By 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

Read our press release published after the adoption of Bill C-22: Fundamental Flaws Will Hinder the Work of National Security Committee of Parliamentarians.

Since you’re here… … we have a small favour to ask. Here at ICLMG, we are working very hard to protect and promote human rights and civil liberties in the context of the so-called “war on terror” in Canada. We do not receive any financial support from any federal, provincial or municipal governments or political parties. Any donations will go a long way to support our work. On the fence about giving? Check out our Achievements and Gains since we were created in 2002. Thank you for your generosity!

Dear Minister Dion,

We are aware and appreciative that you and your parliamentary secretary, Mr. Omar Alghabra, are following the case very closely. Nevertheless, we strongly believe that following the case and monitoring it will not be enough to obtain the release of Dr. Homa Hoodfar.

Unfortunately, we are concerned that since Dr. Homa Hoodfar is a dual-citizen, she is being used as a “bargaining chip” in negotiations with Canada on other cases and other issues. This is why Canada should speak at the very highest levels with Iranian officials and explicitly demand the release of Dr. Homa Hoodfar.

Prime Minister Justin Trudeau should be speaking with his Iranian counterpart and demanding the release of Dr. Homa Hoodfar while pushing for reestablishing the diplomatic relations between Canada and Iran.

Read the full letter here

Since you’re here… … we have a small favour to ask. Here at ICLMG, we are working very hard to protect and promote human rights and civil liberties in the context of the so-called “war on terror” in Canada. We do not receive any financial support from any federal, provincial or municipal governments or political parties. Any donations will go a long way to support our work. On the fence about giving? Check out our Achievements and Gains since we were created in 2002. Thank you for your generosity!

By Monia Mazigh – Yesterday, Public Safety Minister Ralph Goodale tabled a new legislation that would move forward what the Conservative government along with the US counterpart agreed in 2011 to implement: Beyond the Border, a shared vision for perimeter security and economic competitiveness.

This new proposed legislation would grant powers to the Canada Border Services Agency to collect biographic data on Canadian citizens whenever they leave Canada and share them with the US government.

The novelty here is twofold:

• The data collection would happen each time someone leaves the Canadian territory. The same data collection has already been implemented at entry points. Now it applies to all entry and exit points.
• The information sharing of these biographic data with the US has already been taking place but only for foreign nationals and permanent residents. This new legislation extends it to Canadian citizens.

As usual when any security legislation is introduced, and to gain the approval and the trust of the public, the emphasis of the government was on the prevention of frauds to employment benefits, the social welfare system and the immigration system. Also, the detection of human trafficking and child abduction was evoked as an example of what this new legislation would do.

But how about our right to privacy? Wouldn’t this proposed legislation be another legal tool for more surveillance and thus opening the door to more abuses by government security agencies on both sides of the border?

Minister Goodale reaction to these legitimate concerns and fears is that this new data collection and information sharing will be done in accordance to both countries national privacy laws. But why should we trust this promise? Didn’t we just learn about cases of information collection and sharing that transgressed our laws? And Maher Arar’s case is still fresh in our legal history. How about implementing safeguards in information sharing? The Minister didn’t say a word about that.

Why should we wait for other abuses of the system to understand that these new powers need to be questioned and not always granted?

When Public Safety Minister Ralph Goodale mentions during his announcement that “CBSA would not exchange passenger manifest information collected in the air mode with the U.S.” this is not totally true.

Indeed, in the previous years, CBSA has run the National Risk Assessment Centre now called National Targeting Centre (NTC), which receives and analyzes passenger information from airlines to identify individuals who pose security threats.

This centre shares Advance Passenger Information (API) including terrorism and serious crime-related lookouts with the U.S. National Targeting Centre.

It is disappointing to see how quickly the Minister of Public Safety proposed this new legislation with additional powers to CBSA whereas many civil liberties groups have been asking him persistently for months to bring more accountability to the work of CBSA, without success.

Even with what the government is proposing today in terms of parliamentary oversight, it won’t be enough to address the particular issues relevant to CBSA in terms of refugee and immigrant arrest, detention and search, seizure, data collection, information sharing and national security powers. Rather, an independent review mechanism that would be specific to the work of CBSA, that would assess and review its operations before, during and after, that would review any proposed legislation and that can independently launch investigations about complaints or allegations of abuse, is really needed and yet still inexistent.

Since you’re here… … we have a small favour to ask. Here at ICLMG, we are working very hard to protect and promote human rights and civil liberties in the context of the so-called “war on terror” in Canada. We do not receive any financial support from any federal, provincial or municipal governments or political parties. Any donations will go a long way to support our work. On the fence about giving? Check out our Achievements and Gains since we were created in 2002. Thank you for your generosity!