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Reid Morden

Better to pass Bill C-22 now – and modify it later Add to ...

Reid Morden is a former director of the Canadian Security Intelligence Service and a former deputy minister of foreign affairs.

On Oct. 7, The Globe and Mail weighed into the debate on Bill C-22, which proposes to establish a parliamentary committee on security and intelligence. Its editorial, citing a recent report by the Library of Parliament, points out some of the weaknesses of the bill and counsels, in a lukewarm fashion, patience and common sense.

On Sept. 12, The Globe also published a column by Ron Atkey, Craig Forcese and Kent Roach on this important and controversial issue of accountability and oversight of Canada’s security agencies. All three are eminent voices in the relatively new and evolving area of security law.

Editorial: Ottawa’s new security committee needs independence, eventually

Opinion: Making the spies accountable: real change or illusion?

The authors deal briefly but starkly with some of the controversial provisions in Bill C-51, passed by the previous government but focus mainly on what they perceive as the shortcomings of the proposed legislation of the current government as embodied in its Bill C-22. There is much to agree with in their expressed views.

The authors draw critical attention to one of C-51’s most egregious provisions, which permits the Canadian Security Intelligence Service to act in violation of the Charter of Rights and Freedoms. Check. They note the gaps in Canada’s oversight system, especially the silos and stovepipes that inhibit a truly seamless oversight throughout our security agencies. Check. They judge that a parliamentary oversight body will be best suited to the examination systemic questions of whether Canada’s security agencies are acting efficiently and effectively. Check. They are clear that no parliamentary oversight body can hope to function effectively without relying on expert review and complaints bodies to scrutinize the day to day operations of the security agencies. Check.

What needs closer examination is the premise that allowing parliamentarians into the “secrecy tent” will rectify events like over-rapid passage on C-51, with all its controversial provisions. That sorry episode speaks to a dysfunctional Parliament steamrollered by a driven government to abandon its prerogatives. Not something that can be fixed by letting parliamentarians into the “secrecy tent.”

Back to C-22: I do not sense any general resistance to the concept of parliamentary oversight by the security agencies. The managements of organizations such as CSIS, the RCMP and the Communications Security Establishment have moved beyond that and today are primarily concerned with finding a model that will accommodate Parliament while not impairing their ability to carry out their responsibilities. Finding the appropriate degree of intrusiveness is, in part, the nub of the problem.

Mr. Atkey, Mr. Forcese and Mr. Roach rightly assert that a parliamentary committee will need to have a degree of access to secret information if they are to do their job effectively. They criticize C-22, as does the report from the Parliamentary Library, as leaving too much discretion on the committee’s access and scope in the hands of the Minister of Public Safety and the Prime Minister. They may be right, but this may also be the time to cut the government some slack.

C-22 is an important step in the evolution of Canada’s security accountability chain. As such, it is better to pass it now than haggle over modifications. It may well be that the ministerial discretionary powers are too broad. It may well be that too much is left to prime ministerial decision. Unlike C-51, this is a case to get C-22 on the books, and then watch the actions of Public Security Minister Ralph Goodale and Prime Minister Justin Trudeau vis-à-vis the new committee. Canadians, and Parliament, are protected by a review clause (Section 34) in the legislation that requires that “a comprehensive review of the provisions and operations of the act” be carried out after five years. That review should be both rigorous and thorough.

MPs may also want to reflect on how much they really want to know. Reference is often made of our allies that have provided some degree of secret access to their legislators. These same allies, Britain the most prominent among them, come from a long-standing tradition of using and respecting intelligence as a tool of statecraft. Not so here, a point indirectly made in The Globe’s editorial.

The new committee will work only if there is trust and understanding between parliamentarians and practitioners. Much ink has been spilled urging the practitioners to stand away from the cone of silence and become more accountable and transparent.

Less is said about the responsibilities of parliamentarians to build a climate of mutual trust and confidence. Without pulling their share of the weight, the proposed purposes of the committee will not be achieved and Canada will be poorer as a result.

C-22 is an important bill. Pass it, and then make it work.

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