Bill C-22, An Act to establish the National Security and Intelligence Committee of Parliamentarians and to make consequential amendments to certain Acts

Submission to the Standing Committee on Public Safety and National Security of the House of Commons

November 28, 2016

Mr. Robert Oliphant, M.P.
Chair, Standing Committee on Public Safety and National Security
House of Commons
Ottawa, Ontario  K1A 0A6

Dear Mr. Chair:

I am writing to follow up on my appearance before the Standing Committee on Public Safety and National Security on November 17th on Bill C-22, An Act to establish the National Security and Intelligence Committee of Parliamentarians and to make consequential amendments to certain Acts. At that appearance, we committed to providing you with research my Office has undertaken vis-à-vis Canadians’ thoughts about national security.

Every two years, my Office conducts public opinion polling on Canadians’ expectations of privacy in a number of areas. With respect to security, I would highlight that Canadians express varying levels of comfort with different ways in which government, including intelligence gathering organizations, collect or share their personal information. Canadians are least likely to be comfortable with the government requesting telecommunications companies to provide personal information they hold about individuals without a warrant.

Fifty-seven per cent of Canadians were uncomfortable with warrantless information requests concerning their telephone or Internet usage. While that's a fairly strong majority on its own, its significance is increased by the fact that the survey was taken between October 21 and November 10, 2014 — just following the tragedies in Saint-Jean-sur-Richelieu and Ottawa — a time when terrorism was perhaps never so real, never so close to home for Canadians.^{Footnote 1}

I should note that this research was released in early 2015. We have since conducted follow-up research which will be available in the new year. We would be happy to send a copy to the Committee once it is available.

I would like to take this opportunity to confirm my recommendations as to how Bill C-22 should be amended. While we support the creation of a Parliamentary committee as a long-overdue development, we have some suggestions for improvement. Specifically, I have asked that my Office be added to the list of “review bodies” as defined in Section 2 in order to allow for seamless and comprehensive oversight between all named expert review bodies.

I would like to reaffirm that in the interests of improving effectiveness and public confidence in the work of the Committee of Parliamentarians, its mandate should not be subject to limits in relation to information that would be “injurious to national security.” In my testimony, I presented an analogy which I believe to be useful in this context: the rules regarding access to information and reporting by courts can serve as a useful indication of what the proposed Committee should have access to. Courts that review the legality of activities of national security agencies can review almost everything, with extremely limited exceptions, but when they issue judgments on the legality of certain activities there can be redactions. I would advocate for a similar standard for the Committee, namely as broad access to information, with appropriate protections for personal information, as required for it to conduct meaningful review. I would further suggest that any redactions must be justified to the Committee.

Given this, I would recommend that section 8(b) of the Bill, which delineates the Mandate of the Committee, be revised to remove the limitation whereby Ministers can prevent a review if they determine it would be injurious to national security. I would also recommend that exceptions to access in sections 14 and 16 should be reduced extensively, so as to potentially include only the identity of sources and witnesses who require protection.  

We would also suggest that in camera meetings should be the exception and not the norm. A helpful threshold may be that meetings proceed in camera only if information “injurious to national security” is likely to be disclosed during the course of a meeting since it is a known standard used in other legislation and requires a demonstrable injury. I would argue that this makes it a more useful threshold than “information that a department is taking measures to protect” which appears in section 18.

Finally, at the meeting there was some discussion about which national security agencies are “Departments” as defined in section 2 of the Bill, which reads:

Department means, except in subsection 25(2), a department named in Schedule I to the Financial Administration Act, a division or branch of the federal public administration  — other than a review body  —  set out in column I of Schedule I.1 to that Act, a corporation named in Schedule II to that Act or the Canadian Forces. (ministère)

I can confirm that CSIS, the RCMP, the Canada Border Services Agency and the Communications Security Establishment all appear in the Schedule and, as such, meet the definition of “Department” above.

I hope these points are helpful to Committee Members as you pursue your study. If you have any follow-up questions on specific issues raised above or would like copies of further research work from my Office, it would be our pleasure to support your study as best we can. Please do not hesitate to contact Pierre-Luc Simard, Parliamentary Affairs Officer, directly at 819-994-6015.

Sincerely,

(Original signed by)

Daniel Therrien
Commissioner

c.c.: Jean-Marie David, Clerk of the Committee