Appearance before the Standing Committee on Public Safety and National Security (SECU) on Bill C-22 An Act to Establish the National Security and Intelligence Committee of Parliamentarians

November 17, 2016
Ottawa, Ontario

Opening Statement by Daniel Therrien
Privacy Commissioner of Canada

(Check against delivery)

---

Thank you, Mr. Chair and Members of the Committee, for inviting me here to discuss this important piece of legislation. I am joined by Leslie Fournier-Dupelle, a policy and research analyst in our Office.  Our interest in commenting stems from the intersections between the work of this proposed Committee and my Office.  Let me say up front that the Office of the Privacy Commissioner of Canada is supportive of parliamentary oversight for security and intelligence activities, which has been proposed many times in the past.  While we applaud this as a long-overdue development, some amendments could be considered to ensure this new Committee will be as effective as possible in this important area.

We understand that the Committee would be mandated to review three main things: (1) the legislative, regulatory, policy, administrative and financial framework for national security and intelligence; (2) any activity carried out by a department that relates to national security or intelligence (subject to a Ministerial override) and (3) any matter relating to national security and intelligence that a Minister refers to the Committee. By and large, we believe the creation of this Committee will contribute positively to the necessary discourse around the work of security and intelligence agencies, which, due to their secrecy, can be sometimes ill-understood.

Among the positive aspects of C-22, this Committee would ensure that Canada keeps pace with other democratic nations, most of which already have some form of parliamentary oversight. There are very real advantages to Parliamentary oversight, principally that it enjoys democratic legitimacy since membership is comprised of elected officials.  It has the additional advantage of situating security and intelligence activities within the context of the whole of government actions or broader parliamentary priorities.  As such, a Committee of this kind is well placed to directly influence policies in that it can recommend passing or amending legislation based on its findings.  Finally, it can oversee broader financial frameworks, such as value for money and resourcing issues writ large, which specialized oversight bodies cannot typically undertake.

That said, there remains a definite and ongoing role for expert oversight bodies which, given internal knowledge developed over a period of time, are well positioned to undertake more detailed analyses of the operations of national security agencies. Furthermore, expert bodies with a complaints investigation function, such as my Office, are well positioned to spot systemic concerns which can inform conduct of audits and compliance reviews or otherwise provide a window into the workings of the agency for which they are responsible.    In order to effect meaningful review, these bodies must have capacity for proactive review and to educate both the citizenry and stakeholders, be non-partisan, and acquire and maintain in-house expertise. 

We note that C-22 allows for explicit cooperation between the Committee and certain named security and intelligence review and oversight bodies, which partially addresses gaps identified in the O’Connor Commission. However, the Bill stops short of authorizing the sharing of information between oversight bodies which should be remedied in order to support effective review.     

We have, on several occasions, called for integrated oversight between ourselves and our oversight colleagues, including the Security Intelligence Review Committee (which oversees CSIS), the Office of the Communications Security Establishment Commissioner (which oversees the Communications Security Establishment), and the Civilian Review and Complaints Commission (which oversees the RCMP). Given the fact that information – including personal information – is the “lifeblood” of national security agencies, my office has a relevant role to play in ensuring that a proper balance is struck between security and civil liberties.  As we have stated in other areas, we have deep and extensive expertise in the area of privacy and personal information, from which other review bodies could benefit.  We continue to advocate strongly for an appropriate balance between privacy rights and public safety.  Consequently, I would recommend that my Office be added to the list of oversight bodies to which information could be disclosed by the Committee.

A final point on transparency: we note that the Committee’s meetings are to be held in camera “if any information that a department is taking measures to protect is likely to be disclosed during the course of the meeting” or if the Chair deems it necessary.   In order for the Committee’s work to contribute to the public discourse on security and intelligence, in camera meetings should be the exception rather than the rule.  It may be helpful to introduce a clearer threshold before a meeting is to be closed.  A helpful threshold, which appears in the CSIS Act, the Canada Evidence Act, the Immigration and Refugee Protection Act, and elsewhere, is if information “injurious to national security” is likely to be disclosed during the course of a meeting, then it would proceed in camera.  As the Bill stands, it is not difficult to envisage a department proposing a broad interpretation of what it can protect, which would trigger the in camera requirement, with consequences for openness.  

As indicated, we support the creation of this Committee, and welcome the opportunity to express our views on oversight of Canada’s security and intelligence agencies. Thank you for inviting me to this committee.  I would be happy to answer any questions you may have.