrorism, we know deal with one identifiable minority—militant fundamental Islamists. This is the group.

    We know that your resources in SIRC.... I guess I'm thinking of the resources in CSIS. I find it odd that you're running around, almost soliciting work. You hear senators talk about these alleged racial profiling incidents. CSIS maybe isn't responding saying which ones, but SIRC is. You're almost begging for work. We're trying to figure out if there have been abuses, if there have been any complaints brought forward. The answer is no, but you're looking for them; you're soliciting them. That's just a comment.

    In March, a federal court heard allegations that CSIS had been intimidating people who stepped forward in order to offer bail to those who had been deemed a risk to national security. The case in reference was Muhammad Mahjoub, an Egyptian who has been held in a Toronto jail since his arrest as an alleged security threat here in Canada in June 2000. So in a federal court, this complaint is brought forward as CSIS going out and intimidating those people willing to pay bail for these guys who have been deemed a national threat. Was this case ever brought forward to SIRC?

»  +-(1720)  

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    Mr. Timothy Farr: No.

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    Mr. Kevin Sorenson: Were you aware of it?

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    Mr. Timothy Farr: We were aware of it, but only through the coverage.

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    Mr. Kevin Sorenson: Is there a problem here, that maybe people don't know about SIRC? Is that what you're really driving at here, because it sounds—in the media, in talking to Senator Jaffer—as if there are just so many cases of racial profiling. You hear about this in the court. Is it just that people don't know about SIRC?

    Let me go to the next question, because I want to make sure I....

    How much time do we have? We have lots of time.

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    The Chair: Yes. We'll just worry about getting.... Go ahead.

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    Mr. Kevin Sorenson: The bells don't start until 5:30.

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    Mr. Serge Ménard: We have to be in the House at 5:30.

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    Mr. Kevin Sorenson: No, 5:45

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    Mr. Tom Wappel: The bells start at 5:30.

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    The Chair: Fill your boots.

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    Mr. Kevin Sorenson: From 1984 right up until 2002, I think it was, SIRC had quite a bit of responsibility with regard to the certificates, the immigration security certificates. Once this anti-terrorism legislation came into force, or was put in place, a lot of SIRC's responsibilities were transferred over to the Federal Court. I guess I'm wondering about the processes you had to go through, what you had to do compared to what the courts have to do, how these references of certificates were referred to SIRC as compared to how they are referred to the Federal Court, and just any functions that were performed by SIRC, maybe, that are different from what the Federal Court does.

    I do want to get another question or two on the record, and because of the time here....

    A year and a half ago, I was questioning the then Solicitor General in regard to the Air India terrorist act. Now, in the wake of the Air India decision, University of Toronto historian Wesley Wark believes, and he's been on record as saying, there needs to be an in-depth look at our security and intelligence agencies. Wark, in a couple of the articles we have seen, argued that a federal commission should study not only Canada's response to the Air India affair, but the case of the former Montreal resident, and I guess would-be terrorist, who they caught at the border, Ahmed Ressam. He also said that we need to begin assessing the threat of al-Qaeda here in Canada in the aftermath of the 9/11 terrorist attacks and the possibility of creating an international intelligence-gathering agency.

    Now, I'd like to hear your comments on those issues: al-Qaeda, foreign intelligence, and extending the mandate of CSIS. I think John Manley has spoken out in the past, saying that perhaps another agency should be considered, because we need to gather much more international intelligence. I'm just wondering if you have any comments on those three issues.

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    Mr. Timothy Farr: Let me try to take these one at a time, Mr. Sorenson.

    First of all, to the issue of looking for work, no, we're not looking for work, but I think we have a responsibility to be concerned when allegations like that are made. Our problem right now is that we can't take action on anecdotal evidence or hearsay; we need a complaint. It's on that basis that we met with Senator Jaffer.

    On your second point, about awareness, you're right, and I don't think it involves just SIRC. I think that most of the bodies that review the activities of either police services or the security service in Canada were not well known. That was one of the reasons we hosted the symposium with Carleton University. It was an attempt to stimulate a bit of debate and maybe raise some awareness about what these groups do, because we think they're important.

    On the issue of the security certificates, I think you're aware that we're out of that now. I could have my colleague discuss the process as it existed with us. Do you want me to keep--

»  +-(1725)  

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    Mr. Kevin Sorenson: No, what I would appreciate, if it's possible, is if you could respond in writing as to the process you went through, perhaps, compared to the Federal Court.

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    Mr. Timothy Farr: Yes, we could do that.

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    Mr. Kevin Sorenson: That would be the best. We want to do a comparison of the two groups.

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    Mr. Timothy Farr: Okay.

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    The Chair: Perfect.

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    Mr. Kevin Sorenson: No, he's got one more question.

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    Mr. Timothy Farr: On the question of foreign intelligence gathering, our mandate is basically to look at what CSIS does--and it's confined specifically to CSIS--and hold it up against the test of the CSIS Act, ministerial direction, and their operational policy. It's not for us to question whether there should be another organization to do that or if it should be CSIS. Our only interest is if it's CSIS, is it being done lawfully?

    Then, on the last one, on al-Qaeda, that's really for CSIS to establish the threat they represent and whether they exist in Canada and to what extent. That's not our job. Our job is to review the way they investigate that threat.

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    The Chair: All right.

    Mr. Wappel.

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    Mr. Tom Wappel: No. That's it.

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    The Chair: Mr. Sorenson, do you want one last go at it? We have one more minute, and then we have Mr. Ménard, who is being very patient.

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    Mr. Kevin Sorenson: No, I think I'm all right.

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    The Chair: Thank you.

    We appreciate your appearance today before our committee, and we look forward to receiving your written replies to the things you agreed to.

    Yes, Kevin, go ahead.

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    Mr. Kevin Sorenson: I'll think this out again here.

    Do you believe that the CSIS Act, given the different concerns that people, including John Manley and others, have brought forward, allows CSIS enough latitude to collect foreign intelligence abroad?

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    Mr. Timothy Farr: I'm trying to find...if you'll bear with me for a minute.

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    Mr. Kevin Sorenson: I think even recently the minister has come out saying we're recognizing more and more the need to collect intelligence abroad, and I know it's brought this question in. You're reviewing CSIS, given the legislation and the statutes that you have now. I think there has even been some evidence that CSIS has some mandate to gather information abroad. Does it have enough latitude?

    Given what the minister has made reference to, do you think the CSIS Act gives them the ability to gather the information abroad?

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    Mr. Timothy Farr: We agree with the director of the service that the act does give them that ability. Whether it's enough I think is more a question for the director of the service. I'm not going to hazard a personal opinion on that, but you're aware of the comments that our former chair made on that subject.

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    The Chair: Thank you very much for appearing. I think it's worthy to note.... It's a little bit unfair, in one sense, that your staff and the actual members were unable to appear, I guess, or they declined to appear--

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    Mr. Kevin Sorenson: They were sick.

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    The Chair: No, they....

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    Mr. Timothy Farr: Our members are GIC appointees. They all live outside of Ottawa.

»  -(1730)  

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    The Chair: I understand that.

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    Mr. Timothy Farr: And our executive director, who would have been here today, is at home sick.

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    The Chair: Sure, I understand that. But it's still unfortunate that one or two of them couldn't have shared some of their experiences with us as we're doing this review.

    We appreciate you folks being here today, and thank you very much.

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    Mr. Timothy Farr: Thank you.

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    The Chair: We're adjourned.

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