by Stephanie Carvin
A year after its election, the Trudeau Government is now taking steps to fulfill its campaign promises to improve intelligence oversight in Canada and reform Bill C-51 — the Harper Government’s controversial terrorism legislation. So far, there are some very promising signs regarding the direction the government is headed. Public Safety Minister Ralph Goodale has published thoughtful commentary on terrorism after a failed attack earlier this summer. The Green Paper published by the government outlining its understanding of the major issues and challenges has been an interesting and useful starting point for consultations and discussion. Perhaps most impressively, the debate in the House of Commons on intelligence oversight (Bill C-22) has been restrained and productive. While opposition MPs have been critical of a lack of consultation with Minister Goodale, they have put forward constructive ideas and useful feedback that should contribute to meaningful oversight of Canada’s national security agencies.
My view is that intelligence oversight and legislative reform should work towards building a trinity of trust between the public, the government, and Canadian national security agencies. As a way of working towards this goal, three broad principles should guide the government’s steps.
1-Ensuring national security agencies are performing their roles efficiently, effectively, and within the laws, policies, and mandates set out by the Government of Canada
2-Entrusting selected parliamentarians with robust access to information to do their work through a secure, well-functioning committee
3-Generating regular, informative, and frank discussion with the public regarding the current Canadian threat environment and the challenges faced by national security organizations in investigating these threats
While others have commented on the legal aspects of current and proposed legislation, the comments below provide a non-legal perspective from a former analyst and current academic. Keeping the above three principles in mind, I wish to focus on four issues that thus far have not received much attention in discussions regarding Public Safety Canada’s Green Paper, Bill C-22, or reforming C-51.
One of the core functions of national security agencies is intelligence analysis. Section 12(1) of the CSIS Act requires CSIS to “report to and advise the Government of Canada” on national security threats based on information it has collected. However, we know little as to how effective this advice is to policy makers or how it is used. Are national security organizations fulfilling their duty to provide timely advice? Oversight can help ensure that policy is properly informed by quality intelligence analysis and hopefully the committee will spend time on this issue.
Counter-Intelligence and Foreign Influence Activities
Thus far, the discussion around reform of our intelligence agencies and oversight has largely referred to terrorism and surveillance, not espionage or foreign influence activities. Counter-intelligence work requires a different set of skills and activities than counter-terrorism. For example, counter-intelligence activities can impact foreign policy and vice-versa. How well are foreign policy and national security agencies coordinating their activities? Should intelligence services be more frank regarding the activities of foreign governments on Canadian soil? Without a doubt, it is challenging to air these issues in public — espionage and foreign influence can be the source of diplomatic headaches and embarrassment. Nevertheless, they should not be left out of the conversation.
Some minutiae may seem like small issues, but are very important. First, it is not clear what happens if/when an MP nominated for the committee proposed in C-22 is denied security clearance. Section 5 of Bill C-22 makes it clear that members of the committee will be appointed by the PM on the advice of cabinet, but s/he must consult opposition leaders in doing so. C-22 seems to make it clear that the PM’s view prevails. However, the fallout from a disagreement could be difficult. The government may wish to deal with a situation behind closed doors; things may not work out so nicely in practice. For example, at time of writing, a national newspaper has reported on concerns over foreign influence regarding an Ontario cabinet minister. While the minister is presently challenging this reporting in court, this episode suggests that such a muddled situation is possible.
One of the most important functions of the committee proposed in Bill C-22 is communicating with Canadians. NDP MP Murray Rankin has usefully suggested that any censorship of the committee’s reports by the PM should be made clear to the public. I would add one more proposal for the committee’s report: a requirement that they publish their findings every 365 days without exception. Any survey of reports of national security agencies for the public will reveal how infrequent, irregular, and even random they are. At time of writing, CSIS has not produced an “annual” (now bi-annual) public report since May 2015 (which covered the period 2013–2014). The Public Report on the Terrorist Threat is the sole multi-agency report on threat activity in Canada appearing on a more regular basis, but it does not cover non-terrorism-related threat activity.
Because of the many layers of approval these documents must face — as well as competition for the minister’s approval and time — it is not surprising that such reports can fall through the cracks. Nevertheless, the government should make communication to Canadians on national security issues a priority. Given that this is one of the few communication tools that the government and national security agencies have, they should take these reports more seriously. And the more frank and honest these reports can be, the better informed Canadians will be in understanding the security challenges our country faces.
Stephanie Carvin is an Assistant Professor at the Norman Paterson School of International Affairs, Carleton University, and a former national security analyst with the Government of Canada. This piece is based on comments made at the CIPS event: Parliamentary Eyes on the Spies? Discussing the proposed National Security and Intelligence Committee of Parliamentarians held on October 6.