David McGuinty

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Protecting rights, freedoms and national security

by David McGunity, MP
Chair, National Security and Intelligence Committee of Parliamentarians

Canada’s new National Security and Intelligence Committee of Parliamentarians (NSICOP) is preparing to deliver its inaugural annual report to Prime Minister Justin Trudeau, a milestone in the country’s effort to modernize and strengthen independent review of the national security and intelligence community.

Established in June 2017, the multi-party committee of lawmakers from the House of Commons and Senate is vested with the responsibility to review the legislative, regulatory, policy, administrative and financial affairs of the national security and intelligence establishment. Canada joins its closest intelligence allies (US, UK, Australia and New Zealand) who all have legislative bodies that review national security and intelligence matters.

The National Security and Intelligence Committee of Parliamentarians Act, 2017, grants NSICOP broad statutory authority to access highly classified information, hold in-camera hearings, and report findings and recommendations to the prime minister.

The initiative is the cornerstone of a revamped external review structure intended to help bridge the gap between Canada’s current regime and the integrated and networked activities of modern security and intelligence work.

The committee’s primary focus is strategic security and intelligence issues and efficacy. It is the sole review body with jurisdiction to follow and explore national security and intelligence issues and activities across the whole of government.

Its remit covers eight core organizations and 14 federal departments and agencies with national security responsibilities.

Previously, the activities of only three agencies have been routinely audited by three small, independent bodies that focus on compliance with the law and deal with public complaints. Direct oversight remains a function of ministerial accountability.

The committee can examine any activity organized by a department that relates to national security and intelligence or any matter relating to national security or intelligence referred by federal ministers. It has statutory authority to demand any information under the control of a department and related to the committee’s mandate including information protected by litigation privilege or by solicitor-client privilege or the professional secrecy of advocates and notaries.

It is prohibited from accessing Cabinet confidences, the identities of confidential sources, information on the federal Witness Protection Program and details on active police investigations that may lead to a prosecution. It also cannot review matters that the appropriate minister believes would be injurious to national security or information the minister constitutes as special operational information, as defined in the Security of Information Act. The committee has no right of appeal, but must report the number of times annually, if any, a minister rejects such requests and may note its dissatisfaction in its annual report.

The Minister of Public Safety and Emergency Preparedness, the Hon. Ralph Goodale, and I held discussions with the United Kingdom, the United States, France and New Zealand to examine their Parliamentary committees. We came to view several elements of the British model – the Intelligence and Security Committee of Parliament (ISC) – as the preferred template.

NSICOP is not a traditional parliamentary committee, but an independent committee of parliamentarians not subject to parliamentary rules and procedures and not constrained by the inability of parliamentarians to access state secrets.

The committee resides within the executive branch, generally meets in private and submits its reports to the prime minister. Members have Top Secret security clearance, are permanently bound to secrecy by Canada’s Security of Information Act and cannot claim parliamentary privilege in defence of any criminal breach. We are supported by a small secretariat of public servants with expertise in the federal security and intelligence domain.

A public version of committee reports, redacted for information injurious to national security, defence or international relations, must be tabled in both houses of Parliament. The committee can also, at any time, submit special, ad-hoc reports related to its mandate to the prime minister and appropriate minister.

Our relationships with Canada’s other three review bodies are vital to the goal of building an integrated and complimentary system equipped to review 21st century security and intelligence activities. The NSICOP Act empowers other review bodies to provide the committee information under their control and related to the committee’s mandate. The legislation instructs our committee and the three review bodies to take all reasonable steps to cooperate and avoid unnecessary duplication of work.

Proposed government national security legislation, Bill C-59, now before the Senate of Canada, would create a new National Security and Intelligence Review Agency (NSIRA), responsible for ensuring Canada’s national security agencies are complying with the law. As well, a new and independent Intelligence Commissioner (IC) would ensure that ministerial authorizations related to foreign intelligence, cybersecurity and the collection and retention of datasets are justified and reasonable.

Our overarching intention is to help ensure that both national security and Canadians’ rights and freedoms are protected by lawful, appropriate and effective means. We remain committed to contributing to an informed continuing public conversation about the state of our national security.

This article first appeared in the Parliamentary Network Review, December 2018.