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.

[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.

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

Welcome, everyone.

I call this meeting of the Standing Committee on Public Safety and National Security to order. This is our 41st meeting, and pursuant to the order of reference from 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.

We welcome our guests as witnesses today, Mr. Wark and Mr. Atkey.

I understand Mr. Miller has a point he'd like to raise first.

[Prof. Craig Forcese]

There is a discussion quite often about review versus oversight. There is some confusion about the terms, but in Canadian practice, oversight means command, control, and coordination. The oversight entity authorizes or has a role in authorizing activities.

Review is looking at the performance of the agency against standards. Typically it examines whether the conduct of the agency was legal and was in accordance with ministerial directives.

Review is after the fact, in the sense that you need agency action before you can review it, but review can be close to actual in the sense that the review doesn't necessarily have to be 20 years after the fact or a year after the fact or a month after the fact. My understanding from SIRC is that increasingly their review is more approximate in time to the actual operation, so it's still after the fact, but it's not that much after the fact.

The same thing should probably be true for the parliamentary committee under Bill C-22; that is, it is competent to do review. It does not do command and control oversight, and I think it would not be proper for that body to do command and control oversight. It does review, but I don't think it should fear doing review that's approximate in time to the actual operations, as long as it doesn't impede those operations.

Where this might become controversial is the extent to which the executive branch can deny the committee the information it requires to do this more timely review.

[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. Kent Roach]

I agree with what both of my colleagues have said, but I would point out that even with the green paper, one of the things that we have to guard against is siloing these different areas. We have a whole-of-government approach to security, which I think is understandable, given the threats, but we still tend to think about this in a siloed way.

Our discussion today about this piece of legislation should lead you to thinking about the adequacy of review. That has been a scene that has come up again and again. Also, any new powers that may be given in the future to any department or agency of the federal government will be subject to this information sharing act, if it is not changed. I think the green paper is a good first start, but we need to encourage thinking about this in a holisitic way.

On the Bill C-22 question, I do regret the fact that, although it's a good idea to move ahead with a parliamentary committee, it's only part of the picture. We need to look at an executive watchdog review. We don't need to be looking for perfect legal language, because all legal language is going to be subject to interpretation, and as Professor Forcese has said, it's often interpretation that the public will not have access to. We need to think of a process solution to this issue. I think part of the process solution is to have a review structure that commands the confidence of Canadians.

[Prof. Craig Forcese]

In the interest of full disclosure, Professor Roach and I are doing a doubleheader today. We're up in front of the standing committee on Bill C-22. Those thoughts are in the can, so to speak.

I would say that Bill C-22 provides a necessary remedy: that is, investing parliamentarians, for the first time in Canadian history, in a national security review function. That said, I would echo the concerns about the scope of information disclosure. It's not just that the government can, in certain circumstances, decline to provide information; there are actually mandatory exclusions, which are actually quite unusual as compared to our Five Eyes partners.

In the U.K. the exclusions of information are discretionary, and there's a protocol that the executive branch and the parliamentary committee have negotiated that says that those exclusions will only be used in the rarest of circumstances. In other words, they won't exercise their discretion to deny information.

In our system there's a whole cadre of information that will be ultimately excluded automatically. I would add that among the information that will automatically be denied the Bill C-22 committee are ongoing law enforcement investigations. It sounds sensible, except when you consider that the RCMP currently still has an ongoing investigation into Air India.

[Sukanya Pillay]

I think having a parliamentary committee would be a welcome move in Canada, but it is not a substitute for an independent reviewer of national security issues, so the two have to work together. Second, I think that Bill C-22 has ineffectual review, because at the end of the day there's discretion in terms of what can be withheld from the committee. That effectively undermines the whole objective, so that's problematic.

If I may add one thing, when I responded to Bill C-51, I stuck to the CSIS Act, but there are many other things with respect to CSIS, such as the references to the IRPA and the no-fly list, that I think need to be done, and they would also be very quick fixes.

[Wayne Long, Liberal, Saint John—Rothesay, NB]

Thanks.

I want to briefly talk to Bill C-22 and the oversight to get your opinions. Do you feel that Bill C-22 is adequate? Do you think that with parliamentarians having oversight of something like that, there's the expertise, experience, and resources to provide adequate oversight?

[The Chair, Liberal, Rob Oliphant]

Thank you, Deputy. I hope you see our committee as effective, and now magnanimous as well.

I don't want the committee to move for a minute. I have a couple of things I need to do.

It's great to be surrounded by such fine public servants, so on behalf of the committee, thank you not only for today but for your work on the safety, security, and human rights of Canadians.

Committee members, I want to make just one suggestion for a change to our calendar. We'll have a lot of quality time. We have four more meetings on Bill C-22 with witnesses. Right now, we have the amendments scheduled for November 23 at noon. I'm going to suggest that we move that to the end of day on the 23rd.

On the 25th, I have work with the clerk and analysts. On the 24th, we will receive the summary of evidence from the national security framework studies thus far. Unfortunately, that evidence won't be able to inform your amendments—I know you're already writing them—but it will be able to inform our discussion about the amendments when we come to clause-by-clause on Tuesday, November 29. Clause-by-clause was going to be on the 24th. We're moving it to the 29th so you can get the summary of evidence on the 24th and use it in your deliberations. Is that okay?

I have two more things. Mr. Dubé has presented a notice of motion. We will deal with that on Thursday at our meeting, so we'll take five minutes. I draw that to your attention.

I also want to note that it is Chad Richards' last day in working with Mr. Miller. He served Mr. Miller well this year, and he served our committee well.

Good luck with your next venture. Thank you.

[Dianne Lynn Watts, Conservative, South Surrey—White Rock, BC]

Thanks very much.

I have just three questions. In drafting Bill C-22, did each of the agencies provide input?

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

Have there been any preparatory discussions with other jurisdictions in anticipation of Bill C-22, that this committee may make inquiry on the practice of—

[Nathaniel Erskine-Smith, Liberal, Beaches—East York, ON]

I do understand that they're to work in conjunction. Professor Forcese noted, though, that if you have certain bodies with certain access to private information and you have a parliamentary committee that's going to work with those bodies but can't access the same information, according to Bill C-22, isn't that going to impede their ability to work together in some instances?

[Nathaniel Erskine-Smith, Liberal, Beaches—East York, ON]

Perfect. Thanks very much.

I think we're all on the same page that a review is important. CBSA we don't have reviewed, but the other three bodies that we're going to talk about, the RCMP, CSE, and CSIS, currently have review mechanisms.

For the officials of those four bodies, does anyone have any issue with the information you're currently required to give over to the respective review agencies? Is there any concern at all about the information you have to give over? No? Okay.

That leads me to this question, then. I understand from Professor Forcese that in fact the review agencies have more access to information than the parliamentary committee as designed under Bill C-22. Why wouldn't this committee have the same access to information as the review bodies, if none of the agencies have any concerns with the sharing of that information?

I'll put it to Mr. Brown or Mr. McCowan.

[Pam Damoff, Liberal, Oakville North—Burlington, ON]

Thank you.

In your opening remarks you talked about how you had taken the best parts in different parts of different countries. I know you met with the U.K. Intelligence and Security Committee of Parliament. You have had discussions with other countries as well. Could you elaborate a little bit more on how that's all reflected in Bill C-22?

[Ralph Goodale, Liberal, Regina—Wascana, SK]

He was quite emphatic in his work in suggesting that this was a serious gap in the Canadian architecture. In putting together Bill C-22, we're responding to one of his principal recommendations. It's also consistent with the findings of Mr. Justice Iacobucci in his public inquiry as well. There will be, I'm sure, different administrative arguments about this structure versus that structure. We have tried to take on board, in our consultation here, what a whole variety of previous parliamentarians have done, what the public inquiries have done, what the Auditor General said, and also the experiences of other countries.

I think we've come up here with a unique Canadian model that best suits our circumstances. Providing a committee of parliamentarians to bring this new dimension of oversight to the Canadian security and intelligence community is something we've never had before. Mr. O'Connor and others said to fill the gap, and this legislation in fact does that.