Letter to the Chair of the Standing Committee on Public Safety and National Security

Date of Publishing:

The Honourable Jean-Yves Duclos, P.C., M.P.

Chair

Standing Committee on Public Safety and National Security

House of Commons

Dear Mr. Chair: 

Following its second reading in the House of Commons, Bill C-12, the Strengthening Canada’s Immigration System and Borders Act, has been referred to the Standing Committee on Public Safety and National Security (the “Committee”) for further study.

As Chair of the National Security and Intelligence Review Agency (NSIRA), I am pleased to present the following submission on Bill C-12 and trust it will assist the Committee in its important work. On behalf of NSIRA, we welcome the opportunity to provide comment on this Bill, and I, along with Vice-Chair Craig Forcese, remain available to meet with the Committee and its members at your convenience.

Expanded powers require well-resourced independent review

It is vitally important that expanded national security and intelligence powers are matched with robust, well-resourced independent review and accountability. This principle is fundamental in a free and democratic society.

Bill C-12 creates new, and expands existing, government powers related to national security and intelligence. The resulting operations and activities will have impacts on Canadians and, consequently, significant implications for NSIRA’s work. NSIRA’s aperture—in terms of the activities we must scrutinize—will expand at the very moment we face budget reductions under the government’s expenditure review.   

This correlation is the inverse of what it ought to be; expanded powers must be symmetrically matched by well-resourced independent review. My core concern is that without proper resources, NSIRA’s ability to conduct effective, timely, and necessary reviews and investigations of public complaints will be at risk. 

Canadians expect accountability, transparency, and effectiveness

Canadians need to trust that their government institutions act within the law, particularly when it comes to national security and intelligence activities which are largely shielded from public view.

NSIRA’s ability to provide this critical assurance to Canadians will be compromised if the expansion of government activities contemplated in Bill C-12 is not accompanied by a commensurate increase in resources for the organization charged with scrutinizing those activities.

Created in 2019, NSIRA is an independent and external review body mandated to review and investigate Government of Canada national security and intelligence activities to assess whether they are lawful, reasonable and necessary. As such, NSIRA plays a key role in supporting the rule of law. Our mission is to serve as the trusted eyes and ears of Canadians, with a view toward ensuring accountability, transparency and effectiveness across the national security and intelligence community. This is what Canadians expect and what they deserve.

Bill C-12 expands the government’s national security footprint

Bill C-12 expands the government’s reach with respect to certain activities related to national security and intelligence, creating more work for NSIRA.

Among other things, the Bill:

• Expands the powers of the Canada Border Services Agency (CBSA), giving its officers the ability to access and examine export goods in locations—such as warehouses and transportation hubs—where they previously may not have been able to do so.
• Establishes new national security-related activities for the Canadian Coast Guard, to include security patrols and the collection, analysis and disclosure of information or intelligence. 
• Expands the discretion of Immigration, Refugees and Citizenship Canada (IRCC) and its responsible minister, in certain matters related to immigration and asylum processing, including the cancellation, suspension, or modification of existing immigration documents when such action is determined to be in the public interest.
• Creates new, and expands existing, legal authorities for the sharing of information by IRCC with federal, provincial and territorial partners.
• Amends regulations related to combatting terrorist financing, including with respect to compliance and enforcement.  

NSIRA will be called upon to do more as a result of C-12

Many of the changes brought by Bill C-12 involve entities and activities which have been, and will be, subject to NSIRA review. Equally, an uptake in departmental operational activities correlates to increases in the number of public complaints received, and corresponding work for NSIRA in terms of providing timely access to justice. In both cases, NSIRA’s existing resources will be strained.

Since 2019, NSIRA has reviewed an array of CBSA activities, including its use of biometrics, its handling of human sources, and its programs for the advance screening of air travelers. This work has resulted in a series of findings and recommendations that hold the CBSA to account and ensure that its activities comply with the law.

Today, border security is at the top of mind. The CBSA’s expanded powers in Bill C-12—in addition to the declared priorities and associated financial commitments of the government more broadly—underscore that its role, and footprint, is set to expand. The CBSA is set to do more. This means NSIRA must also do more. Canadians must have confidence that the CBSA’s expanding powers are being exercised lawfully and reasonably.

Parliament has also recently entrusted NSIRA with the responsibility of investigating complaints from members of the public against the national security related activities of the CBSA. This is expected to be a significant workload. Any expansion of the CBSA operational footprint, as proposed here, will proportionally increase NSIRA’s responsibilities in this regard.

While Bill C-12 expands CBSA’s existing national security responsibilities, it also creates entirely new ones for the Canadian Coast Guard. Of particular relevance to NSIRA is the intelligence function—the ability to collect, analyze and disclose information related to national security. Such activities are at the heart of what the intelligence community does, and therefore at the core of what NSIRA reviews.

The Canadian Coast Guard is a special operating agency within the Department of National Defence (DND). Over the past several years, NSIRA has reviewed various intelligence activities carried out by DND (along with the Canadian Armed Forces); as a large and complex organization, the scope and scale of these activities is significant. Bill C-12 adds another arm to this apparatus, one that will similarly extend NSIRA’s responsibilities for review. How the Canadian Coast Guard interprets and operationalizes its new mandate will have impacts on Canadians. Drawing on its experience and expertise reviewing similar activities, NSIRA is uniquely positioned to assess those impacts.

How a mandate is exercised—particularly when significant discretion is afforded by enabling legislation—is of perennial concern, given the implications for those affected and Canadian society at large. Bill C-12 extends the discretionary authority of IRCC and its responsible minister to make consequential decisions regarding Canada’s immigration system.

National security is one, among many, considerations engaged in assessing immigration applications and asylum claims. NSIRA has reviewed elements of IRCC’s enforcement of section 34 of the Immigration and Refugee Protection Act, which covers inadmissibility to Canada on security grounds. Similarly, future appeals to national security in the context of Canada’s immigration system—whether under provisions created by Bill C-12 or during other activities by IRCC and its partner agencies—will benefit from NSIRA’s expert, independent voice and its concomitant ability to assess the reasonableness and necessity of the government’s actions.

Here as well, more departmental activity will proportionally increase NSIRA’s workload with respect to public complaints. NSIRA receives complaints related to security screening in the immigration context. At the moment, immigration related complaints are at an all time high and NSIRA is busy diving into the systemic issues in the context of dozens of investigations.

Relatedly, Bill C-12 extends IRCC’s ability to share information, including personal information, with partners at other levels of government in Canada. NSIRA has experience and expertise in this area. For example, NSIRA is required to review, on an annual basis, the government’s compliance with the Security of Canada Information Disclosure Act (SCIDA), and regularly assesses information sharing in the context of other national security and intelligence activities. As such, NSIRA understands the implications of information sharing and the broader legal architecture within which it occurs. NSIRA’s 2023 SCIDA Report noted that approximately 96% of all disclosures that year—252 out of 263—were from IRCC. New information sharing provisions for IRCC will require assessment by NSIRA.

For similar reasons, NSIRA takes note of Bill C-12’s amendments to regulations against terrorist financing. While these amendments pertain primarily to the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, they simultaneously exist within the broader constellation of legislative, policy and enforcement mechanisms intended to combat illicit financial transactions. Here, too, NSIRA has done important work, for example our recently published review of how the Canada Revenue Agency conducted audits related to possible terrorist financing in the charitable sector. NSIRA also recently announced a review of the information sharing practices of the Financial Transactions and Reports Analysis Centre of Canada (FINTRAC). Of note, many of the anti-terrorist financing amendments in Bill C-12 implicate—indeed, expand the role of—FINTRAC, again underscoring the task ahead for NSIRA’s resources as we grapple with these and other changes.

In addition to the above, there is also the broader shift which sees organized crime as, increasingly, a core national security concern. The associated reorientation and expansion of government powers, of which Bill C-12 is an example, will require independent scrutiny in line with what Parliament saw as indispensable to our democracy when it created NSIRA.

Under-resourced independent review risks core Canadian values

I am concerned that the expansion of government powers in Bill C-12—in addition to parallel commitments to increased funding for security, intelligence, and defence activities—comes at the very moment NSIRA faces potential budget reductions. This poses a direct risk to Canada’s system of accountability.

As a micro-organization, the practical realities of a reduced budget would be significant on NSIRA. It would not only severely limit our ability to scrutinize the new government activities proposed here but also jeopardize our capacity to sustain current outputs. Effective independent review should not be a discretionary expense. If treated as such, Canadians will receive less assurance at the very time government powers are expanding. We know that this is a concern for Canadians.

We live in a moment of significant geopolitical change. Challenges abound. Canada must meet those challenges without sacrificing its core Canadian values. In a democracy, power must be accountable; operations must be balanced by review and oversight, especially when they are conducted in secrecy. History has taught us that a significant imbalance can lead to declining rigour, crises, and erosion of public confidence in institutions.

We must build our national security on its proper foundation: the rule of law. This is, after all, what distinguishes us as a free and prosperous society.

I thank you for taking the time to consider this submission.

Sincerely, 

The Honourable Marie Deschamps, C.C. 
Chair, National Security and Intelligence Review Agency

cc         Andrew Wilson, Clerk, Standing Committee on Public Safety and National Security