The issue of national security oversight and review has re-emerged following the recent scathing judgement of M. Justice Noel (2016 FC 1105) regarding CSIS’ deliberate cover up of its ‘metadata’ gathering and retention of personal information of Canadians. Ironically, Justice Noel was alerted to the details of what CSIS was doing after he read the Annual Report of the Security Intelligence Review Committee which is the independent review agency set up by statute to review CSIS’ operations and report to the Minister and ultimately to Parliament.
Justice Noel’s decision also helps illustrate the critical importance of the reviewing entity, in this case the specially mandated Court, being independent of the agency it is reviewing.
CSIS, like the RCMP, Communications and Security Establishment (CSE), Border Services (CBSA) and other Government departments and agencies, are part of the Executive branch of government which, in today’s Canada, means the Prime Minister’s office and the Privy Council Office that serves it.
The third branch of governance in our system is the Legislative branch, and is comprised of those who enact our laws, namely the Members of Parliament and Senators. Endowing the Legislative branch with a national security review mandate is a subject of some controversy that has long been discussed and is now in the works with the Trudeau government having introduced Bill C-22 which will create a ‘Committee of Parliamentarians’ with just such a mandate.
Creating such a Parliamentary Committee was discussed during the debate on C-51, the controversial Anti-Terrorism Act that was introduced and passed by the Harper government following the two murderous terrorist attacks in Canada in October 2014.
C-51 went through the regular parliamentary review process and was the subject of significant, and frankly exaggerated, criticism especially from the NDP, outside advocates and self-proclaimed experts. The Harper government’s response was equally rigid in defence of the Bill which included condemnation of anyone who challenged anything in it. The Bill did not contain any provisions with respect to creating a special parliamentary committee with the authority to review national security activities and policies, which is also something that has been recommended for years, and which Canada’s ‘5 Eyes’ national security partners (US, UK, New Zealand and Australia) all have.
Then Prime Minister Harper was dismissive of the need for a special Parliamentary Review Committee implying, without supportive evidence, that such a body would create security risks through anticipated information leaks. Several witnesses who appeared on C-51 recommended both independent oversight and review entities – but no action was taken by the Government, and C-51 passed without either being included.
The distinction between “oversight” and “review” is important to appreciate because, while they are related issues, they are appropriately separate in nature.
Oversight is an ongoing activity requiring specialized operational awareness. It is currently performed pursuant to statutory provisions either by Ministerial approval or, more frequently, through ex parte court approval and report back requirements. Review is inherently an after-the-fact exercise, which can examine larger policy issues as well as specific cases to derive insights to improve future operations. Having a specially authorized parliamentary committee to review, for example, how convicted Toronto 18 terrorist Ali Mohamed Dirie was able to fly out of Canada to Syria following his release from prison, or why the RCMP were unaware of Aaron Driver’s online activities when the FBI was, could present a real opportunity to improve the system.
Although the then third party Liberals supported C-51, they explained that they disagreed with several of its provisions which they would act on to correct if they were elected to Government. This commitment to enhanced national security accountability was specifically referenced in the Liberal election platform, as was the importance of parliamentary independence and changing the centralization of power in the Prime Minister’s Office by Stephen Harper. The Liberal platform stated that: “Under Stephen Harper, the government has grown secretive and closed-off from Canadians. Unprecedented power has been concentrated in the hands of the Prime Minister and his office."
In June 2016, the new Liberal government introduced Bill C-22, which will create a special National Security and Intelligence Committee of Parliamentarians (NSICOP). The Bill received second reading on Oct. 4 and it has now been referred to the Standing Committee on National Security and Defence. However, the issue of independence from the Prime Minister’s Office is central to determining if the committee will perform as promised. And ironically, given the government’s stated commitment to the independence of Parliament, that is where this legislation falls short. This issue will likely attract significant attention and, in fact, it is specifically and critically referenced in the Library of Parliament’s Legislative Summary which is a blunt, candid and valuable analysis, and should be a model for future reports.
Because the Parliamentary Review Committee is, in effect, the Legislative branch of government reviewing the national security activities of the executive branch of government, the independence and authority of the Committee is critical if it is to deliver on its promised role. It is in this area that the current provisions of C-22 raise concerns as there are several areas where the Prime Minister’s Office inexplicably retains functional control.
The proposed Committee is expressly defined as not being subject to the regular committee procedures like power of appointment, election of chairs, scheduling meetings and filing of reports. Contrary to regular committee practices, the executive branch of government (PM and Ministers) has significantly heightened control including the power to authorize investigations or provide information, all expressly without challenge or appeal.
Pursuant to C-22 the PM appoints the Committee Chair, which is unprecedented as committees traditionally elect their own chairs. As the Committee would only meet at the Chair’s direction, the Prime Minister’s hand-picked chair would wield significant power.
Further, Committee reports would be provided to the PM for screening before being filed in Parliament and while the Committee can conduct special reviews and provide reports to the PM, they are not provided to Parliament.
And if the Minister decides to withhold information from the Committee, the Minister is obliged to notify the review agencies for CSIS, RCMP and CSE of the refusal to provide information to the Committee, which means they also will not provide such information.
C-22 provides that the Committee will be supported by a specially created Secretariat (staffed with public servants and private contractors) which will be given a budget of $3.2M. The executive director of the secretariat is to be appointed by the Governor in Council rather than the Committee and any replacement due to vacancy on an interim basis is to be done by a Minister designated by the Governor in Council. Yet again, the power resides with the executive rather than the legislative branch.
Finally, the Bill and its operations are to be reviewed by a specially constituted Parliamentary Committee five years after coming into force. This mandatory review is a positive feature of C-22, as it will provide an opportunity for examination of whether the intended objectives of Parliamentary review of national security operations have been achieved, or not.
C-22 is a positive development that creates a Parliamentary review capability of the Government’s national security policies and activities. What is needed now are amendments to the Bill to ensure that the Committee has the independence from the PMO, as originally promised, so that it can do its important work on behalf of Canadians.
Scott Newark is a former Alberta Crown Prosecutor who has also served as Executive Officer of the Canadian Police Association, Vice Chair of the Ontario Office for Victims of Crime, Director of Operations to the Washington D.C.-based Investigative Project on Terrorism and as a Security Policy Advisor to the Governments of Ontario and Canada