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.

The House proceeded to the consideration of Bill C-22, An Act to establish the National Security and Intelligence Committee of Parliamentarians and to make consequential amendments to certain Acts, as reported (with amendments) from the committee.

Speaker's Ruling

[The Speaker, Geoff Regan]

There are seven motions in amendment standing on the Notice Paper for the report stage of Bill C-22.

The Chair has received a letter from the government House leader arguing that Motion No. 6 could not have been presented in committee, as the changes it proposes arose out of a decision of the Supreme Court rendered very shortly before the Standing Committee on Public Safety and National Security began clause-by-clause consideration of the bill. A similar argument was made in relation to part (b) of Motion No. 3. The court decision in question was rendered on Friday, November 25, 2016, and clause-by-clause consideration began on Tuesday, November 29, 2016. The government House leader contended in her letter that there was not sufficient time to analyze the consequences of the decision and prepare amendments accordingly. For that reason, she has asked that they be selected at report stage.

The hon. member for Victoria has also sent a letter to the Chair arguing that these amendments should not be selected, as he believes they should have been presented in committee. He also argues that there are cases in the past where the Chair has refused to select motions presented by the government.

As members know, consistent with the note to Standing Order 76.1(5), the Chair would not normally select motions that could have been presented or were defeated in committee.

However, there have been exceptions. On September 22, 2014, the Speaker was faced with a similar case in relation to a motion at the report stage of Bill C-13, an act to amend the Criminal Code, the Canada Evidence Act, the Competition Act and the Mutual Legal Assistance in Criminal Matters Act. The hon. member for Charlottetown submitted a motion arising out of a court decision rendered after clause-by-clause and, in that case, the motion was selected.

The circumstances in the present case, although not identical, are sufficiently analogous to satisfy the Chair that the motions in question should be selected for consideration at report stage.

The Chair has examined the remaining motions submitted and is satisfied they meet the criteria spelled out in Standing Order 76.1(5). Motion No. 1 could not have been presented in committee, as it requires a royal recommendation. Part (a) of Motion No. 3 and Motion No. 4 further amend changes made by the committee. Motion No. 5 restores a clause deleted by the committee. Motions Nos. 2 and 7 propose to delete clauses. These motions will all be selected.

Motions numbered 1 to 7 will be grouped for debate and voted upon according to the voting pattern available at the table.

I shall now propose Motions Nos. 1 to 7 to the House.

Motions in amendment

[Bardish Chagger, Liberal, Leader of the Government in the House of Commons and Minister of Small Business and Tourism]

moved:

Motion No. 1

That Bill C-22, in Clause 4, be amended by

(a) replacing line 34 on page 2 with the following:

and up to ten other members, each of whom must be a

(b) replacing lines 3 to 6 on page 3 with the following:

(2) The Committee is to consist of not more than three members who are members of the Senate and not more than eight members who are members of the House of Commons. Not more than five Committee members who

Motion No. 3

That Bill C-22, in Clause 13, be amended by

(a) replacing lines 8 and 9 on page 6 with the following:

to sections 14 and 16, the Committee is entitled to have access to

(b) replacing lines 14 and 15 on page 6 with the following:

ed by litigation privilege or by solicitor-client privilege or the professional

Motion No. 4

That Bill C-22, in Clause 14, be amended by replacing lines 21 to 24 on page 6 with the following:

14 The Committee is not entitled to have access to any of the following information:

(a) a confidence of the Queen's Privy Council for Canada, as defined in subsection 39(2) of the Canada Evidence Act;

(b) information the disclosure of which is described in subsection 11(1) of the Witness Protection Program Act;

(c) the identity of a person who was, is or is intended to be, has been approached to be, or has offered or agreed to be, a confidential source of information, intelligence or assistance to the Government of Canada, or the government of a province or of any state allied with Canada, or information from which the person’s identity could be inferred;

(d) information relating directly to an ongoing investigation carried out by a law enforcement agency that may lead to a prosecution.

Motion No. 5

That Bill C-22 be amended by restoring Clause 16 as follows:

16 (1) The appropriate Minister for a department may refuse to provide information to which the Committee would, but for this section, otherwise be entitled to have access and that is under the control of that department, but only if he or she is of the opinion that

(a) the information constitutes special operational information, as defined in subsection 8(1) of the Security of Information Act; and

(b) provision of the information would be injurious to national security.

(2) If the appropriate Minister refuses to provide information under subsection (1), he or she must inform the Committee of his or her decision and the reasons for the decision.

(3) If the appropriate Minister makes the decision in respect of any of the following information, he or she must provide the decision and reasons to,

(a) in the case of information under the control of the Royal Canadian Mounted Police, the Civilian Review and Complaints Commission for the Royal Canadian Mounted Police;

(b) in the case of information under the control of the Communications Security Establishment, the Commissioner of the Communications Security Establishment; and

(c) in the case of information under the control of the Canadian Security Intelligence Service, the Security Intelligence Review Committee.

Motion No. 6

That Bill C-22, in Clause 21, be amended by replacing lines 27 and 28 on page 8 with the following:

is protected by litigation privilege or by solicitor-client privilege or the

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

, seconded by the member for Bécancour—Nicolet—Saurel, moved:

Motion No. 2

That Bill C-22 be amended by deleting Clause 12.

[Murray Rankin, NDP, Victoria, BC]

moved:

Motion No. 7

That Bill C-22 be amended by deleting Clause 31.

[Bardish Chagger, Liberal, Leader of the Government in the House of Commons and Minister of Small Business and Tourism]

Mr. Speaker, I rise today to speak to Bill C-22 as we consider the bill as reported to this House by the Standing Committee on Public Safety and National Security.

I would like to commend the standing committee for its thorough review of this important bill. The standing committee heard evidence and views from a wide array of stakeholders and experts. I was pleased to testify with the Minister of Public Safety and Emergency Preparedness and our officials. Others who appeared at the committee included the heads of Canada's national security and intelligence agencies, our existing national review bodies, the Information and Privacy Commissioner, human rights advocates, and leading professionals and academic experts in the area.

With such a diversity of witnesses, it is not surprising that the committee heard differing views on some of the specific provisions of the bill. However, I believe one overriding theme has emerged from the debate on Bill C-22 so far. The national security and intelligence committee of parliamentarians, or NSICOP, is definitely an idea whose time has come.

Our government believes strongly in the importance of a well-functioning and accountable national security system that both protects Canadians while at the same time respects their rights and freedoms. Bill C-22 would fulfill a key commitment made during the last election to create a new national security and intelligence committee of parliamentarians.

The proposed bill would establish a rigorous parliamentary oversight mechanism of national security and intelligence activities. The committee of MPs and senators would have a mandate that is distinctly broader than is the case in most other countries. It would be empowered to examine activities across the entire federal government, including operational matters.

Our government believes in the importance of those powers granted to the committee, while also ensuring that safeguards exist, so that certain classified information is not disclosed that could disrupt government operations or be injurious to national security.

Commentators have been virtually unanimous in commending the government for taking this major step in enhancing the accountability and effectiveness of our national security and intelligence apparatus. They have noted that a genuine capacity for parliamentarians to scrutinize government activity in this area has been a long-time coming in Canada.

It has been over 30 years since the McDonald Commission proposed this type of committee. During the intervening years, Canada has been left as the only Five Eyes partner that has not created a permanent structure to provide parliamentarians with access to classified national security and intelligence information.

As one of the witnesses mentioned, this is the first time that there have been hearings before a standing committee with respect to a government bill on this subject. Therefore, this is an important step that has been taken because the government made it a clear priority.

The standing committee heard several witnesses explain how the structure created by Bill C-22 is comparable to those established by other countries. In particular, Bill C-22 was often compared to the intelligence and security committee that was active for a time in the United Kingdom.

The U.K. experience is indeed an informative one, providing a relatively longstanding example of a committee operating in a Westminster system comparable to our own, and one whose mandate and structure has evolved over time. As in the U.K., Bill C-22 would seek to balance the access to highly sensitive classified information that would be afforded to parliamentarians, with protections to ensure that this information and vital ongoing operations would not compromised.

However, it is important to remember that while its development has been informed in important ways by international comparators, Bill C-22 would be very much a made in Canada approach. In particular, Bill C-22 would reflect our government's commitment to ensuring that all national security and intelligence activities of the Government of Canada would be included within the NSICOP's mandate, regardless of which department or agency is responsible for them; that is, the committee's mandate would not be limited to particular agencies, as is the case in other countries.

On this point, I was pleased to see that one of the amendments reported to us by the standing committee would make it clear that NSICOP's mandate and access to information includes crown corporations. I fully support this amendment as it would further the government's objective of ensuring that the committee could review in totality national security intelligence activities across the whole of government. This is a good example of the constructive discussions that were had around the committee table.

I was also pleased to see the inclusion by the committee of a whistleblower provision which would cause the committee to inform the affected minister and Attorney General of any activity carried out by a department related to national security or intelligence which may not be in compliance with the law.

Another unique aspect of Bill C-22 is that it would provide the new committee with a clear mandate to review any national security and intelligence operation, including operations that are ongoing.

The laws of other countries place more restrictions on this type of operational review. For example, some committees cannot examine the operations until they cease or if they obtain the government's approval in advance.

The NSICOP would have the statutory right to access highly classified national security and intelligence information in any department or agency and now any crown corporation as well. Again, this would put Canada at the forefront in terms of international comparators, and certainly no existing review body in Canada has this wide scope of access. Of course, as in other jurisdictions, Bill C-22 would also include some limits to access to information. These are carefully defined to protect the personal information of Canadians, the safety of individuals, the integrity of police investigations, and other important public interests.

The standing committee made some significant changes to the bill in this area, essentially removing all limits. Although I appreciate the spirit in which these amendments were made, I believe we need to consider the potential consequences very carefully. In doing so, we need to keep in mind the unprecedented scope of the NSICOP's mandate and access to information compared to other review bodies in Canada and elsewhere.

I have moved in the House further amendments to these sections, specifically for clauses 13, 14, and 16 of the bill. The proposed amendment to clause 13 is intended to ensure that the work of the NSICOP would proceed in the reasonable manner that is consistent with its mandate and would not be bogged down in judicial procedures.

My proposal to reintroduce some of the mandatory sections to the NSICOP's access as originally set out in clause 14, would ensure the necessary protections would be in place for the safety and security of individuals, and that active national security-related police investigations would not adversely affected.

Finally, my proposed reinstatement of clause 16, as it appeared when the bill was tabled, is meant, based on a minister's discretion, to protect against the risk of inadvertent disclosure which may cause harm to Canada or Canada's partners' national security interests. These proposed amendments would seek a balanced approach between the original version of the bill and the changes made by the standing committee. We are being responsive to the standing committee's concerns while trying to maintain necessary protections.

Enhanced accountability is not a one-off initiative, but rather an ongoing effort that requires continued commitment and periodic reassessment. The NSICOP would be a major step forward in improving the accountability of the government's intelligence and national security activities. We are starting ahead of where other countries began. The committee would have a broad mandate, and would have access to extensive information. That is the best possible starting point for the launch of this new committee of parliamentarians.

As the committee gains experience and expertise in its years of operation, we would have the opportunity to reassess whether this balance can be further improved. I urge hon. members to join me in supporting Bill C-22 and the accompanying amendments.

[Ted Falk, Conservative, Provencher, MB]

Mr. Speaker, as far as populating the committee, as it stands today, is the bill consistent with the practices of other Westminster parliaments in their appointments to this particular committee?

[Bardish Chagger, Liberal, Waterloo, ON]

Mr. Speaker, the committee did extensive work bringing in witnesses. There was a diversity of opinions that were shared.

The amendments that we have proposed really find the balance. When it comes to the appointments, the Prime Minister will be making those appointments, and working with leaders of opposition parties to ensure that they have the ability to share who they would like to see on the committee.

This government will always work in the best interests of Canadians.

[Murray Rankin, NDP, Victoria, BC]

Mr. Speaker, in respect of Motion No. 4, which would remove the committee's power to subpoena witnesses and documents, why was this change removed? Why do we no longer have, as we would have had with the public safety committee's report, the opportunity to compel information? This is something that every parliamentary committee has but this one would not.

I understand that this was proposed, the idea of a subpoena power, by a Liberal member on that committee. It was also a feature of a Liberal private member's bill, Bill C-622, which was supported by the current Prime Minister, the current Minister of Public Safety and Emergency Preparedness, and the future chair of this committee, among other current cabinet ministers.

Why, therefore, did the Liberals feel it necessary to remove such a fundamental power from this committee?

[Bardish Chagger, Liberal, Waterloo, ON]

Mr. Speaker, I thank the member for his good work, and I hope we can continue to work together in the best interests of all Canadians.

The hon. member knows very well that when it came to experts, they said that this was great the way it was. If anything, these amendments take into consideration the work that the committee did, and make this legislation even better.

When it comes to subpoena powers, the committee's amendment to clause 13 of the bill has created several inconsistencies that will create conflict. For instance, clause 15 clearly states that when the committee is entitled to be provided oral testimony on an issue, the appropriate minister or officials of the department may appear before the committee to provide the information orally.

The committee is amending clause 13 to give the committee the power to send a specific individual of their choosing. Essentially, under section 13 and 15, both the government and the committee would have the power to determine who should appear to provide testimony, and yet there is no recourse mechanism to solve the deadlock.

We are working in the best interests of this committee. We have to remember that it is the first of its kind in this country, and it is important that we take this necessary step. As I said earlier, it is time that we get it done.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Mr. Speaker, I thank the hon. House leader for explaining why the government feels it needs to pull back on the good work done in committee. I do not believe, with all due respect, the government has the balance right.

Why is it that restrictions on access to information for parliamentarians serving on this committee are more extreme and restrictive than those for the people who are appointed to the security intelligence review committee or the CSE commissioner, who do not have the restrictions on information?

Do the Liberals trust SIRC more than parliamentarians?

[Bardish Chagger, Liberal, Waterloo, ON]

Mr. Speaker, I thank the member for her important work that she does every day. I look forward to continuing these conversations.

I can assure the member, and I can assure Canadians, that we have struck the right balance. It is important that we be able to actually provide this additional oversight body that has a scope that is unlike any other body that exists today.

This is a committee of parliamentarians, the first of its kind, providing access for parliamentarians to classified information in a way that has not been seen before. This is a good beginning, and it is further ahead than most other countries have ever started. We were able to see great expert witnesses in the committee's work. It was important that it did. We have taken it into consideration, and there is a three-year review mechanism that has also been provided so that we can continue to improve this legislation, if there be a need.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Mr. Speaker, it is my honour to rise today to speak to Bill C-22. I had not thought that we would see government amendments at report stage that undo a lot of the good work that has been done by the committee.

I approach this issue by first saying I support the creation of a national security committee of parliamentarians. I learned a great deal about the intelligence business, the security business, and where Canada stands within our Five Eyes partners, in the efforts to fight Bill C-51 in the last Parliament. I still hope that the review that is being undertaken right now by the Minister of Public Safety and Emergency Preparedness and the Minister of Justice will lead to massive changes in the five different bills, and others, that were amended through that omnibus bill known as Bill C-51, which set up CSIS, for the first time since its creation, as a body that can “disrupt” thoughts, act as having a kinetic function, as the experts call it.

There is nothing right now within our security agencies that ensures that there is any oversight, unlike our other Five Eyes partners, as the hon. government House leader mentioned. We do not have any oversight for a number of the bodies at all. We have no oversight for CSIS. There had been oversight of CSIS up until the moment of omnibus Bill C-38 in the spring of 2012, which eliminated an adviser to the Minister of Public Safety to warn him or her if CSIS was going amok. That position was eliminated, so there is no oversight of CSIS; rather, there is review of CSIS. There is no oversight of the RCMP; rather, there is review of the RCMP. There is neither oversight nor review of the Canada Border Services Agency. For the Communications Security Establishment Canada, which is a very strange body that collects and downloads massive amounts of metadata, there is neither oversight nor review.

We have all of these different intelligence agencies, therefore, it is of critical importance that we do two things. We must rein in and undo the damage and the potential chaos created for security agencies by Bill C-51. I say this parenthetically. I want to get to Bill C-22. However, I need to say that my opposition to what was done in the 41st Parliament in what was known as Bill C-51 was not exclusively with respect to concerns about civil liberties. Those are concerns, but I have heard from security experts in the course of a review of that bill. It is clear to me that, failing to ensure coordination between and among all of these agencies, while giving CSIS the right to be active in kinetic operations, to be able to have CSIS offer people they are surveilling basically a get-out-of-jail-free card, a prospective guarantee that they will never be arrested or put into the judicial system, without any alert to the RCMP that this has happened, the one hand will not know what the other is doing. The creation of the national security committee of parliamentarians will not address that threat, although we will have to address this concern. It has been one that has been well known since the inquiry into the Air India disaster where if there had been coordination enforced between the different security agencies, that disaster, the single largest terrorist act on Canadian soil ever, could have been avoided. That was certainly the opinion of the Air India inquiry.

Coming back to Bill C-22, I support the creation of a committee of parliamentarians. However, I am baffled by the changes that have just taken place. I turn to the leading Canadian experts in this, Kent Roach and Craig Forcese, professors of law, both of whom played a role in the Air India inquiry. They are the authoritative experts to whom I turn. Certainly, Professor Craig Forcese is baffled by the limitation on what parliamentarians will be allowed to know. I mentioned in my question earlier to the government House leader that these restrictions do not apply to the people who serve on the Security Intelligence Review Committee, SIRC, to which civilian non-elected people are appointed. For the purpose of pointing out that the appointment process can have gaps with respect to security, let us not forget that former Prime Minister Stephen Harper appointed the now late committed fraudster Arthur Porter as the chair of SIRC. Arthur Porter did not have the restrictions that Bill C-22 would now put on parliamentarians, who are elected, who take an oath, and who have an understanding of their responsibilities.

My amendment to the bill is to delete section 12, which is the section that limits the MPs' access to parliamentary privilege. It is what Craig Forcese has called the triple lock on what MPs and senators are allowed to know.

Parliamentarians sitting on this committee have already sworn allegiance to Canada. They will go through security checks. The way the bill is currently written, it is not as though there is no check on their access to information or risk of their revealing information. The Canada Evidence Act would apply, section 38. Even as these government amendments are rolling forward, Professor Forcese has noted that it would be probably better to rely on court and the Canada Evidence Act than on these very restrictive moves in terms of what parliamentarians can know, an overly generous discretion on the point of what ministers can withhold, as well as getting rid of what was a very good amendment achieved in committee of giving the committee subpoena powers.

I have to say that it is just simply baffling that the government has taken such a restrictive view on what parliamentarians can be allowed to know. I will just note that this is from an article by Professor Forcese titled, “Stronger Bill C-22 Goes Back to the House”. This was before the government amendments came forward. He noted that, “C-22 committee members will be surrendering parliamentary privileges and will be permanently bound by secrecy under the Security of Information Act (and therefore subject to criminal sanction for violating secrecy rules).”

I think the government, with all due respect, has overreacted to very good amendments that were passed by the committee, and this is a larger point as well. We are often told in this place that we should rush legislation through second reading so that it can go to committee where the committee will do the good work. We now have a fair litany of times where the Liberal government, with its majority, has decided to ignore the good work of committees.

The first was, of course, the committee that dealt with medically assisted death. That advice was completely overlooked in the drafting of Bill C-14. We have the committee work, on the committee on which I served, the Special Parliamentary Committee on Electoral Reform, and that is a very sad story because we need to get back to that, but very good work was done.

For the first time since 1867, when the British North America Act said Canada will use the voting system from Westminster until such time as its Parliament chooses its own voting system, we had Parliament recommend a voting system and a way forward, and that was rejected. Now this committee's work has been rejected and, I think, hastily.

There is a way forward here. There is an appropriate balance. I do believe that the parliamentary committee struck that balance, and it is really important to remember that what the committee is looking at is already protected in many ways.

The U.K. parliamentary committee has never had a problem with breaching secrecy. One of the experts who testified in Bill C-51, Joe Fogarty from U.K. MI5, testified that there just simply were not problems. Parliamentarians instructed with the duty to maintain confidentiality have done so.

I also point out the precedent that the New Zealand Parliament has a very similar committee, and the New Zealand members of Parliament who serve on that committee do not have to surrender parliamentary privilege. It is explicitly preserved under the New Zealand model.

It leaves one wondering why the government has chosen to undo the good work of committee, further undermining the proper role of legislated deliberation in committee coming back to this place at report stage, doing serious damage to the work that was done by the committee, leaving, I fear, greater uncertainty as to how the committee will function and still wondering why is it that in taking measures to restrict the information that parliamentarians have, the independent expert national security review bodies, SIRC and the CSE commissioner, are not given the same set of handcuffs.

I do not think it makes sense. I urge the government to reconsider and accept my amendment.

[Kevin Lamoureux, Liberal, Parliamentary Secretary to the Leader of the Government in the House of Commons]

Mr. Speaker, I appreciate the words the leader of the Green Party has put on the record, and understand her concerns, but I would like to emphasize that this is important. As the government House leader has put on the record, Canada is now going to have this parliamentary oversight committee. The other countries associated with the Five Eyes, U.S.A., England, Australia, and New Zealand, already have a parliamentary oversight committee, so this is a very strong, positive step forward.

Within the legislation there is accommodation for us to review it. Would she not agree it is absolutely critical that as we move forward we get it right? There is always going to be room for improvement in the future. Even though there might be a sense of disappointment from some members of the House, there will be opportunities for us to review it. Would she not agree that the legislation being proposed through amendment is good legislation in its own right?

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Mr. Speaker, as I said at the outset of my speech, I believe the creation of a national security committee of parliamentarians is a good step forward. I lament that what has been done today with government amendments at report stage undoing good work at the committee is both regrettable and unnecessary.