Bill C-22 (Historical)

An Act to establish the National Security and Intelligence Committee of Parliamentarians and to make consequential amendments to certain Acts

This enactment establishes the National Security and Intelligence Committee of Parliamentarians and sets out its composition and mandate. In addition, it establishes the Committee’s Secretariat, the role of which is to assist the Committee in fulfilling its mandate. It also makes consequential amendments to certain Acts.

Motions in amendment

[Pierre-Luc Dusseault, NDP, Sherbrooke, QC]

Mr. Speaker, I thank my colleague for her speech.

With regard to the work that was done in committee, it is not unprecedented, but it is still rather rare for such changes to be made when a bill comes back to the House after being examined in committee.

We are talking about a committee with a majority of government members. I assume that they examined the bill in good faith. The committee proposed amendments to the bill to improve it. We expect the committees to improve bills when they examine them. I thought that that was what the Standing Committee on Public Safety and National Security did. However, when the bill came back to the House, the government undid most of the work that was done in committee.

Does the member think that government will show so little consideration for the work of committees going forward? What message does this send to all of the committees that examine government bills and that will be sending bills on other subjects back to the House?

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Mr. Speaker, I am afraid it is a very bad signal.

I thank my colleague from Sherbrooke. I completely agree. Genetic discrimination is another example, and we are going to be voting on that soon.

It is very lamentable this pattern of changes to bills that have been reviewed by committee. As the member noted quite rightly, with the exception of the parliamentary committee on electoral reform, all of the committees I have already referenced had a majority of Liberals present. The Liberal members on the committee that studied Bill C-22 must be feeling as cut off at the knees as I was when the mandate letter for the minister of electoral reform was changed.

This is a place of deliberation, and preferably non-partisan, collegial deliberation. I am afraid the amendments to Bill C-22 put forward today at report stage at the larger level of abstraction on how we function as a parliament will be damaged.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Mr. Speaker, let me give a specific example. Part of the exemption which the member across the way makes an example of is the information described in the Witness Protection Program Act. We want to be able to keep that as a part of the exemption. We believe it is in Canada's best interest and for the safety of Canadians that witnesses under that program are exempt. Why would she oppose allowing them to be exempt? This is absolutely critical for national purpose.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Mr. Speaker, it depends entirely on how one views the committee. The committee of parliamentarians in other countries, Westminster parliamentary democracies like ours and the United States as has been referenced, have access to more information than this committee would have access to. If its function is to ensure that we have oversight and coordination, that an independent body of experts sworn under the National Secrecy Act has access to information, that is as good as secret and confidential a body as we will find. Why would we trust people who are citizen nominees, like Arthur Porter, more than we trust parliamentarians sworn to secrecy?

[Murray Rankin, NDP, Victoria, BC]

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 the parties could smooth its rough edges with the help of expert advice at the public safety committee. That faith was rewarded. All parties came together around evidence-based amendments. The bill that emerged from that committee is stronger, now has the endorsement of most experts, and could earn the support of all parties and the trust of Canadians.

That is why it is so very disappointing to see these last-minute proposals. They would roll back the progress made by all parties at committee and, in the words of four leading academic experts, “undermin[e] a new and historic Parliamentary ability”. I am firmly opposed to these proposals. We simply cannot reverse the progress made at committee and reject the evidence that guided it. With each passing day, the government's intransigence looks less like prudence and more like the reflexive rejection of contrary evidence that, sadly, became a hallmark of our last government.

Let me say a word first to the women and men of our security intelligence community, who no doubt are following this debate and wondering how it will affect the critically important work they do for us every day. As a former legal counsel to the Security Intelligence Review Committee, I know that to be effective, we need the trust of Canadians. To support the 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 Bill C-22 is the idea that experts support the government's new design. This week, the public safety minister answered my criticism of these regressive amendments with a single brief quotation from a piece that Professor Craig Forcese wrote a year ago entitled “Knee Jerk First Reaction”. What has he said since? In November, Professor Forcese testified at the public safety committee as follows: “I would strongly urge...full access to information”. He warned that anything less would “give the appearance of accountability without the substance”. Calling for three key parts of the bill to be radically amended, he said, “These are all means to deny access to the committee.” He also said, “It is this triple lock on parliamentary reviews that I feel could well make the committee of parliamentarians stumble.”

What did the other experts say at the committee? The Information Commissioner of Canada rejected cabinet's ability to shut down investigations, saying it turned the committee's mandate into “a mirage”. Craig Forcese, Professor Kent Roach, and Ron Atkey, the founding chair of the Security Intelligence Review Committee, the Information Commissioner of Canada, the Privacy Commissioner of Canada, the Canadian Civil Liberties Association, the Canadian Bar Association, and Parliament's own Interim Committee of Parliamentarians on National Security all recommended lifting restrictions on access to information and giving this committee full access. After all, people get 14 years in jail if they break a secret and leak information. After all, being cleared top secret is not good enough, apparently, for the government. The public safety committee implemented this expert recommendation, but now the government seeks to reverse it.

With that expert testimony in mind, let us 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 single statutory standing committee of Parliament, every one of them. 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 the national security mandate.

The government's second proposal is to allow cabinet ministers to withhold information from the oversight committee. It is interesting that these two features, full access to information and the power to call witnesses, were proposed in a Liberal bill in 2014, Bill C-622. At that time, the current Prime Minister, the current public safety minister, and nine other members of today's Liberal 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 the government MPs will always outnumber those of non-government MPs.

The government's fourth proposal is to stop the committee from receiving information about all active law enforcement investigations all of the time. As Professor Forcese testified, the 1985 Air India bombing remains an active investigation some 30 years later. A more recent example might be the October 2014 attack on Parliament. In the aftermath of such an attack, would the proposal prevent the intelligence oversight committee from receiving necessary information about investigations?

As with many of the government's proposals on this bill, I do understand the intent. Oversight functions should not inadvertently impede operations, but the solution is a judgment and discussion, not clumsy statutory roadblocks. Remember that the Security Intelligence Review Committee 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 the Security Intelligence Review Committee testified, “Sometimes, as in Bill C-22, there is a tendency to over-legislate”.

However, there is still hope. It is vital for Canadians to understand that Parliament now has a choice between two paths. The first path is to impose these last-minute changes, reverse the work of the all-party committee on public safety, 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 that committee, and pass the bill we already have. The current bill could still earn the unanimous support of this place and would give Canada a world-class oversight body worthy of the respect of our allies and the trust of Canadians. That is what the government throws away if it insists on undoing the progress made so far.

Let me address one of the government's favourite arguments, and we heard it here today, 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. It explained as follows:

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

The British had a committee like this one and in 2013, after public criticism, they completely overhauled that committee, strengthening its powers and its independence. Why do we have to reinvent the wheel?

Since the government seems to insist on such a course, I have one last solution to offer and that is my Motion No. 7 on the Notice Paper, which calls for removing clause 31 from the bill. That is the clause that would block judicial review of a cabinet minister's decision to withhold information or shut down an investigation. If the government insists on hobbling this committee from the start, then the least we can do is remove our restriction whose sole purpose is to prevent the committee's powers from maturing over time. I would ask all members of this place to support that amendment as a counterbalance 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 and the rejection of expert evidence. I hope that some members on the government side will join us in opposing these sadly regressive amendments.

[Kevin Lamoureux, Liberal, Parliamentary Secretary to the Leader of the Government in the House of Commons]

Mr. Speaker, more expert witnesses have given a great deal of credit to the government for Bill C-22.

Let me quote another witness, Ronald Atkey, a former SIRC chair and former parliamentarian. He stated that the proposed review body “represents a major and welcome change” in Canada. He explained that he meant welcomed in the sense that, in his view, in the last three decades, Canada had fallen behind our parliamentary cousins in the United Kingdom and Australia with respect to accountability to Parliament.

Also, he told the standing committee that Bill C-22 “will help to ensure Canadians that their elected representatives will play a key overview role in accountability” regarding the serious “powers granted to some 17 departments and agencies” that contributed to Canadian national security measures.

Will the member not recognize that this is a significant step forward? It was a commitment given by this government in the last election, and it is being maintained by having the legislation go through the House at this time.

[Murray Rankin, NDP, Victoria, BC]

Mr. Speaker, this is the government's first and only response to date to Bill C-51, which it supported.

Ron Atkey was referenced just a moment ago by the member. However, on January 27, he, along with three other experts, wrote the following in The Globe and Mail:

Should the government choose to force a return to the restrictive original bill, it risks potentially undermining a new and historic Parliamentary ability that it has enthusiastically championed. Failure to reach agreement with Parliament on this issue also imperils non-partisan support for future national-security reforms and changes to other elements of the review system for national security.

It is a shame that for something so central as this, we cannot find common ground, that the government wants to revert to a time before the expert evidence was heard and before the committee did its good work to a time when we had an inadequate bill. The experts supported that. The NDP, for what it is worth, supported the bill as amended by committee. Now the government wants to roll it back and say that we should be happy with a half a loaf. This is not even 20% of a loaf, I am afraid.

[Tracey Ramsey, NDP, Essex, ON]

Mr. Speaker, I thank the member for Victoria for his excellent work on this.

I want to go back to a moment in time when I was one of the new class of 2015. I remember having a new lunch for all the parliamentarians, 187 of us, which was a historic number. The new Prime Minister bounded into the room, took to the stage and gave us a wonderful, heartfelt speech about how he promised he would respect the autonomy of committees. He promised that he would respect parliamentarians and the hard work they did in committees and that he would ensure that work was reflected in the House of Commons.

Here we find ourselves today, 16 months away from that very optimistic promise of the Prime Minister. That promise is being broken, yet again, by the government, by the Liberals. Therefore, we have a deep slide backward on the work of committees, and the government is ignoring the hard work and recommendations of the committee members from all sides of the House.

Could the member for Victoria speak to the impact on the committee of not having adequate access to information for the important work this committee will be tasked to do?

[Murray Rankin, NDP, Victoria, BC]

Mr. Speaker, that same Prime Minister was in favour of broader access before but now it has changed.

I want to remind Canadians that this committee is unlike any other. All committees of Parliament have the ability to compel information and get the witnesses they need to do their job, but this one does not. We have to rely on the Prime Minister's Office. It is essentially an advisory committee of parliamentarians, senators and MPs to the Prime Minister . It is very different. The Prime Minister chooses the chair, which he already has. One might wonder why that is a problem. I would point out that England went through same process. Now it is the members of the committee who choose the chair. Germany alternates between an opposition and a government member.

The Liberals did not need to do this. They have hobbled the committee. The member asked what the consequences are. It is the lack of trust that Canadians must have in our security and intelligence services and the excellent work they do to protect us each and every day. We need to have that trust. This committee will not do the job.

[Pam Damoff, Liberal, Oakville North—Burlington, ON]

Mr. Speaker, we promised Canadians that we would establish an all-party national oversight committee. Bill C-22 shows Canadians that important commitment has been kept.

As a reminder to the House, a committee of parliamentarians able to review classified security and intelligence documents has been a long time in coming. A special joint House/Senate committee was struck in mid-2004 to provide recommendations on how such a committee would function in a Canadian context. That report was followed by the tabling of Bill C-81 in 2005. That bill died on the Order Paper during the dissolution of the 38th Parliament.

Over the course of the next decade, two private members' bills were tabled that sought to create a committee of parliamentarians to review national security and intelligence matters, the second of which was defeated by the previous government at second reading shortly before it introduced Bill C-51.

As a member of the Standing Committee on Public Safety and National Security, I heard witnesses tell us that the formation of an all-party national oversight committee had been anticipated for a long time. Let me read some of their testimony.

Wesley Wark said:

I fully support Bill C-22. I think it represents a necessary and timely experiment in parliamentary democracy and activism. I give full credit to the Liberal government for seeing the importance of parliamentary scrutiny of security and intelligence and for making this a centrepiece of its response to the previous government's anti-terrorism legislation, Bill C-51, and for making it a promise in their election platform.

Suzanne Legault, the Information Commissioner of Canada, said:

First, I wish to commend the government on tabling legislation to create a parliamentary oversight body of our national security agencies. The recommendation to create such an oversight committee dates back many years. The Committee could, with a properly designed legal framework, do much to increase public trust in our national security agencies

The Hon. Ron Atkey said, “I believe this represents a major and welcome change within our Canadian parliamentary system.”

Alex Neve, Secretary General of Amnesty International Canada said that finally after the Arar inquiry and Justice O'Connor recommendations, we had Bill C-22, which was very welcomed.

Special advocate Anil Kapoor said of Bill C-22, “This piece of legislation is crucial to public trust in our security intelligence apparatus.”

One of the most important obligations of a government is the responsibility to protect the safety and security of its citizens both at home and abroad. Equally important, in a country such as Canada, is the obligation to uphold the Constitution and to ensure that all laws respect the rights and freedoms we enjoy as people living in a free and democratic society.

These two obligations do not necessarily have to compete with each other. It does not have to be a question of security or rights and freedoms.

Bill C-22, and the future national security and intelligence committee of parliamentarians, will help to ensure that we achieve that balance. The committee will have a mandate to both confirm that our security and intelligence agencies have the resources and powers they need, as well as to ensure that those agencies do not exceed their authorities and respect the rights and freedoms of Canadians.

While supportive of the creation of an all-party national oversight committee, witnesses did share with our committee ways that we could make the legislation better. I am glad that we were able to reflect a number of these suggestions in our amendments.

Also, while the Conservatives were adamantly opposed to the creation of such a committee during their time in government, I am glad to see that during their time in opposition, they are much more supportive of the concept.

In fact, during clause-by-clause consideration of Bill C-22 at the standing committee, many amendments received multi-party support. For instance, Liberals amended the bill to broaden the committee's mandate in clause 8. This was further subamended by the NDP and agreed to by all sides. The chair's double vote was removed from clause 19, ensuring that the chair would only cast a deciding vote in the event of a tie.

Clause 21 was also amended so that if something was redacted from one of the committee's reports, the revised version must be clearly identified as a revised version and it must indicate the extent of and the revision.

The NDP proposed a whistleblower clause that would require the committee to inform the appropriate minister of any activity it discovered that may not have been conducted in compliance with the law.

All of these are now a part of Bill C-22.

I will now turn to some of the report stage amendments, which are the focus of the debate before us today. The government has moved a motion to reintroduce some of the automatic exemptions that were originally in clause 14.

The original bill contained seven such exemptions, including: one, confidence of the Queen's Privy Council; two, information respecting ongoing defence intelligence activities supporting military operations; three, information, the disclosure of which is described in section 11(1) of the Witness Protection Program Act; four, the identity of individuals who are human intelligence sources for the government; five, information relating directly to an ongoing investigation carried out by a law enforcement agency; six, information that is considered privileged under the Investment Canada Act; and seven, certain information that was collected by FINTRAC and not reported to another department. This usually occurs when FINTRAC determines that the transaction has no flags.

One of today's report stage amendments put forward proposed to put three of those back into the bill.

Information relating to specific individuals protected under the witness protection program and the identities of confidential sources are not required for the committee to perform its mandate. The mandatory exceptions relating to this information are designed to avoid risks to the safety of individuals that may result from inadvertent disclosure.

The mandatory exception relating to active police investigations is also being reinserted. This exemption is designed to ensure that criminal investigations and prosecutions are not tainted by even the perceived influence of political actors.

This is a very important division of powers that has a very long tradition in Canada. The exemption is time limited to the period when the investigation is active, thus allowing the committee to review the information once the investigation is concluded.

The other three exemptions would not be reinserted by the amendment. This represents a responsible compromise that takes into account the spirit and intent of the standing committee's changes. It would allow the committee to be provided with access to as much information relevant to its mandate as possible, with restrictions applied only where necessary to prevent harm to individuals or police investigations. The amendment should be supported.

A second report stage amendment would see the reintroduction of clause 16, which provides a minister the discretionary authority to prevent the release of information that constitutes special operating information, as defined by the security of information act, when it could be injurious to national security. When a minister declines to provide such information, he must notify the committee as well as the relevant review body and provide reasons for not disclosing the information. The committee of parliamentarians annual report would also inform Parliament of all the times this discretionary power was used.

This is very comparable to how countries, such as the United Kingdom, Australia, and New Zealand, operate in terms of providing information to their respective committees of parliamentarians. For instance, Australia's parliamentary joint committee on intelligence and security cannot compel the government to provide operationally sensitive information, including intelligence sources and operational methods of information about particular operations. The government can also withhold anything it deems injurious to national security or foreign relations.

In New Zealand, the prime minister actually sits on the security and intelligence committee, which has existed since 1996. The New Zealand act allows the heads of agencies to determine sensitive information that cannot be disclosed to the committee.

In the United Kingdom, the intelligence and security committee may consider any particular operational matter, but only so far as it and the prime minister are satisfied that the matter is not part of an ongoing intelligence or security operation and is of significant national interest.

In many respects, the future Canadian version of the committee would have far greater access to information than the equivalent committees of our Five Eyes allies from Commonwealth countries.

It is important to note that after five years of working experience, the House of Commons would have the opportunity to review the legislation and amend it at that time if we believed it were then necessary.

It will be a tremendous step forward for Canada, one that will help to ensure that while our security and intelligence agencies are working to protect the safety and security of Canadians, they are fully respecting the rights and freedoms of the Canadians they serve.

[Pierre-Luc Dusseault, NDP, Sherbrooke, QC]

Mr. Speaker, I thank my colleague for her speech.

I would like to ask her a question regarding the message this government is sending with these amendments at report stage, not only to the Standing Committee on Public Safety and National Security, but also to other parliamentary committees that are tasked with studying government bills.

Acting in good faith, committees study bills and propose amendments. When amendments are passed in committee, one would have to assume it is because they improve the bill. The committee then sends the bill back to the House with amendments. Now, suddenly, the government is back pedalling. In fact, it is reneging on several amendments at report stage and removing them from the bill.

What message does this send to the other committees that will be called upon to examine other government bills and that might face the same tactic when the bills are returned to the House?

What message does this send about the important work that committees do, and not just the Standing Committee on Public Safety and National Security?

[Pam Damoff, Liberal, Oakville North—Burlington, ON]

Mr. Speaker, as a member of the committee who listened to testimony, I heard what witnesses had to say, and I listened to opposition members when they proposed amendments to the bill.

I think the government has done a very good job of representing what we recommended, applying it against the witness testimony, and presenting a reasonable compromise with what the committee recommended at the end of its clause-by-clause consideration. I think the government did a very good job of reviewing what we proposed and taking that into consideration when it brought back these amendments.

[Ted Falk, Conservative, Provencher, MB]

Mr. Speaker, the member mentioned in her speech being consistent with our Five Eyes partners with this bill. I wonder if the member would also agree with giving our security agencies threat-diminishing powers, as our Five Eyes partners have?

[Pam Damoff, Liberal, Oakville North—Burlington, ON]

Mr. Speaker, I think it is important to remember that we are new to this game. We have not had a committee of parliamentarians, as our partners have had. This committee is being informed by our Five Eyes partners. As I mentioned in my speech, in five years it will be or can be reviewed if there are changes that need to be addressed.

Certainly, it has been informed by what our partners are doing, but we have made a Canadian version, and in some ways, it is stronger. I am very proud of what our government has done by creating this committee.

[Frank Baylis, Liberal, Pierrefonds—Dollard, QC]

Mr. Speaker, this is an interesting challenge, because this is a bill that has to balance public interests, privacy, and security. I understand that our allies, the Five Eyes, have similar committees. Can the member speak to how the balance has been reached between public security and privacy?