About this Project

This blog comments on Canadian (and occasionally comparative) national security law to update my National Security Law textbook and now also my 2015 book, False Security: The Radicalization of Anti-terrorism, co-authored with Kent Roach.

Please also see www.antiterrorlaw.ca for Bill C-51-related analyses by Craig Forcese and Kent Roach.

For narrated lectures on various topics in national security law, please visit my 2017 "national security nutshell" series, available through iTunes.

 

For a continuing conversation on Canadian national security law and policy, please join Stephanie Carvin and me at A Podcast Called INTREPID.

 

Please also visit my archive of "secret law" in the security area.

By Craig Forcese

Full Professor
Faculty of Law

Email: cforcese[at]uottawa.ca

Twitter: @cforcese

 

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Most Recent Blog Postings

Latest Book: Available from Irwin Law in April 2018.

Friday
Dec162016

Cyber-hacking, the US election and International Law

I've posted some meditations on international law and the latest allegations of Russian hacking of Clinton campaign email servers over at Just Security.

Tuesday
Dec132016

Consolidated version of Bill C-22 now available

The consolidated version of the C-22 is now posted.  It now returns to the House on report stage where the plenary Commons will decide whether to accept the standing committee's amendments.

In a prior post, I offered thoughts on the Standing Committee amendments that give the C-22 committee more robust access to information. (Note I have tinkered with these views on review of the full consolidated version, and reversed a view in which I urged that the government could still resort to the Canada Evidence Act). 

At risk of rushing out another blog post during a busy time of term, let me suggest why I think the Standing Committee amendments strike an appropriate balance on granting the C-22 access to classified information.

The bill proposes security-clearing parliamentarians, surrendering their parliamentary privilege and binding them under the Security of Information Act.  These are dramatic safeguards that do not need, in my view, to be supplemented by more limited access to info than is possessed by Canada's existing review bodies, SIRC and OCSEC.  (It is radical from a comparative perspective to security-clear members of the legislative branch, and to subject opposition parliamentarians to intrusive assessments by the executive). Personally, I think these features are a reasonable quid pro quo, if those parliamentarians then have expansive access to info. And I think the SECU surgery accomplishes that. (And the a ministerial veto in 8(b) over some C-22 committee investigations persists -- it is more constrained with the amendments, but still exists.  This is a veto that does not exist for SIRC or OCSEC.)

I strongly suspect that this sort of full C-22 committee information access is not favoured in the security services – but so far, the only justifications that I hear for this view are a visceral “parliamentarians can’t be trusted” and a generally ill-explained “we need to walk before we run”.
 
I think these views discount the extent to which all the walking done in the UK context created a committee with a very mixed record, and a mixed reputation, especially in the immediate the aftermath of 9/11. That is: there is a consequence to setting up a weak system and expecting it to strengthen with time.

These views also discount the fact that our services (at least CSIS and CSE) are habituated to review in a way that wasn’t true in the UK prior to the ISC; being reviewed won’t be a novel experience, and we should be able to leapfrog the UK growing pains. 

And finally, I am just plain puzzled by the argument that parliamentarians are necessarily less trustworthy than say, the former politicians who have traditionally dominated SIRC appointments.  Everything will depend on the quality of the members, and since the PM still holds the ultimate power of appointment, I think that makes it possible to select as wisely as selections are done for SIRC (and ideally, more wisely, given the unfortunate selection in the last decade of a person who ended up passing away in a Panamanian prison). 

I think the experience elsewhere suggests that partisanship can be set aside, and parliamentary review committees don’t leak. 

Nor do I think that we will be so far out of sync with allies that they will balk. The notion that allies will rap Canadian knuckles is entirely a speculative and doubtful proposition, one that can be used in sort of a circular, lowest-common denominator manner to defeat accountability reform.  Different systems are...different. The US can hardly look at the proposed C-22 committee as more sweeping than its congressional oversight system.

And at any rate, different approaches haven't ruptured relations in the past: SIRC has access to third party foreign intelligence (both in law and, as I have confirmed in my inquiries, in practice), something that is not true in many other jurisdictions.  And yet, our relations with allies continue.  Likewise, our special advocate system (including the scope of information access) is likely more robust than the UK system (and doesn't exist in many other places). And yet the Five Eyes relationship continues.

In other words: I take with a large boulder of salt any view that Canada walks the plank if it creates a strong C-22 committee. On the other hand, I fear a Potemkin village if we create a committee that has the power to investigate, but not the information to do so properly.

I hope Parliament endorses the changes made at the Standing Committee.

Friday
Dec092016

Stronger Bill C-22 (National Security Committee of Parliamentarians) Goes Back to the House

ADDENDUM: Dec 13: Now that the full, consolidated version of the bill has been posted after committee study, I am thinking that the Canada Evidence Act s.38 argument voiced below is actually a weak one.  See the addendum below.  I am, however, leaving this post in its original form to benchmark my thinking (aka, memorialize my mistake).

 

The Standing Committee on Public Safety and National Security has now reported its amendments to bill C-22, the bill that would create a national security committee of parliamentarians. A number of these amendments are quite significant, but most significant: the amendments greatly constrain the capacity of the government to deny the C-22 committee access to classified information.

This is an important development. As introduced to the House by the government, bill C-22 placed what I have been calling a triple lock on the C-22 committee's access to information. This was a matter of concern, since access to information will be essential for the C-22 committee to perform its functions. There were a number of justifications for this triple-lock, a constraint that does not exist for Canada's two chief expert national security review bodies (SIRC and the CSE commissioner). But basically the justification for the C-22 committee's more limited information access boils down to this: parliamentarians needed to show they could be trusted with classified information.

Even if this suspicion is warranted (and I am suspicious of the suspicion), the triple lock was excessive. This is especially true given that C-22 committee members will be surrendering their parliamentary privileges and will be persons permanently bound by secrecy under the Security of Information Act (and therefore subject to criminal sanction for violating secrecy rules). 

The rolling back of the triple lock so that it, in essence, no longer exists and the C-22 committee is now on a common footing in terms of access to information with SIRC and the CSE commissioner I regard as a good thing, as not only does it remove the prospect of serious and debilitating bun fights over C-22 committee access to information, but it also makes coordination and collaboration with the expert review bodies much easier, at least in principle.  All are now equally into the secrecy tent. 

Still, that rolling back seems to have occurred through a puzzling procedure in the standing committee clause-by-clause review. I fear that some of the amendments may, therefore, be defeated by the government on report stage.

Let me suggest, however, that the government should be content with this standing committee outcome and should now appreciate that they retain a "nuclear" option in terms of controlling access to the secrets it really does not want shared with the C-22 committee: the Canada Evidence Act, s.38.

Among the amendments made by the standing committee is an emphatic power to compel production of information. I think it is even clearer, therefore, that investigations by the C-22 committee are "proceedings" under s.38 of the Canada Evidence Act.  And that means that the government could fight disclosure to the C-22 committee of information prejudicial to national security, defence or international relations in Federal Court.  More than that: it also could issue an Attorney General's certificate to block this disclosure to the C-22 committee should any body, including the Federal Court or the committee itself, order its disclosure.

This certificate constitutes a sweeping power, subject to only rudimentary appeal in the Federal Court of Appeal.  It was controversial when created in 2001 because of its reach.  And it certainly could be used to deny truly sensitive information to the C-22 committee (indeed I think it has fewer checks and balances than ideal).

Bottom line: the government lost its triple-lock on C-22 committee access to information, but it gained its nuclear bomb.

Thus, to suggest that the standing committee amendments went too far would be, in my view, an exaggerated concern.  I hope therefore that the amended C-22 passes muster at report stage.