In reading all 150 pages of C-59, what’s striking is the number of times that various parts of the omnibus bill mention the minister of public safety, minister of defence and minister of foreign affairs. If C-59 becomes law in its current form, these ministers will constantly be consulted for decisions and approval on many things, including classes of datasets, “active cyber operations”, disruption, etc. They will be given report after report from three new intelligence review bodies and national security agencies themselves. In short, already very busy ministers are about to get even busier.
As has been widely acknowledged by experts so far, Bill C-59 has much to like in terms of the architecture of review agencies it creates. What has gone less noticed so far are its impacts on ministers and ministerial responsibility.
The first issue here is that Bill C-59 assumes a highly competent public safety minister. During the Harper government’s tenure, decisions about national security were largely made at the “centre”, frequently by the prime minister himself. That will no longer be the case under C-59. Whatever party is in government in the future will have to ensure that the ministers of foreign affairs, defence and public safety are some of their strongest members of Cabinet. I have no doubt that they will bring issues to their colleagues going forward, but the minister of public safety will not only be responsible for their file—they will also increasingly be playing a front-line role in it.
The second issue, strangely, is in many ways the exact opposite concern to the first—namely that arrangements in C-59 actually reduce the minister’s responsibility. In particular, the legislation makes clear that the intelligence commissioner (a retired judge) can overrule the constitutionally responsible minister’s decision on an issue of national security. This is includes foreign intelligence, cyber and certain CSE/CSIS authorizations, classes of Canadian and foreign datasets, and retention and queries of datasets. Are Canadians okay with an unelected, albeit informed, person making these decisions?
The intelligence commissioner will have a secretariat and we can assume (hope?) they will be regularly briefed. But there are two serious concerns here in relation to ministerial accountability. First, will the minister point fingers should something go wrong in the future? (“The intelligence commissioner wouldn’t let us do it!”). In this sense, they avoid responsibility taken for decisions under their file. Second, will the intelligence commissioner, realizing the position they are in and the burden of responsibility on their shoulders, defer too much to the minister’s decisions and hesitate to speak up?
This is a serious issue that goes to the heart of the Westminster system of responsible government. Some discussion of what this means politically needs to be hashed out.
Finally, I think it is worth raising whether the minister of public safety’s mandate is too broad. Right now the minister is responsible for CSIS, RCMP, CBSA, cyber-security, counter-terrorism and countering violent extremism across government, and also plays a role in the Investment Canada Act and all of emergency response and management. Handling even one of these files is a challenge. Combined, they comprise an incredible hodgepodge of issues, with two agencies in particular posing challenges in terms of personnel and management issues (RCMP and CBSA).
Given the new responsibilities of the minister, is it worthwhile actually breaking up the portfolio? The trend after 9/11 was for comprehensive “homeland security”—combining all emergency response under one umbrella. This is not without logic: many agencies, such as the RCMP, have to respond to both kinds of crises. And national security agencies can sometimes have a role in disaster response, and some disaster response (chemical, biological, radioactive and nuclear) may be needed for national security.
So far Minister Ralph Goodale, in proving himself to be one of the Trudeau government’s most competent ministers, has managed these files and has, 18 months and three consultations later, proposed major national security reforms, dealt with the RCMP and CBSA, and in future will propose a new cyber-policy. But not everyone is Ralph Goodale, and at this point it’s worth considering if there should be a divide between national security/counter-terrorism and emergency management—especially as implementing this new era of national security will be just as difficult as defining it.