1st Session, 42nd Parliament,
Volume 150, Issue 119
Wednesday, May 10, 2017
The Honourable George J. Furey, Speaker
National Security and Intelligence Committee of Parliamentarians Bill
Bill to Amend—Second Reading—Debate Continued
On the Order:
Resuming debate on the motion of the Honourable Senator Harder, P.C., seconded by the Honourable Senator Bellemare, for the second reading of Bill C-22, An Act to establish the National Security and Intelligence Committee of Parliamentarians and to make consequential amendments to certain Acts.
Hon. Mobina S. B. Jaffer: Honourable senators, I rise today to speak on Bill C-22 an act to establish the national security and intelligence committee of parliamentarians and to make consequential amendments to certain acts.
This bill may create a committee of parliamentarians to act as oversight for the 17 departments and agencies responsible for intelligence and national security.
I would like to first thank Prime Minister Trudeau and Minister Goodale for their work on this oversight bill. They have worked hard to start the process of restoring the balance between national security and human rights. I thank them for their vision.
I would also like to thank Senator Harder who has presented a comprehensive presentation of Bill C-22 as the sponsor in the Senate.
Before speaking on the substance of this bill, I would like to speak on why Bill C-22 is so important. There is a widespread belief in an imbalance between Canada’s efforts to ensure its national security and its efforts to protect the human rights of its citizens. This perception comes from many unanswered questions Canadians have about our intelligence and national security system.
Since the Maher Arar incident in 2002, this list has become a long one. Some of these questions include: How are our Charter rights protected by bills like Bill C-13 and Bill C-51, which have both given our security agencies, like CSIS, unprecedented powers? How could the Operational Data Analysis Centre, which collected metadata from Canadians for years without anyone ever knowing, have existed at all? Can we trust our security departments to review our security and intelligence agencies given that so many human rights violations have already happened?
With all of these questions, Canadians cannot help but wonder what their government is doing to protect their rights against the intelligence agencies that should be keeping them safe.
When our national security system does not protect a citizen’s rights, the most vulnerable in our society will be hurt. Often I hear concerns from Muslim Canadians across the country. They contact me about their fear that their rights will not be respected under our current national security system. They are afraid. They know that when CSIS comes knocking at their door, there is a very real risk that they could lose everything. They are afraid because they have no one. They have no one who will speak for them. When fear like this exists, our most vulnerable Canadians need oversight to look into these very important questions.
Oversight means understanding that we have an obligation to our most vulnerable Canadians. This means respecting their human rights and ensuring that they will not be victimized in the name of national security.
On the other hand, it also involves helping our national security and intelligence personnel with important work that they do every day. This means working with them to understand how their work keeps us safe. Most importantly, it involves restoring the balance between national security and human rights. The committee of parliamentarians created by Bill C-22 represents an important first attempt to create oversight for our national security and intelligence system.
Three senators and eight members of Parliament on the committee will be given security clearances and will gain access to classified information. Using this information, they will act as oversight for all 17 departments and agencies responsible for intelligence and national security. This is an important first step for Canada to take. Until now, parliamentarians have experienced difficulties obtaining information relevant to national security and intelligence.
With this measure, Canada will be in step with its allies around the world, especially the Five Eyes group. By making the committee of parliamentarians responsible for oversight, Bill C-22 will ensure that Parliament is accountable to Canadians. As parliamentarians, we have the duty to represent the very people that our national security and intelligence system seeks to protect.
In our work, it is just as important to protect Canadians’ rights and freedoms as it is to protect national security. These responsibilities make parliamentarians the ideal group to represent Canadians in our quest for answers to important questions about national security and intelligence.
Given the important role that all parliamentarians, including senators, will play on the committee of parliamentarians, we must ensure a proper balance and composition between the two houses.
This is not the case in Bill C-22. Subclause 4(2) states that the committee of parliamentarians is to be made up of no more than eight members from the House of Commons and no more than three members from the Senate.
This goes against the principle that Parliament is always recognized in joint committees. Committees must reflect the proportional relationship between the two houses. Specifically, joint committees must have a balance of one third Senate representation to two thirds House of Commons representation. This tradition can be found in the rules of Parliament.
House of Commons Procedure and Practice states:
By practice, the number of Members appointed to a special joint committee reflects relative proportions of the Senate and the House of Commons.
The Senate Procedure in Practice also outlines the rule, stating that:
Joint committees are composed of both senators and members of the House of Commons. Membership typically reflects the relative size of the two houses.
As of now, the committee of parliamentarians does not reflect this reality. Three members are far fewer than one third of the committee’s membership. Further, the wording of subclause 4(2) deepens my concern about the committee’s composition.
It states that the committee of parliamentarians consists of not more than three senators. This vague wording concerns me as “not more than” means that the committee may not even have three senators. There is simply no certainty about the actual number.
This could lead to further imbalances on the committee, such as situations where there are eight members of Parliament and one senator on the committee of parliamentarians.
This imbalance is unacceptable, because the committee of parliamentarians would benefit greatly from an adequate representation of senators. Under the Constitution, the Senate is mandated to represent the provinces and to act as a chamber of sober second thought. What is more, our participation on the committee of parliamentarians would allow us to acquire a lot of knowledge and experience that could guide our studies.
As we study this bill, I urge you all to consider changing the wording of this clause to ensure that there is proper balance between both houses. In particular, I recommend that we adopt this wording: “The committee may consist of up to four, but shall have at least three members who are members of the Senate.” Using the words “shall have at least three members” ensures that the Senate will not be denied the membership it deserves. Further, stating that up to four senators may be on the committee ensures our chamber makes up one third.
Before concluding, I would like to place Bill C-22 in a greater context. This is only the first step toward balancing security and human rights. The system proposed from Bill C-22 is far from perfect. In fact, the bill itself recognizes this fact. Clause 34 of Bill C-22 states that the committee must have a comprehensive review every five years so that it can account for any weakness that it may have.
I welcome the fact that our government is open to finding ways to improve the system, to improve this bill. To assist this process, I would like to raise some areas for consideration in the future.
For example, experts in the security field have been expressing concerns about what they consider the “triple lock.” Simply put, the committee of parliamentarians will be required to go through three different locks every time they wish to obtain any kind of information.
First, clause 8(1)(b) states that the committee of parliamentarians cannot review any subjects related to ongoing operations if the appropriate minister deems the review would be injurious to national security. This concerns me, since many of the issues that impact Canadians the most involve ongoing operations damaging the committee’s ability to act as oversight.
Second, clause 14 states that the committee of parliamentarians is not entitled to certain types of information. Some of these areas are reasonable, such as matters related to cabinet confidences or the Witness Protection Program. However, clause 14 also forbids access to information concerning an ongoing investigation that may lead to a criminal prosecution. This becomes problematic because of realities in the field, where almost all modern security investigations are planned in a way that has them continue indefinitely.
Third, clause 16 grants ministers the power to deny any information they deem injurious to national security. This is the broadest of the locks, allowing the minister to have complete discretion over what they consider to be injurious to national security. This this means they can refuse to provide any information.
This is far from the only consideration. Experts in the field have also raised other areas for consideration, such as the vague and incredibly broad mandate of committee, extensive executive control over the committee, and inconsistencies with former rulings about parliamentary privilege.
Honourable senators, Bill C-22 is not a perfect bill. As I mentioned, there are several areas for consideration which I urge the government to examine in greater depth in the future. Bill C-22 is a vital first step toward ensuring oversight for our national security and intelligence system.
Without Bill C-22, there will be no “first” toward ensuring that our most vulnerable Canadians are not victimized as we pursue national security.
The committee is allowed to act as an effective oversight. It will expose many of the issues that are present in our national security and intelligence system. It will also allow for us as parliamentarians to work together with experts in the field, stakeholders, academics and Canadians, and to gain an understanding of the most important issues related to national security and intelligence.
As we learn more, we can seek greater change. Rather than presenting a single solution, Bill C-22 represents the beginning of a dialogue. In fact, we have an incredible opportunity to begin this discussion right here in the Senate, at the committee stage. It presents a perfect opportunity to examine many of the issues I just mentioned.
With all this said, I urge you to join me in supporting this bill, once it has been studied in committee, so that we can begin this conversation and work together to achieve a true balance between national security and the rights of our most vulnerable people.
Honourable senators, for me, oversight is a balance between security and the human rights of people. I would like to remind you of what Thomas Jefferson said: Any country that sacrifices human rights for security ends up with neither.
(On motion of Senator Martin, for Senator McIntyre, debate adjourned.)