Oversight and border controls: Strong on Canada-US cooperation, weak on oversight reform

A few weeks ago, the government of Canada introduced three bills in Parliament dealing with national security issues. The government is proposing a new National Security and Intelligence Committee for greater oversight of the intelligence community. However, the committee appears to be a paper tiger, stripped of any real authority or independence. In other proposed legislation, the government aims to continue strengthening Canada-U.S. cooperation at the border. Will the new legislation set the stage for expanded biometric screening of individuals heading from Canada into the U.S.? It is unlikely in the near future. However, the legislation contains no meaningful restrictions.

A weak intelligence oversight committee

In January 2014, the Office of the Privacy Commissioner of Canada issued an important report, “Checks and Controls: Reinforcing Privacy Protection and Oversight for the Canadian Intelligence Community in an Era of Cyber-Surveillance.” The report recommended a number of improvements to protect privacy and improve oversight of the intelligence community. It ended with a recommendation for the government to consider whether elected officials should have greater oversight and review of intelligence activities. (It may surprise American readers but there is no equivalent in Canada to the security cleared Intelligence Committee.)

Prior to the Liberal government’s election, the Liberals supported the Conservative’s controversial Bill C-51, the Anti-terrorism Act, 2015 (I discussed the Anti-terrorism Act in previous posts here, here and here). Trudeau’s support for Bill C-51 was controversial and during the subsequent election, the Liberals promised to repeal “problematic” aspects of the bill. So far, Bill C-51 remains intact.

However, the government is tinkering with intelligence oversight. In mid-June, it introduced Bill C-22, the National Security and Intelligence Committee of Parliamentarians Act. This legislation creates a new intelligence oversight committee – the National Security and Intelligence Committee.

NSIC’s mandate has three parts. NSIC may review the legislative, regulatory, policy, administrative and financial framework for national security and intelligence. It may also review any activity carried out by a department that relates to national security or intelligence. Finally, it may review any matter relating to national security or intelligence that a minister refers to NSIC (s. 8).

NSIC appears to be designed to be mostly for show. Among the problems with NSIC:

• The prime minister will effectively appoint all of NSIC’s members and will select who will chair the committee (s. 5).
• Although made up of elected officials, the NSIC is not a committee of Parliament (s. 4(3)).
• No parliamentary privilege will protect an outspoken member who reveals any information obtained by the committee (s. 12(1)).
• All reports will go to the prime minister. The prime minister can direct NSIC to revise its reports based on any of the following grounds: the report contains information that is injurious to national security, national defence or international relations or information that is protected by litigation privilege or solicitor-client privilege (s. 21(5)).
• Only the prime minister will table NSIC reports in Parliament (s. 21(6).

Even the activities of NSIC are subject to interference by the government. The government can refuse to give NSIC information if it would be “injurious to national security” and the information is special operational information (s. 16(1)). The decision to withhold information on these grounds is final (s. 31(1)). The most that NSIC can do is complain in a report to the prime minister. Even if the government provides information to NSIC, the government may prevent NSIC from exercising its review mandate. This is because a minister can determine that the review would be “injurious to national security” and thereby preclude it (s. 8).

A new US-Canada preclearance agreement

The government also introduced Bill C-23, known as the Preclearance Act, 2016 in mid-June. The purpose of this legislation is to implement the Canada-U.S. Agreement on Land, Rail, Marine, and Air Transport Preclearance, which the countries entered into on March 16, 2015.

Canadian travelers entering the United States by air are used to being precleared by U.S. Homeland Security officers stationed within Canada’s major international airports pursuant to the current Preclearance Act. The new Preclearance Act provides authority to the minister of public safety and emergency preparedness to expand the U.S. preclearance activities in Canada to other airports, as well as railway stations and ports. In addition, the new Preclearance Act permits Canadian Border Services to operate preclearance activities within the United States.

The new Preclearance Act specifically provides that U.S. officers may collect biometric information to verify the identity of a traveler bound for the United States (s. 20(2)). Perhaps as a faint nod to Canada’s Charter of Rights and Freedoms, a traveler must be notified of his or her right to withdraw from the preclearance area before biometric information is taken. However, this notice may be given simply by signage. It does not need to be given directly to the traveler. If the traveler exercises his or her right to withdraw, no biometric information may be collected from the person and no biometric information may be created from a photograph taken from the individual (s. 33(2)). It will be interesting to watch whether these biometric provisions set the stage for greater biometric screening of Canadians at the U.S. border.

The new Preclearance Act also authorizes a number of invasive searches, such as strip searches, monitored bowel searches, and body cavity searches. However, these searches are to be performed by Canadian officials (s. 22 to 26).

The Canada-US exit initiative

The third bill the government introduced is Bill C-21, which sets the stage for greater information sharing on the entry and exit of travelers. The 2011 “Beyond the Border Agreement” between Canada and the U.S. proposed that Canada and the U.S. would share information on who was entering their countries so that when a person entered one country from the other, this information would be shared and recorded as an exit. This information would help each government obtain better statistics regarding overstay rates and investigate travelers suspected of overstaying.

Bill C-21 expressly authorizes the Canada Border Services Agency to collect personal information on all persons who are leaving or have left Canada by land. This is a missing piece since there are better records for airline passengers as a result of airlines having to collect and share that information with the country of departure. Regulations will describe who the information may be collected from and from what sources. Information that is collected may be shared with the Department of Employment and Social Development. This will assist Canada in enforcing residency requirements for Old Age Security eligibility.

Looking to the future

The integration of U.S.-Canadian border security is likely to continue given the shared interests of each country in balancing national security with facilitating the movement of travelers between the countries. Bills C-21 and 23 are likely to pass without much controversy. It will be of interest, however, to see whether Parliament subjects the biometric provisions to greater scrutiny.

By contrast, Bill C-22 is bound to be a disappointment to Canadians who are concerned about deficiencies in the oversight of Canada’s intelligence community. Given Canada’s shared parliamentary tradition with the U.K., the government may need to explain why it did not follow the U.K.’s example of creating an oversight body that is expressly a committee of Parliament. The centralized decision-making of the Prime Minister’s Office, which was a characteristic of the Conservatives, appears to be entrenched in Canada on this issue. Nevertheless, as was the case in the U.K., NSIC may evolve into a true Parliamentary committee over time.

photo credit: The official boundary between US and Canada via photopin (license)