Thank you very much, Chair.
Good afternoon. It is a privilege to be here before the committee again. Thank you very much for the opportunity, and thanks again to Professor Levi for generously sharing his time.
I'd like to build a bit on his remarks and on the importance of learning from comparative experience, so let me start with something this committee already knows, which is that we cannot talk about Canada's national security framework without addressing the urgent need to update our framework for national security accountability. The international experience shows that Canada is, quite frankly, lagging behind our closest allies when it comes to comprehensive national security oversight and review.
This committee is currently studying Bill C-22, which would create a national security and intelligence committee of parliamentarians. Political accountability is critical, and the move towards formalizing legislative review is a very welcome development; but as you will have heard from others, a modernized system of national security accountability requires more. Canada's system of independent expert review exists as a patchwork, in contrast to the consolidated model of integrated review that we see in countries like Australia.
The judiciary can play an important role in both oversight and review across a range of national security activities, from authorizing warrants for intelligence activities that might implicate constitutional rights to adjudicating claims arising from government actions. However, unlike in the United States, our courts play little role in authorizing foreign surveillance that might infringe on guarantees against unreasonable search and seizure. These are just a few examples.
This is of course not to say that there is a perfect model for accountability or even a best model. If anything, the value in comparative approaches is in seeing both what works and what does not work. We need not look any further than the recommendations from the Arar inquiry, or last year's extraordinary open letter calling for immediate reform to national security accountability, a letter that was signed by former prime ministers, senior security officials, and former Supreme Court justices. We need not look any further than to our own experts to know that the current system must be improved.
This national consultation we're taking part in represents an important moment of opportunity towards creating an integrated and comprehensive accountability framework, one that can evaluate whether national security policy and practices are effective, legal, and rights-respecting. International comparisons can help us build this framework.
Done right, a robust system of accountability enhances public trust. Also important for public trust is some measure of transparency in how government goes about protecting our national security. This is made complicated by the fact that national security activities will necessarily require some secrecy. Yet I would say that the experience has shown that government sometimes tends towards reflexive secrecy. The commissioners in both the Arar and the Air India inquiries concluded that the government over-claimed secrecy during the course of those two proceedings. Chief Justice McLachlin noted, in the 2014 Harkat decision, that government tends “to exaggerate claims of national security confidentiality”.
Excessive and unnecessary secrecy is problematic for several reasons. First, as Justice O'Connor noted in his report on the Arar inquiry, when government over-claims the need for secrecy, it “promotes public suspicion and cynicism about legitimate claims...of national security confidentiality”.
Second, Canadians should be able to understand and judge for themselves the nature of the security threats facing the country and the appropriateness of our responses to those threats. Excessive secrecy makes this sort of assessment difficult for ordinary Canadians.
Third, secrecy becomes normalized. We see this in new legislation allowing the use of secret evidence in closed courts, and judicial reviews of passport denials and no-fly listings. When processes are secret it's hard to know or hard to believe that they are fundamentally fair. The open court principle is foundational to the common law, and secrecy in the courts should be exceptional. In a democratic society we should always be looking for ways to make proceedings more transparent, not less.
So how do we balance fairness and transparency with the very real need to keep national security information from falling into the wrong hands? In the case of judicial proceedings, at least, we can learn from the criminal justice experience on how to protect sensitive sources and information in an open court, on which mechanisms are best for determining where the appropriate balance lies between confidentiality and disclosure, on how to go about gathering intelligence that can be presented in a court of law. The constitutional demands for a criminal proceeding may be different from those in administrative or civil cases; however, the presumption in favour of transparency and openness should not be.
Thank you again for this opportunity and we look forward to your questions.