Privacy Protection in the Federal Public Service

Posted on May 12, 2015

Introduction

In one single day, the 23rd of March 2015, the privacy protection issue in the Federal Public Service was under the spotlight, for two reasons: the Ottawa Citizen headlined that complaints relating to the weakness of the security measures protecting personal information in the Federal Government had reached a never-before-seen record, and the CBC as well as Radio-Canada disclosed new Edward Snowden revelations questioning the legality of gathering of personal information by the Communications Security Establishment Canada (CSEC).
As is the case for all other institutions, privacy protection in the Federal Public Service in the digital age has become an unprecedented challenge, in its importance as well as in its nature. Even experienced managers find themselves unequipped to deal with the convergence of two towering phenomena: an information technology that is wreaking havoc with all traditional patterns of data protection, and a public security environment that calls for the collection and analysis of personal information at an unprecedented rate. The coupling of totally new data collection capacity with a new interest for it, forces a questioning of the acquired schemes of protection, and development of new measures in this area.
Beyond the technical measures required by these new information technologies, the Federal Public Service must update its policies relating to privacy protection so they reflect the unique challenges of these technologies. If no corrective legislative measures are taken — there is no real appetite — the Treasury Board Secretariat (TBS) becomes the main source of standards for privacy protection in a digital environment. I propose five main steps, which result from observations I made during the time I managed the Office of the Privacy Commissioner of Canada (OPC) over almost six years. I start with the main challenges found by OPC studies within the Federal Public Service and that resulted from the arrival of digital technologies:

Management of new information technologies’ vulnerabilities
Definition of personal information in the digital environment;
Debate on the storage of personal information in the cloud;
Differential repercussions of the Internet on the need for public transparency and privacy requirements; and,
Emerging challenges.

I will treat them separately in order to define the issues, and propose policy directions for the protection of personal information.

Management of New Information Technologies Vulnerabilities

One can summarize the risks affecting personal information protection brought on by the arrival of new information technologies in the Federal Public Service, as is happening everywhere else, as follows: i) their complexity is such that it overwhelms the common abilities of employees and senior staff, ii) these technologies collect data on such small devices that the best controls can miss them, and on such powerful devices that if the data is lost, the private life of thousands of individuals can be compromised in one fell swoop, iii) the virtual mode of access of these technologies complicates the control over this access, and iv) permanent files created, correctly or erroneously, have massive dissemination possibilities, appropriate or not.
Through all these violations to privacy protection, especially in relation to the digital environment, I saw these risks materialize around four constants: i) the small size and the enormous complexity of the devices became increasingly challenging because of insufficient employee digital training; ii) governance structure is incomplete relative to the realities of the risks; iii) protection from indiscretion is lacking, and iv) new technologies are adopted without proper assessment of the risks involved.
To illustrate the lack of digital literacy, an employee left a USB key uncoded on the desk of a colleague, without any physical protection, thinking that a USB key was more secure than an e-mail. To this day, the USB key is missing. It contained medical information concerning approximately 6,000 individuals. In another case, a lack of digital literacy caused an employee to record on his electronic organizer the reason for a meeting with another employee (for disciplinary action), unaware that the content of his organizer could be read by 17 people who, by the way, knew the employee.
This lack of literacy is due to governance weakness, which does not ensure proper training of employees before letting them use information technology devices.
These incomplete structures of governance have been found in studies by the OPC, even in the case where departments run excellent personal data protection policies. Simply put, these policies were not accompanied by an efficient implementation mechanism. For example, movable devices were not identified, or registered, or entrusted to anyone. With no one responsible, protection of the devices was totally lacking. The devices that contained personal data were lost and never found because there was no mechanism to protect them, hence to find them, or at least to permit tracing of persons responsible for the protection of these devices.
This lack of protection from indiscretion is also quite frequent: the studies of the OPC, from 2008 to 2014, have uncovered the severity of the problem within the public service as well as in the private sector. In the Federal Public Service, we witnessed employees searching in the medical records of a former lover, employees distributing tax returns of celebrities, or accessing tax returns of new lovers and their family. Even if these indiscretions are quite rare, they reveal the systemic weaknesses that make them possible: access authorizations are too wide, controls such as journaling and reviewing are insufficient.
We already know that the main differential repercussion of the digital environment is the following: the smallest mistake can cause enormous damage. For example, a file that really got my attention made me write in 2012 “Ten Thing HR Professionals Need to Know“. It was a case whereby a Director General had her abilities assessment mistakenly sent to 321 colleagues. The mistake being: someone has hurriedly pressed on the button without even being aware of the consequences of the act, furthermore, the department had not restricted the distribution through e-mail of human resources information. The result was: the humiliation of the person and the damage to her reputation. It also triggered an inquiry by the OPC. I would venture to add, along with the damages to the person: the loss of employee confidence in the management of personal information in the department.
How can these blunders be avoided? My recommendations are in “Ten Tips” regarding the digital environment:

Avoid sharing sensitive information electronically, even though it is the current method of communication for all other types of communications;

Continuously ensure that the technology is mastered by the employee before handing it to him as a working tool, and test the capabilities of the person using it; and,

Develop a regime of access authorizations, as restrictive as possible while preserving the functionality of the organization, and support this regime by establishing a journaling process, and regularly review the access data it contains.

However, the complexity of information technologies does not affect employees exclusively. Higher level management in the public service, economy and political science experts, do not necessarily have the reflex of owning, as they should, the issue of their privacy protection on new technologies devices. This is what the 2010 audit of the OPC concluded on the use of wireless technologies within five Federal entities. Those entities had all adopted those technologies and none had implemented an adequate risk assessment. The expected consequences occurred: the employees did not protect their devices through a solid password, the devices were not kept in a safe place, and the adequate protection policies had not been established because the risk had not been determined. I believe, however, that this complacency has now been replaced with greater acknowledgment of the risk, especially since the loss of a hard drive at Employment and Social Development Canada containing the financial data of some 600,000 individuals.
My recommendations in this regard were part of the Special Report of Inquiry relating to this incident and submitted to Parliament on March 25, 2014. Briefly, they were:

Protection of personal data in the digital environment should be addressed as an ecosystem of interacting components, i.e., physical, technological, administrative and employee security checks, including the digital literacy needed to handle those work tools.

Protection of personal data must be considered as being an institutional issue and not as a distinct and separate issue, that is, of the exclusive domain of the administrators of information technologies or of the office of access to information and privacy. Its implementation must be accompanied by a governance structure that:
- Reflects the accountability regime established by the Privacy Act, which defines the attribution of this responsibility to the very senior public servants within an organization ; and
- Insures that the necessary supervision imposed by the Act is present at all levels in order to abide by this regime of personal information protection.

Definition of Digital Personal Information

Internet has challenged the established definitions of both the “personal information” and the private sphere. Two notions that have been challenged in the last while within the Federal Public Service: the privacy aspect, or not, of the Internet subscriber’s data and the IP address, as well as free or protected access to personal accounts on the social networks.

1. Personal Data on the Internet

The question as to whether proprietorship of IP (Internet Protocol) addresses (name, address and other identifiers of the subscriber) or personal data, do or do not constitute personal data, was pressing in the last few years as regards the many successive bills that would have allowed access to these data by the executive and security authorities without court approval. Much of the argument touched on two different contradictory understandings: one concluded that the IP address and personal data, and the relevant personal data of a subscriber, do not carry more value than a phonebook, and that the absence of such a phonebook for Internet cannot determine the judicial statute of the data. The other, of which I approve, said that the subscriber’s data contained in the IP address of the subscriber constitutes a key to the subscriber’s interiority by giving access to his Internet searches – i.e., his areas of interest, his worries or his allegiances – and, consequently, should be considered a static and limited data of a physical address and a phone number.
In June 2014, in its decision re. R. v. Spencer, the Supreme Court ended the debate: it declared that the subscriber’s data in the IP address, allowing access to the Internet searches, is so revealing as to constitute protected personal data, to which the controlling forces can only have access after court authorization.
The consequences for the Federal Public Service are mostly felt within the RCMP and CSIS, but they also have a wider reach: the Privacy Act has just been modified to include, within the interpretation of personal information, the name to which the IP belongs.
Consequently, the federal institutions have to abide by the following constraints:

The subscriber’s data in the IP address, or the IP address that can lead to the identification of the subscriber, can only be collected if there is a direct link with the programs or activities of the institution ; and,
These data must be obtained through their owner, unless that constrains the use for which these data are intended (for example, a police inquiry).

The analytical framework of the OPC A Matter of Trust: Integrating Privacy and Public Safety in the 21st Century, published in 2010, gives the four steps of applicable considerations for integration within the measures of public security, of the relative obligations towards privacy protection. They also apply to a regime of access to personal data on Internet:

Establishing the legitimacy of the measure on the base of empirical data, which proves its necessity, its proportionality and its efficiency compared to the need and absence of less intrusive alternatives;
Implementation of security measures in order to protect data gathered and used legitimately;
Development of an internal governance framework that ensures conformity with these security measures; and,
Development of an external and internal supervision framework that ensures the accountability of the organization in regard to its duties regarding privacy protection.

Therefore, privacy protection is not a hindrance to the carrying out of the main duty of Canada’s government, i.e., to protect the security of its population. It rather provides an implementation framework that protects fundamental freedoms as well as personal security.

2. Access to Personal Accounts on Social Networks

The right of access, or not, of federal institutions to the personal accounts of individuals has been contested in at least two major cases of the OPC: a Privacy Impact Assessment (PIA) of the factors involved in the private life of a program that would have allowed the surveillance of accounts on public servants’ social networks in order to control their political activities, and a study on the surveillance by two departments of the Facebook account of an activist.
In the PIA’s case, OPC’s reaction had a sobering effect on the project: it violates Section 4 of the Privacy Act, as there is no direct link between the project and the activities or programs of the institution. Even if public servants are mandated, in different capacities, to stay away from political demonstrations and the public service is entitled to ensure that this rule is obeyed, the wide gathering of data inherent to the surveillance of the accounts on social networks would have widely exceeded what was deemed necessary in order to ensure that these restrictions to partisan activities are respected.
The project has been vehemently criticized by the upper echelons of the public service following the comments of the OPC, nevertheless, it constitutes an illustration of the consequences such straying can have on the digital surveillance ability without a framework.
One other illustration of this phenomenon was noted in a study by the OPC in 2013. An activist alleged that two departments had gathered her personal information from her Facebook account. None of the departments denied it. However, both said that they had not broken the Privacy Act, as Facebook accounts are in the public domain, hence, the information appearing there is also public and not protected by the Act.
The OPC rejected this argument: the information available does not lose its personal confidentiality just because it is available on Internet. The information still belongs to an identifiable person and is destined to selected people, not the government. And if there is no direct link with the department’s program or activities, it remains out of bounds for the department in question.
The study highlights the uncertainty stemming from the legal status of personal information deliberately posted on Internet. In order to clarify this legal status and the obligations of international institutions in this regard, the Special Report of the OPC to Parliament on January 28, 2014, Checks and Controls: Reinforcing Privacy Protection and Oversight for the Canadian Intelligence Community in an Era of Cyber-Surveillance recommends:

Regulating access to sources of open personal information sources accessible to the public; and,
Developing outlines defining specifically the gathering, use and dissemination of personal information on line and on social media sites.

This recommendation remains valid … and awaits implementation.

Hosting Personal Information in the Cloud

The commitment of governments towards protection of data on Internet has caused some to ask for the government to have its data hosted on its territory. In practice, this excludes government institutions from financial and functional benefits of the cloud because suppliers of cloud computing are mostly Americans. Edward Snowden revelations in June 2013 have increased mistrust to the point where governments that had planned a loosening of these rules had to backtrack.
The Government of Canada has, wisely, not imposed hosting of electronic data in Canada. However, the Canada Revenue Agency reserves the right to allow, or not to allow, the storing of accounting and financial information outside of Canada. The increasing use of cloud computing casts a doubt on the pertinence of this rule, which has, at least, to be explained within the cloud computing environment.
British Columbia and Nova Scotia governments require their institutions to store their data within Canada, except for a few conditions, excluding or complicating the use of cloud computing. I think that the residency requirement of the electronic data in Canada, with all its good intentions, weakens the security of personal data because it eliminates a particularly secure platform for hosting data: the dependable supplier of cloud computing.
I will now move to the strategic factors that should guide Federal institutions for converting to cloud computing.

1. Benefits and Risks of Cloud Computing

A policy paper published jointly by the OPC, the Office of the Information and Privacy Commissioner of Alberta and the Office of the Information and Privacy Commissioner of British Columbia, and a Fact Sheet authored by the OPC, describe the benefits and risks of data stored by cloud computing hosts: in its favour, cloud computing is an on-demand Internet service that does not require the user to have his own technological infrastructure, allowing for “on-demand self-service, broad network access, resource pooling, rapid elasticity and measured service”. As a result, the user saves money, benefits from a lighter management load, improved efficiency, and the supplier being dependable, enjoys greater security of the data because it is handled by professionals. In this regard, OPC clarifies:

“For businesses that are considering using a cloud service, cloud computing could offer better protection of personal information compared with current security and privacy practices. Through economies of scale, large cloud providers may be able to use better security technologies than individuals or small companies can, and have better backup and disaster-recovery capabilities. Cloud providers may also be motivated to build privacy protections into new technology, and to support better audit trails.”

In stating the potential risks of cloud computing, the OPC refers to physical distance of the data hosting locales, the multiplicity of clients of the supplier, the possible misuse of the data, i.e., using them for other ends than what they were gathered for, and, because of the low cost of storage, the keeping of excessive amounts of data.
The OPC concludes that, in regard to the implementation of cloud computing, “Privacy is not a barrier, but it has to be taken into consideration.”
One can summarize as follows the relevant factors the Federal Government should consider when implementing cloud computing:

How is the existing infrastructure improved if cloud computing is adopted?
Which data can be stored in the cloud, and according to what criteria?
How would users of government services know that the data is in the clouds?
Is the cloud supplier dependable, certified ISO/IEC 27018 in privacy protection in cloud computing?

This brings me to the perfect combination: one where technological security of cloud computing by renowned suppliers pairs with a contractual mechanism that ensures conformity with certified ISO/IEC/ 27018 cloud computing security.

2. The ISO/IEC 27018 Standard for Privacy Protection in Cloud Computing

The OPC acted upon its beliefs concerning cloud computing: for a long while, the Office provided its expert advice for the development of standard ISO/IEC 27018 Information technology — Security techniques — Code of practice for protection of personally identifiable information (PII) in public clouds acting as PII processors, adopted on April 25th, 2014.
This standard increases dramatically the security of personal information in the cloud by creating a security certification base that combines the supplier’s technological strength with a framework that ensures that the conformity is really solid: by contract, the observance of which is checked through audits, the client organization using cloud computing keeps its control over the data and the supplier cannot use it for any other purpose than that defined by the client. Moreover, the supplier must support the client in respecting his own legal obligations. Finally, the obligations of the cloud computing supplier are subject to audit by the client as well as by the certifying organization, to ensure the level of adequacy. To be certified, the supplier must implement all the security measures required by Standard ISO/IEC/ 27018. Not only does a supplier that does not respect the standard lose his clientele, he also loses his certification.
How is this normative development relevant to the Canadian Public Service? It allows, at lower cost, a maximal protection of personal data by storing it in the most sophisticated technological infrastructures, as per the most efficient and demanding governance model. Standard government institutions are being asked more frequently to share their data beyond Canada’s borders and to hire suppliers that would enhance the efficiency of their services, when they do not possess the required resources to be able to render these services. The ISO/IEC 27018 Standard is universal and is accepted by the various players in the transborder flow of data.
Following the recommendations of the OPC, the Treasury Board Secretariat (TBS) has published, in the framework of its policies of information management, the document Privacy Matters: The Federal Strategy to Address Concerns About the USA Patriot Act and Transborder Data Flows, as well as the Guidance Document: Taking Privacy into Account Before Making Contracting Decisions. These documents should now be supplemented by the ISO/IEC 27018 Standard. But first, let’s have a look at the ISO Standards.
ISO, International Standardization Organization, and IEC, International Electrotechnical Commission, constitute the specialized system of international standardization. Both have members, states, institutions and experts. They are at the heart of the certification of compliance to some ISO standard by an accredited organization to do so. (Rewrite.) Certification is maintained, or revoked, following regular audits.
TBS already uses the universal standards, the ISO Standards. For example, the TBS Standards for the geospatial standard is based on the implementation of ISO Standards 19115 and 19128. The ISO/IEC 27018 Standard would be the perfect and most comprehensive contractual model in order to implement the conversion of federal institutions to certified cloud computing, thus achieving economies of scale and greater data security.
Avoiding cloud computing is obsolete, adopting it without guidance would be irresponsible. The adoption of the ISO/IEC 27018 Standard by TBS would show other Federal institutions the way towards secure cloud computing for personal data according to universally recognized settings.

Balance Between Public Transparency and Privacy

The legislative framework defining the balance between transparency and privacy is based on the complementarity of the Privacy Act (PA) and the Access to Information Act (AIA). Section 19 of the AIA bridges the gap between transparency and privacy. It forbids a public servant in charge of a Federal institution from communicating documents that would contain personal information as defined by the Privacy Act, i.e., information relating to an identifiable person. Three exceptions: the identifiable person agrees to this communication; the public already has access to the information; or, the AIA allows for a special case communication.
The weakness here stems from the fact that the disclosure imperatives emanate from principles that rival in strength the fundamental right to privacy in relation to administrative tribunals since Internet became public. In reality, I am of the opinion that transparency of judicial tribunals must be reviewed within the framework of the differential consequences of Internet. But judicial tribunals are not part of the Federal Public Service. Administrative tribunals are, and are therefore subject to the Privacy Act.
The Federal Public Service has eleven administrative tribunals, of which four work regularly on personal data issues: Canada Agricultural Review Commission; Public Service Labour Relations Board; Human Rights Tribunal; and, Social Security Tribunal. The Public Servants Disclosure Protection Tribunal also publishes decisions that contain personal and even very sensitive information, but they are subject to such disclosure restrictions that the tension between transparency and privacy is resolved within the legislative framework applicable to the tribunal. Furthermore, the other tribunals are proceeding quite cautiously towards a resolution of the natural tension between transparency and privacy.
In 2009, the OPC published, jointly with its provincial and territorial counterparts, a Guidance Document Electronic Disclosure of Personal Information in the Decisions of Administrative Tribunals. The incentive to act came from an observation of real cases of differential consequences of Internet on the materialization of the transparency principle. It is worth noting that, in the Internet environment, the transparency principle does not give prominence to the tribunal, although it is subject to the principle that ensures its impartiality; it gives it to the parties whose identity is of no public interest. The massive and permanent distribution of this information can unjustly damage the parties’ reputation and would cause them to lose all hope of finding work due to such an insignificant cause. And this hinders the access to justice, due to the fact that complainants decide not to exercise their rights, fearing loss of reputation due to the Internet posting of their cause.
The Guidance Document of the Canadian Commissioners of Privacy is based on Section 8 of the Privacy Act, which restricts the communication of personal information without the consent of the concerned individual, except in very rare exceptions that seldom apply to the decisions of administrative tribunals. In summary, here are the proposed parameters, subject of course to the specific rules applicable to each tribunal:

Employees of the tribunal should inform the parties, as soon as a recourse has been filed, of the risks relating to privacy and what the safeguard measures are, and encourage the parties not to disclose more personal information than what is strictly needed;

The decisions should not divulge any identifier, directly or indirectly. Transparency applies to the reasoning of the tribunal and not to the parties. For example, names should be replaced with initials and addresses deleted or generalized. ISO/IEC 27018 becomes crucially important in the transborder flow of data and the outsourcing services;
The decision might contain an identifier when, in accordance with Section 8 (2) m) of the Privacy Act, it is in the public interest to publish the parties’ identities (for example, in criminal or fraud cases);
The tribunal would develop criteria to exercise its discretion in the application of the public interest concept.

This discretion is an absolute necessity for personal security reasons (a plaintiff contesting her disability pension was threatened by thugs who, having seen the tribunal decision on Internet, knew her address, the amount and payment date of her pension), but also for reasons relating to reputation and financial integrity (two complainants couldn’t find employment for ten years because any Internet search concerning them revealed their grievance).
The TBS must pick up after the OPC and issue policies aimed at re-establishing a fair relation between public transparency and privacy for administrative tribunals in the digital era.

Conclusion: Emerging Challenges

I summarized, from the start, the actual and important challenges that face the Federal Public Service in relation to privacy protection, and the double effect of two fundamental transformations in our means of communication: the arrival of new, complex, powerful and vulnerable information technologies; as well as the increase in cyber-surveillance capacity in a public security environment largely dependent on personal information.
The growing number of new security technologies is clearly moving ahead, mainly in one direction: risk assessment is being refined and multiple technological restrictions are being used following the risk analysis. New applications, like information hubs, where information management is centralized but respects the separation of the different databases, abide by the Act in this regard.
However, the limits of Internet surveillance in a free and democratic society have yet to be defined in view of its progress as well as the evolution of risks concerning physical security.
Privacy protection challenges to Internet surveillance are at the heart of the relationship between the citizens and the state. Section 12 of the Universal Declaration of Human Rights illustrates eloquently this essential character of the right to privacy by declaring:

“Section 12. No one shall be subjected to arbitrary interference with his privacy, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.”

Brought ahead in the debate on Bill C-13, the current Protecting Canadians from Online Crime Act, the issue of the legitimacy of Internet surveillance reappears in Bill C-51, whose short title is the Anti-terrorism Act, 2015. While the Bill traces the legislative process, it also highlights the manner in which the Internet surveillance capabilities force an upgrade of public service obligations towards privacy, i.e.:

Section 8 of the Canadian Charter of Rights and Freedoms protects against unreasonable surveillance, which under the Privacy Act includes all gathering of data that have no relation to government programs or activities, which in turn includes the legitimate purposes of inquiry based on a reasonable suspicion, and individualized;

Restrictions that regulate the sharing of personal data between government agencies in order to avoid citizen profiling that produces new information beyond what has already been collected from the individual himself, and over and above the reason for which the data was gathered;

Natural justice principles of impartiality and accountability, specifically within Internet surveillance, which is meant to be secret and, thus, has to define its own form of accountability to the citizen.

The other double-edged sword of technological evolution resides in the analysis capabilities of data, leading to possible data mining.
As, on a smaller scale, the Census data supported, even anonymously, the government’s decisions at all levels, as well as the business decisions, according to demographic, social or economic movements, we therefore will have to develop an ethical framework for the analysis of Big Data that we store to draw conclusions for the greater good of the citizen. These data can improve the government’s services, refine decisions and adequately adapt the programs. Solutions seem to favour a governance framework based on anonymity, necessity and consent, i.e.:

When the public service develops efficient policies and programs and needs unidentified demographic data for census purposes, the Privacy Act does not forbid it, on the condition that an efficient anonymization process be applied. This would include the separation of data between demographic and nominative data that are pertinent in such a way as that the demographic data do not relate to an identifiable person, because the re-identification would be so difficult that it would become improbable.

For all nominative data needed by the operations of a public institution, Section 4 of the Privacy Act allows their gathering, and Section 7 allows for their compatible use.

If the Public Service needs to use personal data for other purposes than the ones that justified its gathering, even if it is in the public interest, it has to request and obtain the consent of the person concerned. For example, if a department wished to contact people for medical research purposes, it would have to explain the purpose of the research, how the personal data would be used, and ask if, in the interest of science, they would consent to this new use of their personal data.

These basic parameters show a general trend, insufficient, though, to settle the ethical challenge between reconciling privacy and public interest within the analysis of big data. This subject of conversation, like the one relating to Internet surveillance, must be raised more frequently, in order to ensure privacy protection within a new technological frame.
At this point, the priority of the public service should be to develop a normative framework that reflects what Canada considers to be legitimate in relation to the gathering and use of data in the digital age. In a certain way, Bill C-51 has provoked this debate, concerning both Internet surveillance and the analysis of personal data. But this debate is not what it should be: the die is cast, and the discussion is framed in a limited and political debate instead of within a social blueprint taking into account the real challenges, in a thoughtful and empirical manner.
That’s the next step we need to take in order to preserve privacy in the digital age, and it has become urgent.

Appendix

Chantal Bernier, Legal Counsel, Dentons Canada LLP, is a Senior Fellow at The Graduate School of Public and International Affairs (GSPIA), University of Ottawa and Former Interim Privacy Commissioner of Canada. For more information, visit Dentons.com.

Open Government in Transition

Posted on May 6, 2015

Download the full Report
Open Government is a new movement whereby governments around the world are making their vast data holdings available to the public to use in the development of new knowledge products, to support more evidence-based decision-making, and to make government more transparent.
Government data holdings range across every area of human interest, from health and finance to labour markets, culture and the environment. These datasets are said to be to the knowledge economy what natural resources were to the industrial economy: they are the raw material from which wealth in the knowledge economy will be created. They are among our most important public assets for the future.
The Canadian Geomatics Community Round Table (CGCRT) is a multi-stakeholder body whose members come from across the geomatics community,1 including governments, private-sector organizations, NGOs, universities and colleges, and data/service consumers. It operates as a collaborative body that neither has nor seeks the authority to make decisions that are binding on its members or on other organizations. 1 Geomatics is the discipline of gathering, storing, processing, and delivering geographic information.
At present, the CGCRT’s primary focus is on the development and delivery of a pan-Canadian geomatics strategy. The origins of this project are rooted in major technological changes in the field of geomatics, underway for more than a decade, and in the economic opportunities created by opening up the access to government geospatial data.
In the fall of 2007, Canadian governments launched a country-wide consultation process to re-think the way the geomatics community operates in a digital world. The final report identified eight “elements” on which a new national strategy was to be based.
However, it soon became clear that these elements were less a strategy than elements that needed to be included in a strategy. For example, while the report called on the community to collaborate more effectively to modernize the sector, it provided no real direction on how to make collaboration happen.
Over the next three years, a second wave of conferences and meetings was convened to discuss what a real strategy to modernize the sector would look like. During this period, two key developments took place.
First, a Round Table was formed and eventually emerged as an independent body whose main purpose was to act as a multi-stakeholder advisory group to existing government bodies. However, views on this began to change quickly, which lead to the second development.
Some participants argued that the geomatics community needed a credible and influential body that could propose and advocate for broad directions for the community as a whole. To compete globally and to become leaders in the global geomatics industry, the Canadian sector needed to distinguish itself; it needed to find a “Canadian niche.”
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Photo & Video: Perry Bellegarde, Paul Martin & more at Canada 2020 Aboriginal symposium

Posted on May 4, 2015

Photo

Video

Roger Augustine, Regional Chief, New Brunswick & PEI, Assembly of First Nations

Panel: Aboriginal People and economic development featuring Clint Davis (TD, Donald Deranger (Cameco), Donald McInnes (Alterra Power Corp.) and Chief Clarence Louie (Osyoos Indian Band) – moderated by Candice Metallice (Maurice Law)

Keynote: Mary Simon, Co-Chair of Canadians for a New Partnership

Keynote: National Chief Perry Bellegarde, Assembly of First Nations

Q&A: National Chief Perry Bellegarde and the R.H. Paul Martin – moderated by John Ivison (National Post)

Rebuilding Public Trust: Open Government & Open Dialogue in the Government of Canada

Posted on April 28, 2015

Introduction: Trust in Government

A long list of polls and studies tells us that people are turning away from politics and that public trust in politicians has plummeted, but do we know why or how to fix it?
When people watch newscasts or check out political debate online, what do they actually see or hear about politics? Increasingly, it is little more than the shrill and hyper-partisan tone of the “constant campaign,” from cynical negative ads to the barrage of talking points and political spin.
Nor is it clear how or why important policy decisions are made. Too often, they emerge from a black hole or reflect short-term political gain, rather than the public interest. Looked at through this lens, it is not hard to see why people are questioning what politics has to offer them.
This disconnect between citizens and politics appears to be part of a long-term trend that may be reaching a critical point, as the following slide by Frank Graves from Ekos Research suggests:

The blue and green lines show a stunning drop in the number of Canadians and Americans who trust their national governments to do what is right. According to these figures, over the last 50 years trust has plummeted from a high of about 78% into the low twenties here in Canada and the teens in the US.
If accurate, we think this should be of deep concern to the policy community. In a democracy, the legitimacy of governments arises from citizens’ participation in the democratic process, especially elections. A collapse in public trust is likely to be followed by a collapse in participation; and that, in turn, means loss of legitimacy. There are worrying signs that this is already happening: voter turnout is falling, especially among youth; and, as Graves and others have been warning, public trust appears to be tumbling.
We think this trend is connected to two others that have unfolded over the same time period: globalization and the digital revolution. Together, these two forces have transformed our world, making it far more fast-moving and interconnected.
As a result, events and trends are increasingly difficult to predict and manage. Big shifts can happen with little or no notice, such as the terrorist attacks of 9/11, the financial crisis of 2008, or the collapse of oil prices in 2014.
Nor is anyone sure how such events—or our responses to them—will impact on other systems and trends. But if we have learned anything in recent years, it is that, in an interconnected world, they will.
So the speed of change, the interconnectedness of events, and a general volatility around public affairs are defining features of the contemporary world. Making and implementing decisions in this environment requires new ways of gauging public support and establishing legitimacy. The less engaged or trusting citizens are, the more difficult this becomes for governments.
Rebuilding public trust and reengaging citizens should be one of a government’s highest priorities. We believe that Open Government is the way forward on this. It sets new standards for governance that will put an end to many of the cynical or outdated practices and establish new ones that are far better suited to our needs and to citizens’ expectations.
This paper sketches the way forward for a new Parliament after the next election. It begins with an overview of Open Government and explains our reasons for focusing in on one key aspect of it: Open Dialogue. The Open Dialogue Initiative we propose provides a compact and cost-effective plan to build a new capacity for Open Dialogue in Parliament and across the public service, as quickly as possible. This, in turn, will ensure that a government that wants to pursue Open Government after the next election will have a plan that is fully formed and robust enough to make a major contribution to reengaging citizens and rebuilding trust.

2. What is Open Government?

The Open Government Partnership is an international movement of some 65 countries who have joined together to promote better governance through the innovative use of digital tools and a deeper commitment to transparency, openness and public engagement.
The Government of Canada joined the partnership in 2012 and in its initial Action Plan identified three streams of activity: Open Data, Open Information, and Open Dialogue. Open Data calls on departments to make their data holdings available to the public to use to develop new knowledge products, support more evidence-based decision-making, and make government more transparent.
Open Information calls on departments to advance freedom of information. Lastly, Open Dialogue recognizes the need to engage the public more directly in the policy process. Open Government results from the convergence of these three streams, as follows:

“Openness” is not a new concept. Citizens have always needed information to hold government to account and to make informed decisions. However, Open Government is taking this to a new level.
In 2014, a second Government of Canada Action Plan recognized the principle of “Open by Default” as the basis for these three streams. This implies that government information and data should be available to the public by default. When information is withheld, the onus should be on government to explain why.
If fully implemented, we think the principle of Open by Default would be transformative. It implies nothing less than a reversal of the culture of secrecy and control that surrounds governments. And this, we think, is the key to renewing government for the digital age. While there is a long way to go, the principle has now been officially recognized and adopted by the Government of Canada. The challenge for a new government will be to implement it.

3. Focusing on Open Dialogue

Much of the progress so far on Open Government has focused on Open Data. Many government data sets are in a format that allows them to be shared easily and their content is relatively uncontroversial, so observing the principle of Open by Default requires little change to the culture of government and, from a political viewpoint, is largely risk-free.
The Government of Canada currently has a fairly ambitious plan to advance Open Data and officials are hard at work on it. While adjustments to the program might be needed, a government that wanted to pursue a comprehensive Open Government would not need to reinvent it.
Open Information is more challenging. Documents that contain policy advice, program performance assessments or information on the state of the government’s finances are usually treated as confidential and released only when a government feels ready to do so. Declaring that they should be freely available to citizens—Open by Default—would require a major reversal of the culture of secrecy that now dominates the federal government.
Nevertheless, Freedom of Information has a long history in Canada and elsewhere and has provided policymakers with lots of experience, so the risks are well known. The question for a post-election government is mainly one of leadership: will a new government be willing to take this step?
For at least one party, the Liberals, the decision to move forward on freedom as already been made. Justin Trudeau’s Private Member’s Bill outlines a plan to renew Canada’s 1983 Access to Information Act based on the principle of Open by Default. As a result, all kinds of confidential information and documents would become accessible to the public.  Of the three streams, Open Dialogue is the least well understood and for many politicians and officials, the most worrying. They fear that it could turn over control of the policy agenda to interest groups, saddle ministers with bad decisions or degenerate into a free-for-all that paralyzes decision-making. Such concerns leave them wondering about the upside of Open Dialogue.
In our view, many of the concerns over Open Dialogue are either unfounded or relatively easily mitigated. We also see Open Dialogue as vital to the success of Open Government. Open Data and Open Information are not enough to prepare government for the digital age. As noted, policymaking today occurs in a highly interdependent, fast-moving and volatile environment, often involving many stakeholders. In this environment, dialogue processes can make a major contribution to policymaking in two basic ways:

They can help ensure legitimacy through key “process values,” such as transparency, responsiveness and inclusiveness.
They can increase effectiveness by bringing the right mix of people, skills and resources into the policy process to ensure the best decisions are made and implemented.

But to achieve this, the processes must be well designed and well executed—something the current Conservative government has shown little interest in exploring or improving. It has been unwilling to invest time or political capital in building the capacity or skills needed for Open Dialogue. In most departments, traditional consultation (see below) remains the standard approach.
Indeed, what the government often refers to as “consultation” is barely even that. Often, it is little more than an “information session,” where the government announces its plans, provides limited information about them and minimal opportunity for feedback, and then pushes ahead regardless of what others say.
We think this refusal to listen and respond to public concerns is a major contributor to the falling levels of public trust, as well as to a deeply worrying trend in which public policy increasingly conflicts with expert opinion and/or lived experience. As a result, Ottawa is falling further and further behind other national (and provincial) governments, such as the United Kingdom, which has made itself an international leader and trend-setter on Open Dialogue.
Given the Conservatives’ refusal to allow the public service to experiment and evolve, a different government in Ottawa would find that within the public service the pressure to advance Open Dialogue has been building for some time. A new government must be ready with a plan that can address this deficit quickly, while ensuring the job gets done properly.
The Open Dialogue Initiative, to which we now turn, is designed to ensure that genuine capacity-building on Open Dialogue occurs within the federal public service as quickly as possible, but in a discipline way; and that the learning, skills, relationships and culture-change that result become institutionalized and are shared with the broader public policy community.

4. Objectives for the Open Dialogue Initiative

The Open Dialogue Initiative has five key objectives:
Make Open Government the standard for the digital age
Through the principle of Open by Default, Open Government sets new standards for governance in the digital age. The Open Dialogue Initiative will establish Open Government as the “brand” for improving governance in the Government of Canada and introduce the Canadian public policy community to the key ideas behind it.
Establish Open Dialogue as the indispensable third stream of Open Government
The Initiative will examine, test, document and demonstrate the critical contribution Open Dialogue makes to Open Government; and, in particular, to reengaging citizens and rebuilding public trust.
Ensure that Open Dialogue is guided by a principled policy framework
The Initiative will produce a comprehensive policy framework to guide Parliamentarians and officials in designing and delivering effective Open Dialogue processes at the federal level.
Assess how digital tools can be used to support and strengthen Open Dialogue processes
The Initiative will explore the contribution digital tools can make to Open Dialogue. How effective are they at overcoming distance and including large numbers of people? Can they support genuinely deliberative discussions? Are there new tools or techniques on the horizon that might prove to be “game-changers”?
Build a group of Open Dialogue champions who will foster further experimentation and culture-change within Parliament and the Government of Canada
The Initiative will build a group of Open Dialogue champions at both the political and public service levels, who will be informed, experienced and able to speak authoritatively about Open Dialogue processes and their role in the future of governance.

5. Towards an Open Dialogue Framework

A key objective of the proposed Open Dialogue Initiative is to develop a principled policy framework to guide the development of Open Dialogue processes. In fact, much work has already been done on the foundations of such a framework and, based on this, we believe the Open Dialogue Framework should rest on four distinct kinds of dialogue processes:

Transactions
A transaction is a one-way relationship in which government delivers something to the public. This could be information, but it could also be a form of permission (licence), an object (drugs) or a service (policing). Transactions thus include not only information exchanges, but also the delivery of many public services.
Consultation
Consultation provides members of the public with an opportunity to present their views on a subject to public officials. The process ensures they have a chance to make their views known to government. Once they have done so, the officials retreat behind closed doors to review the arguments, weigh evidence, set priorities, make compromises and propose solutions. Their conclusions are then presented to the government, which makes the final decisions.
Deliberation
Deliberation allows participants to express their views, but it also asks them to engage one another (and possibly government) in the search for common ground. Whereas consultation assigns the task of weighing evidence, setting priorities, making compromises and proposing solutions to officials, Deliberation brings the participants into this process.1
Collaboration
Collaboration involves sharing responsibility for the development of solutions AND the delivery or implementation of those solutions. A government shares these responsibilities when it agrees to act as an equal partner with citizens and/or stakeholders to form and deliver a joint plan to solve and issue or advance a goal.
Open Dialogue makes appropriate use of all four types of processes. At present, policymakers in the federal government tend to reply on just two approaches—information sharing (transactions) and consultation—for almost every issue. Too often, this results in a mismatch of processes and issues that leads to solutions that are ineffective, difficult to implement or that lack buy-in from citizens and stakeholders.
The motivating idea behind the Open Dialogue Framework is simply that different kinds of issues should be approached differently. The Framework is supposed to help officials choose the right kind of process for the issue at hand.
However, if Open Dialogue rests on recognition of these four generic types of processes, we should not lose sight of the fact that every government is different. The challenge in developing an Open Dialogue Framework is not just to identify the four types and provide criteria to match them with the right kinds of issues. It is also to provide guidance on how to design processes that incorporate or respect the special or unique characteristics of the community in question.
The Open Dialogue Initiative would use the demonstration projects to produce a “made in Canada” approach to Open Dialogue that is appropriate for the Government of Canada. For example, the new Framework would recognize and incorporate our commitment to federalism, the historical place of aboriginal peoples, and the role of official languages.

6. The Project: Who are we engaging?

The Open Dialogue Initiative that we are proposing includes two distinct but complementary streams of activity: the Public Service Stream and the Parliamentary Stream. The former focuses on how Open Dialogue would transform the work of ministers and the public service; the latter on how it would make the work of Parliament and parliamentarians more meaningful.
The public service stream would include five major demonstration projects from five departments (a single project could involve multiple departments), and the parliamentary stream would include three to five projects from the House of Commons, possibly including the Senate. The two streams would proceed in parallel.

A. Open Dialogue Initiative: The Public Service Stream

The Public Service Stream would be led by a new Open Dialogue Centre in the Treasury Board Secretariat. The Centre would scout out departments that were planning to launch a significant consultation initiative on an issue and then hold meetings with the officials from that department.
Through these meetings, the Centre would be looking for consultation processes that were also good candidates to be transformed into deliberative or collaborative processes. The Centre would discuss this with departmental staff. If the prospects were promising, staff, in turn, would discuss this with the minister.
The Centre’s goal would be to identify five promising projects from various policy areas that could be completed within 18 months or less. Following discussions with the minister and his officials, the Centre would invite those five departments to participate in the Open Dialogue Initiative by redesigning their consultation processes as deliberative or collaborative ones and then allowing them to be used as demonstration projects for ODI.
Each demonstration project would still be planned, managed and executed by officials from the sponsoring department. However, the Centre would also strike and chair an interdepartmental committee, with representation from each of the departmental project teams. This committee would provide advice and oversight to all of the departmental teams to help ensure that the five projects conformed to basic principles and best practices of Open Dialogue.
The committee would also be responsible for consolidating learning from the projects and producing the new Open Dialogue Policy Framework for TBS. This would eventually become the official policy framework of the Government of Canada for Open Dialogue.

In addition, the Centre would be responsible to inform and engage the public service and the broader public policy community on the progress of the projects. It would also work with the Canada School of Public Service to develop a training program and materials based on the projects.
The Open Dialogue Initiative would conclude with a national conference to educate the public service, MPs, the broader public policy community, and governments across the country on the merits of Open Dialogue and to showcase the results of the project.
Finally, development and execution of the five projects should require few new resources. The principal cost would lie in executing the demonstration projects. However, as each one would be a process that the sponsoring department had already planned to carry out, resources would have been allocated to the project through departmental budgets. In this way, ODC would leverage existing resources and commitments to carry out the work to produce the new framework.

B. Open Dialogue Initiative: The Parliamentary Stream

Many MPs today feel removed from decision-making, which increasingly is vested in the executive, in party leadership and, at times, among political staff.
The Parliamentary Stream of the Open Dialogue Initiative would provide an opportunity to change this by striking special committees of MPs and assigning them the responsibility of leading an Open Dialogue project.
First, House Leaders would meet to identify a list of multiparty issues that could be the focus of such a dialogue. A “multiparty issue” is one that transcends partisan lines enough that members of a special committee could reasonably be expected to work collaboratively. House Leaders would then agree to strike three to five special committees, each with a mandate to use Open Dialogue to find solutions to their respective issues.
A committee’s mandate would charge its members with leading either a deliberative or collaborative discussion aimed at producing a consensus report. House Leaders would agree to a hands-off approach, as long as a committee continued to work within the boundaries and parameters defined by its mandate.
The committees would contain equal representation from each of the official parties in Parliament. Committee members would agree to engage in a non-partisan dialogue and, where the public was involved, to play a new kind of “facilitative” role through the committee.
In our view, the Library of Parliament is well positioned to assume a new and important role in helping Parliament build capacity and carry out successful engagement processes. Its value here was clearly demonstrated in a 2002/3 study on CPP (Disability), when it provided special support to the Sub-Committee on the Status of Persons with Disability.
The government would make a meaningful commitment to act on consensus recommendations, as long as they remained within the boundaries of the mandate and met any special conditions set out there, such as guidelines on recommendation that involve spending.
Should the committee members fail to reach consensus on their recommendations or reach beyond the committee’s mandate, the government’s commitment to act on the recommendations would be invalidated.

C. Realigning Parliament and the Executive

In the final stage of the Open Dialogue Initiative, The Open Dialogue Centre would convene a meeting with members of the parliamentary committees, ministers responsible for the demonstration projects and their senior officials, and representation from the Prime Minister’s Office. Together, the group would discuss the lessons from these exercises for how Open Dialogue could be used to help realign the relationship between Parliament and the Executive.

D. Deliverables

The following is a list of the principal deliverables from the Open Dialogue Initiative:

Establishment of the Open Dialogue Centre in TBS
Completion of five Open Dialogue projects in five departments, involving stakeholders and/or individual citizens
Completion of three to five all-party Open Dialogue projects in the House of Commons, possibly including the Senate
Completion of an Open Dialogue Framework that establishes an official approach to Open Dialogue for the Government of Canada
Development of a suite of public engagement learning tools to help build capacity in the Public Service of Canada
Establishment of a community of articulate and experienced champions for Open Dialogue
Review of the lessons for realigning the relationship between the Executive and Parliament

7. Conclusion: Back to Public Trust

Since the beginning, modern governments have relied almost exclusively on two basic processes to involve citizens and stakeholders in the policy process; what in the framework above we called information sessions (transactions) and consultation.
But if the engagement approach hasn’t changed much in 200 years, the policy environment has. Citizens today are far less willing than their grandparents to allow governments simply to make decisions on issues of the day. They often want a say on issues that matter to them and they regard this as their democratic right.
Further, globalization and the digital revolution have transformed our world. Issues, events and organizations are often so interconnected that governments are unable to determine how the different options are likely to impact on the environment. To find the fairest and most effective solutions they must engage citizens and/or stakeholders in their deliberations, as they are often far better positioned than government to assess how a policy will impact on them.
Finally, good policymaking often requires more than public involvement to identify solutions. It also requires public involvement to implement them. Community health is an obvious example. Citizens may come together to discuss and develop a promising community health plan, but unless they also commit to acting on it little progress will be made. Engaging them in the deliberations that forge the plan is not enough. The process must go a step further and also secure a commitment from them to help deliver it—and that is a different discussion.
We believe that building the capacity for a more ambitious use of Open Dialogue processes to address issues like this would greatly enhance both the legitimacy and effectiveness of government decision-making.
Our goal is to ensure that democracy continues to work between elections; that citizens and organizations can meaningfully engage with government and Parliament to help shape the direction of a government after it has been sworn in.
As we plan for the next 150 years of Canada, we should be putting in place the processes and institutions that will assure Canadians there are better ways to participate in the policy process than yelling at their televisions or, worse, just turning them off. Meaningful participation should be palpable and therapeutic. Open Dialogue would be an effective antidote to the cynicism that is infecting our democratic institutions.
And this, in turn, would go a long way toward the essential task of rebuilding public trust.

Recent federal boutique tax credits not helping those who need it most, or even most families with kids

Posted on April 26, 2015

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Many, many years ago, I was a smoker. When I decided to quit, I told my friends and family and I think that made it a little easier to stick to my own plan.
I think, in theory, balanced budget legislation might be a bit like that – a commitment device. Having made a public statement, governments might feel more committed and follow-through on difficult choices to avoid unnecessary deficits.
In practice, it doesn’t seem to work out that way.
The research finds that balanced budget legislation needs political will to have any effect and if you have that political will, then you don’t really need the legislation.
A look through the last decade of federal and provincial budgets reveals that balanced budget legislation doesn’t predict more balanced budgets. Jurisdictions with a balanced budget law balanced the books in 5 of the 10 years. But so did jurisdictions without such a law.
If balanced budget laws don’t necessarily have the desired positive effects, is it possible they can also encourage governments to do sub-optimal things just to show a $0 deficit?
Models of government behavior say that they will feel pressure to spend public money to keep stakeholders [read: voters] happy. Also, they want to be seen to be busy doing things in office. Governments need stuff to announce: There are pressers to be organized! Talking points to be read! Photo ops to Instagram and Periscope! So what is a government, under political pressure to spend but also under pressure to not be seen to be spending, to do?

Cutting taxes one shiny credit at time

Boutique tax credits start to look pretty attractive, especially the non-refundable ones (the ones that don’t result in a cash payment back for lower income taxpayers). These are credits that can be announced, often in a budget, and re-cycled again, and again. They can be targeted to certain taxpayers based on behavior—for example taking public transit, enrolling in higher education or paying for organized sports for a child.
Administratively, it’s possible to make these credits conditional on some taxpayer characteristics, but not usually income. Instead, boutique tax credits have a veneer of universality–as long as we all fill out the same tax form, we all have equal opportunity to use them, no matter what we earn, right? So when government announces these credits, it’s easy to imagine that many Canadians could benefit.
Better still, if you’re inclined to spend without being seen to do so, after they are announced, these credits just kind of fade into the wallpaper. Remember the Children’s Arts Credit from Budget 2011? How much will it cost (in foregone income taxes) for the coming fiscal year? You probably won’t find that number in the 2015 Budget. Like so many individual tax credits from budgets past, the Children’s Arts Credit is now just part of the fiscal backdrop.
The 2015 Budget documents and communications materials give the current federal government’s retrospective on its own tax cuts, pausing to illustrate how much less folks like “Henry and Cathy” (at $120,000 in family income) pay in taxes since 2006.
Let’s set aside the fact that the budget document claimed that the reduction from 16% to 15% of the lowest personal income tax rate took place in 2006 (and not in fact 2005), and instead let’s look at the other personal income tax reductions listed: the Children’s Fitness Tax Credit, the Children’s Arts Credit, the Public Transit Tax Credit and the Canada Employment Credit to name a few. There’s no special credit for “Matthew’s” yellow lunch box, not yet anyway.
The list is long enough to sound quite impressive. But do these credits represent good tax policy?
Do they use public funds prudently? Reductions in federal revenues have to be made up elsewhere or else they ultimately result in spending cuts, or deficits, or even both.
Do these credits have the desired policy impacts–for example encouraging more physical activity among children? The available research seems to suggest they do not.
Who benefits most from these boutique credits? Well, not every family with one or more children. Using the government’s own numbers, only up to a third of families are expected to get anything at all from many of these targeted tax cuts:1

The same is true of the much-discussed Family Tax Cut that will only reach, at most, 12.9% of all Canadian households and a maximum of one third of families with children. Bear in mind the above estimates are optimistic and include any family that gets even $1 of federal tax reduction.
So, while the rules for each of the boutique credits are silent on how much money a taxpayer has to have to benefit, it so happens that wealthier tax payers are more likely to claim these credits. Using the most recent published data on tax returns, here’s what we know about the likelihood of getting some of these boutique credits:2

How much more (or less) likely is a taxpayer to get a tax credit, compared to the average? It depends on their income.

Taxpayers with $100-150K (darker bars) are much more likely to get all the credits, but taxpayers with $20-25K (lighter bars) are less likely to get any.

*Cancelled for the 2015 year onwards.

The dollar value to an individual taxpayer of many of these credits is often very small–just $75 for the Children’s Arts Credit, for example. But, when stacked on top of each other (which is more likely for upper-income taxpayers), they seem to add up. Is this making a difference in what taxpayers are paying and, if so, who’s getting what?
Let’s compare the taxes paid in 2005 and the most recent year available–2011 for modest and upper-income taxpayers.3 Remember, the federal personal income tax rates and brackets haven’t changed. The main personal income changes have been through boutique credits.

In 2011, the average taxpayer with an income between $100,000 and $150,000 paid $3,633 less in taxes. The average taxpayer with a very modest income of between $20,000 and $25,000 saw only $475 back in the same period. These numbers are before the impact of the new Family Tax Cut and the doubling of the Child Fitness Tax Credit – both of which are likely to accelerate the same trend.

Final Thoughts

In some cases, there can be good policy reasons to try to reward taxpayers with credits for doing certain things. But those choices need to be transparent about who wins and how the fiscal room will be adapted.
When public commitments to show balanced books are given precedent over promoting economic growth, boutique credits may become nearly irresistible. These trinkets are easy to make but then become hard to see.
During the 1960s and 70s, personal income taxes only brought in 30-40% of all federal revenues. Today we’re trending closer to 50%. If a government is going to bind itself with public commitments to balance spending with revenues, it had better make sure that its main revenue stream is sustainable.
Sneaking around to hide an addiction to shiny but regressive credits is just a spending habit by another name.
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Jennifer Robson is an Assistant Professor at Kroeger College, Carleton University where she teaches courses in pubic policy and political management.

Lenihan: Fixing our broken politics

Posted on March 31, 2015

Originally posted on National Newswatch (available here)

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Is politics broken? Yes, but we also know how to fix it. Through the ages, politics has been broken many times, yet people have risen to the challenge. The question now is whether we will do so again. Let’s start with a few examples before turning to the solution.
When King John signed the Magna Carta in 1215, he was under pressure from the barons, who felt politics was broken. To fix it, the king had to agree that even he was not above the law. The Rule of Law has since become the rock on which our political system rests.
Or consider the American and French Revolutions in the late 18th century. They were based on the idea that the source of government’s authority was not the king, but the people. The principle of the Sovereignty of the People rallied the people behind democracy.
During the Great Depression, Franklin Delano Roosevelt proclaimed the New Deal, where government took on a new responsibility to provide relief and jobs for the unemployed. Today, the principle of Equality of Opportunity underpins a vast array of social programs, such as social assistance, education, unemployment insurance and healthcare.
These three periods were marked by profound social changes that made the political system of the day obsolete: politics was broken and it had to be fixed. In each case, the solution came through a new principle that placed new limits or responsibilities on the leaders.
History is at another turning point. The rise of digital technology has changed our society, vastly increasing the speed, complexity and interdependence of events; and turning the system of nation states into a global village. Huge amounts of data and information on everything imaginable—health, weather, traffic, trade, finances—are streaming through cyberspace.
The tools to organize and “scrape” this data are evolving daily. Statistics Canada reports that it can now get all the information it needs for the census by scraping 500 government databases, and at a fraction of the cost. Within a decade the census will be gone.
This is a sign of things to come. If content is now pouring from cyberspace like an open faucet, soon it will be gushing like a firehose. New “smart” devices of all kinds are getting plugged into the internet, from cars to lightbulbs.
By 2020, over 50 billion devices will be pulsing out data on their surroundings and their users. New artificial intelligence systems will supercharge the capacity to scrape, organize and use this data, radically advancing our knowledge of DNA, nanotechnology, the environment, the global economy, security, transportation, and so on.
This capacity to integrate Big Data from a range of sources marks the beginning of a new era in human knowledge. It could also vastly improve policymaking, if we use the data well. And that brings us to politics.
Last week, Samara Canada released its Democracy 360 report on the state of democracy at the federal level. Among other findings, fully 60% of Canadians now think MPs only want their vote, and only 40% of us trust them to do what is right. Another 39% say they haven’t had a single political conversation in the last year.
No one should be surprised. This is the logical result of a trend that began centralizing power in the Prime Minister’s Office under Pierre Trudeau. Today, the policy process is run out of the PMO. It is utterly lacking in transparency and parliament has been reduced to little more than a shell.
Of course people are cynical. They know where the real decisions are made and that public debate over them is a facade. That is why politics is broken and needs to be fixed. But how? As with the other examples from history, we need a principled way to reverse this trend.
There is a new principle that I believe can do this. It is called Open by Default and was formulated by the Open Government movement to guide governments around the world as they transform themselves for the digital age.
The principle turns conventional government thinking about data and information upside down. It declares that in the digital age they must be defined as a public asset. The role of governments is to act as stewards of this resource, rather than owners of it who are free to use it as they wish.
Under this principle, these assets must be openly available to the public, unless legitimate concerns, such as security or privacy, dictate otherwise. When they do, the rationale for confidentiality must be given and proper oversight ensured.
According to the Treasury Board Secretariat website, the Harper government now accepts this principle. I’ll return to this below. Liberal Leader Justin Trudeau also endorses Open by Default in his Private Members Bill on freedom of information.
But Open by Default is about more than data and information. It also applies to the dialogue and debate that is needed to put this asset to work in the service of better policymaking.
For example, it we want to map the issues around a community’s health needs, we must combine data on a range of factors, such as the environment, food consumption, education, exercise, income, cultural background, and so on.
This transforms the usual two-dimensional picture of a policy issue into a dynamic, three-dimensional model. Different combinations of factors produce different models and may lead to different conclusions.
Arriving at the best policies to solve issues on the environment, poverty, pipelines or national security thus is not simply science. Evidence-based decision-making is about exploring these options to make the choices that best meet our needs and aspirations as a community. It is a democratic exercise based on dialogue and debate that is open, informed, fair and inclusive.
So here is the deep question Open by Default raises for democratic process: Will this new approach to policymaking be conducted openly, with MPs, experts, officials and the public involved? Or carried out in secret by a coterie of analysts and then “sold” to the public?
This question has moved from pressing to urgent. For two decades, the public service has been building a vast new network of digital infrastructure to handle Big Data. Notwithstanding its alleged commitment to the principle of Open by Default, the Harper government has signaled its willingness to use its power to bring this infrastructure under its control.
Bill C-51, the anti-terrorism bill, will establish a massive new information-sharing regime to improve security, yet the government appears unwilling even to listen to arguments about new forms of oversight to monitor how the data is being used. For those who thought centralization couldn’t go any further, it has apparently entered a whole new phase.
The only way to fix politics is to reverse this centralizing trend. This will take a range of major reforms, both to parliament and the public service. And there will be cries and claims about the damage they will do to our system of government. Every age has its apologists for the status quo.
But to succeed, first and foremost, reformers must unite behind a single, clear and powerful idea of the kind of change we want to bring to our governments and why. That idea should be to put an end to government secrecy and to establish a new age of openness and evidence-based decision-making. It should be to make our governments Open by Default.

Once More Into the Breach

Posted on March 30, 2015

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1. Introduction

The tabling of new, omnibus anti-terrorism legislation, Bill C-51, in the Canadian Parliament in January 2015, has re-energized calls for greater “oversight” of Canadian intelligence and security practices. Many voices have weighed in, from former Canadian Prime Ministers, to the NSA whistleblower, Edward Snowden, who called out Canada for having one of the “weakest oversight” frameworks for intelligence gathering in the Western world.1 The concern is understandable. Not only are there significant legacy problems with our existing system of accountability, but the various new powers proposed in Bill C-51 are bound to impact greatly on security and intelligence practices. If the Bill is passed in its present form, a new information sharing regime within the Canadian government will be established; Canada’s ‘no fly’ list will be re-tooled; the Canadian Security and Intelligence Service [CSIS] will acquire a new “disruption” mandate; criminal offenses for the advocacy and promotion of terrorism will be added to the Criminal Code, expanding the national security law enforcement mandate of the Royal Canadian Mounted Police. Additional provisions for dismantling web sites deemed to support terrorism “propaganda” will inevitably involve the Communications Security Establishment, Canada’s signals intelligence and cyber security agency. Higher secrecy walls will be built around the use of security certificates under the Immigration and Refugee Protection Act. How all these measures will impact exactly is hard to determine without experience, but it is precisely in this unknown space, moving forward, that strong accountability needs to operate.
These new legislative powers, for which the Government aims to acquire Parliamentary approval before the summer recess, build on more than a decade of significant increases in the power, resources and capabilities of Canadian intelligence and security agencies. Major changes, post 9/11, to the agencies and departments that comprise the Canadian security and intelligence community have not been matched, to date, by any increased ability to scrutinize their activities. Indeed there has been some rollback, notably in the decision of the Harper government to abolish the function of the Inspector General of CSIS in 2012.
Now we are into a further expansion of powers, with a growing demand that a concomitant increase in accountability finally be afforded. Unusually, this demand has not been fueled by scandal, as has been the case in the past. Scandal was the root cause of the creation of Canada’s two principal review bodies, the Security Intelligence Review Committee (SIRC), twinned at birth with CSIS in 1984, and the Commissioner for the Communications Security Establishment, created in 1996, and charged with a watchdog function over Canada’s electronic spy agency. It was the scandal of the Maher Arar affair that led to recommendations for reform of Canada’s accountability system in 2006 (recommendations which were not acted on).2 The current demand for greater accountability stems instead from legitimate concerns that Canada has reached a point of imbalance between measures to protect our security and measures to protect our basic rights. Because finding the right balance is so difficult in a world of changing threats and increased security powers conducted in an environment of secrecy, we look to systems of accountability as a check on abuses, as a restorative mechanism, and as a vital form of public reassurance.
Finally, and importantly, the public and political environment has changed. Canadians have experienced more than a decade of persistent terrorism-related security threats, culminating in two unfortunately successful, if small scale, terrorist attacks in October 2014. Current concerns about terrorism threats may now be at their highest level since the 9/11 attacks, stoked by a succession of terrorist attacks around the world, by concerns that Canada may truly be a target, as the Islamic State group has publicly proclaimed, and by the heated political debate around new anti-terrorism legislation. In the period since 9/11, Canadians have learned more about Canadian security and intelligence practices than has ever been the case in any previous era of Canadian history. Attention is being paid, including in unprecedented ways by both the traditional and new media, and with that attention has come an appetite for more—more knowledge, more information from government, more explanation, more transparency. The secret world now confronts a public demand for more openness, and into that breach stronger accountability must rush. There is no more ominous recipe for failure, both for operational performance and the maintenance of civil liberties, than if security and intelligence institutions lose public trust and legitimacy.
For all of these reasons: concerns about the potential loss of our ability to balance security needs and rights protections, fears of new powers and their unknowable usage, a fast changing security environment, heightened public awareness, and new demands for knowledge of state practices, we face an unusual moment of a crisis of confidence in the existing mechanisms of security and intelligence accountability. The crisis might pass, but the opportunity to fix an antiquated and wholly inadequate system of accountability should not be let slip.
The Canadian accountability system for intelligence and security was once widely touted as pioneering and impressive—once being in the 1980s and early 1990s. We even engaged in some quiet, behind-the-scenes, efforts to export our model of accountability to newly emerging democracies in places like Eastern Europe after the fall of the Soviet Union. It is not far-fetched to imagine that we could return Canada to being a world leader among democracies when it comes to holding a burgeoning spy and security system to proper account, while letting them get on with doing their needful, lawful work to protect national security and contribute to international security.
To push in this hopeful direction, three things need to be established:

1) What purpose does accountability serve (or who benefits)?

2)What is wrong with the current system of accountability?

3)What changes are needed?

But first, a word about words. As many other commentators have noted (and political points have even been scored on this front), there is a great confusion around the terms used in this debate. “Oversight,” “review,” “accountability” are the major phrases of the art, sometimes used interchangeably in ways that are bound to create confusion. The most over-arching concept, and to my mind the preferable one, is “accountability.” Striving for accountability best represents what Canadians need from a system that scrutinizes the activities of our security and intelligence agencies from multiple perspectives and vantage points. Accountability contains elements of both oversight and review, an idea embraced by Justice O’Connor in his study of a new mechanism for scrutiny of the RCMP’s national security activities (Arar Inquiry, Part 2). Oversight in the professional lexicon means engagement with current and on-going intelligence and security activities. This professional definition (which captures how the intelligence committees of the US House and Senate operate) is at odds with a common sense one, that takes oversight to mean a capacity to scrutinize a security and intelligence system as a whole, from a strategic perspective. We can avoid this confusion by agreeing to talk about accountability instead. Accountability incorporates elements of “oversight” conducted in the Canadian, Westminster system by the executive branch, and of retrospective “review” conducted by external, independent agencies. It embraces internal measures within agencies, and external judicial controls. There is a place for an important role by Parliament in a system of accountability. Accountability represents the big picture objective of a system operating at numerous points of contact with, and scrutiny of, security and intelligence agencies.

2.Accountability for security and intelligence

Who Benefits?

In their public letter arguing for strengthening the accountability regime for Canada’s security and intelligence agencies, four former Canadian Prime Ministers, offered this succinct statement of purpose:

“A strong and robust accountability regime mitigates the risk of abuse, stops abuse when it is detected and provides a mechanism for remedying abuses that have taken place.”3

While this statement accords with Canadian practice and reflects the scandal driven context in which we have created elements of our accountability system in the past, I would argue that it is too narrowly constructed. The focus on abuses is an important part of the role of any democratic accountability system, and must remain a perennial feature. But to erect an elaborate system of accountability solely to catch abuses, while it might mirror public concerns, is insufficient. Accountability plays other, important roles both within the secret space of security and intelligence agencies, and in the public domain. Accountability systems are meant to provide support to internal cultures of lawfulness generated by leadership directives and training programs. It is in this internal cultural space that any abuses of law or government direction are best nipped in the bud. Accountability is also meant to assist in improved operational performance, in a wide variety of ways, including learning lessons from past operational or policy errors.
Accountability systems have to be acknowledged as a burden to security and intelligence agencies: they take time, attention, personnel resources away from purely operational matters. But they must not be seen as an unnecessary, unproductive burden. Too singular attention to abuses magnifies this problem. An understanding of the role of accountability in internal cultural and policy support and in performance improvements is vital. Most security and intelligence agencies know this, however reluctantly; but the public needs to know it as well.
The other important function of accountability operates in the public, political space. Here accountability offers more than a check on abuses. It also has the power to provide for public reassurance and public education. In an age when publics are rightly concerned both about threats to national security and about the enlarged, intrusive powers of security and intelligence agencies, accountability can offer an authoritative, independent source of information about the nature of threats, the nature of responses undertaken by security and intelligence agencies, about lawfulness issues and, on occasion, about the ultimate question of how well (or badly) our security and intelligence agencies are doing to provide for public security—what is sometimes referred to as the efficacy question. It can be a major contributor to sustaining public legitimacy around secret intelligence and security functions.
Accountability thus has multiple purposes and multiple audiences. It is meant to sustain lawfulness and contribute to successful performance. It is meant to speak in secret internally and to speak loudly in public. It has to manage these multiple audiences, and to find the right balance between internally directed messaging and messaging for public consumption.
Who benefits? In theory, everyone. Intelligence and security agencies benefit; government benefits; the public benefits. In practice, a major impediment to strengthening Canadian accountability is precisely the absence of recognition that everyone benefits. The root causes of this are a reluctance on the part of security and intelligence agencies to openly embrace accountability; a reluctance on the part of Government to see the benefits in contrast to seeing the costs of exposure and loss of informational control; an inability on the part of the public to truly grasp the value of accountability, largely because national security accountability mechanisms in Canada, particularly our existing review agencies, SIRC and the CSE Commissioner, have been so bad at addressing the public audience.

3.What is Wrong with the Current (Canadian) system of accountability?

The current Canadian system of accountability can be measured against many variables, but two in particular are on offer in the joint letter from our former Prime Ministers: robustness and integration. As their letter states:

“We all also share the view that the lack of a robust and integrated accountability regime for Canada’s nationals security agencies makes it difficult to meaningfully assess the efficacy and legality of Canada’s national security activities.”4

Robustness refers to the general capacity of the accountability system to see into those dark spaces of security and intelligence where it needs to peer (access) and to report appropriately. Integration refers to the ability of the different moving parts of an accountability system to work together–to be, in fact, a system. It has another meaning that looks outward to the scanning capacity of accountability.
To explore these problems further, it is helpful to distinguish between internal mechanisms for oversight, generally in the hands of agency heads, deputy ministers and Ministers, and external review mechanisms.
It is, admittedly, extremely difficult to pronounce on the adequacy of internal oversight in the Canadian system, as this is conducted largely out of sight. It would appear to be the case that internal cultures of lawfulness within security and intelligence agencies are currently sound and that agency leadership is strong. Deputy Ministers have a clear mandate to ensure lawfulness and efficacy of their portfolio agencies and “serve at pleasure.” Greater problems may exist at the Ministerial level, the pinnacle of internal oversight, in terms of the capacity of Ministers to perform their accountability function. This requires knowledge, engagement and clear direction and can sit uncomfortably with notions of the complexity and secrecy of national security operations, their necessary degrees of independence, the desire to avoid overt politicization and even the desire to have some degree of plausible deniability. Ministers engage too closely with national security agencies at their peril; they remain too distant and removed from national security agencies also at their peril. It’s a fine balancing act that needs constant adjustment and cannot stand alone.
There are documented hints that not all is well, including a recent 2013 study commissioned by the Department of National Defence on the review of Defence Intelligence activities, that argued:

“While the Minister of National Defence provides Ministerial direction to DND/CAF on the Government’s intelligence priorities each year, strategic direction for DI [Defence Intelligence] activities is otherwise weak, outdated or ad hoc.”5

Included in the Defence intelligence portfolio are the Communications Security Establishment and the Chief of Defence Intelligence, whose remit includes elements of counter-intelligence, security, threat assessment and overseas operational support.
Controversial Ministerial directives, from the Minister of Public Safety to CSIS, the RCMP and CBSA, on the handling of information and intelligence possibly derived from torture suggest that the Minister of Public Safety has been content to push decision-making authority on such matters down to the level of agency heads, or even managers within agencies.6
The most recent annual report (2013-14) from the Security and Intelligence Review Committee (SIRC) argued that with respect to one (unnamed) CSIS “sensitive” activity that “The Minister of Public Safety is not always systematically advised of such activities, nor is he informed of them in a consistent manner.”7
These are worrying straws in the wind that suggest that Ministerial accountability may not be as robust as desired. This problem is compounded by the fact that Ministers do not have to account for national security activities to any dedicated, security cleared Parliamentary body and that substantial public Ministerial statements on national security matters are rare.
Ministerial accountability in the Canadian system also goes unexercised in the sense that Ministers do not currently have a Cabinet level forum for discussions on national security; a brief experiment in creating a Cabinet committee on National Security chaired by the Prime Minister was abandoned. Canada also lacks any mechanism for bringing key portfolio Ministers together with Deputies and agency heads to deal with national security emergencies or major policy discussions—a role played, for example, by the COBRA committee in the UK system.
Internal oversight in the Canadian system thus appears dependent on bureaucratic leadership and internal cultures, which can always be subject to change. Top-level oversight, conducted by Ministers, may be the weakest link.
The robustness of external review is another matter. The key external review bodies are the Security Intelligence Review Committee, with a mandate to scrutinize the activities of CSIS; and the CSE Commissioner, with a similar mandate to scrutinize the lawfulness of the Communications Security Establishment. SIRC was established in 1984 in the CSIS Act; the CSE Commissioner’s Office was first created by Order in Council in 1996. There are important differences in their construction, and some similarities. SIRC consists of a steering committee of part-time Privy Councillors (up to 5) appointed by the Prime Minister after consultation (which may be limited) with the Opposition parties. SIRC is supported by a small, full-time staff. The CSE Commissioner is a part-time retired judge, also supported by a small, full-time staff. There are currently no mandated requirements for knowledge of national security issues as a qualification for being a member of SIRC or being appointed as CSE Commissioner. Staff appointments to both bodies are non-transparent as are any appointments of persons on contract.
Access (to classified documents and officials) on the part of the review agencies is, in theory, guaranteed, short only of access to Cabinet confidences. In practice, access depends on a good working relationships between the review agency and the service being scrutinized. It depends on the expertise and persistence of the review body staff.8Struggles over access compound resource scarcities on the part of review bodies, leading to delays in reporting.
In any case, the existing review bodies are only capable of doing partial audits of national security activities on the basis of pre-approved review plans that are multi-year in nature and can sometimes fail to catch breaking issues or developing trends. Review agencies, it has to be accepted, will always be restricted to a partial audit function; the questions become how partial and how timely. Stickiness in relations between review agencies and their subjects, alongside significant resource constraints and possible expertise deficiencies, can tip partial audit away from its intended goal of producing meaningful national security scans, to mere unfinished ‘pointillism’—imagine canvases of scattered painted dots and brush strokes where no meaningful image ever coalesces.
The robustness of external review bodies is also affected by the fact that they are torn between two desired audiences for their reporting. One audience is the agency being scrutinized. Review agencies want their reports to be treated with respect, their recommendations (and they can only make recommendations), listened to and followed so as to improve lawfulness and even raise efficiency. This requires a close working relationship—a kind of closed loop of reporting, protected and shrouded by official secrecy. Such desired closeness can distort the critical faculties and independence of a review body. It can also lead to an over-valuing of the relationship between reviewer and reviewed at the expense of the review body’s public function.
The second audience for an external review agency is Parliament and the Canadian public. But in order to serve that audience, the review body has to step outside the ring of secrets, learn how to report declassified findings, and learn how to contribute to a public debate. This is more challenging than it might seem, and both of our external review agencies, SIRC and the CSE Commissioner, have struggled mightily over the years with public reporting, an especial problem for the CSE Commissioner. This on-going struggle to find ways to tell important national security stories in public without the deadweight of euphemistic language, the screen of obscurity, the excessive obeisance to official secrecy, has lowered the public legitimacy of these bodies to a dangerous extent.
In sum, the robustness of internal oversight may be compromised by weak Ministerial accountability and is subject to the vagaries of bureaucratic leadership and agency cultures. The robustness of external review is compromised by lack of resources and expertise, conflicts between reviewer and reviewed, by tensions pulling review bodies in different directions as they try to address different audiences for their reporting, and ultimately by lack of public standing.
If the current Canadian system clearly lacks robustness, as I have defined it; there is little to save it in terms of its integration. The meaning of integration cuts in two directions. One refers to the ability of elements of the accountability system to work together. Internal oversight is department and agency specific, with little overall coordination, especially in the absence of a Cabinet level standing committee or emergency body. The National Security Adviser can play a limited oversight role over the Canadian security and intelligence community as a whole but has to avoid delving into the details of individual agency and departmental issues. Justice Major’s Air India Inquiry report called for the strengthening of the powers of the National Security Adviser, but these recommendations were not accepted and would have required a significant re-engineering of the Canadian system with unclear payoffs.
The existing external review bodies, SIRC and the CSE Commissioner, represent siloed entities, with little capacity to coordinate their work, even in the face of increasingly integrated operations by national security agencies themselves. Their mandates limit them to the study of CSIS and CSE respectively, and nothing further. Beyond informal and limited exchanges between their professional staffs they cannot conduct joint inquiries. Justice O’Connor proposed in his Part 2 Arar Inquiry Study of national security review that statutory gateways should be constructed to allow for such coordination and joint inquiries, but the Government chose not to act on this recommendation.
Other external review agencies operate on the periphery of national security review, with only an occasional or tenuous foothold, owing to specialized mandates and sometimes lack of expertise and sufficient security-cleared staff. This is the case for the federal Privacy Commissioner, the Auditor General, and even the re-named Civilian Review and Complaints Commission for the RCMP.
Even more striking than the lack of integration between existing external review bodies, is that fact that they are wholly inadequate to confront the reality of integrated and multi-faceted national security operations conducted by a wide range of agencies, many of which are not subject to any form of external review. The basic explanation for this is historical. The external review system was first created to deal with the then limited number of intelligence agencies with an operational capacity that included intrusive surveillance powers, and hence where abuse and scandal might lie—CSIS and CSE being the prime candidates. But the review system has not kept pace with the expansion of intelligence and security activities conducted by a wider range of agencies, some with intrusive operational mandates and powers.
One illustration of the gap between reviewed and non-reviewed government bodies can be found in the listing of entities to be included in the proposed national security information-sharing regime under Bill C-51. The list includes 17 entities, of which only only 3 (CSIS, CSE, and the RCMP) are subject to some form of independent, external review. The list of non-reviewed entities includes the Canada Border Services Agency, the Department of National Defence/Canadian Armed Forces, the Department of Foreign Affairs, Trade and Development, the Department of Public Safety, and the Financial Transactions and Reports Analysis Centre of Canada (FINTRAC). All have important intelligence and national security mandates and functions.
External review, to be effective, has to have the capacity to scrutinise the operations of the Canadian security and intelligence community as a whole, or if that is too ambitious, at least its key components. Our external review system is founded on an antiquated idea of what ‘key components’ means, and has been completely outstripped by the pace of change in the Canadian security and intelligence system since the 9/11 attacks and the many organisational changes that have followed in the Canadian governmental context. Since the 9/11 attacks we have seen the creation of the Department of Public Safety, the establishment of CBSA and FINTRAC, the growth of defence intelligence within DND/CAF, and the establishment of new security and information gathering functions, including the Global Security Reporting Program (GSRP), by the Department of Foreign Affairs, Trade and Development. Too much of the Canadian security and intelligence system goes un-reviewed and this undermines confidence in the review of those few government agencies currently watched by external agencies. The review system is Swiss-cheese in nature.
Arguably the greatest gap in the Canadian system of accountability, when it comes to the ability to scrutinise the Canadian security and intelligence system as a whole, concerns Parliament. The size of this gap is far greater than many Canadians understand. There are currently standing committees of both the House of Commons (the Standing Committee of Public Safety and National Defence) and the Senate (Senate Standing Committee on National Security and Defence) whose mandates include issues of security and intelligence. But several things are worthy of note about the current committee system. One is that the mandates of both existing committees are very broad (including Defence) and not just focused on intelligence and security matters. The second is that the membership of these committees is chosen in the usual and obscure manner of jockeying among the parties and does not involve considerations of expertise on the part of MPs and Senators, which may help explain their frequent descent into partisanship. The third is that these committees have only minimal research expertise at hand, relying on assistance from the staff of the Library of Parliament. Their budgets are constrained. And if this list was not long enough, the biggest problem they face is that the MPs and Senators who sit on these committees are not security cleared, so they have no access to classified briefings and classified documents. These are committees seeking to understand the secret world without having access to the secret world.
As has often been pointed out, Canada stands apart from the practice of many of our close allies and partners, especially in the Five Eyes intelligence community, by not having any dedicated, security cleared Parliamentary body to engage in review of security and intelligence and intelligence community. Among Westminster style legislative bodies, The United Kingdom has its Intelligence and Security Committee, with a recently expanded mandate; Australia has its Joint Committee on Intelligence and Security; and tiny New Zealand punches above its weight with a Parliamentary Intelligence and Security Committee. The United States has the mother of all legislative branch review systems, dating back to the 1970s, with separate committees of the House and Senate devoted exclusively to intelligence issues. There are many models out there to choose from and best practices to adapt to Canadian needs, but we have done none of this, despite sincere attempts including proposed Government legislation in the dying days of the Martin Liberals, which had all-party support, and despite subsequent private members bills and Senate motions to create such a body. The most recent effort, voted down at second reading by a Government majority in the House of Commons in September 2014 and not sent for Committee study, was the private member’s bill, C-622, by Joyce Murray, the Liberal defence critic. The Murray bill, which was two-part in nature, aimed at improving the accountability and transparency of CSE, as well as creating a committee of Parliament to scrutinise intelligence and security matters more broadly.
In Ms. Murray’s private members bill, the mandate of a proposed committee of Parliamentarians was described as three-fold:

1) Review the legislative, regulatory, policy and administrative framework for intelligence and national security in Canada

2) Review the activities of federal departments and agencies in relation to intelligence and national security; and

3) Report publicly on its activities, findings and recommendations

This mandate would have provided for what Craig Forcese and Kent Roach aptly describe as “pinnacle” review, of the sort missing not just in Parliament, but in all the external review mechanisms of the current accountability system. [vi]
To the extent that the value of Parliamentary review has not completely penetrated the Canadian Parliament, it is illustrative to turn to Australian commentary. Perhaps the most succinct argument for true Parliamentary accountability was provided recently by Australian Senator John Faulkner, a former Cabinet Minister who serves on the Australian Parliamentary Joint Committee on Intelligence and Security. Like Canada, Australia is trying to come to grips with new national security threats from terrorism and other sources and is expanding the legal powers of its security and intelligence agencies. Faulkner stated:

“The Australian Parliament’s responsibility is clear. It must ensure our intelligence and security agencies have the necessary powers and resources to protect Australian citizens and Australian interests. But these powers can impinge on the values and freedoms on which our democracy is founded—qualities which Australian citizens rightly expect Parliament to protect. So Parliament must strike a balance between our security imperatives and our liberties and freedoms. Key to achieving this balance is strong and effective accountability.”9

Would a new Parliamentary capacity be a magic solution to Canadian accountability gaps? The reasonable answer would have to be no. It would be part, an important part, of a broad based system of internal oversight and external review. But it could command the strategic heights. It would take time for the Committee to mature and gain the trust of both the security and intelligence community and the Canadian public. Qualifications for membership on the committee would have to be carefully considered. It would be a challenge for Parliament to set aside partisanship, as any such committee must. Its reporting would inevitably be hampered by official secrecy constraints. But should we worry that such a committee would simply disappear down the rabbit hole of secrecy, leading as Philippe Lagasse opined, simply to “ a select group of parliamentarians knowing more about national security affairs, but the public knowing, and perhaps caring, less”?10 The answer is no—based on both the experience of other established Parliamentary or legislative bodies among our close allies, and on the self-interest of Parliamentarians, and Parliament, itself.
The best that can be said, and it is something, is that accountability exists in the Canadian system. But it is wholly inadequate to the task of watching over a greatly enlarged sphere of security and intelligence operations conducted by a wider range of Canadian federal agencies, and fails to meet enhanced public fears around national security and expectations of transparency and debate and the guarding of public interest about such important issues.

4. Conclusion

What Needs to be Done?

The argument of this paper is that if we have a clear understanding of the purpose of accountability, a grasp of the current context of accountability in Canada, and of its historical roots, and a clear appreciation of the current and sizeable gaps in the system, then we have a roadmap for change. The new Rome of strengthened accountability won’t be built in a day, but we need to make a start. In fact a start has been made in terms of the heightened public and political debate around these issues.
The roadmap suggests that we need to focus our attention on four areas of change:

1.Improved Ministerial accountability (internal oversight)

2.Strengthened and broadened external review so as to capture under its watchful lens the full range of intelligence and security operations that are now being conducted by the Canadian government

3. The creation of a true Parliamentary capacity to review intelligence and security matters

4. Better public reporting by all components of the internal oversight and external review system

There are some solutions at hand to satisfy to satisfy many of these requirements for change. The argument can be made that we just need the political will and sense of urgency to implement them, starting with a more strategically focused and more wide-ranging expert external review body, often referred to as the “super SIRC” model, and with the establishment of a Parliamentary review capacity.
But we have to accept that the current Government believes that existing accountability mechanisms are adequate and has rejected arguments for change. In the context of the debate around C-51 the Government has, in particular, expressed a reliance on the Security and Intelligence Review Committee to police new CSIS powers, and on judicial “oversight” to ensure that Canadians’ rights are protected and the balance between security and rights are ensured. Judicial oversight exercised, for example, through scrutiny of warrant applications, the conditions imposed on peace bonds, controls on the use of preventative detention measures, and through the trial process (or judicial proceedings in the case of security certificates), is clearly very important to a system of accountability. But I would also, without going into the details here, second the concerns of legal experts such as Craig Forcese and Kent Roach that judicial oversight can never be complete, obviously does not reach the exercise of intelligence and law enforcement powers that fall beneath thresholds for judicial engagement, and contains no built-in requirements for on-going monitoring (or feedback loops).11 Judicial oversight, like SIRC review, is part of a system; if the overall system of accountability is weak, it cannot be saved by exaggerated reliance on individual components.
But if we are faced by political stalemate at the moment, as we appear to be, the question of what can be done slips ahead of what needs to be done. What can be done might take the form of minor and unsatisfactory changes, such as statutory gateways and more resources for existing external review bodies, to the overall accountability system. In that way what can be done might fool us into thinking we have solved the problem, or solved enough of it to allow it to be safely punted into the future.
My own preference would be to substitute further (purposeful) study for inaction or incomplete action, so as not to let slip the opportunities that currently exist to make headway on a problem that has (unusually) seized the political agenda and public imagination. I would argue for further, purposeful study, on two grounds. One would be that there exist a multiplicity of possible solutions to Canada’s accountability problems that warrant careful examination. There are best practices abroad that need careful scrutiny; there is a Canadian context and history that similarly needs careful attention. The other ground for further study is to avoid missing some important additions to accountability while in hot pursuit of the obvious changes (in which basket I would put a super SIRC and a Parliamentary capacity). As we consider changes to our accountability system, maybe with the idea of returning us to a leadership role among democracies, we need to consider such things as changes to the machinery of government for dealing with security and intelligence, greater application of outside expert knowledge on complex security threats and responses, (possibly though the re-constitution of the Prime Minister’s Advisory Council on National Security). We need to consider the requirement for greater transparency, without which accountability is hobbled. One measure would be a return to the practice of issuing a National Security Strategy on a regular basis. We need to consider adopting the practice of some of our close partners in terms of establishing an independent senior judicial authority to scrutinise the ever more complex and layered nature of national security legislation.
What would constitute purposeful study? Here are two suggestions. One would be a dedicated Parliamentary review of the matter, conducted by one or both of the House and Senate. The other would be the creation of an independent external body of experts to study the accountability waterfront. Both endeavours would have as their purpose the collection and analysis of evidence about accountability gaps and the practices of our close partners; both would reflect on public requirements for accountability; both would be charged with offering, within a reasonable time frame, concrete recommendations for change, to be presented as public reports to the Prime Minister and Parliament.
Further study is needed, further study would be beneficial, further study would capitalize on the opportunity of public attention. Further study can bridge, hopefully, the gap between the necessity for change and the current political stalemate. Even if our political system chose to consider further study as a form of punting a problem over the horizon that, too, would be OK. The issues aren’t going away. And an election is coming up, and, no doubt, another one after that.

Appendix

Wesley Wark,Visiting Professor,Graduate School of Public and International Affairs,University of Ottawa
Professor Wark is one of Canada’s leading experts on national security, intelligence and terrorism. He is a frequent contributor to the Canadian and international media and is currently working on two books dealing with the history and current practises of Canadian national security.

The Conservatives’ controversial case for war

Posted on March 26, 2015

First posted on CIPS Blog (available here)

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The motion tabled in Parliament this week to extend Canada’s military engagement against the Islamic State (IS) sets a worrying precedent. The decision to expand the air war to Syria is grounded in a confused legality that blurs legitimate concerns with Iraq’s right to self-defence with the dubious legality of a global ‘war on terror’.
The motion and the various statements made by Prime Minister Harper and Defense Minister Kenney assert, in broad terms, three justifications for Canada’s military campaign against IS: the threat IS poses to Canada; the need for Canada to assist the government of Iraq in the defence of its people and territory; and the threat IS poses to civilians and religious and ethnic minorities in Iraq and Syria.
Of the three, only the second gives clear, international legal justification to the coalition campaign against IS. Iraq is fully entitled to defend its territory against the IS incursions from Syria, or to battle Iraqi insurgents who have joined IS. In doing so, Iraq may invite nations, like Canada, to come to its aid, including pursuing IS forces in Syrian territory that is no longer controlled by the Syrian government. The case is even stronger because Syria has acquiesced in the face of US airstrikes on IS in Syria.
Given this reasonably sound legal basis for the Canadian military engagement against IS, in both Iraq and Syria, it is surprising and worrying that the Harper government also points to the threat that IS poses to Canada to justify its action. Sporadic terror attacks on Canadian soil are not the types of threat that, until now, Canada has argued give rise to a right to pre-emptively use military force in other countries to eliminate them. Yet the parliamentary motion specifically cites the fact that IS has called for attacks in Canada. And in citing the self-defence argument, both Harper and Kenney have said it refers to the defence of Iraqand Canada.
The broader self-defence argument is familiar – it has been cited by the United States for several years to justify its global war on Al-Qaeda (and the attacks on terrorist targets in Yemen, Somalia, Libya, Pakistan and elsewhere). It is a controversial extension of the self-defence doctrine that few countries or international legal experts accept. So controversial in fact, that President Obama has limited it, noting that the US will endeavour to carry out these attacks with at least the tacit consent of the country concerned.
The reason is obvious. Many countries harbour foreign dissidents, rebels or exiles who are considered ‘terrorists’ by their home country, and who may be advocating or somehow inspiring or supporting attacks at home. The logic of the global war on terror would justify dozens of new wars – something that may soon be all too real as many countries acquire drone technology. Moreover, though posited as a military strategy, such attacks often resemble little more than targeted assassinations. Independent observers have concluded in several cases that US attacks in Yemen and Pakistan amount to extrajudicial executions.
But if they’re unnecessary, and poorly supported as a matter of law, why is the Harper government making these broader self-defense claims? There is no obvious answer. Some suggest it is just domestic politics. The Tories are hyping the IS threat to gain support, as they believe they are the party most Canadians trust on national security issues. Perhaps. But if so, it is a shortsighted approach. Many countries – indeed likely a large majority – will understand and accept that Canada chooses to assist Iraq to defend its territory. Yet, very few will agree with the idea that Canadian warplanes can attack IS in Syria because its leadership inspires violence against the west.
More worryingly, the broader self-defense claim may genuinely reflect the Prime Minister’s views – that Canada has a right to attack a terrorist group that threatens Canada, no matter where it is located. The Prime Minister has repeatedly spoken in recent weeks of the “international jihadist movement” and the threat it poses. It is an “evil” that must be confronted, not only in Iraq and Syria. Of course, there is no evidence to suggest the government actually intends to attack IS targets beyond Iraq and Syria. Further, the fact that Canada simply lacks the surveillance and military capacity to take the fight much further than the current engagement in Iraq and Syria suggests that a broader threat is not intended.
Nevertheless, there is some ambiguity in the parliamentary motion itself, especially when it refers to the need to attack “terrorists aligned with ISIL”. Presumably this means only in Iraq and Syria. There is an expanding number of IS franchises in Africa and elsewhere in the Middle East. What if they too start preaching violence against Canada? Words matter in international diplomacy, not least when war is at stake.
Finally, what of the last justification? Is Canadian military action against IS in Syria justified in order to prevent more IS atrocities against civilians and minorities? As a legal matter, a humanitarian intervention in Syria would require Security Council authorization. But as a practical matter, the argument is hard to sustain. There are many forces terrorizing civilians in Syria and Iraq, not least President Assad’s army and militias. Few would treat seriously a claim grounded in the protection of civilians that aims to eliminate only one murderous faction and in doing so arguably strengthens the others. The United Kingdom and other countries in the coalition have thus downplayed the humanitarian rationale and insisted military action was justified in the self-defense of Iraq. The US too has downplayed the humanitarian argument in making its legal case.
Canada could rely solely on the limited self-defence argument to justify the extension of its air war to IS targets in Syria. Of course, the success of the campaign is far from certain. In asserting, however, a broader right to respond militarily to terrorist threats abroad, Canada is signing up to a failing US strategy, of dubious legality, that despite hundreds of attacks in several countries, and over a decade, has manifestly not reduced the spread of Islamist militancy.
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Crisis and opportunity: Time for a national infrastructure plan for Canada

Posted on March 23, 2015

This commentary is based on the Canada 2020 research paper ‘Crisis and Opportunity’

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Infrastructure is central to every aspect of life in Canada. It’s a key driver of productivity and growth in a modern economy and it contributes to the health and well-being of Canadian citizens. It is a method for enabling communication and sharing of information between citizens. It is a means for providing core services such as water, electricity and energy and is a shaper of how our communities grow and contribute to our collective social fabric.
On a daily basis across the country, Canadians are impacted by infrastructure that has failed to be maintained or that has not been built. This can be partly attributed to a major shift in infrastructure ownership and financing over the past 50 years. In 1955, the federal government owned 44 percent of public infrastructure. Today, that number is less than five percent.
Municipalities own over 50 percent of public infrastructure, but collect only eight cents of every tax dollar. On the other hand, the federal government has 50 percent of Canada’s fiscal capacity, but contributes only 12 percent of our infrastructure fund. Experts have noted that the federal government should be spending approximately two percent of GDP on infrastructure to enhance prosperity and maintain a high quality of life. The current level of investment is 0.37 percent of GDP.
In 2013, the Canadian Chamber of Commerce estimated that Canada’s infrastructure deficit could be as high as $570 billion. I’m sure you experience this backlog of investment each day— from potholes that damage cars and act as safety hazards while cyling, to the overcapacity of public transit systems and lack of affordable housing options for Canadians. We have a lot of work to do.
Equally concerning is the fact that our existing infrastructure is not equipped to deal with the reality of climate change and extreme weather. Prior to 1996, only three natural disasters exceeded $500 million in damages. Since 1996, Canada has averaged one $500 million or larger disaster almost every year. On average, each natural disaster lowers GDP by approximately two percent.
In a paper I co-authored with Evergreen CityWorks Executive Director John Brodhead and economist Sean Mullin for Canada 2020, we called for urgent federal attention to this issue. Countries that exhibit best practices for infrastructure investment have decision-making frameworks driven by a strong central government committed to innovation and economic development. Within these frameworks, projects move forward based on multi-year forecasting and planning, establishing a platform for innovation, resiliency and prosperity. In Canada there has been an absence of a national infrastructure strategy and long decline of federal involvement in infrastructure spending has exacerbated Canada’s infrastructure deficit.
This challenge also represents a key opportunity for Canada’s federal government, as the economic benefits of investing in public infrastructure are substantial. David Dodge, former Governor of the Bank of Canada, has called on government to take advantage of the historically low interest rates as a way to provide badly needed stimulative effects in the economy in the short-term, and contribute to higher productivity and a more competitive economy in the long run. The current market conditions create a window of opportunity for decisive action by an active and committed federal government.
In the paper, we argue that it is time for the federal government to play a strong role in the planning and funding of public infrastructure in Canada. A critical starting point would be the creation of a long-term National Infrastructure Plan. We outline several components of what this plan could look like, but a central feature would be a comprehensive multi-year plan that would prioritize infrastructure projects across a number of areas of national significance. This feature would include a 10-year project pipeline prioritized by status, updated at least once a year on a rolling basis to reflect the movement of the projects in the pipeline and changes in strategy or emphasis.
A National Infrastructure Plan, respecting provincial and municipal jurisdiction, would coordinate infrastructure efforts across Canada, take advantage of the federal government’s fiscal capacity, create clear, transparent rules for infrastructure programs, enhance transparency of infrastructure planning and prioritization and share best practices across Canada. Only the federal government has the ability, authority and fiscal capacity to play this role within Canada.
The state of Canada’s infrastructure represents both a crisis and opportunity for our country. Only by taking decisive action now, can the federal government ensure we collectively seize the latter and avoid the former.
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–
Jesse Darling is an Urban Project Designer at Evergreen CityWorks in Toronto.

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Introduction

Management of New Information Technologies Vulnerabilities

Definition of Digital Personal Information

1. Personal Data on the Internet

2. Access to Personal Accounts on Social Networks

Hosting Personal Information in the Cloud

1. Benefits and Risks of Cloud Computing

2. The ISO/IEC 27018 Standard for Privacy Protection in Cloud Computing

Balance Between Public Transparency and Privacy

Conclusion: Emerging Challenges

Appendix

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Photo

Video

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Introduction: Trust in Government

2. What is Open Government?

3. Focusing on Open Dialogue

4. Objectives for the Open Dialogue Initiative

5. Towards an Open Dialogue Framework

6. The Project: Who are we engaging?

A. Open Dialogue Initiative: The Public Service Stream

B. Open Dialogue Initiative: The Parliamentary Stream

C. Realigning Parliament and the Executive

D. Deliverables

7. Conclusion: Back to Public Trust

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Cutting taxes one shiny credit at time

Final Thoughts

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Originally posted on National Newswatch (available here)

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1. Introduction

2.Accountability for security and intelligence

Who Benefits?

3.What is Wrong with the Current (Canadian) system of accountability?

4. Conclusion

What Needs to be Done?

Appendix

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First posted on CIPS Blog (available here)

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This commentary is based on the Canada 2020 research paper ‘Crisis and Opportunity’