Oversight is a good start
The lives of Canadians have never been more transparent to the state’s security apparatus, yet the security apparatus remains troublingly opaque to the people. That dangerous asymmetry was compounded by the Harper government’s overreaching Anti-Terrorism Act, formerly Bill C-51, which introduced vast new powers for spy agencies last year and yet did nothing to make them more accountable.
It was reassuring, then, to see the new Liberal government table Bill C-22 last week, an important first step toward accountability. The legislation would finally give to Canada what most of our allies already have: a parliamentary committee that provides democratic oversight of our national security establishment.
The all-party committee’s members — seven MPs and two senators — would be sworn to secrecy and given statutory power to scrutinize all spying and clandestine operations, across all agencies and departments, in order to evaluate their effectiveness and legality.
If passed, Bill C-22 would provide an essential check on a security apparatus that should not be allowed to wield its considerable power with impunity. But this proposal, as written and on its own, will barely begin to restore the balance between public safety and individual freedoms that the Conservatives’ security policy so badly skewed. To do that, the government will need to take at least three steps. 1. Improve the bill. As welcome as Bill C-22 is, it could be better. Public Safety Minister Ralph Goodale said last week that the committee would have “the ability to look at any issue, any activity, any operation, any document.” But that’s not quite true. In fact, under the proposal, the prime minister and his cabinet would be allowed to withhold any information or veto any inquiry they deem to be “injurious to national security.” This “Mack truck exception,” as University of Ottawa law professor Craig Forcese calls it, makes it too easy for the ruling party to cover up politically inconvenient information.
Some analysts, including Forcese, are also concerned about the way the committee’s chair and members will be appointed. The prime minister, rather than Parliament, will choose. That was the original selection process for the United Kingdom’s security committee, too, before the method was abandoned amid controversy several years ago. 2. Create an expert super-watchdog. Parliamentary oversight is only one part of the solution. Even if the committee were given full access, it would not be able to adequately oversee all of the many agencies and departments with national security responsibilities. Parliamentary review needs to be complemented by expert oversight.
But Canada’s woefully inadequate patchwork of review bodies is clearly not up to the task. Our sprawling security apparatus is currently monitored by three meagre watchdogs, each strictly constrained to its own jurisdiction. Critics have long maintained that these bodies have neither the mandate nor the resources to do their job.
Worse still, some national security organizations, such as the Canada Border Services Agency (CBSA), escape independent scrutiny altogether. Fifteen people have died in CBSA custody since 2000, yet, in the absence of any arm’s-length oversight, Canadians remain completely in the dark about the circumstances of those deaths. The parliamentary committee would be a good start here, but more integrated and robust access to information is needed.
Adetailed plan to provide just that already exists. In the aftermath of the 2006 Maher Arar inquiry, Justice Dennis O’Connor proposed what he called the Integrated National Security Review Co-ordinating Committee — consisting of an outside chair and the heads of the three existing watchdog agencies — that would monitor all parts of the federal security establishment. If the government is serious about transparency, it should take a close look at the judge’s plan. 3. Undo the most egregious aspects of the Anti-Terrorism Act. No amount of oversight can address the profound pitfalls of the Tories’ draconian security policy. The act compromises Canadians’ privacy in unprecedented ways, criminalizes the “promoting” of terrorism, gives CSIS the power to perform the sort of dirty tricks it was created to pre-empt and allows imprisonment of up to five years to prevent crimes that “may be carried out.”
The Liberals have said they are undertaking a public consultation to determine which parts of the act should be repealed. But what can the public possibly say to make the above violations of civil rights acceptable?
To do what must be done will take political courage. It is much easier to provide new powers to police or security agencies than it is to take them away. Fear of the potential political fallout in case of a tragedy can be paralyzing. But there is no evidence these policies make us any safer, whereas there can be no question that they undermine the values that make us who we are.
The government is right to try to shine a light on Canada’s shadowy security establishment. But the proposed parliamentary committee is unlikely ever to uncover a bigger scandal than the one in plain sight, passed into law last year.
The Liberals have taken a vital step toward accountability. But much more needs to be done