Thank you, Mr. Chairman, members of the committee. I thank all of you for the invitation to appear to assist your study of Bill C-22.
Like my friend Wesley Wark, I believe this represents a major and welcome change within our Canadian parliamentary system. I say this having been both a parliamentarian for two short terms under Liberal and Progressive Conservative governments, as well as the first chair of the Security Intelligence Review Committee in 1984-89.
It's a major change because it accepts the recommendation, as Wesley pointed out, of not only the Macdonald commission in the seventies, but also the of the Mackenzie commission in the sixties. It goes back to there, where they recommended some form of parliamentary oversight committee.
I recall that at the time Canadian governments and their security agencies were a bit hesitant at allowing elected MPs into the national security tent, because there was no assurance that they could keep security information a secret in the red-hot political environment in Ottawa. There was some concern among our allies at the time that elected members of Parliament should have access to the most secretive of all secrets, let alone have the time and inclination to monitor closely the vast array of departments and agencies with various security issues.
I must admit that when I was the first chair of SIRC, in 1984, our committee of privy councillors, and we were from different political parties, all went along with the notion that expert review of security intelligence was something that should be done only by independent persons of experience who could talk to MPs to get their views without necessarily giving them the secret information they might otherwise be interested in.
Bill C-22 represents a welcome change to that way of thinking—welcome in the sense that we saw Canada in the last three decades fall behind our parliamentary cousins in the United Kingdom and Australia in terms of accountability to Parliament, and we have now the chance to get caught up. It's welcome also in the sense that the important parliamentary debates in this century, particularly after 9/11 on Bill C-36, and after the 2014 attacks in Ottawa and Saint-Jean-sur-Richelieu on Bill C-51, were overly partisan, in my opinion, and not as well informed in the absence of a committee of parliamentarians such as the one being proposed.
I have some amendments. You asked me a couple of weeks ago what I would propose, and let me suggest just a couple. Let me say at the outset I emphasize that this is a good bill and it should be passed in this session of Parliament. It will help to ensure Canadians that their elected representatives will play a key overview role in accountability for the important but dangerous powers granted to some 17 departments and agencies that relate to national security.
Is it a perfect bill? No. Are there areas where amendments can be considered to improve the bill? Yes. Will this bill fix all the problems of BillC-51 and companion legislation that have concerned many Canadians over the last 18 months? Not at all. This bill is a first good step, but it should not be an excuse for government in action on fixing Bill C-51 during the remainder of this Parliament.
First of all, I suggest amendment on ministerial veto. Have a close look at this. The possibility of the proposed committee's work being frustrated by any minister determining that the review of his or her department would be injurious to national security is overly protected and should be removed or modified.
No such veto existed when I chaired SIRC between 1984 and 1989. And yes, there were tensions from time to time with CSIS, the body we were reviewing, but matters were worked out as they are in a reasonable context of being within the security tent. To my knowledge, no security operations were compromised at the time.
The language of BillC-22 in paragraph 8(b) reflects a reluctance to have the committee of parliamentarians act as a true watchdog.
Access to information is the second of my amendments. In order to do its work, the committee is rightly given access in clause 13 to any information that is under control of the department. This is a key for any watchdog to be effective, yet there are important exceptions in clause 14, which are well understood and accepted in the security intelligence community. I accept those for the most part.
However, then comes the discretionary refusal of information in clause 16, where the minister has decided that the provision of the information would be injurious to national security or would constitute special operational information. That's the nub. This is open-ended and dangerous in my opinion. Yes, the minister must tell the committee the reasons for the open-ended refusal, and this should be considered by way of amendment. But I think other investigative work of the committee may be frustrated if this is retained in its current form.
The third area of amendments relates to prime ministerial redactions.
A broad power is given in Bill C-22, in subclause 21(5), allowing the PM to direct the committee to submit a revised report to Parliament, one that has been censored for reasons of national security, national defence, or international relations.
This is a matter that was litigated between the Arar commission and the Harper government in 2007. Here I make full disclosure that I was participating in that case, as counsel on behalf of the Arar commission. The court had to consider, in that case, some 2,000 words in dispute in the commission's final report. Justice Noel found that a half of them should be disclosed in the public interest and a half of them should remain confidential.
The directed wording of Bill C-22 would preclude this court adjudication and would give full power to the PM and his officials to censor committee reports he doesn't like, with no explanation. At the very least, I think when he directs redactions, he should have to give the committee a detailed reason for his decision in camera, as in the case with ministerial refusals of information under subclause 16(2).
Finally, I recommend some form of dispute settlement system for some of these contentious matters, whether it's paragraph 8(b), or subclauses 16(1) or 21(5), the ones that I've just mentioned. They should be subject to in camera dispute settlement in the courts.
In my experience, the nine designated judges of the Federal Court have the proper structure and experience to adjudicate balancing the need for government secrecy against the public interest in disclosure in accordance with law.
In my concluding comments with respect to general structures and powers, let me offer three observations.
I do appreciate that Bill C-22, as it stands, is an initial step for Canada in letting parliamentarians into the national security tent, and that's good. But these observations of mine are not meant to deter Parliament from proceeding promptly in this parliamentary session.
First of all is the appointment of the chair. This was raised in the debate on second reading in the House. To ensure that the committee is truly a creature of Parliament, couldn't the chair be elected by Parliament, rather than appointed by the PM?
In a majority government situation, the PM's preference would likely proceed but, remember, this is permanent legislation and there may come a day when a minority Parliament might want to elect a member of the official opposition as chair. I think you might consider the long-term implications of that.
Second is the selection of members of the committee. Consultation on selections by the Prime Minister with leaders of the opposition parties, which is provided in Bill C-22, has worked in the past when there has been genuine consultation and not simply notification. But to ensure that the system is not abused for partisan purposes, there should be ratification of all members of the committee by Parliament itself. I think that would just be a good check that you might want to build into the system.
Finally, and I hesitate to sound like a lawyer on this, while you're not going to be establishing a committee that's a court of law or an administrative tribunal acting accordingly in the judicial context, the committee of parliamentarians, in carrying out its statutory review under clause 8 of Bill C-22, may require, and should require, subpoena power to summon witnesses, compel testimony on oath or affirmation, and require the production of all necessary documents.
This may be necessary where public servants are reluctant to respond to reasonable requests by the committee, or in situations where private sector individuals have particular knowledge about a security activity being carried out by a particular department. I think you might empower your committee of parliamentarians to have these particular powers.
In conclusion, Bill C-22, in its current or amended form, represents an historic opportunity for Canada to bring accountability for security intelligence into the 21st century.
My hope is that whatever form of bill emerges from these committee proceedings, it ultimately enjoys the complete support of Parliament as a whole, both here and in the other place.
Building trust, in my experience, is a two-way street. Parliamentarians have to be prepared to put in place a review system that has the respect and support of all members working co-operatively within the security tent to ensure there is a proper balance in the system that protects Canadians, yet respects rights and freedoms.
Similarly, government departments and agencies must recognize and respect that parliamentary security review operating within appropriate boundaries is not a nuisance, and that it means, ultimately, a stronger and more accountable form of government for the benefit of all Canadians.
I look forward to answering your questions. Thank you.