ADDENDUM: Dec 13: Now that the full, consolidated version of the bill has been posted after committee study, I am thinking that the Canada Evidence Act s.38 argument voiced below is actually a weak one. See the addendum below. I am, however, leaving this post in its original form to benchmark my thinking (aka, memorialize my mistake).
The Standing Committee on Public Safety and National Security has now reported its amendments to bill C-22, the bill that would create a national security committee of parliamentarians. A number of these amendments are quite significant, but most significant: the amendments greatly constrain the capacity of the government to deny the C-22 committee access to classified information.
This is an important development. As introduced to the House by the government, bill C-22 placed what I have been calling a triple lock on the C-22 committee's access to information. This was a matter of concern, since access to information will be essential for the C-22 committee to perform its functions. There were a number of justifications for this triple-lock, a constraint that does not exist for Canada's two chief expert national security review bodies (SIRC and the CSE commissioner). But basically the justification for the C-22 committee's more limited information access boils down to this: parliamentarians needed to show they could be trusted with classified information.
Even if this suspicion is warranted (and I am suspicious of the suspicion), the triple lock was excessive. This is especially true given that C-22 committee members will be surrendering their parliamentary privileges and will be persons permanently bound by secrecy under the Security of Information Act (and therefore subject to criminal sanction for violating secrecy rules).
The rolling back of the triple lock so that it, in essence, no longer exists and the C-22 committee is now on a common footing in terms of access to information with SIRC and the CSE commissioner I regard as a good thing, as not only does it remove the prospect of serious and debilitating bun fights over C-22 committee access to information, but it also makes coordination and collaboration with the expert review bodies much easier, at least in principle. All are now equally into the secrecy tent.
Still, that rolling back seems to have occurred through a puzzling procedure in the standing committee clause-by-clause review. I fear that some of the amendments may, therefore, be defeated by the government on report stage.
Let me suggest, however, that the government should be content with this standing committee outcome and should now appreciate that they retain a "nuclear" option in terms of controlling access to the secrets it really does not want shared with the C-22 committee: the Canada Evidence Act, s.38.
Among the amendments made by the standing committee is an emphatic power to compel production of information. I think it is even clearer, therefore, that investigations by the C-22 committee are "proceedings" under s.38 of the Canada Evidence Act. And that means that the government could fight disclosure to the C-22 committee of information prejudicial to national security, defence or international relations in Federal Court. More than that: it also could issue an Attorney General's certificate to block this disclosure to the C-22 committee should any body, including the Federal Court or the committee itself, order its disclosure.
This certificate constitutes a sweeping power, subject to only rudimentary appeal in the Federal Court of Appeal. It was controversial when created in 2001 because of its reach. And it certainly could be used to deny truly sensitive information to the C-22 committee (indeed I think it has fewer checks and balances than ideal).
Bottom line: the government lost its triple-lock on C-22 committee access to information, but it gained its nuclear bomb.
Thus, to suggest that the standing committee amendments went too far would be, in my view, an exaggerated concern. I hope therefore that the amended C-22 passes muster at report stage.
The consolidated version of the C-22 is now posted. I think I need to qualify my initial views in this post. Reviewing the full amended language of clause 13, I note the retention of the reference "despite any other Act of Parliament", prefacing the new power to "send for persons, papers and records," and then to have access to information. I would think that this qualifier "despite any other Act of Parliament" likely has the effect of displacing the Canada Evidence Act (and there is also sub-clause 13(3) with a likely similar effect) -- in which case, the prospect of using s.38 as a supplemental control over the committee's abilities to extract information would disappear. If so, then I think there will be a full-court press by the government to restore some shackles on C-22 committee access to information during the rest of the Parliamentary process. The notion that shackles are necessary for this committee, and not for the expert review bodies remains a doubtful argument to me. But on balance, if shackles are to be had, I am more content with the s.38 model -- which can get in front a judge -- than the alternatives in the original C-22.