Monday, June 19, 2017

The Standing Senate Committee on National Security and Defence has the honour to present its

THIRTEENTH REPORT

Your committee, to which was referred Bill C-22, An Act to establish the National Security and Intelligence Committee of Parliamentarians and to make consequential amendments to certain Acts, has, in obedience to the order of reference of Tuesday, May 30, 2017, examined the said bill and now reports the same without amendment but with certain observations, which are appended to this report.

Respectfully submitted,

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Observations to the Thirteenth Report of the Standing Senate Committee on National Security and Defence (Bill C-22)

As part of its study on Bill C-22, which took place from June 5, 2017 to June 15, 2017, your committee held a total of five meetings. Over the course of these meetings, your committee heard from 29 witnesses.

Your committee has observations with respect to certain provisions of the bill, namely:

1) Section 8(1)(b) of the bill prohibits the committee from reviewing activities that are ongoing operations and the appropriate Minister determines that the review would be injurious to national security. Your committee is concerned that this may inhibit the Committee of Parliamentarians from performing its oversight role. Your committee also believes that there should be a mechanism to monitor the application of this restriction by the Minister, and that this mechanism should include provisions for regular reports thereon to the members of the committee.

2) Section 14(d) of the bill states that the Committee of Parliamentarians is not entitled to have access to information relating directly to an ongoing investigation carried out by a law enforcement agency that may lead to a prosecution. Your committee is concerned that this may prevent studies concerning instances where a law enforcement agency may be starting an ongoing investigation which may not be focused on an imminent prosecution but could have the possibility that the prosecution could exist sometime in the future. Your committee is further concerned that this may prevent studies related to Royal Canadian Mounted Police activities, since any action taken may lead to a prosecution.

3) Section 16(1) of the bill states that the appropriate Minister for a department may refuse to provide information if the information constitutes special operational information, as defined in subsection 8(1) of the Security of Information Act and the provision of the information would be injurious to national security. Your committee is concerned that special operational information as defined in the Security of Information Act covers an overly broad range of information. Your committee believes that given the wide scope of special operational information, there should be discussions between the Committee of Parliamentarians and the relevant ministers to create a consistent standard of application for this discretionary power to allow the committee to fulfill its objectives.

4) Your committee believes that the Committee of Parliamentarians should discuss with each relevant minister, official or law enforcement agency the areas of study that the committee should undertake in the fulfillment of its objective and the type of information that they will require to complete these studies. The outcomes of these discussions could be in the form of protocols or memorandums of understanding which would allow the committee to better accomplish its objectives.

5) Your committee observes that, traditionally, joint committees have had a balance of one third Senate representation, to two thirds House of Commons representation and that senators can bring institutional memory and expertise for the longer-term to the Committee of Parliamentarians. Given these observations, your committee believes that the government should re-evaluate Section 4(2) of the bill and give consideration to an alternative composition of members to better reflect the two chambers of Parliament, as defined by the Constitution Act, 1867.

6) Section 31.1 of the Act requires the committee to inform the appropriate Minister and the Attorney General of Canada of any activity that is carried out by a department and is related to national security or intelligence, and that in the Committee’s opinion, may not be in compliance with the law.  Your committee is concerned that this clause is too narrow and suggests that the Committee be obligated to also report on activities that may involve an unnecessary and unreasonable exercise of authority granted to the Minister or others in the department.

7) Your committee further believes that the government should give consideration to making the following changes with respect to the Committee of Parliamentarians’ powers and practices:

a. Provide authority to allow the committee to conduct its affairs as a judicial proceeding, which can administer oaths and prosecute perjury; subpoena witnesses; and protect whistle-blowers under the Security of Information Act.

b. Expand the bodies to whom the Committee can speak with to include the Privacy Commissioner.

c. Allow the Committee to provide confidential reports to the Prime Minister on matters of national security and allow all other reports to be tabled directly to Parliament.

d. Examine options for establishing the membership of the committee in a manner that balances an opportunity for different members to participate (i.e. term limits) while maintaining the institutional memory that consistency in membership provides.

e. In order to build confidence in the committee, allow the committee the authority to elect its chair from within its members.

8) The observations appended to this report reflect items of concern expressed by witnesses.  As a result your committee suggests that these observations be assigned to the Secretariat for monitoring.  The Executive Director, will, annually, provide a short report to the Chair of the Committee of Parliamentarians outlining his/her views as to what works well and/or what may require amending or changing.  Your committee also signals its intention to regularly hear from the Chair of the Committee of Parliamentarians and/or its Executive Director to speak to its work and activities, especially in relation to these observations, including the results of its reviews for consistency with our Constitution, and in particular the spirit and values in our Canadian Charter of Rights and Freedoms.