Effective Security and Legitimate Dissent: Striking the Balance in a Democratic Society

MR. DERRY:

Distinguished Past Presidents, members, and honoured guests of The Empire Club of Canada: A favourite pastime for many of us is reading spy novels such as those written by Le Carre, Robert Ludlum, Frederick Forsyth, and many others. In these novels, the reader easily relates to the hero and tends to take for granted the means used to accomplish necessary ends.

Yet, in real-life situations, such as those in the 1970s, when our own RCMP Security Service was apparently routinely breaking laws, and without authorization opening mail, planting bugs, and surreptitiously entering premises, in these reallife situations, we are appalled by evidence of such indiscriminate misuse of authorized and use of unauthorized powers. It is one thing to see such powers applied against a fictional established enemy, but quite another to contemplate them being used illegally and erroneously against you or me.

The Macdonald Royal Commission investigated these situations and in 1981 made its report, which was far from complimentary of the practices followed. To address the problems noted, our guest speaker unveiled plans last May for a civilian security agency - the Canadian Security Intelligence Service - as a successor to the RCMP Security Service. One might have expected such a step to result in loud applause, but the result was more akin to that of stirring up a hornet's nest.

For instance, the provincial attorneys general, as a group, described the Bill as a "massive threat to the rights and freedoms of all Canadians." The feeling was that the Bill was an improvement on the vacuum that currently exists, but that it was seriously flawed in the degree of civil liberties that would be traded off for national security.

Since last spring, the Bill has been reviewed by a Senate Committee chaired by Michael Pitfield. Earlier this month that Committee tabled its report and recommendations as to how the Commons Bill could be improved.

At this particular turning point in considering the proposed Canadian Security Intelligence Service, who better could we have to comment on it than the person who put forward the legislation in the first place - Solicitor General Robert Kaplan.

Mr. Kaplan was first elected to Parliament in 1968 and has represented the riding of York Centre since 1974. He has been Solicitor General of Canada since March 1980, with responsibilities that include the RCMP, the Correctional Service of Canada, and the National Parole Board. His experience prior to his election to Parliament included practising corporate and tax law in Toronto with MacDonald, Davies, and Ward and then with Aird and Berlis. From 1972 to 1974, he worked with the Hudson Institute of New York.

I am pleased to welcome the Honourable Robert Kaplan, Solicitor General of Canada, to address us now on the subject "Effective Security and Legitimate Dissent: Striking the Balance in a Democratic Society."

MR. KAPLAN:

Mr. Chairman, ladies and gentlemen: In a few weeks, I'll be bringing forward the government's proposals for the establishment of the Canadian Security Intelligence Service, modified in the light of the substantial public debate that has taken place, and of the representations made to me and

to the Senate Committee which studied the Bill, and of that Committee's report. My recommendations are currently before Cabinet.

The public debate begun last May has been valuable to Canadians. Two Royal Commissions have recommended that the existing Security Service of the RCMP be reorganized and set within an entirely new framework of safeguards and controls. We have also been determined, as a government, that this be done by legislation, with full parliamentary involvement. This contrasts with Canada's past approach and with the approach of every other country, where important parts of the powers and duties of the national security forces are covered by shadows and not disclosed to anyone outside the intelligence community.

Involving Parliament, and through Parliament, the public, has meant exposing more than has ever been exposed before of the existing threats to our national security, which are largely from the hostile activities here of foreign governments, their agents and proxies, and from international terrorist organizations. I believe that the threats are increasing, both in volume and sophistication. In statements and speeches, I've given examples of the threats as I see them. Such threats are unfortunate facts of modern life, from which Canada is not immune. The government must have effective security intelligence if it is to fulfill its responsibilities - these responsibilities are not only to recognize and deal with serious threats, but to stay out of, and protect from security surveillance, activities which are not threats. Also exposed has been something of the way in which a Security Service operates, of the need for secrecy, and the intrustive powers required to keep up with the clandestine and covert way in which threats to national security operate.

What has also been exposed is the great need for better and more formal controls over security operations, including external review and the need for strong safeguards of the privacy and freedom of individual Canadians who are not threats to national security.

The sole justification for a security intelligence agency is the preservation of a free society, where individual rights are secure. If we were to allow an overzealous agency to interfere with the right to privacy or to civil dissent, we would undermine the very values we seek to preserve.

I believe that national security deserves to be the concern of every Canadian, and that the government should seek to proceed with reform on the basis of public understanding and acceptance. How we deal with national security bears directly on the nature of our society and on our basic rights as Canadians.

What I am suggesting is that the issue at stake in Bill C-157 is an extraordinary one that goes to the very heart of our democratic society. And it warrants an extraordinary effort to bring the full resources of the democratic process itself to bear upon its consideration. That is why the Government of Canada has taken every step possible to encourage and promote an exhaustive examination of the issue. We began this public debate by trying to make it very clear that the Security Intelligence legislation, Bill C-157, was not to be taken as a definitive pronouncement carved in stone. As I said when the Bill was tabled in Parliament, it is vitally important that the proposals be subjected to a full and open discussion - not only within Parliament but also in the media and by the public in general. No final resolution can be arrived at until a consensus is achieved.

I would like to pay tribute to the late Walter Baker, M. P., for an early and important contribution to this debate at a moment of very considerable controversy over national security, and at a time when it appeared that the required second reading debate of the Bill would be very protracted and partisan. He suggested that the Bill be referred before second reading to a parliamentary committee for the summer so that they could focus on the real issues of national security and hopefully deal with the debate on a non-partisan basis. Walter was cognizant of the need to act in this field, and anxious to see an illuminating discussion that would be worthy of Parliament. While he had hoped for a committee of the House, we ended up with a committee of the Senate, chaired by Senator Michael Pitfield.

The Senate Committee provided an effective forum for public discussion, embracing a broad range of perspectives. The Committee encouraged the participation of any group or individual that expressed an interest, and they received a substantial response from several provincial attorneys general, the legal community, the police, civil rights organizations, political groups, and interested citizens from across Canada. The result has been a useful and constructive debate. So far as the Senate Committee was concerned, a consensus emerged on how to deal with national security - with only one senator dissenting, and that on only one of the dozens of recommendations. Senators, Liberal and Conservative, and coming from all regions of the country, were unanimous in their advice. To repeat my remarks from last May, a full and open discussion is the best assurance we can have that a new Security Service will operate in a manner appropriate to a democratic society. The Senate provided the first public forum in Canada's history for such a debate, and I am grateful to them for that.

The senators' goal, like that of the government, is to establish, through comprehensive legislation, an open and accountable intelligence system that fully reflects and is fully responsive to public concerns. This is a truly radical departure. It has no parallel in any system of government that I know of. The senators also endorsed the government's commitment to proceed now, recognizing that the present structure of national security is unsatisfactory.

Of course we do have a Security Service in Canada. It is a good one, staffed by hundreds of men and women who do a remarkably good job under very difficult circumstances. It has the respect of the security agencies of other countries; and while its effectiveness is sometimes questioned by the uninformed, its effectiveness was not challenged by the two Royal Commissions which studied it in great depth. But this service does not operate under a mandate authorized by Parliament; in other words, its job has not been clearly defined by your elected representatives through the democratic process. The powers that the service needs and the investigative methods it uses to do the job are in large part not clearly defined in law. There is no clear statutory code of procedure to control the use of the product of the most intrusive of those powers. And there is no provision at all for an independent review or examination of security intelligence operations. Our de facto approach to problems which have arisen so far has been a periodic, expensive, and lengthy royal commission.

Whatever may have been the approach in earlier times, the Government of Canada believes that this approach is no longer acceptable today. Security requirements are becoming increasingly complex, and so is the potential impact on individual rights and liberties. The time has surely come when these competing interests of national security and individual liberty must be balanced through our democratic process.

We are talking about a legislated mandate to reflect an acceptable definition of threats to national security, and a clear code to govern how the service should go about investigating such threats. But we are also talking about a legislated system of judicial control over the use of intrusive investigative powers; and a legislated system for monitoring and reviewing intelligence operations and procedures, with a statutory Review Committee reporting to Parliament. In fact, we are talking about a comprehensive system that defines the entire framework for security intelligence, where all aspects of management and control are open to independent scrutiny.

In a recent interview, Senator Pitfield suggested that no country in the world has ever tried to create such a comprehensive system. So we are really trying to break new ground here in Canada. This kind of pioneering enterprise is never an easy one; it would clearly be meaningless without full public participation at every stage. The kind of debate that we initiated last May, though controversial, is an essential part of a process designed to respond to public concerns.

I am aware of the suspicion which exists about our intentions in this Bill. I respect the concern, which the Senate Committee noted, that the service could find itself holding more power and more protection from prosecutions on wrongdoing than the government intended it to have, and having the right to investigate more activities than it should in a democratic society. I appreciate the worry that the minister could be kept in the dark, even under the new rules, contrary to what the government planned, and not have enough power as a minister to keep the service on the straight and narrow, and be accountable to Parliament for its shortcomings. I did not agree that all these concerns were justified by the language of the Bill.

The government's job and, in particular, my job is to find a constructive response to the scepticism and the concerns that people have expressed. It is not my job to tell you what your concerns should be, but rather to accommodate legitimate and reasoned concerns in our legislative proposals. There are many sides to any debate, and if we hope for a consensus to be reached, there must be a commitment on all sides to do some listening. And I would like to say that I have been listening. I have suggested that we are, in fact, approaching some sort of consensus. I think that we are at least arriving at a general agreement concerning the goals to be achieved by legislation in this area; Canadians acknowledge the need for effective security intelligence, and the need to provide a more accountable framework to safeguard the rights of individual citizens. This in itself is a considerable accomplishment, given the flurry of suspicions and accusations that burst forth last May.

But I think there is also agreement emerging on the broad outlines of they system for reaching those goals. Based on the Report of the Senate Committee and the reception it received, I would suggest that there is agreement, in very general terms, on at least six basic issues. They are: the separation of the Security Service from the RCMP; the reorganization of the service as a civilian agency; the essential condition of a legislated mandate; the need for judicial control of the service; the need for an external review of the service as a whole; and the need to continue and conclude this process expeditiously.

Concerning the first two points, I think that there is a fairly complete agreement. Two royal commissions, and now the Senate Committee, have stressed that security intelligence work is fundamentally different from law enforcement work. It requires specialized training, it involves different perspectives and procedures, and its objectives, which are to inform government, are fundamentally different. Both the law enforcement side and the security intelligence side will benefit immeasurably if we recognize this difference by separating them and treating them according to their specific needs and objectives.

Indeed, it has been emphasized that the present system is simply unfair to the RCMP. As a police force, the RCMP has earned one of the highest reputations in the world. But members of the Security Service are asked to operate under a mandate that has no public endorsement within a framework that works well for law enforcement but that is not designed for security intelligence operations. Given that they have no framework designed to help them do the job properly, under controls that lend legitimacy to their tasks and the way they carry them out, it is commendable that they have been able to maintain the high quality of their security work. They have done so through sheer dedication, and I think they deserve a better break in public opinion. A separate civilian organization will give them that break; it will enhance their continued efforts to maintain an effective security intelligence system; and it will allow the RCMP to get on with its traditional role in law enforcement, a role which, in fact, the government has proposed be enhanced in the area of national security crimes.

A legislated mandate, judicial control of powers, and effective external review are more nebulous. There is, I think, a general consensus that these issues must be addressed in legislation. But the details are still causing some furrowed brows. Debate continues on the precise definition of the mandate, the necessary conditions for effective judicial control, and the preferred system for external review.

The proposals offered in Bill C-157 on these and many other points have been the subject of sustained criticism. The Senate Committee recognizes in its Report that the basic structure of the Bill is sound but offers some concrete suggestions for dealing with its issues, and I, together with my colleagues, have been giving these suggestions very careful consideration.

I am optimistic that we have moved a long way toward consensus. I am confident that we have a workable framework; the Senate Committee recommendations are very useful. There can surely no longer be a question whether such legislation is necessary, and necessary in the near term. In fact, the Senate Committee urged that legislation "should be enacted in the near future." This is one of the many senators' recommendations which I support.

The appreciation of the audience was expressed by Terrence Tyers, a Director of The Empire Club of Canada.