Bill C-51 (Historical)

Anti-terrorism Act, 2015

An Act to enact the Security of Canada Information Sharing Act and the Secure Air Travel Act, to amend the Criminal Code, the Canadian Security Intelligence Service Act and the Immigration and Refugee Protection Act and to make related and consequential amendments to other Acts

Part 1 enacts the Security of Canada Information Sharing Act, which authorizes Government of Canada institutions to disclose information to Government of Canada institutions that have jurisdiction or responsibilities in respect of activities that undermine the security of Canada. It also makes related amendments to other Acts.
Part 2 enacts the Secure Air Travel Act in order to provide a new legislative framework for identifying and responding to persons who may engage in an act that poses a threat to transportation security or who may travel by air for the purpose of committing a terrorism offence. That Act authorizes the Minister of Public Safety and Emergency Preparedness to establish a list of such persons and to direct air carriers to take a specific action to prevent the commission of such acts. In addition, that Act establishes powers and prohibitions governing the collection, use and disclosure of information in support of its administration and enforcement. That Act includes an administrative recourse process for listed persons who have been denied transportation in accordance with a direction from the Minister of Public Safety and Emergency Preparedness and provides appeal procedures for persons affected by any decision or action taken under that Act. That Act also specifies punishment for contraventions of listed provisions and authorizes the Minister of Transport to conduct inspections and issue compliance orders. Finally, this Part makes consequential amendments to the Aeronautics Act and the Canada Evidence Act.
Part 3 amends the Criminal Code to, with respect to recognizances to keep the peace relating to a terrorist activity or a terrorism offence, extend their duration, provide for new thresholds, authorize a judge to impose sureties and require a judge to consider whether it is desirable to include in a recognizance conditions regarding passports and specified geographic areas. With respect to all recognizances to keep the peace, the amendments also allow hearings to be conducted by video conference and orders to be transferred to a judge in a territorial division other than the one in which the order was made and increase the maximum sentences for breach of those recognizances.
It further amends the Criminal Code to provide for an offence of knowingly advocating or promoting the commission of terrorism offences in general. It also provides a judge with the power to order the seizure of terrorist propaganda or, if the propaganda is in electronic form, to order the deletion of the propaganda from a computer system.
Finally, it amends the Criminal Code to provide for the increased protection of witnesses, in particular of persons who play a role in respect of proceedings involving security information or criminal intelligence information, and makes consequential amendments to other Acts.
Part 4 amends the Canadian Security Intelligence Service Act to permit the Canadian Security Intelligence Service to take, within and outside Canada, measures to reduce threats to the security of Canada, including measures that are authorized by the Federal Court. It authorizes the Federal Court to make an assistance order to give effect to a warrant issued under that Act. It also creates new reporting requirements for the Service and requires the Security Intelligence Review Committee to review the Service’s performance in taking measures to reduce threats to the security of Canada.
Part 5 amends Divisions 8 and 9 of Part 1 of the Immigration and Refugee Protection Act to, among other things,
(a) define obligations related to the provision of information in proceedings under that Division 9;
(b) authorize the judge, on the request of the Minister, to exempt the Minister from providing the special advocate with certain relevant information that has not been filed with the Federal Court, if the judge is satisfied that the information does not enable the person named in a certificate to be reasonably informed of the case made by the Minister, and authorize the judge to ask the special advocate to make submissions with respect to the exemption; and
(c) allow the Minister to appeal, or to apply for judicial review of, any decision requiring the disclosure of information or other evidence if, in the Minister’s opinion, the disclosure would be injurious to national security or endanger the safety of any person.

Freedom of the Press

[Thomas Mulcair, NDP, Outremont, QC]

Mr. Speaker, those journalists were on the Hill today calling for a full public inquiry.

The government has no right to spy on journalists, period. The Liberals are all talk and no action. They refused to conduct a public inquiry. They refused to repeal Bill C-51 and they refused to fix Bill C-22.

What concrete measures are the Liberals going to take to protect freedom of the press in Canada?

[Prof. Stephanie Carvin]

These are some very interesting and challenging questions. With regard to data sharing, it's not.... I read an article yesterday which suggested that because the RCMP now has this operational centre they're sharing all their databases or bringing them all together. No, it doesn't work like that.

Services are bureaucracies, and they are very protective of their information and their people. They've been criticized in the past for not sharing information appropriately. I think there is a perception that it is a kind of free-for-all and that there is data sharing. I am supportive of putting more clarity on the process itself, such as, for example, in Bill C-51, even though that's not what we are talking about here specifically.

I also believe that there should be.... Perhaps this will get to some of your questions on defence. Craig Forcese, the professor at the University of Ottawa whose work I very much admire, talks about having a super-SIRC that would enable the organizations, or at least the committee or some body, to follow the information as it goes from one agency to another. I think there needs to be slightly more appreciation for the safeguards that are put in place within these organizations, as I understood them.

[Prof. Stephanie Carvin]

Thank you for your question.

One of the issues that I think illustrated this was the debate over Bill C-51. A lot in Bill C-51 could perhaps have been criticized, but debate over it often came between individuals who were accusing those who did not want to support the bill as being in favour of child molesters, and, on the other hand, individuals who were accusing those who did support the bill of trying to create a 1984 surveillance state.

My concern is that the security environment in Canada has evolved considerably since the Cold War and I'm not convinced Canadians' understanding of that issue has. That's not to discredit the fabulous people working on this area, but let's just take the example of espionage. It's no longer about states trying to break into safes to steal designs for submarines or trying to steal the crown jewels of secrets. It's now about trying to get the health records of individuals through cyber-intrusions in order to use that information to exploit these individuals or to find out information on them where they may be vulnerable.

It's that kind of transition in terms of the scope of activities that we see some of these states doing that I think needs to be raised up. I would like to see this committee talk about the evolution of national security issues that this country faces and then communicate to the country what our services are doing in order to respond.

Privacy

[Brian Masse, NDP, Windsor West, ON]

Madam Speaker, I am proud to stand here as a New Democrat. New Democrats have often brought truth to the powers that be, whether on climate change, on rights, or on a number of different things that have taken place in this chamber, and moved a number of causes. Cybersecurity, privacy rights, personal rights, and of course user rights are very important for our future.

I am not pleased to hear the response, in the sense that we know Bill C-51 has exposed so many Canadians to personal privacy data breach. Most recently, journalists have been spied on in our country, so we need this issue very sincerely looked at immediately. It needs to protect personal privacy and it needs to make sure there will be accountability to the government resources and those that expose or use the data.

Most important, it is part of our individual collective freedom in a civil society that we actually have the rights and our information protected at all times.

[Michel Picard, Liberal, Parliamentary Secretary to the Minister of Public Safety and Emergency Preparedness]

Madam Speaker, I would like to thank the hon. member for his question regarding Canada’s privacy laws and the challenges faced by law enforcement in an era where communications technologies are changing rapidly. As the hon. member knows, these are important issues.

On the one hand, our law enforcement and national security agencies need to be able to collect information and evidence to investigate crimes and protect our national security. At the same time, we must ensure that the authorities that we give these agencies are consistent with our values and our rights and freedoms as set out in the charter.

As well, it is vitally important that the government work with the private sector to ensure that organizations take appropriate steps to protect the information that they receive from Canadians.

That is why the government has launched two sets of consultations. The first set of consultations on cybersecurity was launched on August 16. As hon. members know, the cybersecurity landscape is constantly evolving, and our government is committed to ensuring that Canada is an innovative leader in cybersecurity while also keeping Canadians safe online.

We heard from thousands of Canadians on the cyber security threat and how we can capitalize on the advantages of new technologies and the digital economy. That consultation wrapped up recently, and Public Safety is analyzing the many submissions.

The second set of consultations on national security was launched by both the Minister of Justice and the Minister of Public Safety and Emergency Preparedness on September 8. These consultations are an invaluable opportunity to engage Canadians on Canada's national security framework. They are an important step toward fulfilling this government's commitment to review Bill C-51, the Anti-terrorism Act, 2015.

As part of the consultations on national security, we have invited Canadians to provide feedback on a number of different issues, including how best to ensure that our law enforcement and national security agencies have the tools they need to protect Canadians while simultaneously ensuring that Canadians' rights, including privacy rights, are protected.

We are also inviting Canadians to provide their thoughts on how we can ensure that our national security agencies are accountable to Canadians, and a range of other issues.

We have already begun to make important changes in this regard with the introduction of Bill C-22, the national security and intelligence committee of parliamentarians act. If passed, Bill C-22 would, for the first time, enable parliamentarians to meaningfully review the activities of our national security agencies.

The Government of Canada has two fundamental duties: to protect the safety and security of Canadians, and to uphold the Constitution to ensure that our laws respect the rights and personal freedoms we enjoy in this country.

I look forward to a diverse and vigorous debate on these issues. I hope that hon. members of this House will join Canadians in participating in these important consultations.

[Prof. Craig Forcese]

Well, it's hard for me to comment, because the decision is 137 pages long and it was issued just as I was walking over here for this committee hearing. I've only read the summary.

I think it's going to be an important decision. I think it relates to a long-standing question as to how you construe section 12 in terms of the competency of CSIS to retain data. It is going to have important knock-on effects, it seems to me, in terms of the information sharing provisions in Bill C-51, because it says something about the capacity of CSIS to become a sort of data dump location, that is, to derive a huge database of accrued information from across government. These new retention standards that the court articulates will presumably stand, in part at least, as a barrier to that, although again I need to read the case more carefully.

[Murray Rankin, NDP, Victoria, BC]

I acknowledge my debt.

Mr. Forcese, The Globe and Mail just reported that a Federal Court ruling says CSIS has illegally retained sensitive data on Canadians over a 10-year period. This is the second time in three years the courts have found that CSIS has breached the duty of candour and hidden information from judges. Some of this stems from the powers in Bill C-51.

Professor Forcese, what does this ruling mean in terms of the need to repeal Bill C-51 and strengthen Bill C-22?

[Sven Spengemann, Liberal, Mississauga—Lakeshore, ON]

Thank you very much, Mr. Chair.

Thank you both for being here.

I want to take advantage of the remaining few minutes to take you a little bit away from the mechanics of effective review, which is most of what we heard this afternoon both in this panel and in its predecessor, to look at the social and political environment in which this committee is going to operate, with a specific focus on and interest in the creation of a public value of trust in government.

I sit on the defence committee as well. That committee has received evidence that I will put to you. The single biggest threat against Canadian society is domestic terrorism. In fact, it is domestic terrorism that really has brought some very specific concerns by particular communities in Canada with respect to the former Bill C-51. When we talk about the creation of trust in governments specifically through that lens of domestic terrorism, I think it's a very salient topic. Public Safety's “2016 Public Report On The Terrorist Threat To Canada” outlines that in some detail.

Assuming, then, that a good chunk of the committee's work is taken up by a review of action, intelligence gathering, and other activities with respect to domestic terrorism, what will that mean for this committee, both with respect to the mechanics of effective review, as we've discussed it, and equally important, with respect to its role, as has been described by Professor Wark, as an educator and as an outreach mechanism to the Canadian public?

My hunch is that the Canadian public isn't at par even with the parliamentarians who will be appointed to this committee with respect to an understanding of national security, and this committee will face some constraints in terms of bridging that gap.

I wanted to hear from you what levers are reflected in the bill and what levers are at our disposal administratively or in terms of resourcing this committee to make sure it can play that role well and enhance public trust in government.

[Prof. Kent Roach]

Yes, if there was only one amendment, it would probably be to clause 14, that is, to take out paragraph (g), just to argue that the new parliamentary committee needs the same access as SIRC has, but also needs to work as closely as possible with SIRC, the CSE commissioner, and the RCMP review body. Indeed, I think there is some potential that the secretariat of the new committee, which I think will be critical to its success, could work with those existing review bodies that have the confidence of the agencies. Although the idea of having to win trust from the agencies is not a particularly palatable one for an affected parliamentarian, I think that reforming clause 14, which, as my colleague has said, is a very broadly defined no-go area, will undermine public expectations about what a parliamentary committee could do, say, with respect to something like the Afghan detainees, while working closely with the existing review bodies.

I guess one of my greatest fears about Bill C-22 is that it could lead people to think that this is somehow duplicative of the work of the existing review bodies. The Arar commission found that the review structure was inadequate in 2006, and it could be seen to be much more inadequate today after Bill C-51. There needs to be a very close relationship between the new committee and the existing review bodies. I think this will benefit the executive watchdog review and will help the new parliamentary committee to gain credibility while being educated about where they should be placing their limited resources and time.

[Wesley Wark]

I'm an optimistic academic and I'm convinced that the government will, indeed, move to fulfill its election promises to amend the problematic aspects of Bill C-51 that are now embedded in different forms of legislation.

With regard to your best path forward, I've said that this isn't perfect legislation. I've suggested, as Mr. Atkey has done, that elements of it can change. What I would really see, and I agree fully with Ron on this, is this legislation passed in some form in this parliamentary session to allow us to get on with the work. It will be reviewed in five years.

I would be more encouraged to see a genuine all-party consensus on revised legislation. That would be a big achievement. I'd care less about the exact details of how you're going to revise it. I think there are certain elements of it that you should focus on. I wouldn't focus on the membership questions. I would do some fine-tuning of the powers of the committee in terms of access to information and the exclusionary elements that it can't get into. Elements of that can be fine-tuned, but I don't think you need to go through the whole thing with a fine-toothed comb. Large elements would stand.

If, at the end of the day, you're happiest in an all-party sense to just pass the legislation as it is, I would still, in a way, cheer to the heavens. I've been waiting for a very long time to see this kind of parliamentary activism on national security, and the biggest benefit it will have in the long run will be to better educate Canadians about the realities and challenges of national security and intelligence work in Canada, where I think we have a profound democratic deficit.

[Ron Atkey, Adjunct Professor, Osgoode Hall Law School, York University, As an Individual]

Thank you, Mr. Chairman, members of the committee. I thank all of you for the invitation to appear to assist your study of Bill C-22.

Like my friend Wesley Wark, I believe this represents a major and welcome change within our Canadian parliamentary system. I say this having been both a parliamentarian for two short terms under Liberal and Progressive Conservative governments, as well as the first chair of the Security Intelligence Review Committee in 1984-89.

It's a major change because it accepts the recommendation, as Wesley pointed out, of not only the Macdonald commission in the seventies, but also the of the Mackenzie commission in the sixties. It goes back to there, where they recommended some form of parliamentary oversight committee.

I recall that at the time Canadian governments and their security agencies were a bit hesitant at allowing elected MPs into the national security tent, because there was no assurance that they could keep security information a secret in the red-hot political environment in Ottawa. There was some concern among our allies at the time that elected members of Parliament should have access to the most secretive of all secrets, let alone have the time and inclination to monitor closely the vast array of departments and agencies with various security issues.

I must admit that when I was the first chair of SIRC, in 1984, our committee of privy councillors, and we were from different political parties, all went along with the notion that expert review of security intelligence was something that should be done only by independent persons of experience who could talk to MPs to get their views without necessarily giving them the secret information they might otherwise be interested in.

Bill C-22 represents a welcome change to that way of thinking—welcome in the sense that we saw Canada in the last three decades fall behind our parliamentary cousins in the United Kingdom and Australia in terms of accountability to Parliament, and we have now the chance to get caught up. It's welcome also in the sense that the important parliamentary debates in this century, particularly after 9/11 on Bill C-36, and after the 2014 attacks in Ottawa and Saint-Jean-sur-Richelieu on Bill C-51, were overly partisan, in my opinion, and not as well informed in the absence of a committee of parliamentarians such as the one being proposed.

I have some amendments. You asked me a couple of weeks ago what I would propose, and let me suggest just a couple. Let me say at the outset I emphasize that this is a good bill and it should be passed in this session of Parliament. It will help to ensure Canadians that their elected representatives will play a key overview role in accountability for the important but dangerous powers granted to some 17 departments and agencies that relate to national security.

Is it a perfect bill? No. Are there areas where amendments can be considered to improve the bill? Yes. Will this bill fix all the problems of BillC-51 and companion legislation that have concerned many Canadians over the last 18 months? Not at all. This bill is a first good step, but it should not be an excuse for government in action on fixing Bill C-51 during the remainder of this Parliament.

First of all, I suggest amendment on ministerial veto. Have a close look at this. The possibility of the proposed committee's work being frustrated by any minister determining that the review of his or her department would be injurious to national security is overly protected and should be removed or modified.

No such veto existed when I chaired SIRC between 1984 and 1989. And yes, there were tensions from time to time with CSIS, the body we were reviewing, but matters were worked out as they are in a reasonable context of being within the security tent. To my knowledge, no security operations were compromised at the time.

The language of BillC-22 in paragraph 8(b) reflects a reluctance to have the committee of parliamentarians act as a true watchdog.

Access to information is the second of my amendments. In order to do its work, the committee is rightly given access in clause 13 to any information that is under control of the department. This is a key for any watchdog to be effective, yet there are important exceptions in clause 14, which are well understood and accepted in the security intelligence community. I accept those for the most part.

However, then comes the discretionary refusal of information in clause 16, where the minister has decided that the provision of the information would be injurious to national security or would constitute special operational information. That's the nub. This is open-ended and dangerous in my opinion. Yes, the minister must tell the committee the reasons for the open-ended refusal, and this should be considered by way of amendment. But I think other investigative work of the committee may be frustrated if this is retained in its current form.

The third area of amendments relates to prime ministerial redactions.

A broad power is given in Bill C-22, in subclause 21(5), allowing the PM to direct the committee to submit a revised report to Parliament, one that has been censored for reasons of national security, national defence, or international relations.

This is a matter that was litigated between the Arar commission and the Harper government in 2007. Here I make full disclosure that I was participating in that case, as counsel on behalf of the Arar commission. The court had to consider, in that case, some 2,000 words in dispute in the commission's final report. Justice Noel found that a half of them should be disclosed in the public interest and a half of them should remain confidential.

The directed wording of Bill C-22 would preclude this court adjudication and would give full power to the PM and his officials to censor committee reports he doesn't like, with no explanation. At the very least, I think when he directs redactions, he should have to give the committee a detailed reason for his decision in camera, as in the case with ministerial refusals of information under subclause 16(2).

Finally, I recommend some form of dispute settlement system for some of these contentious matters, whether it's paragraph 8(b), or subclauses 16(1) or 21(5), the ones that I've just mentioned. They should be subject to in camera dispute settlement in the courts.

In my experience, the nine designated judges of the Federal Court have the proper structure and experience to adjudicate balancing the need for government secrecy against the public interest in disclosure in accordance with law.

In my concluding comments with respect to general structures and powers, let me offer three observations.

I do appreciate that Bill C-22, as it stands, is an initial step for Canada in letting parliamentarians into the national security tent, and that's good. But these observations of mine are not meant to deter Parliament from proceeding promptly in this parliamentary session.

First of all is the appointment of the chair. This was raised in the debate on second reading in the House. To ensure that the committee is truly a creature of Parliament, couldn't the chair be elected by Parliament, rather than appointed by the PM?

In a majority government situation, the PM's preference would likely proceed but, remember, this is permanent legislation and there may come a day when a minority Parliament might want to elect a member of the official opposition as chair. I think you might consider the long-term implications of that.

Second is the selection of members of the committee. Consultation on selections by the Prime Minister with leaders of the opposition parties, which is provided in Bill C-22, has worked in the past when there has been genuine consultation and not simply notification. But to ensure that the system is not abused for partisan purposes, there should be ratification of all members of the committee by Parliament itself. I think that would just be a good check that you might want to build into the system.

Finally, and I hesitate to sound like a lawyer on this, while you're not going to be establishing a committee that's a court of law or an administrative tribunal acting accordingly in the judicial context, the committee of parliamentarians, in carrying out its statutory review under clause 8 of Bill C-22, may require, and should require, subpoena power to summon witnesses, compel testimony on oath or affirmation, and require the production of all necessary documents.

This may be necessary where public servants are reluctant to respond to reasonable requests by the committee, or in situations where private sector individuals have particular knowledge about a security activity being carried out by a particular department. I think you might empower your committee of parliamentarians to have these particular powers.

In conclusion, Bill C-22, in its current or amended form, represents an historic opportunity for Canada to bring accountability for security intelligence into the 21st century.

My hope is that whatever form of bill emerges from these committee proceedings, it ultimately enjoys the complete support of Parliament as a whole, both here and in the other place.

Building trust, in my experience, is a two-way street. Parliamentarians have to be prepared to put in place a review system that has the respect and support of all members working co-operatively within the security tent to ensure there is a proper balance in the system that protects Canadians, yet respects rights and freedoms.

Similarly, government departments and agencies must recognize and respect that parliamentary security review operating within appropriate boundaries is not a nuisance, and that it means, ultimately, a stronger and more accountable form of government for the benefit of all Canadians.

I look forward to answering your questions. Thank you.

[Wesley Wark, Visiting Professor, Graduate School of Public and International Affairs, University of Ottawa, As an Individual]

Chairman, members of the committee, it's a great pleasure to have the chance to give testimony on Bill C-22, An Act to establish the National Security and Intelligence Committee of Parliamentarians .

I'd like to begin by making some brief contextual remarks about the legislation. Genuine parliamentary capacity to scrutinize intelligence and security has been a long-time coming in Canada. Having such a body was first proposed by the McDonald commission over 30 years ago, but was rejected by a special Senate committee established to review the commission's report and recommendations. Instead, we got a different accountability mechanism back then, the Security Intelligence Review Committee, established with the CSIS Act in 1984.

Despite various efforts to bring forward legislation in subsequent years, including several attempts in recent years, Bill C-22 marks the first time that a legislative proposal supported by the government has come to a standing committee for hearings.

Much wasted time has passed and much has changed in the intervening years. The necessity for a committee of parliamentarians of the kind envisaged by Bill C-22 is irrefutable, in my view. We have been left behind by the efforts of our allies in legislative branch scrutiny. The Canadian security and intelligence community, which will be the subject of the reviews conducted by the proposed committee, has undergone tremendous change, in particular since the 9/11 attacks, and now benefits from much greater resources, capacity, and power than it has ever experienced in Canadian history.

With that increase in power comes a corresponding increase in the need for strategic level scrutiny of the activities of the security and intelligence community as a whole and a crying need for real parliamentary capacity. In addition, the Canadian public is much more attuned to security and intelligence issues than in the past and there is a much higher expectation in the public domain for the delivery of accountability, transparency, and adequate public knowledge.

I fully support Bill C-22. I think it represents a necessary and timely experiment in parliamentary democracy and activism. I give full credit to the Liberal government for seeing the importance of parliamentary scrutiny of security and intelligence and for making this a centrepiece of its response to the previous government's anti-terrorism legislation, Bill C-51, and for making it a promise in their election platform.

I don't think Bill C-22 is perfect, but Parliament will have to decide how significant the gaps might be between a perfect scheme and something good enough for a start-up. If we are honest, this is what Bill C-22 represents, a start-up. It's the beginning of a delayed experiment in parliamentary scrutiny, which requires, of course, robust legislation, but which will also be dependent on many other factors and will require a period of maturation before it can become fully effective.

This has been the experience of the U.K.'s Intelligence and Security Committee of Parliament, on which the Canadian legislation is clearly based. The U.K. committee was created in 1994, has over 20 years of experience, and was granted revised powers and procedures in legislation in 2013.

The success of the proposed national security and intelligence committee of parliamentarians will depend, beyond robust legislation, on many factors, including strong membership, reflecting the stature of the committee, which makes it a highly desirable place for MPs and senators to aspire to a seat around the table; a steep learning curve about the complex domestic and international dimensions of intelligence activities; the trust of key agencies in the security and intelligence community; earned legitimacy in Parliament; and last but not least, and perhaps most important of all, public legitimacy, twinned with an understanding that one of the key roles of the a national security and intelligence committee of parliamentarians is to build and sustain public understanding of the role and challenges of intelligence and security endeavours in a democracy.

It seems to me that these are the challenges ahead for the committee, but to meet them the committee will need the right legislative tools.

In terms of having the right legislative tools, Bill C-22 has to find what I would call a “sweet spot” between committee access to secrets and the protection of secrets. Finding this sweet spot is the challenge before you in your study of this legislation. That sweet spot can be examined under five headings, all of which are core elements of Bill C-22: membership, mandate, powers, resources, and protection against leaks.

In the time remaining, I propose to make some short remarks about the strengths and weaknesses of Bill C-22, as it currently stands, under those five headings.

First of all, I will discuss membership. My plea to the committee would be not to too hung up on membership, though I imagine you might well do that. The key thing is having good members and instilling a culture of non-partisanship. How you arrive at those members is something that you'll have to determine. It's certainly the case that the Canadian proposal in Bill C-22 falls a little behind the revised procedures currently being used by the U.K. Intelligence and Security Committee of Parliament, but I hope this doesn't become the overweening focus of the committee's deliberations.

Mandate is the second issue.

The mandate proposed for Bill C-22 is very broad, and that's good, but it comes with challenges. There are core agencies of the security and intelligence community that will preoccupy the committee and take up almost all of its time. I would prefer to see these core agencies named, as is the case with the legislation for the U.K. intelligence and security committee.

You can of course maintain the broad mandate while still naming the key agencies that are going to be the subject of your work, by adding an additional clause indicating that other government departments and agencies would be under the purview of the committee as required and as it pursues its mandate. I think, however, that it's critical to name those core agencies, in part to assist the committee in coming up with a useful work plan and in part to help the public understand what its expectations around the reporting of this committee will be.

I would also add under mandate that it would be important to include something that does not currently fall under the mandate, which is a direct reference to operations. By operations I mean past operations. This area should be listed as part of the mandate of the committee, as is the current U.K. practice.

I'm going to skip over powers for a minute and turn to resources. The Bill C-22 provisions for a secretariat are, I believe, excellent. I had the opportunity to talk to the visiting intelligence and security committee delegation that travelled to Ottawa recently, and this was one of the things they commented on. They clearly felt some degree of jealousy about the explicit provisions for resources for a secretariat and for the leadership of that secretariat. This is one of the strongest pieces of the Bill C-22 legislation. I hope it will be supported and sustained.

Protection against leaks is a question of finding the sweet spot between access to secrets and protection against the inadvertent or deliberate revealing of secrets. The measures that are provided in Bill C-22 to protect against leaks are clearly overwrought; they go beyond the kinds of measures that were proposed in previous versions of draft legislation.

They're overwrought in imposing a security clearance requirement on members. I say “overwrought” in that regard because it is very likely that members of the national security and intelligence committee of parliamentarians would not be cleared to the highest levels, in part because I can't quite imagine MPs and senators wishing to undergo polygraph examination.

I also think it's completely unnecessary. All it really needs is what was proposed in many versions of previous legislation, which is reliance on an oath of secrecy as the principal protection required, with an assumption of trust with regard to the behaviour of MPs and senators sitting on the committee. A properly administered oath of secrecy, surrounded by the kinds of protections you'll need with regard to documents and document handling that would be enforced by the secretariat is in my view sufficient. From my perspective, I think the government overplayed its hand here.

That leads me to the final point, which is about powers. I suspect this will be one of the most contentious issues you'll have to address in this committee. Again, I would urge you to think about these powers in the context of that sweet spot between access to secrets on the part of the committee and protecting legitimate secrets held by the government and provided to the government, possibly by many of our allied partners.

There are many complicated provisions contained in Bill C-22 with respect to access to records and in respect to reporting. I'm not going to run through these in detail. The point I would simply like to make is that in comparison with the U.K. legislation, which I think could usefully be our guide here, the legislation in Bill C-22 goes a little further than necessary. It's too complex and can be usefully simplified around the protection of intelligence sources and methods and around any kind of divulgence that might impact upon the proper working of intelligence and security agencies.

A lot of the other kinds of clauses and exemptions in terms of access to reports or the nature of reporting that could be done I think are frankly unnecessary. I think it could be very helpful in terms of the committee's work, Parliament's understanding of its work, the public's understanding of its work, and removing any suspicions about excessive executive control over this committee if all of those efforts to corral access and reporting could be vastly simplified.

One thing, in particular, that I want to draw the committee's attention to is to be careful about including in C-22 an exemption to access and reporting that refers directly to operational information. That is a reference to the Security of Information Act, and the definition of operational information in the Security of Information Act, which was passed as part of the Anti-terrorism Act in 2001, is extremely broad and, if it were read literally, could really bring the work of the committee to a halt. My main message is that this part of C-22 could be usefully and practically simplified.

Just by way of quick conclusion, there are two things I would encourage the committee to do as it scrutinizes C-22. First, seek genuine parliamentary consensus on an acceptable form of legislation, and practice bipartisanship as you do so. It seems there is a good amount of bipartisanship already, in terms of the sharing of ice cream going on, so this is a good sign.

I say this because consensus and bipartisanship are going to be the working ethic of the committee that is established. It would be a good place to start, to think about these things in this committee.

Second, keep in mind that the proposed national security and intelligence committee of parliamentarians is a start-up and will be reviewed after five years, and accept that there is no perfect formula for balancing secrecy requirements and access requirements. Pease don't spin your wheels too much on that.

I'll end with a quote. As General William “Wild Bill” Donovan was fond of saying during his leadership of the Office of Strategic Services in World War II, “Perfect is the enemy of the good.”

Thank you.

[Sukanya Pillay]

I admit that I may talk to people who tend to already be interested in this issue, but certainly I've talked to people who aren't.

However, I saw a coming together of Canadians on Bill C-51 and a concern about the scope of information sharing that I hadn't seen before in recent years. Based on that and based on the response that CCLA had to the application that we brought and the very specific grounds in our application that referred to SCISA in particular and also broadly to Bill C-51, my answer is that we had a swell of support among Canadians.

I would also point out that other colleagues among civil liberties organizations had petitions that were signed by hundreds of thousands of Canadians, so I think that Canadians are very concerned. We don't want an all-government all-knowing all-the-time society. We don't want an all-surveillance society.

We also recognize in this country that legitimate dissent and protest and disagreement and counter-speech are constitutionally protected rights in Canada, regardless of whether those opinions are directed at the Canadian government or a government anywhere else in the world. Provided that they don't engage in violence, these are activities that are protected. My view, based on the evidence of who signed up and who donated to the campaigns that we launched in this regard, is that Canadians are very much on board with protecting our privacy and making sure that any information shared is necessary and proportional.

[Pierre-Luc Dusseault, NDP, Sherbrooke, QC]

Thank you, Mr. Chair.

To respond to Mr. Massé, I would say that this was done during the previous Parliament, in Bill C-51.

The mistake too many governments make is to respond to unique, one-time situations by passing laws. Sometimes those laws are too radical and have unexpected consequences. Moreover, they are not necessarily adopted in the public interest, but rather in the political interest of a government. Unfortunately, many members in the previous Parliament fell into the C-51 trap.

That said, I would like to go back to the issue of the oversight of national security organizations and by the organization that will be created if Bill C-22 is adopted.

What do you think of the idea that existing oversight bodies, and the one that will be made up of parliamentarians, examine information in real time rather than information on past situations? Would it be appropriate that all of the oversight organizations, including the one made up of parliamentarians, have the information immediately, and not after the fact?

My question is addressed to you, Mr. Forcese.

[Prof. Craig Forcese]

I'll start, and then Kent can jump in.

The Wakeling case involved information shared by the RCMP to American authorities under what's known as part VI of the Criminal Code, which is the wiretapping provision. It was a lawfully gathered wiretap that complied with the charter, and that information was then transmitted to the United States. The Supreme Court concluded that even though the information was lawfully collected, it was still subject to charter privacy protections that had to govern the manner of information sharing.

In that case the RCMP, under part VI of the Criminal Code, was successful in defending the constitutionality of that information sharing, because there was enough architecture in part VI that defined who was going to receive the information and it imposed safeguards on how that information would be transmitted. The court along the way, incidentally, made a point of noting the Arar case as an example of where things can go awry in information sharing.

Now transpose the holding in that case to the context for CSIS under the CSIS Act and for the Communications Security Establishment under the National Defence Act. There is none of the architecture that rendered the Criminal Code constitutional. None of that architecture is found in the CSIS Act or the National Defence Act, and yet those two agencies, CSIS and CSE, are elemental bodies in information sharing for the purposes of supporting Five Eyes activities and others.

I think Professor Roach and I were surprised that the government didn't take the opportunity in either Bill C-51, or before that in Bill C-44, to introduce that architecture to put this vital information sharing on sounder constitutional footing.