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Annual Report 1995-1996 - An Operational Audit of CSIS Activities
5. Complaints
As an independent investigatory agency established under the Canadian Security Intelligence Service Act6, we conduct investigations into the activities of the Canadian Security Intelligence Service (the “Service
”) (section 41 of the CSIS Act), into denials of security clearances (section 42 of the CSIS Act) and render reports under the Immigration Act7, the Citizenship Act8 and the Canadian Human Rights Act9.
(a) Statistics
During the 1995-96 fiscal year, we received 29 new complaints, one Ministerial report and one referral from the Canadian Human Rights Commission.
| New Complaints |
Carried Over from 1994-95 |
Closed in 1995-96 |
Carried to 1996-97 |
||
|---|---|---|---|---|---|
| CSIS Activities | 29 | 4 | 30 | 3 | |
| Security Clearances | 0 | 0 | 0 | 0 | |
| Immigration | 1 | 0 | 0 | 1 | |
| Citizenship | 1 | 0 | 0 | 1 | |
| Human Rights | 1 | 0 | 1 | 0 | |
(b) Complaints Against the Service's Activities
(i) Prerequisite to the Committee's Jurisdiction
Any person may make a complaint to the Committee with respect to “any act or thing
” done by the Service and we must investigate such a complaint as long as we are satisfied that it is not trivial, frivolous, vexatious or made in bad faith, and that the complainant has first submitted his or her complaint to the Director of CSIS.
If, after having submitted the complaint to the Director, the complainant is not satisfied by the Director's response, or if there has not been a response within a reasonable period of time, the complainant can bring the matter to our attention for an independent review.
We are precluded from investigating a complaint in respect of which the complainant is entitled to seek redress by means of a grievance procedure established either pursuant to the CSIS Act or the Public Service Staff Relations Act. For the year under review, we declined to investigate four such complaints from ex-employees of the Service.
(ii) Examples of Complaints Against the Service
Is CSIS bugging you?
As in previous years, we received fourteen complaints from individuals who believed that: they were the subject of undue surveillance, the Service had provided negative comments to their employers, their mail or telephone was censored, or that the Service had performed medical experiments on them by implanting a device. In such cases, we usually neither confirm nor deny that a person is a target. However, we thoroughly investigate the allegations to ensure that the Service has not used and is not using its powers unreasonably. After having ascertained that the Service is performing its duties and functions effectively, efficiently, and legally, we try to convey that assurance to the complainant.
How long is too long?
For the year under scrutiny, we received 9 complaints with respect to the Service's activities in providing security assessments and/or advice to the Minister of Citizenship and Immigration Canada (C & IC). In accordance with section 15 of the CSIS Act, the Service may conduct such investigations as are required for the purpose of providing security assessments to the Minister as to whether an applicant for permanent residence is a member of an inadmissible class of persons under section 19 of the Immigration Act. The actual decision to grant or refuse an application rests with the Minister.
In the first of these investigations, we dealt with an application that had been sent to the Service in the Fall of 1990. Though it was a complex case and the Service needed considerable time to ensure that it provided complete and accurate advice to C & IC, we concluded that taking 46 months to process an application was unacceptable and that the complaint was justified. There was an undue administrative delay in the Service's handling of the case that was not reasonable in the circumstances.
In other cases dealing with applications arising before 1992, we concluded that the overall administrative system for processing security screening applications within the Service was inefficient. The Service acknowledged that, for the period between 1989 and 1991, it was faced with a physical environment of inadequate resources and technology while dealing with an increasing level of work. We sought and received the Service's assurance that these inadequacies were corrected. In 1992, the Service introduced new measures which have enabled it to deal with applications in a more timely fashion.
In one instance, our investigation revealed that the complexity of the case was increased by a lack of forthrightness on the applicant's part. In light of the fact that the Committee was not in a position to comment on the six months period it took to schedule an interview, since this is always done by C & IC, and because we found that the Service had completed its enquiries and reported its conclusions to the department of C & IC within a month, we concluded that the complaint was not justified. The Committee also found that it was good policy for the Service not to proceed with the applicant's partner's application in light of the concerns identified in the main application. There was an administrative delay in the Service's handling of the two applications but that delay was justified by the seriousness of the concerns identified and the lack of forthrightness on the part of the applicant.
In another instance, we were in a position to confirm that, in the midst of our investigation, the Service's advice was sent to C & IC. We informed the complainant of that development. Nevertheless, the complainant asked us to pursue our review of the time taken by the Service to process the application for permanent residence status. We will be reviewing and commenting on that issue.
Press Allegations
We investigated the concerns raised by a Member of Parliament regarding the alleged investigations by CSIS of a medical doctor and a businessperson because of their relationships with Cuba, and their travels to that country. The Service can interview individuals to solicit information, views, and opinions, in order to become better informed on issues within the investigative mandate of the Service. Without infringing on privacy considerations we can indicate that we determined that the concerned individuals were not targets of the Service and that the Service should have given them specific assurances in that regard.
Allegations of bias on the part of the Service
We investigated a complaint regarding the Service's activities in the conduct of a security screening enquiry and its ensuing recommendation to a government department.
In summary, the complainant had indicated that the conduct of the Service's investigator had revealed bias. The complainant said that the reasons for the security screening investigation were not provided, nor had he been informed that allegations had been made against him, and that damaging letters had been sent to the department where he worked. He also complained that he had not been provided with a copy of the final report or even an opportunity to review it.
Concerning the investigator's reports, we found that the information could have been reported in a more professional manner by distinguishing clearly between what was actually said by the source of the information, and the investigator's own comments. The investigator's use of generalizations and subjective characterizations may have presented a more negative view of the complainant than the actual information from the sources warranted.
According to the GSP, a critical function of the Subject Interview is to allow the subject to respond to the allegations against him or her. We concluded that the complainant had not been given such an opportunity and that the investigator's failure to confront the complainant with the allegations should have been noted in his report.
However, the process by which an investigator's report is reviewed and processed before the Service reaches a final conclusion provides some allowance for an investigator's potential bias. Furthermore, the actual Subject Interview Report is not sent, as a matter of practice, to the Government department. We confirmed that it had not been sent in this particular case. The Service's final recommendation to the Government department was much more temperate than the investigator's observations.
Beyond the complaint itself, we were greatly disturbed by the department's restricting the complainant's access to information to a level lower than the level specified by the complainant's security clearance, without formally revoking that security clearance. A course of action that, if it became widespread, could seriously undermine both the integrity of the security clearance process and the integrity of the review mechanism established by Parliament in the CSIS Act.
An Alleged Spy
In our Annual Report for 1993-94, we reported on a case heard by the Chairman of the Committee. The case received considerable publicity this year.
The case dealt with a complaint received from an ex-contractual employee of the Service who had been involved in the security screening investigation of another Service employee. According to the complainant, the security screening investigation had revealed problems that had not been addressed, and he questioned the impartiality and objectivity of a senior employee of the Service, whose intervention had had the effect of terminating the investigation.
Section 41 of the CSIS Act provides for an investigation by the Committee where a complaint has been received from “any person with respect to any act or thing done by the Service.
”
Because the complainant was an ex-contractual employee, the complaint involved the disclosure of sensitive information that had come to his knowledge in the course of his duties and functions as an employee of the Service. An important consideration was the protection of personal information concerning the Service employee who was the subject of the security screening investigation. We were also conscious of the fact that the case could come back to the Committee as a section 42 complaint in the event that the case was re-opened.
After hearing evidence from all of the parties concerned, we had serious reservations about the Service's security screening investigation in this case. Some important matters had not been adequately resolved.
We recommended that:
- the security screening investigation of that particular employee be re-opened and that several specific concerns mentioned be re-addressed;
- the employee be re-interviewed by objective and experienced interviewers with a view to resolving any remaining concerns; and,
- where possible, interviewers be selected who do not know the individual concerned.
We are satisfied with the actions taken by the Service.
(c) Security Clearance Complaints
Section 42 of the CSIS Act provides a right of complaint to the Committee for individuals who have been denied employment, or have been dismissed, demoted or transferred because of the denial of a security clearance.
We did not receive any complaints under this section this year.
(d) Ministerial Reports by the Minister of Citizenship and Immigration Canada and the Solicitor General
Citizenship Refusal10
The Minister of Citizenship and Immigration Canada may make a report to the Committee when the Minister is of the opinion that a person should not be granted citizenship because there are reasonable grounds to believe that the person will engage in an activity that constitutes a threat to the security of Canada, or that is part of a pattern of criminal activity involved in the commission of an offense punishable by way of indictment.
We received one Ministerial report pursuant to this section this year, but our jurisdiction was successfully challenged in the Federal Court. We comment upon this case in Chapter 1.
Deportation Order11
We did not receive any Ministerial Reports under this section this year.
(e) Canadian Human Rights Commission Referral12
When, at any stage after the filing of a complaint and prior to the commencement of a hearing before a Human Rights Tribunal, the Commission receives written notice from a Minister of the Crown that the practice to which the complaint relates was based on considerations relating to the security of Canada, the Commission may refer the matter to the Review Committee.
For the year under review, the Commission referred one case to us.
After examining the circumstances of the case, the Committee concluded that the practice about which the individual complained was not related to matters affecting the national security of Canada. The Committee nevertheless offered to act as a facilitator in the unlikely event that information requested by the Commission, or information necessary for the Service to respond to the allegations of the Complainant, involved the disclosure of sensitive and classified information.
6 R.S.C. 1985, c. C-23.
7 R.S.C. 1985, c. I-2.
8 R.S.C. 1985, c. C-29.
9 R.S.C. 1985, c. H-6.
10 See the Citizenship Act (s.19.1 onward).
11 See the Immigration Act (s.30 onward).
12 See section 45. (1) of the Canadian Human Rights Act.