Issues of Interest for Canada’s New Parliamentary National Security Committee

Bill C-22 recently received Royal Assent, which is a significant development in the Canadian national security environment. The Bill, for the first time, creates a special Parliamentary Committee with a specific national security review mandate. Creation of this Committee with its defined statutory mandate, has been recommended for over a decade, including by commentary in FrontLine Security magazine.

This is an important accomplishment for the Trudeau government as it represents a potentially significant accountability and systemic performance improvement to national security related issues. While legitimate concerns have been expressed about control over the Committee by the Prime Minister’s Office, http://www.macdonaldlaurier.ca/files/pdf/MLICommentaryNewark11-16-webV2.pdf, it is still noteworthy that the government has chosen to move forward with this reform, unlike the previous Conservative government under Stephen Harper who ignored the broad support for what C-22 now creates. 

For many people, the Committee’s function will be to review the national security activities and policies of the various Departments and Agencies involved in this inherently, and appropriately, less-than-transparent area of operations. While there is no doubt that the Committee may actually perform this function, the actual instances of willful misconduct are beyond rare and are rooted in bureaucratic competition and institutional risk aversion rather than pre-meditated malice.

Assuming the Committee is allowed to actually fulfill its mandate, it could be an incredibly valuable tool to examine national security related issues as well as specific cases to learn exactly what happened (or what didn’t) and why that was, and what policy, operational or funding changes are needed to achieve better outcomes. This ‘lessons learned’ approach has proven extremely valuable in the law enforcement and criminal justice reform sectors and has the potential to do so in the increasingly important national security sector.

For this to be achieved, Committee members will need to have a substantive awareness of relevant policy issues as well as specific cases (which are frequently the best way to cut through theoretical scenarios that, all too often, result in theoretical explanations). Put differently, the best way to get the right answer is to ask the right question.

It will also be important for the Committee to be able to summon the right witnesses, especially on case-specific investigations, and to have awareness of all legislation or policy that is relevant to the issues being examined. To help achieve this, members of the Committee should be encouraged to receive third party suggestions on matters or cases that merit examination.

The Committee needs to take an approach that is clearly focused on learning the truth about policies and why they purportedly are what they are, always keeping in mind that process is supposed to serve purpose and not the other way around. The same will be true for any examination of specific cases. The object of the exercise will be to determine why something happened (or didn’t) and how to fix it… rather than a finger-pointing approach that will only encourage obfuscation and obstruction. In short, the Committee’s mandate should be something to be welcomed by frontline people who want to improve their capabilities to keep our country safe because that is exactly the potential of this Committee.

The mandate provided to the Committee in Bill C-22 appears to support this positive potential as section 8 provides a broad mandate for the Committee that includes reviewing:

1. the legislative, regulatory, policy, administrative and financial framework for national security and intelligence;
2. any activity carried out by a department that relates to national security or intelligence, unless the appropriate Minister determines that the review would be injurious to national security; and
3. any matter relating to national security or intelligence that a minister of the Crown refers to the Committee.

This would appear to create both a policy and operational review mandate (subject to a veto by the relevant Minister) as well as the ability of the Committee to review matters referred to it by a Minister. The Committee is authorized under s. 21(2) and (3) to prepare a ‘special’ report on a matter to the PM although such reports are not to be tabled in Parliament (21(5)).

The committee would have powers to access any information to conduct its reviews, subject to specific limitations such as to protect third parties, prevent interference in active military operations, and maintain the independence of law enforcement functions. While the Committee will have a right of access to information it requests, the legislation allows Ministers to withhold special operational information if they decide (no appeal) that the disclosure would harm national security. The responsible Minister will need to provide the committee with the rationale for their decision to withhold information.

In addition to establishing the Committee, Bill-22 also establishes a new, dedicated secretariat with a deputy head – to presumably ensure that the committee will have the necessary support and resources to conduct its reviews.

While the Committee has not yet been established, the PM has announced that Liberal MP David McGuinty will serve as its Chair, and Bill C-22 stipulates that the Committee can have up to 10 other members, 3 of whom are to be from the Senate, 7 MPs from officially recognized parties (CPC and NDP), and 4 from the governing party. As noted earlier, unlike regular Committees, the nominee from the other parties must be accepted and confirmed by the PM – this has already raised questions as to whether the PM will accept a party nominee. The Committee meets at the discretion of the Chair (which means the PMO), and it can determine its own procedures including, presumably, how a decision is made about what issues or cases merit study. Hopefully, these issues will get worked out and the Committee will soon be up and running to discharge its important mandate.

With this development on the horizon, the following issues and cases relate to ongoing concerns and are offered for consideration by the Committee as it begins its important work.

Canada-US border security issues

In today’s world, Canada-US border security has taken on an unprecedented national security priority that calls for intelligence led enforcement and joint operations. Accordingly, the following issues merit substantive examination: 

• What is needed (operations, technology, policy)?
• Why have Beyond The Border and Border Integrity Technology Enhancement Program measures not been implemented?
• Why is CBSA excluded from "between port of entry" enforcement, and Shiprider, and should that be changed?
• How does the Safe Third Country Agreement need to be updated?

Developing and deploying an International ‘bad guy’ natsec lookout system

The return and surreptitious travel of western jihadis to western countries including Canada is an undeniable and alarming fact of life that needs to be addressed as an immediate priority.

• Criteria, technology and legal/privacy issues
• Ali Mohammed Dirie case

Radicalization prevention

One of the greatest challenges, and opportunities, facing Canada (and other Western countries) is the need to proactively prevent the Islamist radicalization of persons within the country and in doing so to understand both how it’s being done and who is behind it. Additionally, it is clear that the best defence against radicalization is the successful integration of persons into Canadian society, which therefore needs to be fully supported. 

• Identifying the MB network in Canada
• Identifying Islamist funding sources
• Community engagement guiding principles (is it working?)
• The importance of integration and recognizing efforts to prevent it

Extradition as a two-way tool

Extradition is a long-established legal tool that has new applications through which Canada can either seek the return of Canadians accused of terrorism offences abroad (or not) or send persons in Canada (or not) to other countries face prosecution for terrorism offences.

Several recent cases have illustrated the need for a strategic assessment of how and why this tool can be used, especially in light of the bizarre Supreme Court of Canada condemnation of Canadian officials' conduct in the Omar Khadr case, the decision by Canada not to prosecute Abdullah Khadr and Sayfladin Sharif, and the recent arrest of two Canadian female jihadis in Iraq.

Canada would be well advised to develop a detailed strategy about how extradition should be used, or not, including how Canadian officials interact with Canadians detained abroad on terrorism charges to help ensure the desired outcomes

• Case analysis (Omar Khadr, Abdullah Khadr, Iraq jihadis, Slayfladin Sharif)

Terrorism Peace Bonds

In terrorism cases, ‘success’ is measured in prevention rather than prosecution which is why Canada has developed a number of tools to help law enforcement and security agencies proactively intervene with identified persons of concern. Perhaps the most significant of these is the terrorism ‘peace bond’ (now s. 810.011 CC) which has undergone multiple reforms over the years. By examining specific cases that involved the use, or failure to use, these orders, the Committee will gain valuable insight into how the system can be improved and specifically in how the legal tool is used. 

• Rouleau case and Edmonton attack by Abdulahi Sharif (why wasn’t it used?)
• Dirie case (why no EM, no action on warrants, not on No Fly list?)
• Driver case (why no EM, was monitoring sufficient, why was RCMP unaware of online activity that FBI detected?)

Encryption and Decryption

Encryption is the means by which communications are ‘secured’ from being read by unauthorized parties. In today’s total digital world, encryption is exponentially more important as all of government, infrastructure operators, and industry have communications they wish to secure. Modern technology, however, now makes this possible for anyone that communicates digitally, which means that persons engaged in criminal and terrorist activity can take advantage of this, which is a major impediment to national security operational activities. This ‘dark’ communication capability has actually reached the point of being a commercial marketing advantage, and raises the need to determine private sector responsibilities. The overarching privacy component of this issue also needs to be considered. The Committee would be well advised to review this issue with representatives from law enforcement, counter terrorism, cyber security, technology companies and the privacy sector as well as examining practices in other jurisdictions.

• Encryption: What is it, why is it important, what options exist and what are the best choices to make.
• How to best deal with modern terrorism ‘propaganda’

A key feature of the evolving terrorist threat to Canada and other Western countries is the use of the internet and social media to radicalize, recruit, promote and even facilitate terrorist activity. This threat must, however, be balanced against our core value of protection of free speech including discussion of controversial subjects. How to most effectively achieve this balance is a subject that would benefit from a substantive analysis by the Committee that included details from counter terrorism officials and consideration of international practices.

• The reality of modern internet/social media communications.
• Should radicalization, recruitment and facilitation, encouragement, advocacy, promotion and facilitation of terrorist activity/travel be criminalized?
• Assessing international practices.

The passage of C-22 means that for the first time, Canada will have a statutorily authorized Parliamentary National Security and Intelligence Committee with a mandate that will permit relevant and substantive analysis of relevant issues and an ability to make recommendations for changes and improvements. This represents a potentially significant and positive development for Canadians. Hopefully, the Committee will get down to its important work as soon as possible.

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Scott Newark is a former Alberta Crown Prosecutor who has also served as Executive Officer of the Canadian Police Association, Vice Chair of the Ontario Office for Victims of Crime, Director of Operations to the Washington D.C.-based Investigative Project on Terrorism and as a Security Policy Advisor to the Governments of Ontario and Canada. He is currently an Adjunct Professor in the TRSS Program in the School of Criminology at Simon Fraser University.