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.

[Stéphane Leman-Langlois, Full Professor, École de service social, Université Laval, As an Individual]

Good afternoon.

My comments will be divided into three broad categories: first, I will make some positive remarks, then I will discuss some more negative elements, and finally, I will raise the very negative aspects.

I would like to specify that even if my presentation focuses on the negative aspects, the bill is very interesting overall and should be supported, with a few small amendments, however.

I would first like to emphasize the importance of Parliament overseeing intelligence and national security activities in their entirety. That is very important. Canada is a particular case in the western world, and I think it is high time we invested in the oversight of these activities. In the final analysis, we do this on behalf of the public, and parliamentarians should be involved in the oversight of national security activities. That is very important.

Another aspect of this bill that makes me very enthusiastic is the idea that the entity discussed today will focus on all national security activities. The committee will not be targeting, one, two or three organizations that are more readily associated with national security, but also several others that engage in national security activities, although that is not their main activity. These two aspects are very important, and in my opinion mean that this bill must absolutely go forward.

I will now discuss what I would describe as problems that concern the way in which the bill is structured.

First, I believe the mandate is much too broad. There is an intent to review all national security organizations, at every level and in every way, which is a plus, but if people try to submit all of that to the committee, the work will be very incomplete, in my opinion, and the committee will not be able to keep its promises.

Clause 8 refers to “reviewing the legislative, regulatory, policy, administrative and financial framework”, which is very relevant, in my opinion. That is the type of work parliamentarians have to do. They must ask themselves if the spirit of these laws is being respected when they are applied in these organizations, and whether the will of citizens is being reflected in the law and in practice. That is exactly the type of work parliamentarians must do, and it is incumbent upon them, in fact.

This is also work that is not covered by the current oversight mechanisms, such as those of SIRC and the CSE Commissioner. They are much closer to what happens on a daily basis and generally limit themselves to determining if, yes or no, the organization that is being observed followed the law, in other words, whether it complied with the general parameters set by law that apply in this case.

Parliamentarians must also ask themselves if the law in its current form is adequate or if it contains major gaps that mean that the organizations can commit certain abuses that run counter to the spirit of the law because it is drafted rather broadly.

In addition to ensuring that the activities of the CSE, SCIS or other organizations comply with the law, we have to ask whether the law governing these activities is the one we want as Canadians. I think that is the work of parliamentarians.

That said, subclauses 8(b) and 8(c) involve daily activities and operations. There are two problems. First, the subject is really complex and is far beyond the scope of parliamentarians. I don't want to pass any judgments on the parliamentarians who will sit on this committee, but you need some very advanced skills, if only to understand the alphabet soup they use, starting with the acronyms, such as CSE. I thus think that we are headed for disaster, or that this committee will serve absolutely no purpose.

In fact, this nine-person committee will have to examine so many activities and organizations that even with staff at their disposal, this will not be enough. We don't know what the budget of the committee will be. Even with an ideal budget, the activities that must be assessed and overseen are far beyond the capacities of the committee that is being created.

Furthermore, this is a duplication of what is supposed to be the work of the oversight organizations. These bodies, such as SIRC or the CSE, are supposed to review daily activities, down to the fine details of programs, to see what was done and whether any abuses were committed against anyone. I don’t think the parliamentary committee should deal with that. It should leave that to the oversight organizations and focus far more on other issues. For instance, it should determine whether the programs as a whole truly reflect the wishes of Canadian citizens, whether the laws are adequate, and whether the budgets are sufficient. In other words, to comply with the bill's mandate, the role of the committee should correspond to what is described in subclause 8(a), rather than in subclauses 8(b) and 8(c), which describe a much broader mandate.

In addition, the creation of this parliamentary committee adds little to what the oversight organizations are already doing. The parliamentary committee will add a grain of sand to the sandy beach of oversight.

If the problem is due to the inadequacy of the oversight of operational activities by oversight organizations, the solution is not to add a layer of political monitoring, but to improve the structure of those organizations and increase their budgets. The budgets of SIRC and the CSE have been stagnant for years and years. They represent a laughable fraction of the budgets allocated to national security activities. I do not think the solution to the lack of effectiveness or power of these organizations is to create an additional layer that will have a great deal of difficulty navigating all of this.

I see another problem regarding access to information. I think this has already been said before elsewhere. There are far too many restrictions on access to information. There is a whole slew of reasons that can be invoked to avoid parliamentary oversight. In light of the Security of Information Act, I think the committee is being granted investigative powers that will be easy to counter. I am not suggesting that the organizations being monitored would not act in good faith or would attempt to avoid this monitoring, but I think the law should cover all possibilities. We must not assume that the people who work in these organizations are angels and that they will be thrilled to be monitored. That may be the case, but we have to prepare for the worst case scenario, the one where people may actively try to avoid oversight. The act must be equipped and armed to deal with that.

There is also the restriction for cases where national security is at stake. I think there is a semantic issue here. The committee is supposed to examine activities relating to national security, but there is a restriction: if national security is at stake, it can't access the documents. So there is a real problem there, since there is no definition, it's just being thrown out there and is very vague. I think a situation could arise where all of the activities to be subject to the committee's oversight could fall under the national security restriction, and no documents would be made available to the committee. I think this is a good way of shooting yourselves in the foot.

I want to conclude by mentioning two things that are not issues contained in the bill as such, but constitute potential problems.

First, I am very concerned that after the government has adopted Bill C-22, it will put an end to the project to improve the oversight of national security agencies, that is to say that there will be no more oversight and the file will be closed, since there will now be the parliamentary committee. However, I am afraid that a lot of things may escape that committee.

I am also concerned that the impression may be created that the new, very broad powers that have been granted by the Anti-Terrorism Act will be adequately offset by this committee of parliamentarians which, as I said earlier, will not be able, operationally, to meet the objectives that will be set for it.

Thank you very much.

[The Chair (Mr. Robert Oliphant (Don Valley West, Lib.)), Liberal, Rob Oliphant]

I'm going to call this meeting to order.

This is our 43rd meeting of the Standing Committee on Public Safety and National Security. Pursuant to the order of reference of October 4, we are considering Bill C-22, an act to establish the national security and intelligence committee of parliamentarians and to make consequential amendments to certain acts. This is one of our ongoing meetings as we prepare for amendments and then eventual consideration of the act.

We're very pleased to have Professor Leman-Langlois joining us by video conference from Université Laval.

Also, we have the Privacy Commissioner of Canada, Daniel Therrien, and Ms. Fournier-Dupelle, also from the Office of the Privacy Commissioner.

Our usual practice is to start with the witness who is coming to us by video conference just in case things fall apart, which they do from time to time. It will give us more time to get you back online.

For 10 minutes we'll hear from Professor Leman-Langlois. After that we'll hear from the Privacy Commissioner.

Take it away.

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?

[Jean-Pierre Plouffe, Commissioner, Office of the Communications Security Establishment Commissioner]

Chair and honourable members, I am pleased to appear before this committee on the subject of Bill C-22. I am accompanied by Mr. Bill Galbraith, the executive director of my office.

Before I make a few remarks about the bill this committee is examining, and since this is my first appearance before this committee, I will very briefly describe the role of my office.

You have my biographical note and a summary of my mandate, so I won’t go over them here, but I would like to say that I have found that my decades-long experience as a judge has stood me in very good stead in more than three years as CSE Commissioner.

Being a retired or supernumerary judge of a superior court is a requirement set out in the National Defence Act, the legislation that mandates both my office and the Communications Security Establishment.

The CSE Commissioner is independent and arm’s length from government. My office has its own budget granted by Parliament.

I have all the powers under Part II of the Inquiries Act which gives me full access to all CSE facilities, files, systems and personnel, including the power of subpoena, should that be necessary.

The commissioner's external, independent role, focused on CSE, assists the Minister of National Defence, who is responsible for CSE, in his accountability to Parliament, and ultimately to Canadians, for that agency.

Let me turn now to Bill C-22.

I have stated on numerous occasions that a greater engagement of parliamentarians in national security accountability is indeed welcome.

In particular, following the disclosures by Edward Snowden of stolen classified information from the U.S. National Security Agency and its partners, including CSE, the public trust in the intelligence agencies, and in the review or oversight mechanisms, was called into question. Those disclosures dramatically changed the public debate.

I believe that a security-cleared committee, along with the expert review bodies, such as my office and that of my colleagues at the Security Intelligence Review Committee, SIRC, which reviews the activities of the CSIS, along with the Civilian Review and Complaints Commission—the CRCC—for the RCMP, headed by Mr. McPhail, can provide a strong complementary and comprehensive framework for accountability of security and intelligence activities and can indeed enhance transparency.

I believe this committee will help restore and enhance public trust, but it will not be without challenges. Historically, the CSE commissioner was rarely invited to appear before parliamentary committees and the work of my office may not have received its full due. The committee of parliamentarians may help to focus attention on the important work of the expert review bodies. My office and I look forward to working with the committee and its secretariat.

For maximum effectiveness, however, the respective roles of the committee of parliamentarians and of the expert review bodies must be well defined, to avoid duplication of effort and wasting resources. In my view, this is of paramount importance.

Avoiding duplication was an obvious theme and I was pleased to see it stated in the bill, in clause 9 entitled “Cooperation”. The words are straightforward but we will have to work closely with the committee secretariat to ensure this happens in practice. The objectives, to my mind, are to ensure comprehensive overall review and encourage as much transparency as possible.

I have some thoughts on how we might begin a productive relationship with the committee and its secretariat. Perhaps we can explore this issue during our question period.

There are, however, some points that should be discussed. I have a number of observations about various parts of the bill. The three-part mandate of the committee, provided for in clause 8 of the bill, is very broad in relating to any activity that includes operations as well as administrative, legislative, and other matters. As written, this will be another reason why we must work closely with the committee from the outset to ensure the rules are defined in practice, and not just to avoid duplication, but to ensure complementarity.

I am not privy to the government’s intentions with respect to this broad approach. However, the combination of this three-part mandate could adversely impact the effectiveness of the secretariat’s work. The committee will have to establish its priorities. And again, this is where the committee and the review bodies can work closely together for effective overall accountability.

What is clear is that the government wants to have a review of the national security and intelligence activities of those agencies and departments not currently subject to review. It is critical for effective review to maintain the capacity for expert review that we have now and to develop it for those agencies and departments not currently subject to review. This could be done by establishing another review body or bodies, or dividing them among the existing review bodies. The committee of parliamentarians will, I expect, turn its attention to this issue.

As I read the bill in its current form, it is clear that the committee does not have the same freedom of access as my office or, for that matter, as SIRC. In paragraph 8(b) the committee can review “any activity” that relates to national security and intelligence “unless the appropriate Minister determines” otherwise. This provides a potential restriction on what the committee may or may not see.

This is where I believe the complementarity between the committee and the existing review bodies comes in, with reassurance that the latter have unfettered access to the agencies they review. The gap is the departments and agencies not yet subject to review.

In conclusion, I would suggest a couple of small changes to provide clarity, and I could provide these in writing subsequently, if you so wish, Mr. Chair.

Thank you for this opportunity to appear before you today. My executive director and I would be pleased to answer your questions.

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

That's extremely helpful to our committee. Thank you so much.

In the remaining one minute, could you comment on a potential relationship between the Bill C-22 committee and the NCIU of the Canadian Forces?

[Marco Mendicino, Liberal, Eglinton—Lawrence, ON]

To get back to some of your testimony regarding operational activities, how do you interpret the proposed mandate of the committee of parliamentarians as articulated under clauses 4 and 8?

I took several notes during the course of your evidence, which would seem to suggest that you don't think there are sufficient tools currently within any of the existing civilian oversight—for example, SIRC—to shed some light on the intelligence products, as you've described them.

This is a two-part question. One, do you think the mandate of the committee of parliamentarians under Bill C-22 captures the exercise that you think needs to be there in the review of intelligence products? Two, if not, what do you recommend we do with the bill?

[Marco Mendicino, Liberal, Eglinton—Lawrence, ON]

Thank you, Mr. Chair.

Thank you, Ms. Carvin, for your presentation.

I want to pick up on your last recommendation, the fourth one, and turn your attention to subclause 21(1) of Bill C-22, which on the face of it would indicate that

the Committee must submit to the Prime Minister a report of the reviews it conducted during the preceding year.

Do you see that as sufficient assurance that there is a reporting obligation on the committee of parliamentarians to provide information to the Prime Minister, and through the Prime Minister, to the House of Commons, about their activities for the preceding year? Or are you suggesting that there needs to be something else?

[Professor Stephanie Carvin, Assistant Professor, The Norman Paterson School of International Affairs, Carleton University, As an Individual]

I thank the committee for inviting me to speak today.

Before I begin, I would, in the interest of disclosure, state that from 2012 until 2015 I worked as an intelligence analyst with the Government of Canada. My views are shaped by this experience, as well as my academic research on national security issues.

However, with regard to the matter at hand, Bill C-22 and the question of intelligence oversight and review, I would like to speak to issues that have been somewhat less prominent. My presentation will therefore proceed in two parts. First, I will address three issues that I believe the committee should consider as this bill goes forward: efficacy review of intelligence analysis; counter-intelligence and foreign influence; and, communications with the public. Second, I will provide four recommendations.

The first issue is efficacy review and intelligence analysis. I am presenting these remarks almost two weeks after it was discovered that the CSIS operational data analysis centre, or ODAC, had illegally kept metadata and conducted assessments with it. While this issue largely refers to data collection and retention, it also speaks to the role of intelligence analysis within the Government of Canada.

We have frequently heard that CSIS's early 1980s mandate no longer reflects technological realities, but intelligence analysis was never discussed in the first place. Other than noting in subsection 12(1) that the service

shall report to and advise the Government of Canada

on national security threats, the role of intelligence analysis is barely given any consideration in the CSIS Act. There is no guidance as to how this role should be done, how intelligence should support operations, or in what way advice is to be given. There is no formal or consistent intelligence analysis review.

In short, there is little accountability within much of the intelligence community as to the delivery of intelligence products, how these products are produced, or whether those products are delivered in a timely manner. Additionally, there is no way of knowing how intelligence products are used, or if they adequately support internal operations or policy-making. Further, there is also no way of knowing if analysts have the proper equipment, tools, or training they need in order to produce their assessments.

I believe the committee proposed in Bill C-22 can play a role in helping to address these issues by becoming the first body dedicated to intelligence analysis efficacy review in Canada.

Second, thus far the discussion around reform of our intelligence agencies and oversight has largely referred to terrorism and surveillance, not espionage or foreign influence activities. Counter-intelligence work requires a different set of skills and activities than counter-terrorism does. For example, counter-intelligence activities can have an impact on foreign policy, and vice versa.

Therefore, the proposed committee could assess how well our foreign policy and national security agencies coordinate their activities, or whether intelligence services should be more frank regarding the activities of foreign governments on Canadian soil. Without a doubt, it is challenging to air these issues in public; espionage and foreign influence can be a source of diplomatic headaches and embarrassment. Nevertheless, they should not be left out of the conversation and the consideration of Parliament as Bill C-22 goes forward. This is especially the case as investigating these issues may require going outside the intelligence community in Canada as traditionally defined.

Third, the proposed committee has the potential to be one of the most important communication tools the government has with regard to providing Canadians information on national security. Unfortunately, at present, there are very few ways in which security agencies are able or willing to communicate with the broader public. Worse, in recent years, it has been a trend for national security agencies to publish their reports infrequently or erratically. For example, CSIS has not produced an annual—now a biennial—public report since May 2015, which covered the period of 2013-14. Public Safety Canada's public report on the terrorist threat, the sole multi-agency report on threat activity in Canada, appears on a more regular basis, but does not cover non-terrorism-related activity.

It is my hope that the committee's report will help remedy this gap and become a powerful communication tool that can help improve knowledge and generate trust. I see this manifesting in two ways.

First, it could become a central source of information on the current threat environment that Canada faces. That this would come from our elected parliamentarians would in my opinion contribute to an overall improvement in the understanding of national security issues in Canada. Second, an honest assessment of activities of our security agencies will generate confidence that our national security services are operating within the letter and spirit of the law.

For the second part of my presentation, I will now present four recommendations.

First, it is imperative that Parliament consider the wider context in which Bill C-22's committee will exist and the broader roles it can play in generating trust. Oversight and review of national security agencies is and should be the fundamental focus of the proposed committee; however, I would encourage parliamentarians to think broadly about the role it may play in communicating information and building trust.

Second, with regard to analysis, the committee should, as a part of its mandate, ensure the quality and timeliness of intelligence analysis to support the government and policy-making by holding the executives of national security agencies accountable. Additionally, it should also include review of innovative techniques, such as big data analytics. This would of course require a secretariat that is knowledgeable about these issues and that could advise committee members. This will help transform intelligence analysis from a second thought to core activities supporting policy-makers.

Third, while it might have to be done behind closed doors, the issues of counter-intelligence, foreign influence, and cyber-intrusions need to be given greater consideration in terms of how the committee will handle its mandate. This includes ensuring that these operations are well coordinated with other agencies and departments such as Global Affairs Canada, which might shape the scope and mandate of the proposed committee.

Fourth, the committee should be required to publish its findings every 365 days without exception. Everyone sitting here today knows how easy it is for government reports to fall through the cracks and miss deadlines. Nevertheless, as I have already stated, the committee's report will be a crucial tool in communicating to Canadians. The more frank and honest these reports are, the better informed the debate over measures to counter Canada's national security threats will be.

In this sense, I'm very much supportive of MP Murray Rankin's proposals regarding the committee, as stated in his speech to the House on September 27.

Thank you for your time. I'm happy to answer any questions or hear any comments you may have.

[The Chair (Mr. Robert Oliphant (Don Valley West, Lib.)), Liberal, Rob Oliphant]

Good afternoon, and welcome.

I'm calling to order this meeting of the Standing Committee on Public Safety and National Security, which is our 42nd meeting of the 42nd Parliament.

We are continuing our study of Bill C-22, an act to establish the national security and intelligence committee of parliamentarians and to make consequential amendments to other acts that are implicated.

We welcome Stephanie Carvin, assistant professor at The Norman Paterson School of International Affairs, and her class, which is with her today, both for learning, hopefully, and for moral support.

Thank you for joining us at our committee meeting today.

Justice John Major was meant to be a witness today as well; however, our time is Eastern Standard Time, and he is on Mountain Time, which puts him two hours out. We may be able to track him down, but if not, we will reschedule him at another meeting.

We will begin with Ms. Carvin. You have 10 minutes, and then the committee will ask you questions.

Privacy

[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.

Public Safety

[Ralph Goodale, Liberal, Minister of Public Safety and Emergency Preparedness]

Mr. Speaker, in the committee, we have already indicated that we are willing to consider all constructive ideas and amendments.

However, I would point out that the powers presently drafted in Bill C-22 do provide the committee of parliamentarians with the authority to examine current operations.

[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?

[Marco Mendicino, Liberal, Eglinton—Lawrence, ON]

I actually want to take you to task on that because one of the things that you're advocating for today is levelling the access playing field.

As I look at SIRC and its mandate in the CSIS Act, and I look at the committee of parliamentarians in Bill C-22, they actually do not share the same mandate. I think we could talk a bit about whether or not the parameters are more focused for SIRC, but the point is that they're not identical and that may offer a plausible explanation as to why access would not be the same. In other words, it may very well be that as the committee of parliamentarians gets its footing, in a scenario like the one I've just described, where it would find that it did not have access, it would rely on existing civilian oversight—and we've heard that from Professor Atkey, for example—as a way of referring a matter to that body for the purposes of investigation.

Let me hear your thoughts on that.

[Prof. Craig Forcese]

Things playing out organically is the Canadian way, otherwise known as muddling through. It's suboptimal because it creates unnecessary conundrums. Ron Atkey, in his prior testimony, raised concerns about the degree of interface that's now possible, given the current drafting of Bill C-22, between the expert review bodies and the committee.

While there are gateways anticipated, those gateways themselves would be subject to the constraints on access to information by the committee. You could imagine the awkward scenarios that might arise.

[Marco Mendicino, Liberal, Eglinton—Lawrence, ON]

Professors Forcese and Roach thank you for your testimony today.

I want to start by thanking you both for your public support of Bill C-22, although I understand from your testimony that it comes with certain qualifications, and that's part of why we're here, to discuss those qualifications and to see how we might improve on this bill.

On any reading of Bill C-22, this new committee of parliamentarians will be bestowed with a rather broad mandate. You would agree with that sentiment, would you not?