BACKGROUND

Since the early 1980’s, Parliament has inserted clauses requiring comprehensive parliamentary committee reviews of the provisions and operation of selected legislation it has adopted. Typically, these comprehensive reviews have had to be commenced within three or five years of the legislation coming into force, to be completed a year later. Such committees have been designated by the Senate or the House of Commons, or by both chambers. In a small number of instances, committees of both chambers have simultaneously conducted the legislatively required reviews.

To carry out the reviews, parliamentary committees have held hearings, visited sites and facilities in Canada and travelled outside of the country. At the end of this process, they have developed and tabled their findings and recommendations, calling upon the government of the day to respond to them. Committee recommendations have not always been accepted in their entirety by governments.

Parliament has adopted the practice of future parliamentary review in relation to legislation where the issues being addressed are controversial and complex, where opinion may be sharply divided and basic constitutional, public, and social values are at the core of the debates. By adopting a clause requiring a comprehensive review of the provisions and operation of such legislation, Parliament carries out one of its most important functions, that is, revisiting an area of public policy so as to determine if the intentions of Parliament are being carried out or may need some mid-course correction. Such review clauses also bring the issues underlying a particular Act back to public attention and encourage a reconsideration of any controversy by those who are both interested in, and affected by, it. This is done by the hearings held by parliamentary committees and their consideration of briefs submitted to them.

ANOTHER COMPREHENSIVE REVIEW

Both this Subcommittee and its predecessor, on whose work much of what has been recommended in this report is based, have illustrated during their hearings and proceedings what is described in the preceding paragraphs.

Section 145 of the Anti-terrorism Act required a comprehensive review of its provisions and operation to be commenced within three years after it received royal assent in December, 2001, and to be completed within one year after that date, subject to possible extension. Such a review was to be carried out by a designated or specially established committee of the Senate or the House of Commons, or of both chambers. The predecessor to this Subcommittee was established in the autumn of 2004 and commenced its work in December of that year. At the same time, the Senate established a special committee to carry out this same review. The work of both committees was interrupted by the November, 2005 dissolution of Parliament. The Senate special committee continued its work in this Parliament, and this Subcommittee carried on where its predecessor had left off.

The issues dealt with by the Subcommittee were difficult and the debate around them was at times characterized by basic disagreement not always easy to reconcile. The legislation itself is complex, often difficult to analyze and comprehend. Much guidance was received by the Subcommittee from the briefs and submissions it received, and witness responses to members’ questions during the public hearings. A number of issues came up in public debate, in the courts, and elsewhere during the review which helped to spur on the discussions among Subcommittee members as they carried out their work.

Because the Subcommittee believes that much public good comes out of reviews such as the one it has carried out, it believes there should be another comprehensive review of the provisions and operation of the Anti-terrorism Act. It has come to this conclusion because it is only five years since Parliament adopted this legislation — this is a relatively short time and the experience with its implementation is somewhat limited. As well, terrorist activity has shown no signs of abating in the last five years and the form it takes is in constant flux. The Subcommittee believes that such a review should begin in four years and be completed within the next following year.

RECOMMENDATION 57

The Subcommittee recommends that section 145 of the Anti-terrorism Act be amended so as to require that there be another comprehensive review of its provisions and operation, to be commenced no later than December 31, 2010 and completed no later than December 31, 2011.

NATIONAL SECURITY COMMITTEE OF PARLIAMENTARIANS

During the last Parliament, the government of the day on November 24, 2005 introduced Bill C-81, the proposed National Security Committee of Parliamentarians Act, which proceeded no further because of dissolution later that month and the calling of a General Election.

This Bill proposed that there be established a nine-member committee of parliamentarians, to be composed of no more than three members of the Senate and no more than six members of the House of Commons. Members were to be appointed by Cabinet and were to hold office during pleasure until the dissolution of Parliament following their appointment. Opposition party members were to be appointed after their leader had been consulted. Neither Ministers nor Parliamentary Secretaries were to be appointed to the committee. Members were to be permanently bound to secrecy under the Security of Information Act.

The proposed committee was provided with a two-part mandate. It was to review the legislative, regulatory, and administrative framework for national security in Canada and activities of federal departments and agencies with respect to national security. It was also mandated to review any matter related to national security referred to it by the Minister designated by Cabinet as responsible for the Act.

The mandate provided to the proposed committee appeared to be broad enough to allow it to engage in on-going compliance audits of the departments and agencies making up the security and intelligence community in Canada. Among these government institutions are the Canadian Security Intelligence Service (CSIS), the Communications Security Establishment, national security elements of the Royal Canadian Mounted Police (RCMP), the Canadian Border Services Agency (CBSA), elements of the Department of Foreign Affairs, and others. Such audits would have as their purpose the assurance that law and policy directions are being properly applied, and that rights and freedoms are being respected in day-to-day activities.

It appears that the mandate set out in the bill would have been flexible enough to allow it to audit the implementation of a particular Act adopted by Parliament when reviewing the activities of departments and agencies applying it. For example, when reviewing the national security activities of the RCMP, CSIS, and CBSA, it could audit their implementation of elements of the Anti-terrorism Act. If the mandate as set out in Bill C-81 is not adequate to allow for this type of activity, it should be amended to do so.

In the preceding section of this chapter, the Subcommittee recommended that there be another comprehensive review of the Act. Building upon its on-going compliance auditing of the implementation of the Act, as proposed in the preceding paragraph, the committee envisaged in Bill C-81 would be well-equipped to carry out the next comprehensive review. If the mandate set out in Bill C-81 is not adequate to allow for this type of activity, it should be amended to do so. The review should be done by parliamentarians who are able to hear witnesses, take evidence and report their findings publicly.

Much work was done in the last Parliament in developing the ideas that led to the tabling of Bill C-81. A multi-party consensus emerged in support of providing parliamentarians and Parliament with an important means for overseeing the Canadian security and intelligence community. The momentum built up should not be lost: Bill C-81, or a variation of it, should be introduced in Parliament at the earliest opportunity.

RECOMMENDATION 58

The Subcommittee recommends that Bill C-81 from the 38^th Parliament, the proposed National Security Committee of Parliamentarians Act, or a variation of it, be introduced in Parliament at the earliest opportunity.

RECOMMENDATION 59

The Subcommittee recommends that the mandate of the proposed National Security Committee of Parliamentarians be clarified so as to ensure that in carrying out its activities, in relation to departments and agencies in respect of national security, it is empowered to conduct compliance audits in relation to the Anti-terrorism Act.

RECOMMENDATION 60

The Subcommittee recommends that the mandate of the proposed National Security Committee of Parliamentarians be clarified so as to ensure that it can carry out the next comprehensive review of the Anti-terrorism Act under an amended section 145 of that Act, failing which the review should be carried out by a committee of Parliament.