My comments will be divided into three broad categories: first, I will make some positive remarks, then I will discuss some more negative elements, and finally, I will raise the very negative aspects.
I would like to specify that even if my presentation focuses on the negative aspects, the bill is very interesting overall and should be supported, with a few small amendments, however.
I would first like to emphasize the importance of Parliament overseeing intelligence and national security activities in their entirety. That is very important. Canada is a particular case in the western world, and I think it is high time we invested in the oversight of these activities. In the final analysis, we do this on behalf of the public, and parliamentarians should be involved in the oversight of national security activities. That is very important.
Another aspect of this bill that makes me very enthusiastic is the idea that the entity discussed today will focus on all national security activities. The committee will not be targeting, one, two or three organizations that are more readily associated with national security, but also several others that engage in national security activities, although that is not their main activity. These two aspects are very important, and in my opinion mean that this bill must absolutely go forward.
I will now discuss what I would describe as problems that concern the way in which the bill is structured.
First, I believe the mandate is much too broad. There is an intent to review all national security organizations, at every level and in every way, which is a plus, but if people try to submit all of that to the committee, the work will be very incomplete, in my opinion, and the committee will not be able to keep its promises.
Clause 8 refers to “reviewing the legislative, regulatory, policy, administrative and financial framework”, which is very relevant, in my opinion. That is the type of work parliamentarians have to do. They must ask themselves if the spirit of these laws is being respected when they are applied in these organizations, and whether the will of citizens is being reflected in the law and in practice. That is exactly the type of work parliamentarians must do, and it is incumbent upon them, in fact.
This is also work that is not covered by the current oversight mechanisms, such as those of SIRC and the CSE Commissioner. They are much closer to what happens on a daily basis and generally limit themselves to determining if, yes or no, the organization that is being observed followed the law, in other words, whether it complied with the general parameters set by law that apply in this case.
Parliamentarians must also ask themselves if the law in its current form is adequate or if it contains major gaps that mean that the organizations can commit certain abuses that run counter to the spirit of the law because it is drafted rather broadly.
In addition to ensuring that the activities of the CSE, SCIS or other organizations comply with the law, we have to ask whether the law governing these activities is the one we want as Canadians. I think that is the work of parliamentarians.
That said, subclauses 8(b) and 8(c) involve daily activities and operations. There are two problems. First, the subject is really complex and is far beyond the scope of parliamentarians. I don't want to pass any judgments on the parliamentarians who will sit on this committee, but you need some very advanced skills, if only to understand the alphabet soup they use, starting with the acronyms, such as CSE. I thus think that we are headed for disaster, or that this committee will serve absolutely no purpose.
In fact, this nine-person committee will have to examine so many activities and organizations that even with staff at their disposal, this will not be enough. We don't know what the budget of the committee will be. Even with an ideal budget, the activities that must be assessed and overseen are far beyond the capacities of the committee that is being created.
Furthermore, this is a duplication of what is supposed to be the work of the oversight organizations. These bodies, such as SIRC or the CSE, are supposed to review daily activities, down to the fine details of programs, to see what was done and whether any abuses were committed against anyone. I don’t think the parliamentary committee should deal with that. It should leave that to the oversight organizations and focus far more on other issues. For instance, it should determine whether the programs as a whole truly reflect the wishes of Canadian citizens, whether the laws are adequate, and whether the budgets are sufficient. In other words, to comply with the bill's mandate, the role of the committee should correspond to what is described in subclause 8(a), rather than in subclauses 8(b) and 8(c), which describe a much broader mandate.
In addition, the creation of this parliamentary committee adds little to what the oversight organizations are already doing. The parliamentary committee will add a grain of sand to the sandy beach of oversight.
If the problem is due to the inadequacy of the oversight of operational activities by oversight organizations, the solution is not to add a layer of political monitoring, but to improve the structure of those organizations and increase their budgets. The budgets of SIRC and the CSE have been stagnant for years and years. They represent a laughable fraction of the budgets allocated to national security activities. I do not think the solution to the lack of effectiveness or power of these organizations is to create an additional layer that will have a great deal of difficulty navigating all of this.
I see another problem regarding access to information. I think this has already been said before elsewhere. There are far too many restrictions on access to information. There is a whole slew of reasons that can be invoked to avoid parliamentary oversight. In light of the Security of Information Act, I think the committee is being granted investigative powers that will be easy to counter. I am not suggesting that the organizations being monitored would not act in good faith or would attempt to avoid this monitoring, but I think the law should cover all possibilities. We must not assume that the people who work in these organizations are angels and that they will be thrilled to be monitored. That may be the case, but we have to prepare for the worst case scenario, the one where people may actively try to avoid oversight. The act must be equipped and armed to deal with that.
There is also the restriction for cases where national security is at stake. I think there is a semantic issue here. The committee is supposed to examine activities relating to national security, but there is a restriction: if national security is at stake, it can't access the documents. So there is a real problem there, since there is no definition, it's just being thrown out there and is very vague. I think a situation could arise where all of the activities to be subject to the committee's oversight could fall under the national security restriction, and no documents would be made available to the committee. I think this is a good way of shooting yourselves in the foot.
I want to conclude by mentioning two things that are not issues contained in the bill as such, but constitute potential problems.
First, I am very concerned that after the government has adopted Bill , it will put an end to the project to improve the oversight of national security agencies, that is to say that there will be no more oversight and the file will be closed, since there will now be the parliamentary committee. However, I am afraid that a lot of things may escape that committee.
I am also concerned that the impression may be created that the new, very broad powers that have been granted by the Anti-Terrorism Act will be adequately offset by this committee of parliamentarians which, as I said earlier, will not be able, operationally, to meet the objectives that will be set for it.
Thank you very much.
Thank you, Mr. Chair, and members of the committee, for inviting me here to discuss this important piece of legislation.
I'm joined today by Leslie Fournier-Dupelle, a policy and research analyst in my office.
Our interest in commenting stems from the intersections between the work of this proposed committee and the work of my office. Let me say up front that the Office of the Privacy Commissioner of Canada is supportive of parliamentary oversight for security and intelligence activities, which has been proposed many times in the past. While we applaud this as a long-overdue development, some amendments could be considered to ensure this new committee will be as effective as possible in this important area.
We understand that the committee would be mandated to review three main things: first, the legislative, regulatory, policy, and administrative and financial framework for national security and intelligence; second, any activity carried out by a department that relates to national security, but subject to a ministerial override; and third, any matter relating to national security and intelligence that a minister refers to the committee.
By and large, we believe the creation of this committee would contribute positively to the necessary discourse around the work of security and intelligence agencies which, due to their secrecy, can be sometimes ill-understood. Among the positive aspects of Bill , this committee would ensure that Canada keeps pace with other democratic nations, most of which already have some form of parliamentary oversight.
There are very real advantages to parliamentary oversight, principally that it enjoys democratic legitimacy since membership is comprised of elected officials. It has the additional advantage of situating security and intelligence activities within the context of the whole-of-government actions or broader parliamentary priorities. As such, a committee of this kind is well placed to directly influence policies in that it can recommend passing or amending legislation based on its findings. Finally, it can oversee broader financial frameworks, such as value for money and resourcing issues writ large, which specialized oversight bodies cannot typically undertake.
That said, there remains a definite and ongoing role for expert oversight bodies, which, given internal knowledge developed over a period of time, are well positioned to undertake more detailed analyses of the operations of national security agencies. Furthermore, expert bodies with a complaints investigation function, such as my office, are well positioned to spot systemic concerns that can inform the conduct of audits and compliance reviews or otherwise provide a window into the workings of the agency for which they are responsible.
In order to effect meaningful review, these bodies must have the capacity for proactive review and to educate both citizens and stakeholders, be non-partisan, and acquire and maintain in-house expertise.
We note that the bill allows explicit cooperation between the committee and certain named security and intelligence review and oversight bodies, which partially addresses gaps identified in the O'Connor Commission. However, the bill stops short of authorizing the sharing of information between oversight bodies, which should be remedied in order to support effective review.
We have on several occasions called for integrated oversight between ourselves and our oversight colleagues, including the Security Intelligence Review Committee, which oversees CSIS, the Office of the Communications Security Establishment Commissioner, which oversees the Communications Security Establishment, and the Civilian Review and Complaints Commission which oversees the RCMP.
Given the fact that information--including personal information--is the lifeblood of national security agencies, my office has a relevant role to play in ensuring that a proper balance is struck between security and civil liberties.
As you know, we have deep and extensive expertise in the area of privacy and personal information, from which other review bodies could benefit. We continue to advocate strongly for an appropriate balance between privacy rights and public safety. Consequently, I would recommend that my office be added to the list of oversight bodies to which information could be disclosed by the committee.
I would add a final point on transparency.
We note that the committee's meetings are to be held in camera “if any information that a department is taking measures to protect is likely to be disclosed during the course of the meeting or if the chair deems its necessary”. In order for the committee's work to contribute to the public discourse on security and intelligence, in camera meetings should be the exception rather than the rule. It may be helpful to introduce a clearer threshold before a meeting is to be closed.
A helpful threshold, which appears in the CSIS Act, the Canada Evidence Act, the Immigration and Refugee Protection Act and elsewhere, is if information “injurious to national security” is likely to be disclosed during the course of a meeting, then it would proceed in camera. This expression should be included in clause 18 of the bill, which discusses in camera meetings. I know that the expression “injurious to national security” has been discussed in this committee in order to determine if this limit should be imposed either on the mandate of the parliamentary committee, on the type of information the committee should have access to in the course of its work, or on the information that should appear in its reports.
I am aware of these discussions. I would be happy to answer your questions on that or any other topic involving the bill.
I will take that question as referring to the limits to the contents of reports, which are found in the bill, and expand it a little to the issue of limitations, either to the mandate or to access by the committee or to what would be reported, which I think has been the subject of considerable discussion before this committee.
The bill, in a number of places, clauses 8, 14, 16, and 22, and you're referring to clause 22 in the report of the committee, says that information, the disclosure of which would be injurious to national security, would have certain limiting effects to, one, the mandate of the committee, two, to the information that the parliamentary committee should have access to, and three, to what the committee would be able to report on.
The committee of parliamentarians should not be subject to limits in terms of its mandate in relation to information that would be injurious to national security. The committee should have a broad, comprehensive mandate. That's the first point.
In terms of access to information by the committee, the limits in clauses 14 and 16 are too broad. There are too many limits. Maybe some of these limits are desirable, for instance, the protection of sources or witnesses who deserve protection. I don't believe that it would be necessary for the committee of parliamentarians to do a proper review of the issues to be reviewed. They don't need to know the identities of sources of information or witnesses to do a proper job. Therefore, in clauses 14 and 16, I suggest that the list of exceptions or limitations should be reduced, but there may be legitimacy to some limits.
Coming finally to your question about the reporting, that's the toughest question, because I think the committee should have access to everything, more or less, and should certainly have a mandate that is quite broad. However, regarding what the committee would report, there is an issue in terms of what should be reported publicly. Care needs to be taken so as not to report on some details that would indicate to the subjects of investigation, the national security agencies, certain methods of operations, and so on and so forth. For reporting, there is a better argument for protection.
My last point on that would be that the bill proposes that the executive, that the Prime Minister, direct what would be protected. I think you should give some thought as to whether the committee should have more latitude, discretion, authority, on that question. Conceptually, it is justified that some limits to what details are reported be there. I'm not convinced that the decision-making authority should rest with the executive.
Chair and members, good afternoon and thank you for having invited SIRC to appear before you today to discuss Bill the national security and intelligence committee of parliamentarians act. Our chair, the Honourable Pierre Blais, sends his regrets for not being able to join us.
I'm joined by Charles Fugère, acting senior counsel and director, and Marc Pilon, legal counsel, both from SIRC's legal and registry services team.
This discussion on national security accountability is very timely. For months, there has been healthy public debate on the powers that should be given to our national security bodies, and in parallel, the checks and balances required to ensure these powers are used properly. The government’s proposal to create a national security committee of parliamentarians goes to the heart of this matter.
SIRC has been following this committee's work on Bill with much interest. We are aware that you have had very productive exchanges with government officials, legal experts, scholars, and practitioners.
Today, I hope to advance the discussion and to enrich your study of this bill by focusing on three key points: first, to outline the value of the work performed by expert review; second, to discuss SIRC's possible relationship with the proposed committee of parliamentarians; and third, to take the opportunity to discuss the notion of horizontal expert review for Canada's national security community.
I will not take much time now to describe SIRC's mandate and responsibilities. I will be pleased to answer any questions about our work following my remarks. I will simply state that SIRC is an independent external review body that reports directly to Parliament on CSIS's activities through an annual report.
SIRC has three core responsibilities: to certify the CSIS director's annual report to the Minister of Public Safety; to conduct investigations into complaints; and to carry out in-depth reviews of CSIS's activities. Simply put, SIRC is key in providing accountability for CSIS.
This brings me to my first point. SIRC and expert review bodies play a crucial role in ensuring proper accountability of our national security agencies. Allow me to briefly outline what we feel are some distinct benefits of expert review, namely independence, expertise, and continuity.
First, SIRC is an independent body that operates at arm's length from government. It acts autonomously in its decision-making, including in determining which matters to investigate and report on. This independence allows SIRC to make findings and recommendations in an impartial and non-partisan manner.
Second, SIRC's reputation and credibility are built on its expertise. Our full-time research and legal staff have access to all information under the control of CSIS, with the exception of cabinet confidences. Our staff devote their days to reviewing CSIS's activities in all programs and across the world. They also keep abreast of changes taking place at CSIS, not to mention political, legal, or other relevant developments in the environments in which CSIS operates.
Third, SIRC's reviews involve continuous, ongoing, and detailed examinations of CSIS's core operations. A true benefit of SIRC's model is its ability to provide this detailed level of scrutiny on an ongoing basis. Our reviews provide a series of snapshots of CSIS's activities that when taken as a whole and over time yield a comprehensive assessment of CSIS's performance.
Let me use a recent example to highlight the value of expert review. In early November, the Federal Court issued a public judgment regarding CSIS's retention of associated data unrelated to threats to the security of Canada. SIRC first brought this serious matter to the attention of the Federal Court.
In SIRC's 2014-15 annual report, which was tabled in Parliament in January of this year, we reported on our review of CSIS's use of metadata. One of the recommendations stemming from this review was that CSIS advise the Federal Court of the particulars of its retention and use of metadata collected under warrant. This recommendation, which was rejected by CSIS, caught the Federal Court's attention and triggered a series of events leading to the ruling. To borrow Minister Goodale's words, SIRC blew the whistle on this matter and had a vital role to play in accountability.
From our perspective, this case serves to illustrate the value of SIRC's work. More importantly, I would argue this case underscores the importance of expert review bodies such as SIRC being properly resourced. On this point, I can assure you we are working diligently to secure capacity funding for our organization to ensure we can continue to carry out our mandate effectively.
On the second issue I wish to discuss with you, our relationship with the committee of parliamentarians, SIRC looks forward to establishing a positive and productive work relationship.
Three year ago, before a Senate committee, SIRC noted the importance of a future parliamentary committee working lockstep and hand in glove with SIRC to avoid duplication and achieve complementarity. This position holds true today. For this reason, we are pleased that the proposed legislation explicitly states that the new committee and review bodies will take all reasonable steps to co-operate with each other to avoid any unnecessary duplication.
Overall, the goal of accountability benefits from having parliamentary oversight and expert review. The proposed new committee will examine the legislative, regulatory, policy, administrative, and financial frameworks for national security and intelligence. This means it will be well placed to examine large public policy questions and the objectives, policies, and programs of operating agencies, as well as the overall purposes of the government's national security policy. This high-level coverage will serve to complement the detailed, in-depth operational reviews carried out by SIRC.
There has been some discussion around whether there is a need to further frame the relationship between this new committee and expert review bodies. SIRC believes there is merit to maintaining some flexibility on this issue and providing the new committee and review bodies time to establish rapport and to define points of intersection.
Having said this, SIRC believes there are ways in which it could engage with this new committee.
For example, SIRC could share its annual research plan to the committee to make it aware of its research focus. It could appear before the committee to discuss its work, findings, and recommendations, or to provide briefings on topics in which it has expertise. SIRC could also provide clear value to the proposed committee’s functions in relation to the clauses that would limit its ability to review CSIS activities or access CSIS information.
For example, should the Minister of Public Safety decide that the committee of parliamentarians could not review a specific CSIS activity, following a determination that the review would be injurious to national security, or that the committee could not have access to specific CSIS information, SIRC would be uniquely placed, given its unfettered access, to the refused information and the reasonableness of this recommendation.
SIRC could also, under its own mandate, decide to conduct a review of the CSIS activity in question. SIRC would then be able to report its findings to the committee and to Canadians in its annual report. This would represent a key safeguard, considering the limitations being placed on the committee’s access to activities and information.
To summarize, we believe that expert review can complement and contribute to the higher level, broad oversight by a committee of parliamentarians. I have no doubt that there will be a mutual willingness by all parties to work together, and there will clearly be comfort that if the proposed committee is precluded from reviewing a CSIS activity or having access to CSIS information, then SIRC has the ability to review it and to report on it.
The third and final issue I wish to raise relates to the need for a horizontal expert review of Canada’s national security community. Without doubt, greater parliamentary oversight represents an important step forward for accountability. In our view, there remains an important gap in our accountability framework as it relates to the ability to carry out community-wide expert review.
Canada’s national security accountability framework has fallen out of sync with contemporary national security activities. Existing review bodies like SIRC are ill-equipped to review our increasingly integrated national security activities. For a number of years, SIRC has said publicly that it lacks the ability to carry out joint reviews with existing review bodies and to follow the thread of information as our mandate does not extend beyond CSIS.
These challenges underpin a broader structural deficiency and the siloing of review. It highlights the need for an expert community review body with authority to examine all national security activities. This is all the more important, as most of the departments engaged in national security activities are not currently subject to independent review.
While I appreciate that this issue falls outside the scope of Bill , it is nonetheless appropriate to raise it here today, because it is intertwined with our discussion on strengthening national security accountability.
Let me conclude by thanking you for your dedicated work on this matter. The government has made a firm commitment to enhancing national security accountability. The SIRC looks optimistically ahead to having its work support and further this goal.
I'm happy to answer your questions.
Thank you very much.
Thank you very much, Mr. Chair, and committee members.
Amnesty International very much welcomes the opportunity to share our views and recommendations with you on this very important topic.
Let me begin by highlighting where we start any time we enter into a discussion about national security, and it is to say the obvious but the necessary, which is that respecting and upholding human rights is not an obstacle to protecting national security in any way. It is, in fact, the very key.
That is why throughout the consultations and reforms under way right now we have been urging the government to move toward adopting a human rights based approach to national security which would have three dimensions to it. The first is that the regard for human rights is recognized as a foundational pillar to our security framework; second, that there are human rights safeguards adopted as part of the national security framework; and third, that provisions in our laws and policies that fail to conform to either national or international human rights obligations must be reformed. That human rights approach is what guides our response to Bill .
Review bodies and processes play very important roles in boosting human rights protection in any context. Authorities who are aware that their actions are subject to scrutiny may take greater care not to commit human rights violations. Lessons learned will help avoid human rights violations in the future. Public confidence and trust increases the odds that officials will respect human rights. There may be potential to curtail violations, even while they are occurring, and human rights violations amounting to criminal conduct may be exposed and lead to accountability.
The need for review is particularly great when it comes to government action in the realm of national security for obvious reasons. National security agencies have considerable powers that have the potential for very serious impact across a range of human rights. National security agencies around the world abuse those powers in ways that have resulted in serious human rights violations. The operations of national security agencies are shrouded in secrecy. They make the potential for abuse of powers all the greater, and because of that secrecy, national security agencies are shielded from the full force of other forms of scrutiny that generally bring human rights concerns into the public realm, such as the role played by the media, civil society, and even the courts.
Amnesty International first expressed concerns about significant gaps in Canada's national security review apparatus while we were responding to the case of Maher Arar over 12 years ago. It was obvious from the very beginning that existing review bodies which might have been an option for him or his family had inadequate powers, and they were hampered by not being able to carry out reviews in a coordinated way that examined the ways in which security agencies worked together. There was also no clear means of turning to parliamentarians for review and remedy. There was truly nowhere to turn, and the only means forward became the costly and extraordinary step of convening a public inquiry, which lasted for over two years.
During the Arar inquiry, we urged that national security review in Canada be strengthened in two fundamental ways: first, by instituting a review role for parliamentarians; and second, by establishing a comprehensive national security review process that would ensure all agencies are reviewed by bodies with adequate powers that are able to work together in an integrated fashion.
That is what Justice O'Connor recommended in his 2006 report. Ten years later—it has been a decade—we have Bill , which is very welcome, but it only takes us partway. Amnesty has four key recommendations with respect to Bill C-22 and Canada's approach to national security review more broadly. The first two deal with what is in the bill; the last two deal with what is not.
First, this law must make it clear that national security review is intended to play a key role in upholding human rights. In that regard, clause 8 of Bill should be amended to specify that the mandate of the committee of parliamentarians explicitly includes reviewing the activities of all departments and agencies that relate to national security or intelligence to ensure conformity with Canada's national and international human rights obligations.
Second, we urge that measures be taken to ensure that the committee has access to the information it requires to conduct not just a review, but a robust review. That is the goal here.
We seriously urge changes to the following provisions: Paragraph 8(b) should be amended to remove the power given to the minister to bar review of activities he or she determines to be injurious to national security. The exceptions regarding the committee's access to information in clause 14 should be significantly scaled back, in particular, paragraph 14(b) with respect to ongoing defence intelligence activities supporting military operations; paragraph 14(d) broadly covering information from which the identity of confidential sources can be inferred; and paragraph 14(e) with respect to ongoing law enforcement investigations that may lead to a prosecution.
Those exceptions are broad and each has the potential to go to the heart of what is often contentious and troubling in the relationship between national security and human rights. There are several important high-profile cases in which robust review could have helped guard against human rights violations, all of which would still be significantly hampered by those exceptions.
Similarly, the overarching power of the minister in clause 16 to refuse to provide information to the committee if it is considered to be special operational information or if the provision of the information would be injurious to national security should be removed. Why? National security review, to be effective, requires full access to all necessary information for the review body in question. That is vital because of the secrecy that surrounds national security agencies and their operations. If the review body cannot examine all relevant information, who can?
Of course there needs to be assurance that the committee will not disclose to the public information that should be kept secret for legitimate reasons. The provisions in clauses 10 through 12 of Bill provide that assurance, requiring committee members to be security cleared, prohibiting committee members from disclosing information, and removing parliamentary privilege for unlawfully disclosing information. That provides a sufficient legal framework.
Let me end quickly by highlighting two important aspects related to national security review that are not addressed by Bill . Amnesty International urges this committee to press the government to go further with respect to both.
First, echoing the comments from Mr. Doucet, we too want to highlight how important it is to go beyond this important measure of instituting parliamentary national security review and ensure that independent expert review—horizontal review, as Mr. Doucet highlighted—is improved in Canada. The current approach is fragmented; bodies have uneven powers; in some instances there are no bodies in existence with respect to important bodies, and as has been repeatedly pointed out, those bodies are not enabled to work together in an integrated fashion. This is critical and it would be a serious shortcoming and in many respects stands to even hamper the efficacy and work of the parliamentary committee if this is not addressed.
Finally, as I noted in my opening comments, one of the important functions of review in any context dealing with human rights is to lay the groundwork for accountability when violations are exposed. A central component to accountability is ensuring proper redress for individuals who experience human rights violations in national security contexts.
Canadian practice here falls far short of what is required under international law. I consider two particularly notorious instances, both of which have attracted the attention of the United Nations. The first is the three cases that were examined by Justice Iacobucci in the course of his 2006-08 review: Abdullah Almalki, Ahmad Abou El Maati, and Muayyed Nureddin. It has been eight years since that report was released, and there's still no redress for those three men for a series of serious human rights violations to which Canada did contribute.
Second, in 2008 and again in 2010, the Supreme Court of Canada ruled unanimously that Canadian officials had breached Omar Khadr's charter rights, stemming from their interrogations of him at Guantanamo Bay, knowing that U.S. officials were violating his internationally protected rights. Six and eight years after those two rulings, Mr. Khadr has received no redress.
Why do I raise this here? It is little comfort to establish new review processes without confident assurance that wrongdoing that is exposed will be remedied. Parallel to reforming the review process, therefore, steps urgently need to be taken to ensure fair redress for individuals whose rights have been violated through national security operations in the past.