Letter to the Standing Committee on Public Safety and National Security on Bill C-44

 

November 28, 2014

The Honourable Daryl Kramp, M.P.
Chair, Standing Committee on Public Safety and National Security
House of Commons
Ottawa ON K1A 0A6

 

Dear Mr. Kramp:

I would like to share my views with the Committee in the course of its review of Bill C-44,An Act to amend the Canadian Security Intelligence Service Act and other Acts, otherwise known as the Protection of Canada from Terrorists Act

My comments will be limited to how the proposed amendments may impact my oversight and the amount of information which could be subject to disclosure under the Access to Information Act (the Act).

First, I am concerned that there is the possibility that the Bill will limit my ability to investigate. The Bill prohibits persons from disclosing the identity of a human source or any information from which the identity of the human source could be inferred in a proceeding before a court, or to a person or body with the jurisdiction to compel the production of information (proposed section 18.1).

For over 30 years, information commissioners have had the power to compel persons to produce such documents and things as they deem requisite in order to fully investigate and consider a complaint, including information about a confidential human source.Footnote 1

Moreover, there is no evidence to support the need for a limitation on this power. I am unaware of any instance where the identity of a confidential source of information was revealed as a result of an investigation by my office.

My second concern relates to what information is subject to disclosure under the Act. Bill C-44 broadens the scope of confidentiality protections given to human sources by extending coverage to individuals who are likely to provide information to the Canadian Security Intelligence Service.Footnote 2 This is a change from the previous section of the Canadian Security Intelligence Service Act, which referred only to those who were or are confidential sources of information.Footnote 3 The Bill makes a corresponding amendment to Schedule II of the Act to reflect the broader protection offered to human sources of information.

Finally, I am also concerned that this broader protection is being implemented through the use of Schedule II of the Act. Doing so results in a mandatory, class based exemption for the identified information. On numerous occasions I have objected to expanding protections provided by Schedule II of the Act because, in my opinion, it leads to an erosion of the right of access.Footnote 4

The combined effect of the possible limitation on my investigations and the expanded protection for human sources is that there is a potential for abuse by institutions without recourse to effective oversight.

Before closing, I wish to reiterate the recommendations my fellow information and privacy commissioners of Canada made in a joint statement issued on October 19th, 2014.Footnote 5 In this statement, we recommended that any new legislative proposal granting additional powers for intelligence and law enforcement agencies must be evidence-based, made in dialogue with Canadians and with effective oversight ensured.

I trust that this information will be of assistance in your deliberations and I remain at the disposal of the committee.

Sincerely,

Suzanne Legault
Information Commissioner of Canada

c.c.:   Leif-Erik Aune
Clerk, House of Commons
Standing Committee on Public Safety and National Security

Footnotes

Footnote 1

As per s. 36(1)(a) of the Act. In addition, s. 36(2) of the Act also provides that notwithstanding any Act of Parliament, no record may be withheld during an investigation on any grounds.

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Footnote 2

See the definition of “human source” in the Bill.

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Footnote 3

section 18(1)(a).

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Footnote 4

See letter to the Senate Committee on Legal and Constitutional affairs on Bill C-51,  Safer Witnesses Act and speaking notes from the 2013 Access and Privacy Conference. Office of the Information Commissioner, Letter from Suzanne Legault to Senator Bob Runciman on Bill C-51, An Act to amend the Witness Protection Program Act and to make a consequential amendment to another Act, June 12, 2013 and Office of the Information Commissioner. “A Canadian Vision for Access to Information.”  June 13, 2013. < http://www.oic-ci.gc.ca/eng/media-room-salle-media_speeches-discours_2013_4.aspx >.

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Footnote 5

Office of the Information Commissioner. “Statement of the Privacy and Information Commissioners of Canada on National Security and Law Enforcement Measures.”October 29, 2014. < http://www.oic-ci.gc.ca/eng/communique-de-presse-news-releases-2014_5.aspx >.

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