Published in the Hill Times, October 22, 2007:

Creating the Office for National Security Accountability

By Derek Lee, M.P.

On October 15th my office announced the establishment of an “Office for National Security Accountability” (ONSAC), a Parliament-based instrument for the purpose of monitoring developments in Canada’s national security portfolio. The need for a Parliamentary Committee dedicated to the oversight of national security matters is long overdue and all of our major allies have them. But in the current absence of such an entity, it is my hope that ONSAC can fill this gap in the parliamentary structure and be a bridge to what will hopefully exist in the future.

National security issues are now presenting some pressing matters for Parliament and Canada. Since 9/11, matters of collective security have dominated news headlines and debates as Canadians adapt to a geopolitical landscape that is increasingly internationally interconnected. Canadian law enforcement and intelligence bodies have adapted too, and their relations with international partners have grown exponentially. Spending is way up, intelligence and surveillance operations are up, and technology-based tracking is more intrusive than ever before. Yet there is no properly equipped committee of parliamentarians capable of receiving classified information and scrutinizing national security matters. This has resulted in only minimal on-going Parliamentary and public awareness of procedures now in place in Canada and elsewhere. Although a sub-committee of the House Justice Committee had for 15 years attempted to fill the role of public overseer, it never received the support of any government and was never properly resourced. A committee of the Senate similarly struggles forward.

The need to establish a national security committee of Parliamentarians has been recognized in numerous reports, including that of the McDonald Commission of 1981, the Report of the Five Year Review of the CSIS Act, and the Report of the Interim Committee of Parliamentarians on National Security in 2004. In response to these recommendations, the Government, in 2005, introduced Bill C-81, which sought to establish a National Security Committee of Parliamentarians. In May of this year, I re-introduced that Bill as C-447. Although Public Safety Minister Stockwell Day and the Cabinet were reported to have been considering reintroducing similar legislation, the Conservative Government has yet to do so.

A primary goal of ONSAC will thus be promoting the establishment of an appropriate parliamentary committee, similar to those operating in the UK, U.S.A. and Australia. Although it may seem counter-intuitive to some, the security establishments in those countries actually view parliamentary oversight committees as helpful: they reinforce demands for compliance with standards for public spending and for civil liberties. As well, they enable the security and intelligence establishment to explain to Parliament what they do, thereby enhancing broader understanding by the public.

In planning the creation of ONSAC, I have compiled a list of six high-priority matters that require attention today from Government, and that should be studied by informed Parliamentarians. Though there are other issues, to be sure, this encompasses some of the most pressing in the national security envelope today.

• Revisions to Deportation Procedures using Immigration Act Security Certificates: The Government must amend the Immigration Act and Refugee Protection Act to comply with s.7 of the Canadian Charter of Rights and Freedoms as per the Supreme Court of Canada decision in Charkoui v. Canada (Citizenship and Immigration), issued on February 23, 2007.  The Court gave Parliament one year to revise provisions of the legislation that it deemed to be unconstitutional. The House and Senate now have only four months to complete this.

•  An Oversight Body to Monitor RCMP National Security Operations: For all practical purposes, at this time, there is no material oversight of the RCMP’s national security and anti-terrorism operations, yet since 9/11, the RCMP has greatly expanded its intelligence gathering and international information sharing. While the Security Intelligence Review Committee (SIRC) monitors CSIS, and the Communications Security Establishment Commissioner is responsible for monitoring CSE, there is nothing comparable in place for the RCMP. This fact was underscored in the recommendations of Justice O’Connor in his report concluding the “Arar” inquiry.

• Replacement of the “Sunsetted” Clauses Enabling “Investigative Hearings” (ss. 83.28-83.30 of the Criminal Code): Following the House vote in February, 2007, allowing the expiry of the provisions for investigative hearings, we must determine if there is a need to replace them. All of our major allies maintain similar procedures.

• Creation of a Parliamentary Committee: As recommended in the Report of the Interim Committee of Parliamentarians on National Security (2004), and the Five-Year Review of CSIS Report (1990), the Government should move to create - by statute - a Committee of Parliament dedicated to the oversight of national security matters. Such a committee would be equipped and empowered to receive classified information to enable Parliament to fulfill its constitutional role of scrutinizing all aspects of government.

• Accessible Appeal or Inquiry Procedure for Canadians whose Names Appear on the new “No-Fly List”: Although the “No-Fly List” has generated considerable concern from the public and the media, citizens are not clear on how they are protected from similar or identical names or how to challenge a listing of their name.

• Re-defining the Term “Terrorist Activity”: Consideration must be given to repairing the current definition of “terrorist activity” following the Ontario Superior Court decision in R. v. Khawaja in which the definition was judicially amended – and may have been unwittingly expanded to include much more than Canadians actually want or need.

Because some of what is done under the rubric of national security trenches on all of our civil liberties, it is necessary to be vigilant that privacy and the rule of law remain paramount considerations. A Parliamentary Committee dedicated to scrutiny and oversight is especially important in ensuring spending efficacy for an area as cloistered as national security. In the understandable absence of full transparency, alternative Parliamentary measures need to be put in place.

Derek Lee, M.P. served as both Chair of the National Security Subcommittee and as Chair of the Interim Committee of Parliamentarians on National Security. He also served on the Special Committee reviewing the CSIS Act.

Visit ONSAC’s Website at: http://www.onsac.ca