National Post

LIBERALS’ PROMISED NATIONAL SECURITY REFORMS LACK TEETH, CRITICS SAY.

‘Disruption power’ still not reined in

- I an MacLeod

• The cornerston­e of the Liberals’ promised national security reforms — parliament­ary “oversight” of federal spy activities — would not allow lawmakers to scrutinize the most potentiall­y troubling of those actions until after they’re completed, if at all.

The criticism is one of several expected to be voiced this week over Bill C- 22, which will set up a committee of MPs and senators to monitor the country’s spooks.

The panel — whose members will have to pass security checks — is intended to police the Canadian Security Intelligen­ce Service ( CSIS) and 16 other federal entities with national security responsibi­lities, many of which now operate without independen­t scrutiny.

Its mandate also extends to examining the “legislativ­e, regulatory, policy, administra­tive and financial framework for national security and intelligen­ce.”

The Commons public safety committee begins public hearings on the bill Tuesday.

While national security experts praise C-22 for seeking to make spies more accountabl­e, the New Democratic Party is expected to call for at least five significan­t amendments, starting with the removal of eight exemptions the government can claim in order to deny committee requests for informatio­n.

They include the seemingly vast category of “special operationa­l informatio­n,” which critics call a “catchall” standard to block dis- closure. Ministers also can prevent the committee from reviewing any informatio­n that “would be injurious to national security.”

This is despite the Trudeau government’s repeated pledge to give the committee “access to all government informatio­n it needs.”

A spokesman f or Public Safety Minister Ralph Goodale said Friday t he minister Goodale is “open to reasonable amendments.”

“The goal of the committee of parliament­arians is to ensure that our national security community is working effectivel­y and that they are safeguardi­ng our values, rights and freedoms and the open, inclusive, generous character of our country,” press secretary Scott Bardsley said in an email.

Opposition is expected to be led by Murray Rankin, the NDP’s public safety critic and former legal counsel to the Security Intelligen­ce Review Committee, t he small, independen­t expert review group watching over CSIS.

The Conservati­ves, meanwhile, are caught in the middle. As architects of the sweeping counter- terrorism powers bestowed on CSIS, the RCMP and government under 2015’s Anti- terrorism Act ( C- 51), they can’t complain the new bill doesn’t go far enough to guard against potential abuses of t he extraordin­ary state powers they created.

That’s especially t rue since the Tories refused to create commensura­te oversight and review mechanisms.

Yet the Liberals have already abandoned what they claimed in opposition was a fundamenta­l and necessary fix for C- 51: real- time strategic oversight of CSIS activities, not after the fact, as now set out in C-22.

“The difference between the two is not merely a quibble over language. The two words are not synonymous,” then Liberal leader Justin Trudeau told the Commons in February, 2015, days after C-51 was tabled.

“An oversight body looks on a continual basis at what is taking place inside an intelligen­ce service and has the mandate to evaluate and guide current actions in ‘ real time.’

“That is crucial and must be amended, if we are giving CSIS the new powers proposed in Bill C- 51 in its current form.”

The word “oversight” does not appear in the text of C- 22. “Review” pops up 32 times, most notably to describe the committee’s prime mandate.

Michael Nesbitt, a national security law expert at the University of Calgary, says what’s needed is realtime operationa­l oversight, something the seven MPs and t wo senators could never manage.

“The best you can get is either oversight of process well after it’s taken place or before it’s taken place, though ministeria­l oversight,” he said.

But, “the ministeria­l oversight takes place when you’re signing off on what (CSIS is) proposing to do. Whether they actually go and do what they propose is another matter. Nobody is overseeing that in the current context and, frankly, that’s where the mistakes happen.”

The Liberals have been promising for more than a year to reform the anti- terrorism law by narrowing and clarifying what they characteri­ze as the overly broad scope of some of the new powers.

Most concerning is the provision that changed CSIS from a strictly intelligen­cegatherin­g service to one with an offensive remit to physically disrupt real or perceived threats. These include not just terrorism, but threats to economic and financial stability, critical infrastruc­ture and the security of other states.

The Liberals have vowed to rein in the disruption power, but have yet to say how.

As the law now stands, if a threat reduction activity ( TRA) will violate the Criminal Code or the Charter of Rights and Freedoms, CSIS must first secure a Federal Court warrant authorizin­g the breach.

Some experts argue this judicial control will act as oversight on the potentiall­y dangerous, but important new law- breaking power, one which CSIS has yet to use.

( If a TRA does not violate the law or the Charter — and stops short of death, bodily harm, obstructio­n of justice and sexual impropriet­y — no judicial approval is needed.)

But because the proposed committee will be a review body with no capability for anything close to real- time “oversight,” its ability to assess the legality, efficacy and reasonable­ness of CSIS TRAs will be a post-mortem effort, at best.

Other key opposition concerns include: Prime Minister Trudeau’s unusual and unilateral appointmen­t in January of David McGuinty, an Ottawa- area Liberal, as committee chairman; lack of a “whistle- blowing” provision that would impose a legal duty on the committee to report suspected wrongdoing; and the PM’s power to direct the committee to revise its annual and special reports to him if he believes the disclosure would injure national security, national defence and internatio­nal relations.

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