Ron Atkey was the first chair of the Security Intelligence Review Committee, from 1984 to 1989. He currently teaches national security law at Osgoode Hall Law School at York University.
Some of the instant critics of the Harper government's Bill C-51, introduced last Friday, have missed the mark in decrying lack of oversight.
While there is much in the bill that will require careful scrutiny by parliamentarians, security intelligence specialists and lawyers going forward, oversight or "review" has not been forgotten.
Indeed, the whole notion of accountability for the dangerous but important new powers for the Canadian Security Intelligence Service has been enhanced.
First, the bill rightly expands judicial control now in place for wiretap warrants. Henceforth, when CSIS uses its new powers to reduce threats to Canada's security, within and outside the country, it will in most cases require the prior authorization of a designated Federal Court judge. This is no simple procedure: Detailed affidavits that take CSIS months or years to prepare are presented to the judge in closed proceedings. They are then subject to aggressive questioning by the judge (and sometimes a special advocate in complex cases) to ensure they meet statutory thresholds, including compliance with the Charter of Rights and Freedoms. Only then can the measure be authorized within terms specified by the judge.
Perhaps of equal importance, the Security Intelligence Review Committee (SIRC) will continue to exercise its extensive powers to review and monitor every aspect of CSIS activity, including the new powers being proposed, and to have full access to virtually all information held by the agency. This was one of the significant features of the CSIS Act crafted by the Trudeau government in the early 1980s and implemented by the Mulroney government after 1984.
The CSIS Act also contains a unique and important provision relating to prime ministerial appointments to SIRC of privy councillors who are not members of the Senate or the House: consultation with the Leader of the Opposition, the House and the leader of any party having at least 12 MPs. This means that currently Thomas Mulcair and Justin Trudeau will be part of any process to round out SIRC.
With the exception of Dr. Arthur Porter, all SIRC appointments have been of the highest calibre over its 30-year history. Recent proof of this was last Friday's appointment of Ian Holloway, dean of law at the University of Calgary, a distinguished legal scholar with an extensive background in the Royal Canadian Navy. (Full disclosure – Dr. Holloway was previously the dean at Western Law, where I served as adjunct professor.) He will join Yves Fortier, an accomplished Montreal lawyer and former diplomat to the United Nations, security specialist Gene McLean and acting chair Deborah Grey, a former MP. A fifth member should soon be appointed in consultation with the New Democrats to achieve political balance.
Being an effective watchdog over CSIS does not come easily. While there are 30 years of corporate history and aggressive scrutiny to build on, the current challenge will be to conduct reviews and investigations of expanded agency powers with a small budget that has not even kept pace with inflation. This cannot continue. Just as CSIS can rightly claim that its expanded mandate to fight terrorism will require a financial commitment from the federal government going forward, so can SIRC make a case for additional resources going forward to do its job as an effective watchdog ensuring that CSIS operates within the law.
Concern about oversight often relates to Parliament. In my view, there is an important role for a committee of security-cleared parliamentarians to oversee security matters generally – not to do the detailed investigative work of a watchdog, but to take a timely overview when things inevitably go awry in the complex world of national security. Whether it involves CSIS, the RCMP and the Communications Security Establishment (where oversight may be inadequate), or the Canadian Border Services Agency or Transport Canada (where external oversight is non-existent), a committee of parliamentarians should have an opportunity to weigh in initially to ensure that some appropriate body is seized of the matter and mandated to get to the bottom of things so that public confidence in the national security apparatus is maintained, including notions of fairness and free speech.
There should be much discussion in Parliament and the media over the next few weeks concerning proposed amendments to the Criminal Code relating to terrorist activity, terrorism offences, the promotion of terrorism and increased protection of witnesses to terrorism. Let us hope that the law that emerges from Parliament will be improved as a result.
And after the new law is in place, there will inevitably be individual cases argued before the courts by lawyers representing alleged terrorists asserting rights under the Canadian Charter of Rights and Freedoms. That is part of the established criminal justice system in Canada, which underpins our free and democratic society under the Constitution.
But regarding new powers of terrorism disruption to be given to CSIS, oversight is alive and well.