Appearance before the Senate Standing Committee on National Security and Defence (SECD) on Bill C-22, An Act to Establish the National Security and Intelligence Committee of Parliamentarians

June 5, 2017
Ottawa, Ontario

Opening Statement by Daniel Therrien
Privacy Commissioner of Canada

(Check against delivery)

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Thank you for inviting me here to discuss this important piece of legislation with you.

Let me say up front that I am supportive of parliamentary oversight for security and intelligence activities. To retain the public’s trust, Canada needs expert oversight — which we have in part, although it is not perfect — and parliamentary oversight that alone can provide non-partisan democratic legitimacy.

In my brief remarks today, I will set out what in my view should be the desirable characteristics of an effective parliamentary oversight regime, how the bill before you may fall short, but why my recommendation is that you adopt the bill nevertheless.

To ensure effective review, the proposed committee should be given as wide a mandate as possible and as unfettered access to information as possible. As such, the committee should ideally not be subject to limits in relation to information that would be injurious to national security. By analogy, courts that review the legality of activities of national security agencies can review most security-sensitive information, subject to exceptional ministerial certification under the Canada Evidence Act. When courts issue judgments on the legality of certain activities there can be redactions, but these redactions are decided by judges, not the government. I would advocate for similar standards for the committee.

In terms of the exceptions to access outlined in sections 14 and 16, while I accept that there may be little need for the committee to know, say, the names of witnesses or confidential sources, I believe that exceptions should be as limited as possible. I am particularly concerned with the carve-out in clause 16(1)(a) for “special operating information,” defined in the Security of Information Act. This category includes purely operational information that the committee would not require to fulfil its broader mandate, but it also includes information of a more general nature, which may raise policy issues, such as “the means used… to covertly obtain…, analyze, process…, report, communicate or otherwise deal with information,” potentially leaving the committee in the dark regarding the very work it has been charged to oversee.

More generally, the bill falls short of what I would consider ideal, in that national security could be invoked by the government to limit the committee’s mandate, clause 8; access to information, clause 16; and the ability to report findings to Canadians, clause 21.

However, I acknowledge that the bill was improved in the House of Commons, in that reliance on national security as a limit to the committee’s activities will have to be explained by the government in formal reasons. This should serve as an important safeguard against overreliance on the national security exception by the government.

Finally, I know that my office is not among the listed review bodies. 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 human rights. Consequently, in my view, it would be desirable if my office were added to the list of oversight bodies with which information could be shared by the committee. If this cannot be achieved in the current bill, we hope it will be in the legislation the government has promised to amend the Anti-terrorism Act, 2015.

However, I should like to point out that even with the shortcomings identified this bill represents important progress and will address a long-needed gap. On balance, my recommendation would be to adopt it now; assess its effectiveness when it becomes reality; and amend it, if necessary, after a few years of implementation.

There is a risk that limitations to mandate and access to information would deprive the committee of the tools required for effective review, but these risks were reduced through amendments made by the House of Commons.

Importantly, in my view, overreliance on exceptions would likely come at a political price for the government of the day. Ultimately, while the bill before you is not perfect, it represents important progress and in my respectful view you should adopt it.

I would be happy now to answer any questions you may have.