Bill S-220 (Historical)

Intelligence and Security Committee of Parliament Act

An Act to establish the Intelligence and Security Committee of Parliament

This enactment establishes the Intelligence and Security Committee of Parliament and sets out the composition, mandate and duties of the Committee.

[Matthew Dubé, NDP, Beloeil—Chambly, QC]

I move the amendment, Chair.

Let me say that this is, if not the key issue, certainly one of the key issues for us. It's something we've been hearing from witnesses, of course, but it's also, interestingly enough, the same language as in a Liberal MP's bill from the previous Parliament, a bill tabled by our colleague Joyce Murray—Bill C-622—and of course Bill S-220, sponsored by former Senator Segal, whom we had the chance of hearing in Toronto. Wesley Wark, whom we heard during the study, called the amendment we're proposing “an ideal scheme”.

I think it's challenging, because on the one hand we have the discretionary powers of blocking investigations and on the other hand we have this situation concerning what information is already available to begin with to the committee. We heard SIRC, for example, say that they can collaborate with the committee and that it's okay and the committee doesn't need the same powers, but the fact of the matter is that a great many bodies covered by this bill don't actually have oversight—we can think of CBSA, among others—and this committee will be the only review body available.

We can look at this narrow view of saying that SIRC already has access to this information and therefore the committee doesn't need it, but it's much broader than that, and that is certainly something we've heard from witnesses.

While I know that the process on this bill has been perhaps more difficult than we had hoped it would be, it's hard for me to envision a scenario whereby we can gain public trust as well as the trust of the parliamentarians on the committee. As well, as Mr. Rankin pointed out earlier today, while we may trust the current government, we don't know what the future holds for us. We need to get this right, and now, and I think that this full access to information is the way to do it.

[Wayne Easter, Liberal, Malpeque, PE]

Okay. Let me come back to Mr. Cooper then.

Have you seen either Hugh Segal's bill, Bill S-220, or the other one before Parliament that proposes oversight by parliamentarians?

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

Thank you, Mr. Chair.

Members of the committee, I'm honoured to be invited to appear before you regarding this important bill, which has certainly captured the attention of so many Canadians from across the country and internationally

My interest and background concerning this subject is set forth in my short form resumé that is attached to my speaking notes in both official languages. In the interests of time, I'm going to omit that information from my opening statement, although you should feel free to ask any questions.

Given that the government and one opposition party have already indicated support in principle for this bill, I want to indicate that I am not here to destroy the bill. Rather, I want to assist in proposing some practical amendments that would improve it and perhaps save its constitutional legitimacy and integrity. Like so many others in Canada, I accept, based on known evidence, that the current terrorist threat to Canada's security is real and that enhanced measures are necessary for major agencies such as CSIS, RCMP, CBSA, and Transport Canada to combat this threat through lawful means.

In the few minutes I have today, I want to deal with five important matters. First, is constitutionality and the independence of the judiciary. Second, I'm going to touch on freedom of expression; third, on the issue of fairness; fourth, on effective review by SIRC and others; and fifth, on parliamentary overview, which is something you should consider.

Constitutionality and the independence of the judiciary go right to the major flaw in the bill. Part 4 authorizes the Federal Court to issue a warrant to CSIS to take measures that may contravene a right or freedom guaranteed by the Canadian Charter of Rights and Freedoms. This provision, in my view, is clearly unconstitutional and will be struck down by the courts.

The existing charter already has a built-in limitations clause authorizing reasonable limits where necessary in a free and democratic society, and proportionality applies to those limits based on almost 33 years of charter jurisprudence. If Parliament wants to invoke the notwithstanding clause, it is free to do so under this Constitution, although no federal Parliament has had the courage or need to do so since the charter was proclaimed in 1982.

I ask you, why provoke an avoidable constitutional challenge? Canadian judges are fiercely independent and are not agents of the government who can be mandated to authorize measures at all costs to protect against terrorist threats. Federal court judges have carefully authorized or rejected wiretap applications since 1984, under existing section 21 of the CSIS Act. I have seen or reviewed some of those applications and judicial decisions. The process of judicial control of wiretap warrants applications works today.

Why, in drafting new parallel provisions in proposed sections 12.1 and 21.1 of Bill C-51 respecting additional measures, do you need to instruct the judges to totally ignore the charter and to allow CSIS to violate constitutional obligations in order to take these additional measures beyond wiretaps? This notion of Parliament authorizing a charter breach, short of using the notwithstanding clause, is clearly unconstitutional and is not consistent with our constitutional tradition and the way in which section 1 of the charter operates.

You can avoid this constitutional mess by redrafting proposed section 21.1 of Bill C-51 to provide that any warrant that permits CSIS to take measures thereunder will not contravene a right or freedom guaranteed by the Canadian Charter of Rights and Freedoms.

I have a bit to say on freedom of expression, but in the interests of time I'm going to jump over that and urge that you consult the documents tabled and positions represented before you by my colleagues, Craig Forcese, from the University of Ottawa law school, and Kent Roach, from the University of Toronto. They have dealt with this in detail, and I don't have the time to go through it today.

Similarly the provision of fairness, which is guaranteed by section 7 of the charter, states:

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

This, ladies and gentlemen, is the provision and constitutional requirement of fairness. It's embodied in the special advocates, and I happen to be a special advocate, so I know a bit about that role. I think there is a role for special advocates to provide fairness in a number of the warrant proceedings, a number of the no-fly list proceedings, and you should actively consider that.

I do want to jump right into some of the issues that I know are before you and which I know something about, and that's the question of effective review by SIRC and others.

Now, I have publicly defended the structure of SIRC, which was established in 1984 as the CSIS watchdog. I had the honour to be the first chair. It was effective at the beginning, even though there were growing pains as CSIS broke off from the RCMP and struggled initially to incorporate women and outsiders. The SIRC structure has worked where the only body being reviewed was CSIS and the monitoring of CSIS's extraordinary powers was manageable. That was 1984. Things have changed over 30 years.

First, the CSIS budget, personnel, and powers have grown exponentially while the watchdog budget remains pretty much the same. It is unfair to dramatically expand CSIS powers to conduct disruptive or international activities to fight terrorism at home and abroad while leaving the watchdog frozen in time. Failure of the government to address this issue in the context of Bill C-51 is irresponsible. The public has a right to be concerned whether SIRC can do the job going forward.

Second, this debate on Bill C-51 has caused the public to reflect unfavourably on the scattered and uneven nature of review concerning a variety of federal agencies involved in security matters. There have been concerns about the extent of independent review of the RCMP and CSEC, and the absence of independent review of such important agencies as CBSA, Transport Canada, DFAIT, CIC, and 20-odd other federal agencies, not to mention provincial and municipal police forces involved in security intelligence work.

Whether we need to adopt a federal security czar to supervise, monitor, and coordinate security agencies, as is done in the U.S., or to develop a super-SIRC with expanded powers of review and accompanying budget, or to have statutory gateways to achieve accountability, as recommended by the O'Connor report in 2006, this is an issue that cannot be left aside as Parliament gallops ahead on Bill C-51.

This is not a question of oversight, which has become misused as a term. Responsibility for the planning and conduct of anti-terrorist activities in accordance with the law remains, in the first instance, subject to ministerial approval and approval of warrants by judges based on court applications submitted by appropriate agencies under the detailed requirements of the relevant legislation. This is oversight. Review bodies do not approve operations in advance, but they do ensure accountability after the event, to ensure that hopefully all agencies exercising security functions are effective and operate within the law. They engage the public through exhaustive annual reports tabled in Parliament with a minimum of redactions, redactions that are necessary for protecting individuals or methods of operation.

Let me conclude by talking about parliamentary overview. What are the responsibilities of Parliament other than to ensure that Bill C-51 is improved to allow the legislation to go forward and to assist government agencies to deal effectively with the terrorist threat while protecting fundamental rights and freedoms under the charter?

Members, I have been both a parliamentarian and a watchdog, a professional watchdog. The answer to whether Parliament or a specialized agency should have the power to review our security agencies is easy for me. Canadians should have both. Under our system of government, Parliament is the ultimate watchdog and is directly accountable to the people. The party having the most number of seats at each general election usually is called on to form the government, but Parliament itself remains the watchdog.

There is nothing inconsistent in having specialized security-cleared watchdogs created by Parliament covering the effectiveness and legality of various agencies involved in security work and having a committee of security-cleared parliamentarians charged to oversee the whole system—that is, to take a prompt overview of the situation when problems occur, which they inevitably will in this business, and to delegate the investigative responsibility to the appropriate specialized watchdog.

Indeed, there are three bills currently before Parliament calling for a committee of parliamentarians on national security. The one I like the best is Bill S-220, introduced by former Conservative Senator Hugh Segal. It calls for a committee of nine—three from the Senate, six from the House—to be appointed by the government but after consultation with opposition parties and approval of the appointment by a resolution of their respective houses.

There are provisions for appropriate security and confidentiality of each member of those committees, and the mandate would be to review the legislative regulatory policy and administrative framework for the intelligence and national security in Canada.

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

Thank you, Mr. Chair.

Ladies and gentlemen of the committee, it's a privilege to appear before you. I'm grateful for the opportunity. I'm the long-winded witness, so I'm going to read a condensed version of my statement.

Since the 9/11 attacks, the role of intelligence in Canadian national security policy has been revolutionized. Canadian intelligence has become more significant, more powerful, better resourced, more closely aligned with allied partners, and more globalized in terms of its operations and capabilities. As an important constituent of what is called the Canadian security and intelligence community, the Canadian Security Intelligence Service, CSIS, has undergone its share of revolutionary change since 2001. CSIS has become, de facto, a hybrid service, required to deal with an ever-expanding range of threats to national security and to operate both at home and abroad.

The issues that arise with regard to Bill C-44 reflect the fact that CSIS’ functions have changed enormously since the 9/11 attacks, and also, clearly, since the passage of the original CSIS Act itself, and have changed both in terms of the kinds of threats that CSIS must operate against and in terms of its geopolitical scope.

In my specific remarks on C-44 I intend to focus on what I think are its key provisions regarding CSIS overseas operations, including those targeting Canadians. C-44 would add clarifying language to section 12 of the act, indicating that in the performance of its security intelligence function it can operate both within and outside Canada. It further adds that Federal Court judges may issue warrants to allow CSIS to collect threat-related intelligence on Canadians abroad under its section 12 powers. C-44 also stipulates, in amendments to section 21 of the CSIS Act, that CSIS may apply for warrants to conduct section 16 operations, that is, the authorized collection of foreign intelligence within Canada.

To understand the key elements of Bill C-44 we need to put these in the context of a series of judgments made by the Federal Court with regard to CSIS extraterritorial warrant applications. This history begins in 2005 and follows a winding and complex path down to the present. There is not time in these hearings to adequately summarize this history, but let me note that the current stage was set by a ruling from the Federal Court of Appeal this past summer, which has been followed by an appeal by the Attorney General to the Supreme Court that remains pending.

In his application for leave to appeal, originally dated September 29, 2014, and unsealed in November of this year, the Attorney General summarized what was at stake as follows, “This case is about how the Canadian Security Intelligence Service (CSIS) may lawfully enlist the aid of foreign security agencies in monitoring the activities of that small number“ of Canadians who leave the country to engage in activities that threaten national security.

Whatever is ultimately decided by the courts with regard to the lawful enlistment by CSIS of foreign security agencies, there are other issues of principle and practice at stake. The most important such issue concerns sovereign control. To enlist the aid of foreign security partners, such as the Five Eyes countries, in intelligence sharing is one thing. To outsource intelligence collection to a foreign partner, no matter how close and trusted an ally, is another. Outsourcing means potential loss of control of an operation, loss of control of Canadian intelligence, and loss of control over outcomes. The Security Intelligence Review Committee commented on this matter by saying:

The risk to CSIS, then, is the ability of a Five Eyes partner to act independently on CSIS-originated information. This, in turn, carries the possible risk of detention or harm of a target based on information that originated with CSIS. SIRC found that while there are clear advantages to leveraging second-party assets

—that is, the Five Eyes countries—

in the execution of this new warrant power

—the so-called CSIS 30-08 warrants—

—and, indeed, this is essential for the process to be effective—there are also clear hazards, including the lack of control over the intelligence once it has been shared.

C-44 cements the evolution of CSIS into a hybrid agency that conducts both domestic security intelligence and foreign intelligence missions. Clarification of the legal standing of CSIS in these regards poses the danger of closing off discussion of the eventual need for a separate foreign intelligence service as a better solution to Canada’s intelligence needs, and a solution much more in keeping with the practices of our close Five Eyes partners.

More important than what C-44 does is the question of what it does not do. What it does not do is provide any sensible underlying definition of the kind of hybrid agency that CSIS has now become, and it does not provide any added controls, accountability measures, cooperative frameworks, or transparency measures around increased overseas operations by CSIS.

I want to conclude with a selection of some of the issues that I see arising from Bill C-44.

Bill C-44 applies legal band-aids to the conduct of section 12 and section 16 operations, only because we persist with a wholly artificial legacy distinction between security intelligence and foreign intelligence. CSIS officials used to make the distinction between security intelligence and foreign intelligence in terms of security intelligence being what Canada needed to have and foreign intelligence being a category of knowledge that it might be nice to have.

In a post-9/11 world, I would suggest that a distinction between foreign and security intelligence is meaningless for Canada, and the fact of its meaninglessness underscores the need for a more root-and-branch redrafting of the CSIS Act itself.

Having decided to appeal to the Supreme Court, the Federal Court of Appeal's ruling with regard to the Mosley judgment on CSIS' use of extraterritorial warrants, the legislative provisions of Bill C-44 may be rendered null or may require further amendments, depending on whether the Supreme Court agrees to hear the appeal and depending on the nature of its findings.

The Federal Court of Appeal's decision was available to the government long before Bill C-44 was tabled. Why the government decided go down two separate forks of the road, with partial amendments to the CSIS Act and with an appeal to the Supreme Court, when these two forks might well bring them to a collision at a future junction, remains a mystery to me.

Bill C-44 does not add any new provisions to the CSIS Act to ensure proper consultation between the service and its minister, the Minister of Public Safety, and the two departments most likely to be impacted by expanded CSIS overseas operations—the Department of Foreign Affairs, Trade and Development and the Department of National Defence. Both of these departments engage in their own overseas intelligence and information collection through dedicated branches.

Bill C-44 does not add any statutory requirements on the part of the CSIS director to inform the minister with regard to the undertaking of sensitive overseas intelligence collection. The most recent SIRC annual report found that CSIS needed to keep the minister more fully informed about foreign operations and section 16 investigations. SIRC, in a special study of what it calls a “sensitive CSIS activity” also urged that CSIS reporting to the minister be done in a “formal and systematic manner”.

These are indications that not all is well in terms of the relationship between the service and the minister, and that ministerial accountability for CSIS may be less rigorous than it should be.

Bill C-44 does not restore the functions of the Inspector General's office, originally established in the CSIS Act in 1984, and closed down by the government as part of an omnibus budget implementation bill in 2012. The role of the Inspector General as the “eyes and ears of the Minister” might be considered all the more critical in an age of expanding CSIS overseas operations. As the former long-serving CSIS IG, Eva Plunkett stated that the abolition of the IG function was a “huge loss” for ministerial accountability.

Bill C-44 adds no new clarifying mandate or resources for the Security Intelligence Review Committee, in keeping with the statutory provisions authorising CSIS collection under section 12 abroad.

Last but not least, Bill C-44 is silent on the issue of the need for a dedicated, security-cleared parliamentary committee to ensure the ability of Parliament to properly scrutinize the activities of CSIS and related Canadian intelligence agencies in an age of globalized operations and diverse threats to national security. Such a committee of Parliament was recently proposed by Joyce Murray in her private member's Bill C-622, and has also been proposed in the Senate Bill S-220 advanced by now-retired Senators Hugh Segal and Romeo Dallaire. And Wayne Easter of this committee earlier offered the House a similar version of proposed legislation, Bill C-551. The government continues to deny the need for such a new structure, despite all-party support for just this thing in 2005.

In conclusion, Bill C-44 in my view is a poor quality band-aid. It may also be a very temporary one, depending on a future Supreme Court ruling. It is unimaginative and it fails to address the most significant legacy issues around the CSIS Act, which is now 30 years old and was created for a different threat environment, in a different technological age, and in a different climate of democratic legitimacy.

It persists with an artificial statutory distinction between security and foreign intelligence, offers insufficient clarity about CSIS powers, and offers no new measures of transparency and accountability concomitant with the new and increased role being played by CSIS.

Thank you.