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.