Our Analysis of C-22: An Inadequate and Worrisome Bill

Dominic LeBlanc; Ralph GoodaleBy Anne Dagenais Guertin – The Liberal government has recently tabled Bill C-22, the National Security and Intelligence Committee of Parliamentarians Act, in order to create the long-awaited committee to look over Canada’s national security activities. As all the other Five Eyes already have such a committee, it is, in theory, a welcome addition to our inadequate national security oversight and review apparatus. Unfortunately, on paper, it falls short in many respects and we have several concerns to raise.

It is also important to keep in mind that this Committee will not be enough. As recommended by Justice O’Connor who presided the Arar Commission from 2004 to 2006 – and as you can see from our analysis of the deficiencies of the current review system – there is an urgent need to implement a strong, integrated and overarching expert review mechanism, separate from Parliament, to examine Canada’s national security activities. But that is for another editorial.

After carefully reading the tabled legislation, here is our analysis.

Oversight or review mandate?

The mandate of the Committee needs to be clarified. The Committee’s mandate as defined in Bill C-22 is to “review” legislation and activities. However, the review bodies’ mandate is to review (as their name suggests), the Committee is supposed to be an oversight committee which is able to scrutinize national security operations and activities before, during and after the fact to ensure that they are not only carried out according to the law but also respectful of human rights. Review bodies only look at national security activities after the fact. Therefore this feature of our accountability system that is severely lacking will not be fulfilled by the present legislation. We have contacted the office of Public Safety and are still waiting for a clarification on this question. We believe a law should be explicit and exact, therefore the mandate of the Committee should be defined as the “oversight of any activities before, during and after the fact”.

Unspecified powers

We are concerned that the legislation does not specify the powers the Committee – and its Secretariat/staff – will have to get the answers they need in the conduct of their “reviews”. Will they be able to subpoena individuals? Will they be able to inspect sites and offices? We do not wish the powers to be narrowly defined but we would expect some clarity on what their powers are at a minimum.

For “national security reasons”

After being broad in the scope of what the Committee can “review”, the bill considerably narrows that scope by adding that the Minister responsible for the department that the Committee wants to review can refuse to provide information or refuse to be reviewed altogether if they determine that it would be “injurious to national security”. We believe that this effectively removes a lot of the Committee’s power and capabilities. Its members will be sworn to secrecy and will have top level security clearance, therefore they should be able to see sensitive information they believe they need to conduct an investigation into national security activities.

Furthermore, section 31 states that a Minister’s decision to stop a review for national security reasons is final and if the Committee is dissatisfied with the decision, it cannot bring the matter before the courts. This is a problematic feature as we have seen the national security excuse being used many times in order to hide embarrassing actions, use secret evidence against an accused individual, and avoid accountability. As it was suggested by many UK human rights organizations for their country’s parliamentary oversight committee, there should be a mechanism in place so the Committee can appeal this decision and effectively fulfill its mandate of oversight. It is worth noting that Public Safety Minister Ralph Goodale knew this as he met with those very organizations during his visit to the UK. Quite frankly, the fact that Minister Goodale has not taken these criticisms into account is worrisome as we are approaching the public consultations on national security reforms in Canada.

The Committee’s reports are submitted to the Prime Minister –  not Parliament – who can censor them

Each year the Committee must submit to the Prime Minister a report of the reviews it conducted during the preceding year, containing the Committee’s findings and its recommendations, “if any”. The Committee can write special reports if necessary which will only be submitted to the Prime Minister or the Minister concerned.
Even more troubling, section 21.5 states that the Prime Minister can direct the Committee to submit a revised version of a report that does not contain “information the disclosure of which would be injurious to national security, national defence or international relations” according to the Prime Minister.

9 members for 20 departments and agencies?

Although the UK parliamentary oversight committee is also composed of 9 members, it only oversees 3 agencies. The US House Committee on Intelligence is composed of 21 members, and the Senate Committee on Intelligence has 15 members. As investigative journalist and national security oversight expert, Andrew Mitrovica, has pointed out, 9 members seems insufficient to oversee the activities of about 20 departments and agencies. We also do not know yet how often the members will meet and how many staff and how much expert help they will have. Like Mitrovica, we expect the Committee to have the staff and financial resources proportional to the ones allotted to the national security entities it is mandated to oversee in order to be able to truly fulfill its duties. As a reminder, CSE, CSIS and the RCMP together have a budget of nearly 4 billion dollars and employ just under 34 000 people.

The Government appointing the members to oversee… the Government

The Committee will have no more than 2 Senators and 7 members of the House of  Commons, including no more than 4 members from the governing party. Therefore, when/if the Committee has 9 members, the members from the government party will be in minority. However, the Committee who will be charged with overseeing federal departments and national security agencies for which the governenment is politically responsible will be composed of members appointed by the Governor in Council on the recommendation of the Prime Minister. The Chair is also selected by the Prime Minister rather than elected by the other members. In the UK, the Prime Minister nominates the parliamentary oversight members, and although Parliament is able to approve or reject these nominations – which is not the case in Bill C-22 – UK human rights organizations have pointed out that members are often too closely aligned with government and too close to those it is charged with scrutinizing, which has the potential to damage public confidence in its independence and the reliability of its reports.

Are the Committee’s recommendations binding?

Nowhere in the legislation is it specified if the Committee’s recommendations are binding or not. We fear this means they are not, just like all the recommendations from the review bodies. It goes without saying that they should be binding if we are to have real accountability.

What can the Committee members disclose?

Bill C-22 is very confusing or intimidating when it comes to what the members can disclose while exercising their powers or performing their duties. The bill states that members cannot disclose anything except for the purpose of their oversight work, however we find this to be very vague and we worry that the line will most likely be drawn by the government and the agencies either through pressure by members from the government party and/or after the fact causing the members to censor themselves by fear of crossing that line. Moreover, members have to take an oath of secrecy, they will be permanently bound to secrecy, and they cannot rely on their parliamentary privilege to protect them if they disclose something the government or the departments didn’t want them to disclose. In an interview with CTV News, Public Safety Minister Ralph Goodale stated that any issues or abuses detected using classified information will be disclosed to the Prime Minister and no one else and this should be enough to fix the situation. We are skeptical that this will the case. What happens if nothing is changed? What is the Committee’s recourse to put pressure on the government to correct and repair the abuses if the members cannot disclose them to Parliament and the public for fear of reprisal. This could lead to serious gaps in oversight.

There are a few more worrisome aspects but we will leave it at that for now. We will be keeping a close eye on parliamentary debates in the fall and urge the Opposition to ask questions and propose amendments to strenghten the bill and national security accountability.

For more details, read Our brief on Bill C-22 submitted to the Standing Committee on Public Safety and National Security

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