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'It is beyond time to make this happen': Speech to the Senate on establishing a committee of Parliamentarians on security and intelligence

Senator Peter Harder's speech to the Senate on Bill C-22, which establishes the National Security and Intelligence Committee of Parliamentarians

Honourable Senators,

We all know where we were, what we were doing and who we were with on the morning of September 11, 2001. I had just given a speech and presentation to the Media & Telecom Conference at the annual event in Toronto when I went out to the corridor and saw on a big screen the repeat of the first airplane hitting the first tower. I rushed to the airport in Toronto to make my way back to Ottawa and was at the airport when on the screen, in live action now, I saw the second airplane, and the airport in Toronto was closed. We all rushed downtown to catch what turned out to be the last train out of Toronto to Ottawa, returning to a city that had changed because of that very event.

Indeed, on that day, the world changed. Countries scrambled to protect their borders and enact legislation as quickly as possible to maintain security for their citizens. Canada, under then Prime Minister Jean Chrétien, brought in the Anti-terrorism Act in November 2001 in response to 9/11. Today, nearly 16 years later, we begin the debate in this chamber on Bill C-22, An Act to establish the National Security and Intelligence Committee of Parliamentarians.

The purpose of this legislation is simple: the establishment of a committee of parliamentarians to oversee the work of Canada’s national security and intelligence machinery. This moment comes to us years and, in some cases, decades after many of our allies created similar committees. It is beyond time to make this happen.

This is not Canada’s first effort at establishing such an oversight committee. Such recommendations have been made for years in one form or another.  

As early as 1981, the Royal Commission of Inquiry into Certain Activities of the RCMP concluded that Canada needed an arm's-length civilian security agency outside the RCMP, and made the following recommendation:

The agency should be established by an Act of Parliament. That Act should define the organization's mandate, its basic functions, its powers and the conditions under which they may be used, and its organizational structure. It should also provide for its direction by government and for independent review of its activities.”

In 2002, the House of Commons Standing Committee on Foreign Affairs and International Trade recommended increased parliamentary oversight of intelligence in order to monitor the possibilities of heightened risks of human rights and freedom infringements.

In 2004, the Interim Committee of Parliamentarians on National Security recommended a parliamentary intelligence committee to ensure that the security and intelligence community served Canada’s interests and respected the Charter of Rights and Freedoms.

In 2005, the Martin government introduced Bill C-81 to create the National Security Committee of Parliamentarians. The bill died on the Order Paper with the dissolution of the 38th Parliament.

Similar legislative endeavours followed — from Liberal MP Wayne Easter’s Bill C-551 in 2013 to former Conservative Senator Hugh Segal's Bill S-220 in 2014. All of these attempts were to create a national security committee of parliamentarians. And these efforts represent all parties from both houses.

In this Chamber, the Special Senate Committee on Anti-Terrorism was reconstituted during the 40th parliament. On more than one occasion, this committee recommended the creation of a Parliamentary Oversight Committee. I quote Recommendation 16 from their March, 2011 Report entitled Security, Freedom and the Complex Terrorist Threat: Positive Steps Ahead:

“Consistent with the practices in the United Kingdom, Australia, France, the Netherlands, and the United States, the federal government constitute, through legislation, a committee composed of members from both chambers of Parliament, to execute Parliamentary oversight over the expenditures, administration and policy of federal departments and agencies in relation to national security, in order to ensure that they are effectively serving national security interests, are respecting the Canadian Charter of Rights and Freedoms, and are fiscally responsible and properly organized and managed.”

I want to thank members of that committee for standing firm on the issue of parliamentary oversight: to the former Chair and Deputy Chair, Senators Hugh Segal and Serge Joyal, and to the members of the 2011 committee. I also wish acknowledge Senators Furey, Jaffer, Marshall, Tkachuk, Wallin and former Senator David Smith. And I would be remiss not to pay tribute to another committee member, the Honourable Pierre-Claude Nolin. I know how missed he is in this chamber.

It is nearly 16 years since the tragic events of 9/11 and it is about time that Canada provides oversight. I thank him and all the members of the former Senate Committee on Anti-Terrorism for attempting to bring us in line with our closest allies. Bill C-22 is a giant leap toward fulfilling that Senate Committee recommendation.

For those of you who were here in 2014, you will note that Bill C-22 is very similar to Senate Bill S-220, introduced by our former Conservative colleague Hugh Segal and seconded by former Liberal Senator Roméo Dallaire. This bill was modeled on the Security and Intelligence Committee of the United Kingdom.

The UK committee had been in existence since 1994. Comprised of MPs and Lords with backgrounds in policing, security and anti-terrorism, it reported directly to the Prime Minister and has, over the years, gained the trust of agency heads, stakeholders and parliament itself. UK oversight has evolved over the years based on its unique UK experiences and has become what it is today.

Bill C-22 uses the original UK model but fashions it to suit our unique Canadian context and experience at this point in time. However, I am certain that the Canadian model will also evolve in much the same way as did the UK model as we learn from our own experiences.

I want to quote from former Senator Segal’s second reading speech of Bill S-220, delivered May 27, 2014:

“The entire purpose of national security and intelligence is to protect Canadian democracy and its freedoms, the very things that annoy and spur to action those violent extremists who would do harm and those who would promote terror to achieve their goals. Without full-time legislative oversight, we can't know if the protection of our freedom and way of life is actually happening.”

Former Senator Dallaire’s speech of June 5, 2014 also makes a compelling point, noting that such a committee “would be forward-thinking and would be able to grasp the big picture, provide full-time legislative oversight and open channels of communication between the agencies,” and that such, “national oversight would further ensure that democratic principles and Charter rights are respected.”

Bill C-22 goes a very long way in filling the gaps and providing the information that the Senate, including current sitting senators, have sought for a good number of years.

Just as maintaining the safety and security of Canadians is a fundamental duty of Government, so too is ensuring that this responsibility is fulfilled in a manner that respects Canadian principles and meets Canadians’ expectations.

Public confidence in our security and intelligence agencies depends on achieving both these objectives. The establishment of a Committee of Parliamentarians with broad access to classified information is integral to strengthening Parliament’s role in a fundamental way.

Canadians and we, as Parliamentarians, expect that the work carried out by Canada’s national security and intelligence community is undertaken in accordance with the laws enacted by Parliament.

Currently in Canada, our legislators do not have complete access to materials to make informed decisions on these issues. Neither members of Parliament nor Senators have security clearances to receive classified materials or testimony. Witnesses coming before the current House or Senate committees cannot share sensitive information in a public setting and committee members are often left with more questions than answers.

Bill C-22 would establish a Committee of Parliamentarians; not a Committee of Parliament. Given the nature of its mandate and its exceptional access to classified information, the Committee would be governed by the Act and associated regulations, rather than parliamentary procedure. Sitting legislators would be able to obtain materials and hear testimony that would address many unanswered questions.  

In the selection of Members, Bill C-22 requires broad consultation with party and caucus leaders, and ensures representation from both Chambers of Parliament. I would note that the other place amended the Bill to acknowledge the evolving identity of this Chamber by ensuring that the consultation process is done with the leader of every caucus and recognized group in the Senate.

Establishing the Committee in this manner would set the stage for the emergence of a credible, non-partisan voice ensuring that federal departments and agencies exercise their authorities appropriately and as Parliament intended.

At Committee stage in the other place, the membership was increased from nine to eleven — allowing an additional representative from each Chamber, bringing the number of Senate appointees to three.

While the proposed model draws on best practices adopted by Canada’s allies, in some respects, the mandate and powers proposed in Bill C-22 go beyond those of other Westminster models, such as the United Kingdom, Australia and New Zealand.

This is true of the committee’s expansive scope.

The mandate of the committee is not limited to the review of matters after the fact. Instead, it can review any activity that is carried out, including that of ongoing operations. By contrast, the Australian and New Zealand models are not mandated to consider operations. In the UK, the committee may review any operational matter, but only if the Prime Minister agrees that it is not part of an ongoing intelligence operation and is of significant national interest, the Prime Minister has explicitly asked the committee to study the matter, or the information is voluntarily provided to the committee by the agency in question.

Bill C-22 also authorizes the committee to review any matter pertaining to national security or intelligence activities in any federal departments and agencies. By contrast, the scope of review within the UK, Australian and New Zealand models is more narrowly defined. In the UK, beyond their capacity to review their core securities agencies, the committee may examine any institution with which it has a memorandum of understanding, currently three government departments. In New Zealand, the committee only has the power to review its two core agencies.

The expansive scope of review contemplated by Bill C-22 also comes in stark contrast with other domestic independent review bodies in Canada that direct their efforts at specific organizations

This government-wide perspective is crucial. It creates the opportunity for comprehensive reviews of the legislative, regulatory, policy and administrative frameworks governing the activities of Canada’s national security and intelligence community. It also ensures the Committee is authorized to “follow the thread” wherever it leads. While the Security and Intelligence Review Committee, SIRC, does terrific work reviewing the activities of CSIS, it cannot follow that thread to see what happened, if for example, information was passed along to the RCMP. SIRC, in its capacity as a complaints body, investigates and looks backward and is essentially a Monday-morning quarterback.

While Bill C-22 deliberately creates a broad mandate for the Committee, there may be circumstances in which scrutiny of an ongoing operation — a live operation in the field — would cause injury to national security. In such cases, the Bill allows the appropriate Minister to, in effect, defer the review of an ongoing operation.

To ensure that this exception is not abused, such a determination would trigger a number of statutory requirements. First, the Minister must provide reasons to the Committee. The Minister must also notify the Committee when the review would no longer be injurious or when the operation is no longer ongoing.

Though this provision was subject of extensive debate in the other place, I would stress that it is intended as a safety valve, with commensurate checks and balances, to ensure that a particular review does not adversely impact an active operation.

To fulfill its mandate, Bill C-22 provides Members of the Committee with broad access to highly classified information, as well as that protected by solicitor-client privilege. The Committee may request any information under the control of a federal department or agency and the Bill is explicit in confirming that the Committee’s right of access prevails over any other Act of Parliament.

Cooperation with existing review bodies also offers an important source of independent expert advice, which will both augment the Committee’s own reviews and reduce duplication of effort.

The Standing Committee on Public Safety and National Security in the other place thoroughly reviewed this Bill and introduced a number of amendments, including an important whistleblower provision. The Government reflected on these proposed changes and introduced other amendments, most notably to re-introduce specific and limited exceptions. I would submit that these exceptions are reasonable and consistent with well-established legal principles and relevant statutory regimes.

For example, the Bill would protect information that would reveal the identity of an informant or source, or of an individual protected under the witness protection program. This provision is certainly reasonable. The Committee can perform its role without knowing the identity of informants or sources or the names of individuals protected under witness protection.

Confidences of the Queen’s Privy Council would also be protected, to uphold the rule of Cabinet confidentiality, recognized by the Supreme Court as essential to democratic governance.  

Equally important, Bill C-22 respects the principle of police independence, intended to guard against political interference in specific, active law enforcement investigations.

Finally, the Minister retains a discretionary authority to withhold “special operational information” as defined in the Security of Information Act on a case-by-case basis and only if its disclosure would be injurious to national security. 

As a useful comparison, other international models either prevent their review bodies from reviewing operational matters, or limit such reviews to past operations. Bill C-22 proposes a more comprehensive approach.

Honourable senators, let us be clear: the oversight committees of all Five Eyes countries face some degree of restrictions or limitations in their ability to access classified information. In Australia and the UK, the ministers responsible may withhold sensitive information. In New Zealand, the power to withhold information is left at the discretion of the agency heads, although the Prime Minister may override the agency’s decision.

In light of the Committee’s mandate, the Bill must account for the security requirements associated with the nature of the Committee’s duties and functions.

It sets out a number of safeguards, requiring that Members of the Committee maintain the necessary security clearance, take an oath of secrecy and comply with procedures and practices to be set out in regulation.

Bill C-22 requires that the Committee submit an unclassified annual report of its reviews directly to the Prime Minister, including findings and recommendations, as well as a summary of any special reports issued. The report will identify the number of times the review of an ongoing operational activity was determined to be injurious to national security, providing another vehicle for holding ministers to account.

The Committee’s Annual Report will be tabled in each House of Parliament and referred to the appropriate Standing Committee for study, providing an opportunity for Parliamentarians and Canadians to scrutinize any issues that may be raised. 

Much has been said about the Prime Minister’s review of the Annual Report. Given its origins — based on highly classified information — the Bill provides for the Report’s review prior to public release. As is the case in other Westminster countries with similar committees, this review is strictly intended to ensure that protected information is not inadvertently disclosed.

I would emphasize that the Prime Minister’s review is done in consultation with the Chair of the Committee for the sole purpose of making sure that the report is, in fact, unclassified. How this is achieved, whether by blacking out lines or denoting redactions with an asterisk, is entirely up to the Committee.  

These provisions do not provide authority for the Prime Minster to alter the Committee’s findings or recommendations. The Committee has full discretion to include in its report any criticism it may have on this, or any other issue.

This topic illustrates an essential point. While access to information is critical, and I believe Bill C-22 achieves the broad and largely unfettered access required, the Committee’s independent pursuit of its mandate is fundamental to the integrity of its work.

To that end, Bill C-22 establishes the Committee’s mandate and powers in law. There can be no question as to the scope of the Committee’s mandate or its authority to chart its own course in deciding which matters it wishes to review and in issuing findings and recommendations as it sees fit.

Canadians have called for greater accountability and greater transparency.

The Bill before us provides a sound framework to achieve just that, by creating a permanent mechanism to meaningfully enhance Parliament’s role in the review of national security and intelligence activities.

Canadians want to know that the exercise of authorities is appropriate and consistent with our principles, including those enshrined in the Charter of Rights and Freedoms. Canadians also want to know that the laws in place are effective at keeping them safe.

Honourable Senators, what I will say next is essential to the mindset that I hope will animate this Chamber’s review of Bill C-22.

This is a bill that strikes the delicate balance between the imperative of initiating parliamentary review and the need to establish a working relationship with the security agencies, international allies and other national security and intelligence stakeholders. It represents the right policy balance in an area where Canada is only now getting off the starting blocks.

C-22 is not merely a meaningful first step. It is the legislative genesis of parliamentary review of the Canadian intelligence machinery. Though there may be room to adjust and grow, Bill C-22 is by no means a minimalist approach. It allows Canada to develop its own oversight in its own context by its own experts and gain the trust of stakeholders and parliamentarians. But it is likely not the final destination: Section 34 of the Act explicitly provides that a comprehensive review of the regime is to be undertaken by parliamentary committees in five years’ time. This review will be informed by the lessons that will be learned in the Canadian context. Given this, I would invite the Senate committee studying Bill C-22 to offer observations that can be tracked and subsequently reported on during this review.

An Act to establish the National Security and Intelligence Committee of Parliamentarians provides the balance legislators require to oversee the important work of our agencies; it offers us the opportunity to establish a strong working relationship with those doing the important work of protecting Canadians; and it will offer us the capacity to develop our expertise, and to learn and adapt based on the experience we will gain together. We need to walk before we can run. And we certainly need to walk before we jump off a cliff. Bill C-22 is to be understood as the foundation stone upon which the Canadian experience will evolve and adapt.

The capacity and context of our national security engagements were diminished by this gap of review and this glaring difference between Canada and our most important allies. Canada is perfectly capable of having effective national security and effective parliamentary review — one need not get in the way of the other.

This is our opportunity to; in essence, finish the work that began in this Chamber. The calls for parliamentary oversight were loudest and most forceful from our Senate colleagues — many of whom are still among us. It is very fitting that the Senate will have the final word.   

I look forward to the careful review of this Bill and welcome your views.

Thank you.