Speech for Bill C-59

Presented to the Standing Committee on Public Safety and National Security (SECU)

Pierre Blais, Chairman of the Security Intelligence Review Committee (SIRC)

Chantelle Bowers, Acting Executive Director, SIRC

06 February 2018

Good morning and thank you for the opportunity to appear before you today to discuss Bill C-59, An Act Respecting National Security Matters. I will focus my presentation in two main areas: the first part will lay out SIRC’s high level response to the Bill. In the second, I will offer a few suggestions for improvements to the language of the Bill based on SIRC’s experience in this area.

This is a positive time to be working in the area of review and accountability for intelligence in Canada. Not long ago, I was here to discuss the creation of a Committee of Parliamentarians in the context of Bill C-22. I am here again, this time to discuss the government’s proposal to create the National Security and Intelligence Review Agency, or NSIRA – which will be responsible for reviewing intelligence and national security activities across government. Indeed, as included in the Bill before you, NSIRA is to review any of CSIS or CSE, any activity carried out in any other department or agency that relates to national security or intelligence, and any other matter related to national security referred to it by a Minister. This will bring dedicated national security review of the type that SIRC has been doing for more than 30 years to a large number of other departments and agencies, including CBSA and the RCMP. This will answer the gap that so many, including SIRC, have commented on for years.

On its own, the new committee of parliamentarians or NSICOP marks a new era for accountability in Canada. Once NSIRA and the new Intelligence Commissioner are added, this will represent a substantial change in the accountability system for intelligence in Canada.

Before moving on, I will take just a minute to describe SIRC’s mandate and responsibilities to the committee. Perhaps most importantly, I will stress that SIRC is an independent external review body that reports to Parliament on CSIS’s activities, which include reporting and investigating threats to the security of Canada.

SIRC has three core responsibilities: to carry out in-depth reviews of CSIS’s activities, to conduct investigations into complaints, and to certify the CSIS Director’s annual report to the Minister of Public Safety and Emergency Preparedness. In essence, SIRC was created to provide assurance to Parliament, and by extension Canadians, that CSIS investigates and reports on threats to national security in a manner that respects the law and the rights of Canadians.

SIRC has discharged its mandate faithfully over its history and it has had an impact. This was demonstrated most recently by the Federal Court decision of October 2016 that confirmed SIRC’s long-standing practice of assessing the lawfulness of CSIS activities, including in how CSIS applies the “strictly necessary” threshold to its collection and retention of information. Through its review work, SIRC contributed to high level discussion on the type of intelligence that CSIS can collect and retain, as we see in the dataset provisions of Bill C-59.

But the legislation makes clear that NSIRA is an entirely new entity, to be created - not from SIRC or the Office of the CSE Commissioner, both of which will be dissolved when NSIRA is created - but from a desire to push accountability forward in Canada. SIRC has, along with its partners and counterparts in the review community, long called for change of this nature that will break down the siloes that have hampered review for so long.

When the decision was made in Canada more than 30 years ago to create SIRC, it represented some of the best, most forward thinking at the time on accountability for intelligence. But this is a new era, with new challenges for accountability. Canada has an opportunity to again fashion itself after the best of thinking on accountability, taking into account the important experience of others. With respect to the parliamentary element of accountability, this means designing a committee of parliamentarians. I am pleased that the government did not stop at the creation of NSICOP and has included equal attention to expert review.

Internationally, we can see our allies similarly adding substance to the review and oversight structures responsible for national security. In the UK, there is the new Investigatory Powers Commissioner’s Office. In New Zealand, there has been a doubling of the size of its inspector general. And in Australia, expanding the size and remit of its inspector general for intelligence is actively being discussed as we speak.

Canada’s deliberations on accountability are happening at a time when there has been a shift in thinking on accountability for intelligence agencies, translating into expectations of greater transparency among the public. To that end, one of the great strengths of the bill is the provision that allows for the agency to issue special reports when it decides that it is in the public interest to report on any matter related to its mandate. The new agency will issue these reports to the appropriate Minister who must then cause them to be tabled before each House of Parliament.

This will allow the new agency to signal a significant issue to the Minister and the public in a timely way. SIRC is not currently able to do this, and it has been a limitation for SIRC in its ability to present the results of its work in a timelier manner. In light of the government’s recent statements regarding transparency, this is an important provision. At the same time, we note that there are no provisions in the Bill requiring CSIS to issue a public report to match the requirement of CSE in this regard. In the interests of transparency, SIRC views this as an important gap that SIRC puts to the committee to consider in its deliberations.

The proposed legislation makes clear that SIRC and its experience will be central to what is coming. The transitional provisions clarify that, at the coming into force of Part I, SIRC members are to be continued as NSIRA members for the remainder of the term for which they were appointed. SIRC staff will continue their SIRC positions under the NSIRA secretariat.

These provisions will help to maintain intact SIRC’s 30 plus years of history and experience. As we said in our annual report, SIRC’s accumulated experience and established independence mean we are well positioned to assist in the success of the new review agency. SIRC looks forward to a continued role in strengthening accountability and public confidence in Canada’s national security organizations.

What do these proposed changes mean for SIRC in the immediate? We will of course continue to review the activities of CSIS to ensure those activities are compliant with Canadian law and Ministerial Direction. We will continue to investigate complaints. These will be reported in our next annual report.

However, it also means that SIRC and its staff, although continuing to work diligently to deliver our mandate, will nevertheless have in our minds the possibility of change in the near future. Indeed, we will work with OCSEC and other government partners, to ensure that we are prepared for the transition to NSIRA.

SIRC is using its capacity funding to add to our already strong, expert staff of legal counsel and reviewers to provide as much capacity to NSIRA as possible. We are also actively planning for the physical and technical infrastructure needs of a much larger organization.

SIRC is also looking internationally, at the experience of review bodies with similar mandates to explore best practices in respect of horizontal review of the type NSIRA will be engaged in. Expertise exists in this area and SIRC will make use of it to help with the thinking that will need to go into how to organize review of multiple departments and agencies.

SIRC also looks forward in the immediate to establishing a positive and productive working relationship with the new Committee of Parliamentarians. Now that NSICOP has been created, SIRC will put into action its commitment to avoid duplication and complement the work of NSICOP. I can only imagine that NSIRA will have the same approach, both to the NSICOP and the Intelligence Commissioner.

Before concluding, I will call the committee’s attention to the document you have before you. It that includes a number of specific proposals for amendments that, in our view, would improve and clarify certain aspects of the Bill.

Instead of going through them all, I will highlight the most important one, that relating to the principle that NSIRA should be “the master of its own procedure.” Specifically, SIRC recommends incorporating the current language of section 39 (1) of the CSIS Act, which stipulates that SIRC “may determine the procedure to be followed in the performance of any of its duties or functions”. This would ensure that NSIRA would have the authority to determine the procedure to be followed in the performance of any of its duties or functions. This is a well-recognized principle that administrative agencies are masters of their own procedure.

The other amendments proposed by SIRC are included in the document and I leave them for your consideration.

I will end simply by restating SIRC’s support for the direction in Bill C 59 with respect to the creation of NSIRA. It represents a significant step forward for review and accountability.