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.

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

Can I stop you there, because I think that's a separate conversation. I think we can study that more when we're looking at Bill C-22 specifically.

Having served as commission counsel on the Arar inquiry, I'm curious to know how you think Justice O'Connor...and you envisioned co-operation between a committee of parliamentarians and whether it's just SIRC or SIRC and existing independent bodies working. Again, just focus on the overlap in reviewing activities. In my view, the committee doesn't have a lot of help at this stage to map that out by way of a recommendation to the minister.

[Paul Cavalluzzo]

That's one of the problems with Bill C-22. The stated purpose of the relationship between the existing bodies like SIRC and the parliamentary committee is to avoid duplication. That's the duty to co-operate in order to avoid duplication. I think you should be able to work together. One of the problems I see with what you refer to occurs in clause 8, which empowers the parliamentary committee to investigate national security activities. The problem is that the minister can say “No, you're not going to do that because it's injurious to national security.” The parliamentary committee has a very truncated jurisdiction. It's totally dependent upon the minister responsible.

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

When I look at the mandates that have been carved out for the committee of parliamentarians under Bill C-22, along with the existing mandates of all of the independent review bodies, what I'm having trouble with is how we get the two sides of the accountability coin co-operating together.

I took down from your comments, Mr. Cavalluzzo, that you see the committee of parliamentarians to be focused on efficacy, blue sky. As it exists, the mandate does say that one of the primary functions the committee of parliamentarians is to look at is the legislative policy and regulatory framework. At the same time, it speaks, in very broad language, about the new legislative body's ability to review the activities of any matter that relates to national security. The goalposts are very wide, in my opinion.

That overlaps with the existing mandates of all of the independent review bodies that currently exist as they have been statutorily rendered. What I want to hear from you, Mr. Cavalluzzo, is how you see us disentangling those two mandates. The best we have right now under Bill C-22 is under what would be clause 9, where we talk about co-operation for the purposes of reducing duplication of work.

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

Thank you.

I'd like to ask you one last question. You've spoken at length about Bill C-22. As the chair said, we will have the opportunity to study the bill, and I hope we'll be able to hear from you at that time.

Nonetheless, I'd like to take advantage of this opportunity to ask you a question, because I think it's important. You spoke about the importance of making the committee independent. A rather simple example, one that readily comes to mind, is the choice of a committee chair, which is made by the Prime Minister right now. We would propose to have the chair elected by the committee members, as is done in the United Kingdom.

Does this proposal make sense to you? Could it be an initial solution aimed at making the committee independent?

[Larry Miller, Conservative, Bruce—Grey—Owen Sound, ON]

Ms. Ataogul, when you talked earlier you touched on Bill C-51 and what have you. One of the concerns I have there is that no legislation, it doesn't matter what, is ever perfect. I believe it's put in with the best of intentions, and even Mr. Cavalluzzo pointed out some faults with Bill C-22. In order to give police or authorities the power to detain someone who they have a pretty good idea could commit terrorism, if the clauses in Bill C-51 aren't perfect in your belief, what could be there to still give police the powers to do what they have to do?

[Paul Cavalluzzo]

The key thing is the independence of the American congressional committees. Once again, they have the separation of powers that are much firmer than we have here. If we're going to have effective parliamentary oversight, we need this committee to be independent of the government.

Right now, under Bill C-22, as I found out in the presentation, you are going to be answering to the Prime Minister, in effect. That's a conflict of interest. The Prime Minister is responsible for the agencies you will be overseeing.

It would be better, in my view, for this new committee under Bill C-22 to report to Parliament, not to the government nor the Prime Minister.

[Paul Cavalluzzo]

Certainly, looking to the United States would be useful in terms of oversight. Of course they have a different system of government. But the congressional committees on national security, both the Senate and the House of Representatives, are very effective in oversight. Importantly, they have a great deal of access to top secret information, much more access than Bill C-22 is going to give the Canadian committee.

I think that in Canada, we should be proud. We have reached certain levels, the Arar inquiry, for example, was novel, unique in the world. It was the first time there was an independent review of national security activity.

Our record is good, but we can improve it. We can learn from other countries. The other country we might look at with respect to their oversight is the United Kingdom. They have certain procedures with respect to top secret information that are useful to look at as well.

[The Chair, Liberal, Rob Oliphant]

Thank you.

We just may hold those thoughts and come back to you in our formal review of Bill C-22. I know you wanted to do more, I could feel it, but you'll have another opportunity, I'm sure, either in person, or somehow, for our review.

Ms. Ataogul.

[Paul Cavalluzzo, Representative, International Civil Liberties Monitoring Group]

Thank you.

In the presentation I'm going to make today, I want to talk about the relationship between parliamentary review by the committee that will be created by Bill C-22, and independent review, which will be done, hopefully, by an expert body that is independent of government. I have prepared a presentation, which I understand will be given to you after it has been translated.

Now, having been commission counsel to the Arar inquiry and a special advocate for a number of years, I can attest to the fact that national security agencies and police agencies working in national security make mistakes. I don't say that they do it maliciously. They do it innocently, but they do make mistakes because they are human beings. Indeed, in Mr. Arar's case, what happened to him was that he was sent to Syria for a year of torture as a result of inaccurate information given to the FBI and the CIA by our Canadian agency, the RCMP.

His case is not an anomaly. Many Canadians have been caught up in the response of our agencies to terrorism.

One of the main problems that the agencies are facing is that they're dealing in intelligence. They're not dealing in evidence. Intelligence has been described as “glorified rumours”. Intelligence comes from human sources, foreign agencies, and whatever, and it is often not reliable.

The other problem we have with our agencies is that they're not totally forthcoming with our adjudicative bodies when they do make mistakes. Indeed, last year and in the last few years, the Federal Court of Canada has been severely critical of CSIS because it felt that CSIS had not been forthcoming in respect of its mistakes.

The other aspect, which is very important in terms of why we need effective oversight and review, is that most of the activities of these national security agencies, like CSIS, are conducted in secret. They are conducted in secret. Indeed, even the court proceedings respecting the activities of CSIS are conducted in secret.

At the same time as their activities are conducted in secret, both CSIS and other national security agencies have unbelievably intrusive powers, which can intrude upon the rights and freedoms of Canadians. When we look at that total package, we have to say to ourselves that obviously we want to protect ourselves in respect of national security, but at the same time, we want to protect our fundamental freedoms, which are guaranteed in the Charter of Rights. How do we do that?

These are very important questions. Probably one of the most difficult questions in our legal system today is about balancing national security along with our fundamental freedoms, and I think the answer to that is effective oversight by a parliamentary committee and independent review by an expert body. Let me take you through that.

First of all, at the outset, let me say that I'm very pleased that the government is intending to create a committee of parliamentarians to oversee the activities of our national security agencies. I have a number of problems with Bill C-22, which I will share with you at the end of my presentation. I understand you're going to be dealing with it next week, and I have some comments on Bill C-22, but certainly, parliamentary oversight by this committee is a step in the right direction to strengthen our national security system, both national security agencies and national security reviews.

The question is, is it enough? My firm answer, having dealt with national security issues for the last 10 years and in dealing with top secret evidence and national security agencies, is that we need something more, and this something more has to complement the parliamentary overview of this committee or whatever committee there will be in respect of dealing with our national security agencies. On the one hand, we have oversight, which is done by a parliamentary committee, and on the other hand, we have review, which is done by an independent expert body.

Let me tell you the differences between that, because Commissioner O'Connor in the Arar report dealt with those concepts dealing with oversight. It's a good step, as I said before, to have parliamentary oversight by a committee. Most liberal democracies have that, and it's good that we're going in that direction.

What is oversight? Oversight deals with efficacy issues, such as how the national agencies are running and what policy system should be applicable to our national security agencies. It's a blue-sky review or analysis. As parliamentarians, you don't have the time to get on the ground to deal with the review issues.

What is review? Review looks at the national security agency, after the fact, on the basis of propriety against standards of lawfulness, policies, and other kinds of standards. It's what SIRC does. As you know, SIRC is the review body of CSIS.

On the one hand, we have parliamentary oversight dealing with systemic issues and policy issues, and on the other hand, we have review.

You may ask yourself, now that we're going to have parliamentary oversight with this committee of parliamentarians, we have SIRC, and we have the CSC commissioner. don't we have the best of both worlds? The answer to that is clearly not.

Over 10 years ago, Commissioner O'Connor, in the Arar report, said that our review system is inadequate. Now, with Bill C-51, the problems with review are even more glaring.

I will give you three examples of why the review system is not sufficient and adequate today.

First, our review system is siloed. It only has jurisdiction over one agency. It doesn't have jurisdiction over all of the agencies. All of our national security agencies operate jointly. You just can't have a review body over CSIS when it's working with the CBSA, RCMP, and so on. That siloed jurisdiction is totally inadequate.

Second, national security agencies have been given more and broader powers by Bill C-51, and our review agencies have to be given more powers and resources that deal with these expanded powers.

The third example is about personal information. Bill C-51 gives over 100 Canadian agencies the power to send personal information to 17 Canadian agencies, such as CSIS. Of these 17, 14 of these agencies receiving this information do not even have a review mechanism. There's a number of reasons why the system is fraught with difficulty and why we need a broader review mechanism that has authority over all of the national security agencies.

In the last minute or so that I have, I'll deal with the problems with Bill C-22.

The main problem is that the government can interfere with the mandate of the committee. The committee is given authority to do a national security review, unless the minister says it would be injurious to national security.

It's the same thing with respect to access to information. The committee can ask for information from a minister or an agency, but it can be refused on the basis that it's injurious to national security. The problem with that, as the Supreme Court of Canada said in the Harkat case, is that governments constantly over-claim national security confidentiality assertions not only in this country, but in the United States, the U.K., and elsewhere.

The decisions made by the minister under Bill C-22 to refuse information and to refuse this committee to investigate is not reviewable by a court, which is a power I have never seen in this country.

You'll see in my paper a number of difficulties with Bill C-22, which is going in the right direction, but it's not quite there yet.

Thank you.

[Dominique Peschard, Spokesperson, Ligue des droits et libertés]

Good afternoon. I thank the members of the committee for having come to Montreal to hear what we have to say.

The Ligue des droits et libertés is a non-profit and non-partisan organization founded in 1963. Its objectives are to defend and promote the rights recognized in the International Declaration of Human Rights, and we support its principles of universality and visibility. The Ligue des droits et libertés is a member of the International Federation for Human Rights. Is also one of the oldest rights advocacy organizations in the Americas.

I am accompanied by my colleague Denis Barrette, who is a lawyer and a member of the Ligue des droits et libertés. Regarding the standing committee's interest in public and national security, Mr. Barrette represented the International Civil Liberties Monitoring Group—of which the Ligue is a member—at the commission of inquiry on Maher Arar, presided by Judge O'Connor. He will speak to you more particularly about the problems regarding accountability and the mechanisms to monitor the agencies.

We are very pleased that the government has initiated a public discussion on national security. I am aware that we will not be able to cover everything in 10 minutes, but I want to point out today that we would like the national security framework, which goes back to the events of September 11, 2001, to be reviewed.

To provide some context, I want to read two quotes. The first one reads as follows:

“Shall we fail to remember that nothing can so weaken security as the loss of liberty?”

These are the words of Ramsey Clark, the former American Attorney General.

The second quote is from the former Secretary General of the United Nations, Kofi Annan: “Upholding human rights is not only compatible with successful counterterrorism strategies. It is an essential element.” Since the attacks of September 11, 2001, anti-terrorism measures have generally been adopted in fear and haste in the wake of specific events, without substantive discussions on the appropriateness of these measures, and what is more important, without assessing their impact on our human rights regime and on the freedoms which must be protected.

Some of the rights that have been put at risk are the presumption of innocence; the right to privacy and protection against searches and invasions of privacy; the right not to be harassed, questioned, arrested or detained on the basis of suspicion or racial, religious or ethnic profiling; the right of everyone to a fair and equitable public trial, and the right of appeal; the right to a full and complete defence; the right to be protected against arbitrary imprisonment and torture; the right of asylum; the right to information and freedom of the press; and freedom of expression, including the right to demonstrate publicly and collectively.

All of these rights have been affected in one way or another since the attacks of September 11, 2001. The idea that has been promoted among the population is that if we want more security, we have to sacrifice freedoms and that this is a matter of balance. We want to emphasize that this is a profoundly erroneous and dangerous idea. We will not obtain greater security by sacrificing our rights. Rights and freedoms are the basis of security.

I quoted Kofi Annan, but in a United Nations report on terrorism, it was pointed out that the societies that have the greatest respect for rights are the ones where there is the greatest security, and where there is the least violence and the fewest attacks.

Moreover, we wish to reiterate our position that the Criminal Code prior to 2001, as well as the 12 international treaties against terrorism which Canada subscribed to, already allowed us to fight effectively against terrorism. In its brief tabled when Bill C-36, the Protection of Communities and Exploited Persons Act, was adopted, the Canadian Bar Association reminded us quite rightly that the Canadian government already has many legal tools to repress terrorist offences, and that the Criminal Code contains a solid arsenal of provisions aimed at fighting terrorist organizations.

We also wish to point out that the terrorist threat, as well as the search for security, have to be evaluated in a broader context. In a report submitted to the Secretary General of the United Nations in 2004 entitled “A more secure world: our shared responsibility”, an impressive list of threats to international peace and security was drawn up. The report also identified the main challenges, including war between states, and violence within states; poverty, infectious diseases and the deterioration of the environment; nuclear, radiological, chemical and biological weapons; terrorism; and organized transnational crime.

In other words, terrorism is a threat to security, but there are many others, that in fact cause the deaths of many more people throughout the world.

Moreover, it is quite dismaying to note to what extent governments refuse to learn lessons from the past 15 years. Western countries, including Canada, have waged many wars against Muslim countries. These wars have sown death, destruction and chaos, and have created conditions conducive to the development of terrorist breeding grounds. Rather than revising this disastrous policy, which only leads to endless war on terrorism, governments persist in making us believe that our security rests with the surveillance of populations and extraordinary police powers.

In this short presentation, we cannot critique all of the anti-terrorism laws and measures that exist in Canada. However, the law based on Bill C-51 adds a particularly worrisome level to the measures that already exist. The power to minimize the measures granted to CSIS reminds us of the abuses uncovered by the McDonald Commission, such as the fact that the RCMP stole the list of members of the Parti québécois, burned down a barn, and issued false FLQ communiqués to counter the separatist menace.

The new crime which consists in advocating or promoting the perpetration of terrorism-related offences in general is a threat to freedom of expression. People may be put on the no-fly list on the basis of simple suspicion, without knowing what is being held against them, and without really being able to defend themselves. The possibility of detaining people for a week on the basis of simple suspicion when no charges have been brought against them is extreme and unacceptable. We also share the opinion of the Privacy Commissioner of Canada, who criticized the new Security of Canada Information Sharing Act, based on Bill C-51.

Finally, we still do not have a mechanism to monitor and oversee national security activities. The proposed parliamentary committee is absolutely essential, and will be one of the ways of ensuring that the organizations concerned respect the charters and rights of citizens. However, improvements must be made to Bill C-22 which creates this parliamentary committee. It is essential that an independent body, with the capacity to closely examine all national security activities, be created. Otherwise, the committee will not be able to function.

In this regard, we share the point of view of the International Civil Liberties Monitoring Group, which will testify in the second panel. That said, we could go back to that issue, if you have questions on this topic for us.

In conclusion, you have the obligation not only to question anti-terrorist measures, but also to generate debate and promote real public discussion, both on the full exercise of fundamental rights and on the identification of true threats to security, as well as their causes and the means to curtail them. We are in favour of this consultation. It is a first step. We nevertheless expect this government to continue to set itself apart from previous governments by placing the rights and freedoms of individuals at the heart of security policies.

Thank you.

[The Chair, Liberal, Rob Oliphant]

My suspicion is that it's going to take several years to evaluate the whole thing. This year we have some very quick agenda items. We already have the first bill, which is before the House now: Bill C-22. I can't speak for the government, but generally this government has told us they're not in favour of omnibus bills, so each bill will come to us as a piece of legislation. It's not as fast, but this will be ongoing work.

[Roberto De Luca, As an Individual]

Thank you for the opportunity to address the committee. My name is Rob De Luca. I'm here today as a concerned citizen, but also in my role as a staff lawyer at the Canadian Civil Liberties Association. We are a national non-profit organization that has been working to protect civil liberties in Canada for more than 50 years.

One of our chief concerns regarding the Anti-terrorism Act, 2015, popularly known as Bill C-51, is the lack of new accountability mechanisms to oversee the state powers introduced by Bill C-51. On that note, we support the governing party's introduction of Bill C-22, which creates a national security intelligence committee of parliamentarians with the capacity to monitor classified security and intelligence activities and report findings to the Prime Minister.

I was happy to hear this afternoon that there was quite a bit more discussion of Bill C-22 than I was anticipating. I want to make some brief comments on Bill C-22.

One of our concerns with Bill C-22 as currently drafted is that while it is a move in the right direction, it is not sufficient to address the current accountability deficit in Canada's national security framework, such as the need for, first, integration into the investigations of existing review bodies and, ideally, consolidation in an enhanced expert review body; second, a truly independent monitor of Canada's national security laws; third, an independent oversight and review mechanism of the Canada Border Services Agency beyond any oversight and review accomplished by the committee of parliamentarians.

We are also concerned by some of the limits on the new committee of parliamentarians. Most notably, Bill C-22 gives the government the power to halt a committee investigation, an independent oversight or review, or to refuse to provide information when it is deemed “injurious to national security”. I have paragraphs 8(b) and 16(1)(b) of Bill C-51 in mind.

Part of the problem with these provisions is that they cannot be reviewed by a court or by an alternative dispute resolution process. This broad limit on the committee's power seems particularly out of place given that the committee of parliamentarians will be subject to significant national security safeguards, such as a prohibition on the publication of classified information.

My questions or suggestions are twofold on this narrow question, that is, whether the committee and the Government of Canada are willing to reconsider the significant limits it has placed on the national security oversight body, and if not, are the committee or the Government of Canada willing to consider allowing courts or a specially designated institution or review body the ability to review government decisions to halt committee investigations or a government refusal to provide the relevant information?

Thank you.

[Barrie Zwicker, As an Individual]

Thank you very much.

I had prepared more than three minutes' worth, but I'll have to meet the criteria. Thank you for the opportunity.

I'm glad that this standing committee exists. The one time in my life that I was before a standing committee of the House of Commons, we were gloriously successful, but I don't necessarily expect that to happen today.

I would like to begin with a short quotation from the British historian and peace activist, E. P. Thompson, who said, “The deformed human mind is the ultimate doomsday weapon.”

If ever two dots needed connecting, they are the current developments around Bill C-51 and Bill C-22 on the one hand, and, on the other, the historic ruling by a B.C. Supreme Court judge in the case of the 2013 so-called Canada Day terror plot in Victoria. That ruling, called a “stunner” by Faisal Kutty in a recent issue of the Toronto Star, should be an international landmark.

Yet in all the reportage—my background is in journalism and communications—and almost all the commentary I've seen to date, including that by commentators wary or critical of spy agencies, the B.C. Supreme Court ruling has become more or less an elephant in the room. Its heart is “police-manufactured” terrorism. Those words are from Madam Justice Bruce of the B.C. Supreme Court. The words that are not sufficiently used but should be for an operation like this are “false flag operation”. A deep and wide and adult conversation about false flag operations in general is long overdue and could well be—and should be, in my opinion—one of the contexts for this committee's hearings.

The “police-manufactured crime” quote is from a 344-page ruling by Madam Justice Bruce on July 29, striking down the terrorism convictions of John Nuttall and Amanda Korody. As Thomas Walkom observed in the August 3 Toronto Star, “the entire bomb plot couldn't have happened if the RCMP hadn't organized it”. The Mounties cruelly exploited two impoverished recovering heroin addicts with clearly obvious mental health challenges.

I couldn't help but think about this, which I was planning to discuss anyway, in listening two hours earlier to the experts before this committee. It almost seemed to be very airy-fairy to me, very legislatively complex and so forth, without a reference to this larger context of what happens in the real world and what generates headlines and causes anxiety throughout society.

Academic studies, official reports, and even newspaper editorials show that the theat of terrorism has for years been blown far out of proportion, much as has been discussed here and is a matter of legitimate scrutiny for this committee.

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

I call the meeting to order.

Good evening. Welcome to this meeting of the House of Commons Standing Committee on Public Safety and National Security. This is our 34th meeting in this Parliament.

You're probably aware that the committee has been undertaking a study regarding the national security framework as it exists in Canada right now and as Canadians hope it should exist in the future. This is a study that is going on in parallel with a similar consultation being done by the Government of Canada.

The government, through the Minister of Public Safety and Emergency Preparedness, has issued a green paper in a short version and in a long version. This committee is not doing a consultation on the green paper; however, we are using the green paper to help us do a study of the whole framework. We are guided by the green paper, but we're not limited to it. It does provide a certain number of questions that we think are helpful for us to consider.

Already, the minister has presented a first piece of legislation, which has been tabled in the House. It is called Bill C-22, and it is in regard the oversight of national security agencies by parliamentarians. This piece of legislation is currently at our committee; it has been passed at second reading. It does come up in our meetings as we continue. However, it's a small part of the whole national security framework. It is the first and very important part, but it is a small part and is actually only part of oversight.

Our committee had meetings in Ottawa a couple of weeks ago as we began this study, and then we took it on the road. On Monday we were in Vancouver, where we held two meetings. Yesterday we were in Calgary. Today we are in Toronto. This is our second meeting here. Our format has been to have an afternoon meeting where we hear from invited witnesses, who give us testimony regarding questions that we have usually asked them to speak about. These people often represent organizations, but sometimes they come as individuals. They give us a broader understanding of what we are attempting to frame as a national security framework.

Because we are travelling, the afternoon meetings look very much like our Ottawa meetings. In the evenings, however, we have decided to hold public meetings where you are invited to give your thoughts to the committee. We have about 25 people so far who have asked to speak tonight. You might want to go to the desk and get on the list if you're not already there. Because we have about 25 people, I'm going to suggest that we limit remarks to about three minutes each. If it's like it was in Calgary and Vancouver, people will come in after the meeting has started and after they're finishing work and getting here through traffic.

The committee may or may not have a question for clarification regarding what you say, so I will be watching the committee members to make sure they have a chance to ask any questions they may have.

I'm going to have the committee members introduce themselves and their ridings.

[John Brassard, Conservative, Barrie—Innisfil, ON]

Mr. Segal, since it appears that you and I will only be here in one place at one time, I want to focus most of my remarks toward you.

With respect to Bill C-22, I'm sure you're aware that in the proposed legislation by the government that there are seven exemptions they are talking about. For example, the committee can't look into ongoing criminal investigations, anything to do with defence intelligence, the Investment Canada Act related specifically to money laundering, or the terrorist investment act.

My question to you is, and it's a matter of your opinion, do you think this committee will be limited in the teeth it will have to deal with this? Will it consolidate all power to the Prime Minister's Office? Lastly, how can you have real oversight or overview if you're limiting what a committee of parliamentarians can see?