JURI Committee Meeting

STANDING COMMITTEE ON JUSTICE AND HUMAN RIGHTS

COMITÉ PERMANENT DE LA JUSTICE ET DES DROITS DE LA PERSONNE

EVIDENCE

[Recorded by Electronic Apparatus]

Thursday, May 14, 1998

• 1536

[English]

The Chair (Ms. Shaughnessy Cohen (Windsor—St. Clair, Lib.): All right, we are back. We are still on estimates, and we have today the Security Intelligence Review Committee.

The new chair—congratulations, Madam Chair—is the Honourable Paule Gauthier. There is a new member who was appointed recently, the Honourable James Andrews Grant. And we have another new member, the Honourable Bob Rae. Welcome and congratulations, I think. I don't know if you feel like we should be congratulating you, but we welcome you and we are very happy to see you here.

I understand, Madam Gauthier, that you have some opening remarks.

[Translation]

The Hon. Paule Gauthier (P.C., O.C., Q.C., Chairman, Security Intelligence Review Committee): Madam Chair, and members of the committee, it has been some time since members of the Security Intelligence Review Committee have met with you, and it is therefore with great enthusiasm that we appear before you today. As you just said, with me are two new members of the committee, who were appointed very recently.

Madam Chair, if I may, I would like to briefly review for you the main highlights of our Report on the plans, priorities and estimates for 1998-99.

[English]

As you know, under the CSIS act the Security Intelligence Review Committee's mandate is to review the activities of CSIS to ensure that its extraordinary powers are used legally and in a manner which protects the civil rights of Canadians.

The review committee fulfils its mandate in three ways: first, by reviewing all of CSIS's investigative powers and activities; second, by investigating complaints from the public with regard to CSIS activities concerning security clearance denials, immigration, citizenship or other human rights questions; and, third, by informing the public and parliament on the manner in which CSIS exercises the powers it has been entrusted with under the CSIS act.

The total planned net expenditure for the review committee's 1998-99 program is $ 1,389,000. This represents a decrease from the 1997-98 program where the total cost amounted to $ 1,406,000. Having said that, certain factors, which are external and outside the review committee's control, influence the committee's operations and consequently its budget. I would like to point out a few.

In addition to the statutory requirements that set out areas for ongoing audits of CSIS work, the committee is often asked to undertake, or has undertaken on its own initiative, many major projects concerning matters of public interest, for example when certain CSIS activities are raised by the media.

The constant evolution of the international security environment influences the way in which the committee allocates its resources. For example, by year 1999-2000 the committee expects to expand its resources in examining whether some forms of economic espionage and transnational crime constitute threats to the security of Canada as defined by the CSIS act.

• 1540

As the review of complaints and ministerial reports that the committee receives is very time consuming and requires expensive legal services, small changes in their numbers can significantly affect the committee's budget and operations. As such, the committee is anticipating an increase in the number of ministerial reports received as a result of the 1993 amendment to the Immigration Act which broadened the category of individuals who can be denied immigrant status because of previous connections with terrorist activities. Government-wide budget reductions at the federal level also have an impact on SIRC.

In addition to its investigative activities in regard to the complaints and ministerial reports that it receives, the committee plans to audit several areas of CSIS activities in 1998-1999. These will include the review of a long duration counter-terrorism investigation by the service, the review of a CSIS investigation on the threat posed by a foreign state, and the analysis of the level of co-operation between the service and certain domestic agencies. This analysis will focus on existing agreements, the resolution of disclosure and evidence issues, and the effectiveness of the dispute resolution mechanism in place.

Finally, there is an extensive examination of all CSIS investigations in one region of Canada. This study includes the evaluation of targeting decisions, the validity of facts in affidavits filed to obtain federal court warrants, internal security programs and the handling of sensitive operations.

[Translation]

Before I conclude, I would like to take this opportunity to emphasize that the Standing Committee on Justice and Human Rights is without doubt the Security Intelligence Review Committee's principal client. This is why our presence here today, to report and to answer your questions within the limits prescribed by law, is essential.

As the external and independent review body of CSIS, the committee is interested in any comments from the representatives of the public on how it can improve its effectiveness and carry out its mandate.

And so, any suggestion or constructive criticism on ways in which the Review Committee could better perform its duties would be very well received. The Review Committee is always interested in knowing what it can do to help the members of your committee to fulfill their responsibilities.

It was with great pleasure and interest that I had the opportunity to exchange views with some members of the committee on this matter, and I hope that it will be possible for me to meet with the others in the near future. This close co-operation would serve to benefit the Canadian public that we represent.

Madam Chair, the other committee members and I are now ready to answer your questions.

[English]

The Chair: Thank you. I am going to skip the usual protocol today and go to Mr. Lee first, because I know that he has something which he spoke to me about earlier and he wants to get right to it. Go ahead. You have 10 minutes.

Mr. Derek Lee (Scarborough—Rouge River, Lib.): Thank you, Madam Chair.

I want to address a small piece of your opening statement.

By the way, welcome back to the committee and, to the two new appointees, I personally feel that you are both excellent additions to SIRC. Your experience and backgrounds will serve the purpose very well.

To the issue, you will be aware that SIRC has had discussions with this committee, its predecessor committee and the subcommittee on national security on the issue of the obligations of SIRC to fully answer questions put to them here in parliament. There has evolved a difference on this.

• 1545

In 1995, the previous chairman of SIRC provided to this committee a written legal opinion, unsigned, but I understand it came from a private sector lawyer, which I found quasi-contemptuous of parliament and it totally missed and failed to properly describe parliamentary law and the obligations of witnesses before committees.

Now, if I got an opinion like that and I knew what I know now, I would probably sue the lawyer. So we have a problem. So I am going to ask you questions about that.

Firstly, I am going to ask you if you're familiar with the legal opinion that I have just described.

Ms. Paule Gauthier: Yes, I am familiar with the opinion that you just described.

Mr. Derek Lee: Now, are you familiar with the lawyer who prepared the opinion?

Ms. Paule Gauthier: I know that lawyer.

Mr. Derek Lee: All right. Can you tell me who the lawyer is?

Ms. Paule Gauthier: Simon Noel.

Mr. Derek Lee: Simon...?

Ms. Paule Gauthier: Noel.

Mr. Derek Lee: Simon Noel. Thank you. Is that lawyer practising with a law firm?

Ms. Paule Gauthier: Yes, I think here in Ottawa, or in Hull.

Mr. Derek Lee: Do you know the name of the law firm?

Ms. Paule Gauthier: Valiquette, Noel.

I have the opinion here with me.

Mr. Derek Lee: Yes. My problem is that the opinion was not signed, nor did it have a letterhead. It was conveyed by the chairman of SIRC and it had been expurgated to delete, or at least not include, those items. But, in any event, we have come close enough to the law firm name.

Now, would it be your view that the opinion that Mr. Courtois, your predecessor, provided to us is the opinion and view of SIRC?

Ms. Paule Gauthier: I was not there when Mr. Courtois answered, so I don't know exactly what he said to you concerning that question. I understand very much why you're interested in this particular question. As a lawyer myself, I can appreciate the issues that are raised and all these questions are very, very interesting.

But since my appointment and since we knew in advance that we were coming before you, and you had the gentillesse of letting us know in advance that you would raise that question, we reviewed the opinion and we know that probably other lawyers would have other opinions, and you might have yourself opinions from different lawyers.

But so far as the committee is concerned at the moment, we still maintain that we are obliged by the act to abide by the oath of secrecy that the members take when we are sworn in as a member of the Security Intelligence Review Committee and this system....

As long as this particular system that we have here in Canada is not changed—and you are in a much better position than us to change the system if you want—as long as this system is in place we will do our very best and, as I said at the beginning of my presentation, we want to co-operate and we want to go as far as possible to give you all the information we have and to make you comfortable in the system.

So instead of discussing a legal opinion, we would much prefer to go on a case-by-case basis and when there is a difficulty try to find a solution together.

I have been travelling a lot. Well, not a lot, but I met with the other chairs of the security intelligence review committees. They don't call it the same name in the States, or in the United Kingdom or in Australia. But I can assure you that the system that is in place at the moment in Canada....

I was very proud to explain the process we have. I feel that we Canadians have a process that allows us to know a lot more about what our security service is doing than any other system in the world.

So, Mr. Lee, unfortunately, we stick to our legal opinion for the moment, but we would like to work very closely with you and try to make you happy when the time comes.

Mr. Derek Lee: Okay. I accept that, and that is not a bad target.

Can I ask you what oath you did take? What oaths have you taken as SIRC members?

• 1550

A voice: You've taken the privy council oath?

Hon. Paule Gauthier: Yes, two oaths, the privy council and the one in the act.

Mr. Derek Lee: When did you take the oath that's described in the act?

Hon. Paule Gauthier: Well, I took it when I was appointed to the privy council.

Mr. Derek Lee: Is that true of you, Mr. Grant? Did you take two oaths at the same venue? Mr. Rae?

Hon. James Andrews Grant (P.C., Q.C., Member, Security Intelligence Review Committee): Yes, before you sit.

Hon. Bob Rae (P.C., Q.C., Member, Security Intelligence Review Committee): I took my privy council oath when I was sworn in as a privy councillor which was about two weeks ago. I took my oath as a member of the committee this morning at about 8.45.

Mr. Derek Lee: Okay, so they're double teaming you now. It's my understanding that wasn't the case some years ago.

The Chair: People want to know how much work you've done since then. We wouldn't want you to be just sitting around.

Hon. Bob Rae: I started working before I took my oath.

Mr. Derek Lee: I accept that your oath places legal obligations on you and you're quite correct to take note of them.

What you probably haven't taken note of is parliamentary law, which is part of the field of parliamentary privilege. I'm not going to dictate it to you, this is all going to be in print at some point.

It is my view, and it is the view of parliament that your position is wrong. Even now if I should convince you that you are wrong, and I have no doubt that in due course that will occur, the issue still remains what you should disclose and what we might need to know. In every case parliament and the members will have to address that if we're going to deal with certain territories.

Hon. Bob Rae: Can I ask you a question? Is it your view that you can ask us a question which requires us to break the law?

Mr. Derek Lee: Yes, and in asking the question, and in providing an answer, you will not be breaking the law. The law that I subscribe to is parliamentary law, it's part of the Constitution of Canada—

Hon. Bob Rae: But does it include other statutes?

Mr. Derek Lee: Yes.

Hon. Bob Rae: For example, if you were to ask us a question about an individual, as to whether or not that person was the subject of a CSIS investigation and we refused to indicate an answer to that question knowing that if we were to divulge that information it would be a breach of the security intelligence act. It would also be a breach in my view of that person's rights to privacy, both in common law and in statute.

So it's your view that you can ask us a question and we can break that law, we can breach our obligations to that individual simply by virtue of the fact that you've asked that question.

Mr. Derek Lee: In the first place, it's not my view, it's the view of parliament.

Hon. Bob Rae: Well, we'll see. I don't know whether it's the view of parliament or not, but that's what you're asserting?

Mr. Derek Lee: Yes. In the second place, you would not be in breach of your oath. If you want to walk through your oath carefully, I am prepared to walk you through it and show you the important words. We don't have time in my 10 minutes here to do that.

In the second place, you are totally immune from any repercussions as a result of what you would provide in evidence here from any source in this country, any source, administrative, judicial, or criminal.

You are not prepared to buy into that yet because no one has explained it to you that way. I regret that the lawyer you relied on was so totally ignorant of parliamentary and constitutional law that he or she wasn't able to come to that conclusion.

Hon. Bob Rae: You've got to allow for the reality in life that there's sometimes more than one view of what the law is. Basically the law is what parliament and judges tell us it is.

I am not aware of any decisions. If you can bring any decisions to my attention that tell me that someone in the position that I have just been sworn into has to respond to a question which requires me to break the law, and to break my oath of office, and to break the statutes that have been passed by parliament simply because a member of parliament decides on a given day that he wants to ask a particular question, if you could show me that there are decisions on that point, and there are clear precedents on that point, I would be very interested in seeing them. I'm sure we would all be interested in seeing them.

Mr. Derek Lee: First of all, it is not the courts of course who would make the decision, it is parliament. Courts are prohibited from making decisions about matters parliamentary, and they have been for over 300 years. But I'm happy to spend time on this. I've spent a number of years on it already. I hope to publish a book on it in two or three months.

In any event, you wanted to comment Madam Gauthier.

• 1555

Hon. Paule Gauthier: No, since we provided to you our legal opinion, maybe if you have legal opinions you could provide them to us, too. Then it would be an exchange of legal opinions.

Mr. Derek Lee: I can provide to you immediately the opinion of the parliamentary counsel. Given that you are a servant of the Parliament of Canada, I would like to think you would accept the opinion of the legal counsel to the Parliament of Canada. If you choose not to, while there may be some risks in that in due course, in the interim it shouldn't be a serious problem.

I've certainly used up my 10 minutes and I'll defer to the chair and we'll get on with other questioning.

The Chair: Thank you, Mr. Lee.

Mr. Forseth, you have 10 minutes.

Mr. Paul Forseth (New Westminster—Coquitlam—Burnaby, Ref.): I have a supplemental to that.

Mr. Rae, you shifted the ground when you said a member of parliament might decide to just ask a question. That's not the case. It's when committee is in session. In other words, when a committee is in session, it is like a court is in session. If it is necessary for you folks to answer, it may be required that this committee go in camera and do other things to make sure other interests are not compromised.

The fundamental law as far as I understand it is that parliament is supreme. Parliament will decide the rules and limits and if they go beyond statute, but that's part of the argument.

I wanted to get at a specific question related to Madam Justice McGillis of the federal court in 1997. Madam Justice McGillis had some things to say and you may want to bring some of your officials to the table to whisper in your ear on this one.

In the fall of 1997, Madam Justice McGillis of the federal court was critical in a decision made public of the visitor clause contained in the CSIS warrant application to that court under section 21 of the CSIS Act. Although she granted the warrant, she deleted this clause from it because it would have in effect been like delegating warrant power to a CSIS employee.

Your annual report describes how it reviews the contents and accuracy of the affidavits and background documentation supporting a warrant application in the federal court. I believe on page 30 the report describes in general terms the additions and revisions to the conditions set out on warrants. It also describes how the federal court made one amendment and added two restrictions in this type of warrant.

I have a number of questions around this. Can you describe the process you follow to review warrants applied for and granted to CSIS? Do you review all the affidavits and the supporting documentation for the application? Do you review the contents of the warrant application itself? Do you review the contents of the warrants actually authorized by the federal court and really describe what this visitor clause is and what's it all about?

Do your reviews of warrant applications consider whether their contents are acceptable, both under the CSIS Act and the charter of rights? How frequently in the past have these clauses criticized by Madam Justice McGillis been applied for and granted? If you have not reviewed these visitor clauses in the past, will you be doing so in the future?

You can see it's all these surrounding ancillary questions related to this particular issue. Perhaps you could deal with that.

Hon. Paule Gauthier: Thank you for the questions. The warrant process, the approval of warrants is very important in the whole process of CSIS activities.

Each year we try to review not all the warrants but some of the warrants. We review the affidavits first and we make sure the facts included in the affidavits are supported with the facts or the information in the files in CSIS. We also make sure when CSIS says I believe that this is true, that they have the evidence in the files to say things like that. We try to do that. We review the affidavits. We review the warrants. Each year we do a certain number of warrants.

When you come to the visitor's clause, we were aware of that clause. We were concerned by the existence of that clause. We knew that clause was approved by the federal court and we always made sure given that the clause was accepted within the spirit of the act which is not to infringe on individual rights of Canadians.

• 1600

This clause has been used or accepted in the warrants process by the federal court. I think maybe 20 times it was accepted. The last time Madam Justice McGillis decided that she didn't like the clause and it was not acceptable. Since that time CSIS has ceased completely to use that clause. I don't know if it's clear enough.

There are other clauses where the service, the employee of the service has some discretion. I could mention the basket clause. There is a basket clause where some information is collected from persons not named in a warrant. That is what they call the basket clause. You also have, I'm mentioning these clauses, this basket clause and the resort to clause because these two clauses exist in the criminal process for the obtention of warrants.

These two clauses have been accepted by the Supreme Court of Canada. They are recognized. They are known. Even if they are recognized by the supreme court we are still concerned and examine each time when they use these clauses and make sure that it's in accordance with the spirit of the act.

Mr. Paul Forseth: I was just wondering about the visitor clause. You're well aware of the political turmoil, all of the stuff that went around these writs of assistance that we used to have and how that became part of a national issue.

Hon. Paule Gauthier: Yes and we met last month the representative of the Civil Liberties Association of British Columbia. I know that they were very much aware of everything you mentioned. It was in the media. The problem occurred because of the way it was explained to the media. The media thought that this visitors clause was applied to all people and not only to foreign visitors. So that's where this problem came from.

Mr. Paul Forseth: Okay. Looking in this document here it is indicated that you plan to spend in 1998-99 $ 359,000 out of a total budget of $ 1.3 million on professional and special services. This seems to be a pretty high percentage of your budget going out for almost like contract services or whatever. Is this for outside legal counsel? Perhaps you could explain what this is all about.

Hon. Paule Gauthier: It's outside legal counsel. It's research consultants. Sometimes we have to go outside to help our staff to complete the research program that we want to do in a year. We have to go outside for some help. Also it represents the cost of translation for the annual report and all the other reports that we prepare.

Mr. Paul Forseth: Can you give an approximate percentage breakdown as to what's actual legal fees versus the translation and the other of securing documents?

Hon. Paule Gauthier: Yes I could provide you with that in writing. I don't have that in front of me now but it could be provided for you in writing.

Mr. Paul Forseth: A breakdown of table 4.

Ms. Paule Gauthier: Yes.

Mr. Paul Forseth: Thank you. Go to the next questioner.

The Chair: Mr. Bellehumeur, did you have some questions?

[Translation]

Mr. Michel Bellehumeur (Berthier—Montcalm, BQ): Mr. Gauthier, I knew both your predecessors, Mr. Courtois and Mr. Robert. If I remember correctly, Mr. Robert held the position on an acting basis. You have one advantage over your two predecessors—you seem much more pleasant. But I think the difference will unfortunately stop there, in view of the comments made by your very new member, Mr. Rae, who was just sworn in today. His interpretation of the powers vested in him under the Act in respect of parliamentarians appears to be extremely restrictive.

• 1605

I have had some very difficult experiences with SIRC. We have studied a number of important issues since 1993, met with SIRC members and questioned them for hours. We should get those blues out, even if they are secret. We had struck a committee of parliamentarians, a committee on national security, which met in camera. At the time, there were three official parties; one representative of each party sat on the committee. This was during the 35th Parliament. For nine questions out of ten, all Mr. Courtois would answer was: "Pursuant to the Act, I am not authorized to answer." We were examining some important cases, including one the Reform Party did not mention—the Bristow case. The issue was infiltration of a political party in a democratic system like ours—an extremely important issue. All the evidence and all the facts brought before us implied that a political party had indeed been infiltrated by CSIS. I believe that parliamentarians had the right to be provided with at least some information; however, the information was not forthcoming.

Ms. Gauthier, members of the Bloc Québécois are not planning to fight it out with you. We have long given up the notion of any possible co-operation with CSIS and the RCMP. We will be frank with you. What I would like to know, Ms. Gauthier, is whether you will demonstrate the same contempt towards parliamentarians as your predecessors did. Is my question clear enough?

Ms. Paule Gauthier: Your question is very clear indeed. Unfortunately or fortunately, I cannot justify what my predecessors did, since I was not there. However, when I first appeared before you, I did have an opportunity to say that I regretted that period which, as you say, was a very difficult one.

My intention, and the intention of all members of my committee, is to co-operate with you as much as I can. We want to exchange ideas with you and help you, and we want you to help us. We are all working towards the same goal. Therefore, I very sincerely intend to co-operate with you more.

Mr. Michel Bellehumeur: As I was just saying, you seem very pleasant. It is quite refreshing to see new faces on the SIRC. I would dare hope that your two newly appointed members share your opinion, and will be happy to co-operate, though given Mr. Rae's answer a few moments ago, I doubt it very much. Less than a day has gone by since he was sworn in, and he already seems ready to defend the SIRC's interests. It might be good for SIRC, but it is not so great for parliamentarians.

Mr. Bob Rae: No, no. I am here, as we all are, for everyone. I'd like to answer your comment, because you have already mentioned my name twice.

Mr. Michel Bellehumeur: Well, apart from Ms. Gauthier, you are the only witness who has spoken.

Mr. Bob Rae: All I want to say is that I fully agree with Ms. Gauthier. We will do everything we can to co-operate with members of your committee, and to answer all your questions as openly as we can. That is what we will be doing. I believe Ms. Gauthier would agree with me that Parliament has passed legislation establishing a system of regulations governing the Canadian Security Intelligence Service, and that we must all comply with that legislation. That is all we are saying.

We have differences of opinion, and if I'm wrong, then I am wrong. But I do believe we are obliged to comply with the legislation, the CSIS Act. That is all I said. I am the servant of Parliament, and the servant of the Act. No more than that.

• 1610

Mr. Michel Bellehumeur: This question is to anyone who wishes to answer. In other words, you are interpreting the Act in a restrictive fashion, as did your predecessors. That is what you seem to be saying, Mr. Rae, as are you, Ms. Gauthier, in your conclusion, when you state that you will answer our questions in the limits prescribed by law.

I am a lawyer too. I practised law before becoming a member of Parliament. I have worked on the Act, and studied the Act. So given the way the Act is drafted, and given the way in which you interpret it, you don't really need to appear before us because there is not a lot you can tell us.

Let me give you a concrete example. A certain businessman has been communicating with me for at least two years. I have met with his lawyers and others. For reasons I am unaware of, he is absolutely convinced that the Canadian Security Intelligence Service has completely ruined his life. He had bank accounts in Switzerland and his business was going extremely well. It appears that his lawyer's office was tapped. Wiretapping equipment was actually found there.

Now if I were to put this case before you, and tell you that Mr. X is having problems with the Canadian Security Intelligence Service, I'm convinced that even if you agreed he is, you could not confirm that you had electronic surveillance on him because you would not be authorized to do so under the Act.

Ms. Paule Gauthier: Not at all. Since you are a lawyer, look at section 41. You can tell your Mr. X to contact us right away, to file a complaint and to just go through the process. He will experience the process himself, and we will not have to tell you about it.

Mr. Michel Bellehumeur: What if I were to tell you that he had already filed a complaint, and that the response was that nothing could be done, that he could not be told whether he was or was not under surveillance by CSIS—what would you say then, Ms. Gauthier?

Ms. Paule Gauthier: I am not aware of this complaint. Could you please give me a few more details?

Mr. Michel Bellehumeur: For reasons of national security.

Ms. Paule Gauthier: Yes, but I would have to know more. You were saying...

Mr. Michel Bellehumeur: But you were saying...

Ms. Paule Gauthier: We could talk about this after the meeting.

Mr. Michel Bellehumeur: So you are saying right now that what they did was illegal.

Ms. Paule Gauthier: No, I am saying nothing of the kind, since I would have no idea what I'm talking about. I don't know the exact details of the complaint.

Mr. Michel Bellehumeur: Ms. Gauthier, you cited a section of the Act that seemed very clear indeed.

Ms. Paule Gauthier: Section 41 sets forth the complaint procedure.

Mr. Michel Bellehumeur: Right. So, if I put the case before you, you will check and tell me whether this person is or is not under surveillance by the Canadian Security Intelligence Service.

Ms. Paule Gauthier: I will not tell you whether he is under surveillance. If he is under surveillance, and the Canadian Security Intelligence Service has acted improperly towards him, there is no doubt he will know about it.

Mr. Michel Bellehumeur: Who will know about it?

Ms. Paule Gauthier: Your client.

Mr. Michel Bellehumeur: He is absolutely convinced of that, but the Canadian Security Intelligence Service refuses to tell him whether he is under surveillance or not. Is this legal?

Ms. Paule Gauthier: As you know, we generally do not tell someone whether he is or is not under surveillance. We do not tell them.

Mr. Michel Bellehumeur: But if I ask you, would you tell me?

Ms. Paule Gauthier: You will understand that some people might ask the question just to find out. They are on a kind of fishing expedition. So we have to be very careful. I am sure you will understand that as well.

Mr. Michel Bellehumeur: I could bring you a file this thick that I have analyzed. If we are just talking about coincidences, then this guy is unlucky—really, really unlucky. All kinds of things have happened to him, all kinds of incidents have occurred, at his lawyer's, and elsewhere. He has changed lawyers twice. And twice, the lawyers had microphones, and so on.

Ms. Paule Gauthier: So they were incompetent.

Mr. Michel Bellehumeur: I am not talking about incompetence or competence. I even received reports showing that microphones had been installed, as well as other things.

Ms. Gauthier, if I put this issue before you, if I ask you to investigate so that we can find out whether this guy has been investigated by the Canadian Security Intelligence Service, and if I ask you why he doesn't know about it, and whether his life is ruined because of it, will you give me an answer?

Ms. Paule Gauthier: I would have to know more about the specific case before I could answer. This seems to be an extreme case. In such a case, you should follow the procedure, which has in fact been set up for cases like those. I don't see why the procedure would not apply.

Mr. Michel Bellehumeur: So, Ms. Gauthier, except for the fact that you seem very pleasant, nothing at the Canadian Security Intelligence Service will change.

Ms. Paule Gauthier: That is your conclusion.

Mr. Michel Bellehumeur: Unfortunately, it is.

Ms. Paule Gauthier: But you should follow the rules of the game.

Mr. Michel Bellehumeur: Unfortunately.

Mr. Bob Rae: Mr. Bellehumeur, may I read...

Mr. Michel Bellehumeur: Was she not supposed to give me an intelligent answer?

Mr. Bob Rae: May I read section 41? It stipulates that any person may make a complaint to the review committee. We hear those complaints in accordance with the procedure set forth. I have no idea whether the individual you are talking about is one of your constituents, or one of your acquaintances, but nevertheless, the rights of all people are important to us, as they are to you. Allow me to read section 41.

• 1615

41. (1) Any person may make a complaint to the Review Committee...

That's the three of us.

... with respect to any act or thing done by the Service;

That is, the Canadian Security Intelligence Service.

and the Committee shall, subject to subsection (2), investigate the complaint if

a) the complainant has made a complaint to the Director with respect to that act or thing and the complainant has not received a response within such period of time as the Committee considers reasonable or is dissatisfied with the response given; and

b) the Committee is satisfied that the complaint is not trivial, frivolous, vexatious or made in bad faith.

The second important point is that our decisions are also subject to the Act. Occasionally, complainants go to the Federal Court to confirm whether our decisions were indeed fair and clear, in accordance with the Act. So I think it is very important for complainants to submit their complaints to us. We are obliged to hear their complaints and hand down a decision. If any person believes our decision is a bad one, and is counter to natural justice, it can be reversed by the Canadian courts. That is the law. Canadians have important rights. Civil rights are our responsibility as well.

Mr. Michel Bellehumeur: I have no other questions on that marvellous institution, SIRC.

[English]

Mr. Peter MacKay (Pictou—Antigonish—Guysborough, PC): Mr. Andrews Grant, Madam Gauthier, Mr. Rae, I want to add my thanks you as well for your appearance today. I will try to be a little more magnanimous than my separatist friend in my questioning.

David Harris, a former CSIS strategic director, last fall made remarks that questioned the readiness of CSIS with respect to threats posed by terrorism. Specifically he was talking about Shiite terrorism in Canada. He singled out the fact that there have been significant personnel cuts, upwards of 20% that dropped your staffing from 2,700 to 2,200. At that time he was requesting that the government revisit this decision and return funding, at the very least, to previous levels to rectify this problem and allow CSIS to meet the operational requirements to meet the threat of terrorism.

Madam Gauthier, on the readiness of CSIS, do you share this view that your personnel is not at a level it should be?

Hon. Paule Gauthier: It is a concern to us, the staff and the personnel, to make sure CSIS will operate in a very efficient manner. We visit regions and each time ask CSIS about that question. We have been told that even though it is difficult, it can manage.

The other way we can if it is effective is we review the activities and so far it does not seem to have any difficulty with that, even though there are cuts in the staff.

Mr. Peter MacKay: I guess it is problematic. In almost every capacity we have witnesses here, that is a problem. Has there been any request made, either formally or informally, to have that funding returned so the staff can be increased?

Hon. Paule Gauthier: No, not to our knowledge. We are also very concerned to make sure CSIS has the computers and all the new technology, that it has the right budget to be up to date. So far there is need for that because there are so many changes in technology that it is very costly, but so far it has been able to cope with the situation.

Mr. Peter MacKay: My next question focuses on a former Canadian ambassador to Israel, Norman Spector, who made allegations surrounding CSIS employees or agents being involved or engaged in joint operations with Israeli intelligence services. When the director of CSIS appeared before the committee in April there was a denial of any involvement of security liaison officers in joint operations in Israel.

• 1620

There was a statement that any operational activity engaged in by CSIS beyond Canada's borders would have to be approved beforehand by ministerial direction from the solicitor general. Has that situation been reviewed by you or the committee? Is this something you are aware of and if so can you tell us what the status of that is, please?

Hon. Paule Gauthier: We have been reviewing these comments made by Mr. Spector. Our review is not completed. Our research staff came back from Tel Aviv yesterday or the day before. We have also met with Mr. Spector. We have met with other representatives of CSIS and I cannot give you our conclusion today. All I can tell you is that of course there are agreements with the Mossad. CSIS has agreements for exchange of information, for some kind of assistance, security vetting and all these kinds of things.

When you come to the expression joint operations it depends on who you are to talking because you can give many definitions of what it means. In the annual report we prepared for this year at page 9 we talk about defining types of liaison. We also observe that the service's definitions for the scope of arrangements appear in neither ministerial direction nor in CSIS policy documents.

The committee would like to see the service provide clear definitions for the various exchange arrangements it manages. Then we say we hope a new ministerial direction forthcoming will remove the ambiguity with regard to the definitions of foreign arrangements.

So it means with what we saw in the papers that there is a need for clearer definitions and so our review is not completed and maybe by the end of June we will be ready to inform you about the conclusions we will reach. We will be happy to do so.

Mr. Peter MacKay: In furtherance to that when you talk of the involvement between CSIS and the Mossad is that beyond simply the exchange of information?

Hon. Paule Gauthier: I could not tell you at the moment. They don't have a close relationship. They are not like the United States or other nations that are closer to us. I'm sure there was exchange of information because we have an SLO officer there but it would be difficult for us at this point to tell you exactly what they did with Mossad. They were joint operations in the sense that they were doing things together, having a common target that they wanted to—I don't think you can ever use that expression.

Mr. Peter MacKay: On a somewhat related matter, I am sure you recall the news reports of the attempted assassination in Jordan of Hamas official Khaled Meshal in September and the involvement or at least the allegation that Canadian passports were provided to Mossad by CSIS officials. Has there been a complete probe into that affair and what if any findings were made?

• 1625

Hon. Paule Gauthier: On this point it is very clear that CSIS has no implication whatsoever with the false passports.

Mr. John McKay (Scarborough East, Lib.): Thank you, Madam Chair. Thank you, witnesses, I appreciate your appearance here this afternoon. Congratulations to ministers Rae and Grant. I don't know if it's congratulations or commiserations.

I have the good fortune or otherwise to sit on the immigration committee. Last month two Turkish Kurds, Sami Durgun and Sulymen Govern, came before us. They released to us as they had released to the press a letter signed by 14 Turkish Kurds making allegations that CSIS as a regular part of its security checks holds out to those people claiming landed status in exchange for information. They were very upset about this. They felt this was not the Canadian way, as they put it.

The following week Mr. Alcock appeared before this committee. I brought to his attention the letter. He apparently had not seen the letter notwithstanding it had been released to the press. Other questions were raised. I asked him whether as a matter of course this kind of behaviour occurs on the part of his officials. He said it did not occur. He said it was contrary to any manuals ever given to any of their agents who conduct these investigations.

I asked the same questions of the solicitor general. The solicitor general to his credit is very concerned about this issue and followed up. The upshot is that there are apparently no transcripts or manuals for these kinds of interviews.

On the face of it one should not be concerned. This might be simply some disgruntled individual. Why should we get terribly concerned about this issue? Then we have articles appearing in the Globe and Mail. This one is dated April 15. It is by a Sikh. A limousine driver, Ranjit Singh, tells of the reason he cannot get landed immigrant status in Canada. He stood up to this country's civilian spy agency and refused to inform on his fellow Sikhs.

Here is an article in the Toronto Star concerning a refugee claimant. In this case again it is a Sikh. He said CSIS would help him receive the coveted landed immigrant status he wanted for himself, his wife and his two sons.

Freedom of information gets no access. We get no access to this information. Apparently representations to SIRC get no response on the part of these complainants. The testimony appears to be verified by independent witnesses. Surprise, we also get transcripts from citizenship and immigration which apparently form part of the basis for denial of Mr. Sami Durgun's landed status. I read the transcripts. I don't know how you make any conclusions out of any of this. The response to the letter is dated May 1, 1998. It concerns an inquiry dated October 27, 1993, five year turnaround times.

I'm not quite sure what to conclude about all this. There is apparently enough smoke here to make one really concerned about whether there is a fire. I am wondering whether you in your authority as supervisory agents of CSIS have conducted any inquiries with respect to these kinds of allegations.

• 1630

Hon. Paule Gauthier: Yes, we are in the process of finishing a study, a review of the security screening process. When you say that during the interviews there are no transcripts or questions and answers in order to make sure that you can understand exactly what was said, I think you are right. Our study is not complete.

We are aware of all these cases and, as you know, there will be complaints. Two complaints are already before us and we know that 12 others will probably come forward. It would be difficult for me to say yes, they are completely wrong, that it is more than a fire, that it is terrible. I would seem to be biased, that my mind was already made up before I even started to hear the cases.

Because of that we are ready to hear all the cases. It will be fine because it will be an addition to the review we are in the process of finishing. The two together is a very good combination. At the end we will have a very precise view of what is going on.

You also have to appreciate that when they interview people, the people are in a very vulnerable position because they are not in a country of their own. The service must have very good interviewers, very experienced persons.

They will say a sentence like “You have to co-operate and we will help you”. Let us say that it is yourself. You are in another country and you do not want to say a word about yourself. It is very hard for the person in charge to assess your file, your person. Some words are said and maybe in context it depends how strong they are. It is a sensitive matter to appreciate, to assess.

Mr. John McKay: I appreciate that it is a sensitive matter. I appreciate that various interviewers would have various techniques and that in cross-cultural issues there may be a misinterpretation of what it means. After four complaints, 14 people signing a letter and articles in various newspapers on various people, you start to say there is something going on here.

I wonder what undertaking you can give to this committee to report back on the general issue so that we can have some comfort that the rights of these claimants are not being abused and that they are not being asked to answer questions which are highly offensive to one's sense of being a Canadian.

Hon. Paule Gauthier: We will do our very best to give you that comfort and to tell you as much as possible—yes, certainly—to give you a clear understanding of the situation, of what is going on.

Mr. John McKay: Just to tighten it a little further, what is a reasonable time line for that? You are conducting an investigation. You know you have particular complaints that are either on your table or coming forward. What is reasonable?

Hon. Paule Gauthier: Normally we will come back here in the fall, I imagine, in October or November. I am quite positive that by that time we could report to you.

Mr. John McKay: I appreciate that. Thank you.

Hon. Bob Rae: Just for reasons of clarity, the one thing you said that troubled me because it does not conform to my information is that people have come to SIRC and got no satisfaction.

My understanding, because I am one of the board members, is that we are going to be scheduled to have some hearings. We are going to be holding hearings in response to complaints under sections 41 and 42 with respect to individuals.

• 1635

Mr. John McKay: Yes.

Hon. Bob Rae: We are doing two things. First, we are hearing the complaints of individuals and we will hear those as quickly as we can. Second, we are conducting a general review of this difficult area of the relationship between the Immigration Act, the Citizenship Act and the various security reviews which take place with respect to people who are applying to come to Canada and who are here already. This is a policy review which we are completing. Those are the two things we are doing.

Mr. John McKay: Just on the small point of the relationship between the complainants and SIRC, that information was generated by Sister Mary Jo Leddy. Obviously I am not privy to anything other than the complaint itself. I would not want to be—

Hon. Bob Rae: Now that we have quorum we are scheduling hearings. Sister Leddy will be hearing from us.

Mr. John McKay: Thank you.

The Chair: I want to piggyback, just a couple of questions to make a couple of things clear for myself, on Peter MacKay's questions with respect to the Israeli issues.

You said that SIRC had spoken to Mr. Spector. Is that correct?

Hon. Paule Gauthier: Yes, we have met with him.

The Chair: Have you, yourself?

Hon. Paule Gauthier: Not ourselves but our staff, yes.

The Chair: Did Mr. Spector ever make a complaint to SIRC about any of this?

Hon. Paule Gauthier: No.

The Chair: No, but as a former chief of staff in a prime minister's office he would surely know the role of SIRC. He may have been instrumental in appointing people to SIRC, possibly.

Hon. Paule Gauthier: Yes.

The Chair: He would know that if there was a concern about the way in which CSIS was acting he could pick up the phone, call SIRC and get that sorted out?

Hon. Paule Gauthier: I imagine he would know, yes.

The Chair: He did not initiate these interviews; SIRC initiated them.

Hon. Paule Gauthier: No, we did.

The Chair: I guess this would be an example of picking up something out of the media that needs to be dealt with by your agency.

Hon. Paule Gauthier: Well, yes. During the interview I think he said everything we are going to say here. He told the staff person right from the beginning of the interview that everything that would be said would be made public or published somewhere, that he would do his own—

Hon. Sheila Finestone (Mount Royal, Lib.): Do his own thing.

Hon. Paule Gauthier: Yes.

The Chair: Mr. Hilstrom.

Hon. Sheila Finestone: Madam Chair, perhaps we would want to get the results of their findings. They got the report today.

The Chair: Have you got a timeline on that report, as well?

Hon. Paule Gauthier: The report on the Mossad and the Israelis?

The Chair: Yes.

Hon. Paule Gauthier: I said by the end of June probably.

The Chair: Both this and immigration will form part of your annual report in any event, won't it?

Hon. Paule Gauthier: Exactly, yes.

The Chair: Mr. Hilstrom.

Mr. Howard Hilstrom (Selkirk—Interlake, Ref.): Thank you very much, Madam Chair. There is an annual report or something coming out. Possibly the questions I have will be answered in it.

You mentioned that you pick one region each year to go to do enquiries, examinations. Is that true?

Hon. Paule Gauthier: Yes.

Mr. Howard Hilstrom: Can you tell us which region you did last year, in 1997?

Hon. Paule Gauthier: Normally we do not mention the name of the region, but you can appreciate that we do each one after the other. It is not very difficult to recognize.

Mr. Howard Hilstrom: Are we talking about five regions here, or what are we talking about?

Hon. Paule Gauthier: Yes, about that.

Mr. Howard Hilstrom: I will get a little more general here. In the region that you did last year did you find any examples of contraventions by CSIS employees, right from the director down to the lowest janitor, of illegal acts and/or policy violations? Did you find out anything that was wrong with the way CSIS was operating however minor?

Hon. Paule Gauthier: Illegal acts, not that I remember. Policy violations, maybe fault in obtaining the minister's approval before doing an activity. Maybe there was one case of that. We followed what happened after and we were told by CSIS that this employee was reprimanded.

Mr. Howard Hilstrom: My reason for questioning you is not so much into the exact example. I am trying to determine if you folks are in fact doing your job.

• 1640

It is a friendly question to you.

Would you mind at some future point responding to me or to the Chair of the committee to assure us that in fact you did not find any illegal acts committed? If you did, I think that should be reported to the committee.

Hon. Paule Gauthier: Oh, yes, It would be.

Mr. Howard Hilstrom: With regard to the complaints that have been brought up, how many individuals complained to the SIRC in the last year? Do you have a statistic for that?

Hon. Paule Gauthier: Maybe 40. Around 40, I think.

Mr. Howard Hilstrom: Around 40?

Hon. Paule Gauthier: Yes.

Mr. Howard Hilstrom: How many of those were you able to clear in one year?

Hon. Paule Gauthier: Almost all the complaints. We go through them as quickly as possible.

Mr. Howard Hilstrom: My experience in the RCMP is that it often took three or four years to hear a complaint.

Hon. Paule Gauthier: Oh, there is no comparison to the RCMP.

Mr. Howard Hilstrom: It is better than that. We will tell the RCMP.

Hon. Paule Gauthier: It might change.

Mr. Howard Hilstrom: Of the ones that you cleared—and say there are 30 or 40 or whatever figure you want to use—was CSIS found at fault in any of those, or were some of the inquiries upheld, that the person had a legitimate complaint?

Hon. Paule Gauthier: Well, yes, in I would say many cases we had recommendations to make to CSIS to change something in the way it was making interviews. Yes, there were reasons for the complaints.

Mr. Howard Hilstrom: You identify these to the solicitor general, do you?

Hon. Paule Gauthier: Oh, yes.

Mr. Howard Hilstrom: Or, do you report directly to him at all?

Hon. Paule Gauthier: Oh, yes.

Mr. Howard Hilstrom: He reviews this and whatever.

Hon. Paule Gauthier: It is sent to the solicitor general and the complainant, yes.

Mr. Howard Hilstrom: I think that is fine.

The Chair: Thank you, Mr. Hilstrom. Mr. MacKay.

Mr. Peter MacKay: I will be brief. In furtherance of the last round of questioning, when there is a finding that perhaps something is amiss and someone has done something wrong within CSIS and a referral is made to the solicitor general, does that include input as to what the disposition should be or what the response should be to that individual's actions?

Hon. Paule Gauthier: Suggestions as to what should be changed or what recommendations—

Mr. Peter MacKay: Personal accountability, I guess, is what I am talking about.

Hon. Paule Gauthier: I am not sure I understand the question, but when we realize that there is something wrong in the service, if it is in the regular activities of the service and is not something urgent or of big consequence, we wait for the annual report when we make it public. The service is aware of our opinion through our annual report.

If we think that it is something very urgent, we file a report under section 54. We send it to the solicitor general so he knows exactly what is going on. We do not wait.

Then you asked me if in these kinds of reports we make recommendations.

Mr. Peter MacKay: For a disposition or how the person or the situation should be dealt with.

Hon. Paule Gauthier: Yes, of course we make recommendations, but our role is not to say to the service exactly what to do. Yes, we would make recommendations.

Mr. Peter MacKay: You are more so in trouble shooting as opposed to judgment.

Mr. Paule Gauthier: Trying to find solutions. We will give solutions if we think we have the solutions.

Mr. Peter MacKay: Would those solutions ever be the dismissal of agents?

Hon. Paule Gauthier: Of a staff person?

Mr. Peter MacKay: Yes.

Hon. Paule Gauthier: No. Well, not to my knowledge did we come to the conclusion that it should be a dismissal of a person, but reprimand and things like that, discipline, yes.

• 1645

Mr. Peter MacKay: Just back very briefly to the question of the passports and keeping in mind your earlier response, has there ever been a review of the government's suggestion that the passports were not used? Has that been thoroughly investigated by CSIS?

Hon. Bob Rae: I didn't get the question.

Hon. Paule Gauthier: You know we review CSIS activities.

Mr. Peter MacKay: Right.

Hon. Paule Gauthier: We made sure that CSIS did not participate or didn't help Mossad to get the passports or didn't help to falsify the passports or things like that. What the government is doing or not doing, we don't know. Not that I want to mention that the government participated in that, not at all, but I don't understand exactly what you mean by the government.

Mr. Peter MacKay: I guess what I'm asking is did SIRC, not CSIS, review what supposedly did or did not happen with respect to these passports or was that done solely by CSIS? You have never reviewed their findings.

Hon. Paule Gauthier: No. No. We reviewed. We came to our own conclusion with our own review of the facts. We didn't only rely on the conclusion of CSIS. We went through the files and looked for ourselves.

Mr. Peter MacKay: And you're satisfied that those findings were adequate.

Hon. Paule Gauthier: Yes.

Mr. Peter MacKay: Thank you, Madam Chair.

The Chair: Thank you, Peter.

Mrs. Finestone.

Hon. Sheila Finestone: Thank you very much, Madam Chair.

Just to follow up on a couple of questions, with respect to the questions by my colleague Mr. John McKay, he was talking essentially about human sources. I call them informers, but anyway I gather the proper terminology is human sources.

The SIRC report on the allegations with respect to CSIS and immigration review or immigration rights you were quite critical of CSIS and you refer to it in your media report that was made public under the Access to Information Act. There was an access to information request. You made that information public. Can we please have a copy of that report.

Hon. Paule Gauthier: Certainly.

Hon. Sheila Finestone: Thank you. Would you please forward that to our clerk.

Hon. Paule Gauthier: Yes, certainly.

Hon. Sheila Finestone: Great. Thank you very much.

In February 1998 there was a meeting held by SIRC in Quebec City and it appears that this meeting was held completely in English. As you had a complaint by the official languages commissioner and by a CSIS employee in attendance at that meeting and seeing as how I am the chair of official languages, I would like to know if you could please explain first of all why the meeting was held in Quebec City. Do you normally hold your meetings across the country?

Hon. Paule Gauthier: Do you know why?

Hon. Sheila Finestone: No, I don't know why.

Hon. Paule Gauthier: Very good question. We don't visit Quebec City very often but it happens to be my city. We visited Quebec City because there is a—

Hon. Sheila Finestone: You came home as the girl.

Hon. Paule Gauthier: But there is some CSIS staff in Quebec City. They have authority on the Gaspé Peninsula and all the eastern part of Quebec. We thought that it would be nice to have a view from Quebec City and not only Montreal.

Yes, you are right. It is very sad that this happened especially in my own city. But to tell you the truth, what happened is that the service caught us by surprise because being in Quebec City we thought that there would only be three or four staff persons in Quebec City but no, they all came from Montreal. Instead of being let's say three or four and having the views of the service from Quebec City they all came from Montreal so the group was much bigger. Because the group was much bigger it changed the dynamics of the meeting.

We thought that we didn't need a translator because it would be a very small group. Rosemary Brown, the person who was not bilingual, we could explain to her very easily being a small group. But because of the CSIS decision to all come to meet us it changed and then it was a big meeting.

Hon. Sheila Finestone: Was it a public meeting?

Hon. Paule Gauthier: No. No. Not a public meeting but we were a large number around the table and it's not the same way that you address people when you're a small group or a big group. So we didn't have a translator.

Hon. Sheila Finestone: But you normally would have one.

• 1650

Ms. Paule Gauthier: Yes, we were caught by surprise. At the beginning of that meeting I explained the situation to CSIS and I said, you know, we could do it in French, but do you have any objection if we do it in English? They all said no, no, go ahead, no problem. That's why we did it and I regret it because they made a complaint after that. So, we will never go again without a translator. That's it; that's the story.

Hon. Sheila Finestone: Thank you. The views from the Plains of Abraham I am sure were quite beautiful. I wish there were a three face statute there instead of two. I had to get that in, what did you expect? Did you like that shot?

Frankly, Madam Chair, the questions I was interested in have been asked. I thank you very much for this opportunity. Outside of saying how pleased I am to meet you and to learn more about what you do, I am anticipating the replies that we have asked for.

Hon. Paule Gauthier: It's our pleasure.

Hon. Sheila Finestone: Thank you.

The Chair: Mr. Forseth.

Mr. Paul Forseth: Yes, I have just one follow-up to reconfirm that you did make a commitment related to table 4 on page 14. You were going to send us a letter explaining in further detail some of the breakdowns on this table. You had said that and we anticipate that coming.

Hon. Paule Gauthier: Yes.

Mr. Paul Forseth: Okay, thank you.

The Chair: Do you have any other questions?

Mr. Derek Lee: I changed my mind. I think I'll just walk through quickly the one approach to this issue that I raised in my line of questioning earlier, just for the record and so you'll have a brief introduction to it. I hope you will be looking at it again.

You've indicated to me that you have each taken a privy council oath and the oath of secrecy that is part of the schedule to the act. We all know the privy council oath is very short and sweet without any surplusage. The oath of office in the schedule to the act reads:

I,.........., swear that I will not, without due authority, disclose or make known to any person any information acquired by me by reason of the duties performed by me on behalf of or under the direction of....

—CSIS, etc.

In parliament as part of the Constitution of Canada there are what are called privileges. They exist. They are part of the Constitution, always have been. Their existence as part of the Constitution is not only stated in the Constitution, but it's confirmed by current modern case law and it's unequivocal. Those privileges are part of the Constitution of Canada that applies to this parliament and all legislatures in the country.

One of those privileges that is immutable and has never changed, has never been denied and has existed for over 300 years is the power to send for persons, papers and records. It sounds a little archaic. Mr. Rae, you'll certainly recall that from your days here, the power to send for persons, papers and records. That is the equivalent of the civil court and criminal court power of subpoena. It is the parliamentary equivalent of that and that has existed for centuries.

That privilege, that right, that constitutional right is there for the House of Commons. That right, that power, that authority has been explicitly delegated from the House to each of the standing committees of the House of Commons. The Senate has done the same thing. That is contained in Standing Order 108(1). That's an explicit delegation. That full authority, that lawful authority, that power to compel and I won't go into details about what the power to send for persons, papers and records is, let's just call it the power to compel persons, papers and records to be here is therefore delegated to committees.

So, we have here in this parliament and in all of the legislatures a legal regime founded in the Constitution which allows the compulsion of these persons and testimony.

• 1655

Now, no matter what a person's oath or a person's obligations outside parliament might be, that power, that authority allows the compulsion, the compelling of that testimony and the presence of the person and the documentary evidence, no matter what a person's oath might be.

Let me step aside and just address for practical purposes the oath that you've taken.

Hon. Paule Gauthier: I will stop you there. Where do you see no matter what the person's oath might be? Where do you see that?

Mr. Derek Lee: That is simply the power is unrestricted anywhere in the Constitution or in parliamentary law.

Hon. Bob Rae: Would this apply to ministers, too?

Mr. Derek Lee: Yes.

Hon. Bob Rae: So you could ask the Attorney General of Canada with impunity, if the committee decided in its wisdom that is what it wanted to do and I accept Mr. Forseth's correction, you could require the Attorney General to tell you whether so-and-so was under criminal investigation?

Mr. Derek Lee: Yes.

Now over the years parliament doesn't ask stupid questions. Oftentimes it defers from asking questions or it goes in camera or it takes other steps. Parliament has not been eternally stupid in the way it handles these matters. Some things you don't do in public. Other times politics has affected the way the process has evolved. In any event that authority is there.

Now let me go to your oath which says:

without due authority, disclose....

I'm not accepting that your oath would govern in any event, but taking your view that your oath is important to you, I submit to you that the constitutionally protected and founded power and authority of parliament to compel you to testify and to answer questions is due authority. Due authority. That little paradigm by itself should be sufficient to get us over the hump here.

Again, my position is that your oath is not politically irrelevant, not practically irrelevant, but from a legal point of view, from a parliamentary law point of view, irrelevant. And so at the end of the day, I leave all of that in the hope that we can work things out. This is a matter for other parliamentary committees, too. Mr. Rae wanted to reply.

Hon. Bob Rae: No, it's not a matter of replying. I want to be clear with you and with all of the members of the committee.

There are a variety of ways in which these things can be worked out. I certainly as a member of SIRC would have no objection if parliament wants to create rules by which we are to divulge certain information or required to divulge certain information. I have no objection to that at all.

I don't regard myself as being more appropriate to receive top secret information than you or than anyone else. It's just that under the current regime, we have been given access to certain information. We have that information as a result of the office that we hold, just as the Solicitor General does, just as the Prime Minister does, just as other people who have security clearance in various offices and occupations do.

I don't rely so much on the oath. I think you're taking me down a path. I rely more on what do other laws say that are there for a reason. They are there to protect the civil rights of the individual. They are there to protect the rights of privacy of individuals. When I asked my question about the Attorney General, I would think the Attorney General would have a very hard time justifying why he would disclose whether somebody was under police investigation. Somebody can receive a complaint.

Mr. Lee, you will know that you get a complaint as a member of parliament, you may receive information. You say, “What do I do with this information? Do I disclose it publicly? Do I hold a press conference?” Sometimes you say “No, I'm not going to disclose that information. I'm going to keep that information to myself because if I disclosed it, it might be damaging to individuals concerned and I decided in my judgment, I'm not going to do that”.

We operate under statute and not just one statute, but a whole bunch of statutes that require us to respect the civil rights of individuals.

• 1700

So if you are asking me to answer a question which I don't think in my judgment is lawful for me to disclose, I have to tell you that. And if you say “Well, parliament is supreme”, I say “Yes, I agree that parliament is supreme”, but parliament is supreme according to the laws of the land. Parliament has to follow the law. That is the meaning of the Constitution. Parliament is not above the law. Parliament has to follow the law.

Mr. Derek Lee: But you have not accepted my point, which is that parliament, likewise, would not accept any constraints in the Privacy Act or the Access to Information Act. That point has already been made and accepted here. So if you are suggesting to us to go over old ground again, and I hope you're not...

The point I am making is that parliament is not bound by those laws of general application. And that you can take to the bank. Given that, parliament would not in public lightly ask a question like that, and from the science now we move to the art.

Parliamentarians don't need to know a lot of the material. Not only do we not need to know it, we don't want to know it.

I recall a previous head of one of the U.S. intelligence agencies who said “A year later you can't remember whether you got it in a confidential briefing or you read it on the front page of the New York Times”. So you don't want to know it unless you need to. But there are times when parliament, as, what we are called, the grand inquest of the nation, has simply got to know.

Now, this committee, its predecessor committees, the subcommittee and the special committee have found at least two or three ways to take information that statutes generally would have prohibited disclosure on out onto Main Street. Personal information has been disclosed in camera with no copies and notes. Information pertaining to intelligence operation has come across in camera on special premises without notes, without copies. Shirt sleeves. That arrangement was entered into. And colleagues have acquiesced on that, just out of good common sense, to allow that process to take place and it has generally worked.

But because it happens on that kind of a basis it rarely shows up in the parliamentary record. There is no note of it. The job gets done, but when you come to deal with the issue you don't have any precedent to look at. You can't find it anywhere. So some of us in parliament hope to overcome this shortly.

The Chair: Mr. Grant.

Mr. James Andrews Grant: Madam Chair, I would like to respond. Speaking personally, from my personal view, I would like as a member of the committee to be as co-operative as I can because I think you have a job to do. We have spent a lot of time on this particular issue and I have been involved in the time that we have spent on the issue. I think you have a legitimate point of view. It is your point of view and it is not the only point of view. You may be right, as a matter of fact, but you also may be wrong.

But the type of information that we have, regardless of anything else, is so top secret and can be so damaging to people that I personally am not prepared to divulge that information on a lecture from you. I don't say that pejoratively, and I think you may be right. I am just telling you that I personally am not prepared to do that unless somebody tells me I have to do it. So you can keep coming back and telling me why I should do it, but I want you to know up front what my attitude is. You have a fairly closed mind on the subject here, this individual.

Mr. Derek Lee: Well, if I could just roll the thing a bit further, this committee's solution to a refusal is to walk you over to the House where you would be admonished, as the term goes, and you might not be able to leave the House. Now this hasn't happened in about 70 years here.

The Chair: In fairness though, Mr. Lee, only if the committee agreed that the subject matter was important enough for us to do it.

Mr. Derek Lee: It is totally the decision of the committee. In fact, it is not even the decision of the committee, in the end, because if the committee needs enforcement it must go to the floor of the House. Now it is a matter of privilege so it would be immediately dealt with.

Mr. James Andrews Grant: Yes, but this isn't France, for one thing.

• 1705

I think that all three of us are not stonewalling this issue at all. If we're giving you the impression we're stonewalling it, we're not stonewalling it at all. All we're saying is that the case that you make has not convinced us. You have opinions. We have opinions.

It's a very touchy subject and we're telling you that someone really has to tell us...if your whole committee wants to make an issue of it, that's fine with us. As Bob says, it's fine and we'll go along with that, but on the present circumstances I'm giving you a reaction but basically you're going to get the same reaction. If it stays at this level you're going to get basically the same reaction that you're getting now.

Mr. Derek Lee: If I may ask, Mr. Chairman, who would SIRC like to hear this from.

The Chair: Parliament.

Mr. James Andrews Grant: I think due authority is an act of Parliament, in my personal opinion.

Mr. Derek Lee: The act has already been passed, so—

Mr. James Andrews Grant: Don't forget it's one thing to say that we have to come here and answer all the questions, that's a perfectly legitimate point of view, but the same Parliament that gave you the power to sit there has told us that we can't tell you.

An hon. member:

[Editor's Note: Inaudible]

Mr. James Andrews Grant: It certainly has. It's in the oath. That's the way I interpret it.

Mr. Derek Lee: Without due authority.

An hon. member: Without due authority.

Mr. Bob Rae: I've always found in life, generally speaking, that theoretical debates are interesting but let's get down to questions. If there's a question that you say tell us this and we say well we can't really tell you that, we can only tell you generally what we're doing, that's an issue.

It seems to me, Mr. Lee, that Parliament has made a decision with respect to establishing SIRC and if you look at the structure of the Canadian Security Intelligence Act which is the act under which we operate Parliament has made certain decisions about how it's going to operate.

What Parliament has said is we're concerned about the review of the activities of CSIS and we all know the history behind that and we want to make sure that not only do we have the court review which is required for a warrant, if CSIS says we want a warrant they need to go to court and get it, so you've got judicial review of CSIS.

In addition to judicial review we also want to have a process of civilian review whereby we get people for whatever reason, they're Privy Councillors, they're sworn in and they're people who are trusted by the government of the day, they have to consult with the opposition to say is this person a reasonable person and these people are all chosen and essentially Parliament is giving us a certain amount of trust to say we trust you people to do your job, to report to us on your job, to give us whatever information you can with respect to your job and there's an element of trust.

At the same time we're sworn in order to get access to top secret information we're required to indicate that we're going to keep that to ourselves because we have an obligation to do that and because there are issue of...let's not forget, this is about the security of the nation. This is about issues of terrorism. This is about issues involving quite major issues that relate to Canadians and one has to be careful about how one treats this information in any event.

And that's the scheme of the act. There are lots of other acts which are similar. In Ontario we have our conflicts commissioner who's a judge, who's appointed by the legislature and the conflicts commissioner reports every year and he says here are some examples of things that members thought was appropriate and I thought was inappropriate or they asked me whether they could do such and such and I said no this represented an issue for members of Parliament. No names are ever disclosed. We don't want to know. We don't ask the commissioner to tell us who was this person who applied for a golf club membership or what was it, no names mentioned.

And this is a similar process. Now it seems to me that what the committee is saying is we don't like this process. We want in. We want to have more information. We want to be told more and if that's true, we're happy to comply insofar as we can but fundamentally this is a policy decision for Parliament that relates to how you want to deal with this ongoing question of how the security forces of the nation are going to be reviewed.

In every democratic country this is an issue, as Madam Gauthier has said, this is a question in Australia. It's a question in the U.K. It's a question in the U.S. Every country does it differently. There's nothing that says that our model is the only model but it seems to me that part of what you're saying is that and I want to comply.

We want to comply with Parliament. We want to comply with the wishes of Parliament. We want to do what we're required to do under the law. That's why we're here and it seems to me Parliament has to wrestle with this question, the government may have to wrestle with this question. We are not taking issue with the policy.

• 1710

The Chair: Thanks, Mr. Lee.

I want to thank all of you for coming. I guess we will see you in the fall, after your annual report. There are a few undertakings, and I am sure you will deal with those and we'll see them.

Ms. Paule Gauthier: Yes.

The Chair: Thank you very much.

Colleagues, because we don't have a quorum, we can't do the votes on estimates, but we'll add them to an agenda next week.

The meeting is adjourned.