Most Canadians may be vaguely familiar with bill C-51. This was the bill that would go on to become the Anti-Terrorism Act 2015 and it granted more powers to Canada’s spy services along with other additions that I don’t have the space to get into. That bill caused enough controversy that it led to the Liberals campaigning on introducing strong intelligence oversight to make sure the powers wouldn’t be abused. They also campaigned on changing the 2015 Anti-Terrorism Act if need be. Given the let down of the Liberals on a number of promises to progressives, you may have an indication of where we are on this issue.
Bill C-22 is the government’s answer to intelligence oversight. If you cared about C-51, this bill should be a major concern to you. It would create a committee of Parliamentarians that are supposed to be able to request whatever information they want from Canada’s spy services and inform the PM if something is amiss. At least that’s how the Public Safety Minister Ralph Goodale advertised it on CBC Radio. If you haven’t the time to listen, he said the following:
“In Canada, we’re taking the position that this committee of parliamentarians will have extraordinary access to classified information, and they will be able to look at every department and agency of the government of Canada that has any security or intelligence function.”
Sounds good, except if the Liberals do what they propose, that’s not going to happen at all. As this bill currently stands, the committee will essentially be hand picked by the PM (the PM will offer their picks to the GG, not more than 4 members can be of the governing party from the House but two Senators must also serve who could be of the same political leaning or party as the PM) and when it requests information, it has to do so from a minister in charge of the institution and a current and ongoing operation can be exempt from disclosure. Originally, the government wanted to grant a minister the power to refuse to disclose information if the matter was one of “national security” regardless of if it was an ongoing operation. Yes you read that correctly. The committee in charge of reviewing “any matter relating to national security or intelligence that a minister of the Crown refers to the Committee” could also have information denied to it on the basis of “national security” (who said only Trump could play “1984” dress-up?). This section was struck out in Parliamentary committee but the Liberals don’t want to accept this amendment. There are reports that the government wants to re-insert a number of possibilities for exempting the disclosing of information, all of which relate to what the government would consider national security. They also want to retain the ability to withhold information from the oversight committee about a current intelligence operation. In other words, the Liberals want the ability to block information from going to the oversight committee that reviews national security matters – if there are national security matters.
If the government has their way, politics can render this committee absolutely useless, making it just another layer of bureaucracy that is forced to sit together and draft a meaningless annual report and get paid to do it. The Access to Information Act, in either the government’s original version of the bill or the amended one, also does not apply to the committee, removing public oversight of the oversight committee. Does this sound like effective and “extraordinary” oversight? Under the Liberal’s original plan, will the minister of Public Safety or National Defense ever give the committee information that will embarrass the current government and create a scandal? Especially if it’s regarding a directive that came from the minister? Does anyone realistically see that happening? My problem with this system from the outset (and what I expected would happen) was that it was based on a presumption that intelligence agencies were just itching to “go rogue” and that if they had more power they would surely take things into their own hands and abuse that power. My discovery of the PICNIC wiretapping program was an eye opener because it puts the shoe on the other foot. It is fine to have greater oversight of intelligence agencies, but what about oversight of governments that are ordering their intelligence agencies to do things they know are illegal or morally unethical? A strong case could be made that we should be equally fearful, or perhaps far more fearful, of governments abusing their intelligence agencies rather than just those agencies going “rogue.” Someone has to grant institutions power and budgets. The mass surveillance structure that now exists was not created because some intelligence officers just decided among themselves they were going to set out and build a network decades in the making. This was a collaborated effort by multiple governments who provided big budgets and the necessary legal framework to do it. What bill C-22 will ultimately do, if the Liberals just do what they want, is contribute to more citizen disengagement and disparaging of politics. Even if a minister is aware of an abuse by intelligence services, the odds of the minister turning that information over to the committee so they can wear the scandal and tarnish the sitting government and their career are slim to none unless they are forced to do it and I’m not entirely clear on what the ramifications are for not turning information over even in the committee amended bill. A minister may also give information orally. If so, can that be an option in lieu of written documentation? I don’t see how that should be permitted. The Liberals claim they need to protect current ongoing intelligence operations. But what then is the oversight committee for? Is it to review something that happened decades ago? How can they provide oversight against current abuse if they don’t even know what’s currently going on? How is an “ongoing” operation defined? When does it end? Does citizen mass surveillance constituent a never-ending and ongoing operation? If so, the committee will never see anything related to it under the Liberal plan. As the bill stands there are too many ways for information to be hidden.
If the Liberals have their way, the government will continue to hide behind the phrase “national security” to withhold information, proving once again they have little understanding of what the phrase means or the word “oversight.” The government wants to continue to layer this committee with secrecy and not effective mechanisms for oversight. Even in the amended form, I’m skeptical that this method of oversight will be effective. So many people worry about the power Trump can wield or may try to wield in the US. When will we begin to think seriously about oversight not just of departments of the government but on the government itself? We should be writing national security laws and procedures not with reasonable future governments in mind but for the opposite kind.