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Bill C-59 (National Security) - Second Reading

Honourable senators, I rise today to speak to Bill C-59, An Act respecting national security matters, and its proposed objectives with respect to Canada’s national security organizations. I start by commending Senator Gold for his hard work in sponsoring the bill.

I will briefly speak to the overall objectives of the bill but want to focus my remarks on how it would tackle the siloed nature of our security organizations and their review processes, and thus improve oversight for the protection and well-being of Canadians.

This bill is designed in part to redress the imbalance between security service powers and those of the review bodies that hold them to account. If passed, the bill would supplement the joint parliamentary review committee on security with the creation of a national security intelligence review agency, NSIRA, and also create the position of the intelligence commissioner. This review agency is a key component of the legislation. It emphasizes the importance of review, and establishes checks and balances that will protect Canadians and their rights.

Bill C-59 would also revamp the Communications Security Establishment, the CSE, so that many of its functions would be defined by law and not ministerial authority and/or by internal policies. Security experts tell us that this will bring clarity to our security organizations so they can perform their jobs more effectively. Experts have also described the legislation as forward-looking in that it would establish new mechanisms that would allow our national security organizations to be nimble and adaptable to new technologies as they emerge.

Bill C-59 is designed in part to address the current fragmentation in current review processes by providing broader oversight of Canada’s security and intelligence organizations. In an effort to increase transparency and accountability, this bill represents a break from the siloed models of the past in proposing a whole-of-service approach involving multiple agencies in its review activities, including CSIS, the RCMP, the CSE and CBSA.

In former jobs, I, like many of you in this room, have led initiatives to tackle silos in public sector organizations. I’ve seen the downsides of policy being developed in silos. I’ve seen the downsides of program delivery silos and funding silos.

And we’ve all seen the downsides of governance and accountability silos as well. The U.S. congressional report on 9/11 not only revealed that intelligence agencies were operating within their own stockades — not sharing critical intelligence on foreign threats; it also remarkably revealed the existence of previously unknown U.S. security organizations. I call those the ultimate silos or mega-silos.

In a 2016 paper entitled Bridging the National Security Gap: A Three Part System to Modernize Canada’s Inadequate Review of National Security, experts Craig Forcese and Kent Roach define review as “the process by which independent bodies retrospectively evaluate the conduct of security and intelligence agencies.” They further suggest that an effective review system is also prospective or forward-looking and therefore able to evaluate the need for proposed legislation or policy changes.

They say that review is important because of the substantial powers that security intelligence agencies hold, particularly the power to restrict rights and liberties, that there have been instances in Canada and elsewhere where these powers have been misused; that security and intelligence agencies exercise these powers in secret and therefore could prevent complaints about misconduct; and that security and intelligence agencies are generally insulated from outside scrutiny and exposure, which is arguably an essential component to ensuring efficiency and effectiveness.

While a number of review mechanisms are currently in place, they do not together or separately have a sufficient mandate to review matters which cross-agency boundaries.

Our security organizations currently have three review bodies. CSE is currently reviewed by the Office of the Communications Security Establishment Commissioner; CSIS is reviewed by the Security Intelligence Review Committee, an independent external review body which reports to Parliament on the operations of CSIS; and the RCMP has a Civilian Review and Complaints Commission, which ensures that public complaints made about the conduct of RCMP members are examined fairly and impartially.

Although CSIS, the CSE and RCMP cooperate and share some information on their activities, their in-house review bodies are only mandated to review activities within the walls of their own organizations.

An important feature of Bill C-59 would be the creation of NSIRA, which would establish greater accountability and transparency. It would enhance national security by allowing NSIRA to “follow the thread” of a national security file as it travels, for example, from CSE to CSIS and then from CSIS to the RCMP. The Air India Inquiry made a strong case for this sort of mechanism.

The knowledge that these threads will be followed will provide an incentive for more communication between agencies in general and with respect to their operational activities.

As we know, only too often these agencies and organizations in general land in trouble when information has not been shared. As with any other critical organization, they work best where they work together, where they collaborate and where they communicate. Bill C-59 would provide a firm nudge to the agencies to do more of this.

In the absence of a sophisticated review body that oversees all national security activities, those activities tend to be reviewed when necessary on an ad hoc basis and this can result in significant cost to Canadian taxpayers. Commissions and inquiries require lawyers, staff and facilities to hold hearings, and in some cases, their recommendations are ultimately unhelpful.

In 2010, Parliament struck a committee to examine whether or not the Canadian military was complicit with torture when it transferred Taliban detainees in Afghanistan to Afghan officials. In the end, parliamentarians and a group of retired judges disclosed only a small number of the heavily redacted secret documents they had requested. The initiative cost $12 million and after the 2011 election, the committee’s mandate was not renewed, leaving no lasting reforms. In a supplementary review, SIRC reviewed the role of CSIS with Afghan detainees but stopped short of reviewing the role of National Defence in this matter.

Appearing in front of a Senate National Security and Defence Committee meeting in 2015, Michael Doucet, the Director of SIRC, testified that, “At that time in Afghanistan, it was under the purview of DND so we could only look at CSIS information holdings and not holdings from a broader intelligence community . . . I would say as a result of that, Parliament and Canadians didn’t get the full picture.”

In the report of the events relating to Maher Arar, several recommendations were made concerning a centralized review body, suggesting that the RCMP specifically should engage in “. . . information-sharing practices and arrangements should be subject to review by an independent, arms-length review body.” That was 10 years ago, and that has not happened.

We now have a proposal before us that would see an empowered review agency realized. Under Bill C-59, NSIRA would assume responsibility for reviewing all national security activities across the Government of Canada and put an end to siloed reviews and, hopefully, ad hoc commissions.

NSIRA would review our national security agencies’ activities for lawfulness and ensure their activities are reasonable, necessary and compliant with ministerial direction. In addition, NSIRA would serve as the new review body for complaints.

The NSIRA would be led by a committee of up to seven members appointed on the advice of the Prime Minister, in consultation with the leaders in the House of Commons and Senate. NSIRA would have unfettered access to information necessary to review all national security activities across the federal government. It would provide a classified report of its findings and recommendations to relevant ministers, and would produce an annual unclassified public report to Parliament summarizing these findings and recommendations. The agency would be fully independent of government.

The information commissioner would also be independent of government and have a mandate to provide oversight of a subset of CSE and CSIS activities. The commissioner would replace the current CSE commissioner, and given the nature of the office’s mandate, the position would be filled by a retired judge of a Superior Court.

Some senators are understandably concerned that the creation of the intelligence commissioner position and NSIRA would add more layers of bureaucracy — it’s a really good question — and that we might be overwhelmed by paper. These are valid concerns.

But this is a complex area of work which is not easily reported in a one-page briefing note, and nobody is a bigger fan of one-page briefing notes than I, believe me.

I think, though, that increased accountability, transparency and clarity will result in more streamlined processes that are not road blocked or complicated by departmental boundary lines. It should no longer be necessary for the government to spend tens of millions of dollars on ad hoc review processes.

It’s important to remember that our national security agencies are already subject to review by the SIRC in the case of CSIS, the commissioner for the CSE and the Civilian Review and Complaints Commission for the RCMP.

Bill C-59 is not adding a new review agency to the mix, but rather integrating them into a single review agency that can follow a case as it moves between agencies.

On February 13 of this year in the other place, Tricia Geddes, a current CSIS assistant director, was asked whether Bill C-59’s review proposals would be overly onerous. Here is what she said:

We are quite comfortable with review. . . .

. . . I honestly believe it’s critical to have the confidence of Canadians. I think operations can be slowed down if Canadians lose confidence in the security agencies, or if, for example, we have to stop and fence off data. It’s therefore critical . . . that we have public confidence if we want to move swiftly through operations.

Colleagues, there’s virtue in creating an independent review body. It has the potential to grow greater trust and confidence in our national security and intelligence agencies.

Honourable senators, I think we all appreciate that successful organizational change — and that’s what this is about — goes hand in hand with sound human resources planning. I think it’s important that NSIRA and the intelligence commissioner be properly supported by a well-resourced secretariat, and that the members of NSIRA have the range of knowledge and experience across different areas — security, intelligence, law enforcement, et cetera — to do the job well.

Turning for a minute to other provisions of Bill C-59, I, like others in this chamber, have some reservations about those provisions that would get into the areas of cybersecurity and the authorization of what I’ll call mass surveillance in certain circumstances. I think the key question of principle on this is whether the safeguards surrounding such authorization find an appropriate balance between individual rights and our collective security. I have asked thus far two legal experts for their view on this balance, and they tell me that they believe that it is calibrated in a way that finds that balance. I, like you, look forward to hearing a broader range of views on this as we move forward.

The rights, freedoms and protections of Canada is paramount. It’s our duty to ensure this bill benefits from rigorous study. I encourage us to send this bill to committee in order that we can hear from national security experts and others with an interest in these important matters. Thank you.