Lawyers Weekly: Proposed security review panel called ‘positive’ but with caveats

Exception allowing ministers to limit access to information ‘disturbingly wide’

  By Cristin Schmitz
  July 01 2016 issue

National security lawyers are welcoming the Liberals’ proposed creation of a committee of MPs and senators to oversee all federal entities involved in national security matters, but say the government must go much further to improve review and oversight.

Tabled in the Commons June 16 by government House Leader Dominic LeBlanc, Bill C-22 would establish a cross-party, security-cleared “national security and intelligence committee of parliamentarians” that would be appointed by the prime minister, via cabinet.

As part of the executive — not legislative — branch, the committee of two senators and seven MPs (with a maximum of four MPs from the governing party) would be sworn to secrecy (without parliamentary immunity for confidentiality breaches) and have a government-wide mandate to review national security and intelligence activities, including ongoing operations (but excluding criminal investigations headed for prosecution and defence intelligence activities supporting military operations). The new body would also perform strategic and systemic reviews of the legislative, regulatory, policy, expenditure and administrative frameworks under which national security activities are conducted.

When he introduced the bill, Moncton lawyer LeBlanc said establishing the committee is “an important first step in enhancing national security review and furthering our commitments towards meaningful engagement with parliamentarians.”

Like the other national security lawyers contacted by The Lawyers Weekly, NDP justice critic Murray Rankin sees the bill as positive, but expressed “concerns” he hopes the government will address during a national security law reform consultation in the summer. “It’s certainly a very positive step forward,” said the former Security Intelligence Review Committee (SIRC) legal adviser and ex-special advocate. “I am impressed that we finally have a proposed parliamentary oversight mechanism.” Yet “one of the key things is access to the kind of information the committee will need to do its job, and it all turns on that,” he added.

The bill stipulates the committee can access “any information that is under the control of a department and that is related to the fulfilment” of the committee’s mandate, including information protected by solicitor-client or litigation privilege, or the professional secrecy of advocates and notaries.

But in Rankin’s view, Bill C-22’s exceptions, and the scope it gives ministers to decline to disclose information if it would be “injurious to national security” or is “special operational information” under s. 8(1) of the Security of Information Act, are “disturbingly wide if the committee is to do the job that it is being assigned.”

Rankin also highlighted s. 8(b) of Bill C-22 which stipulates the committee is to review any activity carried out by a department relating to national security or intelligence “unless the appropriate minister determines that the review would be injurious to national security.”

That ministerial national security veto could be “a very, very wide exception,” he said. “So are they prepared to limit it through regulations? Are they prepared to provide more opportunity for us to make sure that they can’t simply use that as an excuse” to not permit the committee to do its work?

Rankin also took issue with the committee’s chair being chosen by cabinet, rather than by the committee’s members. “I think it would have more legitimacy if it weren’t simply a government appointment,” he explained. “If the government is prepared to be open in the consultation on the [bill] then we are more than happy to work with it in a positive spirit to get this right.”

Public Safety Minister Ralph Goodale has repeatedly said Ottawa is open to improving Bill C-22 and wants input from the public and those with relevant expertise.

Paul Cavalluzzo, a special advocate and former counsel to the (Maher) Arar Inquiry, agreed parliamentary oversight of national security agencies will help but emphasized “it’s not enough. What we do need is…Parliamentary oversight and independent, real-time operational review by an independent tribunal which has authority and jurisdiction across government.”

He said creating a so-called “super-SIRC,” as recommended in 2006 by Arar Inquiry Commissioner Dennis O’Connor and endorsed by many human rights bodies and national security experts, would address persistent and critical oversight gaps caused by the restricted jurisdiction of the existing national security watchdogs: SIRC, the Communications Security Establishment Commissioner, and the RCMP Civilian Review and Complaints Commission, which respectively review CSIS, the CSE and the RCMP.

“The problem with that kind of siloed jurisdiction is that all national security investigations are across government so that you have many agencies acting together, and if you are going to have effective review of our national security agencies you need an independent review body with across government jurisdiction,” Cavalluzzo explained. “Parliamentary oversight is really going to deal with policy issues. What we need is a review mechanism to deal with the day-to-day operations of the national security agencies.”

Two leading national security law authorities, University of Ottawa law professor Craig Forcese and University of Toronto law professor Kent Roach, were also positive about the bill, as far as it goes, but with reservations.

“The government deserves credit for providing the new committee with a secretariat that is absolutely necessary, given the complexity of the national security field,” Roach said by e-mail. “I also applaud allowing the committee to see material covered by solicitor-client privilege. When you think of the torture memos, or the memos governing drone strikes in the U.S. or the U.K., it is apparent that the legal advice that security agencies receive is often critical, and can be problematic.”

Like Forcese, Roach said the fact that the bill would bind parliamentarians by the extremely strict Security of Information Act “only underlines the urgent need for a thorough review of all of our security laws.”

Moreover review “is not a substitute for fixing bad and overbroad security laws,” he added. “My hope for the upcoming review is that it allows civil society groups to articulate their concerns about laws and practices — something that is only more important given the new emphasis [by governments] on countering violent extremism.”

Forcese said he sees C-22 as a “good bill,” albeit one with inevitable (but not fatal) flaws “likely reflecting compromises designed to reconcile elements within the government.” On paper, at least, it will be a stronger body than its U.K. and Australian equivalents, he said in his “National Security Law” blog.

“This is only one side of the accountability reform coin,” he noted by e-mail. “The other side has to be an enhancement of the role, powers and scope of the expert review bodies [like SIRC] — up to and including the possibility of a single, all-of-government expert review body,” Forcese said. “C-22’s limitations on the committee of parliamentarians’ ability to review security and intelligence agency activities (and the constraints on the information they may receive) is credible only if countervailed by an expert review system that does get to see everything, and can follow the thread from organization to organization,” he added. “So far we don’t have that.”

Forcese also stressed that the best review in the world can’t compensate for bad substantive law — such as the many errors and omissions in Bill C-51 — the contentious anti-terrorism law enacted last year. “My assumption, built on what is in the public domain so far, is that the government will now move ahead with a broader reform initiative to cure” C-51’s defects, Forcese said. “So it is important not to lose sight of the bigger picture.”