Security-agencies oversight legislation lacking

Government firmly in control, with power to shut down committee’s work altogether

This week brings a showdown in Parliament that’s been building for nine months. At issue is a bill that many Canadians have never heard of, but is crucial to our national security and intelligence communities, and to our safety, privacy and civil liberties.

Canada’s three core security and intelligence agencies spend nearly $4 billion a year, employ 34,000 people and, since Liberals and Conservatives voted to pass Bill C-51, wield unprecedented powers to investigate and disrupt suspected threats. And yet Canada stands alone amongst our G7 peers in lacking parliamentary oversight of these powerful agencies.

In the United States, Australia, New Zealand, the United Kingdom, Germany and elsewhere, elected representatives make sure the government is carrying out its security and intelligence responsibilities properly, legally and effectively. But not in Canada.

To plug this gap in oversight, a proposal now before Parliament would give a committee of Top Secret-cleared MPs and senators access to classified information to oversee and investigate the security and intelligence activities of any government agency.

But while the idea of an intelligence-oversight committee has long been supported by both New Democrats and Liberals, parts of this plan sparked controversy in Parliament and raised red flags for security experts.

First, while you might expect oversight to be independent, this body would actually be firmly under government control. It reports to the prime minister, who also chooses all its members.

Second, the government can withhold information, despite the committee’s top-level security clearance, not just, say, to protect someone in the Witness Protection Program, but also on very broad, discretionary grounds. The government need only assert that sharing information, even with Top Secret-cleared lawmakers inside a secure facility, would be “injurious to national security.” Unlike similar assertions of security privilege, this one can’t be appealed before the special federal judges who handle such issues.

Third and most jarringly, the government could shut down the committee’s investigations entirely. A cabinet minister could even use this power to shield his or her own department from scrutiny.

Why pursue such a weak oversight model?

Part of the answer is the government’s plan isn’t new: In fact, the bill is cut and pasted from a 2005 initiative of the Paul Martin government.

All of this gets to a fundamental question: to what degree can the government exclude your elected representatives from monitoring its handling of national security?

During hearings of parliament’s public-safety committee, I introduced more than a dozen amendments to improve the bill, and many were accepted.

An NDP proposal was adopted giving the new watchdog committee a legal duty to blow the whistle on anything it suspects might be illegal. Two other ideas proposed in our amendments were passed with bipartisan support: The committee now has the power to subpoena witnesses and force the production of secret documents, and Canadians’ will now get more transparent reports from the oversight committee that show where information was redacted by the prime minister before publication and for what reason.

But the biggest progress was made on the key question of access to secret information. A majority of the members of the public-safety committee thought that the restrictions initially proposed by the government were too strict and could prevent the oversight body from doing its job.

The bill that emerged from these public hearings is much improved from the first draft. The oversight committee now has full access to classified information, just like the specialized review bodies with which it will collaborate. It now has stronger investigative powers, as well, and new trust-building features such as transparent public reports and a duty to blow the whistle on questionable activities.

Unfortunately, the battle isn’t over. In the public-safety committee, MPs from all parties agreed on amendments based on the expert evidence they’ve heard. But, this week, the government could delete these all-party changes and revert to its original draft.

Experts have warned against such a course. “Should the government choose to force a return to the restrictive original bill,” four of Canada’s leading experts on intelligence warned recently, “it risks potentially undermining a new and historic parliamentary ability.” They urged the government to “follow its better angels” and keep the committee’s upgrades.

In the era of Bill C-51 and President Donald Trump, it’s more important than ever that our security and intelligence agencies earn Canadians’ trust. To build that trust, keep us safe and preserve our civil liberties, we need a watchdog with real teeth. Parliament can finally offer one — unless the government decides this week to muzzle it.