Annual Report 2005-2006 - An Operational Review of CSIS Activities

Section 1: A year in review 2005-06

B. Investigation of complaints

How SIRC investigates complaints

In addition to its review function, SIRC is responsible for investigating complaints from the public about CSIS. Almost all complaint cases begin as inquiries to SIRC— either in writing, in person or by phone. SIRC staff respond promptly to such inquiries, usually instructing the prospective complainant about what the CSIS Act requires for their concern to become a formal complaint. Once a written complaint is received, SIRC conducts an initial review.

Where a complaint does not meet certain statutory requirements, SIRC declines jurisdiction and the complaint is not investigated. If jurisdiction is established, complaints are investigated through a quasi-judicial hearing presided over by one or more Committee members, assisted by staff. In investigating complaints, SIRC has all of the powers of a superior court, and has access to all information that might be in the possession of CSIS, except for Cabinet confidences.

A complainant has the right to be represented by counsel and to make representations at the hearing. Pre-hearings may be conducted to establish and agree on procedures with the complainant and/or the complainant's counsel. SIRC's Senior Counsel provides legal advice on procedural and substantive matters, and will also cross-examine Service witnesses when, for national security reasons, evidence must be heard without the complainant being present.

At the completion of a hearing, SIRC prepares a report with findings, including any recommendations SIRC considers appropriate. This report is sent to both the Minister of Public Safety and the Director of CSIS. Any information with national security implications is removed from the version of the report that goes to the complainant. Summaries of these reports, edited to protect national security and the privacy of complainants, are also included in SIRC's annual report to Parliament.

The types of complaints that SIRC investigates are described in the CSIS Act and take several forms. Under Section 41 of the Act, SIRC can investigate "any act or thing" done by the Service. Under Section 42, it can hear complaints about denials of security clearances to federal government employees and contractors (see "Determining jurisdiction of a complaint under Section 41 and 42" ). Section 42 does not permit SIRC to accept jurisdiction to hear complaints concerning less intrusive background screening or reliability checks, which are generally conducted simply to determine the trustworthiness or suitability of a potential federal employee. These complaints are addressed through an organization's designated grievance procedure.

Under the CSIS Act, individuals who have been denied a security clearance must be informed of this action by the Deputy Head of the organization. These individuals have the right to make a complaint to SIRC, and where appropriate, it will investigate and report its findings and any recommendations to the Minister, the Director of CSIS and the Deputy Head. SIRC also provides the complainant with a report of its findings, taking into consideration the obligation to protect classified information.

Should the Canadian Human Rights Commission receive a written notice from a Minister of the Crown about a complaint that relates to the security of Canada, the Commission may refer the matter to SIRC. Upon receipt of such a referral, SIRC carries out an investigation and reports its findings to the Commission, the respondent and the complainant. SIRC also has the authority to conduct investigations into matters referred to SIRC pursuant to the Citizenship Act.

Table 1 provides the status of all complaints directed to SIRC over the past three fiscal years, including complaints that were misdirected to SIRC, deemed to be outside SIRC's jurisdiction or investigated and resolved without a hearing (i.e., administrative review).

* This reflects all complaints received by SIRC. Not all complaints resulted in an investigation. Some were redirected to another government institution, or were determined to be outside SIRC's jurisdiction. Others were withdrawn by the complainants.

New procedures

During 2005-06, SIRC developed in consultation with CSIS new practices to streamline the complaints investigation process and ensure procedural fairness.

First, revisions were made to the way in which documents are disclosed to SIRC by the Service. It is important to note that SIRC's access to information in this area is limited only by Subsection 39(3) of the CSIS Act, which states that CSIS may withhold Cabinet confidences from SIRC. New procedures have been adopted based on the principle of continuing disclosure, as provided for in Subsection 226(1) of the Federal Court Rules, as well as in Subsection 6(5) of the Canadian Human Rights Tribunal's Rules. It allows SIRC to be notified by CSIS in a timely manner when the Service becomes aware of documents relating to a complaint that have not previously been made available to SIRC.

Another innovation is the "pre-hearing conference." Introduced in January 2006, this conference is conducted by a presiding Member of SIRC with all parties in attendance to resolve preliminary procedural matters (e.g., allegations to be investigated, the identity and number of witnesses to be called). Provided that no issues of national security are raised, the conference can be conducted by telephone and a transcript is later provided to the parties.

As of March 31, 2006, four pre-hearing conferences had been held by SIRC.

SIRC complaint decisions in 2005-06

The following are summaries of the decisions rendered by SIRC during the period under review, in response to complaints filed with SIRC.

Report on the investigation into the complaint in the matter of Bhupinder Liddar

Report #1

A complaint was filed with SIRC under Section 42 of the CSIS Act after the complainant, Mr. Bhupinder Liddar, was denied a security clearance, based on a recommendation (referred to as a "denial brief ") by CSIS.

After reviewing the complaint, SIRC found there was no reasonable basis for that recommendation, and that it was inaccurate and misleading for several reasons.

First, SIRC concluded that the denial brief contained an unfair and prejudicially inaccurate account of the information that the Service had in its possession when it began the security clearance investigation. Next, SIRC concluded that the brief was based on a field investigation conducted by an inexperienced CSIS investigator, who arrived at unfounded conclusions.

SIRC found that there was no reliable evidence to support a conclusion that the complainant might engage in activities that would constitute a threat to the security of Canada, or that the complainant might disclose classified information in an unauthorized way.

SIRC recommended that:

• The Deputy Head of the relevant federal department/agency grant the complainant the requested security clearance; and
• CSIS institute procedures to ensure that accurate notes are taken, or that a recording is made, of security screening interviews. These should be kept for five years after an interview, or for even longer periods should an interviewee challenge the outcome of a security screening investigation. 

In response to this latter recommendation, CSIS informed SIRC in December 2005 that it had revised its practices concerning note-taking and consensual recording of interviews. Investigators are now required to make an offer to record an interview of a subject when conducted for government security screening. The Service will continue its requirement to prepare an accurate, complete report of the proceedings, regardless of whether the subject consents to the interview being recorded.

Denial of security clearance

Report #2

SIRC reported a second decision that was also pursuant to Section 42 of the CSIS Act concerning the denial of a security clearance.

SIRC found that the decision to deny the security clearance was made on incomplete and at times incorrect information. Some corroborated information that was favourable to the complainant was not included in the denial brief. Moreover, SIRC found that concerns identified by the employing department about the complainant's loyalty and reliability were not supported by the evidence presented during the complaints hearing.

SIRC also found that there was a lack of procedural fairness in this case by the employing department, since the complainant was not able to respond to the allegations prior to the decision to deny the security clearance. The complainant was not made aware by the employing department of the reasons for the denial, including the security concerns identified by CSIS.

SIRC recommended that:

• the complainant be granted the requested security clearance;
• CSIS should verify or corroborate security clearance information provided by an applicant or by sources when it can be done easily;
• the employing department/agency should clarify its procedures so that an individual in these circumstances is provided with information concerning any adverse findings by CSIS. This should be done in a manner that respects national security, but provides the individual with an opportunity to know the reasons for a denial of security clearance;
• both CSIS and the employing department/agency give consideration to recent remarks by the Privacy Commissioner—that as law enforcement and national security agencies collect more information from more sources, there is a greater chance that information of questionable accuracy could influence decisions or be taken out of context²;
• the Minister responsible for the employing department/agency write to and inform the complainant's former Member of Parliament that—contrary to earlier information—there was no evidence that the complainant's character or past association would affect the individual's suitability to be granted a security clearance at any level; and
• the employing department/agency take measures to ensure the quality and the accuracy of information that is transcribed from hand-written personal history forms.

Alleged discrimination

Report #3

SIRC reported a decision concerning a complaint that was referred to SIRC by the Canadian Human Rights Commission under Section 45 of the Canadian Human Rights Act (CHRA).

The complainant—a former CSIS employee—was suffering from an illness that meets the definition of disability as provided under the CHRA. It was alleged that the Service had failed to accommodate the complainant's disability, and instead allegedly took advantage of that disability to obtain statements and cause termination of employment. It was further alleged that CSIS had refused the complainant's request for an extension of the 25-day limit for appealing or grieving a dismissal.

SIRC found that the complainant, when working for CSIS, was suffering from a disability consistent with Section 7 of the CHRA. SIRC also concluded that there was evidence the Service either knew or ought to have known that the complainant was suffering from a disability.

SIRC determined that the complainant was treated in an adverse manner by CSIS because CSIS relied on statements previously made by the complainant as the rounds for the termination of employment. Therefore, SIRC agreed that the complainant presented a legitimate case of discrimination on a ground prohibited by the CHRA. The Committee maintained that CSIS should have accommodated the complainant by requesting a health review, and should have provided the complainant with an opportunity to respond to allegations prior to termination of employment.

SIRC recommended that:

• CSIS's human resources policies on Health Review be amended to require supervisors and other staff to inform their managers or the manager of an employee in question when they have reason to believe that an employee is in need of medical assistance;
• the Service allow the complainant to submit a grievance; and
• should the Canadian Human Rights Commission investigate the complainant's allegations, the CHRC should not publicly release any information identified in SIRC's report that is subject to national security considerations.

Alleged improper response to a complainant's illness

Report #4

SIRC reported a decision concerning a complaint pursuant to Section 41 of the CSIS Act, which states that any person may make a complaint about "any act or thing done by the Service."

The complainant—a former CSIS employee—alleged that CSIS had:

• pressured the complainant to remain in the workplace and to confess to actions that this individual did not commit;
• breached the Employees Assistance Program's (EAP) code of confidentiality; and
• failed to assist the complainant when in need of medical treatment.

SIRC found that the cumulative effect of the stress and exhaustion, combined with the uncertainty of the outcome of the disciplinary process, induced the complainant to remain in the workplace, and to make incriminating statements in circumstances that rendered the statements unreliable. SIRC further maintained that CSIS failed to both assess the reliability of the complainant's confession and provide the complainant with an opportunity to respond to a new alleged infraction prior to termination of employment.

SIRC found that a reasonable person would interpret the actions of CSIS's Chief of Health Services—who was responsible for the EAP—as "counselling" with respect to the complainant. As a result, SIRC found that the code of confidentiality was breached when the Chief of Health Services brought an investigator to take a statement from the complainant.

SIRC recommended that the Service:

• add a note to the complainant's personnel file, advising that certain statements by the complainant were obtained under circumstances such that the remarks should be considered unreliable;
• ensure that it follows the Breach of Conduct and Discipline Policy prior to discipline being imposed on an employee;
• create a policy to require that all pertinent information having an impact on the reliability of statements (e.g., competency of the person to make a free and voluntary statement) be included in all internal security investigation files;
• remind its employees that all their written records may be subject to the Access to Information Act, the Privacy Act, as well as to operational policy, and that these should only be disposed of in accordance with the Service's disposal-of-records policies;
• create a policy to require that a written record be kept of an assessment by senior management regarding the reliability and relevance of oral and written statements before deciding how to conclude an internal security investigation;
• post a notice at the offices of Health Services and on any website pertaining to the Service's EAP that any communication other than with a counsellor, as defined by the EAP policy, will not be subject to any code of confidentiality. Staff working for the EAP must declare to participants seeking assistance under the EAP that only communications with a counsellor will be subject to the code of confidentiality;
• amend its EAP policy to require that reasonable steps be taken to ensure any required consent provided by an employee is given freely and voluntarily, and that a record of those steps should be kept on the employee's file; and
• amend CSIS's human resources policies to require that supervisors and other staff inform their managers or the manager of an employee in question when they have reason to believe that an employee is in need of medical assistance.