Bill C-22: the government’s proposal for an enhanced review of national security issues

By Kendra Eyben, JD/MA in International Affairs at the University of Ottawa, Faculty of Law/Norman Patterson School of International Affairs at Carleton

The Trudeau government is making good on its promise to deliver reform when it comes to national security accountability. On June 16, the second-to-last day before summer adjournment, Dominic LeBlanc introduced Bill C-22 on behalf of the government without any comment. The purpose of this bill is to establish a National Security and Intelligence Committee of Parliamentarians, which would be the first of its kind in Canadian history.

The Committee is designed to review three aspects of national security. Review is an after-the-fact accountability process that analyzes past action, measures them against established standards and then often provides recommendations for better performance. The three national security and intelligence aspects that the agency is tasked with review are:

  1. all laws and rules on this topic;
  2. any activity carried out by a department related to these issues unless the appropriate Minister vetoes the review based on an assessment that it would be injuries to national security;
  3. and any matter relating to these issues that is referred by a minister to the Committee.

This is an incredibly broad mandate. Canada’s national security and intelligence agencies include the Canadian Secret Intelligence Service (CSIS), the Communications Security Establishment (CSE), the Royal Canadian Mounted Police (RCMP), Canada Border Service Agencies (CBSA), the Department of Public Safety, and many other cooperating agencies and departments across the federal and provincial governments.

To perform this work, the committee would be composed out of a Chair and up to eight members. At full capacity, the Committee would include two Senators and seven Members of Parliament (MPs), and only four of those MPs would be permitted to be members of the government party. They are appointed by the Prime Minister, based on different consultation requirements depending on whether it is a Senator, a government party MP or an opposition MP.

What is novel about this Committee is that the members will obtain security clearance, and therefore be able to access classified material. Members of Parliament in Canada have long been denied routine access to classified documents. The lack of access is a major obstacle to Parliamentary oversight and review of national security activities. Obviously, without access to classified information it is incredibly difficult to adequately comment on these types of issues. The reasons against granting a legislative body access to classified documents include the fear of leaks and the politization of sensitive national security issues. However, it is important to point out that the total lack of information given to Parliamentarians is an anomalous practice when compared to our closest allies such as the United States, the United Kingdom and Australia.

Professor Craig Forcese of the University of Ottawa gave his initial opinion of the Bill in its current form. He pointed out several issues. An important one to repeat here are the exceptions to the committee’s access to information. The Bill denies the committee access to a broad class of information, without any dispute resolution mechanism to resolve the issue of withheld information. The committee can see less information than other exiting review bodies such as the Security Intelligence Review Committee, which is the body tasked with reviewing CSIS, and the Commissioner for the CSE. This means that the committee may not be truly able to engage in substantive review of intelligence activities.

To add, it is important to point out that the proposed committee is exceptionally small for the breadth of its mandate. Even at its full capacity, it is unclear how seven MPs and two Senators could adequately address the full scope of this committee’s mandate even if this was their only duty. Furthermore, the bill does not require that the committee operate at full capacity. The Prime Minister has discretion to appoint fewer members, which could further hobble this committee’s efficacy.

Parliament resumes on September 19, 2016. The next few months should be critical to charting a new path in national security and intelligence accountability within Canada. What will be interesting to see is the Senate’s reaction to this Bill. Before the summer recess, the Senate Standing Committee on National Security and Defence engaged in vigorous analysis on Bill C-7, which deals with labour relations in the RCMP, and also looked at S-205, a Senate bill that suggested creating an Inspector General for CBSA. Members of the Senate are obviously seized and interested in matters related to intelligence and national security accountability. Given that we currently have a majority government; the Senate stage may propose some of the more interesting amendments.

 

Parliamentary Sunrise” by Glenn Euloth is licensed under CC BY NC-ND 2.0.

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