On July 5, 2019, two microbiologists at the National Microbiology Laboratory in Winnipeg were escorted off the premises. Their security clearances were subsequently removed. Although the precise reasons for the dismissals have not been made public, recent media reports state that the allegation is that intellectual property was transferred to China. Opposition parties assert that the dismissals of employees with established ties to China demonstrated that the government had failed to act soon enough to protect Canada from Chinese espionage.
Because the Opposition has a voting majority in the House of Commons and its committees, the dispute has generated a political collision with potentially destructive consequences for Canada’s national security and intelligence system.
On December 10, 2019, the House of Commons approved a motion establishing a Special Committee on Canada-China Relations, and the committee subsequently held hearings on the dismissals. To pursue its inquiries, the committee passed orders on March 21 and May 10, 2021, calling for unredacted copies of all documents related to the case to be deposited with the Law Clerk and Parliamentary Counsel. Under the order the Law Clerk would advise the committee at an in camera meeting of any information in the documents that “might reasonably be expected to compromise national security or reveal details of an ongoing criminal investigation.” The committee subsequently reported to the House of Commons that the documents produced had been redacted by the government, contrary to the order.
On June 1, 2021, an opposition motion was passed in the House of Commons ordering that the documents be produced without redactions. As with the original committee order, the Law Clerk and Parliamentary Counsel would be authorized to redact them for national security reasons. However, the motion specified that the committee, after hearing the reasons for redactions from the Law Clerk, could still decide to make redacted information public.
On June 4, the president of the Public Health Agency of Canada (PHAC) wrote to the Law Clerk stating that he was unable to release the documents without appropriate guarantees that information could be redacted for national security and privacy reasons.
In response to a question of privilege on the failure to produce the documents as requested, the Speaker ruled on June 16, 2021, that the government could not limit the right of the House of Commons to call for documents to be produced. He further ruled that the House was entitled to specify the conditions under which documents must be produced, including insisting on unredacted documents. Failure to comply with an order constituted a breach of the privileges of the House.
Having maintained that he was unable to give unredacted documents to the House of Commons, the president of the PHAC was publicly censured at the bar of the House of Commons on June 21. Two days later, the government referred the dispute over the production of documents to the Federal Court of Canada.
It is the government’s response to Parliament’s right to call for the production of documents that is at the core of the dispute and the case now before the Federal Court. Does parliamentary privilege, and the supremacy of Parliament, mean that the government must produce any documents ordered by the House of Commons, without any ability to withhold or redact any document for any reason? Are privilege and parliamentary supremacy absolutely unqualified, or are they limited by the Crown prerogative, laws passed by Parliament itself and the government’s knowledge that releasing documents would cause real harm, in this case to national security? (Crown prerogative was defined by constitutional authority A. V. Dicey as the “residue of discretionary or arbitrary authority, which at any time is left in the hands of the Crown.” This definition was cited in the 2018 annual report of the National Security and Intelligence Committee of Parliamentarians [NSICOP]).
The Federal Court will have to consider how these long-standing, complex and possibly contradictory principles are reconciled in a system in which a prime minister and his government must have the confidence of the House of Commons, but the House does not actually run the government.
The Federal Court may also comment on whether the government and the Opposition have made reasonable attempts to find a workable compromise.
What are the implications for the conduct of government, in particular a minority government, if the House of Commons can call for any document without exception? Who is responsible for the consequences of the unrestricted release of sensitive information?
In this instance, we don’t know the nature or the origin of the intelligence material the government is withholding, but the House of Commons is asserting an absolute right, not one limited to the current situation, or even to security intelligence.
For Canadian government intelligence and security organizations, the ability to safeguard sensitive information is fundamental. If security and intelligence branches of government cannot control the distribution and release of classified information, they cannot function.
Nor is the government absolutely denying the right of the House to be informed about the matter. It released the material to NSICOP. Parliamentary members of the committee have security clearances. The staff could advise the committee on what information needed to be protected, and any report could have sensitive information removed from the version made public. A report could be written to respond to opposition concerns without disclosing classified information.
The assertion of parliamentary supremacy therefore means that the House of Commons claims an absolute right to receive highly classified documents without any right by the government to review and protect classified documents.
The Opposition rejected this solution because NSICOP is a committee of parliamentarians, rather than a committee of the House of Commons. This is true — the device of a “committee of parliamentarians” under the executive is the means of giving members of Parliament (MPs) and Senators on the committee access to Top Secret information. Objection was also made to the provision in NSICOP enabling legislation that the prime minister can veto a report. This provision is really a guarantee to the executive that it can ensure that sensitive classified information is not included in the public version of an NSICOP report. NSICOP is supported by an expert professional staff able to negotiate with the government on the wording of reports. (A full explanation of the legislation was prepared by the Parliamentary Library, which comments on the sections relating to ministerial discretion and the prime minister’s discretion. Section 21(5) of the National Security and Intelligence Committee of Parliamentarians Act specifies that the prime minister, after consultation with the NSICOP chair, may require that a revised version of a report be prepared if the original version compromises national security.)
The second offer made by the current government was to use the process the Conservatives proposed when they were in government. In the minority government of 2010, the Opposition, then led by the Liberals, demanded, through a motion approved by the House of Commons, the release of information on the detention by Canadian troops of Afghan captives. The Speaker at the time ruled that the government had to comply, the key precedent in the present case. The Conservative government and the Liberal-led opposition agreed that the release of material would be reviewed by a group of MPs and a panel of arbiters, who were retired judges. In the present case, the Conservative opposition refused this compromise.
The assertion of parliamentary supremacy therefore means that the House of Commons claims an absolute right to receive highly classified documents without any right by the government to review and protect classified documents. Under the terms of the motion, the Law Clerk and Parliamentary Counsel, without the benefit of advice from security experts, would redact the documents and explain to the committee what had been removed. The committee could still decide to release the redacted material. All this would take place without the committee necessarily being informed that some information could not be released without the permission of the originating country, might endanger a person providing information to Canada or would disclose to a foreign country, possibly China, that Canada had access to sensitive information. In some intelligence documents the origin of information is clear. In other cases, reports draw on sources that are not identified. For access to information requests, if the sourcing behind a statement is not specified, it has to be painstakingly traced so that sensitive intelligence is not released.
What would be the predictable consequences if the House of Commons had the unqualified right to receive unredacted but highly classified documents?
The answer is not complicated. Canada’s access to classified intelligence would completely disappear. We would move instantly from being a country with privileged access to very sensitive intelligence because of our membership in the Five Eyes intelligence alliance (Australia, Canada, New Zealand, the United Kingdom and the United States) to one with no intelligence allies, and very little capacity to recruit intelligence assets on our own. If you can’t keep secrets, no one will share them with you.
Canada, its allies and its opponents all take similar, extraordinary steps to protect their intelligence assets. The whole point of having intelligence is to give yourself an advantage that your opponents either do not know you have or have not been able to eliminate.
Members of the Five Eyes alliance must adhere to common standards. These include compatible procedures for security clearances, secure premises, encrypted communications, protection of cyber assets, prevention of electronic leakage from computers and printers, and even blockage of window vibrations that can be picked up by sensitive microphones. There are standards for office safes, telephone “scramblers,” use of electronic devices, and the length of time materials can be stored before being shredded. Even within secure premises, which are protected by special passes and monitored by security staff, security patrols make sure employees have securely locked up all classified documents at the end of the day.
Beyond physical and personnel security measures, there are standard rules. Intelligence is “user-controlled,” which means non-standard distribution must be approved by the originating agency or country. Recruiting an “intelligence asset” — a spy — requires extraordinary measures to keep the person safe from detection. Having a Top Secret clearance does not mean that anyone with that clearance can see anything. Information is restricted by the principle of “need to know.” It is easier to protect information if it is not accessed by people who don’t need to see it.
Intelligence material is usually at least Top Secret, and there are classifications beyond that level that further restrict the distribution.
When sensitive material is circulated within government at a lower classification, it is not usually redacted, as it would be in the public release of a document. Instead, material is “sanitized.” Documents are rewritten to provide useful information, but the source and the collection method are obscured. Sanitization facilitates wider distribution of the information to more potential users.
In assessing the possible release of documents, experts must be aware of current operations that could be compromised. Countries that share intelligence with Canada only do so with the guarantee that our procedures for protecting their information are as rigorous as their own. After Halifax naval officer Jeffrey Delisle was arrested in 2012 for selling secrets to the Russian intelligence service, Canada was warned that its security procedures needed to meet standards, or else. Counter-intelligence experts study any material available from hostile powers to see if they can analyze how it was obtained and to cut off the source. If the source is found to be a person, the consequences could be imprisonment or death. If analysis reveals that encrypted messages are being read, then the encryption cipher will be changed, and the intelligence source will disappear.
Even a solution that would see parliamentarians have temporary access to the documents in dispute would be problematic. Parliamentarians do not need a security clearance to run for election.
It would not be difficult to give the Law Clerk and Parliamentary Counsel a clearance to match the highest level of the material that needs redaction. It would be infinitely more difficult to sensitize that person to all the considerations that go into circulating sensitive documents. If the Law Clerk had no assistance from an expert from the intelligence community, there might be no way to tell if information was from a Canadian source, from an ally and subject to control by the originating agency, sensitive because of the source or the collection method used, or related to an ongoing security or criminal investigation.
The advent of NSICOP was an important advance in making the intelligence and security community accountable to parliamentarians. Parliamentarians may be given access to Top Secret materials provided they obtain a security clearance and observe the same security standards as public servants who have access to the information. Sensitive material is included in reports that go to authorized recipients but is removed from the versions available to the public. So far, the system has worked well, giving parliamentarians a substantive review function on the performance of Canada’s security and intelligence machinery. All of our Five Eyes allies have some combination of procedures to provide classified information to legislators — security clearances, in camera meetings, qualified staff, limits on what can be made public, or a special status for an intelligence and security committee.
The catch for opposition parties is that it is not possible to have both access to classified material and total freedom to exploit a security controversy in public. Unfortunately for partisan politics, the choice is between knowing everything you need to know to improve Canada’s intelligence and security machinery, or having only publicly available knowledge but complete freedom to mount a partisan attack.
There may be a middle ground, with the government releasing sanitized or rewritten versions of important documents. The potential for this solution is limited by the degree of trust that the Opposition would need to have in the government’s good faith, and the very large number of documents that might require processing. NSICOP could report on the current controversy without disclosing sensitive information. However, NSICOP is not controlled by an opposition majority, and the leader of the Opposition announced on June 17 that he was withdrawing his party’s MPs from the committee. The leader of the Opposition has also stated that NSICOP cannot investigate an ongoing operation, but this only applies if the responsible minister believes the committee review would damage national security. Since the government sent the documents to NSICOP, it does not appear to be invoking this provision.
The 2010 panel of arbiters appears to have worked well but was also rejected by the Opposition.
Even a solution that would see parliamentarians have temporary access to the documents in dispute would be problematic. Parliamentarians do not need a security clearance to run for election. Most have limited knowledge about how intelligence is protected or why. They do not have storage facilities or cleared employees. Hostile powers would immediately see parliamentarians as ideal targets — people with access to sensitive information and little experience in protecting it.
To return to the critical question, what would happen if the House of Commons obtained the absolute right of access to classified material that it demands?
Our allies would immediately cut off our access to intelligence so that their own operations would not be compromised. We might remain as a member of the Five Eyes, but our membership would be meaningless.
Canadian officials trying to recruit intelligence assets would be rebuffed.
Such an outcome would have immediate consequences for senior officials trying to understand our options in dealing with important foreign policy actors, whose motives and plans we could only speculate about. Our military would be starved of the information it needs to defend Canada from hostile powers. Understanding the capability and intent of potential opponents is central to defence planning. People within Canada knowledgeable about developing threats of terrorism or right-wing extremism would not talk to the Canadian Security Intelligence Service or the Royal Canadian Mounted Police. Ironically, since the theme of the opposition attack is Canada’s inadequate response to Chinese intelligence operations, we would go blind on that subject as well.
One thing we can be sure of: our allies will be following this court case closely, as will those who threaten the security of Canadians.
