Section 5 Measures of Accountability and Review of National Security Agencies and their Practices, Especially Pertaining to Fidelity to Legal Mandates and Human Rights

An effective system of accountability is vital to the practice of intelligence in democratic states. Yet such systems have, historically, been slow to develop. The lead was taken by the United States during the 1970s, when investigations by House and Senate committees into the practices of the US intelligence community led to the creation of formal committees for intelligence oversight in Congress. Since the late 1970s, the US lead has been followed, after some time, by many Western parliamentary democracies, including the United Kingdom, Australia and New Zealand.

Canada has not yet developed a formalized system of parliamentary scrutiny of its security and intelligence community, though one may be forthcoming. In December 2003, the new Liberal leader, Paul Martin, proposed the creation of a National Security Committee of Parliamentarians. The idea was studied and reported on by an interim committee of parliamentarians between May and October 2004. The government tabled draft legislation, Bill C-81, An Act to Establish the National Security Committee of Parliamentarians, on November 24, 2005, but it was not passed before Parliament was prorogued in December 2005 for a general election. The new Conservative government of Stephen Harper has not, at the time of writing, announced its intentions with regard to a Parliamentary body.

But in the absence of dedicated Parliamentary scrutiny, there are ways of ensuring the accountability of the security and intelligence community.⁵⁵ These include ministerial accountability and federal review bodies as well as, the media and the academic community, both of which are beyond the scope of this study.

The key elements in the Canadian system are ministerial accountability and federal review bodies. Ministerial accountability is a keystone of Westminster-style parliamentary democracies. The basic philosophy of ministerial accountability appears simple. Ministers are responsible for the departments they lead and are accountable to the public, through Parliament, for the performance and administration of their departments. But according to a research paper produced for the Gomery Inquiry, the doctrine of ministerial responsibility is "a layered concept with different meanings."⁵⁶ David E. Smith calls for significant efforts in the Canadian Parliament to define the concept and to provide for individual ministerial accountability through committee monitoring.

If the rules governing ministerial accountability in Canada are unclear and there is no established Parliamentary procedure in committees to underpin them, then the problem becomes even greater when it comes to ministerial accountability for departments that are responsible for security and intelligence. The difficulty resides in the fact that maintaining secrecy about operational sources and methods of intelligence services deters ministers from becoming completely familiar with the work of agencies that report to them. When it comes to ministerial accountability for law enforcement agencies with a national security mandate, such as the RCMP, the problem is further compounded by the principle of non-involvement by ministers in criminal investigations.

In practice, ministerial accountability in the security and intelligence realm mainly lies with deputy ministers, some of whom have internal accountability mechanisms at their disposal. The most relevant example of such an internal mechanism is the Inspector General of CSIS. The idea of an inspector general (IG) was promoted by the McDonald Commission and incorporated into the CSIS Act when it was passed in 1984. The official description of the function of the IG reads as follows: "The Inspector General serves as the Minister’s internal auditor for CSIS and supplements the Deputy Minister’s advice with an independent means of assurance that CSIS complies with the law, ministerial direction and operational policy."⁵⁷

The CSIS IG must produce an annual certificate for the Minister commenting on the annual report of the Director of CSIS.⁵⁸ This process is meant to establish checks and balances. It is supplemented by the independent advisory function of the CSIS IG when it comes to accountability issues and the power of the minister to direct the IG to undertake specific studies.

While the inspector general is responsible for internal accountability of the Canadian Security Intelligence Service, there is also an external review agency, the Security Intelligence Review Committee (SIRC). Like the IG, SIRC was established under the CSIS Act in 1984. SIRC produces classified reviews for the Minister and an annual report, the public version of which is tabled in Parliament. The annual reports are posted on the SIRC website. SIRC’s mandate requires it to focus on issues of propriety—adherence to the law and ministerial direction. Over the years SIRC has increasingly broadened its interpretation of its mandate, as can be seen by the current title of its annual reports—"Operational Audit." But SIRC has been reluctant to engage in qualitative studies of the performance of CSIS and has proved to have little capacity to engage in lessons-learned exercises.⁵⁹ This has, arguably, limited its value.

A second obstacle to SIRC’s capacity to fulfill its accountability function is the perennial problem of secrecy. As regards accountability, SIRC’s role is to report to the Minister and through the Minister to Parliament. SIRC does not report directly to the public, nor is it accountable to the public. The tabled version of its annual report, like the public version of the IG’s certificates, often appears sanitized because of national security confidentiality.⁶⁰

Two other elements of the Canadian security and intelligence community currently operate in conjunction with external review bodies. The activities of the Communications Security Establishment (CSE), Canada’s signals intelligence agency, are subject to review by the Office of the CSE Commissioner. The position of CSE Commissioner was first established in 1996, and the incumbent operated under several Orders in Council. The Commissioner’s mandate was to review CSE operations to ensure their compliance with the law and, secondarily, to investigate complaints about the lawfulness of CSE activities.

The Office of the CSE Commissioner received a legislative mandate under Bill C-36, the Anti-Terrorism Act, enacted in December 2001. The new legislation confirmed the previous scope of the Commissioner’s fun ctions and expanded them. It gave the Office new responsibilities to monitor CSE compliance with ministerial authorizations regarding the interception of communications. It also involved the Commissioner in determining the grounds for the actions of officials who might be engaged in whistle-blowing—what is referred to as public interest defence under the terms of the new Security of Information Act.⁶¹

The CSE Commissioner produces an annual report as part of his mandate. This report is submitted to the Minister of National Defence, who tables it in the House of Commons. The annual report comments, where applicable, on the four main elements of the Office’s duties:

• CSE compliance with the law
• CSE compliance with ministerial authorization regarding the interception of communications
• complaints against CSE
• public interest defence cases

The CSE Commissioner’s role with regard to ministerial authorizations is an important reflection of new powers given to CSE under the 2001 Anti-Terrorism Act. Prior to the Act, CSE was forbidden to intercept the communications of Canadians. CSE retains its function as a foreign intelligence agency under the Act, but it was given the legal capability to intercept Canadian communications in very tightly defined circumstances. Under Bill C-36 (National Defence Act, Part V.1, the Minister of National Defence is empowered "to give CSE written ministerial authorization to intercept private communications."⁶² The authorization can only be given for the purpose of collecting foreign intelligence under CSE’s mandate or for protecting the computer systems or networks of the Government of Canada. It should be noted that CSE interception operates without the usual checks provides by federal court warrants, and thus ministerial authorization, along with external scrutiny of that authorization, is most important.⁶³

The CSE Commissioner’s main contribution is to support ministerial accountability. The same constraints impact on the Commissioner’s annual report as on SIRC and the CSIS IG. Secrecy provisions, along with sanitized reports, limit its capacity to enhance public understanding of the CSE function.

The other agency of the Canadian security and intelligence community that has an external review mechanism is the Royal Canadian Mounted Police. In the case of the Mounties, the review mechanism is different.

The Commission for Public Complaints Against the RCMP (CPC) was created by an Act of Parliament in 1988. Its function is not to carry out systematic reviews, but rather, as the title suggests, to review complaints from the public about RCMP conduct. The Commission Chair does have the power to initiate investigations itself, as it did in October 2003 with regard to the Maher Arar case.⁶⁴ Unlike the CSIS IG, SIRC or the CSE Commissioner, the CPC functions in the realm of public, rather than ministerial, accountability.

In the past, the CPC has faced daunting challenges in investigating the RCMP’s national security activities. This experience led then Chair of the Commission for Public Complaints, Shirley Heafey, to address the O’Connor Commission, pursuant to its Part II review on the issue of a new review mechanism for RCMP national security activities. Ms. Heafey submitted two reports to the Arar Commission, the second of which makes some forceful points.

Ms. Heafey argued that information is the "lifeblood" of a public complaints process and that the RCMP’s "reluctance" to provide the CPC with all relevant information relating to complaints is "already hindering the CPC’s ability to perform its statutory mandate."⁶⁵ Ms. Heafey argued for the retention of the CPC, but with its enabling legislation altered to give it access to all relevant information as well as audit powers. Given that the RCMP operates within a broader security and intelligence community, Ms. Heafey accepted the need for an overarching review body, a national security review committee that "would co-exist with the CPC and other review agencies and would oversee the conduct of all federal entities engaged in national security."⁶⁶

The recommendations of the O’Connor Commission with regard to new review mechanisms for RCMP national security activities, now scheduled to be delivered in the fall of 2006, will have to decide between proposals for mechanisms specifically focussed on the RCMP and a system of external review of the entire security and intelligence community. Its recommendations and the government response, along with the question of a future Parliamentary committee, have the capacity to considerably alter the way Canada reviews its national security system.

The last element to be considered here in the current accountability framework involves the work of the Auditor General. The Office of the Auditor General (OAG) has, by far, the longest history of any federal agency currently involved in reviewing the activities of the security and intelligence community. The Office was originally established in 1878. The original purpose—to inform Parliament about the spending of public monies-remains central to the work of the modern Auditor General. Successive pieces of legislation—the Auditor General Act of 1977, its amendment in 1994, and a further amendment in December 1995—provide the foundation for the OAG’s current activities.

Despite its long history, the Office of the Auditor General embarked on its first study of the Canadian intelligence community only in 1996. That pioneering study focussed on control and accountability issues.⁶⁷ The OAG concluded in a balanced fashion that substantial measures for control and accountability existed, that progress had been made in recent years, but that more could be done. In particular, the OAG urged greater efforts to strengthen leadership and coordination across the intelligence community and to improve the process of priority setting. It also called for improvements in the way that the performance of CSIS and CSE was measured. Anticipating the future, it argued that the CSE needed a legislative framework "in view of the significance, sensitivity and cost of its operations."⁶⁸ This legislative framework would be built into Bill C-36, the Anti-Terrorism Act.

The Auditor General returned to the subject of the Canadian security and intelligence community in 2004. Chapter 3 of her March 2004 report was devoted to a study of the implementation of the government’s 2001 anti-terrorism initiative, with particular reference to the ways in which the government had spent the first batch of money allocated for national security in its December 2001 security budget. The OAG 2004 report contained relatively little comment on matters of accountability and focussed more on operational issues. But the OAG did find areas where it believed disappointingly little progress had been made since its 1996 initiative. The Auditor General continued to be concerned about the lack of coordination of intelligence across government departments and about the ability of intelligence agencies to communicate with each other. The Auditor General pointed to the need to "strengthen the management framework for security and intelligence." "Improvement," she argued, "is especially needed in the management of issues that cross agency boundaries, such as information systems, watch lists and personnel screening."⁶⁹

While the 2004 OAG report was operationally focussed, it is very relevant to a study of accountability in the national security systems and its relation to the protection of rights. A security and intelligence community that lacks sufficient coordination, and in which problems of interdepartmental cooperation on information sharing exist, is a community that invites problems when it comes to ensuring the protection of human rights.

Overall, we have seen that there are a number of key characteristics to the accountability and review measures used in national security agencies in Canada. The first is that primary accountability in the security and intelligence field lies with the minister. But ministerial accountability is lessened by the absence of an effective Parliamentary committee system. A second characteristic is that both internal and external review bodies are highly specialized. They are specialized both as to their mandate, which focuses on single entities in the security and intelligence community, and with regard to their emphasis on ensuring compliance with the law. A third characteristic is that the notion of direct accountability to the Canadian public is largely absent from the system. The public capacity to profit from the accountability and review system is limited because of secrecy constraints and the nature of reporting that is provided to the public through Parliament.

None of the current review agencies has an explicit mandate to review human rights issues; their common task is to monitor compliance with specific legal mandates and ministerial directions. However, these legal mandates and ministerial directions require t hat human rights be protected and respected. The CHRC should monitor the reporting done by review agencies so as to make its own assessments of the information provided in the public domain. From this information it may be possible to establish long-term trends and identify more immediate issues of concern. This will allow the CHRC to make recommendations about security and intelligence practices and their impact on human rights in Canada.

Key recommendation:

The CHRC should build a database of human rights concerns from the reports issued to date by review agencies responsible for security and intelligence. The purpose of this study would be to assess the extent to which such review agencies have paid systematic attention to human rights issues and in their reporting have revealed any cumulative trends of concern. The material to be studied would include available public domain reports from the CSIS IG, SIRC, the CSE Commissioner, the RCMP Public Complaints Commission, and the Auditor General. This database could be an important element of the CHRC "human rights report card."