Canada’s National Security and the False Promise of Transparency

Carleton University undergraduate students in Ottawa, Canada, are studying the link between communication and open government. In the class, the students examine how communication can be used to improve governance and to foster a more collaborative relationship between governments and citizens. This series of blog posts is related to a range of topics concerning the issues that challenge open government. These posts will appear on the OGP blog over the coming weeks. We hope you enjoy them.

On October 19th, 2015, Justin Trudeau and the Liberal Party of Canada were elected in a majority government in the Canadian federal election, due in large part to their promises of a more open and transparent government.

Their main promises, as outlined in their platform include(d):

1. A commitmentOGP commitments are promises for reform co-created by governments and civil society and submitted as part of an action plan. Commitments typically include a description of the problem, concrete action... to “amend the Access to Information Act so that all government data and information is made open by default in machine-readable, digital formats.”
2. A commitment to “ensure that Access to Information applies to the Prime Minister’s and Ministers’ Offices, as well as administrative institutions that support Parliament and the courts.”
3. A commitment to “create an all-party national security oversight committee to monitor and oversee the operations of every government department and agency with national security responsibilities.”

More than a year since the election, the Liberal government has made a few significant steps towards enacting these promises. Some of these steps include the waiving of all Access to Information fees, excluding the initial $5 application fee and the ordering of federal agencies to provide information in the format of the requester’s choice. However, for the most part, the Liberal government has failed to deliver on its promise of transparency. Further amendments to the Access to Information Act will be delayed until 2018 and retrieving information about the operations of the Prime Minister’s Office remain difficult due to exemptions such as cabinet confidentiality. Of particular interest, the third of its main promises has been a topic of much public debate and skepticism. Most notably when the Liberal government  refused to provide information about Canada’s campaign against ISIL. Additionally, the Canadian Security Intelligence Service (CSIS) was recently found guilty of illegally storing Canadians’ communications data for over ten years by Federal Court judge, JusticeTo address barriers that prevent citizens from having their justice needs met, OGP participating governments are working to expand transparency, accountability, and inclusion into all systems of justi... Simon Noël.

Among others, I argue that the government has failed to address the concerns with the much-contested Bill C-51, an anti-terrorism bill that expands the powers of the police and CSIS to intervene in a wide range of perceived security threats. The bill’s vague wording and lack of oversight regarding abuses of power can lead to unlawful infringements on Canadians’ rights and freedoms. It is clear that the Liberal government’s third platform promise to create an all-party national security oversight committee is increasingly important and necessary. The proposed Bill C-22, “An Act to establish National Security and Intelligence Committee of Parliamentarians and to make consequential amendments to certain Acts,” is a positive and encouraging start. The Act is intended to both allow parliamentarians to report on the efficiency and legality of Canada’s national security projects and to safeguard Canadians’ rights and freedoms.

There are a number of encouraging transparencyAccording to OGP’s Articles of Governance, transparency occurs when “government-held information (including on activities and decisions) is open, comprehensive, timely, freely available to the pub... More aspects of the legislationCreating and passing legislation is one of the most effective ways of ensuring open government reforms have long-lasting effects on government practices. Technical specifications: Act of creating or r... including:

1. The independent committee will be non-partisan and consist of two senators and seven Members of Parliament selected by Prime Minister Justin Trudeau, with only four of nine to be from the government party.  
2. Members cannot be a minister of the Crown, a minister of state or a parliamentary secretary.   
3. The Committee is to review “the legislative, regulatory, policy, administrative and financial framework for national security and intelligence” and national security activities.

However, there are a number of areas of concern regarding disclosure including:

1. The Prime Minister selects the Committee chair, which could result in a conflict of interest.
2. There are eight exceptions in which the Committee is not entitled to any information.
3. Ministers from various government departments are allowed to refuse to provide information if they believe that “the information constitutes special operation information, as defined in the subsection 8(1) of the Security of Information Act; and provision of the information would be injurious to national security.” The Minister’s refusal power as well as the amount of information that can be refused are broad and limit transparency.
4. Information believed to be able to infer prohibited information can also be restricted, which could lead to a vast amount of information withheld.

Of course, some restrictions are necessary to ensure classified information regarding national security and intelligence remains classified. However, Bill C-22 shares similar broad and wide-reaching exceptions to the Access to Information Act that prevent real transparency. The legislation is a step in the right direction to ensure Canadians are informed but kept safe. Yet the committee has many limitations and the government remains very much in control of accessing and more often, refusing information that Canadians deserve to know. Ultimately, Bill C-22 is important and necessary but not enough to address Canadians’ concerns about the controversial anti-terrorism bill. A better balance between security and access to information must be found. The Liberals have thus far not fulfilled their election promise of transparency and openness. Canadians both demand and deserve better and if the government does not do more to achieve transparency, Canadians will likely not let them forget it in the next election.