Transparency and National Security: Striking the Right Balance

Notes for the Honourable Pierre Blais, Chair, Security Intelligence Review Committee

Conference on Transparency for the 21^st Century

National Library and Archives Building, 395 Wellington Street, Ottawa

Thursday, March 23, 2017, Panel at 2:30 – 3:45 p.m.

Good afternoon. Bon après-midi tout le monde. Il me fait plaisir d’être ici parmi vous aujourd’hui sur ce panel estimé au nom du Comité de surveillance des activités de renseignement de sécurité (le « CSARS ») avec les professeurs Wesley Wark et Lisa Austin, présidé par Me Chantal Bernier, au sujet de la « transparence et la sécurité nationale : viser juste. » I note that the overall focus of this conference was depicted as follows on its website:

“Freedom of information provides a solid foundation for healthy democracies and transparent governments around the world. National and economic security, human rights, indigenous rights, media and personal freedoms, and government accountability are all strengthened when information flows freely between governments and their citizens. Around the world, democratic governments are testing initiatives that open up their governments even further. There is a growing expectation that governments should be more transparent and keep pace with the rapid technological changes that make business and personal communication so immediate. Citizens are demanding enhanced levels of engagement and open door policies that mirror their ready access to knowledge, business intelligence and social networks.”

I see that this is last panel of the day, and of the conference itself. You’ve saved the best for last!

In that light, I am going to try to keep you awake with my remarks that are posed more in the form of questions, to encourage you to think about access to information in a different light on several fronts:

The first front is national security. I will speak about my views on how transparency and national security are not diametrically opposed notions, and a right balance can in fact be struck between the two.

The second front that I will question involves privacy of individuals, and in SIRC’s context, complainants before it, and how that fits in with access or freedom of information.

The third and final front I will address concerns the ease of access of information through electronic means. I will highlight what may be considered to be a dichotomy in the way many of us act in the 21^st century with our various gadgets, and the ease with which we share and receive information from around the world, all at our fingertips and within the blink of an eye.

1) National Security

The organization over which I preside, the Security Intelligence Review Committee, or SIRC, is subject, as is any other federal organization to the Access to Information Act, and we receive our share of requests for information, just like other departments and agencies, and we address them carefully. However, there are necessarily important limits as to the disclosure of classified information, for reasons of national security. Those limitations are enumerated in our enabling legislation, the Canadian Security Intelligence Service Act, in the Security of Information Act and in the Canada Evidence Act.

Having said this, however, transparency can still be achieved in the context of national security, albeit not exactly synonymous with access to information per se. What I mean by that is this: transparency does not mean that we can see everything. Rather, transparency can mean that there is a level of public trust towards expert review bodies in the national security context such as ours at SIRC, to do their job in reviewing and holding accountable the agencies responsible for investigating matters of national security, like CSIS.

As we said in the introduction of our last Annual Report 2015-2016, “SIRC is an external independent review body that reports to the Parliament of Canada on the operations of the Canadian Security Intelligence Service….SIRC has three core functions: certifying the CSIS Director’s annual report to the Minister of Public Safety and Emergency Preparedness, carrying out in-depth reviews of CSIS’ activities and conducting investigations into complaints…..SIRC exists to provide assurance to Parliament and to all citizens of Canada that the Service investigates and reports on threats to national security in a manner that respects the law and the rights of Canadians.”

It can be said that SIRC is a vehicle of transparency for the Government of Canada. Indeed, transparency is increased in the national security context with the existence of expert review bodies such as SIRC, even if the actual amount of information released is not increased. For example, SIRC is a proxy of transparency in terms of CSIS’ accountability to Canadians, in the completion of its investigations and advice provided to the Government of Canada on issues and activities that are, or may pose, a threat to national security.

2) Privacy

This dovetails into my next point about privacy, and how it fits into the discussion about transparency and access to information, particularly in the national security context. The right to access to information is not an absolute right in Canada, and as we know, there are important exceptions and exemptions that prevail. Again, this is particularly important in the national security context, where the divulgation of classified information could be injurious to the public.

While the Access to Information Act creates a right of access, the right is not absolute. It must be examined in light of other provisions of the Act and the exemptions therein contained.

It is also noteworthy that subsection 35 (1) of the Access to Information Act indicates that “every investigation of a complaint under this Act by the Information Commissioner shall be conducted in private.” While the Act provides a reasonable opportunity to make representations, subsection 35 (2) clarifies that “no one is entitled as of right to be present during, to have access to or to comment on representations made to the Commissioner by any other person.”

It is also interesting that the same type of language regarding investigations in the Access to Information Act is used regarding investigations conducted by the organization that I lead, SIRC, in accordance with the CSIS Act. The language clearly speaks to the private nature of SIRC’s proceedings, and the right to make representations as follows:

48 (1) Every investigation of a complaint under this Part by the Review Committee shall be conducted in private.
(2) In the course of an investigation of a complaint under this Part by the Review Committee, the complainant, deputy head concerned and the Director shall be given an opportunity to make representations to the Review Committee, to present evidence and to be heard personally or by counsel, but no one is entitled as of right to be present during, to have access to or to comment on representations made to the Review Committee by any other person.

The Federal Court found in Canada (AG) v. Al Telbani at paragraph 62 (2012 FC 474) that: “SIRC is a specific statutory body with special attributes relating to national security. SIRC’S proceedings establish a balance between national security and the rights of individuals. SIRC has powers that are similar to those of a superior court of record.

The private nature and confidentiality of SIRC’s proceedings are the cornerstones of its investigations. Access to the complainant is provided, by way of counsel and opportunities to make representations to the Committee and present evidence; but all of which is done in private, and in respect of the principles of fundamental justice. As such, SIRC does not release documents created or obtained in the course of its investigations (complaints) pursuant to paragraph 16 (1) c) of the Access to Information Act.

3) Dichotomies posed by the ease of access of information through electronic means?

The last front that I will raise with you involves what might be perceived as dichotomies posed by the ease of access of information through electronic means in the 21^st century.

On the one hand, we as human beings, have a keen desire and want to know and access information about everything and everyone. I guess we could say that it’s basic human nature – we don’t like secrets! On veut tout savoir! When we want information on X,Y,Z, we ask for documents on everything but the kitchen sink! And there are people such as some of you, in fact, entire sections, who respond to those requests for information diligently and professionally.

On the other hand, however, when it comes to our own personal information being released, leaked or shared, our first reflex is to say no to this. When a federal government department receives a request for information, it must review the documents carefully not to make sure that personal information will not be divulged to the public.

We also don’t generally want the government to be involved in our personal lives. A concrete example of this in the national security construct is when individuals do not want the federal government looking into their private lives, even when that person may have acquaintances with someone who poses a threat to national security.

Again in the national security context, we worry about the government collecting metadata, as SIRC reported on in our last year’s Annual Report 2014-2015. As you know, the use of metadata by intelligence agencies has received considerable scrutiny. Mr. Justice Simon Noël of the Federal Court recently rendered a decision in this matter in the fall of 2016. In the context of communications, the term “metadata” refers to information about a communications event that does not include the actual content of the communication. In principle, for virtually every piece of transmitted data, there is an associated “metadata” component.

And yet, we will tolerate any number of intrusions in our private lives from private industry. How? Often through our own electronic devices, with or without our knowledge or even consent. We have no hesitation to provide every little detail of our personal lives, and that of our family and friends, over the internet and the world wide web through Google, Facebook, Twitter and Instagram accounts. We make purchases on line, and then continue to receive suggestions for future purchases from those same merchants, along with others, tailored to our spending proclivities and preferences. Whenever we travel with our electronic gadgets that have the GPS feature highlighted, we can be found, including by the stores or restaurants that you are about to enter, with enticing advertisements and sales to entreat you further. Of course, in this situation, we understand that we are signing up for something and receiving something in return, but it is nevertheless a curious phenomenon.

In closing, I will add that as far as national security is concerned, you can rest assured that a right balance already exists with transparency, through expert review bodies like SIRC,which has over thirty years of experience in this field. Proper accountability of Canada’s security intelligence activities is crucial and our model of independent expert review serves an important purpose. In addition, SIRC has publicly stated that it looks forward to working with a new Committee of Parliamentarians in ensuring accountability and transparency in Canada’s national security framework.

Thank you – Merci!