Why the government's last-minute bid to weaken the new intelligence oversight committee must be rejected

Remarks in the House of Commons, March 8, 2017

Mr. Speaker, I supported Bill C-22 at Second Reading because the NDP is firmly committed to finally bringing effective and transparent oversight to our security and intelligence services.

I recognized the flaws in the government’s first draft, but I had faith that all parties could smooth its rough edges with the help of expert advice at committee.

That faith was rewarded. All parties came together around evidence-based amendments. The bill we now have before us is stronger, it now has the endorsement of experts, and it could earn the support of all parties and the trust of Canadians.

That’s why it is so disappointing to see these last-minute proposals. These would roll-back the progress made by all parties at committee and, in the words of four leading experts, “undermine a new and historic Parliamentary ability.”

I am firmly opposed to these proposals. We cannot reverse the progress made at committee or reject the evidence that guided it. With each passing day the government intransigence looks less like prudence and more like the reflexive rejection of contrary evidence that, sadly, became a hallmark of our previous government.

But let me say a word, first, to the women and men of our security and intelligence community who are no doubt following this debate and wondering how it will affect their important work. As a former legal counsel to the Security Intelligence Review Committee, I know that to be effective, you need the trust of Canadians. To support your work, we need an authoritative, security-cleared committee of parliamentarians to bridge the gap between Canadians and their security services. Only when such a committee exists—and speaks with authority—can we give Canadians not just assurances but proof that their security and their civil liberties are protected.

The first thing we need to set straight about C-22 is the idea that experts support the government’s design.

This week the Public Safety Minister answered my criticism of these regressive amendments with a single, brief quotation from a piece Craig Forcese wrote a year ago and titled, “Knee Jerk First Reaction.” So what has he said since?

In November, Mr. Forcese testified at Public Safety, “I would strongly urge…full access to information” warning that anything less would “give the appearance of accountability without the substance.”

Calling for 3 key parts of the bill to be radically amended, he said, “These are all means of denying access to the committee. … It is this triple lock on parliamentary reviews that I feel could well make the committee of parliamentarian stumble.”

So, what did the other experts at committee tell us?

The Information Commissioner rejected cabinet’s ability to shut down investigations, saying it turned the committee’s mandate into “a mirage.”

Craig Forcese and Kent Roach, the founding chair of SIRC; the Information and Privacy commissioners of Canada, the Canadian Civil Liberties Association, the Canadian Bar Association, and Parliament’s own Interim Committee of Parliamentarians on National Security all recommend lifting restrictions on access to information and giving this committee full access.

The Public Safety Committee implemented this expert recommendation. Now the government wants to reverse it.

So, with that expert testimony in mind, let’s consider the government’s new proposals.

First, the government wants to remove the oversight committee’s power to subpoena witnesses and documents. I would remind Canadians that this is a power that is enjoyed by every standing committee of parliament. It would be truly bizarre if our Public Safety committee could compel a witness to give testimony on the theory of subpoena powers, but this new Top Secret-cleared committee could not wield the same power to fulfill its national security mandate.

The government’s second proposal is to allow Cabinet ministers to withhold information from the oversight committee.

Interestingly, these two features—full access to information, and the power to call witnesses—were proposed in 2014 in Bill C-622. And at that time the current Prime Minister, the Public Safety Minister and 9 other members today’s cabinet voted for exactly what they now oppose.  

Third, the government wants to add a senator and another government MP to the committee so that the votes of government MPs outnumber those of non-government MPs.

The government’s fourth proposal is to stop the committee from receiving information about active law enforcement investigations. As Craig Forcese testified, the 1985 Air India bombing remains an active investigation. A more recent example might be the October 2014 attack on Parliament. In the aftermath of such an attack, would this proposal prevent the intelligence oversight committee from receiving necessary information about investigations?

As with many of the government’s proposals on this bill, I understand the intent—oversight functions shouldn’t inadvertently impede operations. But the solution is judgement and discussion, not clumsy statutory roadblocks.

Remember—SIRC has full access to any information held by CSIS. And yet the heads of both organizations testified that they have no concerns about this arrangement. They resolve issues through negotiation, not legislation. As the founding chair of SIRC told us, “Sometimes, as in C-22, there is a tendency to over-legislate.”

But there’s still hope. It’s vital for Canadians to understand that Parliament now has the choice between two paths.

The first path is to impose these last-minute changes, reverse the all-party work of the Public Safety Committee, and reject the expert evidence it listened to.

The second path is to withdraw these rollbacks, accept the evidence, respect the work of all parties on the Public Safety Committee, and pass the bill we already have.

The current bill could still earn unanimous support and would give Canada a world-class oversight body worthy of the respect of our allies and the trust of Canadians. That’s what the government throws away if it insists on undoing the progress made so far.

Lastly, let me address one of the government’s favourite arguments, which is that we must scale back our ambitions and accept minimal progress on the theory that something is better than nothing. In response I would cite one last piece of expert testimony, and that is the recommendation of the last Parliamentary committee to study this issue.

In 2004 the Interim Committee of Parliamentarians on National Security recommended the creation of an oversight body with “complete access” to information. They explained:

“Though this arguably goes further than the legislation enacted by some of our allies, it is line with developing practice … We strongly believe that a structure which must rely on gradual evolution and expansion of access, power and remit would be inappropriate for Canada.”

But since the government seems to insist on such a course, I have one last solution to offer. My motion Number 7 on the Notice Paper proposes that we remove Clause 31 of the bill. That is the section that blocks judicial review of a cabinet minister’s decision to withhold information or shut down an investigation.

If the government insists—against the advice of every expert and the will of the Public Safety Committee—on tearing up the progress we made at committee and allowing cabinet ministers to override independent oversight, then at least let such decisions be scrutinized through the same Federal Court processes that handle similarly sensitive issues already.

If we must hobble this committee from the start, then the least we can do is remove a restriction whose sole purpose is to prevent the committee’s powers from maturing over time. I would ask all Members to support that amendment as a counter-balance to the government’s proposals here.

In closing, I regret that the government has chosen this course. But I cannot endorse the rejection of good, all-party committee work or the rejection of expert evidence. I hope that some Members on the government side will join us in opposing these regressive amendments.