Scott Newark applauds the government’s new security bill (C-22) for adding a review capability but says it will need to be more independent if it is going to do important work on behalf of Canadians.
By Scott Newark, Dec. 6, 2016
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.
The case 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, the RCMP, Communications Security Establishment 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 which serves it.
Parliament is also expected to hold the executive to account. Endowing the legislative branch with a national security review mandate is a priority of the Trudeau government, which has now 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 introduced and passed by the Harper government following the two murderous terrorist attacks in Canada in October 2014.
Among the stated shortcomings of the Harper government’s C-51 was that it 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 something that has been recommended for years, and which Canada’s other “Five Eyes” intelligence partners (US, UK, New Zealand and Australia) all have. Several witnesses that 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.
But such a committee would have an important role to play in both policy and specific case reviews. Reviewing 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 would-be bomber Aaron Driver’s online activities when the FBI was, could present a real opportunity to improve the system.
Bill C-22 will create the National Security and Intelligence Committee of Parliamentarians. 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 often-stated commitment to the independence of Parliament, that is where this legislation falls short.
Because the 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. And there are several areas in the current legislation 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 and the Committee will only meet at the Chair’s direction. 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.
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 which means they also will not provide such information.
The executive director of the secretariat supporting the Committee 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.
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 required 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, 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