A proposal by the Liberal government to have a retired judge approve or veto authorizations for Canadian national security agencies could result in the ministers responsible for those agencies avoiding accountability when things go wrong.
Former Canadian spymaster Richard Fadden took that warning to MPs studying C-59, the Liberal government’s hallmark national security legislation, at a committee meeting Tuesday. He suggested the nature of the proposed new role of intelligence commissioner, as it is shaped now, could cause problems down the road for both those tasked with keeping Canada safe as well as the individual who fills the role.
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“If something goes wrong … it seems to me the veto proposed to be given to the appointed official would make it too easy for the minister of the day to escape accountability,” said Fadden, who served formerly as both the director of CSIS as well as national security adviser to former prime minister Stephen Harper.
Fadden also argued that while it makes sense to have someone in that role responsible for determining the legality of actions that agencies like CSIS and the CSE want to take, determining whether they are “reasonable” — as the legislation states the individual must — is a task better left to the minister who is responsible for the agency.
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In the case of CSIS, that would be the Minister of Public Safety and Emergency Preparedness. For the CSE, the relevant minister would be the Minister of National Defence.
The government introduced C-59 in June 2017 and the bill contains provisions that will fundamentally alter the Canadian national security landscape.
Among the provisions is a section that authorizes the CSE to launch offensive cyber operations against foreign targets. Another reverses changes made by the former Conservative government in its controversial national security legislation, C-51, which lowered the threshold for the proof that police must present to a judge before being allowed to monitor or detain suspected terrorists.
C-59 will also create a new committee of national security experts who will review the activities of national security agencies in Canada, and will create the new position of intelligence commissioner.
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The position of intelligence commissioner will be part-time. A former judge of a Canadian superior court will be appointed to the position for a five-year term.
The commissioner will have the authority to approve or veto authorizations for activities like the collection of foreign intelligence or the launching of a cybersecurity activity under the new powers proposed for the CSE.
However, the role as it is proposed now also raises questions about whether the person who fills it will be able to keep up with the rapid pace of modern national security.
“This intelligence commissioner, in some circumstances, is going to have to be alert and readily accessible, whereas he or she will be in a part-time position,” Fadden said.
While Fadden called the legislation “a good bill overall,” he also cautioned that the size and scope of it makes some sections “almost incomprehensible” and urged parliamentarians to find ways to simplify the language where possible.
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The House of Commons public safety committee began its study of the legislation in late November.
The government took the unusual move of referring the bill to committee before Second Reading, which means that committee members technically now have a broader scope to suggest changes, including some that might go to the core principles of the bill.
Normally, legislation is referred to study at committee following a Second Reading vote, which is when MPs affirm support for the bill in principle.
Once that happens, the committee studying the bill cannot propose any changes that would fundamentally alter the principle of the bill based on the rationale that the House of Commons has already indicated support for that principle.