COMMENT
CHRONIQUE DE LEGISLATION
Parliamentary Control of Security Activities
C.E.S. Franks*
The author considers three different author-
itative views on parliamentary control of se-
curity activities: those of the McDonald
Commission, the Federal Government (as re-
cently outlined in Bill C-157 and Bill C-9)
and the Special Senate Committee on the
Canadian Security Intelligence Service, which
reviewed Bill C-157. He concludes that the
Committee proposals go a long way towards
correcting the flaws in Bill C-157. However,
certain major issues remain to be solved, and
the author recommends solutions based on
the positions taken by the authorities he has
canvassed.
Dans cette chronique de l6gislation, ‘auteur
discute des points de vue de trois organes
administratifs sur le contr6le parlementaire
en matirre de sdcurit6: la Commission
McDonald, le gouvernement ftederal (par ses
projets de loi C-157 et C-9) et le Comit6 s6-
natorial spdeial du Service canadien du ren-
seignement de srcurit, qui a rrvis6 le premier
projet de loi. I1 d~duit que les propositions
du Comit6 tentent largement Ai corriger les
vices du projet de loi C-157. Toutefois, conclut
l’auteur, certaines questions imperatives res-
tent A r~soudre. Ainsi propose-t-il des solu-
tions, fond~es sur les opinions des trois autoritts
examin&s.
Introduction
I. The McDonald Commission
H. Bill C-157
I. The Senate Committee
Conclusions
Synopsis
*
*
*
*Professor of Political Studies at Queen’s University.
1984]
CHRONIQUE DE LP-GISLATION
Introduction
Security activities pose particular problems for a democracy. While they
are not normally large in terms of manpower and expense, they directly
affect privacy, freedoms of speech and association, and other fundamental
personal and political rights. As Senator Pitfield noted: “The raison d’etre
of a security service is the maintenance of a free and democratic society.
But if an agency has too much, or inadequately controlled power, it can be
a threat to individual rights. On the other hand, if the security of the state
is not sufficiently protected, there is a danger of the weakening of a society
in which freedom and democracy should flourish.”‘
Security activities are difficult to control. Parliamentary control of the
executive is based upon three principles: first, that administrative activities
are conducted under the authority of, and within the limits of, the law;
second, that a Minister of the Crown is responsible for administration and
accountable to Parliament; and third, that parliamentary scrutiny is con-
ducted in public, and publicity is the effective sanction over the executive.
Security activities make effective exercise of all three principles difficult.
First, as the Mackenzie Commission pointed out: “A Security Service will
inevitably be involved with actions that may contravene the spirit if not
the letter of the law, and with clandestine and other activities which may
sometimes seem to infringe on individuals’ rights. ‘ ‘ 2 Second, the practice
in Canada has been that the Minister responsible for security matters has
had limited knowledge and control over their activities. Prime Minister
Trudeau made it “quite clear that the policy of this Government, and I
believe the previous governments in this country, has been that they …
should be kept in ignorance of the day-to-day operations of the police force
and even of the security force … the particular Minister of the day should
not have a right to know what the police are doing constantly in their
investigative practices … I would be much concerned if… the Ministers
were to know and therefore be held responsible for a lot of things taking
place under the name of security or criminal investigation.”‘ 3 Third, most
security activities must by their nature be secret; publicity would destroy
their effectiveness.
The Canadian Parliament has exercised no direct control over security
activities, either through legislative mandate or through committee review.
This is not, however, to say that Parliament has been uninterested in them.
‘Debates of the Senate, 1st Sess., 32nd Parl. (3 Nov. 1983) 6131.
2Report of the Royal Commission on Security (Abridged) (1969) 21.
3Prime Minister’s Press Conference, December 9, 1977. Quoted in: Commission of Inquiry
Concerning Certain Activities of the Royal Canadian Mounted Police, Second Report, Freedom
and Security under the Law, Vol. 2 (1981) 1006.
McGILL LAW JOURNAL
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From 1966 to 1968 the House of Commons spent 280 hours debating se-
curity issues. As in a year there are something under 400 hours available
for government business, the total allotted to security represents more than
half the Government’s time for one annual session. This is no small total
for the thirteen year period, and not many programmes would greatly exceed
it. Debates were, however, concentrated on only a few topics. About half of
the total was over the Spencer and Munsinger issues of 1966, and the 1970-
1 debates on the invocation of the War Measures Act and the subsequent
Public Order Act. The third large chunk was the security issues of 1977-8. 4
Parliamentary discussion, in short, has been spotty and partial. Some
issues have been flogged to death, and others ignored. The House of Com-
mons has never debated the exhaustive and important report of the recent
Commission of Inquiry (the McDonald Commission). In fact, the report
has not even been tabled in Parliament. Debate, questions and committee
consideration have concentrated on a few, usually minor, questions without
touching on the fundamental problems. There has never been a full debate
on security matters, and the government has never publicly informed Par-
liament of the policies, programmes and activities of the security branch.
The McDonald Commission made the first systematic review in Canada’s
history of the legislative mandate and control structure for security matters.
The Government’s response to this was Bill C-157, An Act to Establish the
Canadian Security Intelligence Service, which has recently been reviewed
by a committee of the Senate chaired by Michael Pitfield. More recently,
on January 18, 1984, the Government tabled Bill C-9, An Act to Establish
the Canadian Security Intelligence Service, to enact an Act respecting en-
forcement in relation to certain security and related offences and to amend
certain Acts in consequence thereof or in relation thereto. There are now,
then, three different authoritative views on parliamentary control of security
activities: the Commission’s, the Government’s, and the Committee’s.
I. The McDonald Commission
The McDonald Commission concluded that Canada needed a civilian
security agency outside the R.C.M.P.:
The agency should be established by an Act of Parliament. That Act should
define the organization’s mandate, its basic functions, its powers and the con-
ditions under which they may be used, and its organizational structure. It
should also provide for its direction by government and for independent review
of its activities. The statutory definition of its mandate should define the types
4See C.E.S. Franks, Parliament and Security Matters (1980) 22-8.
1984]
COMMENT
of activity constituting threats to the security of Canada to which the intelli-
gence collection work of the agency must be confined. There must be no un-
disclosed additions to this mandate by the agency itself or by the executive
branch of government, whether such additions be inadvertent or deliberate.’
The Commission proposed that responsibility for overseeing the im-
plementation of the security organization’s statutory mandate should rest
with the Prime Minister and the Cabinet, while ministerial direction should
be the responsibility of the Solicitor General. In resolving the problem of
how much the Minister should know, the Commission concluded that his
responsibility “must extend to the policy of operations. He must have knowledge
of all investigative techniques and liaison arrangements. Difficult or sen-
sitive operational decisions must not be kept from the Minister but, on the
contrary, brought to him for decision and, if necessary, taken by him in
turn to the Prime Minister or Cabinet. ‘ 6
Activities which potentially transgressed the law or affected the rights
and privacy of citizens needed to be clearly controlled. The Commission
felt that the security service’s choice of targets must be guided by the in-
telligence priorities set by the Cabinet, and that they must be within the
catego-ies which Parliament has authorized as proper subjects for the se-
curity agency’s surveillance. “[I]nvestigations involving the most intrusive
techniques of investigation, deep cover human sources and undercover agents,
the interception of private communications and the surreptitious entry and
search of premises must be undertaken only after approval by the Director
General of the agency and the Solicitor General and on the basis of well-
defined standards of necessity.”‘ 7 The legality of proposed investigations
would have to be reviewed by a member of the Department of Justice. “In
addition to ministerial approval, the use of certain aural and visual sur-
veillance techniques, mail checks, surreptitious entry of private premises
and access to confidential personal information in government files should
require judicial warrants. The role of the judge is to ensure that the standard
set down by statute for the use of these techniques has been met.”‘8
To guard against the use of a security agency for partisan political or
personal reasons, which the thoroughness of ministerial direction and con-
trol proposed by the Commission made a possibility, the Commission de-
cided “the Director General should have by statute some security of tenure
for his term of office, and he should have direct access in urgent situations
to the Prime Minister and to an independent review body. Also, the leaders
5Commission of Inquiry Concerning Certain Activities of the Royal Canadian Mounted
Police, Second Report, Freedom and Security under the Law, Vol. 1 (1981) 423.
6Ibid., 424.
71bid., 424-5.
sIbid., 425.
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[Vol. 29
of parliamentary parties should be consulted on the appointment of the
Director General.” 9
According to the Commission, “[tihe secrecy of intelligence operations,
their lack of exposure to judicial examination and comment, the danger to
civil liberties of excessive surveillance, and the record of past wrong-doings,
all point to the need for an effective review of security operation by persons
independent of the government of the day.”‘ 0 The proposed review structure
was complex. An Advisory Council on Security and Intelligence “would
carry out a continuous ex post facto review of the agency’s activities, fo-
cussing on their legality and propriety. It would have no executive powers
but would report on an advisory basis to the Solicitor General. It would
also report to a joint standing committee of Parliament and, at least an-
nually, issue a public report.””lI The Advisory Council would help the Sol-
icitor General to encourage wider public discussion and study of security
issues than in the past.
Active oversight by Parliament was, the Commission felt, an essential
part of the control system:
Parliament requires an enhanced capacity to scrutinize security and intelligence
activities. The necessarily secret nature of these activities makes it impossible
for Parliamentary scrutiny to be exercised effectively through any mechanism
other than a small committee whose members either include the party leaders
or are selected by them. This Committee’s effectiveness will depend on its
capacity to develop and maintain the confidence of all parliamentary parties,
as well as that of the government and the security agency. The scope of the
scrutiny exercised both by the Joint Parliamentary Committee on Security and
Intelligence and by the Advisory Council on Security and Intelligence should
extend to the activities of all those intelligence collecting agencies and de-
partments of the federal government whose activities involve the use of covert
techniques of investigation. If independent and parliamentary review focusses
solely on the security intelligence agency, there is a danger that a government
might, wittingly or unwittingly, circumvent this scrutiny by assigning surveil-
lance tasks to other agencies.’ 2
The Commission found that in the past the ability of Ministers to
answer questions in Parliament was limited because: “first, Ministers did
not have sufficient knowledge of the operational policies and practices of
the R.C.M.P. Security Service, and second, Ministers lacked means of en-
suring that answers to parliamentary questions about the Security Service
supplied by the R.C.M.P. were accurate, complete, and understandable by
91bid., 425.
IIbid., 425.
“Ibid., 425-6.
12Ibid., 426.
1984]
CHRONIQUE DE LEGISLATION
the audience to which they were addressed.”‘ 13 With the changes proposed
by the Commission for strengthening internal government control, “Min-
isters will at least possess the knowledge to answer questions about security
intelligence activities asked in the House of Commons. Of course, because
of the need for secrecy with respect to many aspects of security operations,
they may not choose to divulge in public some of the information which
they have: but such non-disclosure will be of their own choosing and not
because the information is kept from them by the security organization. To
insist that this condition be realized is to demand nothing more than that
a fundamental principle of responsible government be applied to security
intelligence activities undertaken on behalf of the Government of Canada.”‘ 14
The Joint Parliamentary Committee proposed by the Commission was
to be a small one, of not more than ten members. Parliamentarians on the
Committee should be ones whose commitment to Canada’s democratic
system of government is unquestionable and who have “the confidence of
the recognized parties in Parliament, the leaders of opposition parties should
personally select members of their party and, if possible, serve themselves
on the Committee.”‘ 5 The Committee must have much more continuity in
membership than most parliamentary committees, and would conduct most
of its investigations in camera, unlike normal parliamentary practice. The
Committee could, like British Parliamentary Committees, publish an edited
record of its in camera proceedings. The Commission found that its “own
experience suggests that such a procedure can produce a record that retains
an account of the important policy issues while editing out references to
specific sources, targets or organizational features, which might damage se-
curity.”’16 This would help to inform the public and “[iunformed public
criticism of government is essential to democracy. In the final analysis …
security must not be regarded as more important than democracy, for the
fundamental purpose of security is the preservation of our democratic system.” 7
The Commission recognized that the Committee would face problems
because of the dominant role of adversarial partisan politics in Parliament:
Participation in in camera sessions by members of opposition parties raises
the prospect of reducing their freedom to criticize the government’s handling
of intelligence and security matters. Reluctance to compromise their right to
criticize the government was a factor, on occasions in the past, which inhibited
Leaders of the Opposition from accepting invitations from Prime Ministers to
be briefed on some security matter. We can see no tidy solution to this problem.
13Commission of Inquiry, supra, note 3, 895.
’41bid., 896.
15Ibid., 897.
‘6Ibid., 901.
171bid., 901.
McGILL LAW JOURNAL
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Knowledge brings with it the burden of responsibility to respect the conditions
under which the knowledge has been provided. The alternative is to provide
no authorized means of informing opposition members about significant in-
telligence and security matters, and to continue to leave them dependent on
unauthorized leaks of information. We think that almost total dependence on
leaks is undesirable: leaks of information are likely to be organized by dis-
gruntled members of the security intelligence organization or by hostile intel-
ligence agencies.’ 8
The concern of the opposition over receiving false goods in briefings
by the Government is not misplaced: the Government in 1977 claimed that
all activities of the R.C.M.P. took place within the law, only to be proven
incorrect. 19 Regardless of whether the R.C.M.P. misinformed the Govern-
ment, or the Government deliberately misinformed Parliament, the point
remains that any private briefings or assurance the opposition received would
have misled and muzzled them to the detriment of their effectiveness in
scrutinizing and controlling the Government.
On the other side of the coin, the Commission noted that there was a
possibility:
[O]f members of the Committee leaking information for partisan purposes to
embarrass the government or to obtain publicity for themselves or their party.
A minimum amount of realism about the role of partisanship in democratic
politics makes it necessary to acknowledge this risk. We are not in a position,
and we doubt that anyone else is, to be categorical about the extent of this risk
in the context of Canadian politics. However, we are not aware of evidence
which could indicate that members of the Canadian Parliament are so much
more partisan and so much less trustworthy than are members of the United
States Congress or the Bundestag of the Federal Republic of Germany who
serve on security intelligence oversight committees. 20
Members of Parliament, unlike members of a security service, live in
a world of publicity and public discussion. The risk of divulgence of con-
fidential material, if even inadvertently, is constantly present. The “Mun-
singer Affair” was made.public in this way. 21
Parliament, particularly through the activities of the new Committee,
would, the Committee hoped, be the main vehicle for reducing secrecy and
encouraging public discussion. This was essential because:
[T]he main sources of ‘information’ for most Canadians are newspaper dis-
closures of ‘spy scandals’ and popular works of fiction. Public discussion of
Canada’s internal security arrangements tends to be dominated by two groups
who advance positions at two extreme poles: those who contend that the threats
18Ibid., 900.
19Franks, supra, note 4, 11-39, especially 30-I.
20Commission of Inquiry, supra, note 3, 902.
21H.C. Debates, Vol. 2 (Mar. 4, 1966) 2211. See also Franks, supra, note 4, 43.
1984]
COMMENT
to security are so serious that the wisest course is to disclose as little information
as possible about the measures taken to counter these threats and those who
that Canada is so fortunately immune from threats
contend just the opposite –
to its security that there are no secrets worth keeping. We think that both of
these groups are wrong. There are serious threats to the security of Canada but
they are not so serious as to prevent a reasonable amount of informed dis-
cussion about the nature of these threats and the measures necessary to protect
Canada against them.22
II. Bill C-157
The report of the McDonald Commission was made public in August,
1981. The Government’s response, Bill C-157,AnAct to Establish the Canadian
Security Intelligence Service, was introduced in Parliament in May, 1983.
In between there was no debate or even discussion in the House of Commons
of the Commission’s report, nor has there been yet. Furthermore, Bill C-
157 has yet to be considered by the Commons.
In its broad lines, Bill C-157 supported the main recommendations of
the Commission. The security service was to be outside the R.C.M.P. (In
fact, the Government had begun the process of extracting the service from
the R.C.M.P. and creating a civilian service long before the legislation was
introduced. The Government had also appointed a Director to the agency
without doing as the McDonald Commission recommended and consulting
with the Leader of the Opposition.) It was to have a legislative mandate
which defined the scope of its activities and powers. Many significant aspects
and details were different, however. This was particularly true for the struc-
tures and processes of control, where the Government’s proposals were
much weaker than those recommended by the Commission.
The Bill, like the Commission’s report, required that members of the
security service would have to obtain judicial warrants before intercepting
communications, trespassing, or installing electronic surveillance devices.
However, the test for obtaining these warrants was less exacting than that
proposed by the Commission, and ignored the Commission’s proposals for
the protection of persons and property.2 3 More important for parliamentary
control, where the Commission had recommended that the approval of the
Minister must be obtained before these intrusive methods of investigation
be used, Bill C-157 rejected this approach and left the final responsibility
with the Director of the Service, who would consult with the Deputy Minister24
22Commission of Inquiry, supra, note 3, 905.
23An Act to Establish the Canadian Security Intelligence Service, Bill C-157 (First reading,
May 18, 1983), 1st Sess., 32nd Parl. (Canada), 22-6.
24Ibid., ss 6-7.
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[Vol. 29
Section 21(1) of the Bill further weakened the controls by establishing
that “[t]he Director and employees are justified in taking such reasonable
actions as are reasonably necessary to enable them to perform the duties
and functions of the Service under this Act.” Whether these reasonable and
reasonably necessary actions were unlawful or not was left to the Director
to decide.
The role proposed for the Solicitor General in Bill C-157 was extremely
limited. The security service was under the control and management of the
Director, not the Minister, although the Minister “may issue general direc-
tions in writing to the Director,” with which the latter “shall comply. ’25
However, the Minister was not empowered to override the decision of the
Director on “the question of whether the Service should collect or disclose
information or intelligence in relation to a particular person or group,” or
“the specific information, intelligence or advice that should be given by the
Service to the Government. ‘ 26 The Minister was not, in contradiction to
the Commission, to have full power of direction over the agency. Instead,
the Director was to have a substantial autonomy and independence, with
the Minister’s role limited to general policy directions. The Government’s
proposal would severely hamper the Minister’s capacity to answer questions
in the House and his responsibility for those answers. It would, as Peter
Russell has said, elevate plausible deniability into a statutory principle.27
The argument against ministerial control over the security service is
that politicians would use the service for partisan or personal ends. However,
neither the McDonald Commission nor anyone else has claimed that this
is a problem in Canada, unlike the serious weaknesses in control of the
service by politicians, and the lacunae in responsibility and accountability.
The Government’s proposals here were in direct contradiction to a fun-
damental principle asserted by the Commission.
This weakening of ministerial responsibility was, in Bill C-157, repeated
in a weakening of other external controls. In place of the Advisory Council
on Security and Intelligence proposed by the Commission, the Government
offered a two-tiered system. An Inspector General, responsible to the Deputy
Minister, would review the operational activities of the security service. The
Director would submit annual reports to the Minister, and the Inspector
General would certify whether he was satisfied with the report, and whether
the service had acted unlawfully or engaged in unreasonable or unnecessary
exercise of its powers.28
251bid., ss 6(1) and 6(2).
26Ibid., s. 6(3).
27Russell, The Proposed Charter for a Civilian Intelligence Agency: An Appraisal (1983) 9
Canadian Public Policy/Analyse de Politiques 326 (September).
28Supra, note 23, s. 29.
19841
CHRONIQUE DE LEGISLATION
The second tier was a Security Intelligence Review Committee,29 con-
sisting of three Privy Councillors, not members of the Senate or House of
Commons, appointed after consultation by the Prime Minister with the
Leader of the Opposition and the leaders of each party having at least twelve
seats in the House. This Committee would review the reports of the Director,
the certificates of the Inspector General, and the general directions of the
Minister. The Committee would have extensive powers, both to order in-
vestigations by the Director and to make its own investigations. The Review
Committee must report annually to the Minister, and the Minister in turn
must table these reports in Parliament.
No mention was made in Bill C-157 of review by the parliamentary
committee, although the rules of the House would require the reports to be
forwarded to the appropriate committee of the Commons, which for the
security service would be the Standing Committee on Justice and Legal
Affairs.
cabinet documents –
This control structure was weaker than that proposed by the Commis-
sion in several respects. First, neither the Inspector General nor the Review
Committee were to have access to confidences of the Queen’s Privy Council
even though these were under the control of the
–
security service. 30 Second, the review agencies only looked at the activities
of the security service, and it is possible that a government in attempting
to elude control could arrange that other agencies, such as the military, the
R.C.M.P., or the National Research Council, would do their dirty work in
security. Third, control by Parliament would be weaker not only because
the Solicitor General would not be answerable on many vital questions, but
also because in place of the strong parliamentary committee proposed by
the Commission, the Government had substituted a weak and optional
review by a standing committee whose main interests were in other fields.
The report to Parliament by the Security Review Committee and Minister
would likely be skimpy, and inadequate to encourage the sort of public
discussion envisaged by the Commission. Committee review, even if in
camera, would not be much of an improvement. The McDonald Commis-
sion.had discovered that review by the Justice and Legal Affairs Committee
was not satisfactory:
[T]hat Committee is too large, its membership too fluctuating and its proce-
dures too restrictive of the time which each of its members has to raise ques-
tions and pursue a line of inquiry. Our examination of the record of that
Committee’s in camera meetings in 1977, when public disclosures had focussed
attention on the R.C.M.P., indicated the inherent difficulties faced by such a
committee when it comes to inquiring about policy issues arising from security
29Supra, note 23, ss 30-50.
30Supra, note 23, ss 28(3) and 28(4).
McGILL LAW JOURNAL
[Vol. 29
intelligence activities. Most of the time at these meetings was spent receiving
the views of security officials and members of the R.C.M.P. While what they
said was educational, most of it could have been, and indeed has been, stated
in public.
3’
The Government had considerably altered the structure of ministerial
responsibility and parliamentary accountability proposed by the Commission.
III. The Senate Committee
The Senate Committee, chaired by Michael Pitfield, reviewed Bill C-
157 and reported in November, 1983.32 It supported the main elements of
the Government’s proposals, including the creation of a civilian Security
Intelligence Service. It also, however, proposed more stringent controls. It
suggested improvements to the wording of the clauses of the Bill describing
primary functions and mandate. The conditions necessary to satisfy a judge
before the issuance of a warrant for the use of intrusive investigative tech-
niques proposed was more in line with the McDonald Commission than
Bill C-157 was. To resolve the problems of the standard of double reason-
ableness in section 21 (or should it be a double standard of reasonableness?),
the Committee recommended that section 21 (1) be replaced with a provision
that deems security agents, acting in the performance of their duties, are
peace officers under section 25 of the Criminal Code. This would allow
agents in such situations to avail themselves of whatever protection peace
officers have at common law.
The Committee agreed with the division of responsibility in section
6(2), that the security service be placed under the control and management
of a Director, subject to general directions from the Minister, but disagreed
with section 6(3) which prevented the Minister from overriding the Director.
The Committee felt the Minister should not be insulated to too large a
degree from operational matters, but should have responsibility much like
the relationship between other Ministers of the Crown and independent
agencies. The Minister should “have full political responsibility for matters
about which he reasonably can be expected to have knowledge.” 33
The Inspector General, the Committee felt, should have access to Cab-
inet documents relating to the security agency. The Committee supported
the idea of the Review Committee, and in fact proposed increasing its mem-
bership and powers, and improving the method of appointment. It hoped
that the Review Committee’s reports would ensure adequate debate, and
31Commission of Inquiry, supra, note 3, 896.
32Special Senate Committee on the Canadian Security Intelligence Service, Report – Delicate
Balance: A Security Intelligence Service in Democratic Society (November 1983).
33 Ibid., para. 83.
19841
COMMENT
bring issues of policy and impropriety into focus for parliamentary and
public discussion.
The Committee agreed with the Government, and disagreed with the
McDonald Commission, on the issues of a special parliamentary committee
on security. Such a committee was undesirable because it would duplicate
the work of the Review Committee, and would be subject to the vagaries
of time, changes in membership, and overwork. It might also have problems
in maintaining the security of information both because of partisan moti-
vations of its members, and because there was a “general question of whether
that type of committee can maintain the requisite confidentiality by reason
of the nature of its proceedings. ‘ 34 The Committee’s final recommendation
was:
Because legislation in this area will be of such import, and will introduce into
the security intelligence system several entirely new elements, we recommend
that a parliamentary committee be empowered to conduct a thorough review
of the operation of the legislation after a period, perhaps five years, of expe-
rience with it. Such a review would go a considerable way toward ensuring
that the legislation is working as Parliament intends it to operate.35
Conclusions
Much of the public discussion of Bill C-157 has centred around whether
Canada really needs a security service, and whether such a service should
have unusual powers. Both of these questions the Senate Committee, like
the Government and the McDonald Commission, answered in the affirm-
ative. These are not really in dispute, and whether or not Bill C-157, or
something like it, becomes legislation, Canada will have a security service
and it will exercise extraordinary powers. The challenge is to reconcile this
agency and its activities with democracy. The proposals of the Committee
go a long way towards correcting the flaws in Bill C-157. The major issues
remaining are, first, the extent to which the agency should be independent
of the Government; second, the role of Parliament and particularly parlia-
mentary committees in controlling the agency; and third, whether the con-
trol system should extend to all security activities, or be limited to the one
agency.
In my view, the Commission was more correct than the Committee on
the first issue. The Minister should have full responsibility and answerability
for security activities. He would, of course, still have the right to refuse to
answer parliamentary questions because to do so would not be in the national
interest, but he could not plead ignorance as an excuse.
34Ibid., para. 100.
35Ibid., para. I 11.
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On the question of a special parliamentary committee, I feel the Senate
Committee is more likely correct. There would be difficulty in making such
a committee function effectively. This is the conclusion I reached in my
study for the McDonald Commission. 36
On the third issue, the scope of review, the Committee made no pron-
ouncement. The Commission is surely correct here in proposing a broad
mandate, so that all security activities, not just those of the special agency,
are scrutinized.
One last point must be emphasized. So far, the House of Commons has
not debated either the report of the McDonald Commission or Bill C-157.
It will have to do so soon. The Government has acted as though it is scared
to death of Parliament, and that Members are mischievous, naughty little
boys who can’t be trusted with serious issues like security. But the legislation
will have to get through the House. The sooner the Commons is allowed
to debate the problems of security, and examine them in depth in committee,
the sooner a basis of understanding will be created in Parliament that will
permit a security agency to operate within the law and be controlled by
Parliament. It would also hasten the House of Commons’ serious consid-
eration of the issues. Parliament, not just the Government, will have a final
say on both the legislation in general and the question of a special parlia-
mentary committee in particular.
On January 18, 1984, a new version of the Bill, C-9, An Act to Establish
the Canadian Security Intelligence Service, to enact an Act respecting en-
forcement in relation to certain security and related offences and to amend
certain Acts in consequence thereof or in relation thereto, received first read-
ing in the House of Commons. It is substantially changed from Bill C-157,
and adopts most of the recommendations of Senator Pitfield’s Committee.
Ministerial control and accountability in particular have been strengthened.
However, it is not likely that the Bill will get through Parliament in
this session, or possibly ever. The N.D.P. are implacably opposed, while the
P.C.’s have decided not only that the Bill is unacceptable in its present form,
but also that they might conclude that the security service should remain
within the R.C.M.P. With an election coming soon, the Liberal Government
is not likely to push a piece of legislation that will arouse the ire of both
opposition parties and of civil liberties groups as well. This leaves the se-
curity service in an unfortunate position, with an important job to do but
no legislative mandate. The Government must accept the responsibility for
36Franks, supra, note 4, 67.
1984]
CHRONIQUE DE LtGISLATION
339
this problem, which in large part is a direct consequence of its failure to
educate the House of Commons by refusing to allow it to examine in Com-
mittee the report of the McDonald Commission or the proposed legislation.
Whether a Progressive Conservative Government would be more successful
in resolving the conflicts between ideals and necessities remains also to be
seen.
