Tuesday, March 10, 2015

In a commentary in the National Post, Prof. Kent Roach and the University of Ottawa's Prof. Craig Forcese argue that the Canadian government's proposed security legislation, Bill C-51, will undermine the already inadequate oversight of national security services ("A parliamentary review is not redundant red tape," March 9, 2015).

Read the full article on the National Post website, or below.


A parliamentary review is not redundant red tape

By Kent Roach and Craig Forcese

March 9, 2015

Canada’s system of national security “oversight” is imperfect. Its system of national security “review” is frayed, perhaps to the breaking point. The government’s antiterrorism law, Bill C-51, will accelerate this pattern. Without a serious course correction, we risk the prospect of avertable security service scandals.

We have now written five backgrounders and almost 200 pages of analysis on Bill C-51, posted at antiterrorlaw.ca. The bill’s shortcomings are acute. If we are to mitigate the risk of misadventure from this over-hasty law, it will be because the system has checks and balances — except those accountability systems are themselves imperilled.

Much of the political debate on accountability and C-51 has been plagued by misunderstandings, especially over the distinction between “oversight” and “review.” Oversight in Canada is usually an executive branch function. This system has not always worked — the Air India Commission suggested (and the government rejected) new centralized oversight systems for reconciling competing national security interests.

In C-51, the government again resists reform. Instead, it points to judicial warrants authorizing the new CSIS powers — a form of oversight. Here, the government overclaims. First, CSIS will not always require warrants. The only circumstance in which the bill clearly requires a warrant is when CSIS “will” contravene a Charter right or act contrary to other Canadian law.

As with its existing surveillance powers, a substantial amount of CSIS activity will fall short of the warrant “trigger” and will never come to a judge. This is especially true in international operations: places where Canadian law and the Charter generally don’t reach and so are irrelevant as a “trigger”.

Second, judges issue warrants in secret proceeding in which only the government side is represented. They are dependent on full candour by the government, a standard that has not always been met. But even with full candour, government positions will be just that: government positions. In the absence of persons with the means, incentive and (most importantly) full access to the facts necessary to challenge government positions, such legal proceedings are inherently one-sided.

his will always be a problem with warrants. But mistakes made when someone is wrongfully surveilled are one thing. Mistakes when CSIS is asking to break the law or violate the Charter are quite another thing. No one should assume that judges will always be in a position to avert this injustice.

Nor will they always know what is then done in their name. Exhibit A is Federal Court decision (now before the Supreme Court) that CSIS and its partner CSE, Canada’s signals intelligence agency, had enlisted surveillance assistance from foreign allies, unbeknownst to the judge issuing the warrant. The judge only found out through an extracurricular reading of the reports of review bodies.

Judges, not to mention citizens who may never know the source of misfortunes covertly visited upon them, are dependent on review bodies. “Review” is an audit of past performance, to ensure compliance with law and policy. CSIS’s review body is SIRC. The idea that SIRC review is adequate and enhanced review is needless red tape is simply wrong, and reflects an attitude that would be concerning even if the consequences of inaction were not potentially so significant.

SIRC is incapable of reviewing all of CSIS’s activities, or even CSIS’s conduct under its existing warrants. A necessarily partial approach to review will be spread even thinner as CSIS’s powers expand.

The issue is not Arthur Porter, SIRC’s disgraced former chair, or (not just) the fact that SIRC has been short-handed for long periods. It is not only that it has a 17-person staff and a $3 million budget. It is that SIRC has inadequate legal powers for a post-9/11 world.

In 2013, then SIRC Chair Chuck Strahl candidly and colourfully told the Senate that “the trail is not going to stop nicely and neatly at CSIS’s door. … Other agencies … are working closely with CSIS, and increasingly we’re going to need some way of chasing those threads. Otherwise, we’ll have to tell parliamentarians that, as far as we can tell, everything looks great in CSIS country, but we don’t know what happened over that fence; you’re on your own.”

The Arar Commission recommended that “statutory gateways” be created allowing SIRC to share secret information and conduct joint investigations with Canada’s two other existing independent national security review bodies. The government has not acted on this report, or the Privacy Commissioner’s 2014 report that its powers were inadequate to review security information sharing — and information sharing is to be dramatically increased under C-51.

Meanwhile, not even SIRC reform would address the fact that Canada, alone among its “Five Eye” security partners, does not give parliamentarians access to secret information. As pointed out recently by four former prime ministers (and others), a parliamentary review is not redundant red tape. It can perform valuable “pinnacle” review by examining the entire security and intelligence landscape.

Other democracies have made parliamentary review work well with independent expert review bodies. They have also shown that parliamentary review powers contribute to a broader parliamentary competence in an area where it is essential: national security law.