Investigation of complaints - Annual Report 2007-2008

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Section 1. B. Investigation of complaints

Annual Report 2007-2008 - An Operational Review of CSIS Activities

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B. Investigation of complaints

HOW SIRC INVESTIGATES COMPLAINTS

In addition to its review function, SIRC is responsible for investigating complaints about CSIS. SIRC is committed to listening and responding to Canadians, as this is one of the key roles entrusted to SIRC by Parliament. The Committee considers complaints made by citizens concerning any activity of CSIS, or in cases where a security clearance necessary to obtain or maintain federal government employment or contracts has either been denied or revoked. Almost all complaint cases begin as inquiries to SIRC, and SIRC staff make every effort to respond promptly to such inquiries, and inform prospective complainants about what the CSIS Act requires to pursue a 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 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 legal team provides 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.

Types of complaints

Four kinds of matters may be investigated by SIRC:

Complaints lodged by persons “with respect to any act or thing done by the Service” (Section 41);
Complaints concerning denials of security clearances to government employees or contractors (Section 42);
Referrals from the Canadian Human Rights Commission of allegations made to it; and
Minister’s reports in regards to the Citizenship Act.

Complaints can take several forms

The types of complaints that SIRC investigates are described in the CSIS Act and take several forms. Under Section 41 of the CSIS 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. Section 42 does not permit SIRC to accept jurisdiction to hear complaints concerning less intrusive background screening or reliability checks, which are conducted simply to determine the trustworthiness or suitability of a potential federal employee. These complaints are addressed through an organization’s designated grievance procedure.

Pursuant to Section 42 of 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, SIRC will investigate and report its findings and any recommendations to the Minister, the Director of CSIS, the Deputy Head concerned and the complainant.

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 Director of CSIS, the Minister of Public Safety, the Minister of the department concerned and the complainant. SIRC also has the authority to conduct investigations into matters referred to SIRC pursuant to the Citizenship Act.

When SIRC’s investigation of a complaint made under Section 41 is concluded, it provides the Director of CSIS, the Minister of Public Safety and the complainant with a report of its findings and recommendations.² Summaries of these reports, edited to protect national security and the privacy of complainants, are also included in SIRC’s annual report to Parliament.

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).

**Table 1: Resolution of complaints**
	2005-06	2006-07	2007-08
Carried over	18	24	20
New	45	37	32
Total	63	61	52
Closed	39	41	37
Carried forward to subsequent year	24	20	15
Reports issued	4	5	6

How SIRC determines jurisdiction of a complaint…

...under Section 41

Under Section 41 of the CSIS Act, SIRC shall investigate complaints made by “any person” with respect to “any act or thing done by the Service.” Before SIRC investigates, two conditions must be met:

The complainant must first have complained in writing to the Director of CSIS and not have received a response within a reasonable period of time (approximately 30 days), or the complainant must be dissatisfied with the response; and
SIRC must be satisfied that the complaint is not trivial, frivolous, vexatious or made in bad faith.

SIRC cannot investigate a complaint that can otherwise be addressed under existing grievance procedures of the CSIS Act or the Public Service Labour Relations Act.

...under Section 42

With respect to security clearances, Section 42 of the CSIS Act says SIRC shall investigate complaints from:

Any person refused federal employment because of the denial of a security clearance;
Any federal employee who is dismissed, demoted, transferred or denied a transfer or promotion for the same reason; and
Anyone refused a contract to supply goods or services to the government for the same reason.

These types of complaints must be filed within 30 days of the denial of the security clearance. SIRC may extend this period if valid reasons are presented.

² The complainant receives a declassified version of the report.