Bill C-22 (Historical)

An Act to establish the National Security and Intelligence Committee of Parliamentarians and to make consequential amendments to certain Acts

This enactment establishes the National Security and Intelligence Committee of Parliamentarians and sets out its composition and mandate. In addition, it establishes the Committee’s Secretariat, the role of which is to assist the Committee in fulfilling its mandate. It also makes consequential amendments to certain Acts.

National Security and Intelligence Committee of Parliamentarians Act

[Joël Lightbound, Liberal, Louis-Hébert, QC]

Mr. Speaker, as I was saying earlier before being interrupted for oral question period, I think that Bill C-22, to establish an independent committee of parliamentarians to oversee the actions of our intelligence agencies, is a step that should have been taken long ago.

For example, the United Kingdom has had such a committee since 1994. Australia formed one in 1988 and New Zealand in 1996. Canada is at least a decade behind. The step we are taking today is way overdue, as they say.

When Parliament was passing Bill C-51, four former prime ministers, namely Jean Chrétien, Paul Martin, John Turner, and even Joe Clark, a Progressive Conservative prime minister not a neo-conservative, recommended that this oversight committee be formed. They recommended oversight of Canada's overseers and said that it would take an independent committee that would be called to review the actions of our intelligence agencies. These four former prime ministers were accompanied by a host of former Supreme Court justices and former justice ministers, including Irwin Cotler, for example.

According to them:

Accountability engenders public confidence and trust in activities undertaken by the government, particularly where those activities might be cloaked in secrecy. Independent checks and balances ensure that national security activities are protecting the public, and not just the government in power.

Consider the extent of the resources used in the name of security in Canada. Communications Security Establishment Canada, which I am more familiar with than the other intelligence agencies such as CSIS or the RCMP, has annual expenses of about $500 million and its headquarters cost us $1.2 billion. CSE's headquarters is the most expensive building in the history of Canada.

In 2010, we learned that CSE was analyzing 400,000 emails a day to mitigate risk to information technology. These were emails sent to the government.

In 2014, we learned that CSE had studied email and cellphone metadata from Canadians travelling through a Canadian airport without actually getting their consent.

Before the Spencer decision, we learned that a number of Canadian telecommunication companies were voluntarily handing over information at the request of intelligence agencies without judicial authorization.

Under the circumstances, I do not think it is an extravagance to have an independent parliamentary committee overseeing the activities of our intelligence agencies, thereby ensuring that they do not act with impunity and are accountable not only to themselves but to elected parliamentarians.

Bill C-22 also addresses people's expectations for such a committee. Professor Craig Forcese, for whom I have tremendous respect, articulated certain expectations. He talked about four essential factors.

First, efficacy must be part of the committee's mandate. The committee must be able to evaluate whether our intelligence agencies are using their vast sums of money effectively. That is part of the committee's rather broad mandate. He also talked about propriety. The committee has to review whether government intelligence agencies are acting within their legal mandates.

Mr. Forcese also mentioned that the committee has to look at the whole picture. It cannot look at just the RCMP, CSIS, or Communications Security Establishment Canada. It must take a good look at the national security activities of all our intelligence agencies. His fourth and final proposal is to have enough money and human resources for the committee to do a good job. All these proposals are within the committee's mandate.

The committee created by Bill C-22 meets all the criteria. In my opinion, we will have an effective committee and one that will be useful for Canadians. It is a first step in the right direction, the first in a thousand-mile journey towards having checks and balances on the power given to intelligence agencies.

We need to have better and more robust checks and balances, especially when it comes to the fundamental rights of Canadians. I am hopeful about the thousand-mile journey we have to travel, especially with Bill C-22 as our first step. First and foremost, we need to return to specific judicial authorization regarding legal access. Judicial authorization, that is, a judicially authorized warrant for a specific person, for specific purposes, must be the norm in Canada. It must be the basic rule, and there must be no getting around it. In fact, I think we must be very strict about that.

In that regard, I congratulate the Liberal Party for having introduced Bill C-622 back in the day, a bill that required CSE to obtain judicial authorization before intercepting any Canadians' communications. That is not necessarily required at the moment. The ministerial authorization is broader. I hope we return to specific judicial authorization for access to Canadians' private communications.

The second thing is that there is no definition for metadata in any Canadian legislation. In the 21st century, we need to define metadata, particularly in terms of private communications. That would be an additional protection, especially when we know just how useful and precise metadata are.

For instance, Dr. Ann Cavoukian, Ontario's former information and privacy commissioner, said that metadata were more intrusive than the contents of a communication, because they make it possible to track people's habits and create very specific portraits.

The third thing has to do with Bill C-51. I know we are reviewing the bill and that we still have some consultations to do, but the information sharing the bill allows is fairly draconian. There is a way to limit information sharing among government agencies. The Maher Arar case showed us just what kind of impact that can have.

If we want to protect both Canadians and rights, an independent committee overseeing the activities of our government agencies is not too much to ask for. It is our job as legislators to strike a balance between protecting basic rights and protecting the physical integrity of Canadians. Bill C-22 is an excellent first step in that direction, and we have been waiting for it for at least 10 years.

[Marilyn Gladu, Conservative, Sarnia—Lambton, ON]

Madam Speaker, I thank my colleague for his speech.

The member mentioned several times that we needed to have an independent committee. I am curious. I hear that David McGuinty has already been appointed as the chair and he is a clear Liberal supporter—

[The Assistant Deputy Speaker, Carol Hughes]

I want to remind the member that she is not to refer to another sitting member by name.

[Marilyn Gladu, Conservative, Sarnia—Lambton, ON]

Madam Speaker, the member for Ottawa South has already been appointed as chair and is a Liberal supporter. How can Canadians have any confidence that there is going to be independence on this committee?

[Joël Lightbound, Liberal, Louis-Hébert, QC]

Madam Speaker, what is important to realize about this committee is that not only is it independent of the executive, but it is also independent of the intelligence agencies. It is a committee of parliamentarians.

That is how all our allies do it. When we think of the Five Eyes, whether the United States, Great Britain, New Zealand, or Australia, they all use the same principle. It is about empowering parliamentarians to once again be able to scrutinize what is being done in secrecy for the sake of national security, in order to ensure that the legal framework is being respected. In that regard, I see it as an independent committee.

[Lloyd Longfield, Liberal, Guelph, ON]

Madam Speaker, last Saturday, I had a round table in Guelph with the Sikh community, the Muslim Society, the Islamic Society, and civic groups, and we discussed this very topic. There was expressed concern over the oversight of information that was being shared and used by our authorities like CSIS, the RCMP, and local enforcement agencies.

Steps that the Harper government took to eliminate oversight is something this legislation is trying to address. Maybe the member could expand on that a bit more.

[Joël Lightbound, Liberal, Louis-Hébert, QC]

Madam Speaker, I thank my colleague from Guelph for his question.

Indeed, we are addressing a gap that exists in Canada. It was practically inconceivable that we did not have such a committee. This should alleviate certain concerns that Canadians may have regarding these activities, and goodness knows that they are growing concerns.

The threat against us is becoming increasingly diffuse. We therefore need to give our police forces and intelligence agencies the tools they need, but we also must have checks and balances to ensure this power is being used properly and within the confines of the law.

[Sheila Malcolmson, NDP, Nanaimo—Ladysmith, BC]

Madam Speaker, the New Democrats support the direction of this bill because it fulfills a campaign promise that we made. We do though look forward to the conversation at committee to talk about some of the weaknesses we have identified.

We have one question around the appointment of the chair. The United Kingdom used to allow its prime minster to appoint the chair of the oversight committee, but that was abandoned in 2012 in favour of an elected chair. Other Westminster systems like Australia also elect a chair of its oversight committee to ensure that it is properly independent and is also perceived to be properly independent. Germany even rotates the chair, so the opposition chairs it sometimes and the government chairs it sometimes. A private member's bill of one of the Liberal members has also proposed an elected chair.

We are curious as to why the government now insists that the Prime Minister must control the appointment of the chair who would look over this important independent body.

[Joël Lightbound, Liberal, Louis-Hébert, QC]

Madam Speaker, I thank the member for her question.

I think we need to look at the whole picture when comparing the proposed committee to other committees, particularly with regard to the selection process. The committee in question has more powers than the one in place in Great Britain. We are giving the committee teeth, or in other words, we are giving it the means of assessing the various intelligence agencies, not just separately but as a whole.

We need to focus on that. Even renowned academics, such as Craig Forcese, have said that this committee meets Canadians' expectations.

[James Bezan, Conservative, Selkirk—Interlake—Eastman, MB]

Madam Speaker, it is a pleasure to speak to Bill C-22, legislation about which we, as the official opposition, have a lot of apprehension.

I would like to refer to the earlier speeches of my colleague from Durham and my colleague from Bruce—Grey—Owen Sound, clearly articulating some of the shortfalls in Bill C-22.

As someone who has been here for over 12 years, as a parliamentarian who has nothing but the greatest respect for this chamber and this institution, I believe Parliament has a key role to play in providing oversight to all sorts of government agencies, which include our security and intelligence agencies. Unfortunately, the bill of goods that is being presented in Bill C-22 falls far short of giving proper parliamentary oversight.

As has already been alluded to, there is a concern already, before the committee has been struck and before the legislation has passed and properly studied at committee, that a chair of the committee has already been named, the member for Ottawa South.

I suppose we should not be too surprised about that, knowing that the Prime Minister's BFF, Gerald Butts, and his chief of staff, Katie Telford, used to work for former premier Dalton McGuinty, the brother of the member for Ottawa South. That is a connection that a lot of people have made, one that we know is of concern about whether this committee will have true independence and be able to function the way we expect parliamentary committees to function.

We have looked at this, debated it, and have had conversations already about what our other Five Eyes partners are doing in the United States, the United Kingdom, Australia, and New Zealand. This function has been missing in Canada over the years.

One of those reasons is that we have, within the Canadian system, ombudsmen and commissioners who oversee most of the intelligence agencies, like Communications Security Establishment Canada, CSEC, that operates under National Defence. As a former parliamentary secretary to the minister of national defence, I am well aware of the activities of the organization. As the defence critic, I still appreciate the role the commissioner plays in being independent and reviewing all the activities that are undertaken to ensure CSEC stays on point, the same thing that happens with CSIS. When there are issues, they report it immediately to Parliament. We get the information we need to make a decision as parliamentarians.

What we see in Bill C-22 is not a committee of Parliament. It does not mirror what is happening in the United Kingdom or in Australia, where the committee is appointed by Parliament and the committee functions as a parliamentary committee. What we are seeing here is something that is actually working out of the Prime Minister's office. That is what is being proposed.

If we look at the United Kingdom, and we always want to go back the mother of Westminster Parliament in London, it established its committee back in 1994, and it has worked incredibly well. Politics was left at the door. It works in collaboration. It looks over the operational and security measures that agencies are taking within the government. In 2013, parliament even expanded that committee's role. It is important that this is done because the committee reports back to parliament. It is not beholden to the prime minister, it is not beholden to any minister of the crown.

Australia also has a parliamentary joint committee. Again, it was set up by parliament, and it oversees six different security agencies. Again, we see this as being the proper way to do it, in that parliament has control of the committee.

I know there is some concern when we look at the history of this place. Probably its recent history is when we established the special committee on Afghan detainees, the transfer of those detainees, how those individuals were treated by the Canadian Armed Forces, and what happened to them after they left.

First, we were looking at having an all-party committee, but the NDP of the day decided not to participate on a committee, because it would have to be done in secret, and information gleaned through that process could not be used in the public domain. Therefore, they took a pass on sitting on the committee, and so just the Liberals and Conservatives sat on that committee and went through thousands and thousands of unredacted documents to try to determine whether or not there was any abuse, until they determined there was not.

I can see why the Liberals are up here speaking in favour of Bill C-22, but I think they are somewhat confused. If we look at their promises in the last election campaign, we see on page 31, on national security oversight, it says that:

We will deliver stronger national security oversight.

At present, Parliament does not have oversight of our national security agencies, making Canada the sole nation among our Five Eyes allies whose elected officials cannot scrutinize security operations. This leaves the public uninformed and unrepresented on critical issues.

The key word here is “Parliament”; it does not have oversight. What the bill before us would do is create an all-party committee, but it is not a parliamentary committee.

The Red Book from the last federal campaign for the Liberals, on parliamentary committees, says that they will “...strengthen Parliamentary committees so that they can better scrutinize legislation”. It also brought forward great ideas, such as making sure that they have non-partisan research, and that they would have committee chairs elected by secret ballot. They talked about having ministers and parliamentary secretaries removed from committee and not able to vote on committee.

Therefore, everybody assumed that we would review parliamentary committees, make them more independent, and allow members of Parliament to work and elect chairs, and that it would happen with the national security oversight. I can see how members from the Liberal caucus would be confused, because the two of them went one right after the other and they just assumed that they were going to have a true parliamentary committee.

We can look to the comments and rhetoric that have come from the government in the past. I listened earlier to the member for Malpeque. He has been in this place for a long time and has made some comments about wanting to have parliamentary oversight. He said, when he was speaking in the House in the last Parliament, “The key point here is that I really cannot understand the government's unwillingness to look at proper parliamentary oversight”. The key word is “parliamentary”.

He said later that “I'm strongly advocating oversight, parliamentary oversight”. This was in the debate on Bill C-51 and one of the demands.

Also, the member for Vancouver Quadra brought forward Bill C-622, which was about trying to establish legislation to provide more security agency oversight through Parliament.

Therefore, I can see why there is confusion among Canadians. I can see why there is confusion among Liberals when they have actually always talked about parliamentary oversight, but what we are seeing today is that this process in Bill C-22 is all about having more control by the Prime Minister's Office.

I have the bill in front of me here, and I have read it carefully just so I can raise my concerns and the reason I have these concerns about the way this committee is being established. If we look at subclause 4(3) of Bill C-22, we see it says clearly that:

The Committee is not a committee of either House of Parliament or of both Houses.

Therefore, we are not talking about a committee of Parliament. It has no responsibility to Parliament. As a matter of fact, the extra remuneration that has been awarded to the chair and committee members will come from general coffers and not through parliamentary budgets.

The bill goes on to say in subclause 5(1) that:

The members of the Committee are to be appointed by the Governor in Council, on the recommendation of the Prime Minister, to hold office during pleasure until the dissolution of Parliament following their appointment.

Well, parliamentary committees are established through whips assigning people onto committees, and chairs are elected by the committee, but not in this case. In this case, the Prime Minister will appoint every single member of the committee.

On the Senate side, it says that the Prime Minister will consult with a member of the Senate and then appoint those members. We have senators who are independent, and those members who are independent, of course, are appointed to the Senate on the recommendation of the Prime Minister, so they are beholden to the Prime Minister, and now the Prime Minister will appoint those independently Prime Minister-appointed senators to the committee. So definitely those senators, up to two members on the committee from the Senate, will act in the interests of the Prime Minister. Then members of other parties will be appointed by the Prime Minister after he has talked to the leader of that party.

That in itself clearly documents the shortcomings in Bill C-22. I encourage caucus members in the Liberal Party to read through it, to clearly understand that the bill of goods they sold Canadians in the last election was false. To make the point, in subclause 12(1), it says:

Despite any other law, no member or former member of the Committee may claim immunity based on parliamentary privilege in a proceeding against them in relation to a contravention of subsection 11(1) or of a provision of the Security of Information Act....

Here in Parliament we have immunity and true freedom of speech. That is removed from the committee, making the point that this may be a committee that has parliamentarians on it, but the committee is not part of this institution; it is part of the Prime Minister's Office.

Then we go to the information that the committee can use, and we continue to see that there are restrictions placed on the committee, on the information it gleans. There are actually seven exemptions keeping the committee from really doing its work of ensuring that intelligence agencies are taking our national security seriously and of protecting the rights and freedoms of individual Canadians.

We have to wonder whether or not the people of Canada, when they elected the government, fully understood that they were not going to get what they really deserve, which is true parliamentary oversight. There are exceptions. Members are appointed by the Prime Minister. Ministers have the right to refuse to give information of any department, so if there is any department that the committee wants to investigate, the minister can refuse that information. Even before it is out of the gate, it is already handcuffed. It is bound, gagged, and completely beholden to the PMO.

The other thing I have trouble with is that the committee chair has a vote on all proceedings. We see that only occasionally in our parliamentary process, on special joint legislative committees where a chair has a vote on policies, debates, and motions at committee and can also cast a vote to break a tie. It has been suggested here that the chair of the committee gets to vote, plus gets to cast a ballot to break a tie on all votes. Essentially even though Liberals are saying there are going to be four Liberals as it sits today on the committee, there are actually five because the chair has two votes.

In clause 21, it says the report is not presented to Parliament. The committee writes a report that is presented to the Prime Minister and to the minister or ministers whom it impacts. They get to vet all the reports. How is that freedom of speech? How is that our ability as parliamentarians to do our job if, when the committee reaches a decision, it still gets vetted by the PMO and vetted by the affected minister. That is beyond the pale of proper parliamentary procedure and democracy.

Not only do they vet it, but it actually says right in the legislation in subclause 21(5) that the chair of the committee will get direction from the Prime Minister or from the minister on how to properly write the report if they are not happy with what is in it.

It states that “the Prime Minister may direct the Committee to submit to the Prime Minister a revised version of the annual or special report that does not contain that information” about which they are concerned.

There are some major political gains and games that will be played in this process, and it is something that needs to be seriously looked at for amendment if Canadians are going to have faith in this process.

It continues on with a minister having the ability to refuse to provide any information. The committee can write a report about its dissatisfaction with that minister, but at the same time, has no control over whether a report would even get tabled.

There are not the checks and balances that we need to see in Bill C-22. That is why, as the official opposition, we are opposing the bill, unless some substantive changes are made.

I know that the member for Durham has tried on a number of occasions to reach out to the Minister of Public Safety and Emergency Preparedness and our Liberal counterparts, along with the member for Victoria in the NDP caucus, to ensure that we develop a piece of legislation that everyone here would be comfortable supporting. Unfortunately, that fell on deaf ears.

This bill was tabled in the dying days of the summer session, just before the summer recess in June, so we did not have a chance to have a proper discussion on this bill, and we have only got an opportunity now to express our concerns over what is a poorly drafted piece of legislation. Canadians expect more. If parliamentary oversight is going to be provided, it had better be true parliamentary oversight and not just an extension of the Prime Minister's Office wielding its authority over parliamentarians.

Actually, I am baffled why anyone in the Liberal caucus, especially on the backbench, would want to be so tied up by the authority of the PMO. If Liberals wanted to exercise their rights and obligations as members of Parliament in the House and represent their constituents, they would be demanding that this committee become a true extension of Parliament, that it be set up the same way standing committees are set up, become part of the Standing Orders, elect its own chair, and table the reports here in the House.

We agree that the members from all parties who sit on this committee should be properly vetted. We agree that they should all take an oath to commit themselves to protecting the information they are going to see, as this is not information that should be used for partisan political purposes. This is about the security of our nation and the protection of Canadians, as well as protection of their rights and freedoms.

We also believe that the people who sit on this committee should have experience on issues of national security, national defence, and policing, so that the information they are going to look at in no way startles them or causes them to make ill-informed decisions.

We really urge the government to fix this legislation so that there can be all-party support. However, until it does, the official opposition, the Conservative Party of Canada, will oppose it since it does not reflect the promises made by the Prime Minister in the last federal election, it does not respect this institution, nor would Bill C-22, in its current form, achieve what we hoped it would achieve, proper parliamentary oversight.

[Julie Dabrusin, Liberal, Toronto—Danforth, ON]

Madam Speaker, my colleague from Selkirk—Interlake—Eastman pointed out that there was confusion, and I am confused, because I listened to his comments about checks and balances and the need for them. However, when I look back to the past decade, I see a history of private members' bills being brought by members of the Liberal Party to try to get this kind of parliamentary oversight, yet nothing was ever done. Today, I am sitting here and hearing that because we are taking action, this is somehow upsetting.

Perhaps the member can explain to me the history of why, over the past decade, no national oversight committee was put into place by the former government. Perhaps he can explain to me why he is upset now. Is it the fact that action is finally being taken to create this committee?

[James Bezan, Conservative, Selkirk—Interlake—Eastman, MB]

Madam Speaker, I can see why the member opposite is confused. That is because she thinks the Liberals will be bringing in parliamentary oversight, and they are not. That is what we are opposed to in this bill. This bill must empower us as parliamentarians. It does not do that; it empowers the PMO.

If we look at the previous 10 years, Peter MacKay supported more parliamentary oversight of national security agencies. There are a number of us here who believe that we need to have more parliamentary oversight. Unfortunately, we did not see co-operation from all the other parties on how to do that in a responsible manner. Therefore, it was laid to rest. However, we now have an opportunity to do it right, but Bill C-22 is getting it wrong. All we are doing is putting more power in the hands of the Prime Minister, Gerald Butts, and Katie Telford.

[Pierre Nantel, NDP, Longueuil—Saint-Hubert, QC]

Madam Speaker, I cannot help but react strongly when I hear the member for Selkirk—Interlake—Eastman talk about how this bill gives the PMO all the power. In fact, it is rather funny for those on our side of the House when we think about just how much control was exerted by the PMO in the last Parliament.

However, I do agree with him that it is disappointing that this is not in line with what we were promised during the last election campaign. One has to wonder about what role the Liberal government expects the various members who represent every region of Canada to play.

I would like to ask my colleague if he believes that the fact that the Prime Minister will be appointing a chair shows a lack of confidence in members.

[James Bezan, Conservative, Selkirk—Interlake—Eastman, MB]

Madam Speaker, in the last election I always enjoyed how everyone referred to the big, bad PMO under Stephen Harper and said that Conservative members were all told what to do. In the last Parliament, I was the most independent voting member of Parliament. I did not see the Liberals or the NDP vote as often against their own party line as I or some of my other colleagues did, who were second and third. Therefore, that was not a fair analysis.

However, there is a lack of trust from our side with respect to Bill C-22, because it does not address the promise made by the Liberals, or what those of us who respect Parliament would like to see it do, which is to create a parliamentary committee by statute and the Standing Orders of Parliament that would provide the same type of oversight discussed in the legislation but not under the control of the Prime Minister. Unfortunately, with this bill, first and foremost, all of the control, vetting, and reports have to go through the Prime Minister's Office. That is not democracy.

[Dan Albas, Conservative, Central Okanagan—Similkameen—Nicola, BC]

Madam Speaker, I want to thank the member for his contribution to the debate. I know he is a very plain-spoken gentleman and believes in telling it like it is. Therefore, I would like to ask him this question. The current name of the committee is the national security and intelligence committee of parliamentarians. Would he be more comfortable with labelling it the Prime Minister's parliamentary committee, or perhaps the chosen people by the Prime Minister to talk about the items he has ordained? Perhaps that might be more accurate and represent what this bill is doing.